^ % ^ \ M ^ > b.'ll 3 UL/ I ^/iaJAINO^' ,\t ■ ,T-!:Ri>Arf'r/ 'V... o LA-J . ^' ^» 1-,^ ^.^ ^V :33 > 3:p O vVK — <^ ul-j -V.Et'HIV k^^^ i UJ •'-> -v. ^(?AiivaaiBV> £>T r^ >- 33 -:.nF-rA!l! A^■ < - r , ^; 1/-'*^ == <-3 ^ - 3V\V ^ ^^.OFCAIIFO^^ ,<.r .S' '?' > v^ ^ ^jelow v. Benedict, 70 Id. 202, 206; 26 Am. Rep. 573, 576; Max- ton V. Gheen, 75 Pa. St. 166, 168; Marshall v. Thniston, 3 Lea, 740; See- ligson v. Lewis, Go Tex. 215; 57 Am. Rep. 593, 596; Barnard v. Bickhaus, 52 Wis. 593, 597, 599; Wall v. Schneider, 59 lil. 352, 354; 48 Am. Rep. 520, 521. The contrary doctrine announced in Lorymer v. Smith, 1 Barn. & C. 1, and Bi-yan v. Lewis, Ryan & M. 386, was overruled iu the leading case of Uibblewhitc v. McMorine, supra. It may be stated that such future contracts may be made for the sale of gold: Appleman v. Fisher, 34 Md. 540; Ptahody V. Speyers, 56 N. Y. 230, 234; Biijelow v. Benedict, 9 Hun, 429, 432, affirmed in 70 N. Y. 202; 26 Am. Rep. 573; Brown v. Speyers, 20 Gratt. 296; a contract for the purchase or sale of gold not being opposed to public policj'. In Gregory v. Wendell, 39 Mich. 337, 340, 33 Am. Rep. 390, 392, ISlarston, J., Bays: "Some nice distinctions have heretofore been drawn as to the right of 758 Crawford v. Spencer. [Missouri, a person to sell personal property not at the time owned by him, but which he intended to go into the market and buy, or as was said, that which he hath neither actually nor potentially. Courts must, however, from necessity, recognize the methods of conducting and carrying on business at the present day, and applying well-settled principles of the common law, enforce what might be called a new class or kind of agreements, heretofore unknown, un- less they violate some rule of public policy. The mercantile business of the present day could no longer be successfully carried on, if merchants and dealers were unable to purchase or sell that which as to them had no actual or potential existence. A dealer has a clear right to sell and agree to deliver at some future time that which he then has not, but expects to go into the mar- ket and buy. And it is equally clear that the parties may mutually agree that there need not be a present delivery of the goods, but that such delivery may take place at some other time; and that there need not be an actual manual possession given, but a symbolical one, as by delivery of warehouse receipts, according to custom, is also beyond dispute." " Present ownership is of less consequence than the intention of the contracting parties ": Cockrell v. Thompson, 85 Mo. 510, 519. The fact that the particular goods are not iden- tified is of no consequence, because, from the very nature of the contract, the sale is not of ascertained articles, but of articles of a designated kind to be selected at the time of performance, and may be discharged by the de- livery of any articles answering to the general description given in the con- tract: Sawyer v. Twjgart, 14 Bush, 727, 736; Conner v. Robertson, 37 La. Ann. 814; 55 Am. Rep. 521, 526. A note payable in the future in cotton is not illegal because the maker did not at the time have the cotton on hand ready to be delivered: Phillips v. Ocmulgee Mills, 55 Ga. 633. "Such a principle would make illegal every loan of corn by one neighbor to another, to be re- turned at the end of the season when the new crop came in ": Id. Of course, if one has the property under his control, as a growing crop, he has the right to sell it, to be delivered at a future time: Sanborn v. Benedict, 78 111. 309; and, necessarily, a contract for the sale and transfer at a future day of a certain number of shares of stock which the vendor has at the time of de- livery, and of which an actual transfer is intended, is not a stock-jobbing or wagering contract: Noyes v. Spaulding, 27 Vt. 420. Wagering Contracts for Sale are Void. — While it is thus seen that a contract for the sale of personal property, to be delivered in the future, may be valid, although the vendor has not the property at the time the con- tract is made, but is obliged to procure it to meet the contract, yet such a contract is only valid where the parties really intend that the property is to be delivered by the seller, and the price paid by the buyer. If the in- tent of the parties be merely to speculate in the rise and fall of prices, and the property is not to be delivered, but one party is to pay to the other the difference between the contract price and the market price at the time specified for executing the contract, then the transaction, whatever be its form, is a wager, and void. It has l)een shown above that this is the conclu- sion reached by Grizewood v. Blane, 11 Com. B. 536, and other cases under the gaming act of 8 & 9 Vict., c. 109, sec. 18, such contracts not being ob- noxious to the common law of England; and that several courts of this coun- try, in states which have not adopted the special statutes already noticed invalidating these transactions, have also been disposed to adopt the rule as a result of general acts against gaming and wagering. But in a great majority of the states the rule is adopted as a part of the American common law, and the contracts pronounced void as wagering or gambling transactions for April, 18S7.] Crawford v. Spencer. 759 reasons of public policy: Benjamin on Sales, Bennett's 4th ed., American note to sec. 542; Newmark on Sales, sec. 3G9; Bishop on Contracts, sec. 534; 1 Wharton on Contracts, sec. 453; BidJle on Stockbrokers, 313; Dos Passes on Stockbrokers, 410; In re Chandler, 13 Am. Law Reg., N. S., 310; 9 Nat. Bank. Reg. 514; sub nom. Ex parte Young, 6 Biss. 53, and note thereto in 13 Am. Law Reg., N. S., 318, by Judge Redficld; Jackson v. Foote, 11 Biss. 223; 12 Fed. Rep. 37; Bartlettv. Smith, 4 McCrary, 3S8; 13 Fed. Rep. 263; Cohb V. Prell, 5 McCrary, 80; 15 Fed. Rep. 774; 22 Am. Law Reg., N. S., 609, and note thereto in 5 McCrary, 89; 22 Am. Law Reg., N. S., 615, by Adel- bert Hamilton; Bryant \. Western Union Tel. Co., 17 Fed. Rep. 825; Kirk- patrick v. Adams, 20 Id. 287; Bangs v. Hornick, 30 Id. 97, 98; ilutuni Life Ins. Co. V. Watson, 30 Id. 653; Ward v. Vosburrjh, 31 Id. 12, 13; Irwin v. Williar, 110 U. S. 499; Justh v. IlolUday, 2 Mackey, 346; Ilawley v. Bibb, 69 Ala. 52; Hatch v. Douglas, 48 Conn. 116, 127; 40 Am. Rep. 154; White- sides v. Hunt, 97 Ind. 191, 195, 202; 49 Am. Rep. 441, 445, 449; Lyon\. Culhertson, 83 III. 33; 25 Am. Rep. 349; Lowr v. Young, 59 Iowa, 364; First National Bank v. Oskaloosa Packing Co., 66 LI. 41; Tomblin v. Callen, 69 lu. 229; Beadles v. McElrath, 3 S. W. Rep. 152, 154 (Ky.) ; Conner v. Robertson, 37 La. Ann. 814; 55 Am. Rep. 521, 524; Ruivsey v. Berry, 65 Me. 570; Greg- oy V. Wendell, 39 Mich. 337; 33 Am. Rep. 390, 395; Clay v. Allen, 63 Miss. 426; Cockrell v. Tltompson, 85 Mo. 510; the principal case; Waterman v. Buckland, 1 Mo. App. 45; Williams v. Tiedemann, 6 Id. 269; Kent v. Millenberger, 13 Id. 503; Third National Bank v. Tinsley, Cir. Ct. of Mo., MS. opinion, quoted 3 McCrary, 323; 10 Fed. Rep. 249; Rudolf v. Win- ters, 7 Neb. 125; Kingsbury v. Kirwan, 11 N. Y. 612, affirming 11 Joues & S. 451; Yerkes v. Salomon, 11 Hun, 471; Nichols v. Lumpkin, 19 Jones & S. 88; Brua's Appeal, 55 Pa. St. 294; Swartzs Appeal, 3 Brewst. 131; Thomp- son's Estate, 15 Phila. 532; Alaxton v. Gheen, 75 Pa. St. 166, 168; North v. Phillips, 89 Id. 250, 256; Ruchizky v. De Haven, 97 Id. 202, 209; Grijjitlis v. Sears, 112 Id. 523; Waughw Beck, 114 Id. 422; Marshall v. Thruston, 3 Lea, 740; Beadles v. Ownhy, 16 Id. 424; Dunn v. Bell, 4 S. W. Rep. 41 (Tenn.); Seeligson v. Lew'is, 65 Tex. 215; 57 Am. Rep. 593, 596. Of course an agree- ment to make a "corner "in stock, by buying it up so as to control the market, and then j)urchasing for future deliveries, would be invalid: Samp- son V. Shaw, 101 Mass. 145; 3 Am. Rep. 327. The doctrine is well stated by Franklin, C, after a review of cases, in Whitesidesv. Hunt, 97 Ind. 191, 202, 49 Am. Rep. 441, 448: "We conclude from the foregoing authorities that in this class of cases the correct rule is, that where a commodity is bought for future delivery, no matter what the form of the contract is, the law regards the substance, and not the shadow, and if the parties umtually understood and intended that the purchaser should pay for and tlie seller should deliver the commodity at the maturity of the contract, it is a legal and valid transaction, and the fact that the pur- chaser is required to deposit a margin, and increase the same at any time the market requires it, in order to secure the payment at maturity, or that the seller shall deposit a margin, and increase the same, like the purchaser, in order to secure the delivery at maturity, does not vitiate the contract. But if, at the time of the contract, it is mutually understood and intended by all the parties, whether expressed or not, that the commodity said to be sold was not to be paid for nor to be delivered, but that the contract was to be settled and adjusted by the payment of difference in price, — if the price should decline the purchaser paying the difference, if it should rise the seller paying the advance, the contract price being the basis upon which to 760 Crawford v. Spencer. [Missouri^ calculate differences, — in such case, it would be a gambling contract, and void, and the deposits of margins are only to be considered as attempting to secure the terms of the bet on prices at some future time." If "margins " are deposited upon such an illegal transaction, they cannot be recovered back: Gregory v. Wendell, 39 Mich. 337; 33 Am. Rep. 390; Th.orrrpson v. Cummings, 6S Ga. 124; compare In re Chandler, 13 Am. Law Reg., N. S., 310; 2 Nat. Bank. Reg. 514; sub norn. Ex parte Young, 6 Biss. 53; but in Norton v. Blinn, 39 Ohio St. 145, it was decided that while the policy of the law is to leave the parties to such a transaction where it finds them, yet an agent who receives money of his principal to invest in illegal options was bound to account therefor. Money loaned to pay losses incurred in stock-jobbing transactions, it has been held, could be recovered back: Faikncy v. lieynous, 1 W. Black. 633; 4 Burr. 2069; Petriev. Flannay, 3 Term Rep. 418; Steers \. Lasldey, 6 Id. 61, 62; but it was more recently decided that if the money be knowingly lent for the express purpose of enabling the borrower to settle sucli losses, it can- not be so recovered: Cannnn v. Bryce, 3 Barn. & Aid. 179, 185; and one who, knowingly, and with the purpose of furthering a gambling transaction in purchasing commodities on margin, lends money to another, cannot recover it; but it is not enough to defeat the recovery that the lender knew of the borrower's intention to illegally appropriate the loan; he must know that the borrower is purposing the specific illegal use, and must be implicated as a confederate in the transaction: Waugh v. Beck, 114 Pa. St. 422. A promissory note given for a debt arising in whole or in part out of an illegal transaction is, as between the parties, void: Seeligson v. Lewis, 65 Tex. 215; 57 Am. Rep. 593; and where some of the transactions which enter into the consideration of a note and mortgage are merely gaming transactions, they render the whole security void: Barnard v. Backhaus, 52 Wis. 593. Nor can negotiable paper tainted with the illegality be recovered upon by an indorsee thereof with notice: Steers v. Lnshley, 6 Term Rep. 61; nor when the paper was indorsed after maturity: Brown v. Turner, 7 Id. 630; and of course the assignee of a bond who takes with notice cannot recover: Amory V. Meryweather, 4 Dowl. & R. 86; 2 Barn. & C. 573; Griffdhs v. Sears, 112 Pa. St. 523; but negotiable paper which could not be enforced between the immediate parties because of illegality is good in the hands of a bona fide in- dorsee, without notice, for value, and before maturity: Greenland v. Dyer, 2 Man. & R. 422; Day v. Stuart, 6 Bing. 109; 3 Moore & P. 334; the principal case; Third National Bank v. Timley, 11 Mo. App. 498; Tlurd National Bank V. Harrison, 3 McCrary, 316; 10 Fed. Rep. 243 (D. C, E. D. of Mo.); Third National Bank v. Tinsley, MS. opinion, quoted 3 McCrary, 323; 10 Fed. Rep. 249 (Mo. Cir. Ct.); Shaw v. Clark, 49 Mich. 384; 43 Am. Rep. 474; unless, as in Illinois, it is expressly made void by statute: Root v. Merriam, 27 Fed. Rep. 909 (C. C, D. of Neb., decided under the Illinois statute); Tenney\. Foote, 4 111. App. 594, affirmed in 95 111. 99; compare yucA;.s-o/i v. Foote, 11 Biss. 223; 12 Fed. Rep. 37 (C. C, N. D. of 111.); or held to be void under general statutes against gaming and wagering: Cunningham v. National Bank of Au- gusta, 71 Ga. 400; 51 Am. Rep. 266; Ilaivlcy v. Bibb, 69 Ala. 52; Barnard v. Backhaus, 52 Wis. 593. Intention of Parties the Criterion. — As above intimated, it is the real intention of the parties to a contract for sale for future delivery which makes it valid or invalid: Note to Thacker v. Hardy, 18 Am. Law Reg., N. S., 259, by Judge Bennett; Hentz v. Jewell, 4 Woods, 656; 20 Fed. Rep. 692: Bennett v. Ccmngton, 22 Id. 816; Justh v. HolUday, 2 Mackey, 346; April, 1887.] Crawford v. Spencer. 761 Gregory v. Wendell, 39 Mich. 337, 343; 33 Am. Eep. 390, 395; 40 Mich. 432. "The real intention of the parties," says Adams, C. J., in Tomhlin v. Callen, 69 Iowa, 229, 231, "of course, must determine the character of the transac- tion; and in arriving at the intention, we must be governed by the evidence, and not by conjectures based upon our knowledge of other contracts." "The actual intention may be difficult to prove or disprove; but when once the fact is established one way or the other, there is no difficulty in applying the law": Hatch v. Domjlas, 48 Conn. 116, 127; 40 Am. Rep. 154, 155. In order, moreover, to render the contract invalid, the illegal intent must have been participated in by both the parties. If one of the parties intends an actual purchase and sale, the contract as to him will not be affected by an illegal intent or purpose of the other not communicated or concurred in: Newmark on Sales, sec. 369; Benjamin on Sales, Bennett's 4th ed., American note to sec. 542; 1 Wharton on Contracts, sec. 453; note to Thacker v. Hardy, 18 Am. Law Reg., N. S., 259, by Judge Bennett; Lehman v. Strassherger, 2 Woods, 554, 564; Clarhe v. Foss, 7 Biss. 540; Bartlett v. Smith, 4 McCrary, 388; 13 Fed. Rep. 203; Bangs v. Hornick, 30 Fed. Rep. 97, 98; Ward v. Vos- bvrgh, 31 Id. 12, 13; Pixleyv. Boynton, 79 111. 351, 354; McCormickv. Nichols, 19 111. App. 334; Whitcsides v. Hunt, 97 Ind. 191, 210; Murry v. Ocheltree, 59 Iowa, 435; Conner v. Robertson, 37 La. Ann. 814; 55 Am. Rep. 521, 525; Gregory v. Wendell, 40 Mich. 432; Clay\. Allen, 63 Miss. 426, 430; Cockrell V. Thompson, 85 Mo. 510; the principal case; Williams v. Tiedemann, Mo. App. 269; Teasdale v. McPike, 25 Id. 341; Williams v. Carr, 80 N. C. 294, 298; Wall v. Schneider, 59 Wis. 352; 48 Am. Rep. 520. "If one of the parties acts in good faith, with the intention and expectation of de- liverinfT or receiving the property which is the subject of the sale, the trans- action as to him will be valid, and will be a sufficient consideration for a contract in his hands based thereon ": Murry v. Ocheltree, supra. " In order to make a wager, both parties must intend it to be such. If one intends a l:ona fide sale or purchase, while the other means only a gambling risk upon prospective differences, there will be no propriety in depriving the former of the benefit of his contract because of a secret reservation in the mind of the latter ": Williams v. Tiedemann, supra. But the effect of the Tennessee act of 1883, chapter 251, is to declare the dealing in futures, where either party intends a mere speculation on the rise and fall of prices, gaming: McGrew v. City Produce Exchange, 4 S. W. Rep. 38 (Tenn.). The validity of the contract, furthermore, depends upon the intent of the parties at the time it is made. It is therefore perfectly competent for the parties, after having entered into a valid contract for sale for future deliv- ery, to agree upon a settlement thereof by payment of differences between the contract price and the market price, instead of by actual delivery: New- mark on Sales, sec. 309; Clarke v. Foss, 7 Biss. 540; Gilbert v. Gaugar, 8 Id. 214; Kirkpntrick v. Adams, 20 Fed. Rep. 287; Ward v. Vosburgh, 31 Id. 12, 13, 15; Sawyer v. Taggart, 14 Bush, 727; 18 Am. Law Reg., N. S., 222; Conner v. liobcrtson, 37 La. Ann. 814; 55 Am. Rep. 521, 525; Kent v. Mllten- ber-jer, 13 Mo. App. 503, 508, 510; Wall v. Schneider, 59 Wis. 352, 359; 4S Am. Rep. 520, 526; for, as is tersely observed by Thompson, J., in Kent v. Miltrnherger, supra, " it has never been held that a lawful contract may not be discharged by the voluntary act of the obligee in accepting a pecuniary equivalent for its performance." And if delivery is in fact intended, t!ie contract is vali2 of the same code, which permits an action to recover back from the winner any money or property paid on account of a gambling trans- action: Pearce v. Foote, supra; McComiickv. Nichols, 19 111. App. 334, 339. The most satisfactory doctrine on this question, however, and the on© 766 Crawford v. Spencer. [Missouri, which best accords with principle, and is sustained by the weight of au- thority, in the absence of eome such statute as that of Illinois, is that an- nounced by Mr. Justice Matthews, in Irwin v. Williar, 110 U. S. 499, 510. "It is certainly true that a broker might negotiate such a contract without being privy to the illegal intent of the principal parties to it which renders it void, and in such a case, being innocent of any violation of law, and not suing to enforce an unlawful contract, has a meritorious ground for the re- covery of compensation for services and advances. But we are also of the opinion that when the broker is privy to the unlawful design of the parties, ajid brings them together for the very purpose of entering into an illegal agreement, he is particeps criminis, and cannot recover for services rendered or losses incurred by himself on behalf of either in forwarding the transac- tion." See also Bartlett v. Smith, 4 McCrary, 388; 13 Fed. Rep. 263 (C. C, D. of Minn.); Cohb v. Prell, 5 McCrary, 80; 15 Fed. Rep. 774; 22 Am. Law Reg., N. S., 609 (0. C, D. of Kan.); Kirkipatnch v. Adams, 20 Fed. Rep. 287 (C. C, W. D. of Tenn.); Bangsv. Hornich, 30 Id. 97 (C. C, D. of Minn.); Hatch V. Douglas, 48 Conn. 116; 40 Am. Rep. 154; First National Bank v. Oskaloosa Packing Co., 66 Iowa, 41, 48; Steivart v. Schall, 65 Md. 280; 57 Am. Rep. 327; the principal case; Crane v. Whittemore, 4 Mo. App. 510; Kent v. MiUenberger, 13 Id. 503; Tldrd National Bank v. Tinsley, MS. opinion, quoted 3 McCrary, 323; 10 Fed. Rep. 249; Marshall v. Thrnsion, 3 Lea, 740; Beadles v. Ownhy, 16 Id. 424; Seeligson v. Lewis, 65 Tex. 215; 57 Am. Rep. 593, 599; Brown v. Speyers, 20 Gratt. 296, 309. If the transaction between broker and principal is a gambling one, it would seem clear that it could not be validated by any form of authorization or ratification: McComiick v. Nichols, 19 111. App. 334. So where the defend- ant employed the plaintifif to buy and sell grain for him in form for future delivery, but in fact no grain was intended to be or ever was received or de- livered, and a dispute having arisen betAveen the parties as to who should bear the losses incurred in the speculation, and paid by the plaintiff, it was agreed that part of the losses should be borne by the plaintiff, and the bal- ance thereof should be paid to him by the defendant, it was held that there could be no recovery upon such agreement or compromise: Everingham v. Meighan, 55 Wis. 354. But where a broker claimed a balance due him by his principal on account of certain stock transactions, and a third party as- sumed and paid the same, the principal cannot repudiate a note whicli he exe- cuted to the third person therefor, on the ground that the balance claimed by the broker was due on a gambling transaction: Bangs v. Ilomick, 30 Fed. Rep. 97. Where the transactions between broker and principal are of a gambling nature, the question whether or not third persons dealing with the broker participated in the illegal intention is, it seems, immaterial: Beveridge V. Hewitt, 8 111. App. 467. AMERICAN STATE REPOKTS, Vol. II. Pages 791-808. BELL v. HUDSON. [7P. Cai n-oi.'vr.v, OS.^. | Stale Claims. Aug. 1887.] Bell v. Hudson. 791 The CouKT, For the reasons given in the foregoing opinion, the order is affirmed. Holder of Note cannot Recover against indorser, unless he shows dnn diligence in making demand upon the maker, and notice to the indorser oi non-payment: Tate v. Sullivan, 96 Am. Dec. 597, and note G12. Bell v. Hudson. [73 California, 285.J In Action for Partnership Accounting, equity will refuse to interfere on the ground that the claim is stale, where plaintiff has allowed twenty- five years to elapse before attempting to enforce his rights, during a]l of which time he had knowledge of all the facts, and there was no impedi- ment to the prosecution of his claim, nor had he made any demand upon defendant, nor in any way asserted his claim. In Action for Partnership Accounting, objection that the claim is stale may be raised by demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action. In Action for Partnership Accounting between an administrator of one partner and the representatives of the other, if the complaint is insuffi- cient in other respects it is not cured nor made sufficient by an allega- tion that the real property " has at all times since the same was acquired and still does stand in the names of said partners, " for the action cannot be considered as for partition, ejectment, or mesne profits, as the neces- sary allegations to support either are not made. Hundley and Gale, and A. F. Jones, for the appellant. W. C. Belcher and William G. Murphy, for the respondents. By Court, Hayne, C. According to the complaint, the ma- terial facts are as follows: In 1849 John A. Bell and William M. Bell became partners "in the business of buying and sell- ing stock, and the purchase of real and personal property." The business was carried on until the death of John A. Bell in 1859, at which time there was on hand, belonging to the firm, "a large amount of personal property, consisting of stock cattle, beef cattle, horses, and mares, of the estimated value, as plaintiff is informed and believes to be true, of fifty tliousand dollars; real estate situated in the county of Sutter and state of California, and in the county of Westmoreland, state of Pennsylvania, of the estimated value, as plaintiff is in- formed and believes to be true, of ten thousand dollars; which said real estate has at all times since the same was acquired and still does stand in the names of said partners, John A. and William M. Bell; together with notes and other demands 792 Bell r. Hudson. [Cal. of the estimated value of over ten thousand dollars, as plain- tiff is likewise informed and believes to be true, besides other property to the plaintiff unknown." No administration was had upon the estate of John A. Bell until June 3, 1885, when the plaintiff was appointed adminis- trator. In the mean time, '' and up to the third day of June, A. D. 1885, the said William M. Bell has continued and did continue individually in the possession of the whole of said real and personal property, and to manage and carry on said busi- ness, and dispose of said property, and to collect the debts and things in action, and to manage and control all the property in any wise belonging to said partnership, and during the time aforesaid used the said property in any manner he saw fit, and has sold and disposed of said property, and changed it into other property, and realized thereon large sums of money, the amount of which plaintiff does not know and cannot ascer- tain." It is not alleged that the heirs of John A. Bell were ignorant of these proceedings on the part of William M. Bell, or that there were any impediments to the prosecution of their claims, or that they made any demand upon him, or in any way as- serted their claims, during his lifetime. He died on June 3, 1885, and the defendants were appointed executors of his will. The complaint gc^s on to allege that " the said plaintiff has requested and demanded of the said defendants a statement and account of said copartnership transactions, which the said defendants have neglected and refused to give; and that he demanded of the said defendants that they deliver over all property due and owing, belonging or coming, to him as ad- ministrator of the estate of John A. Bell, deceased; and that they pay over to him as such administrator all sums of money as were due to the estate of John A. Bell, deceased, as his part of said partnership assets and property, which they have like- wise failed to do." The prayer is for an accounting, and for general relief. The court below sustained a demurrer to the complaint, and the plaintiff not amending, final judgment was entered in favor of the defendants. Two grounds are urged in support of the judgment. It is argued, in the first place, that the claim is barred by the statute of limitations; and in the sec- ond place, that the claim is so stale that a court of equity will refuse to enforce it. 1. In ot enforce it. Aug. 1887.] Bell v. Hudson. 795 2. But the complaint alleges that the real property " has at all times since the same was acquired, and still does stand in the names of said partners, John A. and William M. Bell." Does this, in connection with the other allegations, state a cause of action of any kind ? We think not. The action can- not be considered as for partition between co-tenants because the administrator is not a co-tenant, and cannot bring such an action: Freeman on Cotenancy and Partition, sec. 454. It cannot be treated as an action of ejectment between co-ten- ants, because what is alleged does not amount to an averment of ouster; Carpentier v. Webster, 27 Cal. 561; Carpentier v. Mendenhall, 28 Id. 487; 87 Am. Dec. 135; and it cannot be treated as an action for mesne profits, because (if for no other reason) there is no averment that the use of the land was of any value. We see no aspect in which the complaint states a cause of action; and we therefore advise that the judgment be affirmed. FooTE, C, and Belcher, C. C, concurred. The Court. For the reasons given in the foregoing opinion, the judgment is affirmed. Stale Claims. — The general principles which govern courts of equity in permitting a defendant to avail himself of the laches of the plaintifiF in prose- cuting his claim are exhaustively considered in the note to Smith v. Thompson, 64 Am. Dec. 130, so that it becomes unnecessary to discuss here the right which courts of chancery have to act in cases where there has been gross laches or unreasonable delay: See also 1 Pomeroy's Eq. Jur., sees. 418, 419; Steams v. Page, 7 How. 819, 829; Wagner v. Baird, 7 Id. 258; Speidell v. Heinrici, 15 Fed. Rep. 757. We would add here, however, that "what con- stitutes a stale equity is a vexed question hardly susceptible of an accurate definition. Length of time alone is not a test of staleness "; the question must be determined by the facts and circumstances of each case, and accord- ing to right and justice: Paschall v. Hinderer, 20 Ohio St. 5G8, 580; Broinn v. County of Buena Vista, 95 U. S. 159; Jeffery v. Fitch, 4G Conn. 601, 605; 1 Sugdea on Vendors, 8th Am. ed., Perkins's notes, 387, note pK The court is not confined to the statutory period of time in determining whether or not the demand is stale, but may refuse relief in cases where the delay is less or greater than that named in the statute: Wood on Limitations of Action?, ed. 1883, sec. 60, p. 122; 1 Sugden on Vendors, 8th Am. ed., Perkins's notes, 387, note 2^^; 1 Perry on Trusts, 3d ed., sec. 230. Laches and Acquiescence Distinguished. — An important distinction is made by some of the authorities between lapse of time or laches and lying by or acquiescence: Leeds v. Amherst, 2Phill. C. C. 123; Fisher v. Boody, 1 Curt. 206, 219; Archhold v. Scully, 9 H. L. Cas. 383; Clark v. Potter, 32 Ohio St. 61. So it is said in Wood on Limitations of Actions, ed. 1883, sec. 62, p. 126, that "while the words 'laches 'and ' acquiescence ' are often used as similar in meaning, the distinction in their import is both great and important. Laches 796 Bell v. Hudson. [Cal. imports a merely passive, while acquiescence implies active, assent; and while, where there is no statutory limitation applicable to the case, courts of equity would discourage laches and refuse relief after great and unexplained delay, yet where there is such a statutory limitation, they will not anticipate it as they may where acquiescence has existed." It was held, however, in Life Afis'n of Scotlund v. Skldal, 3 De Gex, F. & J. 72, that the two proposi- tions of a bar from length of time or laches and by acquiescence were not distinct, but constituted only one proposition. Now, while lying by and acquiescence would in many cases by analogy to the doctrine of estoppel preclude a party from asserting claimed rights in equity to the detriment of others who had relied in good faith upon such Acts, yet lying by and acquiescence are of necessity an important factor in determining whether there have been such laches as to constitute a bar to re- lief in equity. So it was declared by the court in Life Ass'n of Scotland v. Siddal, 3 De Gex, F. & J. 72, that length of time, where it does not operate as a statutory or positive bar, operates as evidence of assent or acquiescence, and to the same effect are the words of the court in Lindsay Petroleum Co. V Html, L. R. 5 P. C. 221, 239, where it is held that "the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief which otherwise would be just is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defense must be tried upon principles substantially equitable. Two circumstances always im- portant in such cases are the length of the delay, and the nature of the acts done during the interval which might affect either party, and cause a balance of justice or injustice in taking the one course or the other so far as relates to th^ remedy." Distinction between Executory and Executed Interests. — A fur- ther distinction is also made by the courts between executory and execuU-*i interests in passing upon the question whether there have been laches oi acquiescence, greater laches being required in the latter than in the former case, since in executed interests mere laches will not alone disentitle a party to relief; somethmg more, such as waiver or abandonment, being required: Clarke v. Hart, G II. L. Gas. 632, 654. Specific Performance Generally. — As to when specific performance is barred by staluness of the claim, see note to 54 Am. Dec. 132; Hilliard ou Vendors, 2d ed., 181, and note. In Cases of Partnership Agreements, delay or laches may furnish a ground for the court to refuse to decree specific performance of the contract, espe- cially in cases of mining partnerships or others, which are speculative in their nature: Bell v. Hudson, 73 Cal. 285; Harris v. Hillegass, 54 Id. 463; Cleij'j V. Edmonson, 8 De Gex, M. k G. 787; Walker v. Jeffreys, 1 Hare, 341. There are exceptions, however, to this rule, where the courts have granted the relief sought, although the claim has become stale: McGuire v. Pamsey, 9 Ark. 518; Coleman v. Marble, 9 La. Ann. 476; Ludlow v. Coover, 4 Ohio St, 1; Pay v. Bogart, 2 Johns. Cas. 432. Aug. 1887.] Bell v. Hudson. 797 Agents. — In cases where an agent has sought to avail himself of an ad- vantageous transaction by reason of his confidential relation as employee, and such transaction is endeavored to be set aside after a lapse of time, or the transaction has become a stale demand, the rule seems to be that it is very difiBcult for a confidential agent to set up as an available defense the laches of his employer, since it is his duty, so long as the relation continues, to guard against his employer's negligence in all his transactions, and more particularly those in which he, as agent, is concerned. "Length of time weighs less in this case than any other ": Note 4 to Crowe v. Ballard, 1 Ves. Jr., Sumner's ed., citing Beaumont v. Bonltbee, 5 Ves. 492, 494; 7 Id. C09; Hardwire v. Vernon, 14 Id. 511; see further, as to fiduciary and confidential relations, McDonald v. McDonald, 1 Bligh, 33G; Lewes v. Morgan, 5 Price, 42; Berkmeyer v. Kellerman, 32 Ohio St. 257. But where an attorney sold his client's bonds at a public sale, and bought them himself, giving their full value at the time for them, it was held that it was too late for the client to obtain any relief in equity, he having acquiesced in the purchase for twelve years: Marsh v. Whitmore, 21 Wall. 178. Parent and Child. — Where a child made a voluntary settlement upon his father while under his influence, but thereafter was emancipated from parental control, and for nine years was in a position to assert his rights, but neglected to do so during that time, and then filed a bill asking that thf deed might be set aside, the relief asked was refused, and the court observed that " if it be shown that the influence is gone, the court expects steps to be taken especially in regard to these family matters, in order that jjersons may know what line of conduct they are to adopt wliere there is a transaction which may be subject to be impugned The court requires a porson to be prompt in asserting his right in a case of this description, where the whole conduct and life of the father is framed upon the supposition that the property is in the state in which it is until it is disputed ": Turner v. Collins, 20 Week. Rep. 305; 41 L. J. 558; L. R. 7 Ch. 329. In the following case, a daughter, for a nominal consideration, very soon after attaining her majority, gave to her father, who was also her guardian, a life interest in part of her real estate. Sixteen months tliereafter she married, and seven years afi/cr the execution of the indenture she died. Tliree years after her decease, her husband, on whom her rights had devolved, brought a bill in equity, asking to have the father declared a trustee of the life estate, and an account of the tents and profits which accrued prior to the daughter's minority and afterwards. It was "held, that if the bill had been filed shortly after the transaction, or even near the time of the marriage, it might have been set aside, since courts look with great jealousy upon all transactions of such a character between parent and child, but that a delay of ten years was such laches that the bd' could not be sustained, and it was accordingly dismissed on that grouno; Wright v. Vonderjplank, 2 Kay & J. 1; 1 Perry on Trusts, 3d ed., sac. 201. Members of the Same Family. — As a rule, the delay is not so preju- dicial where all the parties are members of the same family as in case of strangers: Paschall v. Hmderer, 28 Ohio St. 568, 582, citing Laverw. Fielder, 9 Jur., N. S., 190. GcARDiAN AND Ward. — A bill in equity for an accounting, and for set- ting aside a release given by the ward in ignorance of her rights, will lie against the guardian and against his sureties on his bond, who had notice of the fraudulent character of the release, although the action is brought within •ight years after the ward arrives at majority, it appearing that she had no 798 Bell v. Hudson. [Cal. knowledge of her rights until about a year before bringing suit: Carter v. Tice, 120 111. 277. Judgments. — A court of equity will open a judgment upon a petition brought within a reasonable time after the fact that such judgment exists comes to the party's knowledge, he having had no notice of the pendency of the suit, and it makes no difference that the time fixed by the statute of imitations has expired: Jfffery v. Fitch, 46 Conn. 601, 605. But relief will be refused where it is sought to set aside a judgment obtained by fraud, if it appears that the complainant has not exercised proper diligence, and that the petition was not brought until seven years after the judgment was ob- tained: Brown v. County of Buena Vista, 95 U. S. 157; and a party who seeks the aid of a court of equity for relief against a judgment, on account of a matter which would have been a good defense at law, must show that his failure to make his defense was not owing to his own neglect or want of diligence, since in no case will a court of equity relieve a person against the con- sequences of his own laches: Drinlcard v. Inrjram, 21 Tex. 650; 73 Am. Dec. 250. Although mere irregularities may be cured by lapse of time, yet such is not the case if the proceedings are void: Sliaefer v. Gates, 2 B. Mon. 457; 38 Am. Dec. 164; and in favor of a judgment, it is held that facts which are indispensable to its validity may be presumed after a lapse of time, although they are not ap- parent on the record: Id. So in case of a delay of forty-three years everything is presumed in favor of a judicial act not shown to have been unauthorized: Shackelford v. Miller, 9 Dana, 278. In Sullivan v. Andre, 4 Hughes, 290, 6 Fed. Rep. 641, the facts were these: A bill was filed in 1879 to set asideadis- tribution of personal estate made in 1869, and it appeared that the complain- ants were aliens; that they first learned of the intestate's death in 1874, and had instituted a suit in 1876 to set aside the distribution, which suit they were obliged to discontinue; and that they had used every endeavor to ascer- tain the parties to whom the money had been distributed, and upon finding one of them, had brought this action. It was held, in view of the facts, that lapse of time was not a bar. A Judicial Sale. — The court refused to set aside a judicial sale where there had been laches in delaying to bring a suit for five years: Harwood v. Rail rood Co., 17 Wall. 78. Execution Sale. — Equity will not interfere to set aside a sale of real estate made under an execution, where the party seeking relief has, without excuse, failed to avail himself of his rights at the proper time, since justice requires that one must suffer for his own laches in such a case, although a large estate be sacrificed for a small sum of money: Stone v. Gardner, 20 111. 304; 71 Am. Dec. 2G8. That Demand is Stale cannot be Availed of against thb Government, toor i3 laches imputable to it on account of negligence of its public ofl&cers or its agents. This doctrine is well settled: United States v. City of Alexandria, 4 Hughes, 545; 22 Myer's Fed. Dec, sec. 327. The court said in this case that " the general principle is, that laches are not imputable to the govern- ment; the utmost vigilance would not save the public from the most serious losses if the doctrine of laches could be applied to its transactions "; but the exception is made as to third parties, who are st'rangers to transactions as to which the negligence may occur: Haehnlen v. Commonwealth, 13 Pa. St. 617; 53 Am. Dec. 502, and note 503; United States v. Williams, 4 McLean, 567; Sedgwick and Wait's Trial of Title to Land, 2d ed., sec. 753 a; United States V. Kirkpatrick, 9 Wheat. 720; United States v. Little Miami etc. B. C, 1 Fed. Rep. 701; United States v. Van Zandi, 11 Wheat. 184; United Aug. 1887.] Bell v. Hudson. 799 States V. BarrowdiJT, 3 Ben. 519; Mclntyre v. Thompson,, 4 Hughes, 562. But see 7 Opin. Att'y-Gen. G14, where it is said that rights of action in favor of the United States are not barred in the absence of a special provision by act of Congress, and citing United States v. Knight, 14 Pet. 311, 315; United States V. Hoar, 2 Mason, 311; though laches may be availed of by the gov- ernment as against the claimant of a grant: United States v. Moore, 12 How. 223. As to claims, however, which are presented against the United States, it is said that "the presumption and inference " arising from staleness of a demand "may be rebutted by other evidence accounting for the delay, and explaining that it arose from other causes ": 2 Opin. Att'y-Gen. 464. The Rule Governing Trusts. — Laches does not operate as a bar to purely equitable trusts which are direct, continuing, or express: Hljhtowerv. Thornton, 8 Ga. 486; 52 Am. Dec. 412; and see notes 24 Id. 569; 12 Id. 372. Although "time does not bar a direct trust where the relation of trustee and cestui que trust is admitted to exist, yet diligence must be used to establish a constructive trust on the ground of fraud A constructive trust will be barred by long acquiescence, although the fraud was evident, and the re- lief was originally clear": 1 Perry on Trusts, 3d ed., sees. 228 et seq. ; see Speidel v. Ilenrici, 15 Fed. Rep. 753, and note 758; Oodden v. Kimmel, 99 U. S. 201, 212; 22 Myer's Fed. Dec, sec. 315; Etting v. 3Tarx, 4 Hughes, 312; 4 Fed. Rep. 673; 22 Myer's Fed. Dec, sec. 325. A very concise rule and clear statement of the law on this question, of what trusts are and what trusts are not barred, is given by Judge Story. He says: "It is often sug- gested that lapse of time constitutes no bar in cases of trust. But this prop- osition must be received with its appropriate qualifications. As long as the relation of trustee and cestui que trust is acknowledged to exist between the parties, and the trust is continued, lapse of time can constitute no bar to an account, or other proper relief, for the cestui que trust. But where this relation is no longer admitted to exist, or time and long acquiescence have obscured the nature and character of the trust, or the acts of the parties, or other circumstances, give rise to presumptions unfavorable to its continu- ance, — in all such cases a court of equity will refuse. relief upon the ground of lapse of time and its inability to do complete justice. This doctrine will apply even to cases of express trust; and a fortiori it will apply with in- creased strength to cases of implied or constructive trusts": 2 Story's Eq. Jur., 13th ed., sec. 1520 a; Pomcroy's Eq. Jur., sees. 418, 419, 1080; An^ell on Limitations, 6th ed., sees. 166-169, 171, 174-178, 468-472; Prevost v. Graiz, 6 Wheat. 497. In consideration of this question, the words of the court in Michoud v. Girod, 4 How. 503, 561, are important. It is said in that case that the time within which a constructive "trust will be barred must de- pend upon the circumstances of the case: Boone v. Chiles, 10 Pet. 177. There is no rule in equity which excludes the consideration of circumstances; and in a case of actual fraud, we believe no case can be found in the books in which a court of equity has refused to give relief within the lifetime of either of the parties upon whom the fraud is proved, or within thirty years after it has been discovered or become known to the party whose rights are affected by it ": See also Tiffany and BuUard's Law of Trusts and Trustees, ed. 1862, 718, 719; 1 Perry on Trusts, 3d ed., sec. 229. Instances flf Trusts Barred and not Barred. — A cestui que tru-^t cannot be bound by acquiescence, except when he has been fully informed of iiis rights and all the material facts and circumstances of the case: Life Ass'n of Scot- land v. Siddal, 3 De Gex, F. & J. 74. A delay of twelve years after the expiration of a trust, or tea years after the death of the trustee, does not 800 Bell v. Hudson. [Cal. constitute such laches as to bar the representatives of a cestui que trust from the right to a trust account: Dickenson v. Holland, 2 Beav. 310. Although in regard to express trusts, lapse of time is not as a rule considered, yet where the cestui que trust was guilty of gross laches, it was held that the rule did not apply: De. Busche v. AH, L. R. 8 Ch. D. 286. But equity will not enforce a trust in behalf of creditors who have slept on their rights for twenty years, such delay being unreasonable: McKniglii v. Taylor, 1 How. 161. Where there has been a great lapse of time or laches on the part of the cestui que trust, a resulting trust will not be enforced, especially not against occupation under a deed or against an adverse holding: 1 Perry on Trusts, 3d ed., sec. 141. In a recent case in Massachusetts the following facts appeared: The plaintiff's testator became a surety on the probate bond of a trustee in 1855. An account was rendered by the trustee in 1856, but no other was rendered, except one occasionally to the cestuis que trust. The trustee in 1864 pledged certain stock of the trust estate to a bank as security for indebtedness to it from his firm. The bank had notice that the stock be- longed to the trust estate, but thereafter, in 1867, sold the same at the trus- tee's request, and the amount realized therefrom was applied on the debt. No benefit was received by the trust estate from such disposal of the stock. The surety was secured by the trustee in 18o8, but in 1869, upon being re- leased by the court from the bond, gave up his security. The cestuis que trust first learned of the breach of trust in August, 1877. A suit was commenced upon the bond in November, 1877. Thereafter, iu 1878, the original trustee was removed, and another trustee appointed. A judgment for the penal sum of the bond was rendered, although the full amount due on the execution was not at that time determined. Before filing their bill in equity, the plain- tiffs paid the amount due, so far as ascertainable, and subsequently thereto they paid the balance in full on the execution. In 1884 they brought this petition against the bank to recover the sum paid on the judgment and execu- tion. It was held that there was no such laches on the part of the cestuis que trust in failing to call for an account as would prevent them from following the funds into the bank, since they had no knowledge of the breach of trust until 1877, and that the pendency of the suit on the bond justified the delay necessary to defend it, that the delay was not unreasonable, and was, there- fore, no sufficient ground of defense, and that it would be inequitable to deprive the plaintiffs of their remedy on account of it: Jblake v. Traders Nati(mal Bank, 145 Mass. 13. But a direct trust not cognizable at law, though falling exclusively within the jurisdiction of courts of equity, is not subject to the doctrine of stale demand A3 a defense, where the bill seeking relief is filed in five years after the liability accrues: Hightower v. Thornton, 8 Ga. 486; 52 Am. Dec. 412. In the last case the remedy was sought against the stockholders of a banking corporation, the legal assets of which were exhausted. So lapse of time is no bar to relief for the enforcement of a resulting trust, when it appears that the trust has been acknowledgeel, and there have been no laches or adverse posses- sion: Doiu V. Jeioell, 18 N. H. 341, 357; 45 Am. Dec. 371. In Barwell v. Bar- well, 34 Beav. 371, a trustee bought up a charge on the share of one of the cestuis que trust to certain trust property for the benefit of Lis reprtseutatives; they were unable to purchase it at the price paid, and he subsequently sold it to others of the cestuis que trust, all the transactions were openly entered into, and there was no concealment of the facts. It was held that such pur- chase would not be set aside after the lapse of twenty years, although the property had very greatly enhanced in value. Again: the plaintiff's ancestct* Aug. 1887.] Bell v. Hudson. 801 conveyed real and personal estate to trustees for the purpose of paying certain debts, and to hold the balance in trust for himself; twenty-two years there- after he died, and two years after liis decease a bill was filed for discovery and account against the survivors of the trustees. At no time during his life had the grantor made any attempt to annul the transaction or obtain a set- tlement. It was held that the long delay and acquiescence was a proper objection to the bill: Went v. Randall, 2 Mason, 181. So a presumption that a trust has been satisfied or extinguished may arise after a lapse of forty years: Prevoxt v. Gralz, 6 Wheat. 481. And where there has been a posses- sion under absolute deeds for a long time without question, and evidence relied on to establish a resulting trust, such evidence must be clear and ex- plicit, so as to leave no doubt as to the character of the transaction: Mil- ler V. Blo-se, 30 Gratt. 744, 751. Although purely equitable trusts which are direct, express, and subsisting are not barred by lapse of time, yet where the suit is brought for redress for an injury caused by a violation of the trust, a diflferent rule prevails, and the suit is barred: Wickliffe v. City of Lexington, 11 B. Mon. IGl. Fraud. — In cases where it is sought to impeach a transaction on the ground of fraud, lapse of time is a question of much importance, owing to the fact that much evidence originally available and necessary to a full knowledge of the equities of the transaction may be lost: Prevost v. Gratz, G Wheat. 481, 498. And the plaintiff in equitable proceedings in cases of asserted fraud can have no relief if he has been guilty of gross laches: Ooidd V. Gould, 3 Story, 51G; Charter v. Trevehjan, 11 Clark & F. 714. In an action on a note based upon the conveyance of certain land as a con- sideration, the defense of fraud in making the conveyance was set up, and an offer was made to reconvey. The fraud was discovered in 1877; the deed was given in 1873; the action was commenced in 1877; and in 1879 the answer averring fraud was filed. It also appeared that " the delay of the defend- ant in electing to rescind, after he suspected the fraud, was the natural conse- quence of, or at least might have been caused by, the acts of the plaintiff"; and it was held, therefore, that he had not, under the peculiar circumstances of the case, "lost his right to rescind by his delay to elect so to do beyond a reasonable time after he had full knowledge of the fraud": Nealon v. Henry, 131 Mass. 153. It is said, however, in James v. Atlantic Delaine Co., 3 Cliff. G14, G20, that the rule that staleness of a claim is a good defense "should seldoui or never be applied in cases of trust where the means of knowledge are wholly or even chiefly on one side. When the fraud charged and proved consists of misrepresentations and concealments, courts of equity are reluctant to apply the rule at all, unless it appear that the rights of inno- cent third parties will be injuriously affected if that defense be overruled." But in cases of fraud, the time when the fraud was discovered, or when by the exercise of reasonable diligence it might or ought to have been discovered, is material: 1 Sugden on Vendors, 8tli Am. ed., Perkins's notes, 389; and the remedy is not barred by lapse of time, where the party has never with a knowledge of the facts done anything which amounts to acquiescence: Cluir- ter V. Trevelyan, 11 Clark & F. 714, 740. Relief was granted in the last case, where the fraud was first discovered after a lapse of thirty-seven years: Id. So laches will not avail as a defense in cases of secret fraud, if the action is brought within a reasonable time after its discovery : Meader v. Norton, 1 1 Wall. 442; and a suit brought in one year after the discovery of the fraud, the action being to rescind a sale of land, is instituted within a reasonable time: HmUh v. Babcock, 2 Wood. & M. 24G. Am. St. Rep.. Vol. IL— 51 802 Bell v. Hudson. [Cal. Knowledge is Material. — Acquiejceuce imports full knowledge: Li/'e Aiis'n o/Scothvd v. Sidda.l, 4 De (!-ex, F. & J. 74. Tliereforu a party w 11 not be held to acquiesce in acts which he did not know he had a.iy ri^ht to dispute: Cliolmondelpy v. Clinton, 2 Mer. 171, 3G2. Nor id the rule confined to cases of acquiescence merely; for it is said that where one is ignorant of the facts, there can be neither laches nor acquiescence: Charter v. Travelijan, 11 Clark & F. 714, 740; Bennet v. Colleij, 1 Myl.ie & K. 225, 232; Wood on Limitations of Actions, ed. 1883, sec. CI, p. 125; and where fraud is relied on in cases of trust, there can be no laches by reaso;i of anything done or neglected, where the party seeking relief has, witliout any fault of his own, remained in igno- rance of his rights: Rolfe v. Greijory, 13 Week. Rep. 355; Savery v. Kiwj, 5 H. L. Cas. 626, 665. In brief, time does not commence to run, except there la full information and knowledge by a party of his rights and the injury done, and he has such notice thereof as that he ought to have made inquiry, or where there is undue influence, and the disability is removed, or where he himself possesses the means of knowledge: 1 Sugden on Vendors, 8th Am. ed., Per- kins's notes, 3^7, note p'. So the time when a party first seeks to impeach an agreement which he had hitherto treated as fair is material in determin- ing the question of laches: Morony v. O^Dea, 1 Ball & B. 118; and see oases under title "Fraud," supra; 2 Pomeroy's Eq. Jur., sec. 917. Where a party loith knowledije of the facta neglects for nineteen years to assert his claim, with no sufBcient excuse for delay, his laches will l)ar relief in equity: Cotitnerv. Walrod, 25 Am. Rep. 369; &ee also Smith v. Thompson, 54 Am. Dec. 126, note 130-134; De Cardova v. Smith, 58 Id. 136; Strimpfer V. Roliertu, 57 Id. 606, and notes to these cases. Accounts. — Long acquiescence in an account makes it a settled one: Baler v. Biddle, 1 Bald. 394, 418; for this reason the court will refuse to order an accounting where several years have elapsed since the transactions in question were had, although the statute of limitations does not apply: Slierman v. Sherman, 2 Vern. 276. So where a bill was fded against a son to account to his father's estate for money given hirn by his father twenty years before, upon the ground that the sum was a debt due the estate, it not being claimed as an advancement. It was held that the equities after such a lapse of time raised the presumption of payment when the same was averred in the answer: Blackerl>y v. Ilolton, 5 Dana, 525; and where a tenant for life in remainder brought a bill against the representatives of a prior tenant for life twenty years after his death for an account of timber improperly cut, the bill was dismissed: Harcourt v. White, 28 Beav. 303. Injunctions. — Delay, laches, or acquiescence may prevent a party from obtaining relief where an injunction is sought. So held where it was sought to enjoin making an award: DuLin v. Caldwell tb Co., 28 Ga. 117; and laches may be a defense to an application for an injunction, by way of information, equally with that of proceeding by a bill: Attorney-General v. Sheffield etc. Co., 3 De Gex, M. & G. 304. So laches may be set up in defense to a motion for an interlocutory injunction in cases of patents: Ilockholzer v. Ean undervalue; the trustee was also a tenant for life, and died two and a half years after the execution 806 Bell v. Hudson. [Cal. of the deed. It was also decided that the time which might elapse during such tenancy would not alone be considered as amounting to laches. In- asmuch as this case is frequently cited as an authority upon the main ques- tion as to poverty not being an excuse, we cite from the opinion of the court as showing that no general rule to such effect was intended to be laid down. The court declares that "where a transaction of this kind has been brought about by misrepresentation, concealment, or undue influence, or where the vendor is dependent on the bounty of the purchaser, the court considers that the right of the vendor to rescind the sale exists, without the importation of laches, until such time aa it was shown that he was released from the position in which he was placed by these circumstances. The poverty of the vendor, added to the other circumstances, is also a material ingredient in such a case. But where none of the special grounds of complaint exist, — where there is no misrepresentation, concealment, or undue influence, and no dependency of the seller on the purchaser, where the right to rescind the transaction is an equity arising out of the transaction itself, as in the oase of a sale of the reversionary interest, is it to be said that waiver will not apply, or that no time will be a bar merely because the seller was poor? .... In Eoclie v. O'Brif.n, 1 Ball & B. 330, a fraud was committed upon a distressed man in the situation of an expectant heir, by the purchase from him of his expected reversion by the defendant, an experienced attorney; and that fraud was con- tinued in a second transaction, intended to confirm the first, and entered into some years afterwards while the distress of the vendor continued. Upon a bill filed to set aside the transaction twenty-seven years after it took place. Lord Manners did not say that mere pecuniary distress would excuse the delay; on the contrary, his language was against such a conclusion. " But the court (after saying that it found nothing in the authorities to the efl'ect that pov- erty was an excuse in the absence of the existence of the special grounds of complaint above stated, and that it thought that the reasoning was the other way) added: "I do not mean to lay down any general rule; but in the circumstances of this case, .... my opinion is, that the consequences of un- explained delay must prevail. It is contrary to all experience to suppose that because a party is poor he is therefore unable to obtain professional ad- vice ": See 1 Perry on Trusts, 3d ed., sec. 230, cases in note 4; and the case of Hovenden v. Anneslcy, 2 Schoales & L. G39, decides that the fact that the complainants were embarrassed and reducc^d by the fraud of others is no ex- cuse for laches. But it is said in note 4 to Crowe v. Ballard, 1 Ves. Jr., Sum- ner's ed., 221, that "a mere general embarrassment, having no reference to any fraud with respect to the particular contract complained of, is not a cir- cumstance upon which the court will act to set aside, after a long lapse of time, conveyances deliberately executed. If this were the practice, there would be an end of all limitations of suits in the cases of distressed per- sons, and all property would be thrown into confusion ": See also Gregory v. Gregory, Coop. 205; and that poverty maybe a defense, see Mason v. Crosby, Dav. 303; and see title "Patents," ante. Infancy and Coverture constitute, with few exceptions, a valid excuse for laches: Wlcaley v. Elliott's Heirs, 1 A. K. Marsh. 345; Steele v. McKnigU, 1 Bay, 65; Blandford v. Marlborough, 2 Atk. 545; Bennett v. Colley, 1 Mylne & K. 225, 233; Cope« v. Flesher, 1 Bond, 440; Chew v. Hyman, 7 Fed. Rep. 7. See, however. Havens v. Patterson, 43 N. Y. 218; Kemp v. Cook, 18 MJ. 130; and on the point of coverture, see Bedillan v. Seaton, 3 Wall. Jr. 279, 287; Elhng v. Marx, 4 Huglies, 312; 4 Fed. Rep. 673; 22 Myer's Fed. Dec, sec. 326; Harrison v. Gibson, 23 Gratt. 212. In the case of minors, this rule waa .Aug. 1887.] Bell v. Hudson. 807 held especially applicable, where the minors had no knowledge of their rights, and their residence was i;i a different state: Heirs of Ware v. Brush, 1 McLean, 533. But voluntary disabilities, such as absence from the state, are no defense against the charge of staleness: Bedilian v. Seaton, 3 Wall. Jr. 279, 287. And that the defendant is an infant is no excuse for laches on the part of the plaintiff: Jonea\. Turherville, 2 Ves. Jr. 11. Pendency of Suit. — As a rule, a party's right is not prejudiced by lapse of time while a suit is pending: Darby and Bosanquet on Limitations, ed. 18G7, 199; nor is a party prejudiced by lapse of time when a court of equity has pre- vented him from pursuing his remeily: Id. But the pendency of an action was held no excuse, where it appeared upon a bill brought against several parties for an account of profits for infringement of a patent right that the plaintiffs had, prior thereto, instituted a suit against only one party for violating the patent, but had not notified the others of the claimed infringement, nor taken any steps against them until after that suit was determined. The patent ex- pired in 1849, and the test suit was brought in 1852, and decided in 1853: Smith v. London etc. B. B. Co., 1 Kay, 408. But see title "Patents" herein, ante. And the fact that a party has been compelled to bring a bill of dis- covery against persons who have in their possession the papers necessary to enable him to obtain his rights, is an excuse for what might otherwise be delay BufiBcient to constitute laches: Bond v. Hopkins, 1 Schoales & L. 413. Creditors. — Equity will not aid a creditor who waits forty-six years to col- lect a claim, although he believed that his debtor was insolvent during all that time, where it appears that he might, by the exercise of reasonable dili- gence, have recovered his money by a suit at law: Maxwell v. Kennedy, 8 How. 181. Nor does laches apply to a large body of creditors: Whicote v. Lawrence, 3 Ves. Jr. 740. Pleading. — The complainant "should set forth in his bill specifically what were the impediments to an earlier prosecution of his claim, how he came to be so long ignorant of his rights, and the means used by the respon- dent to fraudulently keep him in ignorance, and how and when he first came to a knowledge of the matters alleged in his bill ": Marsh v. Whitmore, 21 Wall. 178, 181, citing from Badjcr v. Badrjer, 2 Id. 95. So the time aud means of the discovery of a secret fraud must be particularly alleged: Badger v. Badger, 2 Cliff. 137. "And especially must there be distinct averments of the time when the fraud, mistake, concealment, or misrepresentation was dis- covered, and how discovered, and what the discovery is; so that the court may clearly see whether, by the exercise of ordinary diligence, the discovery might not have been before made; for if by such diligence the discovery might have been before made, the bill has no foundation on which it can stand in equity on account of the laches ": Stearns v. Page, 1 Story, 204, 215. So in cases where it is sought to open an account on the ground of fraud, mistake, etc., the exercise of ordinary diligence in making the discovery of the same is an important factor; and for this reason, the time when the dis- covery was made, as well as what the discovery is, must be distinctly averred: Stearns v. Page, 7 How. 819, 829. Demurrer. — The objection to a stale demand, lapse of time, or laches, may be taken by demurrer when apparent on the face cf the pleadings: Maxwell v. Kennedy, 8 IIow. 210; Sullivan v. Bailroad Co., 94 U. S. 811; Copcn v. Flesher, 1 Bond, 440. Courts of equity as a rule, however, are very re- luctant to sustain a demurrer to a bill on the ground of staleness alone, un- less it is such that the delay wouUl bar a suit at law on the same claim, or unless there is a clear and strong analogy between the case in chancery and 808 Cross v. Eureka Lake etc. Canal Co. [Cal. a case at law on which a statute of limitation would operate: The court in Put- nam V. New Albany, 4 Biss. 365, 372. But it ia not necessary, in order to avail himself of the defense of staleness of the demand, that a party should rely upon a plea, answer, or demurrer; since such defense may be suggested at the hearing: Baker v. Biddle, 1 Bald. 394, 418; Fisher v. Boody, 1 Curt. 206, 218; Sullivan v. Railroad Co., supra. The Defense of the Statute of Limitations may be raised by demurrer: Smith V. Fhj, 76 Am. Dec. 109, and note 114. Evidence. — If laches are set up as a defense by a party against whom fraud is established, the burden is upon him to prove the time when knowledge of such fraud was obtained by the other party, and that he was guilty of laches in prosecuting his rights thereafter: Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. 221. So the burde'n of proving laches or acquiescence is on the party Betting it up: WM v. Cockrell, 1 H. L. Cas. 229, 243; and every presumption that can fairly be made against a stale demand may be made: Pickering v. Stamford, 2 Ves. Jr. 581. Lapse of Time when a Bab in matters of summary jurisdiction over attorneys, see note to Burns v. Allen, post, p. 860, subtitle "Lapse of Time a Bar." Cross v. Eureka Lake and Yuba Canal Co. [73 California, 802.] Pledgee op Corporate Stock has right to retain it until the debt for which it was pledged is fully satis6ed, but during such time he cannot assert that he holds it adversely, and thereby acquire title under the statute of limitations. As between Pledgee and Pledgor of corporate stock, the general prop- erty remains in the latter, and when the debt to secure which the pledge was given is paid, the lien is extinguished. Where in Suit by Pledgee of Corporate Stock to recover dividends against the corporation the latter deposits the money in court, and has the pledgor and his assignee made defendants, and it appears that the debt for which the stock was pledged is liquidated, whereupon judgment is rendered by consent of the pledgor for the assignee for the entire amount sued for, as the pledgee has no interest in the money he cannot complain of the judgment awarding the assignee the dividends accruing prior to its rendition. Freeman, Bates, and Rankin, and H. V. Reardan, for the ap- pellant. R. H. Taylor, E. H. Gaylord, T. M, Osment, and Taylor and Craig, for the respondents. By Court, Bei.cher, C. C. The plaintiff, as administrator of the estate of T. W. Sigourney, deceased, brought this action against the Eureka Lake and Yuba Canal Company, a corpo- ration, to recover the sum of fifteen thousand dollars for divi- dends alleged to have been declared by the company after AMERICAN STATE REFOIMS. VoT,. HI, Pa.;ks :-io-^745. WHITWORTIT ;. rilOMAS. 1 8^5 Aj \i\m \, :jOS. I Rescission of Contracts. Pagks r9f-«73. THOMPSON r. RF.NO S.W [NGS BANK. [19 Nevada, 108. j Corporations — Stockholders. Dec. 1887.] Whitwoeth v. Thomas. 725 Whitworth V. Thomas. [83 Alabama, 808.1 Seller of Horse Who Represents Him to bb Sound, knowing him to be unsound, and thereby misleading the purchaser, who is unable to dis- cover the defect by ordinary observation, perpetrates a fraud which will entitle the purchaser to rescind on demand made within a reasonable time after the discovery of the fraud. In Action for Rescission of Contract for Exchange of Horses on the ground of defendant's fraud, the defendant cannot set up the fraud of the plaintiff as a defense. In Statdtory Action Corresponding to Dettnite, there can be no set-Aflf or recoupment of damages. On Question of Soundness of Horse, it is relevant and competent to prove what kind of and how much work was done by the animal while in the purchaser's hands. Action for recovery of a mule, with damages for its deten- tion. The opinion states the facts. R. C. Hunt and W. L. Martin, for the appellants. /. E. Brown, for the respondents. By Court, Stone, C. J. The present suit is a statutory ac- tion for the recovery of a chattel in specie, corresponding to the common-law action of detinue in every respect material to the decision of this appeal. Thomas exchanged with Whit- worth a mule for a mare, giving and paying a small differ- ence. About two weeks after the exchange, he tendered the mare back, and demanded a rescission, claiming that the mare was unsound when traded to him, and that he had been defrauded in the trade. Whitworth refused to receive the mare, and refused to rescind. Thomas thereupon brought this action to recover the mule. There is no contrariety of testimony bearing on the points stated above. There is no pretense in this case that there was any war- ranty of the soundness of the mare. The scope of the con- tention is, that the mare was unsound; that the fact was known to Whitworth, but unknown to Thomas; and that, in negotiating the trade, Whitworth represented that she was sound, so far as he knew, and by means thereof induced Thomas to make the trade. If these were the facts, they armed Thomas with the right to rescind, if seasonably and properly demanded. The demand would be seasonable and proper, if he tendered the mare back with no undue delay, after discovering the deceit practiced upon him: 3 Brickell's Digest, 736, sees. 78-80; Perry v. Johnson, 59 Ala. 648; 2 Par- 726 Whitworth v. Thomas. [Alabama, eons on Contracts, bottom page, 920; 3 Wait's Actions and Defenses, 432, 455, 453. If a seller knows the horse to be un- sound, and informs the buyer that he is sound so far as he knows; and the buyer, not knowing the contrary, nor able to discover it by ordinary observation, relies on such representa- tion, and consummates the trade, this, if injury result from it, constitutes a fraud; and the buyer is authorized to rescind, if he demand it within a reasonable time after discovering the fraud. The maxim, In pari delicto, potior est conditio possidentis, has no application to a case like this. That maxim applies, and only applies, where two or more are jointly concerned in the perpetration of one and the same fraud, — a conspiracy or combination to accomplish an illegal object, through fraud, by which some third person is to be the sufferer. It does not permit one independent deceit or fraud to be set off against another deceit or fraud, so as, on that account, to estop the latter from maintaining his suit. It may confer a right to a cross-action. It does not deny to either party all right to sue. The plaintiff's right of action in this case depends on his ability to show that Whitworth had defrauded him in the exchange of the mare for the mule. The issue raised the in- quiries whether the mare was unsound when the trade was made; whether Whitworth knew it; and whether he used any expression, or resorted to any artifice, with a view of conceal- ing that fact, or of throwing Thomas off his guard. If these inquiries be answered in. the affirmative, and if Thomas trusted them, and suffered injury as a consequence, this part of his complaint is made good. In the present action, — statutory detinue, — no question of recoupment or set-off could have been considered, even if it had been attempted. It was not offered to be raised by the pleadings: Code 1886, sec. 2683. It follows, from what is said above, that any and all testi- mony tending to show legitimately that the mare was un- sound when traded, that Whitworth knew it, apd that he made any false representations in regard to it, or practiced any deceit or artifice to mislead Thomas, should have been received; and any legal testimony tending to disprove either of these propositions was also admissible. On the other hand, any proof of misrepresentation of the qualities of the mule, alleged to have been made by Thomas, was wholly immaterial. The value of the mule, and of his hire, was pertinent only as- tending to furnish a basis of recovery. Dec. 1887.] Whitworth v. Thomas. 727 All the testimony in regard to the working qualities of the roule, and in reference to Thomas's representations in relation thereto, was properly ruled out by the court; and we will not make further reference to rulings on that question. The circuit court erred in refusing to allow the defendant to ask the plaintiff, on cross-examination as a witness, to state what work the mare had done since he traded for her. An an- swer to this question would have tended to prove the mare's capacity for work, and would have shed some light on the question of her soundness. In rebuttal, plaintiff was asked by his counsel, " Did you treat the mare well or ill?" In form, the question was, per- haps, objectionable, but that furnishes no ground of reversal. In substance, the answer was but a short-hand rendering of the facts, subject to having the details called out on cross- examination, if requested. The court did not err in allowing this question to be answered. A witness for defendant was asked, "What character of work and service is the mare performing for plaintiff at this time?" This, on motion of plaintiff, was excluded. In this the circuit court erred, for reasons stated above. Lisle, a witness for plaintiff, was asked if he heard Mrs. Latham, one of the defendants, say anything about trading the mare. There was exception to the ruling of the court, permitting this question to be asked. The question was proper, but the answer was too remote to shed any proper light on the question at issue. Reversed and remanded. Rescission of Contracts Generally: See notes to John-ion v. Evans, 50 Am. Dec. G72-681; and Bnjant v. Ishurtjh, 74 Id. 657-CG2. Effect op Fraud or Concealment in Sale: See notes to Hughes -v. Bob- ertson, 15 Am. Dec. 106-108; and Barnard v. Duncan, 90 Id. 423^31. Set-off AND Counterclaim Generally: ^ee the notes to Grejgw. James, 12 Am. Dec. 152-157; aud Woodruffs. Garner, 89 Id. 842. Recriminatory Fraud. — The question of how far the fraud of the plain- tiff may be availed of as a recriminatory defense is one which has been the subject of much discussion in the several states. The class of cases iu which the question has been most frequently considered are those where deeds, con- veyances, sales, and other contracts relating to the transfer of real and per- Bonal estate, have been made and entered into for the purpose of defrauding creditors, and thereafter one of the parties has sought to rescind such fraud- ulent executed contracts, or to enforce them when executory. As preliuii- nary to the consideration of this question, it may be stated that although there are some exceptions, yet it is a conclusive rule of law, adjudicated by a great weight of authorities, that deeds, conveyances, contracts, aud transac- 728 Whitworth v. Thomas. [Alabama, tions entered into in fraud of creditors are valid between the parties: Jackson V. Cadwell, 1 Cow. 622; Ov>en v. Dixon, 17 Conn, 496; Kinnemon v. Milkr, 2 MJ. Ch. 407; Babcock v. Booth, 2 Hill, 181; 38 Am. Dec. 578; Sherk v. Endress, 3 Watts & S. 255; White v. Brocaw, 14 Ohio St. 339; Worth v. Northam, 4 Ired. 102; Jackson v. Marshall, 1 Id. 323; 3 Am. Dec. 695; Tre/nper V. Barton, IS Ohio, 418; Crockery. Crocker, 17 How. Pr. 504; Moon V. Livintjston, 14 Id. 1; Ilenriques v. Hone, 2 Edw. Ch. 119; Waterbury v. We-stervetl, 9 N. Y. 098; Trimble v. Z>o<^, 16 Ohio St. 118, 129; ^rown v. Webb, 23 Ohio, 389; Cushwa v. Cushwa's Lessee, 5 Md. 44; Atkinson v. Phillips, 1 Md. C'a. 507, 515; Dunnock v. Dunnock, 3 Id. 140; Doujlass's Lessee v. Dunlap, 10 Ohio, 1G2, 163; Lessee of Simon v. Gibson, 1 Yeates, 291; Walton v. Tusteii, 49 Miss. 569, 575; Snodgrass v. Andrews, 30 Id. 472, 488; 64 Am. Dec. 109; Skinner v. Oaies, 10 Mo. App. 45, 50; Jacobs v. (Smei/t, 89 Mo. 673; Sckenck v. Hart, 32 N. J. Eq. 774, 781; McMaster v. Campbell, 41 Mich. 513, 516; (7?/% V. Hull, 31 Miss. 20; Davlf v. Swanson, 54 Ala. 277; 25 Am. Rep. 078; Crawford v. L^fe, 30 Mo. App. 585; Holtv. Creamer, 34 N. J. Eq. 181, 182; Armstronfj\. Stovall, 26 Miss. 275, 277; Bush v. Bogan, 65 Ga. 320; 38 Am. Rep. 785; Geonje v. Williamson, 26 Mo. 190; 72 Am. Dec. 203; Frinkv. Roe, 70 Cd. 290, 308; Parkhurst v. McGraw, 24 Miss. 134; Gardner v. 6'Ao>-<, 19 N. J. Eq. 341; Lokerson v. Stillwell,.l3 Id. 357; Osborne v. Ifo-ss, 7 Johns. 161; 5 Am. Dec. 252, and note; Jackson v. Garnsey, 16 Johns. 189, 192; Thomas V. Soper, 5 Muaf. 28; Cutler v. T^w^fc, 19 N. J. Eq. 549, 562; Ogdenv. Pren- tice, 33 Barb. ICO; Finley v. McConnell, 60 111. 259; Iscuia v. Gearheart, 12 B. Mon 235; T^o^^m v. Helm, 4 J. J. Marsh. 288, 291; Gilpin v. Davis, 2 Bibb, 416, 418; 5 Am. Dec. 622; Lemay v. Bibeau, 2 Minn. 291; Jones v. Rahilly, 16 Id. 320; Edwards v. Haverstick, 63 Ind. 348; Chapin v. Pease, 10 Conn. 69; 25 Am. Dec. 56; Anderson v. Dunn, 19 Ark. 650, 659; Pzper v. Johnston, 12 Minn. 60, 06; Shealey v. Edwards, 75 Ala. 411; Coora v. Rigden, 4 Col. 275, 281; Rochelle v, Harrison, 8 Port. 351; Henry v. Stevens, 108 Ind. 280; A'eiVej/ V. Karsner, 72 Ala. 106; Anderson v. Brown, 72 Ga. 713, 722; Edwards v. Kilpatrirk, 70 Id. 328; PioirW v. Pipitm, 64 Ala. 520; .E?f7(^;«s v. Wilson, 1 Id. 237; Lessee of Hartley \. McAnulty, 4 Yeates, 95; 2 Am. Dec. 396; Lessee of Church V. Church, 4 Yeates, 280; Tiernay v. Cfoyfzn, 15 R. I, 220, 222; Pem- berton v. /S/ziii/i, 3 Head, 18; Battle v. /S<;-eeit, 85 Tenn. 282, 293; Murphy v. Hubert, 16 Pa. St. 50; Hoexer v. Kraeka, 29 Tex. 450, 453; A7«Z v. Mitchell, 1 Nottw & McC. 334; 9 Am. Dec. 702; Reichart v. Castator, 5 Binn. 109; 6 Am. Dec. 402, and note 406; note 14 Am. Dec. 703; Hubbs v. Brockwell, 3 Sneed, 574; Smith v. Grim, 28 Pa. St. 95; 65 Am. Dec. 400, and note 401; Abbey V. Commercial Bank of New Orleans, 34 Miss. 571; 69 Am. Dec. 401, and note 405; Williams v. Lowe, 4 Humph. 62; Jackson v. Marshall, 1 Murph. 323; 3 Am. Dec. 695; Worth v. Northam, 4 Ired. 102; Vick v. Flowers, 1 Murph. 32; Epperson v. Young, 8 Tex. 135; Stewart v. Tglehart, 7 Gill & J. 132; 28 Am. Dec. 202, and note 206; Sides v. McCullough, 7 Mart. (La.) 654; 12 Am. Dec. 519; Banks v. Thomas, Meigs, 28; Seligman v. Wilson, 1 Tex. App. 896; Eyrick v. Hetrick, 13 Pa. St. 488; Choteau v. Jones, 11 111. 300; 50 Am. Dec. 460, and note 469; Britt v. Aylett, 11 Ark. 475; 52 Am. Dec. 282, and note 285; Mason v. Baker, 1 A. K. Marsh. 208; 10 Am. Dec. 724; By7-d v. Curlin, 1 Humph. 466; Lynch v. Sanders, 9 Dana, 59; Dale V. Harrison, 1 Bibb, 65; Davy v. Kelley, 66 Wis. 452; notes 31 Am. Dec. 484; 42Id. 109; Butlerv. Moore, 73 Me. 151; 40 Am. Rep. 348; Ckmenav. Clemens, 28 Wis. 037; 9 Am. Rep. 520; Zuver v. Clark, 104 Pa. St. 222; Sillv. Swackhammer, 103 Id. 7; Jacobiv. Schloss,! Cold. 385; Snodgrass v. Andrews, 30 Miss. 472; 04 Am. Dec. 169, and note 175^ Telford v. Adams, 6 Watts, 429. Dec. 1887.] Whitworth v. Thomas. 729 So it is an undoubted doctrine of law and equity that such fraudulent deed vests the title absolutely in the grantee, and gives to him a legal and perfect estate, except as to those persons actually defrauded by the transac- tion, since such conveyance passes as valid a title as if it were bonajide and for a full and adequate consideration: Zuver v. Clark, 104 Pa. St. 222; Sill v. Swackkarnmer, 103 Id. 7; Lynch v. Sander/!, 9 Dana, 59; Chapin v. Pease, 10 Conn. C9; 25 Am. Dec. 56; Jackson v. Garnsey, IG Johns. 189, 192; Parkhursi V. McGraw, 24 Miss. 134; Skinner v. Oakes, 10 Mo. App. 45, 50; Jacobs v. Smith, 89 Mo. 673; McMaster v. Campbell, 41 Mich. 513, 516; Leniay v. Bibeau, 2 Minn. 291; Moore v. Livingston, 14 llow. Pr. 1; Waterhury v. Westei-velt, 9 N. Y. 598; Henriquesv. Hone, 2 Edw. Ch. 119; Crocker v. Crocker, 17 How. Pr. 504; and this rule is said to hold true although no consideration was paid or possession given: Hoeser v. Kraeka, 29 Tex. 450, 453; Chapin v. Pease, 10 Conn. 69; 25 Am. Dec. 56; in this last case the conveyance was volun- tary. But in Tierney v. Clajliii, 15 R. I. 220, the rule was qualified and there limited to innocent grantees, though the case was not argued so far as the limitation was concerned: See also Newell v. Newell, 34 Misa. 385; and it was said in Hess v. Final, 32 Mich. 516, that such a con- veyance may be good between the parties when based on a valid con- sideration. The court, however, although not directly making the dis- tinction there between those cases where a consideration exists and those •where the conveyance is voluntary, impliedly intimates that such a distinc- tion exists. So a similar distinction is made in Georgia between those cases where the conveyance is voluntary and where the whole consideration was paid: Bush v. Bojan, 65 Ga. 320; 38 Am. Pvcp. 785. The illustration of this in Goodwyn v. Goodwyn, 20 Ga. 600, being that if A sells property to B to de- feat a third party, and such property is paid for by B, this entitles B to sue for and recover it from A; not so, however, if B paid nothing as a considera- tion. If B obtained possession he can hold it as against A and those hold- ing as volunteers under him, although if he failed to get possession the court ■will refuse its aid to compel the execution of the covinous contract. Heirs, Privies, Assigns, etc., how Far Bound. — Such fraudulent deed is equally binding upon the grantor, hia heirs, privies, assigns, and those claim- ing under him: Reichart v. Castator, 5 Binn. 109; 6 Am. Dec. 402, and note 406; Masonv. Baker, 1 A. K. Marsh. 65; 10 Am. Dec. 724; Skinnerv. Oakes, 10 Mo. App. 45, 50; Jacobs v. Smith, 89 Mo. 673; Dale v. Harrison, 4 Bibb, 65; Craw- ford V. Lyle, 3 Mo. App. 585; Finley v. McConnell, 60 111. 259; Horner v. Zim- merman, 45 Id. 14; Lyons v. Bobbins, 46 Id. 276; Fitzgerald v. Forristd, 48 Id. 228; Bushv. Rorjan, 65 Ga. 320; 38 Am. Rep. 785; Anderson v. Broicn, 72 Ga. 713, 722; Edward v. Kilpatrick, 70 Id. 328; Battle v. Street, 85 Tenn. 282, 293; Murphy v. Hubert, 16 Pa. St. 50; note 14 Am. Dec. lO.i; Kid v, M.tchell, 1 Nott & McC. 334; 9 Am. Dec. 702; Smith v. Grim, 28 Pa. St. 95; 67 Am. Dec. 400; Tremper v. Barton, 18 Ohio, 418; TerreVs Heirs v. Cropper, 9 Mart. (La.) 350; 13 Am. Dec. 309; Ciishwav. Cushwas Lessee, 5 Md. 44. Exj;cuted and Executory Contracts. — Although the courts with few exceptions have decided that conveyances and contracts made and entered into in fraud of creditors are valid and binding between the parties, yet an examination of the cases discovers that the application of this principle has been the real source of controversy, especially in regard to executory con- tracts. As elucidating this point, and arriving at a determination of the governing rule, it will be eminently proper to consider some of the several cases wherein the question has been discussed. The case of Clemens v. Clemens, 28 Wis. 637, 9 Am. Rep. 520. is a leadmg case in Wisconsin. 730 Whitworth v. Thomas. [Alabama, There the plaintiff and the defendant entered into an arrangement whereby tho former, for the purpose of defrauding his creditors, was to convey to the tion, without presenting any demand to the represen- tatives for allowance, as is required in ordinary cases by the Nevada Com- April, 18S5.] Thompson v. Reno Savings Bank. 809 piled Laws: Tlimnpwnv. Reno Savings Banh, lONev. 242;pr).s<, p. 883; comparo Davidson v. Ranldn, 34 Cal. 503, in which the liability of a stockholder for the debts of the corporation arose under a statute. This doctrine seems to be a distinctively American one, and serves to explain some of the differences between the English and American cases. It was first announced by Mr. Justice Story, in 1824, in Wood v. Dummer, 3 Mason, 308, 311, who, in speaking of the capital stock of banking corporations, said: "The capital stock of banks is to be deemed a pledge or trust fund for the payment of the debts contracted by the bank. The public, as well as the legislature, have always supposed this to be a fund appropriated for such purpose. The individual stockholders are not liable for the debts of the bank in their private capacities. The charter relieves them from personal responsibility, and sub- stitutes the capital stock in its stead. Credit is universally given to this fund by the public as the only means of repayment. During the existence of the corporation, it is the sole property of the corporation, and can be applied only according to its charter, that is, as a fund for payment of its debts, upon the security of which it may discount and circulate notes. Why, otherwise, is any capital stock required by our charters ? If the stock may, the next day after it is paid in, be withdrawn by the stockholders without payment of the debts of the corporation, why is its amount so stuiliously provided for, and its payment by the stockholders so diligently required ? To me, this point appears so plain, upon principles of law, as well as common sense, that I can- not be brought into any doubt that the charters of our banks make the capi- tal stock a trust fund for the payment of all the debts of the corporation. The bill-holders and other crecKtors have the first claims upon it, and the stockholders have no rights until all the other creditors are satisfied." Again, in Sanger v. Upton, 91 U. S. 56, 60, Swayne, J., says: "The capital stock of an incorporated company is a fund set apart for the payment of its debts. It is a substitute for the personal liability which subsists in private copartnerships. When debts are incurred, a contract arises with the credi- tors that it shall not be withdrawn or applied, otherwise than upon their de- mands, until such demands are satisfied. The creditors have a lie:i upon it in equity. If diverted, they may follow it as far as it can be traced, and sub- ject it to the payment of their claims, except as against holders who have taken it honajlde for a valuable consideration and without notice. It is pub- licly pledged to those who deal with the corporation, for their security. Un- paid stock is as much a part of this pledge, and as much a part of the assets of the company, as the cash whicli has been paid in upon it. Creditors have the same right to look to it as to anything else, and the same right to insist upon its payment as upon the payment of any other debt due to the company. As regards creditors, there is no distinction between such a demand and any other asset which may form a part of the property and efTects of the corpo- ration." And in the oft cited and quoted case of .idler v. Milwauhee Patent Brick Mfj. Co., 13 Wis. 57, 60, Chief Justice Dixon remarks: "The stockholders being in general free from personal responsibility, the capital stock consti- tutes the sole fund to which creditors look for the liquidation of their de- mands. It is the basis of the credit which is extended to the corporation by the public, and a substitute for the individual liability which exists in other cases. So far as creditors are concerned, it is regarded in the law as a trust fund pledged for the payment of the debts of the corporation. Until they are paid, the stockholders are postponed; they are only entitled to that which remains after the claims of the creditors are extinguished. This is as true 810 Thompson v. Reno Savings Bank. [Nevada. of the unpaid shares subscribed, or balances due thereon, as of the amount ■wliich has actually been paid in. Such unpaid shares or balances arc ai much a part of the capital stocfc as the sums which have already been realized thereon. Aside from the funds on hand, they often constitute the only re- source of the company. Tliey are debts due to it, the payment of which can be enforced by its officers. The delinquent subscribers are its debtors, and the directors are clothed with authority to compel them to pay. When the company is indebted, and other means of meeting its liabilities are exhausted, the exercise of this authority becomes a duty, which they are under the highest rnoral obligation to perform. Creditors are supposed to have trusted as well to such unpaid subscriptions, and to the fair and faithful exercise of such compulsory power for their payment, as to the sums actually paid in; and when it becomes necessary to their security or satisfaction, they have a legal right, either by the voluntary action of the proper officers, or through the aid of the courts of the country, to such exercise of it. If, therefore, by the willful or stubborn inaction of the directors or stockholders, the company fails to meet its obligations and perform its duties, a court of equity will, on a proper application, afford the requisite relief." But, "in speaking of the assets of an insolvent corporation as constituting a trust fund for the pay- ment of creditors," says Robinson, J., in Brant v. Ehlen, 59 Md. 124, " it is necessary to understand precisely what is meant by the courts. No one will pretend for a moment that in subscribing to the stock of a company, the pur- pose is to create a trust fund for creditors. On the contrary, the object, primarily, is to furnish means to carry on its business, and to share the profits earned by the corporation; and so long as it is a going concern, it has the right, and indeed it is its duty, to manage and dispose of its assets, includ- ing stock subscription?, for the promotion of its own interest. If it ceases to do business, or if it becomes insolvent, then all assets which it then has or owns, including paid and unpaid subscriptions, either in the hands of the original subscriber or in the hands of his assignee with notice, become a trust fund for the payment of creditors, and they have the right to follow the property constituting this fund and subject it to the payment of their debts, unless it has passed into the hands of a bona fide, purchaser without notice. " Equitable Jurisdiction to Compel Payment of Unpaid Subscriptions, OR to Make Calls. — Since unpaid subscriptions to the capital stock are regarded in equity as a trust fund for the benefit of the creditors of a corpo- ration, it results that courts of equity have jurisdiction and will compel the payment of the subscriptions by stockholders, as equitable assets, at the suit of creditors of the corporation, if the legal assets which can be reached by execution prove insufficient: Note to Freeland v. McCullough, 43 Am. Dec. 695; note to Germantown Passenger Ry v. Filler, 100 Id. 553; Cook on Stock and Stockholders, sec. 204; Thompson's Liability of Stockholders, sees. 9 et seq. ; 2 Morawetz on Corporations, sec. 820; Taylor on Corporations, sec. 703; Ogilvie v. Knox Ins. Co., 22 How. 380; Hohnes v. Sherwood, 3 McCrary, 405, 408; 16 Fed. Rep. 725, 727; Bissit v. Kentucky River Nav. Co., 15 Fed. Rep. 353; Wilbur v. Stock/iolders of Glen Iron Works, 18 Nat. Bank. Reg. 178; 13 Phila. 479 (U. S. D. C, E. D. of Pa.); Allen v. Montgomery R. R., 11 Ala. 437; Glenn v. Semple, 80 Id. 159; 60 Am. Rep. 92-94; Jones v. Jarman, 34 Ark. 323, 328; Harmon v. Page, 62 Cal. 448; Higldower v. Thornton, 8 Ga. 486; 52 Am. Dec. 412; Stinson v. Williams, 35 Ga. 170; Mann v. Pentz, 3 N. Y. 415; Gilkt r. Moody, 5 Barb. 179; 3 N. Y. 479; Gilmore's Exra v. Bank of Cincinnati, 8 Ohio, 62, 71; Henry v. Vermillion etc. R. R., 17 Id. April, 1885.] Thompson v. Reno Savings Bank. 811 187; Bank of Virginia v. Adams, 1 Pars. Sel. Cas. 534; Lane's Appeal, 105 Pa. St. 49; 51 Am. Rep. IGG; Bat^sett v. St. Alham Hotel Co., 47 Vt. 313. And as shown above, even if creditors of the corporation can compel its offi- cers by mandamus to make calls to meet the company's liabilities, they are not obliged to do so, but may resort to equity: Ward v. Griswoldville Mfg. Co., IG Conn. 593, 601; Dalton etc. R. R. Co. v. McDanicl, 53 Ga. 191; and as further shown, no action at law, independent of statute, can be maintained by creditors against stockholders, but proceedings must be had in equity: Cocyper v. Frederick, 9 Ala, 739. 742; Jones v. Jarman, 34 Ark. 323, 328; Spear v. Grarit, 16 Mass. 9, 15; Brown v. Fisk, 23 Fed. Rep. 228. This equitable suit, furthermore, is not aflFected by any remedy which may be given creditors against stockholders by constitutions, charters, general acts of incorporation, or other statutes, unless of course the equitable remedy be taken away expressly or by necessiry implication: See Harmon v. Page, 62 Cal. 448; Holmes v. Shenoood, 3 McCrary, 495; 16 Fed. Rep. 725; and it is held that although installments of the subscription are due, and may be reached by process of garnishment, the equitable jurisdiction nevertheless exists: Payne v. Bidlard, 23 Miss. 88; 55 Am. Dec. 74; contra: Allen v. Montgomery R. R., 11 Ala. 437. So where a state constitution provides that the stockholders of corporations "shall be liable for the indebtedness of said corporation to the amount of their stock subscribed and unpaid, and no more," no new right is created, and the remedy of a creditor ; gainst a stock- holder for unpaid subscriptions is still in equity: Patterson v. Lynde, 106 U. S. 519; 112 111. 196, 204, 207; Bush v. Cartioright, 7 Or. 329; Brnndage v. Monumental O. <& S. 3Iin. Co., 12 Id. 322; compare Hodges v. Silver Hill Min. Co., 9 Id. 200, 204; Mills v. Stewart, 41 N. Y. 384, 389; Stephens v. Fox, 83 Id. 313. While it is essential to the recovery by the corporation itself against the stockholders upon their contracts of subscription that the money should be due and payable, either because the contracts themselves have definitely fixed the times of payment, or because calls have been made by the govern- ing body of the corporation, no such condition is imposed upon the creditors with regard to their right to proceed in equity against the stockholders. No previous call need be shown by the creditors, nor need they show that they have endeavored to induce the corporation to make a call as a prerequisite to a suit in equity to compel stockholders to pay their unpaid subscriptions: 2 Morawetz on Corporations, sec. 821 ; note to Gei-mantoion Passenger R'y v. Filler, 100 Am. Dec. 554; Marsh v. Burroughs, 1 Woods, 4G3, 468; Holmes v. Sherwood, 3 McCrary, 405; 16 Fed. Rep. 725; Tliompson v. Reno Sav. Bank, 19 Nev. 171 ; post, p. 881 ; Thompson v. Reno Sav. Bank, 19 Nev. 242; post, p. 883; although the subscriptions are payable "as called for by the company": Match V. Dana, 101 U. S. 205; see aUo Upton v. Hanshrough, 3 Biss. 417. Besides the usual proceeding in equity above described, in the nature of a creditor's bill, to compel the payment of unpaid subscriptions by stock- holders, it is also settled that when stock is payable upon call, and the cor- poration refuses or neglects to make a call, a court of equity may itself make it, if the interests of the creditors require it: Cook on Stock and Stock- holders, sec. 207; Thompson's Liability of Stockholders, sec. 16; note to Oermantoum Pa.isenger R'y v. Filler, 100 Am. Dec. 653; Dr. Salmon v. The Uamhorough Co., 1 Cas. Ch. 204; Srovillv. Thayer, 105 U. S. 143, 155; Glenn V. William.s, 60 Md. 93; Briggs v. Penniman, 8 Cow. 387, 395; 18 Am. Dec. 454, 4G0; and the decree determining aud making such an assessment is bind- ing and effective upon the stockholders who were not, in their individual 812 Thompson v. Reno Savings Bank. [Nevada, capacities, parties to the suit, they being represented by the corporation: Glenn v. Williams, supra. lb is obviously necessary, however, for such a pur- pose, that a sufficient corporate oi-ganization should continue to exist: Wil- bur V. Stockliolders of Glen Iron Works, 18 Nat. Bank. Reg. 178; 13 Phila. 479 (U. S. D. C, E. D. of Pa.). The "assessment," or "call," so named, is also different in its nature from the assessment or call made by a solvent corporation. The proceeding is simply in aid of the judicial recourse of the creditors. "It may jjromote the enforcement, but is not essential to the existence of the obligation of the stockholders ": Wilbur v. Stockholders of Glen Iron Works, supra. In the suit first above noted, to compel the payment of unpaid subscrip- tions, the right of creditors is as clear and strong after as before the disso- lution of the corporation: Ilirjhtower v. Thornton, 8 Ga. 486; 52 Am. Dec. 412; Tarbell v. Page, 24 111. 46; although at common law, at least under the old theory, the debts due to and from the corporation are extinguished upon its dissolution: See Hhjiitower v. Thornton, supra; Thornton v. Lane, 11 Ga. 459; compare Thompson's Liability of Stockholders, sec. 3. Herein this case dif- fers from that above mentioned, where it is sought to have a call made by a court of equity, in which, it seems, the corporation must be in existence: See Wilbur v. Stockholders of Glen Iron Works, supra. And notwithstanding the common-law rule as to the extinguishment of debts upon the dissolution of a corporation , it is competent, it may be here observed, for the legislature to interpose and prevent such a result: Robinson v. Lane, 19 Ga. 337; and see Lane v. Moiris, 8 Id. 468, 476; Thornton v. Lane, 11 Id. 459; Thompson's Liability of Stockholders, sec. 3. Of course the insolvency of a corporation is no ground for restraining the collection of subscriptions by itself to its stock: Note to Germantown Passenger R'y v. Filler, 100 Am. Dec. 552; Dill v. Wa- hash Valley R. R., 21 111. 91; Protection Ins. Co. v. Ward, 28 Conn. 409. "Indeed, it shows the more urgent reason why they should be collected ": Dill V. Wabash Valley R. R., 21 HI. 91. If it be necessary, creditors may compel discovery of the names of stock- holders and the amounts unpaid on their subscriptions: Morgan v. New York etc. R. R., 10 Paige, 290; 40 Am. Dec. 244; Miers v. Zanesville etc. Turnpike Co., 11 Ohio, 273; and see President etc. of Middletown Bank v. Russ, 3 Conn. 135; Bogardus v. Rosendale Mfg. Co., 7 N. Y. 147. A creditor can compel payment of the entire stock, if required to satisfy his demands: Halderman V. Ainslee, 82 Ky. 395. So, to the extent of their own unpaid subscriptions, stockholders may be liable to make good the deficiency of assets of the cor- poration arising from the insolvency of other stockholders: Haslett^s Ex^rs V. Wotherspoon, 1 Strob. Eq. 209. And the fact that holders of unpaid stock of a banking corporation have severally redeemed their shares of bank bills, under the charter which provided that the persons and property of the stock- holders should be liable for the redemption of the bills and notes of the bank, in proportion to the number of shares of stock wliich they held, will not re- lease them from liability for the amounts due on their stock subscriptions: Marsh V, Burrouglis, 1 Woods, 403; and it may here be further observed that generally where statutes impose an individual liability upon stockholders for the debts of a corporation, that such liability is over and above the liability for unpaid subscription: See Patterson v. Wyornissing Mfg. Co., 40 Pa. St. 117. If the complainant is also a stockholder, he must contribute pari passu with the defendant stockholders towards the liquidation of his demand against the corporation: Bissetv. Kentucky River Nav. Co., 15 Fed. Rep. 353. It is possible that share-holders may be liable to creditors of a corporation April, 1885.] Thompson v. Reno Sav'ings Bank. 813 for unpaid subscriptions, notwithstanding a violation of the charter with re- spect to the subscrijJtious, as the following cases will illustrate. There is no liability on subscriptions to the capital stock of a corporation until the whole of the capital, as prescribed by the charter, has been subscribed; and there- fore a creditor's bill will not lie to enforce payment of such subscriptions, un- less for some cause the subscribers have estopped themsel\re3 from alleging that the entire capital was not subscribed: 2 Morawetz on Corporations, sec. 823; Temple v. Lemon, 112 111. 51; but if a corporation should, in violation of its charter, begin to carry on business, and incur debts before its entire capi- tal stock had been subscribed, undoubtedly the share-sholders would be liable to the extent of their subscriptions, if necessary to pay creditors: 2 Morawetz on Corporations, sec. 823; Morrison v. Dorsey, 43 Md. 468; Mits- gravev. Mori-ison, 54 Id. IGl; Hagerv. Cleveland, 36 Id. 476; compare Bos- ton etc. R. R. Co. V. Pearson, 128 Mass. 445. So a creditor's bill will lie against stockholders to compel the payment of unpaid subscriptions, although they failed to pay at the time of their subscriptions the per cent required by the chartert Henry v. Vermillion etc. R. R. Co., 17 Ohio, 187. And ' ' if the charter of a bank require a certain portion of the capital stock in specie to be paid in before the directors are permitted to issue bank notes, and the stock is subscribed, but the specie is not paid, and the directors nevertheless proceed to issue and put in circulation the bank notes, if the bank fail or become insolvent, the bill-holders and creditors may proceed at once against the stockholders for the subscribed stock not paid in, and against the directors for a breach of trust for issuing and putting in circula- tion notes on unpaid subscribed stock, contrary to their duty under the charter ": Schley v. Dixon, 24 Ga. 273, 277. If a state has become a stockholder in a corporation, a creditor's right to compel it to pay its unpaid subscription will depend upon the question whether or not suit can be maintained against it under its constitution and statutes; for a sovereign state cannot be sued without its consent, and then only in the particular mode and forum nominated by itself: Thompson's Lia- bility of Stockholders, sec. 20. If, therefore, a state has subscribed to the stock of a corporation, and has not made payment, an action to compel pay- ment will not lie against it without its consent: Miers v. Zanesville etc. Turn- pike Co., 11 Ohio, 273; but if a state has rendered itself liable to a private action, and has become a stockholder in a corporation, it subjects itself to the same liabilities which attach to any private stockholders: Curran v. State of Arkansas, 15 How. 304; compare Rohimon v. Bank of Darien, 18 Ga. 65, 109; Dabney v. Bank of South Carolina, 3 S. C. 124; and a city having subscribed to the stock of a railroad company, under an act authorizing cities to aid in the construction of railroads, is bound by the same statutory liability which attaches to an ordinary stockholder for labor done in the construction of the road: Shipley v. City of Terre Haute, 74 lud. 297. It has been held that a court of equity had no jurisdiction to compel resi- dent stockholders to pay their unpaid subscriptions on the application of creditors of a foreign corporation: Bank of Virginia v. Adams, 1 Pars. Sel. Cas. 534, — a technical decision; and it is otherwise held that the judgment ■which it is necessary for the creditor to first obtain against the corporatioa must l)e a judgment of the courts of the state where the liability is sought to be enforced: Patterson v. Lynde, 112 111. 196, 204. In Warner v. Callemler, 20 Ohio St. 190, it was held that a judgment cred- itor could unite, in the same action, a claim to compel payment of unpaid 814 Thompson v. Reno Savings Bank. [Nevada, subscriptions for stock aad a claim to enforce the statutory liability of the fitockholders for the debts of the corporation. Creditor must Exhaust Legal Remedies against Corporation be- fore Proceeding in Equity against Stockholders for Unpaid Sub- scriptions. As has already been intimated, before a creditor can resort to equity to compel the payment of unpaid subscriptions, it is necessary, under ordinary circumstances, that he should have exhausted his legal remedies against the corporation by judgment and execution thereon returned unsatis- fied: Note to Germantown Pasnenjer R'y Co. v. Filler, 100 Am. Dec. 554; Cook on Stock and Stockholders, sec. 200; 2 Morawetz on Corporations, sec. 820; Taylor on Corporations, sec. 703; Teri-yv. Anderson, 95 U. S. 628, G3G; Pat- tersons. Lynde, 112 111. 196, 204; Wet/ierbee v. Baker, 35 N. J. Eq. 501, 506; Blake v. Hinkle, 10 Yerg. 218; Adler v. Milwaukee Patent Brick M/j. Co., 13 Wis. 57, 62; see also Ogilvie v. Knox Ins. Co., 22 How. 380; Holmes v. Sher- wood, 3 McCrary, 405, 408; 16 Fed. Rep. 725, 727; Aliens. Mcntjomery R. R. Co., 11 Ala. 437; Harmon v. Pa(je, 62 Cal. 448; SVui>. I Equitable Mortgage. Feb. 1887.] Hutzler Brothers v. Phillips. 687 We take occasion, however, to add, with a view to avoid prejudice, that our decision is based upon the case as now pre- Bented, and upon the assumption (in the absence of any alle- gation to the contrary) that the conveyance to Harriet M. Ketchin is a valid conveyance. Should that conveyance be impeached for fraud or other good ground, a different ques- tion, as to the right of appellant to the homestead, would arise, as to which we do not now propose to indicate any opinion. The judgment of this court is, that the judgment of the cir- cuit court in the case first above mentioned be reversed, and that the case be remanded to that court for such further pro- ceedings as may be necessary to carry out the views herein announced. And the judgment of this court is, that the judgment of the circuit court in the second case above stated be affirmed. Judgment Lien does not Attach to Homestead while it is held and occupied as such: Bliss v. Clark, 89 Am. Dec. 330; McDonald v. Badtjer, 83 Id. 123, note 129; Cummings v. Lomj, 85 Id. 502, and note 504; note to Blue V. Blue, 87 Id. 278. Homestead Right is not Subject to Judgment Liens, and it may bo transferred in fee, free from any encumbrance existing at the date of convey- ance: McDonald v. Crandall, 92 Am. Dec. 112, note UG, 117; Cummlmjs v. Lomj, 85 Id. 502; Blm v. Clark, 89 Id. 330, and note 335; Freeman on Exe- cutions, sec. 239. Homestead is not Generally Subject to Sale under Execution: See note to Blue v. Blue, 87 Am. Dec. 273, collecting numerous cases; Uigga V. Sterling, 1 Am. St. Rep. 554; McCracken v. Adler, 2 Id. 340, note 342. Injunction will Issue to Prevent Cloud on Title at execution sale: Note to Carlin v. Hudson, 62 Am. Dec. 523 et seq. ; Freeman on Executions, Bees. 438, 439; or equity will remove a cloud so created on a homestead: Note to Blue v. Blue, 87 Am. Dec. 273; but in Kentucky the granting of such an injunction is confined by statute to the court which rendered the judgment on which the execution issued: C. 0. d; S. B, R. Co. v. Reasor, 84 Ky. 369. Hutzler Brothers v. Phillips. \:J& South Carolina, 136.] Eyibence not Objectionable on Ground of Interest. — Conversations of a creditor with a debtor since deceased are admissible in an action by creditors against the heirs of deceased, the witness, and other creditors. KviDKNCB of Statements Made by Partners, that certain real estate standing in the name of their copartner was partnership property, is inad- missible as against au individual mortgage creditor of such copartner, when such statements were not brought home to the mortgagee at the time of the execution of the mortgage. 688 HuTZLER Brothers v. Phillips. [S. Carolina, EQurrABLB Mortgage. — Wheke Title Deeds abb Deposited as Present fSECURiTY, and with intent thereby to create a lien upon the land therein conveyed, an equitable mortgage is created notwithstanding the statute of frauds. Equitable Mortgage is not Created by the deposit of title deeds in pursuance of a parol agreement to make a mortgage. Equitable Mortgage, What does not Create. — Where title deeds are deposited with an attorney to have an actual mortgage prepared for execution to accomplish a loan in accordance with an oral agreement to that effect, and after preparation the mortgage is not executed nor deliv- ered on account of the death of the debtor, an equitable mortgage is not created, though the debtor has received the money. Partnership Creditors, in Absence of Lien in Favor of Individual Creditors, may share pro rata in the individual property of the part- ners after exhausting the partnership assets. C. S. Nettles and R. W. Boyd, for the plaintiffs. /. N. Nathans, for Louis Cohen & Co. Simpson, C. J. C. Phillips, Leonard Phillips, and Leopold Phillips, father and sons, were copartners, doing business as merchants in the town of Florence, in this state, under the name of C. Phillips and Sons. During the existence of this partnership, C. Phillips, the father, negotiated a loan of five thousand dollars from the defendants, Louis Cohen & Co., of Charleston, with the understanding and agreement that said loan was to be secured by a mortgage of certain real estate situated in Florence, the titles to which were in the name of the said C. Phillips, except one portion, to which he had a bond for titles from one McRary, under a contract to purchase, upon which a part of the purchase-money had been paid. In pursuance of this agreement the title deeds, having been placed in the hands of the said Louis Cohen for examination, were turned over to their attorney, J. N. Nathans, Esq., who drew a bond and mortgage as agreed upon. These papers were at once forwarded to C. Phillips at Florence by express, but for some reason the package remained in the office for Forae days uncalled for. In the mean time, however, the five thousand dollars had been advanced by Cohen & Co. on drafts of C. Phillips and Sons, drawn (as stated) at the request of the said C. Phillips. When the package containing the bond and mortgage aforesaid was at length received, C. Phillips was quite ill, and he died within a few days, leaving the bond and mortgage unexecuted. Leonard Phillips also died within two or three months after the death of his father, leaving the de- fendant Leopold sole survivor of the firm. Shortly after the Feb. 1887.] HuTZLER Brothees v. Phillips. 689 death of the said C. Phillips and Leonard Phillips, to wit, on the 6th of March, 1884 (the said C. Phillips having died in October previous, and Leonard Phillips in January, 1884), their heirs and distributees, in order to secure the payment of the said five thousand dollars to Cohen & Co., united in a mortgage of the real estate herein mentioned to the said Cohen & Co., which, on the 8th of March, was placed on record in the clerk's office for Darlington County. After the death of his copartners, Leopold was left in charge as survivor, and the plaintiffs, not being satisfied with his management, instituted the action below, in which they prayed, in their own behalf and in behalf of the other creditors of C. Phillips and Sons, an injunction, the appointment of a re- ceiver, an accounting from Leopold, and especially that the real estate described in the complaint (to wit, the real estate embraced in the mortgage hereinabove mentioned) be ad- judged to belong to the firm of C. Phillips and Sons, and there- fore assets for the payment of their debts, and that the same be sold to that end; and also that McRary be required, upon payment made to him of the balance of the purchase-money of the land under contract of sale to C. Phillips, to convey the same to the receiver as assets also of the said firm. The de- fendants denied that the real estate mentioned was the prop- erty of the firm, and claimed that it belonged entirely to C. Phillips, their father. They denied, also, the allegation of fraud in connection with the loan of five thousand dollars by Cohen & Co., and the execution of the papers intended to secure the same; and Cohen & Co. claimed the benefit of an equitable mortgage growing out of the deposit of titles, under the facts as stated above. The circuit judge, his honor T. B. Fraser, found as matters of fact, that the real estate mentioned belonged to C. Phillips individually, and was not partnership property, and that there was no fraud in the transaction with Colien & Co. He also adjudged, as matter of law, that an equitable mortgage had arisen in favor of Cohen & Co., to the benefit of which they were entitled, in preference to plaintiffs and other cred- itors. He further adjudged, that if there had been no trans- action between C. Phillips and Cohen & Co., creating a lien on the real estate, then Cohen & Co. would stand as an indi- vidual creditor of C. Phillips, and in that event he would hold that while the creditors of the firm were bound to exhaust the partnership assets, they would then have the right to share Am. St. Rep.. Vol. IV.— 44 690 HuTZLER Brothers v. Phillips. [S. Carolina, pro rata with the individual creditors the individual estate of the deceased partners. The plaintiffs' appeal questions the rulings of his honor as to the competency of certain testimony, which will be noticed below. Also the findings of fact of his honor as to the alleged fraud, as to the real estate not being partnership property, and as to the knowledge of Cohen & Co. that said real estate had been represented to the plaintiffs as partnership property, and also his holding in reference to the equitable mortgage by the deposit of the title deeds and its application to this case. The defendants Cohen & Co. excepted, on the ground that his honor " seemed to hold that the real estate of C. Phillips, though individual property, is not first applicable to the pay- ment of the said Cohen & Co., as individual creditor, in priority to partnership creditors of C. Phillips and Sons." We do not feel authorized to disturb the findings of fact by his honor. There is no patent error in these findings, nor is the weight of the testimony against them. As to the real es- tate being partnership property, the evidence is, that the titles were certainly in C. Phillips when the copartnership was formed, and there was no express change subsequent thereto. No do we find any testimony that it was the intention of the parties to embrace the real estate as a portion of the partner- ship property. The firm seems to have been an ordinary mer- cantile firm, having no connection with the purchase and sale of real estate. As to the alleged conspiracy and fraud between Cohen & Co. and C. Phillips and Sons, seeking to put the said real estate beyond the reach of the creditors of the firm, we see nothing to overthrow the findings of his honor thereon. Nor does it appear that Cohen & Co. had any information that the plaintififs had been inforined that said real estate belonged to the firm. Nor was there error in the rulings of his honor upon the competency of certain testimony offered. The testimony of Louis Cohen relating to conversations and transactions be- tween himself and C. Phillips was objected to as obnoxious to section 400 of the code. This testimony not being against any one belonging to the classes mentioned by this section, there was no error in admitting it: Cantey v. Whitaker, 17 S. C. 530. Certain testimony as to statements made by the sons, copart- ners, that the real estate in question was partnership property, was excluded as to Cohen & Co., on the ground that said state- ments had not been brought home to them before their claim Feb. 1887.] Hdtzler Brothers v. Phillips 691 originated, the court holding that they, Cohen & Co., had the right to deal with C. Phillips in reference to property standing in his name as his own, the record showing that this real estate belonged to C. Phillips, and there being no record of a transfer to the copartnership. The reasons given by his honor seem to be suflQcicnt. The main question in the case is the one in reference to the equitable mortgage. And this involves the consideration of the three following points: 1. What is this doctrine of equi- table mortgages, created by the deposit of title deeds? 2. Does it exist in this state? and 3. If so, do the facts of this case entitle Cohen & Co. to its benefit? The leading case upon this doctrine in England is the case of Russel V. Eussel, 1 Bro. C. C. 229. In fact, it is from this case we first hear of it. It was followed by Birch v. Ellames, 2 Anstr. 429, and although it has been violently attacked and denounced as pernicious by eminent English judges, and espe- cially by Lord Eldon and Sir William Grant, yet it now seems to be well settled and firmly established in the English law, and in many of the American states, to a certain extent, to wit, where the title deeds are deposited as a present security, and with the intent thereby to give a lien upon the land, such deposit shall operate as an equitable mortgage, notwithstand- ing the statute of frauds. The English courts, however, have manifested a determined disposition to keep within the letter of the precedents, and not to give the doctrine further extension. And accordingly they have held that a mere parol agreement to make a mortgage, or to deposit a deed for that purpose, will not give any title in equity. There must be an actual and bona fide deposit of the title deeds with the mortgagee himself in order to create the lien. These positions will be found sus- tained, we think, in the following English cases: Ex parte Whithread, 19 Ves. 209; Ex parte Langston, 17 Id. 230; Lord Ellenborough in Doe v. HanJce, 2 East, 481; Ex parte Kensing- ton, 2 Ves. & B. 79; Ex parte Coomhe, 4 Madd. 249; Lucas v. Dorrien, 7 Taunt. 279; Ex parte Cor.iing, 9 Ves. 117. Also in 4 Kent's Com. 151, and Washburn on Real Propert}'. It appears from these authorities that in England, and also in several of the states, that where the title deeds are actually deposited by the debtor with his creditor upon an advance of money, and perhaps even for an antecedent debt, as a security, that the equitable mortgage will arise without more; the de- posit standing in the place of an actual mortgage, and dis- 692 HuTZLEu Brothers v. Phillips. [S. Carolina, pen sing with the necessity of the execution of such mortgage. But will the deposit of title deeds for the purpose of having an actual mortgage prepared for execution in accordance with an agreement to that effect raise the equitable mortgage? In other words, where money is proposed to be lent upon the security of a mortgage to be actually executed and delivered, and the titles are placed in the hands of an attorney to pre- pare the mortgage so as to accomplish the loan, which, al- though prepared, yet the debtor, from accident or some other cause, fails to execute and deliver, although he has received the money, — will these facts create the mortgage? Mr. Washburn says: " To give the effect of a lien to the pos- session of title deeds, it must be shown affirmatively that they were deposited as a bona fide, present, immediate security. If left, for instance, with the attorney for the purpose of his draw- ing a mortgage which had been agreed upon by the parties, it will not be sufficient. Mere possession, even by a creditor, is not enough": 2 Washburn on Real Property, 89. See cases referred to in note by Mr. Washburn. And in Ex parte Bol- ton, 2 Cox, 243, it was held " that the delivery of title deeds to an attorney to prepare a mortgage deed does not amount to an equitable mortgage; otherwise, if deposited expressly as a security for a debt." We think the weight of authority is against this doctrine being applied to cases with facts like those suggested, and that an equitable mortgage resulting from a deposit of title deeds can exist only where such deposit is the matter relied upon without anything further being done. Does this doctrine exist in South Carolina? We have been referred to no case where the question has been squarely made, but it seems that the possibility of such mortgages has been recognized in three of our cases, to wit: Welsh v. Usher, 2 Hill Ch. 170; Harper v. Barsh, 10 Rich. Eq. 154; Boyce v. Shiver, 8 S. C. 528. And although, perhaps, the question was not absolutely necessary to the decision of the points actually in- volved in these cases, yet we are disposed to regard the recog- nition made as sufficient to the extent as above. Do the facts of the case bring it under the doctrine as above? Clearly not. The title deeds were not deposited as an imme- diate security, nor did Cohen & Co. rely upon them in the least as giving in themselves the lien which he wanted, and for which he contracted. They were placed in his hands as affording the information upon which a bond and mortgage were to be drawn. These papers were actually drawn and Feb. 1887.] Hutzler Brothers v. Phillips. 693 sent, doubtless with the titles, to C. Phillips for formal execu- tion, but which his sickness and death prevented. With these facts, we do not see how it can be said that the title deeds had been deposited in order to raise by the deposit an equitable mortgage. We concur with the circuit judge, that in the absence of a lien in favor of an individual creditor, partnership creditors, after exhausting partnership assets, may share pro rata in the Individual property of the partners. The English rule upon this subject is to apply the joint estate to the joint debts, and the separate estate to the separate debts, though this rule has not met the uniform approval of all the English judges. Lord Thurlow disregarded it in the case of Ex parte Hodgson, 2 Bro. C. C. 5, and Lord Eldon failed to give it his cordial approval. It may, however, be regarded as the established rule in the English law. In this state, from 1804 to 1827, the English rule as above seems to have been followed. During this period there are three cases sustaining this view: Tunno v. Trezevant, 2 Desaus. Eq. 264, decided in 1808; Woddrop v. Price, 3 Id. 207, decided in 1811, and the case of Sniffer and Paxton v. Sass, decided in 1827, found in a note to Kuhne v. Law, 14 Rich. 20. But afterwards, from 1827 to 1866, our courts held, in sub- stance, that while private creditors had the right generally to throw the copartnership creditors upon copartnership assets in the first instance on the two-fund doctrine, yet that copartner- ship creditors, after exhausting copartnership assets, had the right to share the individual assets pro rata with the individ- ual creditors. During this period, the leading cases on this subject were: Wardlaw v. Gray, Dud. Eq. 112, decided in 1837; Gowan v. Tunno, Rich. Eq. Cas. 369, in 1832; Fleming v. Billings and Belle, 9 Rich. Eq. 149; Gadsden v. Carson, 9 Id. 252; 70 Am. Dec. 207; and Wilson v. McConnell, 9 Id. 500, in 1856 and 1857, — in all of which the rule as above stated was recognized as the settled law of the state. Roberts v. Roberts, 8 Rich, 15, in 1854, held that of two exe- cutions of same date, one in favor of partnership creditors and the other in favor of separate creditors, and both levied on separate property, the execution of the separate creditors should prevail; but in 1866 this was overruled by the court of errors, and in Kuhne v. Law, 14 Rich. 28, 1866, which was a contest between a senior copartnership judgment creditor and a junior separate judgment creditor, over the proceeds of the 694 HuTZLEu Brothers v. Phillips. [S. Carolina, separate property of the debtor by rule against the sheriff in behalf of the separate creditor to have said proceeds applied to his judgment, the court held, Roberts v. Roberts, supra, hav- ing been in substance overruled, that a separate creditor could not set up any equity, even if he had any, in a law court; that in such courts the liens could only be looked at, and that they should be satisfied according to their priority, and the rule was dismissed. In that casf it was stated by Judge Wardlaw, in delivering the opinion, that the court of er- rors, when Roberts v. Roberts, supra, was considered, attained no satisfactory conclusion respecting the rule which should pre- vail in equity in the distribution of separate effects between separate and partnership creditors. But the judges, he said, were nearly, if not entirely, unanimous in the opinion that at law the supposed preference given to a separate creditor should not be allowed to prevail against a prior lien acquired by a part- nership creditor. In Adickes v. Lowry, 15 S. C. 136, the pres- ent court, Mr. Justice Mclver delivering the opinion, said: "This question seems yet open in this state." The above is the state of the authorities upon this subject. Under the circumstances, we think the weight of authority is in favor of the rule as decided below by the circuit judge. Certainly from 1832 to 1866, from Gowan v. Tunno to Kuline V. Law, supra, in the courts then under the direction of the most eminent jurists that have ever adorned the bench in this state, such was regarded to be the rule. It was so announced in all of these cases without hesitation or qualification, and it seems to us that the case of Kuhne v. Law, supra (from which it seems that a doubt first came), upon a careful considera- tion of the principle decided there, instead of raising a doubt, should have affirmed the rule. It was there held, as we have stated, that a senior copartnership judgment creditor had pri- ority to a junior separate judgment creditor upon separate property. Now, unless each of these creditors had an equal claim upon the separate property before judgment, or in other words, an equal right to seek payment out of the separate property, it is not clear how either could get priority by ob- taining judgment in advance of the other. If separate creditors have a right as a principle of equity or law to postpone copartnership creditors as to separate as- sets, a judgment obtained, as it seems to us, by the copartner- ship creditor would be subject to that right, and could not have a lien prior thereto. We think the true doctrine is as d\ Feb. 1887.] Hutzler Brothers v. Phillips. 695 stated by the circuit judge, with the right of the separate creditor, if any equity exists in his behalf, such as two funds, to throw the copartnership creditor on the partnership assets in the first instance; but after the partnership assets have been fully and fairly exhausted, to come in pro rata with the separate creditor. This seems to be the weight of authority with us. Besides, a debt contracted by a copartnership is not only a debt of the firm, but a debt in substance of each individual member of the firm, and the property of the firm, and of each member, is liable for it; but the property of the firm is not liable for the separate debt of a member, — only the inter- est of the member is liable, which is nothing until the firm debts are paid. So that, because a copartnership creditor baa an exclusive claim upon the firm property, it does not follow that a separate creditor should have an exclusive claim upon the separate property. In the first case, the effect of the con- tract is to pledge, as a basis of credit, both partnership and private property; in the second case, the separate property alone gives the credit. And as to partnership property, there is no separate property until the debts are paid, which is liable to both partnership and separate debts by contract: Kuhne v. Law, supra. While, as we have said, we do not think that an equitable mortgage was created in this case under the facts in favor of Cohen & Co., yet there was a state of facts which presents a very strong case for specific performance; or at least, had C. Phillips lived, and after receiving the five thousand dollars from Cohen & Co. he had refused to execute the mortgage prepared and agreed upon, Cohen & Co., as against him, would have had a strong equitable claim for specific performance; or if the transaction, instead of being a loan to be secured by mortgage, had been a contract of purchase by Cohen & Co., with the purchase-money paid down in full, and Phillips had died before the execution of the conveyance promised, could not the titles have been demanded successfully from the heirs? Or at least, if the heirs afterwards had voluntarily executed such conveyance, could it be assailed except by subsequent creditors without notice or for fraud? IIow far this principle might operate in a mortgage transaction like that before the court, where the heirs have voluntarily come forward and have at- tempted to carry out the contract of their ancestor (see Tibbetts V. Langley MJg. Co., 12 S. C. 468), we are not now at liberty G96 HuTzLER Brothers v. Phillips. [S. Carolina, to consider, as this question was not passed upon or consid- ered by the circuit judge. We think, however, without ex- pressing any opinion in reference to it, that it is one which Cohen & Co. should have the opportunity of making before the circuit judge, and to this end the case should be remanded. It is the judgment of this court that the judgment below be reversed, on the ground of error in the ruling of the circuil judge as to the equitable mortgage claimed by Cohen & Co-^ and while affirming the rulings of his honor in other respects, that the judgment below be vacated, and the case be remanded for further hearing, in accordance with the principles herein above. Mr. Justice McIver dissented, upon the ground that, in his judgment, an equitable mortgage cannot be created by the deposit of title deeds in South Carolina. Partnership Creditor has Equal Right with individual creditor to share equally with him in individual partnership property after exhausting the partnership property: Gadsden v. Carson, 70 Am. Dec. 207, and note 210. Equitable Mortgage is Created by an agreement to give a mortgage, or by a mortgage defectively executed, or by an imperfect attempt to exe- cute a mortgage: Love v. Water e referred to to ascertain the exact nature of the deposit: Shaw v. Foster, L. R. 5 H. L. Cas. 321. It is not necessary that the deed deposited show title in the depositor by including the deed by which he acquired title: Roberts v. Croft, 24 Beav. 223; 2 De Gex & J. 1. The deposit of title deeds for the purpose of having a mortgage i)repared will create an equitable mortgage: Ex parte Hooper,. 1 Mer. 7; 19 Ves. 477; Hockley v. Bantock, 1 Russ. 141. Where, in such case, nothing in writing accompanies the deposit, a mortgage will be presumed as the intention of the parties; but this may be rebutted by parol evidence: Ex parte Langston, 17 Ves. 227. The rule is otherwise when a writing is lodged with the deposit: Ex parte Coomhe, 17 Ves. 369; Baynard v. Woolley, 20 Beav. 583. Where a citizen of a foreign country makes a deposit of his title deeds in Euglaud as security for money advanced, his contract is controlled by the law of the latter place, though the law of his domicile would not create a mortgage by such deposit: Ex parte Holthausen, L. R. 9 Ch. App. 722. While the above authorities hold that an equitable mortgage results from a deposit of title deeds when such deposit is relied upon without anything further being done, still parol agreements to make a mortgage, or to make deposit of title deed for that purpose, will not ordinarily be enforced; but to 698 HuTZLEB Brothers v. Phillips. [S. Carolina, be valid, the deposit must be bonajide as a present security, and made with intent to create a lien upon the land: See N'orris v. WilUnson, 12 Ves. 197. And though this doctrine is firmly established, the courts have gone no fur- ther, and they now recognize the rule with hesitation and disapprobation, and evince a strong desire to lessen rather than to enlarge its operation. This method of creating a lien on land is peculiarly adapted to England, where, in the absence of laws requiring the registration of instruments of con- veyance, the possession of title deeds is the only evidence of the ownership of land, and there no conveyance of the estate can be made without such deeds. No one is presumed to have the right to their possession unless he also has an equitable or legal title to the land described therein, and their exhibition when a conveyance is executed is the only safeguard in the hands of the ven- dee that the valid title is in the vendor. No necessity for this rule exists in the United States. Here the system of registry laws dispenses with the necessity of any exhibition of title deeds, and supplies all evidence necessary to protect the parties to the conveyance. Here the public records furnish at once a full and true statement of the present condition of tlie title and all legal rights to land; and if the original conveyance is ever lost or destroyed, a copy from the records takes its place for all intents and purposes: Prohascov. Johnson, 2 Disn. 98. Therefore no equitable mortgage is created in Ohio by the deposit of the title deeds, even if accompanied by a parol agreement that such was the purpose of the deposit: Probasco v. Johnson, supra. The Eng- lish doctrine is generally repudiated in the United States, espc^cially when it is sought to sustain as a mortgage a parol agreement or implied promise in connection with the deposit of the title deeds: Gothard v. Flynn, 25 Miss. 58; Shitzv. Dieffenbach, 3 Pa. St. 233; Sidney v. Stevenson, 11 Phila. 178; Meador v. Meador, 3 Heisk. 562; Vanmeter v. McFadden, 8 B. Mon. 438. These courts rest their decisions on the ground that to sustain such mortgages would be to violate the statute of frauds. It is held in Gardner v. McClure, 6 Minn. 250, that the deposit of title deeds to land as security for a debt, even when accompanied by a written instrument stating that the deposit is made as a lien on the land, will not create an equitable mortgage, but merely a lien on the deeds. On the other hand, some cases arc found which recognize the rule that the mere deposit of title deeds to secure the payment of borrowed money constitutes an equita- ble mortgage: Carpenter v. Black Hawk etc. Co., C5 N. Y. 43-51; Jackson v. Parkhurst, 4 Wend. 309-376; Rockwell v. Hobby, 2 Sand. Ch. 9; Gale v. Mor- ris, 29 N. J. Eq. 222; Griffin v. Griffin, 18 Id. 104; Boyce v. Shiver, 3 S. C. 528. Thus it is held in Carey v. Rawson, 8 Mass. 158, that a sealed agree- ment that a deed should be executed and deposited with a third person until money borrowed by the grantee from the grantor should be repaid or until a day specified, and upon default that it should be delivered to the grantor with right of entry, constitutes an equitable mortgage. And again it was eaid, in Jarvis v. Dutcher, 16 Wis. 308, that the deposit of title deeds of an equitable or legal estate creates an equitable mortgage, which must be fore- closed in equity to establish the lieu, and for a sale if the debt and interest are not paid by a certain day. See also Mowi-y v. Wood, 12 Id. 413. The deposit and assignment of land certificates made absolute in form, but in fact as security for debts owing and advances made, constitute an equitable mortgage, which may be foreclosed and tlie certificates sold to satisfy the claim: Case v. McCabe, 35 Mich. 100. The deposit of title deeds as security for money owing creates an equitable mortgage in Pennsylvania, as between the parties to the deposit, but if not recorded, it amounts to nothing but an I Feb. 1887.] Hutzleb Brothers v. Phillips. 69& unrecorded mortgage: Luch's Appeal, 44 Pa. St. 519; and will be postponed to a subsequent mortgage in favor of a mortgagee without actual notice: Ed- wards V. Trumbull, 50 Id. 509. Conditional Sale. — A court of equity will often pronounce that to be an «quitablo mortgage which the parties have put in the form of a conditional sale, and if the transaction resolves itself into a security, no matter what its form may be, nor by what name the parties may choose to call it, it is in equity a mortgage: Flagrj v. Mann, 2 Sum. 490; Dunman v. Coleman, 59 Tex. 199; McNamara v. Culver, 22 Kan. 661; Davis v. Slonestreet, 4 Ind. 101; Dourjherty V. McColgan, 6 Gill & J. 275; Palmer v. Howard, 1 Am. St. Rep. 60, and note 63; Comnay v. Alexander, 7 Cranch, 218. As was said in Dunman v. Coleman, supra, equity will sustain a contract creating a lieu upon prop- erty as a mortgage, whenever it appears that the parties intended it as such, though neither the word "lien" nor "mortgage" appears in the contract, if from its character it is manifest that it was the intention of the parties that the specific property should constitute a security for the performance of tho obligation. In all doubtful cases, the contract will be considered as a mort- gage rather than a sale, because such a construction will be most apt td attain the ends of justice and prevent fraud and oppression: Ilonorev. Hatch- ings, 8 Bush, 688; McNeill v. Norsiuorthj, 39 Ala. 156; Polndexter v. McCan- non, 1 Dev. Eq. 373; Wilson v. Giddinjs, 28 Ohio St. 554; Trucks v. Lindsey, 18 Iowa, 504; Hickman v. Cantrell, 9 Yerg. 171; 30 Am. Dec. 396; Reedv. Reed, 75 Me. 271; Brant v. Robertson, 16 Mo. 129; Brown v. Dewey, 2 Barb. 28; Rich v. Doane, 45 Vt. 125. The distinction between an equitable mort- gage and a conditional sale is this: that where the debt forming the consid- eration for the conveyance still subsists, or the money is advanced as a loan, with a personal liability on the part of the borrower, and by the terms of the conveyance the land is to be reconveyed on payment of the money, equity will regard it as a mortgage. But where the relation of debtor and creditor is extinguished or never existed, and the grantor has the privilege of refund- ing by a given time if he pleases, and thereby entitling himself to a reconvey- ance, the agreement is a conditional sale: Slowey v. McMurray, 27 Mo. 113; 72 Am. Dec. 251; Saxton v. Hitchcoch, 47 Barb. 220; Hoopes v. Baily, 28 Miss. 328; Glover v. Payn, 19 Wend. 518; Henley v. Hotalimj, 41 Cal. 22; Magee v. Catching, 33 Miss. 672; Alslin v. Cundiff, 52 Tex. 453; Hays v. Carr, 83 Ind. 275; Page v. Foster, 7 N. H. 392; Steele v. Steele, 4 Allen, 417. When any doubt exists whether tho instrument creates a mortgage or is « conditional sale, the intention of the parties should govern, and should be ascertained by considering their situation, the surrounding facts, as well as from tho face of the writing: Cornell v. Hall, 22 Mich. 377; Strylcer v. Hershy, 38 Ai-k. 264; Hughes v. She CASES XN THE COURT OF APPEALS OF NEW YORK. People v. O'Brien. 1111 New York, 1.1 OOKPORATIONS. — ThE PeOPLE OF THE StATE HAVE No AUTHORITY, UPON THE Dissolution of a Corporation and the appointment of a receiver, to maintain a supplementary action against the receiver, the corpora- tion, and others, for the purpose of obtaining a declaration of the rights and liabilities of the several parties, determining what were the assets of the company, and the extent of the interests of the several parties therein, and restraining the mortgagees, contractors, and others from taking legal proceedings to enforce their rights in and liens upon the property of the corporation. Per Ruger, C. J. Constitutional Law — Corporations. — The Power to Repeal Acts of Incorporation, though reserved in such acts, must be exercised in sub- jection to the provisions of the federal constitution. Corporation mat Acquire the Fee in Property, though created for a limited period only. An Interest in the Streets of the City of New York may be Granted IN Perpetuity, and irrevocably, by the city authorities. Grant of Franchise to Construct and Maintain a Street-railway will be Construed as an Irrevocable Grant in Perpetuity, though the corporation to which it is granted was created for a limited period only. Franchise to Con.struct and Maintain a Street-railway is not a mere license or privilege enjoyable only during the life of the grantee, and rev- ocable at the will of the state. It has been uniformly regarded as in- destructible by legislative authority, and as constituting property in the highest sense of the term. Corporations. — Repeal of a Law Authorizing Corporations does not destroy organization formed under it. Dissolution of a Corporation does not Take Away or Destroy rra Property or Annul its Contracts. Such dissolution has no other operation upon its contracts or property rights than the death of a natn- ral person has on his. 6«4 Nov. 1888.] People v. O'Brien. 685 Reservation of Right to Repeal the Charter of a Corporation en- ables a legislature to efifect a destruction of the corporate life, ajid dis- able it from continuing its corporate business; but personal and real property acquired by the corporation during its lawful existence, rights of contract or choses in action so acquired, and which do not in their gen- eral nature depend upon the powers conferred by the charter, are not destroyed by such repeal. Pbancuise to Construct and Maintain a Street-railway Survives the Dissolution of the corporation grantee, resulting from the repeal of its charter enacted pursuant to a right of repeal reserved by the legisla- ture. Upon the Repeal op an Act of Incorporation, all the property and rights of the corporation become vested in the directors then in office, or in such persons as by law have the management of the business of the corporation, in trust for the stockholders and creditors, unless the re- pealing law provides for the appointment of other persons than the offi- cers of the corporation as trustees. Constitutional Law. — Statute Attempting to Take from the Broad- way Surface Company, its Stockholders and creditors, its franchise and property, and bestow them upon the municipality of New York, or to direct a sale of such franchise, and the payment of the purchase price to such city, is unconstitutional, and therefore void. Statute must not be Given Retroactive Effect unless its language ex- pressly requires it. Character of a Statute is not Determined by its Title, but by its provisions, unless its language is ambiguous, in which event its title and the occasion of its enactment may be considered to assist a correct un- derstanding of its terms. Statute Providing Proceedings to be Taken on the Dissolution of a Corporation by Act of the Legislature must be Given a Prospec- tive Operation, and cannot be applied to a corporation so dissolved prior to the enactment of the statute. Constitutional Law. — When, by Reason of the Dissolution of a Cor- poration, its Property has Vested in its Directors, in trust for its stockholders and creditors, the legislature has no power to subsequently provide for the appointment of a receiver and the transfer of the corpo- rate assets to him; such appointment to be made by a court in an action to which such directors are not parties, and in which the court has no other judicial discretion or authority than to designate such receiver. Statute Forbidding a Street-railway Company from leasing its rights or franchises to any person or company operating a road parallel thereto does not inhibit traffic contracts with parallel roads for the partial use of their respective routes beyond the line of parallelism. Action by the attorney-general in the name of the people against John O'Brien, receiver of the Broadway Surface Rail- road Company, the mayor of the city of New York, the Broad- way and Seventh Avenue Railroad Company, the Twenty-third Street Railway Company, Francis A. Palmer and William 11. Hayes, trustees under certain mortgages. The president and trustees of the Broadway Surface Railroad Company, at the 686 People v. O'Brien. [New York, time of its dissolution, were also parties defendant, as were* several other persons. Charles H. Tabor, attorney-general, and WiUiam A, PosU^ for the people. Deni8 O^Brien, for the receiver. James C. Carter and Elihu Root, for the Broadway and Seventh Avenue Railroad Company. Albert Stickney and Nelson S. Spencer, for Jacob Sharp and the Twenty-third Street Railway Company. Edward W. Paige, for the mortgage trustees. Thomas Allison, for the mayor of New York. William C. Gulliver, for James A. Richmond and others. RuGER, C. J. It will not be unprofitable, at the outset, to recall some of the prominent incidents attending the origin and operation of the Broadway Surface Railroad Company, for the purpose of obtaining a clearer view of the situation of the parties, and their relation to the subject of the action. On May 13, 1884, that company filed articles of association, and became incorporated as a street-railroad company under the provisions of chapter 252 of the Laws of 1884, a general act passed to authorize the formation of such corporations, pursuant to the mode introduced by the amendment to the constitution of 1874. By such incorporation the company became an artificial being, endowed with capacity to acquire and hold such rights and property, both real and personal, as were necessary to enable it to transact the business for which it was created, and allowed to mortgage its franchises as security for loans made to it, but having no present authority to con- struct or operate a railroad upon the streets of any munici- pality. This right, under the constitution, could be acquired only from the city authorities, and they could grant or refuse it at their pleasure. The constitution not only made the con- sent of the municipal authorities indispensable to the creation of such a right, but, by implication, conferred authority upon them to grant the consent, upon such terms and conditions as they chose to impose, and upon the corporation the right to acquire it by purchase. The framers of the constitution, evidently treating the privi- lege as a valuable one, which should be disposed of for the benefit of the municipality, to those who would pay the high- Nov. 1888.] People v. O'Brien. 687 est price for it, gave the municipal authorities the exclusive right to grant the privilege, which had theretofore been exer- cised by the legislature alone, and authorized its acquisition by contract from such municipality: In re Cable Co., 109 N. Y. 32; Mayor etc. v. T. & L. R. R. Co., 49 Id. 657. The subsequent legislation of the state condrms this view, for at times it has provided that such right might be sold at auction, and by chapters 65 and 642 of the Laws of 1886 makes it obligatory upon the municipalities to dispose of such right by public, auction to the highest bidder. Previous to December 5, 1884, this company applied to the municipality of New York for authority to lay tracks and run cars over Broadway from the Battery to Fifteenth Street, and on that day, by resolution of the common counsel, the consent of the city was given upon the terms and conditions prescribed in the resolution granting it, among which was the annual payment of a considerable sum of money to the municipality. It is conceded that the Broadway Surface company duly ac- cepted the grant, and fully complied with and performed all of the terms and conditions provided therein, to entitle it to acquire, construct, and operate its road. We know, not only from contemporary history, but from cases which have already reached this court, that serious questions have arisen, with reference to the propriety of the means by which the corpora- tors of the company obtained this consent from the municipal authorities, but they are not involved in this case, and have no bearing upon the questions presented for discussion by the record. They were neither alleged in the complaint, supported by proof, or presented in the arguments of counsel. The com- pany subsequently obtained the favorable report of a commis- sion duly appointed by the supreme court in lieu of the consent of Dibutting property owners, and the order of the court con- firming the action of the commissioners. After its incorporation the Broadway Surface company mort- gaged its property and franchises as security for contemplated loans, and authorized its bonds to be put upon the market for sale to the public generally, and they were largely purchased by investers, without notice of any defect in their origin or execution. It also made contracts with other street-railroad companies owning, respectively, lines of road connecting with the contemplated line of the Broadway Surface company, and diverging therefrom to distant parts of the city, for the use of their several tracks by each other, for which it received a large 688 People v. O'Brien. [New York, present pecuniary consideration from each of said companies, besides the exchange of mutual benefits and accommodations. It is not disputed but that upon the entry of the order of confirmation the Broadway Surface Railroad Company be- came vested with the right of constructing a railroad on Broadway, and running cars thereon, to as full an extent as it had power to acquire, or the state and city authorities had authority to grant. In the spring of 1885 the company caused its track to bo constructed over the route authorized, and from that time to the fourth day of May, 1886, when it was dissolved by an act of the legislature, in connection with other railroad companies, ran its cars over such road and the connecting lines. On May 14, 1886, in an action between the people, as plain- tiff, and James A. Richmond, the former president of the Broadway Surface Railroad Company, as sole defendant, upon the application of the attorney-general, one John O'Brien was appointed receiver of the property formerly belonging to the Broadway Surface company, by a justice of the supreme court of the third judicial district, in an ex parte order based upon the summons and complaint in that action, in pursuance of and under the authority alone of the provisions of chapter 310 of the Laws of 1886. The present action was a supplementary action brought July 8, 1886, by the attorney-general in the name of the people of the state against the city of New York, the receiver of the Broadway Surface Railroad Company, and numerous other corporations and persons, alleged to have had dealings with such company, either as stockholders, mortgagees, creditors, or contractors, for the purpose of obtaining a judgment declara- tory of the rights and liabilities of the several parties, as af- fected by the dissolution of the corporation, determining the fact as to what were assets of the company, and the extent of the interests of the several parties therein, and restraining the mortgagees, contractors, and others from taking legal proceed- ings to enforce their rights in and liens upon the property of the corporation. It is not claimed that the state has any legal interest in the determination of these questions, or that the receiver has not ample power at law to obtain possession of such assets as he may be entitled to, or to protect the property of the corpora- tion from unlawful claims. It is claimed that the action is maintainable under the provisions of section 1 of chapter 310 Nov. 1888.] People v. O'Brien. 689 of the Laws of 1886, by virtue of the provision making it the duty of the attorney-general, upon the dissolution of a corpo- ration by legislative action, "immediately thereafter to bring a suit to wind up and finally settle and adjust the affairs of such annulled and dissolved corporation." The complaint shows that previous to the commencement of this action the attorney-general had brought a suit, in accordance with the statute, to wind up the affairs of the cor- poration; that a receiver had been appointed therein, and that such action was still pending undetermined. It then proceeds to allege that in consequence of various enumerated difficul- ties in obtaining possession of the property by the receiver, this action was brought " in aid of the former action to pre- vent a multiplicity of suits, and to carry out the provisions of chapter 310 of the Laws of 1886." It is not easy to see on what theory such an action can be maintained. The state has no interest entitling it to intervene to prevent a multiplicity of actions between other parties. Neither does the action seem necessary or proper in aid of the former action. The mode by which the provisions of chapter 310 are to be carried out are specially provided by that act to be through the instrumentality of a receiver, and it is not claimed that the receiver lacked power to litigate and settle any of the questions presented by this complaint. The receiver might, perhaps, have brought an action similar in character to this, and would have had a legal interest, if any, in the property to be affected by it; but the state has no such interest, and has no greater authority to intervene in the litigation of contro- versies between individuals and corporations than any other indifferent party: People v. Booth, 32 N. Y. 397; People v. Ingersoll, 58 Id. 13; 17 Am. Rep. 178; Matter of N. Y. Ele- vated R. R., 70 N. Y. 339; People v. B., F., & C. I. R. R. Co., 89 Id. 93; People v. A. & S. R. R. Co., 57 Id. 161. It is claimed that this court held in People v. O^Brien, 103 N. Y. 657, that the action was maintainable. We think that claim is unfounded. The question was not involved in the motion there considered. That was a motion to change the place of trial of the action. Whether the complaint stated a good cause of action or not, could not have been properly considered or decided on such a motion. This action is certainly unusual, and is believed to be unprecedented in its scope and design; and if held to lie at Am. St. Rep., Vol. VII. —44 690 People v. O'Brien. [New York, all, presents a strong and unfavorable contrast to the mode in which legal controversies are usually brought to the attention of judicial tribunals. Some members of the court, however, are of the opinion that the right of the people to maintain the action depends wholly upon the question of the constitution- ality of chapter 310 referred to, and requiring the consideration of that question. Considering, therefore, the magnitude of the interests affected, and the importance to the public generally of a speedy determination of the questions, involving the right of operating a street-railroad on Broadway, notwithstanding the dissolution of the corporation to which that right was originally granted, we refrain from disposing of the case upon the ground referred to, and proceed to an examination of the questions upon which such right depends. Their determination involves an inquiry into the rights secured by the mortgagees and bond-holders through the mortgages upon the property and franchises of the railroad company; the validity of the traffic contracts made by it with other street-railroad corporations, and the effect which the legislation of 1886, comprised in chapters 268, 271, and 310, had upon such questions. In other words, we think the mate- rial question for discussion here is, whether the franchise to maintain tracks and run cars on Broadway survived the disso- lution of the corporation, and if so, upon whom the right of administering its affairs devolved. Upon the trial of the action, a judgment was rendered in favor of the defendants, except the receiver, to the effect that the mortgages were valid liens upon the property and fran- chises of the company, and survived the dissolution of the corporation; that the traffic contracts were made by authority of law, and could be enforced notwithstanding the dissolution of the corporation; and that chapter 271, and parts of chapter 310, of the Laws of 1886, were unconstitutional, as violative of the restrictions of the fundamental law in relation to legis- lation impairing the obligation of contracts, and constituting a taking of "property without due process of law." The court also held that this action was maintainable in the name of the people; that a receiver of the property of the dis- solved corporation had been lawfully appointed; that he was entitled to take possession of its property, and wind up its affairs, and that the plaintiffs were entitled to a perpetual in- junction restraining all of the defendants, except the receiver, Nov. 1888.] People v. O'Brien. 691 from proceeding with actions already begun, or from institut- ing other proceedings or actions to enforce, maintain, or assert any of the claims, demands, or rights of action affecting in any manner the affairs, property, rights, and privileges of the Broadway Surface Railroad Company which have been tried and determined in this action. Not only the plaintiff, but each of the defendants except the Broadway and Seventh Avenue Railroad Company, appealed from this judgment to the general term. That court aflfirraed the judgment of the trial court. The plaintiff and all of the defendants, except the two railroad corporations, appeal from the judgment of affirmance to this court, and thus bring before us every determination involved in the judgment. A review of the judgment brings up for consideration propositions very grave in character, not only on account of the extent of the private interests affected, but because their determination will affect great public questions arising out of the limitations imposed by the constitution upon the legisla- tive power, over the property of corporations lawfully acquired. The statutes upon which the action is predicated, confess- edly assume the right and power of the legislature to wrest from the company its franchises, to transfer them to other persons, and bestow their value upon the donees of the state. The statutes contemplate the absolute destruction of the prop- erty of the corporation, and the loss of its value to the credi- tors who have made loans in good faith upon the security of such property, and this action is avowedly prosecuted to accomplish the purposes of the legislation. It is therefore urgently contended by the attorney-general that none of the franchises of the corporation survived its dissolution, and that the mortgages previously given thereon, as well as all con- tracts made with connecting street-railroads for the mutual use of their respective roads, fell with the repeal, and could not be enforced. If it could be supposed for a moment that this claim was reasonably supported by authority, or maintainable in logic or reason, it would give grave cause for alarm to all holders of corporate securities. The contention that securities representing a large part of the world's wealth are beyond the reach of the protection which the constitution gives to property, and are subject to the arbitrary will of successive legislatures, to sanction or 692 People v. O'Brien. [New York, destroy at their pleasure or discretion, is a proposition so re- pugnant to reason and justice, as well, as the traditions of the Anglo-Saxon race in respect to the security of rights of prop- erty, that there is little reason to suppose that it will ever receive the sanction of the judiciary, and we desire in unquali- fied terms to express our disapprobation of such a doctrine. Whatever might have been the intention of the legislature or even of the framers of our constitution in respect to the effect of the power of repeal reserved in acts of incorporation, upon the property rights of a corporation, such power must still be exercised in subjection to the provisions of the federal consti- tution. Considering the power which the state has to terminate the life of corporations organized under its laws, and the authority which its attorney-general has by suit to forfeit its franchises for misuse or abuse, and to regulate and restrain corporations in the exercise of their corporate powers, there is little danger to be apprehended in the future from the overgrowth of power, or the monopolistic tendencies of such organizations, but what- ever that danger may be, it is trivial in comparison with the widespread loss and destruction which would follow a judi- cial determination that the property invested in corporate securities was beyond the pale of the protection afforded by the fundamental law. It is not perhaps strange in the great variety of cases bear- ing upon the subject, and the manifold aspects in which ques- tions relating to corporate rights and property have been presented to the courts, that dicta, couched in general lan- guage, may be found giving color to the plaintiff's claim; but we think that there are no reporfed cases in which the judg- ment of the court has ever taken the franchises or property of a corporation from its stockholders and creditors through the exercise of the reserved power of amendment and repeal, or transferred it to other persons or corporations, without provis- ion made for compensation. Among other claims made by the state, it is contended that the stated term of one thousand years prescribed in its char- ter for the duration of the company constitutes a limitation upon the estate granted, and that therefore the corporation took a qualified estate only in its franchises, and that the rights reserved by the Revised Statutes (Laws of 1884 and 1850) and the constitution to alter, amend, and repeal the charters or laws under which corporations might be organized, also Nov. 1888.] People v. O'Brien. G93 constituted a limitation upon the estate granted, and that the exercise of the right of repeal by the state accomplished the destruction of the corporation and the annihilation of all franchises acquired under its charter. It will be convenient, in the first instance, to consider the nature of the right acquired by the corporation under the grant of the common council with respect to its terms or dura- tion. This is to be determined by a consideration of the lan- guage of the grant and the extent of the interest which the grantor had authority to convey. We think this question has been decided l^y cases in this court, which are binding upon us as authority in favor of the perpetuity of such estates. That a corporation, although created for a limited period, may acquire title in fee to lands or property necessary for its use, was decided in Nicoll v. New York and Erie R. R. Co., 12 N. Y. 121, where it was held that a railroad corporation, al- though created for a limited period only, might acquire such title, and that where no limitation or restriction upon the right conveyed was oontained in the grant, the grantee took all of the estate possessed by the grantor. The title to streets in New York is vested in the city in trust for the people of the state, but under the constitution and statutes it had authority to convey such title as was neces- sary for the purpose to corporations desiring to acquire the same for use as a street-railroad. The city had authority to limit the estate granted, either as to the extent of its use or the time of its enjoyment, and also had power to grant an interest in its streets lor a public use in perpetuity, which should be irrevocable: Vntes v. Van de Bogert, 56 N. Y. 526; In re Cable Co., 109 Id. 32. Grants similar in all material respects to the one in question have heretofore been before the courts of this state for con- struction, and it has been quite uniformly held that they vest the grantee with an interest in the street in perpetuity for the purposes of a street-railroad: People v. Sturtevant, 9 N. Y. 263; 59 Am. Dec. 536; Davis v. Mayor etc. of New York, 14 N. Y. 506; 67 Am. Dec. 186; Milhau v. Sharp, 27 N. Y. 611; 84 Am. Dec. 314; Mayor etc. v. Second Ave. R. R. Co., 32 N. Y. 261; Sixth Ave. R. R. Co. v. Kerr, 72 Id. 330. Other cases are also reported in the books, but it is deemed unnecessary to accumulate authorities on this point. In Milhau v. Sharp, 27 N. Y. 611, 84 Am. Dec. 314, Judge Selden said, with reference to a grant from the common coun- 694 People v. O'Brien. [New York, cil of New York in no material respect differing from this: " It amounted to an immediate grant of an interest, and, it would seem, of a freehold in the soil of the street to the de- fendants. The rails, when laid, would become a part of the real estate, and the exclusive right to maintain them perpetu- ally is vested in the defendants, their successors and assigns. I say perpetually, because there is no limitation in point of time to the continuance of the franchise, and no direct power is reserved to the corporation to terminate it The title to the rails, when permanently attached to the land, and such right in the land as may be requisite Jor their perpetual maintenance, are therefore granted to the defendants by the resolution." Judge Comstock, in Davis v. Mayor of New York, 14 N. Y. 506, 67 Am. Dec. 186, said: "As the consideration for con- Btructing the road, the ordinance clearly contemplates that it is to become the private property of the associates. They alone will be entitled to place their cars upon it, and within a maximum limit they can charge what they please for the carriage of passengers. These rights are, in effect, granted in perpetuity." In the case of Mayor etc. v. Second Avenue R. R. Co., 32 N. Y. 272, it was said: "Assuming that the common council had power to make the grant, then its acceptance by Pearsall and his associates, signified by the execution of the agreement with the conditions annexed thereto, and the duties and obli- gations resulting therefrom, invested the latter with the right of property in the franchise which the common council could not take away or impair by any subsequent act of its own." The resolution of the common council in this case expressly provided for traffic contracts by which the Broadway and Seventh Avenue Railroad Company should obtain a right to run cars over the tracks of the Broadway Surface railroad, and no conditions upon the right granted to the Broadway Surface Railroad Company, in respect to the duration of such contract rights or otherwise, were imposed by the terms of the grant. It was clearly contemplated by its provisions that the rights granted should be exercised in perpetuity, if public convenience required it, by that corporation, or those who might lawfully succeed to its rights. When we consider the mode required by the statutes and the constitution to be pursued in disposing of this franchise, the inference as to its perpetuity seems to be irresistible, for it Nov. 1888.] People v. O'Brien. 695 cannot be supposed that either the legislature or the framers of the constitution intended to offer for public sale property the title to which was defeasible, at the option of the vendor, or that such property could be made the subject of successive sales to different vendees as often as popular caprice might require it to be done. Neither can it be supposed that they contemplated the re- sumption of property which they had expressly authorized their grantee to mortgage, and otherwise dispose of, to the de- struction of interests created therein by their consent. We are therefore of the opinion that the Broadway Surface Railroad Company took an estate in perpetuity in Broadway, through its grant from the city, under the authority of the con- stitution and the act of the legislature. It is also well settled by authority in this state that such a right constitutes prop- erty within the usual and common signification of that word: Sixth Avenue R. R. Co. v. Kerr^ 72 N. Y. 330; Peo'ple v. Sturte- vant, 9 Id. 263; 59 Am. Dec. 536. When we consider the generality with which investments have been made in securities based upon corporate franchises throughout the whole country, the numerous laws adopted in the several states providing for their security and enjoyment, and the extent of litigation conducted in the various courts, state and federal, in which they have been upheld and en- forced, there is no question but that, in the view of legislatures, courts, and the public at large, certain corporate franchises have been uniformly regarded as indescructible by legislative authority, and as constituting property in the highest sense of the term. It is, however, earnestly contended for the state that such a franchise is a mere license or privilege enjoyable during the life of the grantee only, and revocable at the will of the state. We believe this proposition to be not only repugnant to jus- tice and reason, but contrary to the uniform course of au- thority in this country. The laws of this state have made such interests taxable, inheritable, alienable, subject to levy and sale under execution, to condemnation under the exercise of the right of eminent domain, and invested them with the attributes of property generally. We will refer to a few only of the statutes on this subject from which the implication arises, not only that the state in- tended to invest these franchises with the character of prop- erty, but also to enable their mortgagees, purchasers, and 696 People v. O'Brien. [New York, assigns to enjoy their use under an indefeasible title. Thus railroad corporations have been authorized to contract with other corporations for a qualified transfer of such franchises for terms unlimited except by the agreement of the parties: Laws of 1839, c. 218; Laws of 1872, sec. 2, c. 1843; Laws of 1884, sec. 15, c. 252; to pledge them by way of mortgage as security for loans: Laws of 1850, subd. 10, sec. 28; to con- solidate with other companies owning connecting and con- tinuous lines of railroad, and continue the use of such franchises under the name of their successors: Laws of 1875, c. 108; Shields v. Ohio, 95 U. S. 319. Mortgagees and others have been authorized to purchase such franchises upon mort- gage sale and otherwise, and afforded the right to organize so as to enjoy their use thereafter: Laws cf 1857, sec. 1, c. 444; Laws of 1873, c. 469, 710; Laws of 1880, c. 113; Laws of 1874, c. 430. Purchasers upon a mortgage or execution sale have been authorized to form associations for the purpose of con- tinuing the operation of such railroad with all its powers, privileges, and franchises: Laws of 1873, sec. 1, c. 469, 710; Laws of 1854, sec. 1, c. 282. The sale of such franchises has been authorized by the municipality where located to parties proposing to build street- railroads: Constitutional Amendment of 1875; Laws of 1884, sec. 7, c. 252; Laws of 1886, c. 62, 66. And by section 15 of the act under which this corporation was organized, such companies were expressly permitted to lease or transfer their rights and franchises to other street-railroad corporations. Indeed, it is matter of public history that one half of the railroads of the state are now operated by organiza- tions other than those to whom the franchises were originally granted, notwithstanding their dissolution through transfers effected by the foreclosure of mortgages and otherwise. The statutes cited, as well as others not specially referred to, indicate the general policy of the state to render such interests independent of the life of the original corporation and trans- ferable as property by means of judicial proceedings and otherwise, under certain restrictions not pertinent to our present purpose particularly to consider: People v. Brooklyn, F., & C. I. R. R. Co., 89 N. Y. 84. In Mayor etc. v. Second Avenue R. R. Co., 32 N. Y. 261, Judge Brown said: "The rights of municipal corporations to prop- erty in lands and its usual incidents, and to create ferries and railroad franchises, are quite distinct and separate from their duties as legislatures, having authority to pass ordinances for Nov. J8S8.] People v. O'Brien. 697 the control and government of persons and interests within the city limits. The latter are powers held in trust, as all legis- lative powers are, to be used and exercised for the benefit and welfare of the whole community, while the former are property, in the ordinary sense, to be acquired and conveyed in the same manner as natural persons acquire and transfer prop- erty." The same learned judge said in Brooklyn Central R. R. Go. v. Brooklyn City R. R. Co., 32 Barb. 364: "The grant to the city railroad company and its acceptance on the conditions an- nexed, with the duties and obligations and large expenditures resulting therefrom, would seem, therefore, upon the principles I have endeavored to state, to invest the company with the right of property in the franchise of which it cannot be de- prived without its consent or against its will." It was held by this court in Langdon v. Mayor etc., 93 N.Y. 129, that a grant from the city, of land to be used as a wharf, carried with it, as a necessary incident and appurtenance, a right of way for vessels over adjoining waters to the wharf, and that under such grants the propert}' granted can only be resumed by the grantor when needed for public use by the exercise of the right of eminent domain. The court also held in People v. Brooklyn etc. R. R. Co., 89 N. Y, 75, that upon a foreclosure of the property and fran- chises of a railroad corporation, an individual could lawfully become their purchaser, and could hold and transfer them to any corporation having or acquiring the right to exercise such franchises. In Sixth Avenue R. R. Co. v. Kerr, 72 N. Y. 330, it was held that the right of a street-railroad company in the use of a street for the purpose of its business was a property right, subject to condemnation for public use. As we have already Been, the cases of People v. Slurtevant, Mayor etc. v. Sixth Avenue R. R., Davis v. Mayor etc., and Milhau v. Sharp, hereinbefore referred to, sustain the same views. The case of N. 0., S. F., & Lake R. R. Co. v. Delamore, 114 U. S. 501, is directly in point. There the franchise, as hero, was acquired by the corporation from the municipal authori- ties of a city under general laws authorizing the formation of Bureet-railroad corporations. It was held, "where there has been a judicial sale of railroad property under a mortgage, authorized by law, covering its franchises, it is now well set- tled that the franchises necessary to the use and enjoyment of 698 People v. O'Brien. [New York, the railroad pass to the purchaser It follows that if the franchises of a railroad corporation, essential to the use of its road, and other tangible property, can by law be mortgaged to secure its debts, the surrender of its property upon the bank- ruptcy of the company carries the franchises, and they may be sold and pass to the purchaser at the bankruptcy sale." In Memphis etc, R. R. Co. v. Railroad Commissioners, 112 U. S. 609, 619, it was said: "The franchise of being a corpora- tion need not be implied as necessary to secure to the mort- gage bond-holders or the purchasers at a foreclosure sale the substantial rights intended to be secured. They acquire the ownership of the railroad and the property incident to it, and the franchise of maintaining and operating it as a road." These rights of property having been acquired and created under the express sanction and authority of the state, it remains to inquire whether they were defeasible and subject to be taken away through the exercise of any power reserved by the state to alter, amend, and repeal laws or charters. The reservations applying to this case are claimed to be as follows: 1. Section 1, article 8, title '" Corporations, how Created," Constitution of 1846, providing that "all general laws and special acts passed pursuant to this section may be altered from time to time or repealed" ; 2. Section 8, title 3, chapter 18, of the Revised Statutes, seventh edition, providing that " the charter of every corporation that shall be granted by the legislature shall be subject to alteration, suspension, and repeal, in the discretion of the legislature"; 3. Section 48, chapter 140, Laws of 1850, providing that "the legislature may at any time annul or dissolve any incorporation formed under this act, but such dissolution shall not take away or impair any remedy given against any such corporation, its stockholders, or officers, for any liability which shall have been previously incurred"; and 4. Chapter 282, Laws of 1884, under which this corporation was organized, giving it all the powers and privileges granted, and subject to all of the liabilities imposed by chapter 140, Laws of 1850, and the several acts amendatory thereof, and further providing that "the legislature may at any time alter, amend, or repeal this act": Sec. 19. The constitution of 1846 for the first time introduced restrictions upon the power of legislatures to grant special charters, and required that provisions for corporations, save in exceptional cases, should thereafter be made by general I Nov. 1888.] People v. O'Brien. 699 laws. The obvious intent of the constitutional reservation was to remove any doubt as to the power of the legislature to amend or repeal the laws, whether general or special, author- ized by that instrument for the formation of corporations, and seemed to leave the provisions of the Revised Statutes, in relation to reserved power over charters, in full force and effect It will be observed that the constitution and the act of 1884 provide specially for the amendment and repeal of statutes alone, but the Revised Statutes and the act of 1850 are ad- dressed specially to the subject of the annulment and repeal of charters created under such statutes. It seems to us that these provisions relate to different sub- jects, viz., the repeal of laws, and the annulment of charters formed under such laws, and that the power to do one does not naturally or properly include the power to do the other: Albany Northern R. R. Co. v. Brownell, 24 N. Y. 345. Certainly the repeal of a law authorizing corporations would not destroy organizations formed under it, nor would the an- nulment of a charter affect the law under which it was created. Neither does it seem reasonable to suppose, while taking away the power of the legislature to create corporate bodies, the con- Btitution intended to confer power to destroy them, thus en- abling them to accomplish indirectly that which they were precluded from doing directly. It must be assumed that the framers of the constitution, as well as the legislature, used the language employed by them intelligently, and according to its common and customary signification, and when they spoke of the annulment and repeal of acts and laws alone, did not in- tend to embrace charters as well. These two subjects have frequently been the occasion of legislative action, and since the restrictions upon the powers of the legislature to grant special charters, there is no reason to suppose that they did not use the language employed in its literal sense, and espe- cially so when both subjects were immediately within the con- templation of the law-makers. In considering this question, the provisions of the Revised Statutes may be laid out of view, for if they contain any broader power than the act of 1850, they must be deemed to have been repealed by the provisions of the latter act, as in- consistent therewith. The reservations, therefore, which apply to this case are contained in the acts of 1850 and 1884, which constitute a part of the railroad charter. 700 People v. O'Brien. [New York, These acts should be read and construed together, and, as thus considered, provide that the legislature may at any time alter, amend, and repeal these acts, and may also annul and dissolve charters formed thereunder, but such dissolution shall not take away or impair any remedy against such corporation, its officers and trustees, for any liability previously incurred. The contract proved between the corporation and the state was intended, in respect to a repeal of the charter, to survive the dissolution of the corporation, and to determine the rights of parties interested in the property, in the event of dissolu- tion. By virtue of this contract, the corporation secured rights subject to be taken away under certain restrictions, and pro- tected itself from any consequences following a repeal of its charter, except those expressly agreed upon. But even if it be conceded that the constitutional provisions place the right to repeal charters, as well as laws, beyond the power of legislatures to waive or destroy, the question still re- mains as to the efifect of such a repeal upon the franchises of the corporation, — whether it contemplates anything more than the extinction of the corporate life, and consequent disability to continue business, and exercise corporate functions after that time, or has a wider scope and efifect. It may be assumed in this discussion that the authority of the legislature to repeal a charter, if it has expressed its inten- tion to reserve such power in its grant, constitutes a valid res- ervation. Parties to a contract may lawfully provide for its termination at the election of either party, and it may, there- fore, be conceded that the state had authority to repeal this charter, provided no rights of property were thereby invaded or destroyed. In speaking of the franchises of a corporation, we shall assume that none are assignable except by the spe- cial authority of the legislature. We must also be understood as referring only to such franchises as are usuaUy authorized to be transferred by statute, viz., those requiring for their en- joyment the use of corporeal property, such as railroad, canal, telegraph, gas, water, bridge, and similar companies, and not to those which are in their nature purely incorporeal and in- alienable, such as the right of corporate life, the exercise of banking, trading, and insurance powers, and similar privi- leges. The franchises last referred to being personal in char- acter, and dependent upon the continued existence of the donee for their lawful exercise, necessarily expire with the ex- tinction of corporate life, unless special provision is otherwise Nov. 1888.] People v. O'Brien. 701 made: People v. B., F., & C. I. R. R. Co., 89 N. Y. 84; People V. Metz, 50 Td. 61. In the former class it has been held that at common law real estate acquired for the use of a canal company could not be sold on execution against the corporation separate from its franchise, so as to destroy or impair the value of such fran- chise: Gue V. Tide Water Canal Co., 24 How. 257; and by parity of reasoning it must follow that the tracks of a rail- road company, and the franchise of maintaining and operat- ing its road in a public street, are equally inseparable, in the absence of express legislative authority providing for their severance. The statute of our state authorizing the sale of the franchise and property of a railroad company on execution seems to recognize the indissolubility of the connection between the cor- poreal property, and its incorporeal right of enjoyment. It is also to be observed that in none of the provisions for repeal in this state is there anything contained which purports to confer power to take away or destroy property or annul con- tracts, and the contention that the property of a dissolved cor- poration is forfeited rests wholly upon what is claimed to be the necessary consequence of the extinction of corporate life. We do not think the dissolution of a corporation works any such effect. It would not naturally seem to have any other operation upon its contracts or property rights than the death of a natural person upon his: Mumma v. Potomac Co., 8 Pet. 281, 285. The power to repeal the charter of a corporation cannot, upon any legal principle, include the power to repeal what is in its nature irrepealable, or to undo what has been lawfully done under power lawfully conferred: Butler v. Palmer, 1 Hill, 335. The authorities seem to be uniform to the effect that a reser- vation of the right to repeal enables a legislature to effect a destruction of the corporate life, and disable it from continuing its corporate business: People ex rel. Kimball v. B. & A. R. R. Co., 70 N. Y. 569; Philips v. Wickham, 1 Paige, 590; and a reservation of the riglit to alter and amend confers power to pass all needful laws for the regulation and control of the domestic affairs of a corporation, freed from the restrictions imposed by the federal constitution upon legislation impairing the obligation of contracts: Munn v. Illinois, 94 U. S. 113, 123. We tliink no well-considered case has gone further than 702 People v. O'Brien. [New York, this, while in many cases such power has been expressly held to be limited to the effect stated. In the language of Chief Justice Marshall in Fletcher v. Peck, 6 Cranch, 87, 135: " If an act be done under a law, a succeeding legislature cannot undo it. The pa'st cannot be recalled by the most absolute power. Conveyances have been made; those conveyances have vested legal estates, and if those estates may be seized by the sove- reign authority, still that they originally vested is a fact, and cannot cease to be a fact. When, then, a law is in the nature of a contract, when absolute rights have vested under that con- tract, a repeal of the law cannot divest those rights." It would seem to be quite obvious that a power existing in the legislature by virtue of a reservation only could not be made the foundation of an authority to do that which is ex- pressly inhibited by the constitution, or afford the basis of a claim to increase jurisdiction over the lives, liberty, or prop- erty of citizens beyond the scope of express constitutional power. Since the decision of the celebrated Trustees Dartmouth College v. Woodward, 4 Wheat. 518, the doctrine that a grant of corporate powers by the sovereign to an association of indi- viduals for public use constitutes a contract, within the mean- ing of the federal constitution prohibiting state legislatures from passing laws impairing its obligations, has, although sometimes criticised, been uniformly acquiesced in by the courts of the several states as the law of the land, and may be regarded as too firmly established to admit of question or dis- pute: People V. Sturtevant, 9 N. Y. 263; 59 Am. Dec. 536; Milhau V. Sharp, 27 N. Y. 611; 84 Am. Dec. 314; Brooklyn Cent. R. R. Co. v. Brooklyn City R. R. Co., 32 Barb. 364. The intimation by Judge Story in that case that the rule might be otherwise if the legislature should reserve the power of amend- ing or repealing it, led to the adoption by the legislatures of the various states of the practice of incorporating such reserva- tions in acts of incorporation. Whatever may be the effect of such reservations, it is immaterial whether they are embraced in the act of incorporation or in general statutes or provisions of the constitution. In either case they operate upon the con- tract according to the language of the reservation: Morawetz on Corporations, 464. It is manifest, therefore, that in the absence of such reserved power legislatures have no authority to violate, destroy, or impair chartered rights and privileges, or power over corporations, except such as they possess by Nov. 1888.] People v. O'Brien. 703 virtue of their legislative authority over persons and property generally. It is obvious that this reserved power does not, in any sense, constitute a condition of the grant, and cannot have effect as such, but is simply a power to put an end to the con- tract with such effect upon the rights of the parties thereto as the law ascribes to it: Sinking Fund Cases, 99 U. S. 700, 748; Tomlinson v. Jessup, 15 Wall. 454, 457. In speaking of the exercise of this power by Congress in the Sinking Fund Cases, supra, Chief Justice Waite says: "Congress not only retaim, but has given special notice of its intention to retain, full and complete power to make such alterations and amendments of the charter as come within the just scope of the legislative power. That this power has a limit, no one can doubt. All agree that it cannot be used to take away property already acquired under the operation of the charter, or to deprive the corporation of the fruits actually reduced to possession of con- tracts lawfully made Whatever rules Congress might have prescribed in the original charter for the government of the corporation in the administration of its affairs, it retaine I the power to establish by amendment. In doing so, it cannot undo what has already been done, and it cannot unmake con- tracts that have already been made, but it may provide for what shall be done in the future, and may direct what prep- aration shall be made for the due performance of contracts al- ready entered into. It might originally have prohibited the borrowing of money on mortgage, or it might have said that no bonded debt should be created without ample provision by sinking fund to meet it at maturity. Not having done so at first, it cannot now, by direct legislation, vacate mortgages already made under the powers originally granted, nor release debts already contracted." The judges dissenting in that case contended that there- served power could not be construed as authorizing the alter- ation, violation, or nullification of any of the material provis- ions of the grant, but should be held to mean simply a reservation of the power to legislate, freed from the restric- tions imposed by the constitutional provisions against legis- lation impairing the obligations of contracts. Mr. Justice Bradley said: "The reserved power in question is simply that of legislation to alter, amend, or repeal a charter. This is very different from the power to violate or to alter the terms of a contract at will. A niservation of power to violate a con- tract, or alter it, or impair its obligation, would be repugnant 704 People v. O'Brien. [New York, to the contract itself, and void. A proviso repugnant to the granting part of a deed, or to the enacting part of a statute, is void. Interpreted as a reservation of the right to legislate, the reserved power is sustainable on sound principles; but interpreted as the reservation of the right to violate an exe- cuted contract, it is not sustainable." This dipsent proceeded upon the ground that the acts of Congress under consideration changed some of the essential features of the contract, and were, therefore, void, as being obnoxious to the provisions of the constitution for the protec- tion of life, liberty, and property. The majority of the court held, however, that such acts were simply an exercise of the power of Congress to regulate the internal administration of the affairs of a corporation, which, to a certain extent, it was unanimously agreed that it possessed. There was no dispute or disagreement as to the correctness of the rule stated, that the power of amendment and repeal was a restricted power, limited by the provisions of the constitution. An interpreta- tion conferring the power of violating a contract at will upon one of its parties, under a clause authorizing its amendment or repeal, would seem to be inconsistent with any reasonable notion of the nature of such an instrument, and beyond the power of parties lawfully to create. If it is possible to conceive the idea of a repealable grant, certainly such a grant, accompanied with power to convey or pledge the interest granted, must, on the execution oT the power, necessarily preclude a resumption by the grantor of the subject of the grant, or any right of property acquired under it. An express reservation by the legislature of power to take away or destroy property lawfully acquired or cre- ated would necessarily violate the fundamental law, and it is equally clear that any legislation which authorizes such a re- sult to be accomplished indirectly would be equally ineffectual and void. In People v. National Trust Co., 82 N. Y. 287, the question was raised that a dissolved corporation was discharged from the obligation to pay rent accruing upon a lease subsequent to its dissolution. Judge Rapallo said: "This claim is not founded upon the allegation of any payment, release, or sur- render, or anything affecting the merits of the claim, but upon the sole ground that by the dissolution of the corpora- tion, the lease was terminated, and the covenant to pay rent ceased to be obligatory. We do not regard the dissolution as Nov. 1888.] People v. O'Brien. 705 having any such effect. Under the statutes of this state, on the dissolution of a corporation, its assets become a trust fund for the payment of its debts, and these include debts to ma- ture as well as accrued indebtedness, and all engagements entered into by the corporation which have not been fully sat- isbed or canceled." In Commonwealth v. Essex Co., 13 Gray, 239, Justice Shaw eaid: "When, under power in a charter, rights have been ac- quired and become vested, no amendment or alteration of the charter can take awaj' the property or rights which have be- come vested under a legitimate exercise of the powers granted": Albany R. R. Co. v. Brownell, 24 N. Y. 345. The case of City of Detroit v. Detroit etc. Plankroad Co., 43 Mich 140, is not only in point, but entitled to high considera- tion on account of the distinction as a constitutional lawyer of the learned judge who wrote the opinion of the court. The question was, whether the legislature had power to compel the defendant to remove its toll-gates from within the city limits after they had been lawfully placed there under the provisions of its charter. Judge Cooley says: "It cannot be necessary at this day to enter upon a discussion in denial of the right of the government to take from either individuals or corporations any property which they may rightfully have acquired. In the most arbitrary times, such an act was rec- ognized as pure tyranny, and it has been forbidden in Eng- land ever since Magna Charta, and in this country always. It is immaterial in what way the property was lawfully ac- quired, whether by labor in the ordinary avocations of life, by gift, or descent, or by making a profitable use of a fran- chise granted by the state; it is enough that it has become private property, and it is thus protected by the 'law of the land.'" And, finally, upon this branch of our subject, we are unable to see why section 48 of the Law of 1850 does not express the rule by which the question under discussion must be deter- mined. That section is expressly made a part of the contract between the state and corporations organized thereunder, and specially provides for the effect which an exercise of the reserved power of repeal by the state shall have upon the franchises of the company. It shall not impair any remedy existing against the corporation, its directors or officers, upon a liability previously incurred. This was the contract under which the dissolved corporation issued its stock, mortgaged Am. St. Rep., Vol. VII.— 45 706 People v. O'Brien. [New York, its franchises, entered into traflBc engagements, and contracted debts. Creditors, contractors, and stockholders had a right to rely upon the promise of the state, that the annulment of the corporate charter should not affect the remedies existing in their favor against the corporation; and this promise is a contract, protected by the provisions of the federal constitu- tion. In the absence of any constitutional provision prescribing the effect of such repeal, it was competent for the legislature to declare what that should be, and for the state to contract with reference to such a declaration. The right of repeal, as provided by the constitution, is fully recognized by the act of 1850, and the effect of the exercise of the power upon the rights of parties affected thereby is clearly defined. We are therefore of opinion that the statute not only pre- scribes the rule, creates the contract, and regulates the rights of the parties upon the exercise by the state of the power of repeal, but it also correctly formulates the principle of law ap- plicable to the situation. We think it necessary to refer only to some of the leading cases cited by the plaintiff's attorney in support of his argument, and are of the opinion that they are not controlling authorities upon the case under considera- tion. That of Greenwood v. Freight Co., 105 U. S. 13, was an action by a stockholder in the Marginal Company against the Freight Company and others, to obtain an injunction restrain- ing the latter company from taking possession of th6 railroad tracks of the former after its dissolution by legislative action, and running cars thereon. The Marginal Company had re- fused to assert its rights, and the stockholder was therefore allowed to bring his suit to protect his interest in its property. Judge Miller says in that case: "Personal and real property acquired by the corporation during its lawful existence, rights of contract, or choses in action so acquired, and which do not in their nature depend upon the general powers conferred by the charter, are not destroyed by such a repeal, and the courts may, if the legislature does not provide some special remedy, enforce such rights by the means in their power. The rights of the share-holders of such a corporation to their interests in its property are not annihilated by such a repeal, and there must remain in the courts the power to protect those rights. '^ It was further held that, so far as the law then under con- sideration authorized one corporation to take and use the property or franchises of another, it was sustainable under the Nov. 1888.] People v. O'Brien. 707 provisions requiring compensation to be made therefor under the power of eminent domain. Neither has the case of People v. Globe M. L. Ins. Co., 91 N. Y. 174, any bearing upon the questions involved in this dis- cussion. It was held in that case that contracts for personal services contemplated the continued existence of the parties, and when either of them died it necessarily effected a termina- tion of such contracts. So, too, cases depending upon the effect of conditions in a grant to the creation of corporate life, or the acquisition of property rights thereunder, are, for obvious reasons, foreign to the questions involved here. Here the grantee has performed every condition essential to its creation as a corporate being, and its capacity to acquire and hold property, and the only question is as to the effect of a power to extinguish the corporate life, reserved in its char- ter, upon its property rights. In Erie & K E. R. R. Co. v. Casey, 26 Pa. St. 287, 301, the question arose under a statute which specially provided that the state might resume all rights conferred in case of an abuse or misuse of the powers granted to the corporation. Upon an alleged abuse of power, the legislature repealed the charter and resumed the subject of the grant. The corpora- tion forfeited its rights by its voluntary act. The reservation in the charter was expressly made a condition subsequent. The case was between the representative of the state and the railroad corporation, and no rights of creditors, mortgagees, or stockholders were involved in its decision. It also appears by the case that the state and the corporation had settled their controversy by compromise during the pendency of the litiga- tion, and it can hardly be said to have involved any practical question. We are therefore of the opinion that the Broadway Surface Company took an indefeasible title to the land necessary to enable it to construct and maintain a street-railroad in Broad- way, and to run cars thereon for the transportation of freight and passengers, which survived its dissolution. We are thus brought to the question of the right of succes- sion to the property of a dissolved corporation in the absence of any provision in the act of dissolution providing for such an event. Sections 9 and 10, title 3, chapter 18, part 1, of the Revised Statutes, seventh edition, 132, 153, seem to furnish a conclu- 708 People v. 0'BRIE^. [New 'i ovk, sive solution to the inquiry. They read as follows: " Sec. 9. Upon the dissolution of any corporation created or to he created, and unless other persons shall be appointed by the legislature, or by some court of competent authority, the di- rectors or managers of the affairs of such corporation at tlie time of its dissolution, by whatever name they may be known in law, shall be the trustees of the creditors and stockholders of the corporation dissolved, and shall have full power to settle the affairs of the corporation, collect and pay the out- standing debts, and divide among the stockholders the njoiu-ys and other property that shall remain after the payment ot debts and other necessary expenses. Sec. 10. The persons so constituted trustees shall have authority to sue for and recover the debts and property of the dissolved corporation, .... and shall be jointly and severally responsible to the creditors and stockholders of such corporation, to the extent of its property and effects that shall come into their hands." From these sections it would seem that upon the dissolution of this corporation, its remaining trustees became vested with the title of its property, and responsible to its creditors and stockholders for the value thereof. By operation of law a vested right of action accrued to all creditors and stockhold- ers immediately on the dissolution against such trustees for the value of all property which did or might, by the exercise of reasonable diligence, come into their hands. This was a liability which after it once attached was beyond the consti- tutional power of the legislature to release or discharge: Daah V. Vankleeck, 7 Johns. 577; 5 Am. Dec. 291. The evidence is undisputed that upon the dissolution, de- clared by the legislature, the trustees took possession of the railroad property, and surrendered its operation to the mort- gagees of such railroad. This, in the absence of any objection on the part of creditors or stockholders, they had undoubted authority to do, and the possession of such mortgagees there- after was the possession of such trustees. They undoubtedly beeame liable for the value of such property to creditors and stockholders by virtue of such possession, and their authority to administer the assets of the corporation for the purpose of discharging such liability became fixed by the law existing at the time the liability was incurred. The cases in this state fully support these propositions. As was said by the chan- cellor in Kane v. Bloodgood, 7 Johns. Ch. 90, 128, 11 Am. Dec. 417: "The reasonable construction of the act is, that the trus- Nov. 1888.] People v. O'Brien. 709 tees succeeded to all the rights and privileges of directors, and to the same means of defense." In McLaren v. Pennington, 1 Paige, 102, it was held, as stated in the head-note, that " where an act of incorporation is rcpeah^d. all the ])roperty and rights of the corporation be- come vested in the directors then in oflice, or in such persons as by law have the management of the business of the corpo- ration, in trust for the stockholders and creditors, utdess the repealing law provides for the appointment of other persons than th(i oliic^crs of the corporation as trustees." In Ilenih v. Bnrmnre, 50 N. Y. 305, Judge Rapallo said: " Under the provisions of 1 Revised Laws, 248, and 1 Revised Statutes. GOO, stictions 9 and 10, upon the dissolution of a cor- poration, the directors or managers at that time become trus- tees of its property (imless some other custodian is appointed) for the ])urpose of paying the debts of the corporation, and dividing its j)roperty among its stockholders, and these provis- ions apply as well to the real estate as to the personal prop- erty of cor])orations. Consequently, where lands are conveyed absolutely to a corporation having stockholders, no reversion or possibility of a reverter remains in the grantor." Allen, J., in Central City Savimjs Bank v. Walker, Q>(j N. Y. 428, speaking of tlie ownership of property and the property riglits of a corporation, said: "During the life of the corpora- tion, the body corporate was the legal owner, and upon the expiration of the charter, the legal title vested in the trustees in ollice, at the time, in trust for the creditors and stock- holders." There can be no valid distinction between property held in trust and that owned by individuals in respect to the protec- tion afforded to it by the constitution. The reason for its protection is equally strong in either case, and tlie inviolability of the title is in both cases beyond the reach of legislative action: Trustees Dartmouth College v. Woodward, 4 Wheat. 518. It then remains for us to consider the validity of the j)ro- visions of chapters 271 and 810 of the Laws of 1886. W(; are fully impressed witii the importance of this question, and the well-settled principles of construction which require every statute to be so construed as to ui)hold its constitutionality, if that may be done by a fair and reasonable interpretation of its language. Another rule, equally well settled, precludes courts from inquiring into the njotives of legislatures in making laws, and 710 People v. O'Brien. [New York, to consider them simply with reference to their legal effect, upon the rights of persons subjected to their operation. If, however, upon such examination it is found that con- Btitutional rights will be invaded by the operation of the stat- ute, it is the duty of courts to protect them by declaring the invalidity of the statute. Upon such examination, we are of the opinion that chapter 271 of the Laws of 1886 is unconstitutional and void. Its provisions phow a naked and undisguised attempt to take away from the Broadway Surface company and its stock- holders and creditors its property, and bestow the benefit thereof upon the municipality of New York. The act attempts to preserve the validity of the consents held by the corpora- tion, notwithstanding its dissolution, and directs their sale and transfer to the purchaser, and the payment of the purchase price to the city. These consents were the muniments of title to the enjoy- ment of the rights acquired thereunder by the railroad cor- poration, and could not be lawfully retained in existence or transferred, except by its consent, manifested in some of the ways provided by law. Their possession by any lawful trans- feree would entitle him to the exercise and use of the. rights •thereby conferred. The attempt to transfer them to a third party by the mere force of the statute, without the consent or knowledge of their lawful owners, was an effort to change their ownership without due process of law: Parker v. Browning, 8 Paige, 388; 35 Am. Dec. 717. Such legislation has been frequently and emphatically con- demned: Taylor v. Porter, 4 Hill, 147; 40 Am. Dec. 274; Wynehamer v. People, 13 N. Y. 434; Westervelt v. Gregg, 12 Id. 202; 62 Am. Dec. 160; Kilbourn v. Thompson, 103 U. S. 168. In speaking of the reserved power to alter, amend, and repeal laws authorizing incorporations, in People v. Boston and Albany R. R. Co., 70 N. Y. 570, Judge Earl says: "Under this reserved power, the legislature may impose upon railroad cor- porations such additional restrictions and burdens as the public good requires. It may not confiscate property, but it cannot be doubted that it may do all that is required by the act of 1874." Judge Thompson said, in Dash v. Van Vleeck, 7 Johns. 477, 5 Am. Dec. 291: "It is repugnant to the first principles of jus- tice, and the equal and permanent security of rights, to take by Nov. 1S88.] People v. O'Brien. 711 law the property of an individual without his consent, and give it to another." The main argument presented to maintain the constitution- ality of this act is the assertion that these consents do not constitute property within the usual signification of that term. We have considered that question, and do not agree with the claim. In view of the fact that the statute expressly contem- plates their sale, transfer, and acquisition by a purchaser, it would seem unnecessary to go further to prove the fallacy of such a contention. These remarks apply with equal force to chapter 310. The plaintiff has argued the case upon the assumption that the chapter referred to applies to the Broadway Surface Railroad Company, and should control the proceedings to wind up its affairs. That company was, however, dissolved on January 4th, and the act now under consideration was not passed until January 11th thereafter, and could not have retroactive effect unless its language expressly required it. We can see no ground for such a contention, unless we look beyond the language of the act and speculate as to the motives of the legislature in passing it. The act does not purport, in terms, to have a retroactive operation, and it is contrary to settled principles to give it such, unless there is something in the language of the act requiring this to be done. Section 1 provides: "Whenever any corporation organized under the laws of this state shall be annulled and dissolved by an act of the legislature, it shall be the duty of the attor- ney-general .... to bring a suit .... to wind up the affairs of the corporation." This language looks plainly to prospective cases arising under the act, and those only, and there is nothing in the body of the act to show that the legislature intended it to apply to a dissolution already accomplished. The character of a statute is to be determined by its pro- visions, and not by its title: Peojple v. McCann, 16 N. Y. 58; 69 Am. Dec. 642; but when its language is ambiguous and doubtful, resort may be had to its title and the occasion of its enactment to explain an ambiguity in its terms. There is no ambiguity in the terms of this act, and nothing to indicate an intention to give it retroactive operation. The application of the act to the Broadway Surface Company can be sustained only upon the theory that such act applies to all corporations whatsoever, theretofore dissolved by legislative act, however 712 People v. O'Brien. [New York, remote in point of time such dissolution may have been effected. Whether there are such cases or not, we are not informed, but we are invited to adopt a rule which would relate back and cover such cases if they exist. We think such a decision would conflict with settled rules of construction. In New York etc. R. R. Co. v. Van Horn, 57 N. Y. 473, it was held that a legislative intent to violate the constitution will not be assumed, nor will a law be so con- strued as to give it a retroactive effect when it is capable of any other construction; and that if all of its language can be satisfied by giving it prospective operation only, that con- struction will be given to it. In the case of Dash v. Van Kleeck, 7 Johns. 477, 5 Am. Dec. 291, it was decided that it is a principle of universal jurispru- dence that laws, civil and criminal, must be prospective, and cannot have a retroactive effect; and in Benton v. Wirkwire, 54 N. Y. 229, the court declared that neither original statutes nor amendments can have any retroactive effect, unless, in exceptional cases, the legislature so declare: People v. Svper- visors, 43 Id. 130; People v. McCall, 94 Id. 587; N. Y. & 0. M. R. R. Co. V. Van Horn, 57 Id. 473. The power of the legislature to give retroactive operation to a statute in some cases is conceded, but we believe that, to have such effect, it should declare its purpose in plain and unmistakable lan- guage, and that so unusual a signification should not be attributed to it by resorting to vague and equivocal infer- ences which have no support in the language employed. Such an interpretation would most emphatically be forbidden when it would interfere with vested rights. If we were at liberty to inquire into the circumstances under which this act was passed, and its connection with other legislation of the same period, we might conjecture that the legislature designed it to apply to the Broadway Surface Railroad Company; but it has not so expressed itself in the act, and the rules of con- struction to which we have referred forbid us from supplying the language necessary to give it such effect: Benton v. Wirk- wire, 54 N. Y. 226. But, assuming that the act was intended to apply and retroactive effect be given to it, we are of opinion that its material provisions are open to many serious objec- tions which cannot be obviated or reconciled with the pro- visions of the fundamental law. A receiver is the representative of the debtor. It is his duty to scrutinize the claims made against the estate, and Nov. 1888.] People v. O'Brien. 713 reject and defend against those he believes to be unfounded or illegal. He cannot be impartial in a litigation between him- self and creditors as to such claims. A law, therefore, which makes such a party the referee to take the proof of claims, and the judge to determine the materiality of evidence offered in their support, \aolate8 a fundamental rule in the adminis- tration of justice. No man can be a judge in his own case, and it is injniaterial whether he is a party in his own right or as trustee of an express trust; in either event he is a party to the action, interested therein and precluded from acting in a judicial capacity in the determination of such a case. Nemo debet esse judex in propria causa. This law is objectionable also because it makes proof of the cost of the obligation the measure of the creditor's recovery, instead of the liability of the debtor as shown by the terms of his contract. And, again, it requires the creditor to accept payment of an obligation before maturity. The time of payment of a pecuniary obliga- tion is a material provision in such contract, and we know of no authority to require a creditor to accept payment in ad- vance, any more than one to compel such payment by the debtor. Each party has the right to stand on the letter of his contract, and perform it according to its terms. But an objection to this act, even more serious than those considered, is found in the provision for the appointment of a receiver of the property of the dissolved corporation, and the transfer of its assets to him by force of the statute, after the title thereto had become vested in its directors. It will not be claimed that the appointment of such a receiver by the court in an action against a stranger, without notice to the trustees, in the absence of the authority conferred by chapter 810, would confer upon him title to property pre- viously vested in others: Parker v. Browning, 8 Paige, 388; 35 Am. Dec. 717. We cannot see how this case differs from the one supposed. The only authority the court had for making the appointment was derived wholly from the provisions of this act, and the court was not thereby invested with any judicial authority or discretion, except that of designating the holder of the title assumed to be transferred by the act. The court has, by virtue of its general jurisdiction over trusts, authority to appoint to a vacant trusteeship, and perhaps, for cause, to remove fraudulent, dishonest, or incompetent trus- tees, and appoint others to perform the duties of the trust in order to avoid a failure thereof; but we know of no authority 714 People v. O'Brikn. [Nev7 York, for a court to appoint a receiver of property vested in trustees, without cause and without notice to them, or opportunity afforded to defend their title and possession. As was said by Judge Earl in Stuart v. Palmer, 74 N. Y. 184, 30 Am. Rep. 289: *' Due process of law requires an orderly proceeding adapted to the nature of the case, in which the citizen has an opportu- nity to be heard, and to defend, enforce, and protect his rights. A hearing and an opportunity to be heard is absolutely essen- tial. We cannot conceive of due process of law without this." And the chancellor had previously said in Verplanck v. M. Ins. Co., 2 Paige, 450: "Another fatal objection to the regu- larity of these proceedings is, that the appellants were deprived of the possession of their property without having an oppor- tunity of being heard, and without any sufficient cause for Buch a summary proceeding. By the settled practice of the court in ordinary suits, a receiver cannot be appointed, ex parte, before the defendant has had an opportunity to be heard in relation to his rights ": Devoe v. Ithaca etc. R. R. Co., 5 Paige, 521; Ferguson v. Crawford, 70 N. Y. 256; 26 Am. Rep. 589. As we have seen, the property of this corporation vested in the persons who-were its directors at the time of its dissolution. They took it as trustees for stockholders and creditors, and were not made parties to the action in which the receiver was appointed. No legislation can authorize the appointment of a receiver of the property of A in an action against C, without violating the provisions of the constitution in relation to the taking of property without due process of law. That the legis- lature might amend the provisions of the Revised Statutes in relation to the devolution of property of dissolved corporations, is indisputable, and if it had done so in the act of dissolution, or previously, it would undoubtedly have prevented the vest- ing of the property in trustees; but this it did not do, and it had no authority, by mere force of legislative enactment, to take vested property from one individual or trustee and give it to another: McLaren v. Pennington, 1 Paige, 102; Trustees Dartmouth College v. Woodward, 4 Wheat. 518. These conclusions must result in the condemnation of the scheme by which it was attempted to wind up the affairs of the Broadway Surface Railroad Company, as the provision for bringing an action by the attorney-general to wind up its affairs was incidental merely, and so intimately connected with the general plan of the scheme that it cannot be supposed it would have been enacted except in connection with the Nov. 1888.] People v. O'Brien. 716 other provisions of the act. We therefore think this law is obnoxious to the objection that it assumes to take property without due process of law, and impairs the obligation of con- tracts. The questions as to the rights of the several parties under the traffic contracts are not before us in such form as to authorize us to pass definitely upon them; but we may prop- erly, in this action, determine their validity so far as any ob- jections are made to them by the plaintiff in this action. The plaintiff has not alleged any want of power on the part of the defendant corporations to run cars over the Broadway Sur- face railroad under their respective charters, and that ques- tion must be left until the attorney-general arraigns them in a direct action for usurpation: People v. B., F., & C. I. R. R. Co., 89 N. Y. 93; Denike v. New York & R. L. & C. Co., 80 Id. 699. It is claimed that the contract with the Broadway and Seventh Avenue railroad is void because it is made with a company owning a parallel railroad. The trial court found that it was parallel to the Broadway Surface railroad. Assum- ing, for the purposes of this decision, that this was a question of fact and not of law, and that we are bound by the finding, we do not conceive that fact to be conclusive on the question. The material ground upon which the contention is based is the proviso to section 15, chapter 252, Laws of 1884, authoriz- ing companies organized thereunder to lease or transfer their rights to run upon or over any portion of their railroad tracks to any other street surface railroad company authorized to run upon such route. The proviso is, that the section should not be construed to authorize any of such companies " to lease its rights or franchises " to any other company owning and oper- ating a road parallel thereto. By these contracts, the Broadway Surface railroad acquired the right from the Broadway and Seventh Avenue railroad, and from the Twenty-third Street Railroad Company, to run cars, and make a continuous trip for a single fare, to the termination of their respective roads, over the tracks of such roads; and such roads, from their respective points of connec- tion, were thereby respectively authorized to run cars over the Broadway Surface railroad. That these rights were valuable and inured largely to the convenience and benefit of the traveling public, is not now denied. The uniform course of legislation in reference to street-rail- roads shows a policy on the part of the state to facilitate 716 People v. O'Brien. [New York, arrangements for the connection of continuous lines, and the transfer of passengers from one road to another, with the view of giving the longest service possible to the public with- out increase of fare. It can hardly be supposed that the legislature, while expressly making provisions for such fa- cilities, intended to proscribe companies connecting with another road, which happened to own a line parallel for a certain portion of its length, but which also owned other lines extending beyond the parallel portion, from the benefits to be derived from a traffic contract. It seems to us that the obvious intent of this provision was to avoid the monopoly of parallel lines, and prevent the acquisition by one railroad company of the exclusive possession and control of such lines. It therefore prohibits leases to parallel roads. This does not, and in our judgment was not intended to, preclude such com- panies from making traffic contracts for the partial use of their respective routes beyond the line of parallelism. These contracts were not in terms or in effect leases of such rights, and did not surrender possession or control of the road by its original owner. Such contracts were also authorized by chap- ter 218 of the Laws of 1839, and we do not consider that statute to have been repealed by the proviso of the act of 1884, or other legislation on the subject. There are many other interesting and important questions presented by the briefs of the able counsel for the respective parties which it might be proper to discuss, were it not that the demands made by the claims of practical litigation upon our time are so imperative as to forbid the consideration of abstract and speculative investigations. Such questions must be left to occasions when parties actually aggrieved present them in a litigation where their consideration is essential to the determination of rights. The views expressed lead to a denial of the relief sought in the action by the plaintiff. The judgments of the special and general terms should be reversed, and the complaint dismissed, with costs to the de- fendant other than the receiver. Andrews and Earl, J J., concurred in the result, upon these grounds: 1. The annulling act is constitutional and valid, and its effect was only to take the life of the corporation; 2. All the property of the corporation, including its street franchises and its mortgages and valid contracts, including what are called the traffic contracts with other railway com- panies, survived; 3. The act, chapter 271, is unconstitutional; Nov. 1888.] People v. O'Brien. 717 4. That act, and the act, chapter 310, are parts of the Bame Bcheiue adopted by the legislature for the purpose of winding up the affairs of the corporation, and disposing of and dis- tributing its property. The main features of the latter act are unconstitutional and void, and thus so much of the legis- lative scheme has failed that there is not enough left to save the whole act from condemnation; 5. As the latter act is thus wholly void, and this action is founded and depends solel}' upon it, there is no warrant for its maintenance, and there- fore the judgment should be reversed, and compaiint dismissed. Judgment accordingly. Effect of Dissohttion of Corporation, whether by Repeal of its Charter or Otherwise. — In the notes to State Bank v. State, 12 Am. Dec 239, May v. State Bank of North Carolina, 40 Id. 737, and Miners' Ditch Co. V. Zellerbach, 99 Id. 33G et seq., the subject of the dissolution of corporations has been treated at some length. In those notes it is shown that at common law, upon the dissolution or civil death of a corporation, its real estate re- verted to the original owners or their heirs, its personal property vested in the state or sovereign, and all debts due to or from it were by operation of law extinguished. And, what is more remarkable, that there have been courts in this country, even since the adoption of the constitution of the United States, which have upheld this doctrine. It is ditiicult to comprehend how any American court coulil conceive that such a doctrine was in harmony with the provisions of the federal constitution and the principles of American juris- prudence. In two of the states whose courts at an early day recognized this rule of the English common law as in force, subsequent decisions have ex- pressly overruled the earlier decisions on this point. In State Bank v. State, 1 Blackf. 267, 12 Am. Dec. 234, the supreme court of Indiana decided that the effects of a dissolution of a corporation at common law were: 1. That its lands and tenements reverted to the jierson by whom they were granted to the corpo- ration; 2. Its goods and chattels vested in the crown; 3. The debts due to and from it were extinguished. But in the case of State v. Bailey, 1 6 Ind. 46, 52, 79 Am. Dec. 405, 411, Perkins, J., in delivering the opinion of the court said: " It may be observed, further, that the supreme court of the United States in Bacon v. Rohertson, 18 How. 4S0, has held that on the dissolution of a once legal corporation, its personal and real property become assets for the pay- ment of its debts and distribution among the stockholders, contrary to the doctrine asserted in most elementary works; and in State Bank v. State, ewpra. This doctrine seems to us to be right. " In the cases of Commercial Bank of Natcliez v. CJiamhers, 8 Smedes & M. 9, and Coulter v. Robertson, 24 Miss. 278, 57 Am. Dec. 168, the high court of errors and appeals held that this rule of the English common law, except as modified by statute, was in force in the state of Mississippi. But Campbell, J., delivering the opinion of the supreme court of vn;:!; state in the case of Bank of Missumi'p'pi v. Duncan, 66 Miss. 173, said: "The injustice of the common-law rule, and its ' hostility to the more enlightened spirit of the age,' were urged upon the high court of errors and appeals by counsel, who insisted that it was condemned by reason and the principles of modern and enlightened jurisprudence; but the firm answer of the court was, that, except as modified by statute, the common- 718 People v. O'Brien. [New York, law rule on this subject was in full force and operation in this state. We have no hesitation to declare our full concurrence with the views of counsel on this point, and our dissent from the view of the high court of errors and appeals announced in the case of Coulter v. Robertson, 24 Miss. 278." And the legislature of that state has enacted that, " on the final dissolution of any corporation, either by judgment or otherwise, all its real and personal estate shall be vested in the individuals who may have been members of the corpo- ration, or stockholders, in their respective proportions, who shall hold the same as tenants in common; .... and debts due to and from the corpora- tion shall not be extinguished by its dissolution": Rev. Code Miss. 1880, sec. 1040. In the case of Fox v. Horah, 1 Ired. Eq. 358, 36 Am. Dec. 48, the supreme court of North Carolina held that the English common-law doc- trine heretofore stated was in force in that state. And this decision has been approved in Malloy v. Mallett, G Jones Eq. 345. It would appear, how- ever, that the injustice likely to result from the application of such a doc- trine has been avoided by the interposition of the courts of equity in that state, for Smith, C. J., in delivering the opinion of the court in Von Glahn v. De Rosset, 81 N. C. 4G7, 473, referring to these cases, said: *' These decisions were made and these conclusions reached after full discussion and careful con- sideration by as able jurists as ever presided in this court, and our reluctance to disturb them after so long an acquiescence by the profession could be overcome only by the clearest convictions of their error. They rest, however, upon strictly legal principles, well settled by authority, and carried to their logical results, the soundness of which, in their applications to the facts be- fore the court, we are not disposed nor is it necessary to question or contro- vert. But a remedy has been suggested, and in numerous cases applied, which may seem to conflict with the decisions of this court, by calling iuto exercise on behalf of the creditors or others interested the equitable jurisdic- tion of the court, interposing and affording relief when none is admissible at law, and for the very reason that there is no legal remedy. While it is manifest that by its dissolution the corporation ceases to exist, and can sus- tain the relations of neither creditor nor debtor towards others, and hence debts to or from it become extinct at law, it is inequitable that creditors should go uni^aid, when there are funds or debts of tlie defunct corporation which ought to be applied in payment, simply for want of some legal being intervening between the creditors and debtors of the corporation, with capacity to make the collection and adjustment. Accordingly, acting upon the maxim that trusts shall not fail for want of a trustee, and regarding the debts and other property of the dissolved corporation as the property of its creditors to the extent of their respective claims, the court of equity will stretch out its arms and gather up and collect the assets, though there be no strict legal owner to assert his right, and will appropriate and distribute them among the creditors, and subordinate thereto, among its secondary credi- tors, the stockholders themselves. The exercise of this equitable power, though not adverted to in the cases cited, is not denied, nor is it inconsistent with the principle therein declared. The remedy suggested grows out of those rigorous rules of the common law, and is the offspring of necessity to prevent a failure of justice." These are the princij^al states in which the common-law doctrine on this subject has been recognized. There are to be found in the reports of other states statements of this doctrine of the English common law, but many of them are rather a display of the writer's common-law learning than a state- ment of the legal principles to be applied in the practical determination of Nov. 1888.] People v. O'Brien. 719 the questions involved in the cases. We doubt very much if any modern American case can be found in which, by the judgment of the court, the property, either real or personal, of a corporation has been taken from its creditors and stockholders and transferred to other persons or corporations, or appropriated to the use of the state, without provision made for compen- sation. The supreme court of the United States has never recognized the existence in this country of any such rule of law as that claimed to have been the rule of the English common law in reference to the property of a dis- solved corporation. On the contrary, that tribunal has uniformly held that the property of such a corporation constitutes a trust fund for the payment of its creditors, and for distribution among its stockholders. Mr. Justice Miller, in delivering the opinion of the court in Greenwood v. Freight Co., 105 U. S. 13, 19, said: "Personal and real property, acquired by the corporation during its lawful existence, rights of contract or choses in action so acquired, and which do not in their nature depend upon the general powers conferred by the charter, are not destroyed by such a repeal; and the courts may, if the legislature does not provide somo special remedy, enforce such rights by the means within their power. The rights of the share-holders of such a cor- poration to their interest in its property are not annihilated by such a repeal, and there must remain in the courts the power to protect those rights." In the case of Curran v. Arkansas, 15 How. 304, 312, Mr. Justice Curtis, deliver- ing the opinion of the court, said: "The capital and debts of banking and other moneyed corporations constitute a trust fund and pledge for the pay- ment of creditors and stockholders, and a court of equity will lay hold of the fund, and see that it be duly collected and applied And, in our judgment, a law distributing the property of an insolvent trading or banking corporation among its stockholders, or giving it to strangers, or seizing it to the use of the state, would as clearly impair the obligation of its contracts as a law giving to the heirs the efTects of a deceased natural person, to the ex- clusion of his creditors, would impair the obligation of his contracts." Mr. Justice Story, in delivering the opinion of the court iu Terrett v. Taylor, 9 Cranch, 43, 52, said: "But that the legislature can repeal statutes creating private corporations, or confirming to them property already acquired under the faith of previous laws, and by such repeal can vest the property of such corporations exclusively in the state, or dispose of the same to such purposes as they may t^lease, without the consent or default of the corporators, we are not prepared to admit; and we think ourselves standing upon the principles of natural justice, upon the fundamental laws of every free government, upon the spirit and letter of the constitution of the United States, and upon the decisions of most respectable judicial tribunals, in resisting such a doctrine." And the same distinguished jurist, in delivering the opinion in Alumnia v.. Potomac Com-pany, 8 Pet. 281, 285, said: "The obligation of those contracts survives; and the creditors may enforce their claims against any property belonging to the corporation which has not passed into the hands of honajide purchasers; but is still held in trust for the company, or for the stockholders thereof, at the time of its dissolution, in any mode permitted by the local laws." The just and reasonable doctrines enunciated in the foregoing extracts are firmly established by the great weight of authority iu this country: Luin v. Robertson, G Wall. 277; Shields v. Ohio, 95 U. S. 324; Wood v. Dummer, 3 Mason, 308; Lolhrop v. Stedman, 13 Blatchf. I."4; Curry v. Woodward, 53 Ala. 371; Howe v. Robinson, 20 Fla. 352; UobiTison v. Lane, 19 Ga. 3.37; Mining Co. v. Mining Co., 1 10 111. 170; Powell v. Railroad Co., 42 Mo. tJ3; McCoy v. 720 People v. O'Brien. [New York, Farmer, 65 Mo. 244; National Ti-ust Co. v. Miller, 33 N. J. Eq. 155; New- foundland etc. Co. V. Schack, 40 Id. 222; Tawar v. Hale, 46 Barb. 361; Lea v. American etc. Canal Co., 3 Abb. Pr., N. S., 1; Heaih v. Barmore, 50 N. Y. 302; Hastings v. Dreio, 76 Id. 9; Moore v. Schoppert, 22 W. Va. 282; Lumber Co. V. Ward, 30 Id. 43. And it ia now provided by statute in most if not all of the states, that, upon the dissolution of a corporation, its property of every kind shall be a fund for the payment of its debts, and that the balance remaining after meeting all its legal obligations shall be r,. CEN. UN. TEL. CO, , . FALLEY. [118 Imitana, 194.] Law of Telephone. 114 Central Union Telephone Co. v. Falley. [Indiana, child was not able to help itself: State v. Behm, 72 Iowa, 533. There is no element of manslaughter where the evidence shows that the defendant was asked by the deceased if the defendant did not have a man, who was with him, under arrest, and thereupon defendant shot him and killed him, for such evidence proves murder; nor is there any element of manslaughter where the evidence shows that deceased met defendant and called him a d n horse-thief, and at the same time dropped the muzzle of a loaded rifle upon defendant's bowels; that defendant endeavored to take the rifle away from deceased, and not succeeding, shot him in the scuffle, while de- ceased was trying to shoot defendant; for such evidence, if true, proves in- nocence and self-defense: State v. Byers, 100 N. C. 512. But even though there exists no element of manslaughter in a criminal case, yet if the jury find a defendant guilty of manslaughter, it is proper to sentence him there- for: Fogg V. State, 50 Ark. 506. Central Union Telephone Co. v. Falley. fllS Indiana, 194.J Telephone, as the Word is Used in the Statutes of Indiana, means an organized apparatus or combination of instruments usually in use in transmitting as well as in receiving telephonic messages. Telephone Companies aee Common Carriers of News, and as Sitch Subject to Proper Regctlations requiring them to conduct their business in a manner conducive to the public benefit. Telephone Company mat be Compelled by Mandamits to furnish any person or company the like service which it furnishes to others, and on like terms. The Price to be Charged for the Use of Telephones and Telephonic Connections may be regulated by the legislature relative to business conducted within the state. Telephone Companies must Furnish Each Person, under the statutes of Indiana, with a telephone and with telephonic communications and connections; and cannot relieve themselves from their liability so to do by abandoning what is known as the exchange and rental system, and substituting therefor another system, under which all persons must re- sort to stations fixed by the companies where telephones are kept to ba used upon the payment of a certain toll. Pact that a Telephone Company has Extended its Lines through Different States, and is engaged in interstate commerce, will not relieve it from the operation of state statutes, upon business conducted •wholly within the state, nor justisfy its refusal of a telephone and the best telephonic connections and facilities to a person doing business in such state, on the terms prescribed by such statute. The Right to a Writ of Mandate to Compel the Fxtrnishino of Telephonic Facilities is not Taken Away by a statute imposing a penalty for refusing such facilities. The statutory remedy is cumulative merely. /. R. Coffroth, T. A. Stuarty and A. A. Thomas, for the appel- lant. Nov. 18SS.] Central Union Telephone Co. v. Falley. 115 W. D. Wallace, S. P. Baird, and F. S. Chase, for the ap- pellee. Olds, J. This is an action brought by the relatrix to com- pel the appellant, by mandate, to furnish her, at her place of business in the city of Lafayette, a telephone and telephonic connections and facilities. The petition is in one paragraph, averring the following facts: That the defendant, the Central Union Telephone Company, is a corporation duly organized under the laws of the state of Illinois; that it is now, and was at the time of the doing of the acts and things hereinafter com- plained of, and for three years last past has been, owning and operating a system of telephone lines and wires, and engaged in doing a general telephone business in the city of Lafayette, county of Tippecanoe, state of Indiana; that the relatrix, Susana B. Falley, is now, and for more than three months last past has been, carrying on business under the name and style of the "Falley Hardware Company," and the occupant of a business-room in said city, at Nos. 37 and 39 on South Third Street therein, and her business-room is within the limits of the defendant's telephone business in said city; that the relatrix did, on the twenty-fifth day of October, 1887, de- mand of the defendant that said relatrix be furnished by said defendant with a telephone and telephonic connections and facilities necessary to place the relatrix, at her said business- room, in telephonic connection with the patrons of defendant in said city; that the relatrix did then, and at the time of making said demand, tender to the defendant the sum of nine dollars, lawful currency of the United States, as a rental in advance for such telephone, telephonic connections, and facilities for the first three months' use thereof, and at the same time rela- trix offered to comply with the reasonable rules and regula- tions of said defendant not inconsistent with the laws of this state; that the defendant at the time said demand was made refused, and ever since has willfully, wrongfully, and without cause, failed and refused, and still fails and refuses, to fur- nish to said relatrix, at her said business-room, the use of such teleplione and telephonic connections and facilities; that the defendant is a common carrier of telephonic messages be- tween its patrons within the limits of said city of Lafayette; and that said relatrix, under the laws of the state of Indiana, is entitled to demand and receive from the defendant the use of the telephone and telephonic connections, facilities, and service necessary to place the relatrix, at her said business- 116 Central Union Telephone Co. v. Falley. [Indiana, room, in telephonic communication with the patrons of de- fendant in said city for the compensation of three dollars per month, as fixed and prescribed by the statute of said state, and for such compensation she is entitled to receive from the defendant the use of a telephone, and the highest and best grade of telephonic connections, facilities, and service, used and furnished by said defendant in carrying on its business in said city. Pra5'er for an alternative writ of mandate, and, on final hearing, a peremptory writ compelling defendant to furnish relatrix with such telephone and telephonic connec- tions, facilities, and service, which petition was duly verified. Alternative writ of mandate issued upon the complaint in due form, setting forth the filing of the complaint and the allega- tions of the complaint, and concluding by commanding the appellant to furnish the relatrix with a telephone and tele- phonic connections and facilities as asked, or in default thereof, to appear before the court and show eause. In answer to the writ, appellant appeared by attorneys and demurred to the writ for the cause that the writ did not state facts sufficient to constitute a cause of action, which demurrer was overruled, to which ruling of the court on the demurrer appellant excepted. Appellant then filed an answer in five paragraphs. The first is a general denial, and the other par- agraphs allege the following facts: — 2. The defendant avers that it is a corporation under the laws of Illinois; that for several years prior to the demand by plaintiff, as alleged in the complaint, defendant had been engaged in carrying on its business as a telephone company in the states of Indiana, Ohio, Illinois, and Iowa; that long before and at the time of the happening of the things com- plained of in plaintiff's complaint, defendant had, ever since had, and now has its lines and wires on its poles in the city of Lafayette, and in various cities and towns in the states aforesaid, and during all of said time and still has offices in said various cities and towns in each of said states connected with each other, and many of its offices and telephones in this state are connected by means of its wires with defend- ant's offices and instruments in the states of Ohio, Illinois, and Iowa; that defendant during all of said time was, has been, and is engaged in transmitting messages for the public for hire over its said wires, not only between towns and cities in each of said states, but also between the several states aforesaid; and during all of said time defendant has been Nov. 1888.] Central Union Telephone Co, v. Falley. 117 and is engaged in and carrying on interstate commerce; that it admits that plaintiff, claiming that, under the act of the general assembly of the state of Indiana, she was enti- tled to have a telephone in her store, and to be furnished with telephonic service under said law, tendered defendant nine dollars, and demanded to have a telephone in her store; and defendant admits that it refused to furnish relatrix with a telephone, and with telephonic connections and service, be- cause if defendant had complied with said request and demand she would thereby be furnished facilities for transmitting mes- sages from Lafayette to various places in the states of Ohio and Illinois, where defendant had and has its wires and offices, as aforesaid, for said sum of money, which was unreasonable and greatly less than defendant charges its other customers, and which, as defendant was engaged in carrying on interstate commerce, could not be required of it. 3. The third paragraph states that it, defendant, is a cor- poration under the laws of Illinois, and is engaged in carry- ing on a general telephone business in the city of Lafay- ette; that, on the second day of March, 1886, it in good faith announced to the public and it was then its intention from and after the second day of March, 1886, not to furnish telephones under a rental system, except as it did so until its contracts then in existence expired; that at said time it had a large number of contracts with its various subscribers in the city of Lafayette for the use of its telephones, by the terms of which defendant was compelled to maintain its exchange in said city, and furnish telephone facilities to said persons until the thirtieth day of September, 1886; that defendant treated all applications for telephones and telephonic service alike; that, in good faith, and without discrimination, having de- termined to cease doing a general rental telephone exchange business in this state, it refused to furnish telephones and telephonic connections under a general rental telephone ex- change system, except to those with whom it had contracts, as aforesaid; that it admits the demand and tender by relatrix and the refusal by defendant to furnish her with a telephone, because it had determined to cease, and had in fact ceased, doing a general rental telephone exchange business in said city, and so informed relatrix, and since that time has not been and is not engaged in a general telephone business under a rental system in said city; that after it had announced its determination to cease doing a general rental telephone ex- 118 Central Union Telephone Co. v. Falley. [Indiana, change business, it, in June, 1886, determined to offer to the public, and did in fact offer to the public, to furnish telephonic service and connections by means of public toll-stations at various points in said city, which system of public toll-sta- tions defendant had in operation at and long before the time of the demand by relatrix for telephone and telephonic con- nections. Defendant denies that it owns or operates a telephone ex- change under the rental system in said city of Lafayette, Indiana, or that it did at the time of the commencement of this action; that although it had formerly conducted a tele- phone exchange under the rental system, it abandoned and terminated the same as soon as its contracts in existence were terminated. The defendant avers that what is known as a telephone exchange under a rental system is, where lines and telephone instruments are furnished to subscribers for private use, under contracts limiting the use of the facilities furnished to such subscribers and their employees, for a stipulated ren- tal per month, quarter, or year, and in which the instruments furnished pass into the possession of such subscribers; the lines so furnished to subscribers center at a switching-station, where the line of any subscriber is connected with that of any other subscriber, on request, for purposes of communication authorized by the contract. In the exchange system, a set of telephone instruments, connected by a. wire with the central station, is furnished to any reputable person who desires to become a subscriber to the exchange, and signs the usual form of contract, and complies with its conditions. A public toll system of telephone service is one where the telephone company furnishes no instruments or lines for private use for a rental charge, but establishes stations of its own, for the ac- commodation of the public, in such places as may appear to it necessary to furnish telephonic facilities and connections to the public, charging a toll for each use of its instruments and lines, such toll-stations being in charge of agents selected, ap- pointed, and paid by the telephone company, the instrument at such station remaining in the possession and control of the company, through its agents; the lines from such stations extend to a switching-station, where one is connected with another upon the order of any agent, which agent collects from the user the toll charged for each and every connection, and accounts for the same to the company; that such toll system is simply an extension of the toll system which the Nov. 1888.] Central Union Telephone Co. v. Falley. 119 defendant, 6inc3 its organization for some years past, and prior to the enactment of the telephone statutes in this state, was maintaining, and ha? maintained, in various towns of this state, providing telephonic facilities between individuals residing in different towns where toll-stations are established; that at the time of the commencement of this suit it did not, does not now, nor does it intend to, discriminate against the relatrix, and is still and now is ready and willing to supply the relatrix and all applicants with such facilities as it has in said city. The paragraph further sets out in detail the manner of oper- ating and conducting the toll-station system, and alleges that all its business in the city of Lafayette, at the time of the com- mencement of this suit, and ever since, has been conducted on that system, and that it was not at that time nor since doing, and does not intend to do, a telephone business under the rental system; that notices of the rates and fees charged for the use of the telephones are posted in each station. A copy of the contract that it enters into with its agent is set out. The answer denies any discrimination against the relatrix, or any intention to discriminate, and alleges that the toll-stations are so distributed as to accommodate the general public, and that there are a number in the vicinity of the place of busi- ness of the relatrix, and denies being a common carrier, and denies being bound to rent telephones at all, or as demanded by relatrix; that defendant offered to establish a toll-station on relatrix's said premises, and she refused to allow it to be done, or to sign a contract of agency. The following is a copy of the contract set out with this paragraph of answer: — "Central Union Telephone Company — Station Contract — Central Station. "This agreement, made this day of , 188-, by and between the Central Union Telephone Company, its succes- sors or assigns, party of the first part, and , party of the second party, witnesseth: The second party agrees: 1. To permit the party of the first part to place its wires, fixtures, telephone instruments, and apparatus in and upon the prem- ises of the second party, located on street, in the of , county of , in the state of Indiana, for the pur- pose of doing a general telephone and telegraph business; that he, , said second party, is to furnish proper office- 120 Central Union Telephone Co. v. Falley. [Indiana, room, rent, light, and fuel, and necessary employees to trans- act all business of the party of the first part, at said station, in a prompt and business-like manner; to collect for all such business such regular rates as may be fixed from time to time by the party of the first part, and the same to account for to the said first party; and further, to observe and conform to such rules and regulations touching said business as may from time to time be prescribed by said first party. In considera- tion thereof, and in full payment therefor, the first party agrees to pay to the second party five per cent commission upon the receipts at said station for business with regular stations within miles of the county court-house in said , and upon receipts for business going over to extra- territorial lines of the first party. It is further mutually agreed that should the telephone or telegraph station herein referred to fail to be sufficiently remunerative, or its manage- ment by the party of the second part prove to be unsatisfac- tory to the party of the first part, the right to terminate thi8 agreement at any time is reserved by the party of the first part; but otherwise, this agreement is to be in force and efiect until the last of , 188-, and thereafter until the party of either part shall have given the party of the other part ten days' written notice of his or its desire to discontinue the same. Witness the hands of the parties," etc. 4. The fourth paragraph alleges the ceasing to do business by the defendant under the rental system and conducting the same under a toll-station system, as alleged in the third paragraph, and avers that one Edward E. Falley is a partner of relatrix, and that they are trading under the name of Fal- ley Hardware Company, and that prior to the demand by relatrix for a telephone, as set out in the complaint, defendant had a telephone in their place of business under the toll-sta- tion system, and said firm acted as the agent of defendant in the operation of the telephone; that said firm terminated said contract of agency, and the relatrix then made the demand as alleged, and defendant refused for the reasons as stated in the third paragraph of answer. The fifth paragraph is not in the record. Appellee filed separate demurrers to the second, third, fourth, and fifth paragraphs of answer for the cause that neither of said paragraphs stated facts sufficient to constitute a defense or return to said alternative writ of mandate. The first paragraph of answer was withdrawn by appellant, Nov. 1888.] Central Union Telephone Co. v. Falley. 121 and the court sustained the demurrers to the second, third, fourth, and fifth paragraphs; to which ruling of the court in sustaining the demurrers to the several paragraphs of answer appellant duly excepted, and appellant failure to amend or plead further, the court rendered judgment on said demur- rers, ordering and adjudging that a peremptory writ of mandate issue, commanding appellant to forthwith furnish and supply relatrix, at her business-rooms, Nos. 37 and 39 South Third Street, in the city of Lafayette, Indiana, with a telephone, and with the highest and best grade of telephonic connections and facilities and service used, furnished, and employed by said appellant in carrying on its said business in said city, and that might be necessary to place her, at her said place of business, in telephonic communication with all persons in said city having at their places of business or resi- dences telephones placed and maintained there by said appel- lant; and that said appellant continue to supply and furnish the same, etc., so long as appellant continued to carry on a general telephone business in said city, and so long as rela- trix shall continue to observe the reasonable rules, etc., and pay the compensation of three dollars per month. To the rendering of which judgment the appellant excepted. Ap- peal prayed and granted to this court. Errors are properly assigned on the rulings of the court. This action is brought under the acts of 1885 prescribing the duties of telephone companies, and to regulate the rental to be paid for the use of telephones, and requires a construc- tion of these acts. On April 8, 1885, the following law was enacted: — " An act prescribing certain duties of telegraph and tele- phone companies, prohibiting discrimination between patrons, providing penalties therefor, and declaring an emergency." Section 1 relates exclusively to telegraph companies. " Sec. 2. Every telephone company with wires wholly or partly within this state, and engaged in a general telephone business, shall, within the local limits of such telephone com- pany's business, supply all applicants for telephone connec- tions and facilities with such connections and facilities, without discrimination or partiality, provided such appli- cants comply, or offer to comply, with the reasonable regula- tions of the company; and no such company shall impose any conditions or restrictions upon any such applicant that are not imposed impartially upon all persons or companies ia 122 Central Union Telepiionjb: Co. v. Falley. [Indiana, like situation, nor shall such companies discriminate against any individual or company engaged in any lawful business, or between individuals or companies engaged in the same busi- ness, by requiring as a condition for furnishing such facilities that they shall not be used in the business of the applicant, or otherwise for any lawful purpose. " Sec. 3. Any person or company violating any of the pro- visions of this act shall be liable to any party aggrieved in a penalty of one hundred dollars for each offense, to be recovered in a civil action in any court of competent jurisdiction; pro- vided nothing in this act shall be construed to take away or abridge the right of such aggrieved party to appeal to a court of equity to prevent such violations or discriminations, by in- junction or otherwise": Acts of 1885, p. 151. On the 13th of April, 1885, another law was enacted, which is as follows: — " An act to regulate the rental allowed for the use of tele- phones, and fixing a penalty for its violation. "Section 1. That no individual, company, or corporation now or hereafter owning, controlling, or operating any tele- phone line in operation in this state shall be allowed to charge, collect, or receive as rental for the use of such telephones a sum exceeding three dollars per month where one telephone only is rented by one individual, company, or corporation. Where two or more telephones are rented by the same indi- vidual, company, or corporation, the rental per month for each telephone so rented shall not exceed two dollars and fifty cents per month. " Sec. 2. Where any two cities or villages are connected by wire operated or owned by any individual, company, or corporation, the price for the use of any telephone for the pur- pose of conversation between such cities or villages shall not exceed fifteen cents for the first five minutes, and for each ad- ditional five minutes no sum exceeding five cents shall be charged, collected, or received. " Sec. 3. Any owner, operator, agent, or other person, who shall charge, collect, or receive for the use of any telephone any sum in excess of the rates fixed by this act shall be deemed guilty of a public offense, and on conviction shall be fined in any sum not exceeding twenty-five dollars": Acts of 1885, p. 227. This act took effect July 22, 1885. It is insisted by appellant that the act of April 8th is simply an act prohibiting discriminations by telephone companies, Nov. 1888.] Central Union Telephone Co. v. Falley. 123 and providing a penalty for any discrimination by such com- panies, and that the act of April 13th prescribes the price which may be charged for the rental of telephones when the same are rented, and prescribes penalties for asking or taking a greater rental, and that unless they inhibit all other systems or methods of telephony other than the rental, this case was decided wrongly by the court below; and that the title to the act of April 8th declares it to be an act prohibiting discrimi- nation between patrons, and prescribing penalties therefor. It is further claimed by appellant that the answers show that appellant was not engaged in a general telephone busi- ness at Lafayette at the time of appellee's demand, but was engaged only in a limited business, and that it offered to fur- nish appellee such limited service, and has in all respects offered to treat her in the same manner as it was treating its other patrons, but that she wanted a different service than that in which appellant was engaged; in other words, she wanted appellant to discriminate in her favor, and to grant her demand would make appellant amenable to the law against discrimination. In determining this case, it is important to consider the nature of the telephone, how operated, the utility of it, and the rights of the parties in the absence of the statutes enacted by the legislature. The telephone differs from the telegraph very materially, in this, that the transmission of news, the sending and receiving of messages by telegraph, can only be done by those having a knowledge of the business, and having a knowledge of the art and science of telegraphy. To others who are not telegraphists, the telegraph would be useless. It is, therefore, only beneficial to the general public when op- erated by persons or companies keeping in their employ telegraphists to send, receive, and transmit messages, and messengers to deliver them to persons to whom addressed. A telegraphic instrument in the house or place of business of a patron of the company, connected with the wires of the com- pany, with facilities for transmitting and receiving messages by telegraph, would be of no use to a patron unless he was learned in the art of telegraphy. But the telephone is en- tirely different; a telephone, with proper connections and facilities for use, can be used by any person; it requires no experience to operate it. Webster defines it as "an instru- ment for conveying sound to a great distance." In the case of Central Union Telephone Co. v. Bradbury, 106 124 Central Union Telephone Co. v. Falley. [Indiana, Ind. 1, the word " telephone," as used in the act of April 13, 1885, was held to mean " an organized apparatus or combina- tion of instruments usually in use in transmitting as well as in receiving telephonic messages." By the use of the tele- phone, persons are enabled to converse with each other while in their respective business houses or residences a great dis- tance apart. Although of recent date, it has become of im- portant use in the transaction of business, and there is no other invention or device to supply its place. While it may not supply and take the place of the telegraph in many in- stances and for many purposes, yet in others it far surpasses it, and is and can be put to many uses for which the telegraph is unfitted, and by persons wholly unable to operate and use the telegraph. It has been held universally by the courts, considering its use and purpose, to be an instrument of com- merce and a common carrier of news, the same as the tele- graph, and by reason of being a common carrier, it is subject to proper obligations, and to conduct its business in a manner conducive to the public benefit, and to be controlled by law. To conduct the business of the telephone by public telephone stations and by sending messengers to notify persons with whom a patron of the company desires to converse in other parts of the city, to compel the person desiring to converse with others to remain at the public telephone station until the persons with whom they desire to converse can be notified and so arrange their business as to leave and go to another tele- phone station and hold the conversation, renders the use of the telephone almost worthless. It is by reason of the fact that business men can have them in their offices and resi- dences, and, without leaving their homes or their places of business, call up another at a great distance with whom they have important business, and converse without the loss of valuable time on the part of either, that the telephone is par- ticularly valuable as an instrument of commerce. It being an instrument of commerce, and persons or corporations en- gaged in the general telephone business being common car- riers of news, what are the rights of the public, independent of the statute, as regards discrimination? Any person or corporation engaged in telephone business, operating telephone lines, furnishing telephonic connections, facilities, and service to business houses, persons, and compa- nies, and discriminating against any person or company, can be compelled by mandate, on the petition of such person or Nov. 1888.] Central Union Telephone Co. v. Falley. 125 company discriminated against, to furnish to the petitioner a like service as furnished to others. This has been held in the cases oi State v. NebrasJca Telephone Co., 17 Neb. 126; 52 Am. Rep. 404; Vincent v. Chicago etc. R. R. Co., 49 111. 33; People V. Manhattan Gas Light Co., 45 Barb. 136. And the principle held in these cases is in accordance with the well-settled rules governing common carriers. It is not controverted in the argument by counsel for the appellant that the legislature had the right to regulate the price to be charged and collected for the use of telephones and telephonic connections, facilities, and service; and even if it were controverted, it is well settled by authorities that the legislature has the right to do so, relative to the business conducted within the state: Hockett v. State, 105 Ind. 250; 55 Am. Rep. 201; Central U. Tel. Co. v. Bradbury, supra, and authorities cited in those cases; Johnson v. State, 113 Ind. 143; Munn V. Illinois, 94 U. S. 113; Ouachita Packet Co. v. Aiken, 121 Id. 144; Patterson v. Kentucky, 97 Id. 501. The telephone company being liable for discriminating be- tween persons and companies, and the person or company dis- criminated against having a remedy without the enactment of section 2 of the act of April 8, 1885, there was no occasion for the statute on that account alone. Then what was the purpose and object of the two statutes set out? It should be presumed the legislature had some purpose and object. If section 2 of the act of April 8th was only to prevent discrimination, and section 1 of the act of April 13th only to fix the price for the rental of telephones when the tele- phone company was operating under a rental system, then all that the companies operating telephone lines would have to do would be to cease to operate their business under a rental system, and charge so much for each conversation, or, as they have done in this case, establish public telephone stations, and then charge for each separate use of the telephone, and they might thereby derive a greater income for the use of the telephone, and render to the public much inferior service, and yet avoid liability under the statute. We do not think such was the object or purpose of the statute, or that such construc- tion can be placed upon it. It was the evident intention of the legislature that where a telephone company was doing a general telephone business in this state, any person within the local limits of its business in a town or city should have the right to demand and receive 126 Central Union Telephone Co. v. Falley. [Indiana, a telephone and telephonic connections, facilities, and service, the best in use by such company, and should only be liable to be charged and to pay three dollars per month therefor. With this construction only are the statutes of any benefit to the citizens of the state. The legislature fixed what, in the judgment of that body, was the maximum price that should be charged for the service, and placed it in the power of each individual and gave him the right to demand and receive such service within the limits of the company's business, in any town or city where such company is doing a general tele- phone business. It is insisted, as it appears by the answer that the lines of the appellant extended through the states of Ohio, Indiana, and Illinois, that appellant was engaged in interstate com- merce; that it was a common carrier of news between the states, and that therefore such statutes are an interference with interstate commerce. We cannot agree with that theory. These statutes simply provide that telephone companies shall provide persons within this state with certain service, and for such service shall receive a certain compensation. They only seek to control the service within this state. If section 2 of the act of April 13th, providing for the price to be paid for connections between two cities or villages, should be construed to apply to two cities or villages one of which was without this state, then there would be some question as to the valid- ity of that section, or the power of the legislature to control the price to be paid for a message or the use of the telephone for communicating with a person beyond the limits of the state; but that question is not involved in this case, as one section of a statute may be valid and another not. Tele- graph companies stand upon a difierent footing, in some respects, from that of telephone companies; they have been granted some rights and privileges by acts of Congress which cannot be abridged or interfered with. In the case of Western Union Tel. Co. v. Pendleton, 122 U. S. 847, referred to by coun- sel for appellant, it was held that the act was void in so far as it sought to govern the delivery of messages outside of the state: State v. Newton, 59 Ind. 173. It is also contended by counsel for appellant that as the statute provides a remedy other than that by mandate for a violation of the statute, the writ of mandate is not a proper remedy. The right to have the telephone and telephonic connections Nov. 1888.] Central Union Telephone Co. v. Falley. 127 and facilities is a right given by the statutes. It is a legal right, which may be enforced by mandate. No remedy is adequate which does not give the person that to which he is entitled by law; the penalty of one hundred dollars is cumu- lative, and does not abridge or take away the right to a writ of mandate. The statute itself provides that the act shall not be 60 construed as to " abridge the right of such aggrieved party to appeal to a court of equity to prevent such violations or discriminations, by injunction or otherwise." The statute should be so construed as that the penalty shall not take away any of the other remedies the aggrieved person may have, one of which remedies is by writ of mandate. This court held, in the case of Central Union Tel. Co. v. Bradbury, supra, that Bradbury was entitled to his remedy by writ of mandate compelling the company to furnish him with a telephone and telephonic service. The right to a writ of mandate requiring telephone companies to furnish telephonic service to persons entitled thereto has been held in State v. Telephone Co., 36 Ohio St. 296; 88 Am. Rep. 583; also by the supreme court of Pennsylvania, in Bell Telephone Co. v. Commonwealth, 59 Am. Rep. '172. In this case the complaint states a good cause of action under the statutes. The second paragraph of the answer alleges the conducting of the defendant's business in the several states, and that it is engaged in interstate commerce, and that to furnish rela- trix with an instrument and connection with its lines would put her in connection with its ofBces outside of the state, and furnish her facilities for transmitting messages from Lafayette to various places in Ohio and Illinois, where the appellant has its wires and ofBces. This paragraph does not controvert the facts alleged in the complaint, that appellant, at the time of the acts and things complained of, etc., was owning and oper- ating a system of telephone lines and wires, and engaged in doing a general telephone business in the city of Lafayette, and that the place of business of the relatrix is within the limits of the appellant's telephone business in said city; and it must also be remembered that the demand, as alleged in the complaint, was only that she be furnished with a tele- phone and telephonic connections and facilities necessary to place her, at her said store, in telephonic communication with patrons of appellant in said city. The statutes contemplate two kinds of service, and different compensations for each; one, connections and facilities for conversing with patrons of 128 Central Union Telephone Co. v. Falley. [Indiana, the company within any city or town where an exchange is maintained; the other, for conversing between two towns or cities. The other paragraphs show the appellant to have been en- gaged in a general telephone business in said city, operating the same under a toll system at the time of the demand and tender by relatrix, and do not controvert the allegations in complaint that the plaintiff's place of business is within the local limits of appellant's business in said city. Neither of the paragraphs of answer is sufficient. Under the construction we have given the statutes, there was no error committed by the court below in overruling the demurrer to the complaint, sustaining the demurrers to the answers, or in granting the writ of mandate. The judgment is affirmed, with costs. Law of the Telephone. — Probably no invention or implement which has come into so general use as the telephone has, in the same period of time, ever occasioned so small an amount of litigation. Even such litigation as has arisen has been mainly devoted to the determination of questions of a public character, and has rarely been carried on by private individuals as- Bertiag or defending what they believed to be their private rights. In con- sidering such questions as have been presented to them, the courts have almost uniformly regarded the telephone and the public and private rights and duties growing out of it as similar in character and extent to the tele- graph, and the public and private rights growing out of its invention and general use. Thus in England, the term "telegram" has been adjudged to include a conversation by means of a telephone, and the telephone business to be within the statute giving to the postmaster-general the exclusive con- trol of the transmission of messages by telegraph: Attorney -General v. Edison Telephone Co., L. R. 6 Q. B. D. 244. In Iowa, telephone companies are classed with telegraph companies, for the purpose of determining the jurisdiction of justices of the peace over them: Franklin v. 17'. W. Telephone Co., 69 Iowa, 97; and of deciding where and how they and their property shall be assessed: Iowa Union Telephone Co. v. Board of Equalization, 67 Id. 250. So in dis- cusssing whether telephone corporations were entitled to use the pubUo streets, or to exercise the right of eminent domain, and whether they were subject to legislative control for the purpose of preventing unreasonable dis- criminations and the imposition of exorbitant charges, the courts have gen- erally proceeded upon the assumption that the rights, duties, and obligations of such corporations are analogous to those formed for the purpose of carry- ing on the business of transmitting messages and news by the use of the telegraph. In Wisconsin, the statute regarding corporations provided, among other things, that corporations might be formed "to build and operate telegraph lines, or conduct the business of telegraphing, and to conduct and maintain such. lines with all necessary appurtenances." It was held that this statute authorized the incorporation of a telephone company. The court, in consid- ering the question, said: "It is urged that the powers thus expressly given Nov. 1888.] Central Union Telephone Co, v. Falley. 129 to form and organize corporations for the purpose of building and operating telegraph lines, or conducting the business of telegraphing in any way, in- cludes the power of forming and organizing corporations for the purpose of building and operating telephone lines, or conducting the business of tele- phoning in any way. Of course there is a distinction between the two classes of business; but in almost every respect they are very similar, if not identical. Each of them must erect its poles or posts, and upon the tops of thciii attach its lines of wire from point to point. Each must almost necessarily enter upon, along, or across public roads, highways, streams, bodies of water, and upon the lands of individuals, for the purposes mentioned. In these re- spects, they seem to be identical. One may require more lines of wire than the other; but we are not aware of any other distinction outside of their offices or places of operation distinguishable to the naked eye. It is these indistinguishable features alone that the city of Oshkosh had to deal with. Possibly there may be a marked distinction in the varying intensity of the electric currents in the one case, and in the other at the point of transmis- sion or receiving, or even at the points along the line; but such diflference, if it exists, hardly concerns the question here presented. As for the difiference in the mode of communication by means of telegraphic and telephonic appa- ratus, see Attorney-General\ . Edison Telephone Co., L. R. 6 Q. B. D. 244. In that case, Mr. Stephen, one of the judges of the exchequer division of the high court of justice, who, unlike most American judges, seems to have sufficient time not only to satisfy his own curiosity, but the curiosity of all the curious, has given a very lengthy and definite discussion of that subject. In that case, the court conclude that Edison's telephone was a telegraph within the meaning of the telegraph acts, although the telephone was not invented nor contemplated when those acts were passed. It is there said, in effect, that the mere ' fact — if it is a fact — that sound itself is transmitted by the tele- phone establishes ' no material distinction between telephonic and telegraphic communication, as the transmission, if it takes place, is performed by a wire acted on by electricity. It is there further said that, ' of course, no one supposes that the legislature intended to refer specifically to telephones many years before they were invented; but it is highly probable that they would, and it seems to us clear that they actually did, use language embracing fur- ther discoveries as to the use of electricity for the purpose of conveying intel- ligence.' It is upon this theory of progressive construction that the powers conferred upon Congress to regulate commerce, and to establish post-offices and post-roads, have been held not confined to the instrumentalities of com- merce, or of the postal service, known when the constitution was adopte(^ but keep pace with the progress and developments of the country, and adapt themselves to the new discoveries and inventions which have been brought into requisition since the constitution was adopted, and hence include car- riage by steamboats and railways, and the transmission of communications by telegraph: Pensacola Tel. Co. v. Western Union Tel. Co., 9G U. S. I. If there remains any doubts as to the power given to charter a telegraph com- pany being sufficiently broad to include a telephone company, then it must be dispelled by the general clause above quoted from section 1771, to wit, 'for any lawful business or purpose whatever, except,' etc. ; for by a well- settled rule of construction, these general words extend to things of a kindred nature to tliosc specifically authorized by the section, and hence to whatever is of a kindred nature to telegraphing, which most certainly includes tele- phoning. Noscilur a sociis. We must conclude that, under the statute, it was competent to form, organize, and incorporate a telephone company pea* Am. St. Ekp., Vol. X. — 9 130 Central Union Telephone Co. v. Falley. [Indiana, 8essing like powers with those given to telegraph companses ": Wisconsin Telephone Co. v. City of Oshkosh, 02 Wis. 3G. The statute of Pennsylvania controlling telegraphic corporations enacted that "the said telegraphic corporations shall receive dispatches from and for other telegraph lines and corporations, and from and for any individual; and on payment of their usual charges to individuals for transmitting dispatches as established by the rates and regulations of such telegraph line, transmit the same with impartiality and good faith, under penalty of one hundred dollars for every neglect or refusal so to do." On an application being made to the court of common pleas of the city of Philadelphia by the common- wealth on the relation of the Baltimore and Ohio Telegraph Company for a ■writ of mandate to compel the Bell Telephone Company to give the relator a telephone and the necessary wires, the court, by Arnold, J., in Bell Tele- •glione Co. v. CommonweaWi exrel. Baltimore <& 0. T. Co., 35 Alb. L. J. 4, re- ported also in note to Chesapeake & P. Tel. Co. v. B. db 0. Tel. Co., 59 Am. Rep. 172, which was adopted by the supreme court of the state, April 19, 1886, in disposing of the appeal in the same cause, determinecl that tele- phone companies were controlled by the provisions of this statute, and there- fore could not withhold from one person or corporation the privileges which it conceded to another. Among the obvious powers of telephone corporations is that of imposing reasonable rules for the transaction of their business, and for the observance of those using their telephones. As these implements are intended for gen- eral use by persons of all classes and of both sexes, those who use them may be required to conduct their conversations in a becoming manner, free from ob- scenity or profanity; and for a violation of this requirement may be denied the further use of the telephone: PujJi v. City & 8. Telephone Co., 9 Cincin- nati Law Bulletin, 104; 27 Alb. L. J. 162. But no regulation will be tol- erated which prevents the public from having a fair and reasonable use of tlio telephone and telephonic exchanges, or denies to any one the rights secured to him by any statute, or requires him to conduct his business with particular persons or agencies. Hence a regulation is unreasonable and invalid if it prohibits subscribers from calling a messenger otherwise than through the central ofHce: People v. Hudson River Telephone Co., 19 Abb. N. C. 46G; 10 N. Y. Sup. Ct. 282. A telephone corporation is, for many purposes, regarded as a common car- rier; and it may, doubtless, like other common carriers, be authorized to exer- cise the power of eminent domain for the purpose of acquiring the right to maintain its poles, wires, and other necessary appliances upon and over pri ■ vate property: State v. Am. d- E. C. N. Co., 43 N. J. L. 381; N. 0. Tel. Co. V. Southern Tel. Co., 53 Ala. 211; Pierce v. Drew, 13G Mass. 75; 49 Am. Rep. 7. A more serious question has regard to what it may be authorized to do in and upon the public highways, without exercising the right of eminent domain, and without obtaining the assent of the adjacent proprietors. If the fee of a street or other highway is in the proprietor of the adjacent lands, sub- ject to the easement which has been previously acquired in such street f'>r public use, and the legislature undertakes to sanction the use of such street by a telephone corporation, the statute is clearly invalid unless the new use may fairly be regarded as one of the uses for which the street has been already appropriated, and not as a new appropriation or an additional bur- den. The public cannot be expected to continue using its streets in precisely the same manner or for the same purposes as when they were first dedi- cated to public use. Nor is the use which may be made of a street confined Nov. 1888.] Central Union Telephone Co. v. Falley. 131 to the passage of persons, animals, and vehicles over it. Sewers and gas and water pipes may be laid beneath its surface; and it may generally, under au- thority of the state or of the municipality', be devoted "to all such uses aa are conducive to the public good, and do not interfere with its complete and unrestricted use as a high^vay ": Ferrenhach v. Turner, 86 Mo, 426; 56 Am. Rep. 437. The passing and repassing along public highways must neces- sarily be diminished by the use of the telephone, and hence the burden of the public use is diminished rather than increased by the existence of tele- phonic facilities. It is true that one of the objects of the erection of poles, and the like, for the carrying on of the business of telephoning or telegraph- ing, is to make profit for private persons or corporations. This, however, cannot be made the test of a public use without excluding from the streets all private business. While the question is not yet free from dispute and doubt, a slight preponderance of the decisions sustains the validity of those statutes and municipal ordinances which authorize telephone and telegraph corporations to erect their poles in and to stretch their wires across the pub- lic highways without making compensation to adjacent proprietors: Irwin v. Oreat Southern Telephone Co., 37 La. Ann. 63; Pierce v. Drew, 136 Mass. 75; 49 Am. Rep. 7; Julia Building Asa'n v. Bell Telephone Co., 88 Mo. 258; 57 Am. Rep. 398; St. Louis v. Bell Telephone Co., 96 Mo. 628; 9 Am. St. Rep. 370; contra. Board of Trade Telegraph Co. v. Barnett, 107 111. 507; 47 Am. Rep. 453; Willis v. Erie T. & T Co., 37 Minn. 347, in which the court was evenly divided on the question. The right to use the street for the purpose of erecting and maintaining poles and wires for use in connection with telephones does not exist unless conferred by statute or ordinance; and even when granted by statute, will be prohibited by injunction unless the right is obtained in the manner pointed out by such statute: Broome v. Neio Jersey Telephone Co., 42 N. J. Eq. 141; New York and New Jersey Telephone Co. v. Township of East Orange, 42 Id. 490. The location and maintenance of telephone poles, when authorized by law, should be in such a mode as not to needlessly incommode the public, and for any negligence from which a person in the use of the highway is in- jured, the telephone company is answerable in damages: Sheffield v. Central Union Telephone Co., 36 Fed. Rep. 164; Pennsylvania Telephone Co. v. Var- man, Sup. Ct. of Penn. A grant of the right to locate telephone poles in the streets, and to stretch wires thereon, does not include an authorization to enter upon private property, even for the purpose of cutting off the limbs of trees which overhang the street, if the line might have been located so as not to interfere at all with the trees, with but little additional expense: Mcmphia Bell Telephone Co. v. Hunt, 16 Lea, 456; 57 Am. Rep. 237. The duties of telephone corporations to the public are very similar to those of common carriers and telegraph corporations. They are obliged to extend their facilities to all persons who are willing to comply with reasonable reg- ulations, and to make such compensation as is exacted of others in like cir- cumstances. The right to discriminate between persons and corporations, and to grant their facilities to some while they were denied to others, was attempted to be exercised in many instances, and was not relinquished until after the most persistent litigation. But from the very first, the courts in- terposed by writs of mandate in favor of persons to whom the use of the telephone had been denied: State v. Bell Telephone Co., 10 Cent. L. J. 438; 11 Cent. L. J. 359; 22 Alb. L. J. 364; State v. Bell TelepJione Co., 23 Fed. Rep. 539; Bell Telephone Co, v. Commonwealth^ 35 Alb. L. J. 4; also reported 132 Central Union Telephone Co. v. Falley. [Indiana, in note to 59 Am. Rep. 172; Louisville Transfer Co. v. American District Tele- phone Co., 14 Chic. L. N. 15; 24 Alb. L. J. 283. About the time that telephones came into general use, the Western Union Telegraph Company secured a contract with the American Bell Telephone Com- pany, the result of which was that the latter, in granting to other corporations and companies the right to use the telephone, and to establish telephonic ex- changes, stipulated that they should not be used in receiving or delivering messages which had been sent over the wires of telegraph corporations other than the Western Union Telegraph Company. This stipulation was urged in many cases by local telephone companies as a reason why a writ of man- date should not issue to compel them to grant to telegraph companies other than the Western Union the telephonic facilities accorded to other corpora- tions and individuals. In one state only was the defense sustained. The reasoning of the court in that state was as follows: "A statute of this state provides, in effect, that every telephonic company shall, with impartiality, permit persons and corporations to transmit speech through its wires by in- struments. TTie utmost reach of this is to require of them to make an im- partial use of such rights or privileges as they possess. If their system is carried into effect by instruments which are not the subjects of a patent, and they so conduct their business as to become common carriers of speech, they are to serve applicants with impartiality; or if it is carried into effect by patented instruments, of which patents they are the owners, the same result is to follow; but if it is carried into effect by instruments which are the sub- jects of a patent which is the property of a resident of another state, and from which they are able to purchase, not the instruments themselves, but only a right to a temporary use thereof, subject to conditions and limitations, they are only required to give impartially to applicants the use of the full measure of right they have been able to procure. The statute cannot confer power upon courts, either to order them to buy that which cannot be bought, or to use the property of another without his consent. The legislature may deny the use of highways for the erection of poles for the support of wires to any corporation whicli is not the full owner of telephonic patents by which its system is operated, and which is not able to give a perfectly unrestrained and impartial use of all their capabilities to applicants, or to any corporation which proposes to use telephonic patents under any restrictions whatever imposed by the owner, and so embarrass and hinder as to induce theiu to become full owners of such patents or retire from the service of the public. Legislatures, for reasons of public policy, in many ways put limitations upon absolute owners in the use of their property, but they cannot transfer the property of one to another without compensation, even for the public good": American Rapid Tel. Co. v. Connecticut Telephone Co., 49 Conn. 352; 44 Am. Rep. 237. Before this decis'cn had been pronounced, the same question had been de- termined in other j urisdictions adversely to the right to discriminate, even when founded upon reservations in the contract by which the defendant had secured the right to use the telephone: State o/ Missouri v. Bell Telephone Co., 23 Fed. Rep. 539; 10 Cent. L. J. 438. In Ohio, it was declared by the highest court that the defendant corporation, after being incorporated under a statute requiring it to serve all persons impartially and in good faith, could not shield itself "by any self-imposed restrictions contained in the stipulations of a contract with the American Bell Telephone Company"; that letters patent did not authorize the patentee to vend or use his inven- tion "in a manner which but for the letters patent would be unlawful"; Nov. 1888.J Central Union Telephone Co. v. Falley. 133 and that " the use of tangible property which comes into existence by the application of the discovery is not beyond the control of state legislation simply because the patentee acquires a monopoly in his discovery "; that "the property of an inventor in a patented machine, like all other property, remains subject to the paramount claims of society, and the manner of its use may be controlled and regulated by state laws, when the public wel- fare requires it": State v. Telephone Co., 36 Ohio St. 290; 38 Am. Rep. 583. Like views were reaflSrmed and enforced in Chesapeake etc. Telephone Co. v. Baltimore etc. Tel. Co., 66 Md. 399; 59 Am, Rep. 107; 35 Alb. L. J. 271; Louisville V. American District Tel. Co., 24 Id. 283; Hochett v. State, 105 Ind. 250; 55 Am. Rep. 201; 25 Am. Law Reg. 325; Bell Telephone Co. v. Commomvealth, 59 Am. Rep. 172; State v. Nebraska Telephone Co., 17 Neb. 126; 52 Am. Rep. 404. In the case last named, the right of the applicant to have a telephone was not grounded upon any special statute of the state against discrimination; nor was any special contract between the defendant and the American Bell telephone urged in defense. The applicant was an attorney between whom and the local company a difficulty had arisen on account of its not furnishing him with a list of subscribers, and his conse- quent refusal to pay for his telephone during the period when such list was not to be had. The telephone was then taken away from his office, and ho was refused another, on the claim that his conduct had forfeited his right to it. The court was of the opinion that if anything was due for the former use of a telephone, the company's remedy for its collection by an ordinary action was adequate, and therefore declined to consider that question. In affirm- ing the applicant's absolute right to be furnished telephonic connections and facilities on the same terms as others, the court said: "It is said by re- spondent that it has public telephone stations in Lincoln, some of which are near relator's office, and' that he is entitled to and may use such telephone to its full extent by coming there; that, like the telegraph, it is bound to send the messages of relator, but it can as well do it from these public sta- tions; that it is willing to do so, and that is all that can be required of it. Were it true that respondent had not undertaken to supply a public demand beyond that undertaken by the telegraph, then its obligations would extend no further. But as the telegraph has undertaken to the public to send dispatches from its offices, so the telephone has undertaken with the public to send messages from its instruments, one of which it proposes to supply to each person or interest requiring it, if conditions are reasonably favorable. This is tlie basis upon which it proposes to operate the demand which it pro- poses to supply. It has so assumed and undertaken to the public. That the telephone, by the necessities of commerce and public use, has become a public servant, a factor in the commerce of the nation and of a great portion of the civilized world, cannot be questioned. It is, to all intents and pur- poses, a part of the telegraphic system of the country, and in so far as it has been introduced for public use, and has been undertaken by the respondent, no far should the respondent be held to the same obligation as the telegraph and other public servants. It has assumed the responsibilities of a common carrier of news. Its wires and poles line our public streets and thorough- faros. It has, and must Ije held to have, taken its place by the side of the telegraph as common carrier. The views herein expressed are not new. Similar questions have arisen in and have been frequently discussed and decided by the courts; and no statute has been deemed necessary to aid the courts in holding that when a person or company undertakes to supply a demand which ia 'affected with a public interest,' it must supply all alike 134 Central Union Telephone Co. v. Falley. [Indiana, who are like situated, and not discriminate in favor of or against any. This reasoning is not met by saying that the rules laid laid down by the courts as applicable to railroads, express companies, telegraphs, and other older ser- vants of the public do not apply to telephones, for the reason that they are of recent invention, and were not thought of at the time the decisions were made, and hence are not affected by them, and can only be reached by legis- lation. The principles established and declared by the courts, and which were and are demanded by the highest material interests of the country, are not confined to the instrumentalities of commerce, nor to the particular kind of service known or in use at the time when these principles were enunci- ated, but they keep pace with the progress of the country, and adapt them- selves to the new developments of time and circumstances. They extend from the horse with its rider to the stage-coach, and from the sailing vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, and from the telegraph to the telephone, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the govern- ment of the business to which they relate, at all times and under all circum- stances. " A question which has not yet been necessarily determined, except in ono state, is, whether the general legislative control to which telephone corpora- tions must submit includes the supervision by the legislature of the charges which may be exacted for the use of their telephonic facilities. If the state possesses an arbitrary power in this respect, it is clear that the grant of let- ters patent may be substantially annulled by statutes which withhold from inventors the profits for the better realization of which their patents were obtained. In Indiana, a statute enacted in 1885 fixed the maximum rental of telephones in tliat state at three dollars per month. All attempts at re- sisting or evading this enactment have so far proved futile. The general constitutionality of the statute was affirmed in Hockett v. State, 105 Ind. 250; 55 Am. Rep. 201. It appeared in that case that the company had sought to evade the statute by making separate charges for the several instruments, all of which were necessary to be used with the telephone. But the court de- cided that in the term " telephone " was included the entire apparatus *' ordi- narily used in the transmission as well as the reception of telephonic mes- sages." These views were reasserted by the same court in Central Union Telephone Co. v. Bradbury, 106 Ind. 1. The next attempted evasion of the statute was the imposition of a charge for the use of tlie telephone by non- subscribers, which, with the amount charged the subscriber for his use of it by and for himself, exceeded the amount allowed by law. As the charge for non -subscribers was collected irrespective of the amount of use by such non- subscribers, and whether any non-subscriber used the telephone or not, it was treated as a violation of the statute, and as justifying the conviction and punishment of the offender: Johnson v. State, 113 Ind. 143. The latest method of escape from the statute is shown in the principal case, and con- sisted of the refusal to place telephones in the offices of subscribers, and re- quiring them to resort to the offices established by the telephone company for the purpose of sending or receiving messages. The right to do this was also denied, and the duty of the company to furnish telephonic facilities in the usual manner enforced. The result of the decisions up to the present time is, that to avoid legislative control the companies must withdraw their instruments from the state, in which event it has been held they might en- Nov. 1888.] Central Union Telephone Co. v. Falley. 135 joia, as an infringement of the patent, any attempted use of them: American Co. V. Cushman, .36 Fed. Rep. 488. The right of a city to regulate the charge for the use of telephones has been denied. The right was claimed to have been conferred by that part of the city charter which authorized the city to regulate the use of its streets, and "to license, tax, and regulate telegraph companies or corporations, and all other business, trades, avocations, or prof essions whatever "; and "finally, to pass all such ordinances, not inconsistent with the provisions of the char- ter or the law of the state, as may be expedient in maintaining the peace, good government, health, and welfare of the city, its trade, commerce, and manufactures, and to enforce the same ": City of St. Louis v. Bell Telephone Co., 96 Mo. 628; 9 Am. St. Rep. 370. As telephones are used by all classes of persons for business purposes, some legal effect must be given to conversations held over them; and to the existence of this legal effect it is essential that such conversations should, at least under some circumstances, be receivable in evidence. It is true that many objections to their reception exist. The person talking cannot be seen, nor is there any method of authenticating and preserving for future reference what he says. Yet where both parties resort to this method of communication, they must intend that some legal result shall follow. If they are not willing to assume the risks incident to the mode, they should decline to resort to it, or to permit others to communicate with them in that way. If the person receiving the message can recognize the voice of the sender, or testifies that he recognized it, there is but little objection to his being permitted to state the contents of the communication thus received: People v. Ward, 3 N. Y. Crim. R. 483, 511. If the voice is not recognized, but the conversation is held through a telephone kept in a business house or office, it is also admissible. "The courts of justice do not ignore the great improvement in the means of intercommunication which the telephone has made. Its nature, operation, and ordinary uses are facts of general scientific knowledge, of which the courts will take judicial notice as parts of public contemporary history. Wlien a person places himself in connection with the telephone system through an instrument in his office, he thereby invites communication, in relation to his business, through that channel. Conver- satious so held are as admissible in evidence as personal interviews by a cus- tomer with an unknown clerk in charge of an ordinary shop would be in relation to the business there carried on. The fact that the voice at the telephone was not identified does not render the conversation inadmissible ": Wolfe V. Missouri Pacific R'y Co., 97 Mo. 473; post, p. 331. The one to whom the message is sent may not be in direct communication with the telephone. The conversation may be conducted by an operator in charge of a public telephone station; in which event, as the message does not personally concern the operator, he will rarely remember its contents. In such a case it has been held, by a divided court, that the conversation was admissible in evi- dence, and that the person receiving the message may state its contents as detailed to him by the operator at the time, when it appears from other evidence that the person against whom the evidence was offered did in fact talk over the wire at that time. " When one is using the telephone, if he knows that he is talking to the operator, he also knows that he is making him an agent to repeat what he is saying to another party; and in such a case, certainly the statements of the operator are competent, being the declarations of the agent, and made during the progress of the transaction. If he is ignorant whether he is talking to the person with whom he wishes I 136 Pennsylvania Co. v. Stegemeier. [Indiana, to communicate or with the operator, or even any third party, yet he does it with the expectation and intention on his part that in case he is not talk- ing with the one for whom the information is intended, that it will be com- municated to that person; and he thereby makes the person receiving it his agent to communicate what he may have said. This should certainly be the rule as to an operator, because a person using a telephone knows that there is one at each station whose business it is to so act; and we think that the necessities of a growing business require this rule, and that it is sanctioned by the known rules of evidence ": Sullivan v. Kuykendall, 82 Ky. 483; 56 Am. Rep. 901. In Banning v. Banning, Sup. Ct. Cal., September, 1889, an acknowledg- ment of a deed by a married woman was sought to be avoided on the ground that she was at the time the notary took such acknowledgment three miles distant from him, and communicated with him and he with her by telephone only. But the court disposed of the question as follows: "It is admitted that the certificate of the- notary is in due form; and it is not alleged or pretended by the defendant that she did not voluntarily sign and deliver the deeds; nor that she did not voluntarily and without the hearing of her hus- band acknowledge the execution of them through the telephone, after having been informed by the notary of their contents; nor that any deception was practiced to induce her to execute the deeds; nor even that the plaintiffs had notice of the manner in which it is alleged that she acknowledged the execu- tion through the telephone. These particulars are not stated for the purpose of maintaining that, under any circumstances, an acknowledgment of a deed may be taken through a telephone, but for the sole purpose of showing that there is no pretense of fraud, duress, or mistake." The court then proceeded to consider the authorities bearing upon the question whether a certificate of the acknowledgment of a deed by a married woman can be contradicted col- laterally; and having reached the conclusion that such certificate could not be successfully assailed otherwise than by proving fraud, sustained the deed and acknowledgment in question. Hence while the court expressly with- held its opinion upon the question whether an acknowledgment by telephone is good "under any circumstances," the inevitable logical result of its de- cision is, that such acknowledgment, followed by a certificate in due form, is good under all circumstances, unless vitiated by fraud. Pennsylvania Company v. Stegemeier. [118 Indiana, 305.J Demttrrer to Plaintiff's Evidence Admits the truth of all the evidence adduced by him, and all inferences that may be reasonably drawn there- from, and withdraws from consideration all favorable evidence except upon points where there was no conflict. Ordinance of a Municipal Corporation Requiring a Railway Cor- poration TO Keep a Flag-man to give warning to travelers at the crossing of its railroad track on a designated street, and to have gates erected at such crossing, is a valid local law. Contributory Negligence in Crossing Railway — What Exonerates Person Injured from Charge of. — One who reaches a railway cross- ing in a city at which the railway company is required by municipal AMERICAN STATE REPORTS. \'(>i . XI, I'\r;RS :?or-3-2(1. BEDKLL :•. LUvRRING. I 77 C V] IKORM A, .I'lti. I . Negotiable Instruments. Dec. 18S8.] Bedell v. Herring. 307 Adverse Possessiox Sufftciext to Defeat a Rioht of Action of the Holder of the Legal Title must be hostile in its inception, and be con- tinued as such, without interruption, for the statutory period. It must be actual, visible, exclusive, acquired and retained under claim of title incon- sistent with that of the true owner; but it need not be under a rightful claim, nor even under a muniment of title: Illinois Central li. R. Co. v. Hourj/don, 126 111. 23,3; 9 Am. St. Rep. 581, and note 586. Title to realty- acquired by open, uninterrupted, exclusive, and adverse possession, under claim of ownership, for more than twentj' years, will defeat an action in ejectment by the holder of the paper title: liiijg'i v. Riley, 113 Ind. 208. Where plaintiff, to maintain his action to recover a tract of land, relies upon seven years' adverse possession under color of title, he must show that such possession was continuous and xinbroken for the full period prescribed by the statute of limitations: Scolt v. Mills, 49 Ark. 266. Prior to the amend- ment of 1878 to section 325 of the Code of Civil Procedure, one who, in good faith, entered into possession of real estate, claiming title thereto under a void tax deed, and under such claim of title, openly, notoriously, and visi- bly maintained the possession thereof for a sufficient length of time adversely as against the whole world, including the owner of the paper title, acquired title to the land by adverse possession: Reynolds v. Lincoln, 73 Cal. 191. And whether one claiming title by adverse occupancy had that kind of con- tinuous, notorious, and hostile possession of the land in dispute as would give title under the statute of limitations, is a question of fact for the jury: Mason V. Ammon, 117 Pa. St. 127. [In Bank.] Bedell v. Herring. [77 California, 572.] Promissory Note — Maker Signing Note without Knowing its Co:^- tents — Bona Fide Indorsee for Value and before Maturity. — Maker of a promissory note who signs the same without knowing its contents, because he cannot read or write, and relying on false repre- sentations by the payee that it was a mere memorandum of agency, is guilty of such carelessness and undue confidence that, as between him- self and an indorsee in good faith for value and before maturity, he must bear the loss and pay the note. PR0MIS.S0RY Note — Fraud is No Defense against Bona Fide Indorsee FOR Value and before Maturity. — Maker of a promissory note can- not defend, it seems, on the ground that the note was procured from him by fraud, as against an indorsee in good faith for value and before ma- turity. Action on a promissory note. The facts are stated in the opinion. M. E. Sanborn, for the appellant. John T. Harrington, for the respondent. 308 Bedell v. Herring. [Cal. McFarland, J. This is an action upon a promissory note for five hundred dollars, made by defendant, payable to the order of E. Jones, due in six months, and by the latter indorsed and delivered to plaintiff before maturity. Judgment went for plaintiff, and defendant appeals. The appeal is from the judgment, and upon the judgment roll alone. The defense relied on was, that said payee Jones procured defendant to sign the note by falsely and fraudulently representing that it was not a note, but a mere memorandum about a certain agency. It appears from the findings that at the time defendant signed the note the said Jones and one Moss falsely represented to him that it was not a promissory note, or any contract for the payment of money, but was merely a writing by which he signified his willingness to act as agent for the sale of a certain patent hay-fork. Defendant could not read or write the English language, except that he could sign his name. He signed the note without knowing its contents, and believed the said representations of said Jones and Moss. Plaintiff purchased the note for four hundred dollars before its maturity, and had no notice or knowledge that it was procured as aforesaid, or of anything that affected its validity as between the original parties. It is also found that "plaintiff is the indorsee of said note in due course," and that " defendant signed said note voluntarily, and without exercising the ordinary care in regard to the character of the paper signed which a prudent business man would and should exercise." The defense set up cannot be maintained; and the judg- ment of the superior court was right. It is found by the court (fully enough, we think) that the defendant, in signing the note, did not exercise ordinary care. Indeed, the act of sign- ing the paper, as shown in the findings (and there is no evi- dence here), was itself intrinsically careless. Therefore, leav- ing other aspects of the case out of view, it is clear that the judgment was right upon the principle that when one by his carelessness and undue confidence has enabled another to ob- tain the money of an innocent third person, he must answer for the loss which he has thus caused. 2. It is not necessary here to pass definitely upon the broader question discussed in the briefs, whether or not payment of a negotiable note in the hands of an innocent indorsee, who re- ceived it before maturity, can be avoided, under any circum- stances, on the ground that it was procured by fraud. It is Dec. 1888.] Bedell v. Herring. 309 apparent that to apply to such an instrument the principles which establish the essentials of an ordinary contract as between the original parties, — as, for instance, that there must be consent of the parties and a sufficient consideration; that where there was no intention to sign there was, in law, no signature; that fraud vitiates a contract ab initio, etc., — would be to undermine the whole structure of commercial law, and " shake paper credit to its foundation." The former de- cisions of this court seem to be in the direction of holding that in such a case payment cannot be avoided for fraud in the original procurement of the note: Mitchell v. Hackett, 14 Cal. 666; Hellmann v. Potter, 6 Id. 14; Rich v. Davis, 4 Id. 22; Haight v. Joyce, 2 Id. 65; 56 Am. Dec. 311; Rich v. Davis, 6 Cal. 141; Meyer v. Porter, 65 Id. 67; Fuller v. Hutchings, 10 Id. 523; 70 Am. Dec. 746; Poorman v. Mills & Co., 39 Cal. 345; 2 Am. Rep. 451; Smith v. Silsby, 55 Cal. 470. In Shepherd v. Jones, 71 Id. 225, it does not appear that the note there in- volved was negotiable or transferred before maturity; and there is no discussion in the opinion of the general question here under consideration. In Indiana a great many cases arose similar in their facts to those of the case at bar; and it was uniformly held there that the defense set up could not be maintained. The current of American authorities seems to be in the same direction. Judgment affirmed. Thornton, J. I concur in the judgment on the ground that the defense here urged cannot be made against plaintiff, who is an innocent purchaser before maturity of the negotiable note in suit. Negotiable Instruments. — Promissory notes given for gambling debts are valid iu the hands of innocent indorsees: IlaigJU v. Joyce, 2 Cal. 64; 56 Am. Dec. 311, and note 313; as to the protection of a bona fide holder of ne- gotiable paper before maturity, compare Poorman v. Mills, 39 Cal. 345; 2 Am. Rep. 451; Fuller v. Hutching.^, 10 Cold. 523; 70 Am. Dec. 746, and note. Compare Corbin v. Wachhorst, 73 Cal. 411; Iloyt v. Cross, 108 N. Y. 76. Fraud in Inception of Negotiable Instruments as Affecting Bona Fide Holders. — Who are bona fide holders of negotiable paper, and their rights in general, will be found considered in the notes to Ayer v. Hutchins, 3 Am. Dec. 235; Bay v. Coddington, 9 Id. 272; Sims v. Lyles, 26 Id. 156; Bailey V. Smith, 84 Id. 401. It is now proposed to discuss particularly the effect of fraud in the inception of negotiable paper upon bona fide holders thereof. Bona Fide Holder Takes Instrument Unaffected by Fraud in its Origin. — The general rule is well settled that a holder of a negotiable in- strument who acquires it bo)ia fide, without notice, in the usual course of 310 Bedell v. Herring. [Cal. business, for a valuable consideration, and before maturity, takes the paper unafiFected by fraud in its origin: Sioift v. Tyson, 16 Pet. 1, 15; Goodman v. Sinonds, 20 How. 343; Brown v. Spofford, 95 U. S. 474; Cromwell v. County of Sac, 96 Id. 51; Slacom v. Wishart, 3 McLean, 517; Barney v. Earle, 13 Ala. 106; State ex rel. Ploch v. Cohh, 64 Id. 127; Hu.r.phrey v. Clark, 27 Conn. 381; Von Whidisch v. Klaus, 46 Id. 433; Rohinson v. Bank of Darien, 18 Ga. 65; Gridley v. Bane, 57 111. 529; Stoner v. MilUken, 85 Id. 218; Hercth v. Mer- ch-ints' Nat. Bank, 34 Ind. 380; Woollenv. Vankirk, 61 Id. 497; First Nat. Bank V. Lofton, Gl Id. 256; Helms v. Wayne Agricultural Co., 73 Id. 325; 38 Am. Rep. 147; Wayne Agricultural Co. v. Cardwell, 73 Ind. 535; Blair v. Buser, 1 Wils. (Ind.) 333; Temples. Hays, Morris, 9, 12; Stein v. Keeler, 4G. Greene, 86; Clappv. County of Cedar, 5 Iowa, 15; 68 Am. Dec. 678; Sully v. Goldsmith, 32 Iowa, 397; Wait v. Chandler, 63 Me. 257; Farrell v. Lovett, 68 Id. 326; 28 Am. Rep. 59; Hohartv. Penny, 70 Me. 248; Burrillv. Parsons, 71 Id. 282; Crampton v. Perkins, 65 Md. 22; Thurston v. McKown, 6 Mass. 428; Smith v. Livingston, 111 Id. 342; Winstead v. Davis, 40 Miss. 785, 787; Cor% v. Butler, 55 Mo. 398; PerZ-'rn.s v. CAa/fo, 1 N. H. 254; Paer/e v. Chapman, 58 Id. 333; Dougherty v. Scudder, 17 N. J. Eq. 248; Holcomb v. Wyckoff, 35 N. J. L. 35; 10 Am. Rep. 219; Gould v. .S'eyee, 5 Duer, 260; Clothier v. Adriance, 51 N. Y. 322; 5'efeej- v. Brock, 3 Ohio St. 302; Farmers' etc. Bank v. Zucas, 26 Id. 385; Kingsland v. Pryor, 33 Id. 19; Ridgway v. Farmers' Bank, 12 Serg. & R. 256; 14 Am. Rep. 681; Craig v. Sibbett, 15 Pa. St. 238; Third Nat. Bank v. Mc- Gann, 15 Phila. 326; Poivers v. Ball, 27 Vt. 662; Robinson v. Reynolds, 2 Q. B. 196. Fraud, therefore, cannot be urged either defensively or affirma- tively against a bona fide holder. This rule is but an application of the broader doctrine that snch a holder is not, in general, subject to infirmities wliich may exist in the inception of the instrument, and which may be taken advantage of between the original parties. "If any rule of law in regard to negotiable paper is well established," says Redfield, C. J., in Powei's v. Ball, supra, "it is that a bona fide holder for value will l)e able to shut out all de- fenses, except certain statutory ones, where the paper in its inception is de- clared absolutely void, as notes or bills given upon gambling and usurious considerations." Duress, even, in executing the paper, will not be a defense in his hands: Farmers' etc. Bank v. Butler, 48 Mich. 192. It is not necessary, in order to entitle a holder to the protection of the rule, that he be a subsequent transferee from or through an original party to the instrument. The payee himself may be protected. Thus if a person is induced to sign a note as surety by the fraudulent representations of the principal maker, he will, notwithstanding, be liable to the payee, if it does not appear that the payee knew of the fraud: Quinn v. Hard, 43 Vt. 375; Farmers' etc. Bank v. Lucas, 26 Ohio St. 385. Even if the surety was in- duced to sign under the belief that forged names appearing on the paper were genuine, he will be bound to an innocent payee: Selser v. Brock, 3 Id. 302; Helms v. Wayne Agricultural Co., 73 Ind. 325; 38 Am. Rep. 147; Wayne Agricultural Co. v. Cardwell, 73 Ind. 555; Stoner v. Milliken,So 111. 218; Grid- ley V. Bane, 57 Id. 529. If the holder have notice of the fraud in the origin of the paper, or if lie takes in bad faith, he, of course, can claim no recoveiy from the defrauded party: Fisher v. Leland, 4 Cush. 456; 50 Am. Dec. 805; City Bank of Colum- bus V. Phillips, 22 Mo. 85; 64 Am. Dec. 254; Crampton v. Perkins, 65 Md. 22; Ormsbee v. Howe, 54 Vt. 182; 41 Am. Rep. 841; and the same would be true if he paid no value, or if he took after maturity, unless, in any of these cases, he acquired the instrument from one in whose hands it is not subject Dec. 1888.] Bedell v. Herring, 311 to the defense, obtaining thereby the title of such transferrer: Commissioners of Marion County v. Clark, 94 U. S. 27S; Cromioell v. County of Sac, 96 Id. 51; Simon v. Merritt, 33 Iowa, 537; Mornyer v. Cooper, 35 Id. 257; HeretliY. Merchants' National Bank, 34 Ind. 380; Riley v. Schawacker, 50 Id. 592; Boyd V. McCann, 10 Md. 118; Merchants' Bank v. President etc. of Farmers' Bank, cited 10 Id. 123; Bassett v. Avery, 15 Ohio St. 299; Bodley v. Empona Nat. Bank, 38 Kan. 59; Gould v. Segee, 5 Duer, 260, 268; Woodman v. Churchill, 52 Me. 58; Masters v. Ibberson, 8 Com. B. 100. If, also, the action is be- tween the original parties, there can be no question as to the right of the defrauded party to set up the defense against the one who perpetrated the fraud, as in case of any other contract. And it is held a promissory note may be avoided in toto for fraud, in the hands of the payee, where the maker, who was an illiterate man, signed it after it was read over to him as bearing a different and less rate of interest than that expressed upon its face: Stacy V. Ross, 27 Tex. 3; 84 Am. Dec. 604. But if a note be given for the purpose of defrauding the maker's creditors, it has been held that it cannot be avoided by the maker for that fact, but may be enforced against him by the payee: Cai-penter v. McClure, 39 Vt. 9; 91 Am. Dec. 370; and, at all events, such fraud would be no defense to an action brought by an indorsee who took the note for value, before maturity, and without notice of the fraud: Pottery. Belden, 105 Mass. 11. Fraud perpetrated upon some other holder of a negotiable instrument with reference thereto will also be no defense to one sued thereon. Thus it is no defense to an action on a promissory note by an indorsee against the maker that the note was obtained from the payee by means of fraudulent represen- tations of which the indorsee had knowledge when he received the note: Prouty V. Roberts, 6 Cush. 19; 52 Am. Dec. 761. In some states, the question of fraud in the procurement or execution of negotiable instruments has been the subject of statutory regulation. Thus in Georgia a section of the code provides that "the bona fide holder tor value of a bill, drafb, or promissory note, or other negotiable instrument, who re- ceives the same before it is due, and without notice of any defect or defense, shall be protected from any defenses set up by the maker, acceptor, or in- dorser, except .... fraud in its procurement." The words "fraud in its procurement " have been liberally construed to mean " fraud in the procure- ment by the holder of the paper "; and therefore a bona fide transferee of a promissory note, without notice, and before maturity, will be protected, al- though the note was procured by the payee from the maker by fraud: Rohen- son v. Vcison, 37 Ga. 66; Hoijan v. Moore, 48 Id. 156, 162; Merritt v. Bagwell, 70 Id. 578, 583; and such holder, having a good title, a transferee from Iiim has the same, no matter at what time the transfer to the latter was made: Hofjan v. Moore, supra. This construction, it is said, makes a party respon- sible for his own fraudulent conduct, but does not make an innocent person responsible for the fraudulent conduct of others of which he had no knowl- edge. In Illinois, "if any fraud or circumvention be used in obtaining the mak- ing or executing "' of any note, it is provided that the note shall be void, not only between tlie maker and payee, but also in the hands of everj'^ subsequent holder. Fraud or circumvention in procuring the execution of a promissory note is, therefore, uuder this statute, a good defense, whether the transferee took the paper with or without notice thereof: Hewitt v. Jones, 12 111. 218; Hubbard v. Rankin, 71 Id. 129. But the statute does not require both fraud and circumvention, if there be any distinction between the \/ords, in obtain- 312 Bedell v. Herring. [Cal. ing the making or executing of a note before the defense can be interposed; it is suiEcient if either be practiced: Heiwtt v. Johnson, 72 111. 513. "A fraud in obtaining a note may consist of any artifice practiced upon a person to induce him to execute it when he did not intend to do such an act. Circum- vention seems to be nearly, if not quite, synonymous with fraud ": Per Walker, C. J., in Latham v. Smith, 45 Id. 25, 27. It is a well-settled inter- pretation of this provision that the fraud or circumvention which will avoid a promissory note in the hands of an innocent holder for value, and before maturity, must be in the "making or executing" the same, and not in the contract or consideration upon which the note was given: Woods v. Hynes, 1 Scam. 103; Mulford v. Shepard, 1 Id. 583; 33 Am. Dec. 432; Latham v. Smith, 45 111. 25, 27; Shipley v. Carroll, 45 Id. 285; Bepuy v. Sdmyler, 45 Id. 306; Murray v. Beckwith, 48 Id. 391; Culver v. Hide and Leather Banl; 78 Id. 625; Taylor v. Thompson, 3 111. App. 109; Hayden v. Olincjer, 5 Id. 632. To illustrate: It is no defense against such a holder that the note was given for the price of goods sold by the payee, who made false representations as to their quantity and quality: Woods v. Hynes, supra; or that the note was given for the purchase price of land about which the payee made false repre- sentations: Mulfoid V. Shepard, supra; nor is a misrepresentation by the payee in regard to the legal efifect of the instrument — as that it would not become operative until the maker should put a revenue-stamp upon it, and the property for which it was given should be delivered — such fi-aud or cir- cumvention in obtaining the note as will amount to a defense against an innocent transferee for value, before maturity: Latham v. Smith, supra; and the same is true of the violation of a promise by vendors to vendees, made as an inducement to the execution of the note for the balance of the price of ' goods sold, not to assign the same, and to allow the vendees on the note all damages to which they might be entitled l^y reason of a failure of warranty as to the quality of the goods: Murray v. Beckwith, supra; so the failure of consideration, in whole or in part, can plainly not be set up as a defense in the hands of such a holder: Culver v. Hide and Leather Bank, supra; Taylor v. Thompson, supra; and where certain persons were induced to sign a note as sureties, on the representations of the principal maker that certain others would also sign, but the note was delivered by the latter without such signatures, the payee, who did not participate in the representations, or have any notice of them, is not affected thereby: Young v. Ward, 21 111. 223; and it is also held- that where a person, as a matter of amusement, and without any design of delivering the paper to the payee, signed her name to a prom- issory note, which was afterwards stolen by the payee, and transferred to one who paid value and without notice, that there was no "fraud or circum- vention " in obtaining or executing the note, within the meaning of the stat- ute, which would defeat an action by the holder against the maker: Shipley v. Carroll, 45 111. 285; but while this ruling may be correct, it would seem that the case should have been decided differently, because of the want of delivery. "It must be borne in mind," says Walker, C. J., in Latham v. Smith, supra, "that the fraud or covin must relate to the obtension of the instrument itself, and not to the consideration upon which it is based. It is not fraud which relates to the quality, quantity, value, or character of the consideration that moves the contract, but it is such a trick or device as in- duces the giving of one character of instrument under the belief that it is another of a different character; such as giving a note or other agreement for one sum or thing, when it is for another sura or thing; or aa giving a note under the belief that it is a receipt." Dec. 18S8.] Bedell v. Herring. 313 If, therefore, a person, through artifice, and without negl'gence on his part, is induced to execute a note as one payable absolutely, under the belief that it was payable only on a contingency, there is such fraud or circumven- tion as will bar an action under the statute, by any transferee whatsoever: Munaon v. Nichols, 62 111. Ill; or where through some false representations, device, or trick, and without negligence, a person signs a note for a larger 8um than he intended: liicliardson v. Schlrtz, 59 Id. 31.3; Aufen v. Gruner, 90 Id. 300; or where through some fraudulent representations, device, or trick, an\l in the exercise of reasonable prudence and care, he signs a note, suppos- ing that he is signing an instrument of an entirely different character: Taylor V. Atdmon, 54 Id. 196; 5 Am. Rep. 118; Puffer v. Sviith, 57 111. 527; Sims v. Bice, 67 Id. 88; lluhhard v. lianlciii, 71 Id. 129; Vanhruiit v. Singley, 85 Id. 281; compare Anderson v. Warne, 71 Id. 20; 22 Am. Rep. 83. But it is necessary in all such cases, notwithstanding the fraud or circumvention, that the maker should have exercised ordinary care and diligence to acquaint him- self with the contents of the paper before executing it, or he will be bound to an innocent holder for value and before maturity: Leach v. Nichols, 55 111. 273; Head v. Munson, 60 Id. 49; Swannell v. Watson, 71 Id. 456; Homes v. Hale, 71 Id. 552; Auten v. Gniner, 90 Id. 300; Smith v. Culton, 5 111. App. 422; and whether he was guilty of negligence or not in the execution of the note is held to be a question for the jury: Id.; Munson v. Nichols, sujpra. IN.STRUMENT3 NEVER DeLIVEKED, BUT OBTAINED BY FrAUD OR CrIME. — There is no doubt that delivery of a negotiable instrument is necessary to create any liability as between the immediate parties. And, therefore, if the payee of a promissory note obtains possession thereof by fraud, he cannot maintain any action thereon: Carter v. McCUntock, 29 Mo. 404. A fortiori would this be true if he obtained possession by stealth. But the authorities are conflicting as to whether a honajide holder can recover on an instrument which has never been delivered by the maker or drawer to any one for any purpose. It has been broadly asserted that the fact there was no delivery of a promissory note to any person l)y or on behalf of the maker was no de- fense to an action on tlie note by a bonajide holder for value, who received it before maturity: Kinyon v. Wohlford, 17 Minn. 239; 10 Am. Rep. IG5. In two Illinois cases the same result was reached, under some novel conditions of fact. In one of them, a person, after signing a note, was about to insert a condition in it, when the payee snatched it from him and ran away, and transferred it to an innocent purchaser before maturity: Clarke v. Johnson, 54 111. 296. In the other, a i^erson, as a mere matter of amusement, and with- out any intention of delivering the paper to the payee, signed her name to a promissory note, which was aftei'wards stolen by the payee, and transferred to an innocent purchaser: Shipley v. Can-oil, 45 Id. 285. These are extreme cases, and of doubtiul correctness. It is difficult to see upon what reason they can be sustained, unless upon the ground of the maker's negligence; but then the negligence was not a proximate cause of the notes getting into cir- culation. Ou the other hand, it is maintained that delivery of a negotiable instru- ment, at least for some purjjose, is essential to its validity, even in the hands ot a lionti Jide holder for value, and before maturity. At all events, it would seem to be a sound conclusion that where paper requiring no indorsement is stolen from the maker or drawer by a stranger, it never having been volun- tarily delivered to any one, there can be no recovery on it, even by an innocent purchaser, before maturity: Hall v. Wilson, 16 Barb. 548, 555; Baxendale v. Bennett, L. R. 3 Q. B. D. 525; certainly this should be so if the 314 Bedell v. Herring. [Cal. instrument is incomplete: Ledwich v. McKim, 53 N. Y. 307 But cases have gone further. Thus in Bnrson v. Huntington, 21 Mich. 415, 4 Am. Rep. 497, the maker signed a promissory note, payable to the order of another, but did not deliver it, and while he was temporarily absent from the room, the payee, contrary to the maker's prohibition, took the note from the table where it had been left by the maker, and went away with it. It was held that the maker was not liable thereon, even to a bona fide indorsee for value, and be- fore maturity. Again, in Cline v. Guthrie, 42 Ind. 227, 13 Am. Rep. 357, a person wjj,s induced by fraud to sign his name to a promissory note, when he supposed that he was writing his name on a blank piece of paper, to enable the payees to see how his name was spelled or written. The maker did not, after he discovered that he had so signed his name to a note, voluntarily de- liver it to the payees; but it was wrongfully and forcibly taken possession of by them, and by them carried away against the maker's consent. It was held that these facts constituted a good defense to the note in the hands of an indorsee in good faith for value, and before maturity. In these cases, the notes were decided to be invalid for want of delivery; and furthermore, there was no negligence or estoppel on which the makers could be charged. But it is held that one who attempts to cancel negotiable paper which he has signed, but not put in circulation, may do it so ineffectually and negli- gently that if it be thereafter obtained and fraudulently transferred, he may be liable to a bona fide purchaser for value: Ingram v. Primrose, 7 Com. B., N. S., 82; compare Schloey v. Ramsbottom, 2 Camp. 485. Instruments Put in Circulation in Violation of Instructions or Conditions. — The case where a negotiable instrument is put in circulation in violation of instructions or conditions on which it is intrusted by the party signing to another, evidently differs from the case last considered, where the paper has never voluntarily been intrusted to any one, but the possession is at the outset wrongfully obtained. If the paper comes into the hands of a bona fide holder for value, and without notice, there is, in the former case, room for the operation of the principle, of two innocent persons, that one should suffer who placed it in the power of another to commit the wrong; and the right of such a holder to recover has been rarely denied. A reoovery by the bona fide holder in this case is, we take it, more properly due to this principle than to any special doctrine appertaining to negotiable instruments. If, then, bonds of a corporation are wrongfully put in circulation by its agents or officers, an accommodation indorser, as well as the corporation it- self, will be liable to an innoceut holder for value: Oilman v. New Orleans etc. R. R., 72 Ala. 566; Grand Rapids etc. R. R. v. Sanders, 17 Hun, 552. So a person will be liable to a bona fide holder for value on negotiable paper which he intrusts to an agent for negotiation, and which the agent misappropriates: Goodman v. Simonds, 20 How. 343; Brush v. Scribner, 11 Conn. 388; 29 Am. Dec. 303; Fisher v. Fisher, 98 Mass. 303; and a person is likewise liable where he indorses a note for accommodation, aad intrusts it to his clerk to deliver it to a certain person, on the latter 's signing: it with the name of a firm as makers, and the clerk delivers the note before it is signed by any one: Whitmore v. Nickerson, 125 Id. 496; 28 Am. Rep. 257; or where one signs a note as surety, and delivers it to his agent with instructions to make in- quiries of a certain person as to the solvency of the principal maker, and not to deliver it to the payee unless such person should be of the opinion that the principal maker was solvent, but the agent causes the note to be delivered to the payee without making the inquiries: Taylor v. Craig, 2 J. J. Marsh. 449. Dec. 1888.] Bedell v. Herring. 315 The same result follows where an accommodation party intrusts the paper to the accommodated party for a specific purpose, and the latter wrongfully uses it for a different purpose: President etc. o/Chicopee Bank v. Chapin, 8 Met. 40; Maitland v. Citizens' Nat. Bank, 40 Md. 540, 568; Woodruff v. Hill, 116 Mass. 310; Hemphill \. Bank of Alabama,, 6 Sniedes & M. 44; Fanning \. Farmers' Bank, 8 Id. 139. An innocent holder for value is likewise unaf- fected by the fact that the instrument was transferred by the payee in violation of a condition on which it was held hy him: Bush v. Peckard, 3 Harr. (Del.) 385; and see Kohnv. Watkins, 26 Kan. 691 ; 40 Am. Rep. 336; or that the paper payable to one's own order was not to be used, but should operate as a re- ceipt merely: Pedlichv. Dull, 54 N. Y. 234; or that the party from whom he re- ceived the paper had possession of it for certain purposes, and misappropriated it: Collins V. Gilbert, 94 U. S. 753; or that the paper was negotiated in viola- tion of a condition on which it was signed or indorsed by an accommodation party: Gage v. Sharp, 24 Iowa, 15; Davis v. Lee, 2G Miss. 505; Smallv. S/futh, ] Denio, 583; and see Watson v. Russell, 3 Best & S. 34; affirmed in 5 Id. 908; Clark v. Thayer, 105 Mass. 216; and, consequently, one who signs or indorses a note as surety cannot defend an action thereon, either by the inno- cent payee or any other bona fide holder for value, on the ground that the principal maker, to whom he intrusted the note, delivered the same in viola- tion of a condition that a certain other person or persons should also first sign or indorse as co-sureties: Bonner v. Nelson, 57 Ga. 433; Clark v. Bryce, 64 Id. 486; Yoimhy, 34 N. Y. 508; 90 Am. Dec. 733. As we have heretofore shown, a voluntary transfer by one who is indebted at the time is presumed to be fraudulent as against pre-existing creditors. Whether a transfer by one in like circumstances is presumed fraudulent or not as against subsequent creditors, is a question less easily answered from the authorities. The piincipal case, as well as some others, favors the rule that a subsequent creditor must assume the burden of proving that a volun- tary transfer which he seeks to avoid was fraudulent as against him; or in other words, that it was made when the grantor had a purpose to subse- quently contract the liability in question, and to defraud his creditors thereby: Crawford v. Beard, 12 Or. 447. See also Nicfiolas v. Ward, 1 Head, 323; 73 Am. Dec. 177. It has sometimes been held that if the facta are shown to be such as to ren- der a transfer fraudulent as against prior creditors, it will be presumed also to be fraudulent as against subsequent creditors; that is to say, it will be presumed to have been made with the intent of contracting subsequent debts, and of delaying, hindering, and defrauding subsequent creditors: Jiogeri t. 752 Hagerman v. Buchanan, [New Jersey, Verlander, 30 W. Va. 619; Edwards v. Entwistle, 2 Mackey, 43; Horn v. Volcano Water Co., 13 Cal. 62; 73 Am. Dec. 569. We apprehend that no general rule can be formulated equally applicable to all cases, and that such judicial declarations as have been made upon the subject must be interpreted with reference to the particular facts of the case in which they were made. If the subsequent debts were contracted long after the voluntary transfer was made, the presumption that it might have been made with a view of contracting them and of defrauding the sub- sequent creditors certainly becomes exceedingly weak, and may reasonalily be treated as entirely destroyed, unless other circumstances appear to give it renewed vitality. The evidence may, on the other hand, disclose that the subsequent debts have merely taken the place of prior ones, or that the debtor has continued or embarked in a business in which his becoming indebted was inevitable, or there may be other circumstances of the like persuasive character creating or strengthening the presumption that as the transfer was in fraud of prior it was also in fraud of subsequent creditors. In the one class of cases, the courts are likely to insist that the transfer must be assumed as valid as againsfc subsequent creditors, and that they must rebut this assumption. In the other class, the courts are almost inevitably led to presume that the transfer was fraudulent as against prior creditors, and to call upon the donee, or those claiming under him, to overcome such pre- sumption. In some of the states, the presumption that a deed shown to be fraudulent as against existing creditors is also fraudulent and void as against subsequent creditors is given very great, if not absolutely conclusive, force, if the grantor was at the time largely indebted or seriously embarrassed, or if the property BO transferred constituted the whole or even a greater part of his fortune: Vertner v. Humphrifs, 14 Smedes & M. 143; Lush v. Wilkinson, 5 Ves. 387; Holloway v. Millard, 1 Madd. 417. In Rogers v. Verlander, 30 W. Va. 619, it appeared that the grantor exe- cuted a voluntary conveyance of more than two thirds in value of his real estate, and that he had no personal property, and that within less than a year thereafter executions were issued against him, and returned unsatis- fied. The court was convinced that the property which he retained was not ample to satisfy all his existing creditors, and that the inference was justified that the voluntary gift was intended not only to hinder, delay, and defraud his existing creditors, but that it was also actually intended to defraud his future creditors. The English cases also suppoi fc the rule that if the grantor was insolvent at the time he made a voluntary conveyance, or if the tranafer must be regarded as unreasonable in amount and value, considered with reference to his remaining fortune, then the presumption is justified that the transfer was intended to defraud subsequent as well as prior creditors: Spirett V. Willows, 3 De Gex, J. & S. 293; Taylor v. Coenen, 34 L. T., N. S., 18. So in Connecticut, when it appears that the grantor was largely indebted and insolvent, and that he gave away the only means of his satisfying his creditors, and that the grantee knew of his financial condition, it will be pre- sumed, either that the grantor was incapable of managing his afiairs, or in- competent to make a conveyance, or that he made it " under some secret hope or expectation of benefit to himself from the use of the property, or some equivalent for it after the conveyance"; and that the transaction is corruptly fraudulent, and that "if the grantor, at the time the deed was made, was indebted to the extent of insolvency, or perhaps of great embar- rassment, so as to create a reasonable presumption of a fraudulent design. March, 1889.] Hagerman v. Buchanan. 753 the deed may be impeached even by a subsequent creditor, nnless the pre- sumption is repelled by showing that such prior debts were secured by pro- vision in their favor in the deed itself ": Bedjield v. Buck, 35 Conn. 328; 95 Am. Dec. 241. These are extreme views, and in our judgment not sustainable upon prin- ciple. Before subsequent creditors can avoid a transfer, it must appear to be at least probable that it may have been made with a design to hinder, delay, or defraud them. Though the grantor has no other property, and never ex- pects to have any, his conveyance cannot be fraudulent if he owes no debts, does not meditate the contracting of any, and is not in any business nor about to enter upon any business in the transaction of which he is likely to become indebted: Thompson v. Allen, 103 Pa. St. 44; 49 Am. Rep. 116. If the creditor is but little indebted at the time of making a voluntary transfer, and there are no attending nor immediately subsequent circumstan- ces to create a suspicion of meditated fraud on his part, such transfer cannot be successfully attacked by subsequent creditors: Dodd v. McCraw, 8 Ark. 83; 46 Am. Dec. 301; Pelham v. Aldrich, 8 Gray, 515; 69 Am. Dec. 266. If the grantor is entirely free from debts, the case is still more clear, if possible. There not only cannot be any presumption in favor of such subsequent credi- tors that the transfer was fraudulent; the presumption must necessarily be the other way, unless it appears that the grantor was about to enter upon some business or meditated some scheme in which he was about to become indebted, and was seeking in some manner to throw the hazard of such busi- ness or scheme upon his subsequent creditors instead of assuming it himself, IS he should in good faith do: Smith v. Vodgers, 92 U. S. 183; Rock Island Stove Co. V. Walrod, 75 Iowa, 479; Martin v. Olliver, 9 Humph. 561; 49 Am. Dec. 717; Gillijan v. Lord, 51 Conn. 562; Wheeler & W. M. Co. v. Monahan, S3 Wis. 198. There is no doubt that a creditor who becomes such after an involuntary transfer had been made by him may attack and overthrow it by establisliing that it was fraudulent as to liim: Lewis v. Simon, 72 Tex. 40. And there are instances, as we have heretofore shown, where the debtor's doubtful financial condition may cast the burden of proof upon the donee or his successors in interest: Moritz v. Hoffman, 35 111. 559; Stillman v. Ashdown, 2 Atk. 481. The most familiar instances of a voluntary conveyance being declared fraud- ulent as against subsequent creditors are those arising when the transfer is made with a view of embarking in some hazardous business, of becoming in- debted therein, and in case the business shall prove unprofitable, of escaping from loss through the aid of such previous transfer- Mackay v. Douglas, 41 L. J. Ch. 539. " A settlement on a wife on the eve of a new business, and with a view of providing against its contingencies, is as unavailing against new creditors as against old ones": Littleton v. Littleton, 1 Dears. & B. 327; Blu k V. Nease, 37 Pa. St. 433; Graham v. O'Kee/e, 16 Irish Ch. I; Murphy v. AhraJiam., 15 Ir. Eq., N. S., 571 ; Moritz v. Hoffman, 35 111. 558. If a convey- ance is "made in anticipation of becoming indebted, and for the purpose of defrauding creditors, and without consideration, it matters not whether the grantor was insolvent or not, and the conveyance is void as against subse- quent creditors. Hence, where a debtor in failing circumstances made a con- veyance of his property to his mother without consideration, and the next day after the execution of tiiis deed received a loan of money, for which loan he had previously negotiated, it was held that it might fairly be inferred, from the circumstances attending the execution of the deed and the making of the debt, that the conveyance was made in anticipation of becoming Am. St. Rkp.. Vou XIV. - 48 754 George v. Braddock. [New Jersey, indebted, and was therefore fraudulent as against the debt subsequently con- tracted": Morrill v. Kilner, 113 111, 318. "But a voluntary deed may likewise be void as to creditors whose claims are contracted subsequent to its execu- tion. If the grantor of such a deed executes it in the expectation of shortly contracting debts, and with the design of so placing the property so conveyed that if misfortune afterwards befalls him, and he becomes unable to pay his debts, it shall be beyond the reach of his creditors, the deed will be held void on the ground of fraud. To illustrate: if a person just on the eve of em- barking in a business which requires both capital and credit to conduct it successfully, should, by a voluntary conveyance, strip himself of a large por- tion of his property, and make it over to his wife, or distribute it among his children, and then procure the conveyance to be withheld from record, so that he might still trade upon the property as its owner, and in the interval incur debts beyond his ability to pay, the transaction would furnish such co- gent evidence of fraud against both grantor and grantee that no court would allow the deed to stand for an instant against the persons who had been de- frauded by it. The law on this subject is established. A citation of authori- ties is only useful to show how the law has been applied in particular instances": Cily A'aiionnlBankv. Hamilton, 34 N, J. Eq. 160; 31 idler v. Wil' son, 44 Pa. St. 413; 84 Am. Dec. 410; Beeckman v. MonUjomery, 14 N. J. Eq. 106; 80 Am. Dec. 229. The mere fact that a grantor has become indebted after making a voluntary transfer, and that he is unable to pay such debts, is not conclusive in favor of subsequent creditors. To so hold would place prior and subsequent creditors on the same footing. The grantor may not have intended, when he made the transfer in question, to embark in any business or to become indebted to any extent whatever. If so, his conveyance could not have been fraudulent as against subsequent creditors: Ilornv. Boss, 10 Ga. 210; 65 Am. Dec. 64. The court or jury must be left to determine, from the fact of the subsequent in- debtedness, its proximity to or remoteness from the transfer, and all the other circumstances disclosed at the trial, whether the creation of the debt was contemplated at the time of the transfer or not. If it was contemplated, its holder occupies a position not less advantageous than if he were a prior creditor. George v. Braddock. [45 New Jersey Equity, 757.] Charitable Use, What is, — A Devise of Property, to " Con.stitutb A Sacked Trust for the express purpose of spreading the light of social and political liberty and justice in these United States of Amer- ica," creates a charitable use. Charitable Use. — The Only Restriction Which has been Imposed ON Devises for the Better Distribution of Specified Writings OB Books is, that the writings to be circulated must not have, when considered with respect to their purpose, a general tendency of hostility to religion, law, or morals. Charitable Use. — The Courts will Permit the Enforcement of a Testamentary Use which is designed to circulate works calling in question fundamental rules and establishments of the law, and agitating the question whether such law baa or has not any better foundation than wrong and injustice. AMERICAN STATE REPORTS. VoT,. XV, Paces ;U8-3G9. McALTJSTER ■:>. DETROIT FREE PRESS. [70 Ml. Mw\v f^'?^. I Libel. 318 McAllister v. Detroit Free Press Co. [Mich. whether the defendant was not notified in writing of the whole title, and of the purpose to protect the mortgage interest. But we have enough to show that the existence of the mortgage was not, by itself, of any effect in impairing the policy, and the destruction of it by the beginning of foreclosure would be a consequence not reasonable, and not to be inferred without convincing provisions, which we do not discover, as changing the former decision of this court. We think the judgment should be affirmed. Insurance. — If the policy requires the statement of certain facts, and their expression in the policy, and the insured states the facts to an agent, but the agent does not insert them in the policy issued, the omission cannot be allowed to prejudice the insured: Lycoming Fire Ins. Co. v. Jackson, 83 111. 302; 25 Am. Rep. 386. Insuranck. — Where a woman, ignorant, and unable to read English, pro- cured insurance upon property owned by her children, but in which she had a dower interest, and it appearing she did not know the distinction between "dower" and "fee," and was ignorant of the provisions of the policy stipu- lating for a forfeiture if the assured did not own in fee the insured property, the policy was valid, where the agent had knowledge of the facts, and there was no fraud on the part of the assured: Hartford Ins. Co. v. Haas, 87 Ky. 632; compare Baker v. Ohio Farmers' Ins. Co., 70 Mich. 199; 14 Am. St. Rep. 485, and note; Home Mutual F. Ins. Co. v. Oarjield, 60 111. 124; 14 Am. Rep. 27. McAllister v. Detroit Free Press Company. 176 Michigan, 338. j Libel. — Publication of Newspaper Item Confessedly Untrue in Several Particulars, all of which tended, in the connection used, to carry the impression that the parties named therein were guilty of felony, is clearly libelous per ee, and the question for the jury is only one of damages. Libel. — No Newspaper has Any Right to trifle with the reputation of any citizen, or by carelessness or recklessness to injure his good name and business without answering for the libel in damages, and the greater the circulation of the paper the greater the wrong, and the more reason why greater care should be exercised in the publication of personal items. Libel. — Newspaper Reporter has No Right to collect stories on the street, or gather information from policemen or magistrates out of court, about a citizen, to his detriment, and to publish them as facts in his newspaper. If true, such publication may be privileged; but if false, the newspaper is responsible to any one who is wronged thereby. Libel — False Publication of Arrest and Imprisonment. — A party cannot be subjected to the wrong and outrage of a false publication of his arrest and imprisonment, looking toward his guilt, without remedy; and no excuse of the demand of the public for news, or of the peculiarity 1 Oct. 1889.] McAllister v. Detroit Free Press Co. 319 and magnitude of newspaper work, can avail to alter the law so as to leave the injured party without redress and recompeuae for a wrong, which, under the law, can never be adequately compensated to one who values his reputation more than money. Libel — Privileged Communications. — The truth is privileged when pub- lished from good motives and for justifiable ends, and that which is not true, but honestly believed to be true, and published in good faith by one in the performance of public or official duty, in certain cases, is also privileged. Libel — Privileged Communications. — Communications made to a body or oflScer having power to redress a grievance complained of, or having cognizance of the subject-matter of the communications, to some intent or purpose, are privileged, and so in cases where the communication is made confidentially, or upon request, where the party requiring the in- formation has an interest in knowing the character of the person inquired after. So a person may be justified when honestly endeavoring to vin- dicate his own interests, as in a case of slander of title, or guarding against any transaction which might operate to his own injury. Libel. — Liberty of the Press, as' the law now stands, is only a more ex- tended and improved use of the liberty of speech prevailing before printing became general; and, independent of statute, the law recog- nizes no distinction in principle between a publication by a newspaper and a publication by any other person. A newspaper is not privileged, as such, in the dissemination of the news, but is liable for what it pub- lishes in the same manner as any other individual. Corliss, Andrus, and Leete, and Edwin F. Conely, for the ap- pellant. F. A. Baker, for the defendant. Morse, J. On Saturday, February 11, 1888, the plaintiflF and one Lester B. French, two reputable citizens of Detroit, crossed over to Windsor. French went to Windsor to dispose of about twenty -seven dollars of Canadian postage-stamps which he had purchased of Dr. Kennedy, of Detroit. McAl- Hster went with French, because the latter asked him to, and did not know what was the object of French's visit. After they arrived at Windsor, they met a Mr. Ronald, who resided there, and walked up to the Manning House, which was soon to be opened, for the purpose of looking through it, having been invited to do so by Mr. Ronald. When they got there, the house was locked, and Mr. Ronald had no key to it. From there they went to the post-office. French went to the stamp-window, and asked the gentleman there, who proved to be the assistant postmaster, if he would take some stamps "that had been sent to us on the other side"; told him that he got the stamps from a physician on this (American) side. The man said (so French testifies, and it is not disputed): 820 McAllister v. Detroit Free Press Co. [Mich. "No, we cannot take them here"; and directed him to a book or stationery store a few doors below. McAllister stayed in the post-office until French was through, but did not know what the latter was doing. From the post-office they went to the book-store. French explained at this store how he came to have the stamps, and offered them for sale. The man at the store said he had so many on hand he could not use them, and directed French to another book-store. They then went to the second book- store, where French sold about ten dollars' worth of stamps, at a discount of from three to five per cent. Before going to this store, they stopped at another place, where French offered stamps for sale, but sold none. McAllister knew what French was doing after they left the post-office. French might have sold all his stamps at the book-Store at ten per cent discount, but declined to do so. As they came out of this store, they were arrested, and taken to jail by a policeman, accompanied by the assistant post- master. McAllister wanted to know what the trouble was, — what they were arrested for, — but received no answer. French said: "If there is anything wrong, if you will take us to the telephone we will identify ourselves. Here is the man that owns this hotel here. I can telephone to him; he is on the other side of the river, and will come over., I am well ac- quainted with business men over there, and we will satisfy you that everything is all right." The officer answered: "That don't make any difference. Go with us, and we will take you to a telephone all right." They were not taken to a telephone, but to the jail, where they were searched, and everything taken from them. They told the officers that they lived in Detroit, and who they were. The effects upon them, — letters, the monogram upon McAl- lister's watch, and a bank-book in the possession of McAllister, — corroborated their story, but it was of no avail. The chief of police, Bains, came to them at the station dressed in citi- zen's clothes, and asked French where he got the postage- stamps. French asked him, "Who are you? " to which Bains replied, "None of your business." French then said: "Then it 's none of your business where I got them." Thereupon Bains fell into a passion, and locked them up in different cells. After they were locked up, Bains asked them who they were, and if they knew any one in Detroit. McAllister told Oct. 1889.] McAllister v. Detroit Free Press Co. 821 him where he lived; that he boarded at the Antisdel House, but had been away from there. He wished to send for Mr. Andrus, his attorney, but this was denied him. Bains asked: "Do you know any detective in Detroit?" They could not think of any, and then Bains said, "If you don't know any detective in Detroit, you don't live there," and went away. They were put in jail about half-past twelve, and remained there until about seven, p. m. About three, p. m., detectives McDonell and Noble came over from Detroit, and were asked if they knew them, and McDonell said he knew McAllister well, and related that when McAllister's house was robbed he looked up the case for him. He also said that he had seen Mr. French, but could not place him, but knew his face well. McAllister said to Bains: "You have found nothing at all suspicious on me. Can't you let us sit in the office, instead of putting us in the cell again?" But Bains said: "No; you go right back in there." He refused to let them occupy the same cell. French- told Bains that he got the stamps of Dr. Kennedy. Bains came in at one time with a piece of paper in his hand, and said: "French, you are a liar. I have telegraphed to Dr. Kennedy, and he says he don't know you." Bains let French go to the telephone at one time, but for some reason he could not get Detroit; and Bains said: "Come away from there. I guess you don't want to get them very bad, anyway." It seems that Mr. Wigle, the postmaster, made a complaint before Alexander Bartlett, the police magistrate at Windsor, against French and McAllister, for the unlawful sale of post- age-stamps, under a Canadian statute reading as follows: "No person other than a postmaster shall exercise the busi- ness of selling postage-stamps or stamped envelopes to the public, unless duly licensed to do so by the postmaster-general, and under such conditions as he prescribes; and every person who violates this provision by selling postage-stamps or stamped envelopes to the public, without a license from the postmaster-general, shall, on summary conviction, incur a penalty not exceeding forty dollars for each offense": 38 Vict., c. 7, sec. 74, being R. S. Can., c. 35, sec. 106. Neither French nor McAllister had any knowledge of this statute, or that they were doing anything wrong in selling or oflFering these stamps for sale. Am. St. Kkp., Vol. XV. — :i:l 322 McAllister v. Detroit Free Press Co. [Mich. The complaint was read to French and McAllister, who were taken before the magistrate for that purpose; but the magistrate swears that Mr. Wigle was convinced, by the time the complaint was read, that they were innocent of any inten- tional violation of the law, and withdrew it. No complaint was made against them for any other offense. There was some talk between Mr, Wigle and the magistrate about the robbery of a post-office at Bothwell, Ontario. The magistrate could not swear that the chief of police informed him that he suspected these men of that robbery, but thinks it quite prob- able that he did. There was, the magistrate says, no hearing or adjournment on the complaint made by Wigle. Wigle withdrew it, and that was the end of it, as far as the magis- trate was concerned. It was withdrawn between three and four o'clock, p. M. But Mr. Bains, as they testify, kept these men incarcerated until after six o'clock, p. m., and told them then that he was not quite satisfied, but they could go if they would come back at nine, a. m., on Monday. On Monday they went over, and were told they were not wanted. Bains swears that he did not require them to return on Monday, but released them un- conditionally. While in Canada, French and McAllister re- ceived no intimation from any one that they were suspected of the Bothwell robbery, and knew nothing about it. The Detroit Free Press (daily), on Sunday, February 12, 1888, contained a number of items of news under the heading of "Windsor." In these items, and the third one in the list, appeared the following: "A week ago, it will be remembered that a safe was cracked in Bothwell, and that two thousand dollars in money and about thirty dollars' worth of stamps were stolen. Yesterday two hard-looking citizens canvassed the entire business part of Windsor, in the effort to sell stamps at half-price. They at last tried to sell the stamps to Postmaster Wigle, who had them arrested. They were searched at the station, and upon one of them was found thirty dollars' worth of stamps. They gave their names as Edward H. McAllister and Lester B. French. Chief Bains will hold them to await developments." On Tuesday, the 14th of February, 1888, under the heading of "Windsor," the Daily Free Press published, with other items of news, the following: "Edward H. McAllister and Lester B. French, the men who were arrested on Saturday for trying to dispose of stamps at half-price, have been released, Oct. 1889.] McAllister v. Detroit Free Press Co. 823 as there was no evidence to show that they are the men who are wanted at Bothwell." It is not shown that the Free Press ever made any other or further allusion to the matter. The plaintiff brought suit against the Free Press company for libel, declaring upon the first publication. The defendant pleaded the general issue, and gave notice that on the fourth day of February, 1888, the post-office build- ing at Bothwell, Ontario, was feloniously broken into and entered by a person or persons unknown, who did then and there steal Canadian postage-stamps of the value of thirty dollars, and also money, jewelry, goods, and other personal property of the value of two hundred dollars; and that on the eleventh day of February, 1888, the plaintiff went to Wind- sor, with a companion, and offered for sale a quantity of Canadian postage-stamps, of the value of about thirty dol- lars, and that among other persons to whom he offered them was the assistant postmaster at Windsor; that said assistant postmaster reported the facts of said burglary and larceny at Bothwell, and the attempt of said plaintiff and his companion to sell about the same quantity of postage-stamps, to a police- officer at Windsor; that, upon such information, said police- officer had reasonable cause to suspect the said plaintiff and his companion to have been guilty of the felony aforesaid; and that thereupon the said police-officer, by virtue of his power as such officer, arrested the said plaintiff and his com- panion, and took them before Alexander Bartlett, a police magistrate in Windsor, to be dealt with according to law. ''And the said defendant will further insist and prove that if it published the alleged libelous article set forth in the plain- tiff's declaration, the same was a true and correct account of the said felony, and of the arrest of the said plaintiff and his companion by a police-officer, on his suspicion that they were guilty of said felony; and said article was and is, in that sense, a true and correct statement of the facts, and was pub- lished as a privileged publication, and for good purposes and justifiable ends." Upon a trial had in the circuit court for the county of Wayne, before a jury, Hon. C. J. Reilly, the presiding judge, directed a verdict for the defendant, and judgment passed ac- cordingly. It is to be presumed that the trial judge held the publica- 324 McAllister v. Detroit Free Press Co. [Mich. tion to have been privileged, no reason being stated in the record for his action. In addition to the facts of the arrest, as hereinbefore stated, the plaintiff showed that he then lived in Bay City, Michigan, where he had resided since October 16, 1888. Previous to that time he had lived in Detroit fourteen months; two years before that in Chicago; eight months before going to Chicago in Flint, Michigan; and for twenty-three years before living in Flint he had resided in Detroit steadily, and for twenty years at one place, — 244 Park Street. At the time of his arrest he was dealing in and owner of real estate in Detroit; and French, his companion, was also in the same business, and had an office on Griswold Street. Plaintiff first saw the article in the Free Press on the after- noon of February 12, 1888. Heard some parties speaking about it at the house where he boarded. After the publication, people halloed to him upon the street in different ways, and he also received letters in relation to it. At the time he was searched he had two fifty-cent American pieces, and two five and one three dollar gold pieces, a diamond ring, and about fifty dollars in money, including the gold pieces. The defense showed the commission of the robbery at Both- well by some unknown person on the night of February 4, 1888. William Regan, the postmaster at that place, testified that he discovered the robbery the next day, and at once no- tified the post-office inspector at London, Ontario. Bothwell is about sixty miles from Windsor. Regan testified that about $110 of Canadian postage-stamps were taken, and about $80 in money, — gold, silver, and bills, — $194 in all, stamps and money. Some jewelry was also taken, — a watch-chain and some charms, — and some gold pieces, — one five-dollar, one two-and-a-half-dollar, and two one-dollar gold pieces. The five-dollar piece was an American coin. The defendant proved by Bartlett, the magistrate, that this robbery at Bothwell, under the laws of Ontario, was a felony, and the selling of stamps without license a misdemeanor. It also appears from his testimony that the complaint was with- drawn before McAllister and French were required to plead to it. William Bains, the chief of police, was also sworn on belialf of the defendant. His main evidence was given in the attempt to justify his conduct towards the prisoners while in his charge, in which he was not successful. He testified that he gave no ( Oct. 1889.] McAllister v. Detroit Free Press Co. 325 directions to have them arrested, and first saw them at the lock-up, where he went after hearing of their arrest. Before their arrest he had received from Mr. Parker, the post-office inspector at London, the following letter: — " Post-office Inspector's Office. " London, 7 Feby., 1888. ^^ Dear Sir, — I beg to inform you that on the night of Sat- urday, fourth inst., the Bothwell P. O. was burglarized, and some $200 in cash and postage-stamps stolen from the safe. There was also a quantity of jewelry taken, the property of the postmaster's wife, consisting of 1 gold chain, long, with fancy link; 2 lockets, silver, — one with gold chain attached; 2 gold pencil-cases; 1 $5 gold coin; 1 $2.50 do.; 2 $1 do.; 1 sovereign, with a hole in it, and the name ' Ella Rose' stamped across the face; 1 25c gold coin. I will feel obliged if you will have such inquiry made by your staff for the stolen goods as you may deem necessary, as they may be offered for sale in your locality. Yours truly, " R. W. Parker, P. 0. Inspector. " Mr. Bains, Chief of Police, Windsor." He was present when French and plaintiff were searched, and saw the articles found upon them, and after they were locked up reported the case to Mr. Bartlett. He testifies that the finding of the stamps and the gold coins upon their persons, and the letter he had received from Parker, led him to believe or suspect that these men might have had something to do with the Bothwell robbery; that he sent an officer over to Detroit to find out about them, and to see Dr. Kennedy; that the officer returned about six o'clock, P. M., and reported that the doctor said he had sold the stamps to French, and also that he had been to the magistrate, Bart- lett, who instructed him to release them. On cross-examination Bains testified: — " Q. Did you have any talk with the newspaper reporters about this matter? A. Wlien these gentlenjen left, one of them — I can't say which — turned and said to me: 'Don't give this to the papers. We don't want this in the papers'; and I said: 'Gentlemen, they will not get it from me.' Tliat is what passed. Shortly after they passed tlirough the front door, a reporter came to me and asked me about this matter, and I said: 'The gentlemen are released. It appears there is nothing against them, and I was requested not to let the 326 McAllister v. Detroit Free Press Co. [Mich, papers have it.' Who that reporter was there for I can't tell you. " Q. Do you know his name? A. No, sir, I don't; and I don't know what paper he was for. " Q. You can't say whether he was a reporter for the Detroit Free Press? A. I don't know. That is the only re- porter I spoke to about it." The poHceraan who arrested them testified to arresting them on information that they were selling stamps at less than their face value. He knew about the Bothwell robbery. The assistant postmaster told him of this, and pointed the men out to him. He also knew of their trying to sell the stamps at two other places. He claims he arrested them on suspicion of the Bothwell robbery. He swears he did not talk with or give any information about the affair to any reporter. Ira W. Quinby, exchange editor of the Free Press, testified that at the time of the publication of the alleged libel he was a reporter for that paper, and had been " doing " Windsor in that capacity for about two years. He wrote both the items published in the Free Press in relation to the arrest of French and plaintiff". He was in Windsor on the day of such arrest, and was in Bartlett's court-room about three o'clock, p. m., as near as he could remember. While there he heard a conver- sation between Mr. Bains and the magistrate. He had no coversation with Bains, but talked some with Bartlett. He was not acquainted with plaintiff" or French, and saw them for the first time when he testified. He wrote the item about six o'clock, p. M., and handed it lo the city editor of the Free Press. He was not in Bartlett's court over eight or ten min- utes, and in Windsor but half an hour. "Q. Where did you get the information which led you to write this article? A, When I came in, Mr. Bains was there talking with the magistrate about these two men. Mr. Bains said there had been a burglary committed, and he thought that these two men were the ones. That is what he was tell- ing Bartlett at the time. Mr. Bartlett was not so sure, but Mr. Bains was telling him the stuff" he found on them, and he gave Bains permission to keep them until further developments. I think I arrived there shortly after they had been examined and returned to the cell. That is my impression now. "Q. Yo didn't see these men in the court-room at any time? A. No, sir. "Did you hear anybody else talking about it besides Bains Oct. 1889. J McAllister v. Detroit Free Press Co. 827 and the magistrate? A. No, sir; I did not. I talked with Bartlett afterwards, and he read the warrant that Mr. Wigle had sworn to; and Mr. Bartlett gave me the information that I got. "Q. He gave you the information about the Bothwell rob- bery? A. Yes, sir. "Q. Did you know about it before? A. No, sir; I hadn't heard about it. "Q. Will you state whether or not the account was based upon the facts that you learned there? A. Yes, sir. "Q. Will you state what, if anything, was said in that con- versation about their being hard-looking characters? A. Yes, sir. Mr. Bains, I think, said it. He said they were rather hard-looking citizens. The idea that I got from it was, that they were a couple of tramps, such as you see any day on the railroad. That is the impression conveyed to me." He could not say that either Bains or Bartlett said that two thousand dollars in money had been taken from the Bothwell post-office, but expects they did, because he wrote it that way. Mr. Bartlett said that about thirty dollars of stamps had been stolen at Bothwell. He also told witness that the men (plain- tiff and French) were searched at the station, and thirty dol- lars' worth of stamps found upon them. "Q. Who told you that they were hard-looking citizens? A. Mr. Bains said it to the magistrate. Nobody told me. There should be quotation marks there. "Q. Who told you that they canvassed the business part of Windsor? A. The magistrate, also. "Q. Who told you that they were making an effort to sell the stamps at half-price? A. Mr. Bartlett. "Q. Where did you get their names? A. I found them on the warrant." He further testifies that he did not ask any particulars about these men; nobody seemed to know where they came from. "I asked Mr. Bartlett if he knew who they were, and he said no, he did not. "Q. Did you ask Mr. Bains? A. No, sir. You can't ask Mr. Bains anything when he is excited. "Q. Was Bains excited? A. Yes, he was. Whenever Mr. Bains had criminals on hand, I would always go to Mr. Bart- lett for information, because he didn't get so flustrated." This reporter made no further effort to find out who these 328 McAllister v. Detroit Free Press Co. [Mich. men were, or the particulars of the transaction, because, as he says, " there was no use." He testified that Bartlett was not BO strong in his opinion that the men were connected with the burglary as Bains; but Bartlett told the reporter that Bains would hold them for developments. On Monday, about three o'clock, P.M., he learned that the men had been released. Before he wrote the last item, he went up to the court-house at Windsor. Bains and Bartlett were inside. Outside of the building he met a patrolman, — didn't know who he was, — and asked him about '* the McAllister-French business." He said they were discharged. "I said, 'What was the matter?* and he said, 'No evidence.' I said, 'Don't you know who they were?' and he said, 'No.'" He claims he went back to the town hall or court-house twice afterwards that day to see Mr. Bains, but he and Bart- lett had gone to Sandwich. "Q. When did you write that item? A. Monday night. It came out Tuesday. "Q. Did you ever make any effort, up to that time, to find out whether they were reputable citizens or not? A. No, sir. It had slipped my mind." Mr. Fralick, the city editor, was not sworn, but Mr. Quinby testified that he didn't know that Fralick took any steps to find out about these men. He heard nothing about the mat- ter afterwards. A. G. Boynton, one of the stockholders of the defendant company, was sworn for the defendant, and testified that he resided on Bagg Street, which runs into Park Street. "Q. Some allusions were made by counsel in this case, in his opening, to the fact that you lived in the same neighbor- hood with Mr. McAllister. A. Mr. McAllister lived a neigh- bor to me for some years." He testified that he was acquainted with plaintiff in a gen- eral way for some years, but never knew Mr. French until he saw him in the court-room. Boynton never heard of the item complained of until it was published. "Q. Did you read the item before it was published? A. No, sir; I don't remember reading it at all." It was not an item that came in his department, and he knew nothing of it until told that suit was brought, and then he hunted it up. This is the substance of the material testimony taken in the case. Mr. Bartlett having returned to Windsor, plaintiff's Oct. 1889.] McAllister v. Detroit Free Press Co. 329 counsel asked the court to adjourn the case until the follow- ing morning, so that he could be produced for the purpose of contradicting the witness Quinby as to the source of his infor- mation. The court declined to allow an adjournment, and exception was taken. It does not appear from the record at what time of day this motion was made, and therefore we are not entirely satisfied that this refusal was an abuse of discretion; but it seems to us that the adjournment, in the interest of justice, should have been granted. If the witness Quinby was not telling the truth as to his source of information, it was a very mate- rial fact to be considered in the case. If the portions of the article acknowledged to be untrue were manufactured by the reporter, they were certainly not privileged. Such fact would also have a bearing upon the question of damages. If, as the reporter says, he did not get to the court- room of the magis- trate until after the plaintiff and French had been taken out, the warrant read to them, and they returned to their cells, it is not likely that Bartlett gave the reporter the information he claims he did, if Bartlett's testimony on the trial is true. Mr. Bartlett testified as follows: — "Q. About what time upon this Saturday did Mr. Wigle make the complaint, and swear to it? A. I think between two and three o'clock. " Q. Were the accused parties arraigned on that complaint? A. The complaint was read to them. I think. "Q. What was done when it was read? Were they required to plead to it? A. Mr. Wigle appeared, I think, at the same time that they were there, and the complaint was read to these parties; but Mr. Wigle, by the time we read the complaint, had become convinced that they were innocent, so far as an intentional violation of the law was concerned, and he with- drew the complaint, and I think he withdrew it in the pres- ence of these two parties." He also testified that no complaint was made against them on account of the Both well robbery, and that such robbery was only a matter of conversation between him and the post- master, and he could not swear that Bains, the chief of police, informed him that he suspected these men of that robbery, but thought it quite probable that he did. Nor could he re- member that there was any conversation between himself and Bains in regard to the circumstance of these parties having postage-stamps that they were offering for sale. It would 330 McAllister v. Detroit Free Press Co. [Mich. appear from the record that Mr. Bartlett was sworn for the defense, and had gone back to Windsor before Mr. Quinby was examined. The plaintiflF was entitled to his testimony, unless the circumstances were such that it could have been procured that day without adjournment over. This case clearly ought to have gone to the jury. The item was confessedly untrue in several particulars; and these false items all tended, in the connection used, to carry the impres- sion that plaintiff and French were guilty of a felony: 1. The coincidence, which was not a true one, that about thirty dol- lars' worth of stamps had been stolen from Bothwell, and the same amount found upon these parties; 2. That they were "hard-looking citizens," carrying the impression, as Quinby admits, that they were a "couple of tramps"; 3. That they canvassed the entire business part of Windsor, in the effort to sell stamps at half-price, which contains two untruths; 4. That they at last tried to sell the stamps to the postmaster. It requires but a glance to discover a vast difference between the actual facts of this transaction, and the story as published. A true account would have shown the arrest of two reputable American citizens for the offense of selling stamps without a license, discharged by the magistrate of such offense as soon as the complaint was read, because the postmaster was satis- fied that they meant no intentional violation of the law, but kept by the chief of police of Windsor for three hours after- wards, and treated by him with gross indignity; that he had suspicions that they were connected with the Bothwell robbery, because of the stamps and gold coin found upon their persons, but he refused to let them communicate with their friends or counsel in Detroit, and did not release them until he was obliged to by the order of the magistrate, although he had learned that they were all right, — in short, an inexcusable outrage by the chief of police upon honest men, guilty of no crime, and innocent of any intentional wrong. The publication shows a couple of tramps, trying at every business place in Windsor to sell postage-stamps at half-price, having the same amount in their possession that was stolen at Bothwell the week before. At last they try the posmaster, who has them arrested. " Chief Bains will hold them to await de- velopments." Before or about the time it was handed to the city editor, who, it seems, took no steps to ascertain its truth, these men had been discharged; and, when it was being read by people Oct. 1889.] McAllister v. Detroit Free Press Co. 331 on Sunday in the Free Press, French and the plaintiff were at home in Detroit, as free from any restraint of the law, and from any suspicion of wrong-doing, except for this article, as the reporter who wrote it. If it were not possible, as contended, that a true statement of the whole of the facts could have been published at that time, certainly a little inquiry on Monday afterwards by this same reporter might have set the matter aright. But it was a matter of so small consequence to him that "it had slipped his mind," and he contents himself with the statement of a patrolman on the streets of Windsor, and the paper on Tuesday has an item that French and the plaintiff have been discharged because there was no evidence that they were the men wanted at Bothwell. In other words, it is published, not that they were discharged because their innocence was estab- lished, which was the fact, but because the charge or sus- picion that they were concerned in the Bothwell robbery was " not proven." If the reporter had contented himself with stating that these men had been arrested; and a complaint made against them for selling stamps without a license, and that the fact of their oflfering to sell the stamps, and having them in theip posses- sion when searched, led the chief of police to think that they might be connected with the Bothwell robbery, and that Chief Bains was holding them to await developments, it might have been privileged, although not true at the time it was pub- lished, and not the whole truth at any time, which the reporter had the means and opportunity to discover, but did not. But, as the case stood, it was not privileged, and the only question for the jury was one of damages. It will be noticed that the item as published was not in "quotation marks," as the reporter thinks some of it ought to have been. It was printed as a matter of fact coming from Windsor, when in fact it was written by an employee of the paper at Detroit, entirely from hearsay. He could have per- sonally investigated the matter, but did not do so. He did not ask to see the men, or go where they were. He did not talk with the postmaster. He heard, as he says, a talk be- tween Bains and Bartlett, and asked the latter a few questions. The only thing that he saw with his own eyes — the com- plaint — he does not mention in his publication. If he had stated the nature of it, it might not have carried so great an impression of the parties' guilt. The publication was looking 832 McAllister v. Detroit Free Press Co. [Mich. towards a felony. The complaint he saw was only for a mis- demeanor. Nor was any care shown by the newspaper. It was, as far as the record shows, published as handed in by the reporter, without thought of verification. It is argued that a newspaper in this day and age of the world, when people are hungry for the news, and almost every person is a newspaper reader, must be allowed some latitude and more privilege than is ordinarily given under the law of libel as it has heretofore been understood. In other words, because the world is thirst- ing for criminal items, and the libel in a newspaper is more far-reaching and wide-spread than it used to be when tales were only spread by the mouth, or through the medium of books or letters, there should be given greater immunity to gossip in the newspaper, although the harm to the person in- jured is infinitely greater than it would be if published other- wise. The greater the circulation the greater the wrong, and the more reason why greater care should be exercised in the pub- lication of personal items. No newspaper has any right to trifle with the reputation of any citizen, or by carelessness or recklessness to injure his good name and fame or business. And the reporter of a newspaper has no more right to collect the stories on the street, or even to gather information from policemen or magistrates out of court, about a citizen, and to his detriment, and publish such stories and information as facts in a newspaper, than has a person not connected with a newspaper to whisper from ear to ear the gossip and scandal of the street. If true, such publication or such speaking may be privileged, but if false, the newspaper as well as the citizen must be responsible to any one who is wronged and damaged thereby. It is indignity enough for an honest man to be arrested and put in prison for an offense of which he is innocent, and for which indignity ofttimes he has no redress, without being further subjected to the wrong and outrage of a false publica- tion of the circumstance of such arrest and imprisonment, looking towards his guilt, without remedy. And no sophistry of reasoning, and no excuse of the demand of the public for news, or of the peculiarity and magnitude of newspaper work, can avail to alter the law, except, perhaps, by positive statute, which is doubtful, so as to leave a party thus injured without any recompense for a wrong which can even now, as the law Oct. 1889.] McAllister v. Detroit Free Press Co. 833 Btands, never be adequately compensated to one who loves his reputation better than money. What is privileged in publications? The truth is privi- leged when published from good motives, and for justifiable ends. And that which is not true, but honestly believed to be true, and published in good faith, by one in the perform- ance of a public or official duty, in certain cases, is also privi- leged. This is so in the case of communications made to a body or officer having power to redress a grievance complained of, or having cognizance of the subject-matter of the communica- tion, to some intent or purpose, and in cases where the com- munication is made confidentially, or upon request, where the party requiring the information has an interest in knowing the character of the person inquired after. So may a person be justified where he is honestly endeavoring to vindicate his own interests, as in the case of the slanderer of title, or guard- ing against any transaction which might operate to his own injury: See Usher v. Severance, 20 Me. 9, 16; 37 Am. Dec. 33. As is well said by Chief Justice Whitman in that case: "The case at bar is one of a publication addressed to no person or body of men having power to redress a grievance, and it is rather superfluous to add, not a confidential communication to any one, and does not appear to have been designed to guard against any injury imminently threatening the indi- vidual interests of the publisher; nor does it present a case of words in themselves not actionable." The liberty of the press, as the law now stands, is only a more extensive and improved use of the liberty of speech which prevailed before printing became general; and, inde- pendently of certain statutory provisions, the law recognizes no distinction in principle between a publication by the pro- prietor of a newspaper and a publication by any other person. A newspaper proprietor is not privileged, as such, in the dis- eemination of the news, but is liable for what he publishes in the same manner as any other individual: Townshen-d on Slander and Libel, sec. 252. The judgment of the court below is reversed, and a new trial will be granted, with costs of this court to plaintifi". Newspaper Libel. — The object of this note is, not to treat of the gen- eral law of libel, but rather to state the rules especially applicable to cases wherein complaint is made of libels alleged to have been published in news- papers or other perisdicals. We ace not aware that the rules or principles 334 McAllister v. Detroit Free Press Co. [Mich. applicable to the publication of libels are in any respecb different when their publication ia in a newspaper from what they are when such puT)lication is in some other periodical. Therefore, in this note, we jshall use the term " peri- odical " aa indicating newspapera as well as other publications made at stated periods, in magazines and other periodicals of more enduring and pretentious character than ordinary newspapers. If in this note any attention is given to principles not exclusively applicable to the publishers of periodicals, it will be found, on examination of the adjudged cases in which these principles have been announced and applied, that by far the greater number of them have been actions or prosecutions against the publishers of periodicals, and that while the principles may occasionally be applied to other publishers, yet that such is so rarely the case that their consideration is amply justified in a note which attempts to treat of the law of newspaper libel. For the publication of a libel in any periodical, five different classes of persons may be answerable, viz., the author, the editor, the printer, the pro- prietor, and any other person who engages in the publication or distribution of the libelous periodical with knowledge of the libel therein contained. In other words, all who knowingly participate in or contribute to the libel must respond in damages to the subject thereof, if he is injured thereby. The proprietor of a periodical in which a libel has been published cannot escape liability otherwise than by proving that it was a matter which, not- withstanding its libelous character, he had the right to publish. In vain may he urge that he knew nothing of its intended publication, that he was absent from the city or other place where his paper was printed, and had left it in charge of others, who in the publication of the libel complained of had not acted in pursuance of his instructions to them: Hunter v. Sharp, 4 Fost. & F. 983; 15 L. T., N. S., 421; Rex v. Walter, 3 Esp. 21; Hex v. Dodd, 2 Ses. Cas. 33; Andres v. Wells, 7 Johns. 260; 5 Am. Dec. 267. "As respects a publica- tion by writing a libel, not only the publisher, but all who in any wise aid or are concerned in the production of the writing, are liable as publishers. The publication of the writing is the act of all concerned in the production of the writing. Thus if one composes and dictates, a second writes, and a third publishes, all are liable as publishers, and each is liable as a publisher. The law denominates them all makers and all publishers: Townshend on Slander and Libel, sec. 115; 2 Starkie on Slander, 225; Bishop's Crim. Law, sec. 931. The proprietor of a newspaper is responsible for whatever appears in its columns. It is unnecessary to show that he knew of tlie publication or au- thorized it (Huff v. Bennett, 4 Sand. 120); for he is liable, even though the publication was made in his absence, and without his knowledge, by an agent to whom he has given express instructions to publish nothing exceptionable, personal, or abxvsive, which might be brought in by the author of the libel ": Buckley v. Knapp, 48 Mo. 152. Whenever the proprietor of a periodical leaves it in charge of other per- sons, he provides them with the means of injuring others by malicious or careless assaults upon their reputation. If he reserves no supervision over them, he practically authorizes them to write and publish whatever they think proper. They stand in his place and represent him; and if they publish a libel, he is as responsible as if it had been done by him personally or under his direct supervision, and whether the wrong resulted from their negligence or from a wanton and reckless purpose to injure the object of it. In such a case, the fact that the proprietor was not present, and did not have any previous knowledge of the libelous publication, does not constitute a suflBcient defense, even to a criminal prosecution against him for libel, in the absence <3ooks and the reports of adjudged cases " : Gilmer v. Eubank, 13 111. 274. " If I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice because it is wrongful and intentional. It equally works an injury whether I meant to produce an injury or not; and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces ? And I apprehend the law recognizes the distinction between these two descriptions of malice — malice in fact and malice in law — in actions for slander. In an ordinary action for words, it is sufficient to charge that the defendant spoke them falsely; it is not necessary to state that they were spoken maliciously. But in actions for such slander as is prima facie excus- able, on account of the cause of speaking or writing it, as in the case of ser- vants' characters, confidential advice or communication to persons who ask it, or have a right to expect it, malice in fact must be proved by the plaintiff. But in an ordinary action, for libel or for words, though evidence of malice may be given to increase the damages, it never is considered as essential, nor is there any instance of a verdict for the defendant on the ground of a want of malice": Brornage v. Prosser, 4 Barn. & C. 247. The absence of malice in fact, therefore, will not relieve the defendant from liability for such injuries as he may have inflicted on the plaintiff by the publication of a libel upon him: J/airev. Wilson, 9 Barn. & C. 643; 4 Man. & R. 605; Fisher v. Clement, 10 Barn. & C. 472; 5 Man. & R. 730; Wenman v. Ash, 13 Com. B. 845; 22 L. J. Com. P. 190; 17 Jur. 579; Huntley v. Ward, 6 Com. B., N. S., 514; 6 Jur., N. S., IS; 1 Fost. & F. 552; Clark v. Molyneux, L. R. 3 Q. B. 237; 47 L. J. 2.'?0; and even in a criminal prosecution for libel, where the statute permits the defendant to give in evidence in his defense the truth of the matter cont-iimd in the publication charged as libelous, if he further satis- factorily shows that tlie publication was with a good motive, and for justifi- al)le ends, proof that the matter published was libelous still constitutes a jiririM fade case, and the presumption of malice must be rebutted by the de- fendant: CommomoedUh v. Snelling, 15 Pick. 337; Commonwealth v. Bonner, 9 Met. 410. As before suggested, the presumption of malice in law is indisputable when the publication is false, bbelous, and not privileged: Dakotav. Taylor, 1 Dak. 471. The publisher cannot rebut this presumption by proving that he be- lieved the matters constituting the alleged libel to be true, and published it from good motives: Smart v. Blanchard, 42 N. H. 147; King v. Boot, 4 Wend. 113; 21 Am. Dec. 102; Usher v. Severance, 20 Me. 9; 37 Am. Dec. 33; Cass v. Hew Orleans Times, 27 La. Ann. 214; Commonwealth v. Snelling, 15 Pick. 337. There may be circumstances in which a publisher may escape liability by showing that he did not know that the matter published was libelous. It was so held in a case where the defense " was that an alleged libel was a niere fancy sketch or fictitious tale, which had no relation to the plaintiff, and was not intended to apply to him; that the publisher did not know the plain- tiff, nor had he heard of any of the facts stated in the alleged libel as appli- cal)le to him, and if it was intended by the writer to be so applied, the defendant had no knowledge of such intention": Smith v. Ashley, 11 Met. 367; 45 Am. Dec. 216; Dexter v. Spear, 4 Mason, 115. The facts in this case were exceptional, and the principles stated by the court in deciding it are not be- yond question. Certainly if the matters published are libelous on their face, Oct. 1889.] McAllister v. Detroit Free Press Co. 839 or if there is anything to warn the puhlisher that he may injure the reputa- tion of some one, or bring him into contempt, the defendant will not be per- mitted to prove, as a complete defense, that he did not know that the publication was libelous: Curtis v. Mussy, 6 Gray, 261. In implying that an act must be done intentionally to be malicious in law, we think the authorities introduce a false element into their definitions of malice as applied to the law of libel, unless they further imply that every one must be conclusively presumed to intend the necessary or probable re- sults of his acts. One who has published a libel on another cannot success- fully resist the latter's action for redress by showing he did not intend to publish it, and that its publication was due to carelessness, inadvertence, or mistake. Hence it is not a sufficient defense that the publication of a libel resulted from an error in setting type, or in placing plaintiff's name under a Column, headed "first meetings in bankruptcy," instead of that headed " dis- solutions of partnership": S/iepherd v. Whitaker, L. R. 10 Com. P. 502; 32 L. T. 402; or in erroneously stating that the plaintiff's name had been stricken from the roll of attorneys, when it was intended to state that he had been suspended only: Blake v. Stevens, 4 Fost. & F. 232; 11 L. T. 543. Mere errors in printing an item written by the plaintiff in a somewhat illegi- ble hand will not enable him to maintain an action for libel, though the item, as printed, necessarily exposes him to derision, to which derision the item as written by him contributes quite as much as the errors of the printers in deciphering his manuscript: Sulliii;/ v. Shakespeare, 46 Mich. 408; 41 Am. Rep. 166. Damages. — So much of the law of damages as is peculiar to the law of new.spaper libel is almost inseparably connected with the consideration of the question of malice in making the publication complained of. Of course, as in all other cases of libel, the plaintiff, when entitled to recover at all, should be awarded all the damages actually suffered by him. The more ex. tensive the publication of the libel, the greater the injury probably occasioned by it. Therefore, as bearing on the question of the actual damages done to the plaintiff, lie may prove the extent of the circulation of the periodical or pamphlet in which it was publisiied: Gatliercole v. Miall, 15 Mees. & W. 319; 15 L. J. Ex. 179; 10 Jur. 337; Fry v. Bennett, 28 N. Y. 324; Bijelowv. Sprague, 140 Mass. 425; and the principal case. "If it appears upon the trial that there was no intention in fact to injure the plaintiff, and that all proper pre- cautions were observed in the publication of the article complained of, such facts will not prevent a recovery of such damages, but will reduce the amount thereof to such sums as must inevitably result from the wrong ": Eveninf/ News Association v. Tryon, 42 Mich. 549; 36 Am. Rep. 450; Scnpps v. Reilly, 38 Mich. 23. The plaintiff, if the matters published of him are libelous per «e, need not offer any evidence of special damages, unless he desires thereby to increase the amount of his recovery; for if he has been libeled, the law will presume that he has been injured, and leave the amount of such injury to the determination of the juiy : Booijher v. Knapp, 76 Mo. 457; Pricey. Whitely, 50 Id. 437; Rep. Pub. Co. v. Miner, 12 Col. 77. There are various matters which it is said may be proved in mitigation of damages. We do not understand this expression to mean that any of these matters ought to or can deprive plaintiff of his right to recover such damages as he has actually suffered, but rather that they may wholly or partly remove the presumption of malice, which will otherwise be indulged, and will there- fore relieve the defendant from the imposition of punitive damages: Jienrick V. Wilcox, 81 111. 77; Shipp v. Story, 68 Ga. 47; Wazelka v. JJettrick, 93 N. 0. 340 McAllister v. Detroit Free Press Co. [Mich. 10. Hence it has been held that a defendant may prove, in mitigation of dam- ages, that he received letters purporting to have been written by reputable cit- izens charging the plaintiff with certain wrongful acts; that these letters were in tact forgeries, and that he, believing them to be genuine, was imposed upon and induced to publish the libel complained of, in the belief that it was true: Storey v. Early, 8G 111. 461. If the defendant wishes to give evidence of the truth of the libelous matter, he must plead it in justification; and failing to so plead it, he is not entitled to place in evidence before the jury, in mitiga- tion of damages, matters which ought to have been pleaded in justification. Hence if the defendant's belief in the truth of a libelous publication can be proved in mitigation of damages, it can only be in those cases in which he distinctly disavows all right to urge that the words published were true in fact, and merely seeks to remove the presumption of malice by disclosing "the circumstances which induced him erroneously to make the charge com- plained of ": Mineshger v. Kerr, 9 Pa. St. 312; Shiltimjv. Carson, 27 Md. 175; 92 Am. Dec. 6.32; Howard v. Thompson, 21 Wend. 819; 34 Am. Dec. 238; Petrie v. Rose, 5 Watts & S. 3l)4. In criminal prosecutions for libel, there are cases where, though the truth of the defamatory publication is not a complete defense, it may be given in evidence in mitigation of the offense: Coraiiioinveallh v. Morris, 1 Va. Cas. 175; 5 Am. Dec. 515; Commoinceallh v. Blanding, 3 Pick. 304; 15 Am. Dec. 214; Commonwealth v. Clap, 4 Mass. 163; 3 Am. Dec. 212. The gross negligence of the defendant may be shown for the purpose of enhancing damages: Smith v. Harrison, 1 Fost. & F. 565; Scripps V. Redly, 35 Mich. 272. On the other hand, evidence is admissible to rebut any imputation of negligence which might otherwise exist, and the proprietor of a periodical is therefore entitled to show the circumstances attending its publication, the necessity of prompt action on his part, the haste incident to issuing the paper, the time at which the libebms article was handed in, and the sufficiency of the force employed on the paper for gathering news and preparing and supervising articles for publication: Scripps v. Reilly, 38 Mich. 10. It is not proper, however, to instruct the jury that they may consider in mitigation of damages the excitement attending a pending election at which the plaintiff was a candidate, and that the alleged libel was published for the purpose of assisting in his defeat: Rearick v. Wilcox, 81 111. 77. While the retraction of a libel does not relieve its publisher from liability for its publication, it may be proved in mitigation of damages: Cass v. New Orleans Times, 27 La, Ann. 214. One insult does not justify another, nor has the subject of a libel unbounded liberty to indulge in libels upon his adversary. Nevertheless, a libelous retort to a recently published libel is viewed with great charity. If it is in the nature of a reply to the previous libel, and in refutation of its charges, accompanied with disparaging remarks on the libeler not entirely irrelevant to the subject under consideration, the previ- ous libel will be in many instances received in evidence in justification, and in all cases is admissible in mitigation of damages: Chaffin v. Lynch, 83 Va. 106; Alyers v. Kaichen, 75 Midi. 272; Steicart v. Minneapolis Tribune Co., 41 Minn. 71. The publisher may also prove in mitigation of damages that in publishing the article complained of he acted from an honest motive to pro- tect the public against impostors, and upon information tending to show that the person defamed by the publication was engaged in a corrupt scheme to obtain and appropriate money for his own profit: Mosie^' v. Stall, 119 Ind. 244; Hunter v. Sharpe, 4 Fost. & F. 983; 15 L. T., N. S., 421. The general rule controlling the reception of evidence in mitigation of damages is, that any circumstances may be proved "which tend to disprove Oct. 1889.] McAllister v. Detroit Free Press Co. 341 malice, but do not prove the truth of the charge ": Storey v. Early, 86 111. 461; Newell on Defamation, 8S2. Evidence may therefore be admitted to show what were the motives of the defendant in making the publicatioHi Heilnian v. S/ianklhi, 60 Ind. 441. Tliere is one class of evidence admissible in mitigation which appears to establish rather than to disprove actual mal- ice. We refer to evidence of the existence of circumstances connected with the libelous charge, and showing any provocation therefor received from the plaintifif: Knott v. Bur well, 96 N. C. 279; May v. Brown, 3 Barn. & C. 113; 10 Eug. Com. L. 24. Exemplary damages, in the absence of statutes denying them, may always be awarded if it appears that the defamatory publication proceeded from ex- press malice or ill-will: Snijder v. Fulton, 34 Md. 128; and various circum- stances may be received in evidence as tending to establish the existence of malice in fact. Among these are, that other libelous publications have been made by the same defendant against the same plaintiff; State v. Rhjgs, 39 Conn. 493; Larrahee v. Minneapolis Tribune Co., 36 Minn. Ill; Behee v. Bail- way, 71 Tex. 424; though made at so remote a period that any action to recover damages therefor is barred by the statute of limitations: Evening Journal Association v. McDermott, 44 N. J. L. 430; 43 Am. Rep. 392; or a refusal to retract a libel, or to publish, except as an advertisement to be paid for by the plaintiff, any card or statement expressing belief in his innocence: Kkwin v. Bauman, 53 Wis. 244; Barnes v. Campbell, 60 N. H. 27. If a periodical is owned or published by two or more partners, malice in fact of any one of them in making a libelous publication entitles the plaintiff to recover against all, as if all had participated in such malice: Lothrop v. Adams, 133 Mass. 471; 43 Am. Rep. 528. We find it difficult to recoucila the decisions concerning the liability for libels attributable to the malice of editors, reporters, and other employees, in which the proprietors of the peri- odical in which the publication was made did not participate. It is un- doubtedly true tliaC a proprietor who places another person in ciiarye of a periodical becomes answerable for whatever he may publish, " whetlier the wrong resulted from mere negligence, or from a wanton and malicious pur- pose to accomplish tlie business in an unlawful manner "; and, perhaps, in many states, a proprietor in wliose periodical a libel is published through the malice or ill-will of an editor, reporter, or other employee is liable to the same extent as if the malice had been entertained, and the publication au- thorized by the proprietor himself: Bruce v. Jieed, 104 Pa. St. 40S; 49 Am. Rep. 586. Probably, however, the weight of authority at the present time is in favor of exonerating a proprietor from exemplary damages if the publi- cation is due to the malice ot his employees, and is made without his previ- ous knowledge or consent, and under circumstances which relieve him Irom the charge of negligence in permitting such publication: Steviston v. Cramer, 57 Wis. 570; Detroit Post Co. v. McArthur, 16 Mich. 447; Scripps v. Beilly, 38 Id. 10; liobertson v. Wylde, 2 Moody & R. 101. In a few of tlie states exemplary damages are not allowed in actions for slander or libel: Rep. Puh. Co. v. Miner, 12 Col. 77; liosewater v. Hoffman, 24 Neb. 222; but in a greater number they may be awarded in all cases where the jury issatistiod, from the evidence, that the defamatory publication was actuated by malice or ill-will towards the defendant: Templetonv. Graves, 59 Wis. 95; Klewin v. Baauian, 54 Id. 244; Alontgomery v. Knox, 23 Fla, 595; and this malice or ill-wUl may be in:errjd from the fact that the defend- ant has published defamatory matter of the plaintiff which falsely charges 842 McAllister v. Detroit Free Press Co. [Mich. him with an indictable ofifense, or which is otherwise libelous per se: Btn/mann V. Jones, 94 N. Y. 51. The plaintifif's reputation may, previously to the publication of the libel of which he complains, have been bad, iti which case the publication can do him little or no harm. The defendant is entitled to prove this fact in miti- gation of damages. The evidence upon this subject, to be admissible, must not be in regard to plaintiffs having in fact committed specific acts or crimes, but must be restricted to the plaintifif's general reputation: Warner v. Lock- erly, 31 Minn. 421; Stone v. Varney, 7 Met. 86; 39 Am. Dec. 762; Byrhet v. Monohon, 7 Blackf. 83; 41 Am. Dec. 212; Clark v. Brown, 116 Mass. 504; Mahoney v. Belford, 132 Id. 393; Young v. Bennett, 4 Scam. 43; or his reputa- tion of having committed the particular act with which he is charged in the publication complained of: Wetlierbee v. Marsh, 20 N. H. 561; 51 Am. Dec. 244. "The authorities are numerous to prove that the defendant is not confined to evidence of character founded upon matters of the same nature as were specified in the charges, as, for instance, to evidence of the plaintiff's character as a thief, whereas in this case the charge was theft; but he may give in evidence the general bad character of the plaintiff, not by way of jus- tification, but in mitigation of damages, and for this inquiry the plaintiff must stand prepared": Lamos v, Snell, 6 N. H. 415; 25 Am. Dec. 468. That it had been generally reported and believed that plaintiff was guilty of the offense charged against him may in some of the states be proved as tending to establish that his reputation had, before the publication complained of, been so depreciated that the libel could not have injured him to the same ex- tent as if he had been of good and unquestionable repute in the neighborhood wherein he lived, or where the publication was made: Nelson v. Evens, 1 Dev. 9; Galloway y. Middleton, 2 A. K. Marsh. 372; 12 Am. Dec. 499; Wether- bee V. Marsh, 20 N. H. 561; 15 Am. Dec. 244; Sanders v. Johmon, 6 Blackf. 50; 36 Am. Dec. 564. There is no doubt that no one has any right to repeat a pre-existing but false defamatory rumor or statement, and the fact that a slander or libel is but a repetition of one previously existing never justifies it, and will not be received in evidence as a complete defense: Watkins v. Hall, 9 Best & S. 279; L. R. 3 Q. B. 396; 37 L. J. Q. B. 125; 16 Week. Rep. 857; 18 L. T., N. S., 561; Hotchkim v. Oliphant, 2 Hill, 410; although the last publisher discloses the name of some previous author or publisher at the time he makes the publication complained of: MrPherson v. Daniel, 10 Barn. & C. 263; 5 Man & R. 251; Tidman v. Anslie, 10 Ex. 63. If a defamatory charge is published without any reference being made to its author or previous pul)lisher, the last publisher, when au action is brought against him tlierefor, cannot show, even in mitigation of damages, that he merely repeated what had already been published by another: Treat v. Brown- ing, 4 Conn. 408; 10 Am. Dec. 156; Inman v. Foster, 8 Wend. 602; Peterson V. Morgan, 116 Mass. 350; Bradley v. Gibson, 9 Ala. 406; Talbot v. Clark, 2 Moody & R. 312; Shehanv. Collins, 20 111. 325; 71 Am. Dec. 271; Davis v. Sladden, 17 Or. 259; Marker v. Dunn, 68 Iowa, 720. The defendant may, however, prove, in mitigation of damages, that the charge had been pre- viously published, if, at the time of its republication, he either gave the name of the author or the person from whom he had heard it, or disclosed in some other appropriate manner that he did not make the charge himself, but merelj- repeated what he had heard or had seen in some other publication: McDonald v. Woodruff, 2 Dill. 244; Bennett v. Bennett, 6 Car. & P. 586; Evans V. Smith, 3 Mon. 363; Dunscotnbe v. Danville, 8 Car. & P. 222; 2 Jur. Oct. 1889.] McAllister v. Detroit Free Press Co. 343 32; Storey v. Early, 86 111. 461; Galloivay v. Courtney, 10 Rich. 414; Toujig v. Simons, Wright, 124; Williams v. Oreenwade, 3 Dana, 438. In Minnesota, and perhaps in a few other states, the defendant, for the purpose of establish- ing his belief of charges published by him, and of relieving himself from the imputation of malice in fact, may prove, in mitigation of damages, that he had seen the same charges in another periodical before he published them himself: Hewitt v. Pioneer Press Co., 23 Minn. 178. Newspapers exist in response to a demand of the public for news, or for information upon divers subjects, both public and private. When one who publishes a libel acts in the bona fide discharge of a public or private duty, legal or moral, he is exonerated from liability, unless it appears that he acted with a malicious intent: White v. Nichols, 3 How. 286. There are provisions in the constitution of many of the states guaranteeing the liberty of the press, and there is an unquestionable demand for news upon all sorts of topics, and especially for statements concerning the character, reputation, and supposed evil doings of those who are personally known in the commu- nity, or whose prominence is such as to excite interest in them even beyond localities in which they are personally known. Because of these provisions guaranteeing the liberty of the press, and of the wide-spread demand for all kinds of news, it has been claimed on behalf of publishers of periodicals that they have the right to publish whatever they may, in good faith, regard as news, and as supplying a well-known demand, provided that, in what they publish, they do not act malevolently, nor otherwise than merely in response to the desire of the public for information respecting the matters published. From the fact that there is a demand for news, they argue a duty on their part to supply such demand, and, as a necessary consequence, that they can. not be held answerable for performing this duty as long as they do not act maliciously, even though it should happen that the statements published were not true, and were calculated to imperil or destroy the reputation and happi- ness of the persons against whom they were made. If the duty of the proprietor of a periodical is to be measured by the de- mand for what he publishe.-s, then the more libelous his publications the more imperative his duty to publish tliem, for, doubtless, the demand for defama- tory news is more eager and inexhaustible than for any other. The existence of this duty cannot be conceded, except to a very limited extent. In consid- ering whether it may be conceded at all, and if so, under what circumstances, or in what cases, publications may profitably be divided as follows: 1. Those relating to private persons, acting in their private capacity; 2. Those relat- ing to persons either filling or seeking public offices or stations, or to the criticism of works to which they have expressly or impliedly invited public attention; 3. Those relating to acts done or proceedings taking place in some public office or department, — legislative, executive, or judicial. The liberty of the press, which is guaranteed under the constitution of many states, does not confer upon it any greater riglit to publish, tlnough periodi- cals, than is given by those otiier clauses of the same constitutions guarantee- ing liberty ot speech, — to publish through the vocal organs. In either case, the publisher is subject to tiie laws of the land; his publication must not be criminal, nor one in defiance of the penal laws; and, at least, when false and defamatory, he must answer in damages to any one defamed or injured thereby: Davidson v. Duncan, 7 El. & B. 229; 26 L. J. Q. B. 104; Palmer v. Concord, 48 N. H. 211; 97 Am. Dec. 605; Barnes v, Camphell, 59 N. H. 185; 47 Am. Rep. 183. A leading case upon this subject is that of Slieckell v. Jackson, 10 Cush. 25, 344 McAllister v. Detroit Free Press Co. [Mich. The defendants had published a libel of the plaintiff, charging him M'ith treachery and bad faith in regard to money received by liim to obtain manu- mission of a fugitive slave, and with then inviting the slave to go into a slave district with a view of again placing him in a state of slavery. The defend- ants souglit to prove that there was a general anxiety in the comnmnity lest the slave in question had been deceived in transactions with the plaintiff, and reduced to slavery; and tliey claimed that, as publishers of a periodical, they had a duty to perform, and that they stated what they honestly thought to be true. The trial court, among other instructions, gave the jury the follow- ing: "But in point of law, the occasion of this publication was not such a one as affords a justifiration to the defendants for publishing what was not true. The defendants' case does not come within the privileged or excepted cases from the general rule. But if the piiblication is libelous upon the plaintiff, upon the definition of libel as before given to you, then the defend- ants are by law responsible to the plaintiff in damages for the injury they have done him. Then it has been urged upon you that conductors of the public press are entitled to peculiar indulgence, and have especial rights and privileges. The law recognizes no such peculiar rights, privileges, or claims to indulgence. They have no rights but such as are common to all. They have just the same rights that the rest of the comiimuity have, and no more. Tliey have the right to publish tlie truth, but no right to publidi falsehoods, to the injury of others." These instructions, when assailed in the appellate court, were pronounced correct in point of law, and well adapted and applied to the circumstances of the case. "The terms 'freedom of the press ' and 'liberty of the press' have misled some to suppose that the proprietors of a newspaper had a right to publish that with impunity for the publication of ^v'hich others would have been held responsible. But the proper signification of these phrases is, if so under- stood, misapprehended. The ' liberty of the press ' consists in a right in the conductor of a newspaper to print whatever he chooses, without any previous license, but subject to be held responsible therefor to exactly the same extent that any one else would be responsible for the publication ": Sweeney v. Baker, 13 VV. Va. 158; 31 Am. Rep. 757. " Freedom of the press and freedom of speech are equally sacred and equally protected by the constitution. Section 3 of the Bill of Rights provides that ' the liberty of the press shall forever remain inviolate, and all persons may freely speak, write, and publish their sentiments on all subjects, being re- sponsible for the abuse of such rights.' In this country, almost all oflficers are elective. The press does not possess any immunity not shared by every individual. In every election the same freedom of discussion of the merits and demerits of candidates is allowed equally to press and people, and every citizen can claim to be interested in the choice of his rulers. Now, can it be saitl that every household visitation made by itinerant politicians, poisoning the minds of electors with libelous and slanderous charges against candidates, every public harangue filled with similar matter, every club-room discussion in which such charges are bandied about with licentious freedom and exag- geration, are privileged communications, and imposing upon the injured party the necessity of proving that they were uttered and published with express malice? We have never supposed that the freedom of speech, even in this country, could legally be carried to such an extent. Yet, if such is the law as to an article published in a public journal, there can be no good reason shown why it does not extend to all channels of communication be- tween man and man during the pendency of an election. We think a public Oct. 1889.] McAllister v. Detroit Free Press Co. 345 journal or an individual who indulges in defamatory assertions about candid dates for ofBce is equally liable for his acts with those who commit the same offense against private individuals": Ald/ichv. Press Printing Co., 9 Minn. 133; SO Am. Dec. 84. So far as our researches have extended, we have been unable to dis- cover any case wherein a periodical has falsely charged a person acting in his jjrivate capacity with the commission of a crime in which the proprietor of the periodical has been permitted to justify his act on the ground that the publication was privileged, because made in good faith as an item of news. "The I'ight to publish through the newspaper press such matters of interest as may thus be properly laid before the public does not go to the extent of allowing publications concerning a person of false and. defamatory matter, there being no other reason of justification for doing so than merely publish- ing the news ": Mallory v. Pioneer Pub. Co., 34 Minn. 521 ; Usher v. Severance, 20 Me. 9; 37 Am. Dec. 33. "The law favors the freedom of the press so long as it does not interfere with private reputation, or otlier rights entitled to protection. And inasmuch as the nevvs[)ai)er press is one of the necessi- ties of civilization, the conditions iinder which it is required to be conducted should not be unreasonable or vexatious. But the reading public are not en- titled to discussions in print upon the character or doings of private persons, except as developed in legal tribunals, or voluntarily subjected to public scrutiny. And since an injurious statement inserted in a popular journal does more harm to the person slandered than can possibly be wrought by any other species of publicity, the care required of such journals must be such as to reduce the risk of having such libels creep into their columns, to the lowest degree which reasonable foresight can assure ": Detroii Daily Post Co. v. J\Ic Arthur, 16 Mich. 452. In the case of Barnes v. Campbell, 59 N. H. 128, 47 Am. Rep. 183, the defendants, who had charged plaintiff with the commission of a crime, pleaded that they were the publishers of a newspaper, and, as such, that it was their duty to give to their readers such items of news as they might judge to be of interest and value to the community, and that, as such pub- lishers, they published the article couiplained of in good faith, without malice, and believing, and having good reason to believe, the same to be true. In determining that this plea was insufficient, and ought to be stricken out, the appellate court saitl: "The defendants probably intended to set out the excuse of a lawful occasion, good faith, proper purpose, and belief, and probable cause to believe, that the publication was true. They laid stress upon their business of publishing a newspaper. But professional publishers of news are not exempt as a privileged class from the conse- quences of damage done by their false news. Their communications are not privileged merely because made in a public journal. They have the same right to give information that others have, and no more. The occasion of the defendants' publishing a false charge of crime against the plaintiff was not lawful, if the end to be attained was not to give useful information to the community of a fact of which the community had a right to be, and ought to be, informed, in order that they might act upon such information: State V. Bunihain, 9 N. H. 34, 41, 42; 31 Am. Dec. 217; Palmer v. Concord, 48 N. H. 211, 217; 97 Am. Dec. 605; Carpenter v. Bailey, 53 N. H. 590; 56 Id. 283. The defendants do not state facts that would constitute a lawful occasion. They make a loose averment of their general duty to give their readers such news as they (the defendants) might properly judge to be of interest and value to the coumiunity. This should be struck out of the 346 McAllister v. Detroit Free Press Co. [Mich. record as insufficient and misleading. It is, in efifect, an intimation that they published the libel in the usual course of their business, and is calcu- lated to give the jury the erroneous impression that the defendants' judg- ment of the propriety cf the publication is evidence of the lawfulness of the occasion. The defendants' general business of publishing interesting and valuable news was not, of itself, a lawful occasion for publishing this partic- ular false and criminal charge against the plaintiff. It will be for the jury to say what weight the defemlants' l)usiness has as evidence on the question of malice. But however high the defendants* vocation, and however inter- esting and valuable the truth which they undertake to give their readers, their ordinary and habitual calling is no excuse for assailing the plaintiff's character with this -false charge of crime. They must show specific facts, constituting a lawful occasion in this particular instance, as if this false charge had been the only thing they ever published." While the decisions to which we have referred have generally related to libels charging plaintiff with grievous crimes punishable as felonies, the same principles must prevail where the libel in question is less serious in character: Snyder v. Fulton, 34 Md. 128. Thus a periodical reflecting upon the integrity of a professional man, and charging him with treachery to the interests committed to his protection, cannot be justified because published as an item of news; nor, if he be a lawyer, can the publication be justified on the ground that it related to his conduct of a proceeding in court; for, in those cases in which publication may be made of proceedings in court, the publication must be confined to what actually took place, and not accom- panied by libelous animadversions on the participaiats: Atkinson v. Detroit Free Press Co., 45 Mich. 341; Ludwig v. Cramer, 53 Wis. 193. Various statutes have been enacted in different portions of the United States for the purpose of modifying the law of libel with a view of enlarging the circumstances under which newspapers may either wholly escape liability, or may diminish the damages otherwise recoverable. Thus in Connecticut, in the year 1855, it was enacted "that in every action for an alleged libel the defendant may give proof of intention; and unless the plaintiff shows proof of malice in fact, he shall recover nothing but the actual damages proved and especially alleged in the declaration." In construing this statute it was held that a belief that the charge is true is not a defense sufficient to excuse the party making the publication, where the circumstances were such as to show an indifference to its truth or falsity: Moore v. Stevenson, 27 Conn. 14. It was also held that this statute permitting the defendant to give evidence of his in- tention was but an extension of a rule previously existing as to the admissibil- ity of evidence; that such evidence had always been admissible in reduction of damages, but that the statute made it, in the absence of rebutting proof on the part of the plaintiff, a bar to the recovery of general damages; that the provision that the plaintiff shall prove malice in fact was not intended to pre- scribe any new rule as to the kind and degree of malice to be proved, or as to the evidence by which the existence in fact of improper motives was to be shown, but only to require that it be shown by other evidence than mere legal presumption from the fact of publication that the defendant's motives were not proper and justifiable; that the motives of defendant were im- proper may still be inferred from the character of the publication itself and from the attendant circumstances, and that it was not necessary for the plain- tiff to prove any actual hostile motives; and finally, that any construction of the act which would make it abridge beyond these limits the rights of plaintiff in such a suit would bring it into conflict with that portion of the constitu- Oct. 1880.] McAllister v. Detroit Free Press Co. 347 tion of tlie state declaring that " every person for an injury done him in his person, property, or reputation shall have remedy by due course of law, and right and justice administered without sale, denial, or delay ": Hotchkiss v. Porter, 30 Conn. 414. By the Michigan statute of 1885 it was enacted "that in any suit brought for the publication of a libel in any newspaper, the plain- tiff shall only recover actual damages, if it shall appear that the publica- tion was made in good faith and did not involve a criminal charge, and its falsity was due to mistake or misapprehension of the facts; and that in the next regular issue of said newspaper after such mistake or misapprehension was brought to the knowledge of the publisher or publishers, whether before or after suit was brought, a correction was published in as conspicuous a man- ner and place in said newspaper as was the article sued on as libelous "; and the statute further declared that the words " ' actual damages ' should be con- strued to include all damages the plaintifif may show he has sufifered in re- spect to his property, tratle, profession, or occupation, and no other damages." In the case of Park v. DttroH Free Press Co., 72 Mich. 660, 16 Am. St. Rep., the opinion was expressed that this statute was not " within the power of constitutional legislation." This portion of the opinion was, however, not necessary to the decision of the case. A similar statute having been adopted in Minnesota, its constitutionality was sustained by the supreme court of that state in Allen v. Pioneer Press Co., 40 Minn. 117; 30 Alb. L. J. 294; 12 Am. St. Rep. 707. In this case it was further determined that mere belief in the truth of the publication is not sufficient to constitute good faith on the part of the publisher; that he must be free from negligence as well as from improper motives in making the publication; and that it is his duty, not- withstanding the statute, to take all reasonable precautions to verify the truth of the statement and prevent any untrue and injurious publication against others. The head-line of an article or paragraph, being so conspicuous as to attract the attention of persons who look casually over a paper without carefully reading all its contents, may in itself inflict very serious injury upon a per- son, both because it may be the only part of the article which is read, and because it may cast a graver imputation than all the other words following it. There is no doubt that in publications concerning private persons, as well as in all other publications which are claimed to be libelous, the head-lines directing attention to the publication may be considered as a part of it, and may even justify a court or jury in regarding the publication as libelous when the body of the article is not necessarily so: Lewis v. Clement, 2 Barn. & Adol. 702; Clenientv. Lewis, 7 Moore, 200; 3 Brod. &B. 279; Harvey v. French, 2Tyrw. 585; 1 Car. & M. 11; 2 Moore & S. 519; JJayes v. Press Co., 127 Pa. St. 642; 14 Am. St. Rep. 874. We have heretofore shown that the publication of a libel cannot be justi- fied on the ground that it is a mere repetition of what had already been said or otherwise published by some other person or periodical. The fact that a former publication took place at a public meeting and was a part of the pro- ceedings of such meeting, or of a speech there delivered, or a report there made or filed, does not render the rule inapplicable, unless the meeting is that of some official body whose proceedings may be riglitfully published within the limits to be hereafter stated. The fact that defamatory words are .spoken or written to or by an assemblage of persons does not entitle a proprietor of aperiodical to republish them: Davison v. Duncan, 7 El. & B. 229; 3 Jui,, N. S., 615; 26 L. J. Q. B. 104; Popham v. Pickburn, 7 Hurl. &N. 891; 8 Jur., N. S., 179; 31 L. J. 133; 10 U. K. 324; 5 L. T., N. S., 846; Hearne v. Stowell, 348 McAllister v. Detroit Free Press Co. [Mich. 12 Ad. & E. 719; 4 Perry & D. 696; 6 Jur. 456; and if the republication is incited by any of the participants in such meetings, they are answerable therefor: Parks v. Prescott, L. R. 4 Ex, 169; SSL. J. Ex. 105; 17 Week. Rep. 773; 20 L. T., N. S., 537. While, ordinarily, a periodical cannot justify a libelous publication on the ground that it had a duty to the public, or some portion of it, to make the publication in quest'on as an item of news, a periodical may exist for the spe- cial purpose of keeping a particular body or class of men informed on a special subject, and where this is so, it may perhaps justify a republication of libelous matter as falling within the duty which it has voluntarily as- sumed to its patrons. The least questionable instances oi: this class of peri- odicals is to be found in professional and religious journals, which undertake to keep the members of a profession, church, or association informed with respect to the conduct or standing of their fellow-members, and of other matters of especial interest to the common members of such church, profes- sion, or association. If charges have been preferred against a church member, and have resulted in his trial and excommunication by the proper authorities, his sentence may afterwards be read in the church of which he was a member, in the presence of his fellow-members and others who may happen to be there present, without subjecting his pastor, who reads it, to an action for libel: Farnsworth v. Storrs, 5 Cush. 412. On the same princi- ple, if a charge is made against a minister to an association of ministers of the same church, and is followed by the adoption by them of a resolution declaring their belief in the truth of such charges, and notifying the subject of it to appear and show cause why he should not be dismissed, the publica- tion of this resolution in those periodicals recognized as denominational or- gans is privileged: Shurtleff v. Stevens, 51 Vt. 501; 31 Am. Rep. 698. A medical journal may also publish the proceedings of a medical society, when such society is a public corporation authorized by law, though the proceed- ings include charges made against a member of the association resulting in his expulsion: Barrows v. Bell, 7 Gray, 301; 66 Am. Dec. 479. The decisions upon the topic which we are now considering are infrequent, and are hardly sufficient to definitely settle the law controlling it. Possibly they may all be explained and supported upon the ground that the proceed- ings republished took place before quasi judicial tribunals to the jurisdiction of which the parties claiming to have been libeled were subject, and that the publications were justifiable as fair reports of what took place before sucl^ tribunals. If it were possible for one to voluntarily assume the duty of giving infor- mation by written or printed publications to a special class of patrons, and to defend whatever he might thus do, in good faith and without malice, as privileged, then the protection of the rule should be extended to the proprie- tors of commercial agencies, who undertake to obtain information of the stand- ing of persons engaged in trade, and to give their patrons the benefit of such information by circulars or other printed or written means of communication. But while it is lawful to collect such information, and to impart to any patron who may especially apply therefor whatever has been learned concerning the business repute or afifairs of any one in whose afiuirs such patron has anj' interest (Omisby v. Douglass, 37 N. Y. 477; State v. Lonsdale, 48 Wis. 348; Trussellv. Scarlett, 18 Fed. Rep. 214; Sock v. Bradstreet, 22 Id. 771), yet gen- eral publications purporting to disclose the business standing or acts of men, and which are circulated among all the patrons of the publisher, and may therefore reach persons who may not have any special interest in the business Oct. 1889. J McAllister v. Detroit Free Press Co. 349 or affairs of the person of whom the statements are made, are not privileged, and if false and defamatory, are actionable. This rule has been applied with but little judicial dissent in actions for libel, brought against the Bradstreet and other well-known commercial agencies: Siuulerlin v. Bradstreet, 46 N. Y. 188; 7 Am. Dec. 322; Taylor v. Church, 8 N. Y. 452; Braddreet Co. v. Gill, 72 Tex. 115; 13 Am. St. Rep. 768; Ever v. Dun, 12 Fed. Rep. 526; King v, Patterson, 49 N. J. L. 417; 60 Am. Rep. 622; Johmon v. Bradstreet Co., 77 Ga. 172; 4 Am. St. Rep. 77. The freedom with which libelous statements are made against, and dis- honest and corrupt motives attributed to, public officers in periodicals of .high standing and wide circulation tends to produce a popular impression that such officials are not protected by the law against libel. If this impression is to any extent correct, the fault is in the administration of the law, and not in the law itself. The law, instead of abandoning its agents and administra- tors, seeks to give them special protection; and pronounces as libelous pub- lications of persons in their official capacities which might be regarded as innocent if they were private citizens only. Words spoken of a person to dis- parage him in an office of public trust, and which directly tend to prejudice him therein, are actionable, without any proof of special damages: Bellamy v. Burch, 16 Mees. & W. 590; Tillotson v. Cheetham, 3 Johns. 56; 3 Am. Dec. 459. It is true that " it is the duty of all who witness any misconduct on the part of a magistrate, or any public officer, to bring such misconduct to the notice of those whose duty it is to inquire into and jjunish it; and, therefore, all petitions and memorials complaining of such misconduct, if prepared bona fide and forwarded to the proper authorities, are privileged. It is not neces- sary that the informant or memorialist should be in any way personally ag- grieved or injured; for all persons have an interest in the pure administration of justice, and the efficiency of our public affairs in all departments of state ": Oilgers on Libel and Slander, 225; Harrison v. Bush, 5 El. & B. 344; 25 L. J. Q. B. 25, 99; Lake v. Kimj, 1 Sev. 240; 1 Sauud. 131; 1 Mod. 58; Mclntyre V. McBeun, 13 U. C. Q. B. 534. Such charges, to be privileged, must always be made in good faith and to some person, officer, or tribunal authorized to consider them; and must not be spread broadcast over the land. The press has no more privilege to libel public officials than it has to lil)el private citizens. It owes no duty to the public which justifies it in making false and defamatory charges against public officials. "One may in good faith pub- lish a truth concerning a public officer, but if he states that which is false and aspersive, he is liable therefor, however good his motive." The acts of officers may be criticised; they may even be exposed to ridicule and sarcasm without subjecting the publisher to liability for libel. It is otherwise with respect to the private characters and motives of officers. Aspersions upon them are at the peril of the publisher. He may escape this peril by showing that they were true. The public has an interest in knowing ihe truth about its officials, but has not any such interest in knowing falsehoods regarding them. The publisher of a libel upon a public official can justify his publication only by proving that it was true: Hamilton v. Eno, 81 N. Y. 116; Parineter v. Coupland, 6 Mees. & W. 105; 4 Jur. 701; Wilson v. Beed, 2 Fost. & F. 149; liussetl V. Anthony, 21 Kan. 450; 30 Am. Rep. 436; Bourreseau v. Detroit etc. Co., 63 Mich. 425; 6 Am. St. Rep. 320; Nebh v. Hojw, 1 1 1 I'a. St. 145; Camjh bell v. Spottiswoode, 3 Best & S. 769; 9 Jur., N. S., lOOi); 32 L. J. Q. B. 185; 11 Week. Rep. 569; Rowand v. De Camp, 96 Pa. St. 493. The following publications regarding public officials have therefore been 350 McAllister v. Detroit Free Press Co. [Mich. adjudged not to be privileged, and to be actionable, unless shown to be true: A statement that an award made by a public officer recommending a certain street pavement had been dictated by those interested in such pavement, and made in consideration of a reward given such officer: Handlton v. Eno, 81 N. Y. 116; a charge that a member of the legislature had been bribed, or had voted for or against any particular measure from corrupt and dishonest motives: Cramnr V. Piiggs, 17 Wend. 209; Wilson v. Nunan, 23 Wis. 105; Negley v. Farrow, 60 Md. 158; that the plaintiff, who was a member of Congress, was a fawning sycophant, and misrepresentative in Congress, and a groveling office-seeker, and had abandoned his post in Congress in pursuit of office: Thomas v. CroawcM, 7 Johns. 264; 5 Am. Dec. 269; that plaintiff had openly avowed the opinion that government had no more right to provide by law for the support of the worship of a Supreme Being than for the worship of the Devil: Stow v. Con- veise, 3 Conn. 325; 8 Am. Dec. 189; that plaintiff lacked capacity as a judge, had abandoned the principles of truth, and bartered away the office of clerk of his court in such manner as to cancel some of his private debts: Rohhins v. Treadway, 2 J. J. Marsh. 540; 19 Am. Dec. 152; that it was expected that the plaintiff, as court commissioner, would discharge all persons who might be committed by the legislature for refusing to testify, merely to subserve the views of other parties, whose tools and toadies the plaintiff was, and that whatever he might do in the future, the past would warrant the depriving him of his office: Lansing v. Carpenter, 9 Wis. 540; 76 Am. Dec. 281; that the plaintiff was "a damned-fool justice": Spiering v. Andrae, 45 Wis. 330; that the plaintiff, subscribing himself chairman of the Democratic county com- mittee, appeared in a card for a ring, by which he was paid a fee, and the publication of which was paid for out of the corruption fund of the ring; that he had descended from the high calling of a clergyman to the recognized champion and professional defender of prostitutes, and the lowest grade of criminals who throng the audience halls of police courts, and seems to follow his profession solely for the purpose of making money, and his opinions are molded by the extent of his client's means to pay: Barr v. Moore, 87 Pa. St. 385; 30 Am. Rep. 367; that a city physician has caused the death of a child by reckless treatment: Foster v. Scripps, 39 Mich. 376; 33 Am. Rep. 403; that the plaintiff, as representative in Congress, had, for the purpose of obtaining votes, intentionally pressed for the payment of public money on claims the validity of which was questionable: State v. Sclimitt, 49 N. J. L. 579; that plaintiff, while holding the office of sealer of weights and measures, had made a practice of tampering with the weights and scales in order to swell the fees of his office: Eviston v. Cramer, 57 Wis. 570; that the plaintiffs, who were offi- cers of the state penitentiary, had been grossly derelict in their duty, and in the management of the prison: Banner Pub. Co. v. State, 16 Lea, 176; 57 Am. Rep. 214; that the plaintiff was a "retail liquor dealer, and, we are informed, is under indictment for not canceling the stamps on liquor-casks, the con- tents of which he has sold": Jones v. Townsend's Adinr, 21 Fla. 431; 58 Am. Rep. 676; that a county superintendent of schools, for a consideration in money, had induced the county board of education to order a change in school-books: Hartfords, State, 96 lad. 461; that a school-teacher had pun- ished a pupil so excessively as to cause its death: Doan v. Kelky, 121 Id. 413. While the motives and private characters of public officials cannot be as- sailed in periodicals without subjecting their proprietors to actions for libel, in which they must assume the burden of establishing the truth of their de- famatory assertions, criticism of all official acts may be safely indulged, and the language employed may be caustic and irritable in the extreme. A peri- Oct. 1889.] McAllister v. Detroit Free Press Co. S51 oflical may comment on the conduct of a magistrate in dismissing a case with- out hearing the whole evidence, or in committing a prisoner for trial on insufficient evidence, if the motives of the magistrate in so doing are not questioned: Hibhins v. Lee, 4 Fost. & F. 245; 11 L. T. 541. Comment may also he made on the management of the poor, and the administration of the poor law: Purcell v. Sotvler, L. R. 2 C. P. D. 218; L. R. 46 C. P. D. 308; 25 Week. Rep. 302; on the official conduct of way- wardens: Harle v. Catherall, 14 L. T. 801; and on that of all other officials in the discharge of the duties devolving upon them as such. Doubtless it is iinpossihle to prescribe the precise limits to which the crit- icism of official action or inaction may extend without becoming unlawful, and therefore actionable. But few attempts have been made to describe the.se limits. One of these may be found in the opinion of the court in Pal- mer V. City of Concord, 48 N. H. 211; 97 Am. Dec. 605. Palmer brought an action against the city to recover damages for property destroyed by a mob. The statute under which tlie action was authorized declared that no recovery could be had thereunder in favor of any person, if the destruction of his prop- erty was caused by his illegal or improper conduct. The defendant, for the purpose of proving that the loss of plaintiff's property grew out of his illegal and improper conduct, offered evidence that its destruction was the act of soldiers justly enraged at articles in the plaintiff's periodical reflecting on the conduct of the war, and imputing to the officers and men constituting the army of the nation cowardice, murder, and robbery. The court held that, as the charges were made against a body of men, without specifying individuals, tliat probably no single soldier could maintain any action therefor; but that an indictment might nevertheless have been found and successfully prose- cuted therefor, because it tended to a breach of the peace, and to the disturb- ance of society at large. Upon the question whether the publications made by plaintiff were defensible as criticisms on the conduct of public affairs, made in good faith and for justifiable motives, the court said: "Conductors of the public press have no rights but such as are common to all: Sheckell v. Jackson, 10 Cush. 25-27. But in this country every citizen has a right to call the attention of his fellow-citizens to the maladministration of public affairs, or the misconduct of public servants, if his real motive in so doing is to bring about a reform of abuses or to defeat the re-election or reappointment of an incompetent officer. If information, given in good faith, to a private individual of the misconduct of his servants is 'privileged,' equally so nmst be the communication to the voters of a nation concerning the misconduct of those whom they are taxed to support, and whose continuance in any service virtually depends on the national voice. To be effectual, the latter communi- cation must be made in such form as to reach the public. If the end which Palmer had in view — the controlling, moving purpose of the publication — was to inform the public of the manner in which the war was conducted, for the purpose of inducing citizens to use their influence with government to re- press abuses, or to vote for members of Congress and other elective officers who would check such abuses, reform the army, stop the war, or conduct it in a more humane manner, his end or motive was justifiable. If the end to be attained is ' to give useful information to the community, or to those who have a right and ought to know, in order that they may act upon such in- formation, the occasion is lawful': Parker, C. J., in SfMte v. Burnham, 9 N. H. 34, 41, 42; 31 Am. Dec. 217. If such were Palmer's motives, he is not guilty of libel, if the facts he alleged were true, or if he had probable cause to believe, and did believe, that they were true. But if he had no justifiable 352 McAllister v. Detroit Free Press Co. [Mich. motive, inasmuch as the natural and inevitable tendency of the publication is to injure and degrade, he is guilty of libel, even though the facts alleged in the article were true." In Miner v. Detroit Post and Tribune Co. , 49 Mich. 358, the alleged libel consisted of reflections upon the plaintiff's conduct as a justice of the peace, the substance of which was, that when a complaint had been filed in his court against a Chinaman, the judge, without the assent of the complainant, had in- serted the name of another and different Chinaman; that though the evi- dence completely exonerated this second man, he was held for trial under heavy bonds; that his being so held was an inexcusable outrage; that if the justice would enforce the law against the violation of the liquor and gambling laws, when they were brought before him, people would be more lenient in their judgment, but instead of so doing he turns upon a helpless Chinaman, who has no political influence. The trial court ruled that so much of the de- famatory article as related to the enforcement of the liquor and gambling laws was privileged, but that the imputations concerning the holding for trial of the Chinaman were not. The appellate court dissented from this latter ruling, and in an opinion by Mr. Justice Cooley, said: "When a judge or- ders a man into confinement without a charge against him, he deprives him of liberty without due process of law, and in doing so violates the earliest and most important guaranty of constitutional freedom. When in a case where bail is of right, he demands security in a sum which, considering the position in life and probable means and ability to give it, of the person accused, is altogether beyond his power, the demand is unreasonable, and for that rea- son is repugnant to a further provision of the constitution, the importance of which is only second to the other. There must be some great and most serious defect in the administration of the law when such things can take place, and the matter is one which concerns every member of the political community; for if constitutional principles fail to protect the most humble of the people, they protect no one. 'ihe defendant contends that to call pub- lic attention to what so vitally concerns the public is matter of privilege; and that, by presumption of law, its motives in doing so must be deemed proper, and not actuated by malice. The trial judge denied this claim alto- gether. In doing so he put the case precisely on the same footing with pub- lications which involve merely private gossip and scandal. The truth was allowed to be a defense, if made out, and so it would have been if the injuri- ous charge which was published had been one in which the public was not concerned. If there is no difference in moral quality between the publica- tion of mere personal abuse and the discussion of matters of grave personal concern, then this judgment may be right, and should be aflirmed. But it ia very certain, I think, that no declaration of this or any other court can con- vince the common reason that the distinction is not plain and palpable. Few wrongs can be greater than the public detraction which has only abuse, or the profit from abuse, for its object. Few duties can be plainer than to chal- lenge public attention to the official disregard of the principles which protect public and personal liberty. I know of nothing more likely to encourage the license of a dissolute press than to establisli the principle that the discussion of matters of general concern involving public wrongs, and the publication of personal scandal, come under the same condemnation of the law; for this in- evitably brings the law itself into contempt, and creates public sentiment against its enforcement. If a law is to be efficiently enforced, the approval of the people must attend its penalties, and there must be some presumption, tX least, that an act which it punishes involves some element of wrong-doing. Oct. 1889.] McAllister v. Detroit Free Press Co. 353 If, prima facie, the punishment is as likely to be inflicted for a right act as for a wrong act, the violation of law will not only be without disgrace, but the reckless libeler, when ranked by the law in the same company with respect- able and public-spirited journalists, will shield himself to some extent behind their commendable public spirit, and will find some protection for his license in the public opinion which condemns the law which it cannot respect." That a candidate for an elective ofiice puts in issue his fitness for the office in question, is undoubted; and there can be but few, if any, public offices or trusts in respect to which a good moral character is not an essential element of fitness. In every species of service, whether public or private, fidelity is a requisite the absence of which no other qualities can adequately supply; and a probable want of fidelity may reasonably be anticipated from one who has previously been guilty of any breach of trust, or has engaged in any single act or any persistent course of conduct indicative of a willingness to disregard the principles of right. Therefore, in the discussion of the fitness of a candidate for an office which he seeks, or which others seek to impose upon him, his moral character and much of his private life are relevant. As the question of the fitness of the candidate aff'ects the whole people, it may be discussed before the whole people; and every person who engages in the discussion, whether in private conversation, in public speeches, or in periodi- cals, may, while keeping within proper limits, and acting in good faith, be regarded and protected as one in the discharge of a duty. But, conceding that the fitness, and, incidentally, the character of a candi- date are in issue, and that every citizen is under a duty to assist in deter- mining the issue, does not, necessarily, carry with it the further concession that he may, if he can, determine the issue by the aid of foul means as well as of fair. Certainly he may not be knowingly a false witness. The doubtful question is, whether, though he does hot assert what he knows to be false, he may, without being responsible to the injured party, affirm that wliicli is known to be defamatory, and is not known to be, and is not, true. The people have an interest in the chiracter of the candidate; but both he and they have an interest tliat they shall not be induced to reject him through false aspersions against his character and previous conduct. The exigencies of an impending election often require prompt action. An accusation must sometimes be accepted or rejected, in the absence of a full opportunity to either obtain or duly weigh all the evidence bearing upon it; and it may, though false, be republished in a periodical by those who act in good faith, and in the belief that it is true, and ought to be known to all persons enti- tled to vote for or against the candidate upon whom it reflects. On the other hand, to grant immunity to political libelers, in all cases where tiieir bad faith and malice in fact cannot be established by the libeled candidate, leads to the grossest abuse of the privileges of the press, including the flood- ing of the country with shrewdly conceived libels, purposely witliheld until it is too late for their refutation or denial before the voting is to take place. These conflicting considerations have necessarily led the judiciary to con- flicting decisions, one class of which inclines to protect candidates against false and defamatory statements concerning their private acts and charac- ters, and the other class of which, in eff'ect, though not in express terms, abandons them to all the furious tempest of defamation which either per- sonal spite or personal or political self-interest may engender, leaving them no other protection than such as may be found in denial, in resort to counter- defamation, and sometimes to personal violence. We shall first refer to decisions m iiich, in our judgment, belong to the Am. St. Kef.. Vol. XV. — 23 354 McAllister v. Detroit Free Press Co. [Mich. class last mentioned. In Briggs v. Garrett, 111 Pa. St. 404, 56 Am. Rep. 274, it appeared that the plaintiflF was a judge of one of the courts of the city of Philadelphia, and was a candidate for re-election; that at a meeting of an association of citizens a letter was read, which, in substance, charged that a certain steal had been made possible through Judge Briggs's instruc- tions to the jury. The defendant was the person who brought this letter to the meeting of the association, and caused it to be read in the presence and hearing of the reporters of the city press and others. As a matter of fact, Judge Briggs did not preside at the trial intended to be referred to in the letter, and the charge which was delivered by the judge who did preside at such trial "was fair, impartial, and in every way proper." The appellate court conceded that the charge contained in the letter was false, defama- tory, and libelous; but maintained that as it was a charge made by a citizen against a candidate for office, it was a matter in which all the electors had an interest; that, as such, the defendant, unless he knew it to be false, had a right to communicate it to the meeting at which the reporters were pres- ent; that it was, in eflfect, a privileged communication; and, finally, that the plaintiff was entitled to no redress, "because of a rule of policy of far more importance than the inconvenience of a single citizen. That rule requires that free discussion, especially upon political topics and candidates, shall not be so hampered as to make it dangerous." In Marks v. Baker, 28 Minn. 162, the facts were, that, while the plaintiff was a candidate for re-election to the office of city treasurer, the defendants, who were residents and tax- payers of the city, published in a periodical of such city an article calling attention to a discrepancy between certain official reports, from which the inference might reasonably be drawn that the plaintiff had not charged him- self with all moneys received by him as such treasurer, but had, on the other hand, embezzled some of them. An action having been brought for libel in making the publication mentioned, the defendants, in their answer, alleged that the publication was made in good faith; that they believed, at the time of making it, there was reasonable cause therefor, and that they were discharging a sacred and moral obligation as editors and publishers. At the trial, they admitted that, notwithstanding the discrepancy which existed, and to which they had called attention, the plaintiff had in fact accounted for all moneys received by him in his official capacity', and that any charge or insinuation to the contrary was false. The defendant Baker, being called as a witness for the defense, was permitted, as against the ob- jection and exception of the plaintiff, to testify that, at the time of making the publication complained of, he believed it to be true; that he published it for the general interest, and for no other purpose; and that he did not in- tend to charge the plaintiff with embezzling any sum whatever. A judg- ment was entered in favor of the defendants; and upon an appeal therefrom, the admissibility of the evidence offered in their behalf was sustained. The court held that the subject-matter of the publication was one of public in- terest in the community of which the defendants were members, that it was therefore a privileged communication, if made in good faith, and that it was made in good faith, if the defendants published the article believing it to be true, and with a good motive or for a good object, and without any intention to do wrong, and with an affirmative intention to do that which, in view of the fact that the subject-matter of the article published was one of public interest, was right, and in a certain sense a duty; and further- more, that, whether this intention established the full defense of a privileged communication or not, it was admissible, as showing mitigating circum- Oct. 1889.] McAllister v. Detroit Free Press Co. 855 stances, under the statute of Minnesota providing that, in an action for libel or slander, "the defendant may, in his answer, allege both the truth of the matter charged as defamatory and any mitigating circumstances, to reduce the amount of damages; and whether he proves a justilication or not, he may give in evidence the mitigating circumstances." We understand the courts of Texas to be in substantial harmony with those of Minnesota re- specting the questions now under consideration: Express Printing Co. v. Cope- land, 64 Tex. 354. In Iowa and Kansas, tlie liability of the publisher of a periodical for libel published of a candidate for office has not, as far as we are aware, been directly in question; but, in tliose states, it is clear that an elector who speaks or writes to other electors defamatory words respecting a candidate for office is not answerable therefor, if such elector, at the time, believed what he thus communicated to his fellow-electors to be true, and acted in good faith and with justifiable motives in making the communica- tion: Bay- -son, 46 Iowa, 533. The device of calling as a witness a defendant who has published of an- other that which is admitted to have been both false and defamatory, and who is being pursued in the courts for this grievous wrong, and having him testify that his motives were pure, his conduct actuated by an irresistible impulse to promote the public weal, and that, upon the whole, he regards himself as having acted the part of an exceptionally praiseworthy citizen "discharging a sacred and moral obligation as editor and publisher," has the recommendation of simplicity and effectiveness. The simplicity might, how- ever, be still further simplified by dispensing with court, jury, and other witnesses, and submitting the question to the defendant without argument. The only safe evidence of a man's motives must relate to his acts, and to the circumstances under which he acted; and if he calls another man a felon, he must be conclusively presumed to intend to injure that man; and if the charge is false, he ought not to be permitted to shield himself from making just compensation, by interposing between himself and his victim the insubstantial form of his self -assumed piil)lic spirit, " dischar- ging a sacred and moral obligation as editor or publisher." The better opinion, and the one sustained by the preponderance of the authorities, both English and American, is, that false and defamatory publications concerning the acts or character of a candidate are not privileged, and are actionable: Onsloio v. Home, 3 Wils. 177; 2 W. Black. 750; Harwood v. Adley, 1 Bos. & P., N. R., 47; Parkhurst v. Hamilton, 3 Times L. R. 500. "How- ever large the privilege of electors may be, it is extravagant to suppose that it can justify the publication to all the world of facts injurious to a person who happens to stand in the situation of a candidate ": Dnncomhe v. Daniell, 8 Car. & P. 222; 2 Jur. 32; 1 W. W. & H. 101. "The authorities fully sus- tain the position that a publication in a newspaper, made either of a public officer or a candidate seeking an office from the votes of the people, which im- putes to him a crime or moral delinquency, is not a privileged communica- tion, either absolute or conditional; but such publication is per se actionable, the law imputing malice to the author or publisher ": Sweeney v. Baker, 13 W. Va. 158; 31 Am. Rep. 757. "If one accuse another of crime, he is pre- sumed to make a false accusation; and malice is inferred from the falsehood. That the plaintiff was a candidate for office is no excuse for slandering him. We have no right to tell a lie of another because he is a candidate for office, or is in office; though we may speak the truth of him, we have no right to 'bear false witness against our neighbor. It would subvert our government 356 McAllister v. Detroit Free Press Co. [Mich. to allow the promulgatioa of falsehood, which would drive from office men who regard character, and leave it only to those without any ": Seeley v. Blair, Wright, 358. "The electors of a congressional district are interested in knowing the truth, not falsehoods, concerning the qualifications and char- acter of one who offers to represent them in Congress, and it is the right and privilege of any elector, or person also having an interest to be represented, to freely criticise the act and conduct of such candidate, and show, if he can, why such person is unfit to be intrusted with the office, or why th6 sufifrages of the electors should not be cast for him. But defamation is not a necessary axid indispensable concomitant of an election contest. 'Slander,' says Judge Overton, ' is no more justifiable when spoken of a man with a view to his election than on any other occasion. Unhappy, indeed, would be any people when in the exercise of one right you destroy as important a one. Let his talents, his virtues, and such vices as are likely to afifect his public character be freely discussed, but no falsehoods be propagated.' To hold that false charges of a defamatory character made against a candidate are privileged as matters of law, if made in good faith, and that the party making them is absolutely shielded against liability, it seems to me is a most pernicious doctrine. It would deter all sensible and honorable men from accepting the candidacy to office, and leave the field to the profligate, the unprincipled, and unworthy; to men who have no character to lose, and no reputation to blemish": Bronson v. Bruce, 59 Mich. 4{i7; 60 Am. Rep. 307. When, there- fore, the publisher of a periodical falsely charges a candidate with having been guilty of crimes or immoral practices, he cannot escape lial)ility on the ground that the publication was made with good motives and for justifiable ends, without malice, and in the honest belief that the occasion required it: Bronson v. Bruce, supra; Jones v. Towmend, 21 Fla. 431; 58 Am. Rep. 676; King v. Boot, 4 Wend. 113; 21 Am. Dec. 102; AldHch v. Press Printing Co., 9 Minn. 133; 86 Am. Dec. 84; Curtis v. Muasey, 6 Gray, 261; Rearick v. Wil- cox, 81 111. 77. But if the charge was substantially true, though not correct in some particulars, or in the proper technical designation of the crime charged, and was made in good faith, and for justifiable motives, and by one who honestly believed it to be true, all these facts may be received in evi- dence, not as a technical justification, but as establishing that the plaintiff had suffered no substantial injury: Bailey v. Kalamazoo Pub. Co., 40 Mich. 251. An attack upon a candidate, if otherwise privileged, must not be given a wider publicity than is necessary to accomplish the purposes which the pul)- lisher professes to seek. If the office is to be filled by appointment, or b}'^ an election in which only the members of a certain board or tribunal can par- ticipate, there can be no justification of a false and defamatory publication in the public press, and which must reach, and be intended to reach, a large number of persons who have no share in filling the office to which the person libeled is an aspirant: Hunt v. Bennett, 19 N. Y. 173. In accordance with the principles announced in the decisions heretofore referred to as maintaining the better opinion concerning the defamation of candidates, the following charges have been held not to be privileged, and, when false, to be actionable: That the candidate had committed perjury: Seeley v. Blair, Wright, 358; or forgery: Seeley v. Blair, Id. 686; "was a scoundrel, a coward, a liar, an assassin, and a murderer": Harwood v. A.stley, 4 Bos. & P. 47; had been guilty of cheating in two specified transactions: Buncombe v. Daniell. 8 Car. & P. 222; 2 Jur. 32; 1 W. W. & H. 101; was a professional gambler, a repr^^sentative from the prize-ring or gambling-den. I Oct. 1889.] McAllister v. Detroit Free Press Co. 357 a bully, and black-leg, one " whom you would n't trust in your hen-coop ": Sweeney v. Baker, 13 W. Va. 158; 31 Am. Rep. 757; was a forger, had stolen the deposits of poor men and women, and cheated laboring men out of their hard earnings: Bronson v. Bruce, 59 Mich. 467; 60 Am. Rep. 307; had been indicted for not canceling stamps on empty liquor-casks: Jones v. Townsend, 21 Fla. 431; 58 Am. Rep. 676; had "committed a misdemeanor, for which he was arrested and tried for his life, was arraigned at the bar in the state of North Carolina, and I will show it in black and white ": Brewer v. Weakley, 2 Over. 99; 5 Am. Dec. 656; was in a drunken condition, and as such the object of loathing and disgust while acting as presiding officer of a state senate: King v. Boot, 4 Wend. 113; 21 Am. Dec. 102; had been guilty of "legal Jesuitism," and in making a decision had acted from partisan and ignoble motives: Curtis v. Mussey, 6 Gray, 261; had been guilty of entering into a corrupt understanding with certain persons to control the political and legislative power of the state with a view to his own advantage, and to the serious injury of the public; and, if elected, would use his influence to em- barrass and defeat a great public improvement: Powers v. Dubois, 17 Wend. 63. If a publication consisting of an aspersion of a candidate can fairly be deemed a mere criticism, or an opinion which the author or publisher has drawn of his fitness for the office sought, and not as an assertion of a fact involving moral delinquency, it is privileged. Thus in Sweeney v. Baker, 13 W. Va. 15S, 31 Am. Rep. 757, it was said that "as when the alleged libels were published, the plaintiff was a candidate for popular suffrage, any alle- gations which referred to his fitness for the office he sought, mentally or physically, were privileged communications, and could not be the basis of a libel suit; nor any other allegations which did not refer to his moral charac- ter, though they were ever so harsh and uncomplimentary." It was there- fore held that such charges as merely implied that the candidate was "an uneducated, lazy, and ignorant man, and as such unfit to represent the people," were not actionable, though "expressed in coarse and liarsh lan- guage." Words imputing to a candidate mental weakness resulting to his mind from disease, and impairing it to the extent of disqualifying him for the proper discharge of the duties of the office, are not actionable: May rant v. Richardson, 1 Nott & McC. 347; 9 Am. Dec. 707. The rule which permits adverse newspaper criticism of public officials is justified upon the ground that they have assumed duties toward the public; that the public has an interest in the proper performance of those duties; and that publications made in good faith, and for the purpose of advising the public of the conduct of its servants, may fairly be regarded as made in the discharge of a duty which every citizen owes to his fellow-citizens. The same reasoning must justify criticism of all other persons who, though not public officers, voluntarily assume duties of a public nature, in the fit per- formance of which large numbers of persons have an interest. The most familiar instances are clergymen and teachers of public and private schools. Their private characters and motives may not be safely maligned by the press. To falsely impute to them the commission of crimes or of actswliich, though not punishable as criminal, are obviously grossly at variance with their callings, and such as, if true, ought to deprive them of their positions, is actionable: Chaddock v. Brings, 13 Mass. 248; McMillan v. Buck, 1 Binn. 178; Deinarest v. Haring, 6 Cow. 76; Hayden v. Covxlen, 27 Ohio St. 292; Highniore v. Harrington, 3 Com. B., N. S., 142; Peiuberton v. Colk, 10 Q. B 461; 16 L. J. Q. B. 403; 11 Jur. 1011; Galhercole v. Miall, 15 Mees. & W. 319; 10 Jur. 337; 15 L. J. Ex. 179. But the conduct of public worship by 358 McAllister v. Detroit Free Press Co. [Mich. a clergyman, and the uses to which he puts his church and vestry, are lawful subjects of public comment: Kelly v. Tinling, L. R. 1 Q. B. 699; 14 Week, Rep. 51; 13 L. T., N. S., 255; 35 L. J. Q. B. 940; 12 Jur., N. S., 940. In Press Company v. Stewart, 119 Pa. St. 584, it was determined that one who had opened a school, to which he attracted attention by advertisements of an extraordinary nature, and wherein he assumed to teach his patrons the arts of shorthand writing, type-writing, and phono-scribing, became "thereby a quasi public character"; that "whether he was a proper person to instruct the young, and whether his school was a proper place for them to receive instruction, were matters of importance to the public "; that the newspaper " was in the strict line of its duty when it sought such informa- tion, and gave it to the public; and if that information tended to show that the plaintifiF was a charlatan, and his system an imposture, the more need that the public, and especially parents and guardians, should be informed of it." Directors and other managers of quasi public corporations, such as rail- ways, may also, when dealing with great enterprises by which the citizens of large portions of a state or nation may be affected, may properly be regarded as public persons, and subjected to hostile criticism as such: Crane v. Waters, 10 Fed. Rep. 619; 26 Alb. L. J. 212. In California it has been held that the office of director of a mining corpo- ration should not be regarded as a public office, exposing its holder to the same liberty of adverse criticism to which public officials are subjected. In determining this question, the supreme court of that statn said: "Another point made by the defendants is, that the publication was privileged, and that the defendants could not be held liable except on the proof of express malice, of which, it is claimed, there was no evidence whatever. It is said to be privileged, because it was published b}' public journalists as a matter of gen- eral and peculiar interest, and related to the conduct of plaintiff in his capa- city of trustee of a mining corporation. But this was a private, and not a public, corporation. The plaintiff was in no seuse a public officer, and was responsible only to the stockholders and creditors of the corporation for the fidelity of his conduct as a trustee. His office was no more a public office than that of a trustee of a private corporation to build a bridge or construct a wagon-road. Officers of this character have never been deemed public offi- cers in such sense as to render them amenable to criticism, as in case of per- sons filling public offices of trust and confidence, in the proper administration of which the whole community has an interest. In the latter class of officers public policy demands that the official conduct should be open to unrestricted criticism, in which no malice is implied by law; and express malice must be proved, to render the author liable. No case has been cited, nor am I aware of any, which holds that the trustee of a private corporation is a public offi- cer in the sense claimed by the defendants. Nor can a defamatory publica- tion in a public journal be said to be privileged simply because it relates to a subject of public interest, and was published in good faith, without malice, and from laudable motives. No adjudicated case, that I am aware of, has ever gone so far. But while such publication cannot be deemed privileged, so as to require proof of express malice, the publisher, in order to rebut the presumption of malice, should be allowed the fullest opportunity to show the circumstance under which the publication was made, the sources of his in- formation, and the motives which induced the publication.* The public inter- est, and a due regard to the freedom of the press, demands that its conductor should not be mulcted in punitive damages for publication on subjects for pub* Oct. 1889.] McAllister v. Detroit Free Press Co. 859 lie interest, made from laudable motives, after due inqniry as to the truth of the facts stated, and in the honest belief that they were true. On the other hand, if the rule were further relaxed, so that such publication in respect to private persons would be deemed privileged, thereby shifting the burden of proof from the defendant to the plaintiff in respect to malice, there would be but little security for private character": IVil.son v. Filch, 41 Cal. 363. Authors, artists, and all other persons voluntarily exposing the result of their labors to the public, seeking to gain favorable recognition of their work if found to be meritorious, become public characters, so far, at least, as their works are concerned. Any periodical may publish an estimate of such works, whether favorable or unfavorable; and if unfavorable, it may use strong terms of condemnation, and expose the work to merciless ridicule. No ac- tion can be sustained for such adverse criticism, unless it is shown or on its face it appears to be actuated by malice in fact: Tabart v. Tepper, 1 Camp. 351; Carr v. Hood, 1 Id. 355, note; Thoinpson v. Shackell, Moody & M. 187; Soane v. Knirjht, 1 Id. 74. A condemnatory criticism of a literary work or of a painting, though imputing profanity or indecency, will be excused, unless so unfair and reckless in its character as to justify the presumption of malice: Strauss v. Francis, 4 Fost. & F. 1107; 15 L. T., N. S., 674. An au- thor may be written of so far as he is connected with the work which he has given to the public, but criticism of his work must not be used as a pretext for an attack upon his private character or reputation; and if a critic, whde professing to give an estimate of a literary work, proceeds to attack the author and to impute to him either the commission of ofifenses or of being actuated by dishonorable motives, either in the work under consideration or in other works or respects, then the publisher may be guilty of libel. In other words, it is only the work, and the author as he exhibits himself in the work, which are subject to criticism, to the extent that such criticism, even though erroneous, will not subject the publisher to an action for libel. To the work the author has invited criticism. It is otherwise with his acts and life, of which the work so oifered for public consideration is no part. For any defamation of an author or artist not necessarily connected with his public works, the pub- lisher of such defamation is answerable, though it may have been published as a part of a professed criticism of such work- Cooper v. Stone, 24 Wend. 434; Fraser v. Berkerley, 7 Car. & P. 621; Macleod v. Wakeky, 3 Id. 311; Stewart v. Lovell, 2 Stark. 93. A public entertainment of any character is always a proper subject for criticism in a periodical: Ryan v. Wood, 4 Fost. & F. 734; and so is any thing or article which by its owner is made the subject of public exhibition: Gait v. Pulsifer, 122 Mass. 235; 23 Am. Rep. 322. The case last cited was an action to recover damages for an alleged false and malicious statement concerning the plaintiff 's property, a stone statue, commonly known as the "Cardiff Giant." The plaintiff claimed that the statue was of great value as a scientific curiosity, and, for the purpose of ex- hibitioiL, had long been a source of profit to him. It appeared at the trial that the defendant had published a statement that the Cardiff Giant had been sold for eight dollars; that " the man who brought the colossal mono- lith to light confessed it was a fraud"; that the plaintiff" was on the eve of effecting a sale of one half of his interest in the statue for several thousand dollars, and that the purchaser refused to carry out the agreement because of the defamatory statement made by the defendant. The judgment of the trial court was in favor of the defendants; but it was reversed by the appel- late court because of error in giving instructions at the instance of the de- 360 McAllister v. Detroit Free Press Co. [Mich. fendant, and also in refusing to give an instruction requested by the plain- tiff. In considering the law applicable to the subject, the, appellate court said: " This action is not for a libel upon the plaintiff, but for publishing a false and malicious statement concerning his property, and could not be sup- ported without allegation and proof of special damages: Malachy v. Soper, 3 Bing. N. C. 371; 3 Scott, 723; Swan v. Tappan, 5 Cash. 104. The special damage alleged was the loss of the sale of the plaintiff's statue to Palmer. Evidence of the value of the statue as a scientific curiosity or for purposes of exhibition was therefore rightly rejected as immaterial. The editor of a newspaper has the right, if not the duty, of publishing, for the information of the public, fair and reasonable comments, however severe in terms, upon any- thing which is made by its owner a subject of public exhibition, as upon any other matter of public interest; and such a pul)lication falls within the class of privileged communications for which no action can be maintained without proof of actual malice: Dihdin v. Swan, 1 Esp. 28; Carr v. Hood, 1 Camp. 355; Henwood v. Harrison, L. R. 7 Com. P. 606. But in order to constitute such malice, it is not necessary that there should be direct proof of an inten- tion to injure the value of the property; such an intention may be inferred by the jury from false statements, exceeding the limits of fair and reason- able criticism, and recklessly uttered in disregard of the rights of those who might be affected by them. Malice in uttering false statements may consist either in a direct intention to injure another, or in reckless disregard of his rights, and of the consequences that may result to him: Commonwealth v. Bonner, 9 Met. 410; Moore v. Stevenson, 27 Conn. 14; Erie, C. J., in Hibba v. Wilkinson, 1 Fost. & F. 608, 610; and in Paris v. Levy, 2 Id. 71, 74, and 9 Com. B., N. S., 342, .350; Cockburn, C, J., in Morrison v. Bekher, 3 Fost. & F. 614, 620; in Hedley v. Barlow, 4 Id. 224, 231; and in Strauss v. Francis, 4 Id. 1107, 1114. The only definition of malice given by the learned judge who presided at the trial was therefore erroneous, because it required the plaintiff to prove 'a disposition willfully and purposely to injure the value of this statue,' aa well as 'wanton disregard of the interest of the owner.' The jury, upon the evidence before them, and under the instruction given them, may have been of opinion that the defendant's statements that the plaintiff's statue was an 'ingenious humbug,' 'a sell,' and 'a fraud,' were false, reckless, and unjustifiable, and had the effect of injuring plaintiff's property, and caused him special damage; and may have returned their ver- dict for the defendants solely because they were not convinced that they in- tended such injury." We have heretofore shown that, as a general rule, the publication of a libelous charge could not be justified on the ground that it was merely a repetition of what had before been stated or published, and that the defend- ant had merely republished it as a matter of news, and for the purpose of informing the public of existing events of which he, being the publisher of a periodical, had assumed the duty of keeping the public informed. An ex- ception to this rule exists in the proceedings taking place in the legislative and judicial departments of the government, and in the proceedings of some other public tribunals or departments, of which, upon grounds of public policy, it is regarded as proper to keep the public fully informed, though thereby libelous charges may be republished. "It seems to us impossible to doubt that it is of paramount public and national importance that the proceedings of the houses of Parliament shall be communicated to the public, who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done the Oct. 1889.] McAllister v. Detroit Free Press Co. 361 welfare of the community depends. Where would he our confidence in the government of the country, or in the legislature, hy which our laws are framed, and to whose charge the great interests of the country are commit- ted, — where would be our attachment to the constitution under which we live, — if the proceedings of the great council of the realm were shrouded in secrecy, and concealed from the knowledge of the nation? " Wasson v. Walter, 8 Best & S. 671; L. R. 4 Q. B. 73; 38 L. .J. Q. B. 34; 19 L. T., N. S., 409; 17 Week. Rep. 109. Fair reports of the proceedings of legislative bodies, ia which the public has an interest, including the speeches of their meinbera and reports made by committees, may be published in periodicals without entitling any one falsely defamed thereby to maintain an action for libel against their proprietors: Wasson v. Walter, supra; Bex v. Wriyht, S Term Rep. 293; Kane v. Mulvanis, 2 I. R. C. L. 402; Henwood v. Harrison, 41 L. J. C. P. 206; L. R. 7 Com. P. 606; 20 Week. Rep. 1000; 26 L. T., N. S., 938; Curry v. Walter, 1 Bos. & P. 525; 1 Esp. 457. Periodicals are also privileged to publish the testimony taken before an investigating committee of a legislative body: Terry v. Fellows, 21 La. Ann. 375. There is probably attached to the general rule authorizing the publication of such testimony the limitation that the proceeding in which ii was taken must not be secret and ex parte: Belo v. Wren, 63 Tex. 686. The privilege which secures immu- nity for the publication of fair reports of the proceedings of Parliament, of Congress, and of the state legislatures, extends to minor legislative bodies, such as town councils, with the same limitation, that the proceedings must have been open and public: Wallis v. Bc(jet, 34 La. Ann. 131; Allbuttv. Oen- eral Council, L. R. 23 Q. B. D. 400. The public undoubtedly has an interest in the proceedings of all courts of justice, whether civil or criminal, superior or inferior. In all cases where the proceedings of such courts are open to the public, so that any individual who may choose has the right to be present to see what is done and to hear what ia said, he may, though not present, be given the same information through the columns of a periodical that he might have secured by his pres- ence in court: McBee v. Fulton, 47 Md. 403. "The general advantage to the country in having these proceedings made public more than counterbalances the inconvenience to private persons whose conduct may be the subject of such proceedings ": Rex v. Wrifjht, 8 Term Rep. 298. Cockburn, C. J., instructed the jury as follows, upon this topic, at the trial of the case of Risk Allah Bey v. Whitehurst, 18 L. T., N. S., 615: " Whatever may have been thought in past times, nowadays we are agreed on this, that fair and impartial reports of the proceedings in courts of justice, although incidentally those proceedings may prejudice individuals, are of so great public interest and public advantage that the publishing of them to the worla predominates so much over the inconvenience to individuals as to ren- der these reports highly conducive to the public good; but tiie conditions on which the privilege can be maintained are, that the report shall be fair, truthful, honest, and impartial. It need not be a report of every word that passes upon a trial. No newspaper, however large, could report the pro- ceedings in the full extent to which, upon a long trial, these proceedings necessarily extend. You may either have it to the utmost possible extent the linnts of the paper will allow it to be given, or in the more condensed form of a summary or epitome, but you nmst have the report honest and fair. A paper may give a report of the proceedings of courts of justice prop- erly condensed and fair, but it is not entitled, under pretense of giving a report, to add comments of its own, or to display facts not brought forward S62 McAllister v. Detroit Free Press Co. [Mich. in the proceedings, but coming out of the reporter's own head. This is ad- mitted on all hands to be the state of law. " If the proceedings are such that the court deems them unfit for publication, and therefore sits with closed doors, or enters an order prohibiting the pub- lication, either of the whole proceedings or of some part thereof, doubtless no periodical could have any privilege of publishing that which the court had expressly or impliedly declared ought not to be generally known; and any publisher violating the injunction of secrecy would surely be answerable in damages for any libel included in his publication. If the subject-matter of the trial was itself a blasphemous or obscene libel, no right to indefinitely repeat or publish it could be gained from the fact that it had been made the subject of judicial investigation and condemnation: Bex v. Carlile, 3 Barn. & Aid. 167; Steele v. Brannan, L. R. 7 Com. P. 261; 41 L. J. M. C. 85; 20 Week. Rep. 607; 26 L. T. 509. But a fair report of the proceedings of a public trial, including the testimony of the witnesses, the arguments of coun- sel, the remarks of the judge during the progress of the cause, and his final instructions to the jury, are all matters which any one, whether the proprie- tor of a periodical or not, is privileged to publish. The proceedings need not be puljlished in full. They may be greatly condensed; but still, however condensed, they must be a fair statement of what took place, and must not, by their omission of exculpatory and their emphasis of inculpatory evidence or remarks, deal unjustly with an accused person, and thereby produce an impression of guilt which a candid statement of the whole proceedings would be unlikely to create. Any report in a periodical of judicial proceedings, whether in full or a mere synopsis, is privileged, unless it appears to have been made for malicious or unworthy motives, or is so manifestly unfair as to evince, either an intent to injure the person complaining, or a reckless in- diflFerence as to whether he should be injured or not: Barroios v. Bell, 7 Gray, 301; 66 Am. Dec. 479; Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548; 78 Am. Dec. 285; Smith v. Scott, 8 Car. & K. 580; Boare v. Silverloch, 9 Com. B. 20; 19 L. J. Com. P. 215; Turner v. Sullit-an, 6 L. T., N. S., 130; Rim'je V. Franklin, 72 Tex. 585; 13 Am. St. Rep. 833; Risk Allah Bey v. Whitehurst, 18 L. T. 615. Unquestionably a sound public policy demands that periodicals shall, to a certain extent at least, be privileged to publish the proceedings of courts of justice; but this policy extends no further than keeping the public advised of the acts of their judicial servants, in order that abuses may be corrected, worthy service rewarded by continuing confidence and renewed trust, and unworthy service visited by opprobrium, and cut short by the withdrawal of public confidence and the selection of a more worthy minister of justice. Whether the judiciary has properly discharged its functions in any given in- stance can only be known from a report of everything upon which its action was based. Hence public policy will not permit any suitor or other person to complain of the publication of any part of the proceedings at a public trial, on the ground that it may injuriously affect his reputation. But a gar- bled or one-sided statement of what took place, or the publication of the con- tents of a petition or affidavit upon which the court has never been and may never be called to act, is prohibited, rather than demanded, by public policy, and contributes to no other end so surely as that of assaulting the reputation of one who has, as yet, no opportunity to repel the assault. Garbled or one- sided statements are nowhere favored; and a publication of the defamatory evidence of a witness, or the still more defamatory invective of counsel, is not privileged, where it does not amount to a fair statement of the whole evidence Oct. 1889.] McAllister v. Detroit Free Press Co. 363 bearing upon the reputation of the person against whom it reflects: Saunders V. Milis, 3 Moore & P. 520; 6 Bing. 213; Kane v. Mulraine, 2 I. R. C. L. 402. The publication of an ex parte pleading or affidavit before a trial is mani- festly as unfair as is the publication of a one-sided statement of what occurs at the trial itself. In either case there is likely to be an unjust aspersion on the reputation of some one who has no opportunity to reply, and in neither is any sound public policy subserved by permitting a statement to be made with impunity, if false and defamatory. There was formerly a xery strong judicial inclination against regarding as privileged any publication of an ex parte proceeding, or of any matter of evidence or of pleading taken or filed prior to the coiuniencement of the trial: Hoare v. Silverlock, 9 Com. B. 23; 19 L. J. Com. P. 215; Duncan v. Thwaites, 3 Barn. & C. 556; Purcell v, Sowler,2Com. P. Div. 215; 46 L. J. Com. P. 308; 25 Week. Rep. 362; 36 L. T. 416. It is now settled in England that the mere fact that a judicial proceed- ing was ex parte will not deprive a publication of what took place in open court of protection as being privileged. Thus where a statement was published that three gentlemen, civil engineers, had applied to a magistrate for criminal process against another civil engineer, and that their spokesman stated that they had been engaged in certain surveys, and that their money, or some portion of it, had been paid to the other engineer, who had withheld it, and in their judgment had been guilty of the criminal ofifense of with- holding the money, but that the magistrate had regarded it as a matter of contract between the parties, and, though on the face of the application they had been badly treated, said he must refer them to the county court, it was held that if the publication complained of was a fair and impartial report of what took place before the magistrate that it was privileged: Usill v. Hales, L. R. 3 C. P. D. 319; 47 L. J. Com. P. Div. 323; 38 L. T., N. S., 65; 26 W. Rep. 371. In England, publication of proceedings before magistrates of the pre- liminary examination of a prisoner: Regina v. Gray, 10 Cox C. C. 184; Lewis V. Levy, El. B. & E. 537; 4 Jur., N. s!, 970; 27 L. J. Q. B. 282; or before judges at chambers: Smith v. Scott, 2 Car. & K. 580; or before registrars in bankruptcy upon the examination of a debtor: Rayalls v. Leader, L. R. 1 Ex. 296; 12 Jur., N. S., 503; 4 N. & C. 555; 35 L. J. Ex. 185; or before exam- iners to inquire into the sufficiency of sureties, — are all privileged, whether ex parte or not: Coojjer v. Lawson, 8 Ad. & E. 746; 1 W. W. & H. 601; 2 Jur. 919; 1 Perry & D. 15. In all these instances the proceedings, though ex parte, take place before a judicial or quasi judicial tribunal; and the decisions treating their publication as privileged do not necessarily authorize the publication of other ex parte matters upon which no action has been taken. Early English decisions have condemned the publication of depositions taken for use, but not yet used, at a trial: Carr v. Jones, 3 Smith, 491; Stiles v. Nokes, 7 East, 493; Rix v. Fisher, 2 Camp. 563. In this country, the fact that a party has been arrested, and what is the charge against him, may be published, provided no assumption of his guilt is implied in the language used : Uslter v. Severance, 20 Me. 9; 37 Am. Dec, 33; Tresca v. Maddox, 11 La. Ann. 206; 66 Am. Dec. 198. The tendency of the American cases is to limit the privilege of publishing judicial proceedings to matters which take place in pul)lic, either at the trial or at some other hear- ing of the case in open court, or if not in open court, then at some place and before some officer or tribunal where the public have a right to be present. Thus in Michigan, it has been said "that there is no rule of law which au- thorizes any but the parties interested to handle the files or publish the con- tents of other matters in litigation. The parties, and none but the parties, 364 McAllister v. Detroit Free Press Co. [Mich. control them. One of the reasons why parties are privileged from suit for accusations made in their pleadings is, that the pleadings are addressed to courts, where the facts can be fairly tried, and to no other readers. If the pleadings and other documents can be published to the world by any one who has access to them, no more effectual way of doing malicious mischief with impunity could be devised than filing papers containing false and scurrilous charges, and getting these printed as news. The public has no right to any information on private suits until they come up for public hearing or action in open court; and when any publication is made involving such matters, they possess no privilege, and the publication must rest on either nou-libel- ous character or truth to defend it. A suit thus brought with scandalous ac- cusations may be discontinued without any attempt to try it, or, on trial, the case may easily fail of proof or probability. The law has never authorized any such mischief ": Parkv. Detroit Free Press Co., 72 Mich. 560; 16 Am. St. Rep. Hence a pleading filed in a cause containing libelous assertions, but which has never been presented to the court for its action, or for the determination of the truth or falsity of its allegations, may not, nor may any portion of its contents, be published in a periodical, and the publication protected as a publication of privileged matters: Barber v, St. Louis Dkpatch Co., 3 Mo. App. 377; Park v. Detroit Free Press Co., supra; nor may ex parte charges and affidavits filed in a criminal proceeding, or in proceedings taken to pro- cure the disbarment of an attorney, be published as privileged. "If a pub- lisher of a newspaper may, in virtue of his vocation, without responsibility, publish the details of every criminal charge made before a police-officer, how- ever groundless, and whether emanating from mistake, or malice of a third person, then must private character be indeed imperfectly protected. Such publications not only inflict injury of the same kind with any other species of defamation, but their tendency is also to interfere with the fair and impar- tial administration of justice, by poisoning the public mind, and creating a prejudice against a party whom the law still presumes to be innocent": Ctrl' cinnati v. Tirnherlake, 10 Ohio St. 548; 78 Am. Dec. 285; Cowley v. Pidsi/er, 137 Mass. 392; 50 Am. Rep. 318. The report of a justice of the peace of statements made by certain persons to him on applying for a warrant, which statements have not been incorporated into an affidavit or other paper on file, nor made the subject of any judicial action, cannot be published as a privi- leged matter: McDermott v. Evening Journal Association, 43 N. J. L. 488. If a proceeding is such that a periodical has a right to make it public, such periodical may, nevertheless, be held answerable for damages, if it appears to have acted from malicious motives: Stevens v. Sa?7ipson, L. R. 5 Ex. Div. 53: 49 L. J. Ex. Div. 129; 41 L. T., N. S., 782. As before suggested, a publication of judicial proceedings is not privileged, unless it is fair and impartial. It must not be accompanied by any malicious or defamatory commetit: Cincinnati Co. v. Timberlake, 10 Ohio St. 548; 78 Am. Dec. 285; State v. Nokes, 7 East, 493; Carr v. Jones, 3 Smith, 49; or libel- ous insinuations: Commonwealth v. Blanding, 3 Pick. 304; 15 Am. Dec. 214; Thomas v. Crosswell, 7 Johns. 264; 5 Am. Dec. 269; McNally v. Oldham, 16 I. R. C. L. 298; 8 L. T., N. S., 604; Scripp v. Reilly, 38 Mich. 10; Dekgal v. Highley, 5 Scott, 154; 5 Ring. N. C. 950; 8 Car. & P. 444; or statments drawn from other sources; Bathrirk v. Detroit Post Pub. Co., 50 Mich. 629. A periodical is not prohibited from commenting upon the proceedings in a court of justice, or the parties or witnesses connected therewith, nor is it limited to the bare recital of what took place; but whatever comments it makes must be just and fair, " and it is for the jury to say whether they are Oct. 1889.] McAllister v. Detroit Free Press Co. 365 flo or not ": McBee v. Fulton, 47 Md. 403. The comments must be from the facts in evidence, and if there is any departure from them, or if a one-sided personal view of them is given, this will be evidence of unfairness: WoodgaU V. Ridout, 4 Fost. & F. 202. It has been held that the evidence may be de- clared unfounded, unconscious, or careless, but it must not be stigmatized as willful and malicious, or recklessly false: Hedley v. Barlow, 4 Id. 224; nor as being unsupported, having no effect, and as being commented upon with cut- ting severity: Roherts v. Brown, 10 Bing. 619; 4 Moore & S. 407. A publica- tion denouncing the verdict of a jury as infamous, and declaring that it was impossible to express sufficient contempt for the jurors who had thus ofifended public opinion, and done injustice to their oaths, is libelous, and not pro- tected as privileged: Byres v. Martin, 2 Col. 605. The recent English decisions incline to be lenient with the press when pur- sued for alleged lilielous comments or statements either upon or concerning judicial proceedings, and the persons affected by them, or upon other matters in which the public has an interest, and concerning which it is admitted that newspapers and public writers have a duty to keep it informed. If the matters under consideration are such as to excite great public interest, and necessarily to arouse a deep conviction in the mind of a writer or publisher that he has a duty to perform in laying bare the facts, and in holding some evil-doer up to public condemnation, the courts will generally excuse his mistake of fact made in good faith, or his intemperance of expression gene- rated by natural aversion to what he believes to be a wrong that ought to be exposed and thereby suppressed. Speaking of alleged libelous comments upon a plaintifif who pretended to unusual skill and knowledge respecting the treatment of disease, Cockburn, C. J., in charging the jury, said: " Here is a man bringing forward what professes to be a scientific book, in- ritiug the public to come and be treated for the saddest disease that is known among us. If he does that, he challenges public criticism, and then if a pub- lic writer of competent knowledge deals with his theory, and, looking upon all the circumstances, using that forbearance and moderation, and exercising that temperate judgment which every man is bound to exercise who not only criticises the conduct of another, but proceeds to impute to him evil motives and designs, — if the public writer executes his task with that spirit, goes beyond the limits to which a more sound knowledge of the facts would have warranted him in going, he is nevertheless privileged; the occasion is a privi- leged one, and if the privilege is exercised honestly and faithfully, and with reasonable regard to what truth and justice reqiiire, he is exempt from the consefpinnces if he shall have gone beyond what the limits of truth more carefully ascertained would have justified. It is, therefore, not necessary that justification should, to all intents and purposes, be made out if you tliink the defendant or the party who wrote this article for which. the defend- ant is made liable was, in tlie reasonable and honest exercise of his duty as a public writer, warranted by the circumstances in drawing the inferences which he has drawn as to the motives and conduct of the plaintiff, although it may turn out that he has not been to the fullest extent accurate ": Hu7iter V. Shaiye, 4 Fost. & F. 983; 15 L. T., N. S., 421. In the case of Risk Allah Bey v. Whitehur.st, 18 L. T. 515, the defendant was the publisher of the Daily Telegraph, and the matters complained of as libelous were a leading article and parts of letters from a correspondent of that periodical at Brussels relative to the trial of the plaintifif for the murder of his ward. The letters, so far as complained of, commenced by suggesting that the defendant in the criminal prosecution " has certainly to meet a 366 McAllister v. Detroit Free Press Co. [Mich. formidable array of charges "; they next detail the circumstances accompany- ing the murder, and call attention to variolas supposed facts tending to in- culpate the accused, and to other facts, some of which tended to support and othei-s to refute the assumption that his ward's death could have been due to suicide; the speech of the counsel for the prosecution and that of the counsel for the accused were referred to at considerable length, some parts of the latter being given verbatim., though that part of it detailing the facts was omitted. The letters written after the accused had been acquitted restated the case against him with very great force and dramatic power, and from them no other conclusion could fairly be drawn than that it was not the ex- culpatory evidence, but the prosperity, skill, and power of the prisoner and his counsel which averted a conviction. In commenting on these letters to the jury, Cockburn, C. J., called attention to the fact that they were writ- ten in a foreign country, where the tendency was to present judicial proceed- ings in a sensational and dramatic form, and exhibited his preference for the more prosy and less theatrical modes employed by writers in England; he admitted that the writer must have felt that the evidence bore strongly against the accused, and that he had no right to give the impression which had been formed in his own mind. "He is not called upon to give an opin- ion. He is not called upon to tell the impression produced upon a court of justice, but he takes upon himself to say that there is no prohibition against any one at this time to say that the man was a villain. You can judge how far that is consistent with a fair report of the proceedings. I am bound to tell you it is not. It is beyond the province of a reporter or pub- lisher to go beyond reporting, and say of a person on his trial, ' that man is a villain.'" The chief justice concluded that portion of his charge having reference to the letters as follows: "Gentlemen, while on the one hand we uphold the liberty of the press, and especially in the matter of reporting the proceedings of our courts of justice, which it is to the interest of the whole public should be made known as widely as possible, we must take care those who exercise that all-important function shall act under a due sense of the duties they have to perform, and the responsibility under which they exer- cise those functions; and if you are of opinion that, looking at the whole of these communications, they do not contain a fair, honest, and faithful repre- sentation of what passed under the proceedings of that trial, but that, yield- ing to the impressions of the moment, or with the idea of making his articles as taking, as attractive, and effective as possible, the writer has gone beyond the legitimate bounds of privilege, and that on these considerations he has stated that which is unfair and prejudicial to the man about whom he was writing, — if you think there are passages where the reporter is merely repeating his own statements, — you are bound to say so by your verdict. You will have to say what the damages are. The issue presented to you is, whether this was a fair report of the proceedings of a court of justice, or whether it is a garbled, prejudiced, and passionate description of what took place. " Proceeding with his charge in the same case, the chief justice next re- ferred to the editorial article which had been published by the defendant in his journal, and to the claim made by the one side that it, in effect, merely suggested that the plaintiff had been a fortunate man to have had his inno- cence affirmed by the jury, and on the other hand, as, in substance, stating that he was "a fortunate man to have escaped, not because the circumstances against him had been cleared up at the last moment, but because he had been » lucky man, or had the advantage of an ingenious advocate, or had the Oct. 1889.] McAllister v. Detroit Free Press Co. 367 good fortune to be tried by a stupid jury"; and the court said that if the latter meaning was properl}' attributable to the article, it would be a "pub- lication of which an innocent man would have just ground of complaint." The judge then concluded as follows: "Now, gentlemen, it is for you, in the first place, to form your own judgment upon what the effect — the intended efl'ect — of that article was. Is it simply to say, as the defendant puts it, that, under all the circumstances, Risk Allah vras innocent, but that appearances have been against him, and that his innocence had been proved? Or is it in- tended to suggest that, although Risk Allah had been pronounced not guilty by the verdict of the jury, given with the entire approbation of the court, ix was only from the skillfulness of the defense and his own good fortune that he escaped conviction? That is the question for you, in the first instance. IT you are of the opinion that the writer, upon reflection, rejoiced that his in- nocence was proved over all appearances of guilt, that is a thing nobody can complain of; but if you are of opinion that, either directly or indirectly, he as- serts that the guilt of the man was confirmed, then you will have to consider how far he was justified by the privileges the law gives to those who discuss matters of public interest. There is no difference here about law. It is agreed by counsel on both sides. The discussion of public questions is so im- portant to the well-l)eing of society, and especially the discussion of what takes places in courts of justice and the results of trials, that those who in the public press of this country discuss those matters have a decided right and privilege to treat upon the administration of justice; and even if a pub- lic writer in the press should write that which turns out not to be founded upon the inferences he draws, and is unable to justify the conclusion he has arrived at, yet if he has acted in good faith in tlie discharge of his duty, bringnig to it the amount of care, reason, and judgment which a man who takes it upon himself to discuss public questions is bound to bring, so that tlie jury is of opinion that he has acted reasonably and properly, he will be protected by that privilege, although he may turn out to have been in error. Therefore, it is for you to consider whether the circumstances were such as to warrant that article, even upon the nssumption that they did intend to impute to Risk Allah the crime of murder, even after his recent acquittal. In considering this you must take all the circumstances of the case, and see what tells in his favor and what tells against him, and then see how far the writer, in the calm, fair, and dispassionate exercise of the judgment which he was bound to bring to the consideration of such a case, was justified in mak- ing these imputations. I can well understand that at the first outset anyone who was made cognizant of the facts bearing against Risk Allah, as stated in tlie acie aaccusation, would have thought him guilty; and if the case stopped there I should not have blamed any one who, in discussing that matter, had come to that conclusion. But the question is, whether they could bring an accusation of guilt against hiin when all the facts were heard. It is for you to judge whether Risk Allah was innocent of the charge, or whether any man, in the exercise of sound judgment, and desirous of doing justice, could come to any other conclusion. I quite agree that if, by some oversight or want of firmness on the part of the judge or jury, a great criminal escapes, and by a miscarriage of justice a scandal is brought on its administration, and the criminal is let loose on society, rehabilitated and let loose when he ought to be suffering punishment, — in such a case a public writer would be doing no more than his duty in coming forward to remonstrate with the tri- bunal through whose want of firnmess the man has been acquitted. If that is done through that fair and reasonable exercise of judgment which the case 368 McAllister v. Detroit Free Press Co. [Mich. demands, no jury ought to visit a public writer with damages, because he haa fairly and conscientiously discharged a public duty. On the other hand, if you think there has been rashness and recklessness in quarreling with the verdict of acquittal, which has declared the man to be innocent, and espe- cially under a criminal prosecution, your verdict will be based on those con- siderations. You will take all these things into your consideration, and you must also take into consideration that human judgment is liable to error, and must ask yourselves whether there was any intention to single out Risk Allah for animadversion on the part of the writer." At the common law, the defense that a defamatory publication was true was admissible as a justification only in civil actions: 2 Bishop's Crim. Law, sec. 918. In the majority of the United States, either the constitutional or the statutory law provides, in substance, that "the truth may be given in evidence to be a defense only when the further fact appears that the publi- cation was made with good motives, and for justifiable ends. In some of our states, the statute is even more favorable to defendants than this": Id., sec. 920; Castle v. Houston, 19 Kan. 417. Even in the absence of these stat- utes, the truth was sometimes received in evidence in criminal prosecutions. Thus in Commonwealth v. Clap, 4 Mass. 163, 3 Am. Dec. 212, Chief Justice Parsons said: "Although the truth of words is no justification, in a criminal prosecution, for a libel, yet the defendant may repel the charge by proving that the publication was for a justiliable purpose, and not malicious, nor with intent to defame any man. And there may be cases where the defend- ant, having proved the purpose justifiable, may give in evidence the truth of the words, when such evidence will tend to negative the malice and in- tent to defame." Hence when one is an officer, or a candidate for office, a newspaper, for the purpose of showing whether he is fit for such office, may publish of him that which is clearly defamatory, and, in justification of what it did, prove the truth of the charges made by it, even though there is no statute conceding this defense in express terms: Commonwealth v. Clap, supra; Commo7iwealth v. Blandinr/, 3 Pick. 304; 15 Am. Dec. 214; Common- wealth V. Morris, 1 Va. Cas. 175; 5 Am. Dec. 515; State v. Burnham, 9 N. H. 34; 31 Am. Dec. 217. In many instances, publications may be both libelous and true, and yet made for unworthy motives. One might have the public thus kept in re- membrance of an early indiscretion which he had long since repented, or advised of some physical defect or deformity for which he is in no wise blamable. In these instances, as the publication is true, he is not permitted to maintain any civil action therefor. If the publication was not made for justifiable ends, the publisher is guilty of a crime, for which he may be prosecuted and convicted; but he is not answerable in damages to the per- son libeled, however malicious or otherwise unworthy his motive may be: Castle V. Houston, 19 Kan. 417; Perry v. Man, 1 R. I. 263; Rayne v. Taylor, 14 La. Ann. 406; Baurn v. Clause, 5 Hill, 196; Heilman v. Shanklin, 60 Ind. 441; Sullings v. Shakespeare, 46 Mich. 408; Foss v. Hildreth, 10 Allen, 76. In Massachusetts, in 1855, the law was changed by a statute which, in effect, prohibits a recovery of damages for a defamatory publication, though proved to be true, "unless malicious intention shall be proved." Under this statute, criminal prosecutions and civil actions are placed on a common ground. In either, if the defendant shows that the matters published were true, he makes out a complete .defense, unless the government in the one case, or the plaintiff in the other, shows affirmatively "that the publication was made with malicious intention": Perry v. Porter, 124 Mass. 338. This Oct. 1889.] McAllister v. Detroit Free Press Co. 369 statute, therefore, shifts the burden of proof in criminal prosecutions. But for it, the defendant must assume the burden of establishing, in addition to the truth of the publication, that it "was published for good motives and jiistifiable ends": Commonwealth v. Bonner, 9 Met. 410. The presumption respecting a libelous charge, in the absence of any statute upon the subject, is, that it is false, and without sufficient excuse. A de- fendant, whether in a civil action or a criminal prosecution, who desires to urge that what he said was true, must, therefore, assume the burden of es- tablishing it by competent and sufficient evidence: Rtissell v. Anthony, 21 Kan. 450. Whether one, knowing or suspecting that a libel is about to be published, to the injury of his property or his reputation, is entitled to any preventive relief, is a question upon which the adjudged cases are unsatisfactory and conflicting. The decision in Prudential L. I. A. v. Knoll, 23 Week. Rep. 249, L. R. 10 Ch. App. 142, 44 L. J. Ch., 31 L. T. 8C6, 7 Chic. L. N. 405, seemed to settle the question in England, and to establish the rule that in no case would an injunction be issued to restrain the publication of a libel, whether against the person or the property of the complainant. While that decision has not, as far as we can ascertain, been overruled, it has been so frequently disregarded, and so many adjudications have been made at variance with it, that it can no longer be regarded as correctly stating the law. If a libel is one containing false and defamatory statements respecting the complainant's property or business, and is calculated to injure him in his property or busi- ness, the more recent as well as some of the earlier English decisions indi- cate that an injunction may properly issue: Hayward v. Haytvard, 34 Ch. D. 198; Quartz Hill C. O. M. Co. v. Beall, 20 L. J. Ch. Div. 501; 51 L. J. Ch. 874; 46 L. T. 746; Saxhy v. E.-iterhrook, L. R. 3 Com. P. Div. 339; 27 Week. Rep. 188; Thorley's Cattle Food Co. v. Massam, L. R. 14 Ch. Div. 763; 42 L. T., N. S., 851 ; 28 Week. Rep. 966; Thomas v. Williams, L.R. 14 Ch. Div. 864; 49 L. J. Ch. 605; 43 L. T. 91; 28 Week. Rep. 983. The decisions upon this subject by the Amer- ican courts are infrequent, and are chiefly characterized by an attempt to follow the adjudications upon the same subject in England; and in this at- tempt the American courts have necessarily reached conclusions as irrecon- cilable as those which they sought to follow: Singer Mfg. Co. v. Domestic Co., 49 Ga. 70; Bell v. Singer Mfg. Co., 65 Id. 452; High on Injunctions, sec. 1015. With respect to libels which reflect upon the reputation of the person libeled, and which do not directly otherwise injure his person or property, no at- tempt, so far as we are aware, has ever been matle to prevent their publica- tion by injunction, and hence no reference can be given to any decisions, whether English or American, upon that topic. Am. St. Rkp., Vol. XV. — 24 AMERICAN STATE REPORTS. Voh. X\'TT. T' - ' ^ -^91-308. BEACH z>. MiLLKR. [180 Ii I IN.. I.. KI'J. 1 Dealings of directors of corporations. 1' \i.l :. S84-Hyt). PEOPLES BK. r. I-RANKLIN BK. Liability of Bank for forged check. Oct. 1889.] Beach v. Miller. 291 Beach v. Miller. 1130 Illinois, 162.] Corporations — Proof of Fraudulent Sale by. — Where the good faith of a sale by a corporation to one of its directors is attacked, evidence of the insolvency of the corporation at the time that the sale was made ia admissible. Solvent Corporation — Director may Contract with. — A director of a solvent corporation may, with the knowledge of the stockholders, deal with the corporation, loan it money, take security, or buy property of it in like manner as a stranger. Insolvent Corporations — Directors cannot Contract with. — The as- sets of an insolvent corporation are regarded as a trust fund for the pay- ment of all its creditors; the directors occupy the position of trustees of such fund, and may be prohibited from purchasing the trust property, and thus securing a preference over other creditors. Insolvent Corporations — Rights of Creditors. — The directors of an in- solvent corporation are trustees of its assets for its creditors, and cannot give the funds away, or sell them at a sacrifice in the interest of others, even with the consent of the stockholders; and if themselves creditors, they cannot receive any advantage or preference in the pay- ment of their claims at the expense of the other creditors. Insolvent Corporation — Purchase by Director — Rights of Creditors. — A director of an insolvent corporation cannot lawfully purchase its property in satisfaction of his own debt, to the exclusion of other credi- tors, with whom he is only entitled to share equally, but he takes the property charged with the trust in favor of the other creditors, which may be enforced in equity, but it is not subject to the execution of an- other judgment creditor. Corporation — Sale to Director — Ratification. — A sale of corporate property, made by a corporation to a director, in payment of its notes held by him, though irregular because made without an order from the board of directors, is subject to ratification, and the fact that the corpo- ration took up the notes canceled and retained them in its possession will be regartled as a ratification of the sale. Weigleyy BulJdey, and Gray, for the appellants. Bennett and Green, for the appellee. Craig, J. This was an action of trespass, brought by Joseph T. ISIiller, in the circuit court of Whiteside County, against Thomas S. Beach and George C. Keefer. The decla- ration contained four counts. In the first and second it is alleged tliat defendants, with force and arms, broke and entered two certain rooms in a certain warehouse, known as the warehouse of the Rock River Packing Company, which said rooms were then and there in the possession of the plaintiff. The third and fourth counts are trespass de bonis asportatis, for taking and carrying away 94,612 tomato-cans, 3,516 sheets of tin, and a few other articles, alleged to belong to the plain- 292 Beach v. Miller. [Illinois, tiff. The defendants pleaded the general issue and several special pleas, in which they averred that on the twenty-third day of October, 1885, E. W. Blatchford & Co. recovered a judgment against the Rock River Packing Company, in the circuit court of Whiteside County, for $1,415.40; that an exe- cution issued oil the judgment, which was placed in the hands of defendants, as sheriff and deputy sheriff, to collect. It is also alleged that the goods named in the declaration belonged to the Rock River Packing Company, and as such they were ^vied upon by defendants under and by virtue of the execu- tion, and sold in satisfaction thereof. Issue was formed on the pleas, and on a trial the plaintiff recovered a judgment for $1,996.41, which was affirmed in the appellate court. In order to get a correct understanding of the questions pre- sented by the record, a brief statement of the facts seems to be required. The Rock River Packing Company is a corpo- ration organized in 1881, with a capital stock of sixteen thou- sand dollars, the incorporators being James A. Ingersoll, Edward H, Sears, William N. Herman, and Joseph T. Miller, the plaintiff here. The corporation was formed for " packing, pickling, canning, and bottling of meats, vegetables, and fruits, and dealing in the same," and was located at Sterling, where it provided itself with a factory and warehouse, in which its business was transacted. During the spring and summer of 1885, the corporation borrowed of Miller, who was then a di- rector, money to be used in its business, amounting to the sum of two thousand dollars. To secure Miller for the money loaned, the corporation executed and delivered to him its four judgment notes, one dated May 30, 1885, amount five hun- dred dollars; one July 6, 1885, amount five hundred dollars; and one for one thousand dollars, on August 17, 1885. On the sixteenth day of October, 1885, these notes being due and unpaid, the president and secretary of the corporation sold Miller 80,000 cans and a small quantity of tin for $1,877, to be applied as a payment on the notes. On the same day, In- gersoll, president and secretary of the corporation, leased Miller two small rooms in the north end of the company's warehouse. On the morning of the 17th, all property belong- ing to the company was removed from the two rooms, and the possession was turned over to Miller. Miller placed the goods purchased in the rooms, and nailed up the doors communicat- ing with other parts of the warehouse, and placed new locks on the other doors. On the seventeenth day of October, 1885, Oct. 1889.] Beach v. Milleb. 293 the corporation delivered to E. W. Blatchford & Co. a judg- ment note for $1,415.40, upon which judgment was entered. On the twenty-third day of October an execution issued on the judgment, and on the 24th, defendant Beach, as sheriff, and defendant Keefer, as deputy sheriflf, levied on the goods which had been purchased by Miller. In the circuit court it was contended that the sale of the goods from the Rock River Packing Company to Miller was fraudulent as against creditors, and being fraudulent, the goods were liable to be seized and sold by the sheriff on the execution in favor of Blatchford & Co. against the Rock River Packing Company. For the purpose of showing the sale fraudulent, the defendants offered to prove that the Rock River Packing Company was, at the time of the sale, in- solvent; that on the sixteenth day of October, 1885, the company executed a mortgage on its real estate for seven thousand dollars to three of its directors; that the company turned over one thousand dollars of its accounts to the Sterling National Bank to apply on a debt due from the company to the bank, which debt was secured by three of the directors of the company; that between the sixteenth and the twenty-third days of October, the corporation sold the product of their manu- facture to a certain party in Chicago. This offered evidence, with other evidence of a like import, was ruled out by the court, and the decision is relied upon as error. We are of opinion that the court erred in excluding this evidence from the jury. If, at the time this sale was made, the corporation was insol- vent, or if, at or about the time when the sale was made, large mortgages were placed on all of the property owned by the corporation, so that it had no property left liable to execution, these were facts proper for the consideration of the jury on the question whether the sale to Miller was fraudulent or made in good faith. What weight should be given to this character of evidence was a question for the jury. We only determine that it was competent evidence for the consideration of the jury on the issue presented by the pleadings. Where the good faith of a sale of property is attacked, it is always competent to prove that the vendor was embarrassed or insolvent: GeiseU' dorf V. Eagles, 106 Ind. 38; Bump on Fraudulent Convey- ances, 591. But appellants rely upon another ground to defeat the sale, — that it was void for the reason that Miller was, at the time, a director of the corporation, and could not contract with it. 294 Beach v. Miller. [Illinois, This proposition is discussed in the argument under several distinct heads, and various authorities have been cited in its support. There is a conflict of authority on this question, but on the general proposition whetlier a director may deal with the corporation we think the weight of authority is that he may. This court so held in Merrick v. Peoria Coal Co., 61 111. 479, and in Harts v. Brown, 77 111. 226. The supreme court of the United States hold the same doctrine. In Twin Lick Oil Co. v. Marhury, 91 U. S. 587, it is said: "It is very true that, as a stockholder, in making a contract of any kind with the corporation of which he is a member, he is in some sense deal- ing with a creature of which he is a part, and holds a com- mon interest with the other stockholders, who, with him, constitute the whole of that artificial entity, and is properly held to a larger measure of candor and good faith than if he were not a stockholder. So when the lender is a director, charged, with others, with the control and management of the affairs of the corporation, representing, in this regard, the ag- gregated interest of all the stockholders, his obligation, if he becomes a party to a contract with the company, to candor and fair dealing is increased in the precise degree that his representative character has given him power and control, de- rived from the confidence reposed in him by the stockholders who appointed him their agent." See also the following au- thorities, where the same doctrine is announced: Angell and Ames on Corporations, sec. 233; Whitwell v. Warner, 20 Vt. 425; Smith v. Lansing, 22 N. Y. 526; City of St. Louis v. Alex- ander, 23 Mo. 483. While a corporation remains solvent, we perceive no reason why a director, with the knowledge of the stockholders, may not deal with the corporation, loan it money, take security, or buy property of it in like manner as a stranger; but whether a director in an insolvent corporation may purchase the assets in payment of a debt, and thus secure a preference over other creditors, presents a different question. So long as a corpora- tion remains solvent, its directors are agents or trustees for the share-holders. They owe no duties or obligations toothers. But the moment a corporation becomes insolvent, its directors occupy a different relation. The assets of the corporation must then be regarded as a trust fund for the payment of all its creditors, and the directors occupy the position of trustees, and a fiduciary relation then existing, they may, with pro- priety, be prohibited from purchasing the trust property. The Oct. 1889.] Beach v. Miller. 295 relation that directors occupy to the property of a corporation is well stated in Ogden v. BTurray, 39 N. Y, 202, as follows: "The appellants and their associates were not in a situation permitting them to secure to themselves a personal advantage in the matter. The stockholders and creditors were entitled not only to their vote in the board, but to their influence and argument in the discussion which led to the passage of the resolution, in pursuance of which they took title as trustees. This brings the case within the rule, which rests in the sound- est wisdom, and is sustained by the best consideration of the infirmities of our liuman nature, and called for by the only safe protection of the interests of cestuis que trust or benefi- ciaries, viz., that trustees and persons standing in similar fiduciary relations shall not be permitted to exercise their powers, and manage or appropriate the property of which they have control, for their own profit or emolument, or, as it has been expressed, shall not take advantage of their situation to obtain any personal benefit to themselves at the expense of their cestuis que trust." S^e also Drury v. Cross, 7 Wall. 299. In Curran v. State of Arkansas, 15 How. 307, Mr. Justice Curtis, delivering the opinion of the court, speaking of an in- solvent banking corporation, says: *'The assets of such a cor- poration are a fund for the payment of its debts. If they are held by the corporation itself, and so invested as to be subject to legal process, they may be levied on by such process. If they have been distributed among stockholders, or gone into the hands of others not creditors or purchasers, leaving debts of the corporation unpaid, such holders take the property charged with the trust in favor of the creditors, which a court of equity will enforce, and compel the application of the prop- erty to the satisfaction of their debts. This has often been de- cided, and rests upon the plainest principles." In Richards v. New Hampshire Ins. Co., 43 N. H. 263, on a bill in equity filed by creditors, it was held that directors and managers of insolvent corporations are trustees of the funds for the creditors, and are bound to apply them pro rata, and cannot use them to exonerate themselves, to the injury of other creditors. It is there said: "Every agent and trustee who has claims of his own must be regarded as agent for himself and others, and bound to give his diligence and care equally to all the claims in his hands, and consequently to apply all moneys paid to him, without an appropriation by the debtor, 296 Beach v. Milleb. [Illinois, to the payment of all claims in his care, whether of his own or others, in just proportions to their amounts." In Morawetz on Corporations, 1st ed., section 579, it is said: **It is the duty of the directors and other agents of an insol- vent corporation to preserve its assets for the benefit of cred- itors. The legal ownership of the assets is not altered by insolvency, and the regular agents of the company retain the same powers of management with which they were originally invested. But upon the insolvency of the corporation, the equitable lien of creditors attaches upon all of the company's assets; and the directors, who originally stood in a fiduciary relation to the company's members, become placed in a fidu- ciary relation to its creditors. Accordingly, it has been held .... that they cannot give away the company's property gratuitously, or sell it at a sacrifice in the interest of others, even with the consent of the stockholders; and if themselves creditors, they cannot receive any advantage or preference in the payment of their claims at the expense of other credi- tors." In Haywood v. Lincoln Lumber Co., 64 Wis. 639, where an action was brought to foreclose a mortgage given by the company to its directors to secure an indebtedness due from the company to them, on the hearing it appeared that at the time the mortgage was executed the company was insolvent, and it was insisted as a defense that the mortgage was invalid. The court, in deciding the case, said: "The main question is the validity of the mortgage in suit. There was abundant evidence to justify the finding of the circuit court that at the time it was given the company was insolvent. In such case the authorities seem to be uniform that the directors and offi- cers of a corporation are trustees of the creditors, and must manage its property and assets with strict regard to their in- terests; and if they are themselves creditors, while the insol- vent corporation is under their management they cannot secure to themselves any preference or advantage over other creditors. The directors are then trustees of all the property of the cor- poration for all its creditors, and an equal distribution must be made, and no preference to any one of the creditors, and much less to the directors or trustees, as such." See also Fort v. Russell, 36 Ind. 60; 10 Am. Rep. 5; and Lippincott v. Shaw Carriage Co., 21 Fed. Rep. 577. The language used in Merrick v. Peoria Coal Co., 61 III. 479, is broad enough to authorize a director of an insolvent corpo- Oct. 1889.] Beach v. Miller. 297 ration to deal with the corporation; but the question of the power of a director to purchase property of or deal with an in- solvent corporation did not arise in that case, and what was said was mere obiter dictum. There the Peru Coal Company, a corporation, executed certain notes payable to the Michigan Car Company, and also drew certain drafts in favor of the company. These notes and drafts were purchased by Merrick, who was an officer of the corporation, with his own funds, and brought an action on the notes and drafts, and the only ques- tion was, whether he was entitled to recover, and the court properly held he might recover upon the notes and drafts. Harts V. Brown, 77 111. 226, is another case where expres- sions may be found similar to those used in the Merrick case, which were not justified by the questions presented for de- cision. That was a bill brought by stockholders to vacate a sale under a trust deed given by the company to secure the payment of certain bonds issued by the company and sold to one of the directors. The question arose whether the com- pany had the power to execute a trust deed, and whether it could borrow money of a director. It was held that the char- ter conferred power to borrow money and secure it by mort- gage or deed of trust, and that the board of directors might borrow money of one of its members. The question before the court was properly decided, but the expression that a di- rector may trade with, borrow from, or loan money to the com- pany of which he is a member, on the same terms and in like manner as other persons, was not authorized by the case made by the record. After a careful examination of the authorities, we are in- clined to the opinion that if this corporation was insolvent at the time of the sale. Miller, who was a director, could not law- fully purchase the property in satisfaction of his own debt to the exclusion of other creditors, but he took the property charged with the trust in favor of other creditors, which may be enforced in an appropriate action. Miller, being a creditor, would doubtless be entitled to share with the other creditors in the property, but he could not appropriate the entire amount to the payment of his own debt. This, however, con- ferred no right upon appellants to seize the property, and sell it in satisfaction of the debt of Blatchford & Co. As creditors of the corporation, they occupied no better position than Miller. It may be, and no doubt is, true, that if Blatchford & Co. had levied on the property while in the hands of the corporation, 298 Beach v. Miller. [Illinois, before the sale to Miller, they would, under such circum- stances, have been entitled to hold it. But after the sale and delivery to Miller they had no such right; the property had passed beyond the reach of their execution. It had passed into Miller's hands charged with a trust which a court of equity might enforce in favor of all the creditors of the cor- poration, or such as might invoke the aid of that court. One other question remains to be considered. The sale was made to Miller without an order of the board of directors of the corporation, and upon this ground it is claimed to be in- valid. Conceding that the sale was irregular, we think it might be ratified by the corporation, and the fact that it took up the notes held by Miller and canceled them, and retained them in its possession, may be regarded as a ratification of the sale. As to the lease of that part of the building where the goods were stored, whether it was strictly valid or invalid was of no moment. The only purpose of the lease was to give Miller possession of that part of the building, and there was ample evidence to establish possession independent of the lease. For the error indicated, the judgments of the appellate and circuit courts will be reversed, and the cause remanded. Director and Corporation, Transactions between. — Directors of a cor- poration are sometimes spoken of as its trustees, and at other times, with more accuracy, their relation to it is compared with that of a trustee to his cestui que trust. They are not trustees in the sense of holding the legal title to all or any of its property for the benefit of the corporation or of its stockholders or creditors. It is true that its directors are, upon sound principles of public policy, inhibited from dealing with the corporation under very much the same circumstances that a trustee is inhibited from dealing with his cestui que trust, and if they disregard the duties and proprieties of their position by undertak- ing to represent their own interest and that of the corporation at the same time, they will not be encouraged in thus walking in the path of temptation, nor be permitted to retain the fruits gathered while in pursuit of their own advancement when they should have pursued none other than that of the cor- poration: Memphis <5s O. R. R. v. Woods, 88 Ala. 630; 16 Am. St. Rep. 81. The relation of director and corporation is, however, merely that of principal and agent, and transactions between a director and a corporation are sustain- able when they could be sustained between a principal and agent, and not otherwise, with this exception, that as a corporation may have no other means of obtaining information respecting a transaction and its subject-matter than through its director, he may have more difficulty than if his principal were a private person in establishing that, in its dealings with him, the corpora- tion was not overreached by means of his superior knowledge and its reliance upon him as its agent and representative. Undoubtedly there are expressions in several decisions from which the in- ference might be drawn, either that a director is absolutely incompetent to Oct. 18S9.] Beach v. Miller. 299 contract with his corporation, or to deal with it, in any matter in which he is personally interested, or, at least, that the corporation may at any time avoid or disregard such contract or other transaction, whether fair or unfair, advantageous or prejudicial: Po7-t v. Hussell, 36 Ind. 60; 10 Am. Rep. 6; Aberdeen R'y Co. v. Blakie, 1 Macq. 461. These expressions, however, were generally arguments adduced in justification of judgments about to be en- tered, and while they doubtless adequately supported such judgments, they are of doubtful applicability in cases in which the real question is, whether or not a director was disqualified from contracting or otherwise dealing with his corporation. In Pickett v. ScJwol District No. 1, 25 Wis. 551, 3 Am. Rep. 105, the court said: "We think there is one fatal objection to the plaintifif 'a right to maintain this action, which renders it unnecessary to consider any of the other questions discussed. That is, that inasmuch as it appears that the plaintiff was himself the director of the district at the time the contract was let, and took part as such in the proceedings to let it, it was against public policy to allow him, while holding that fiduciary relation to the district, to place himself in an antagonistic position, and obtain the contract for himself from the board of which he was a member. The general principle upon which this position must rest is, that no man can faithfully serve two masters whose interests are in conflict. And as men usually and naturally prefer their own interests to those of others, where one attempts to act in a fiduciary capa- city for another, the law will not allow him, while so acting, to deal with himself in his individual capacity. This principle has been most fre- quently illustrated in cases of sales by officers, agents, and trustees, in all of which it has been held that they cannot become the purchasers, because this would allow their interests to come in conflict with their duties to their prin- cipals. The same doctrine is as applicable to the question of taking a con- tract as that of making a sale. And the only doubt would be, whether it should be held applicable in a case where a board, consisting of several, are authorized to act in a fiduciary capacity, and attempt to deal in that capa- city with one of their own members. I think it is; and that although the im- propriety of it would not be so glaring as in the case of a single agent dealing with himself, yet the danger of undue and improper influences, and of fre- quent sacrifices of the interest of the principal in a manner not always open to detection, would be extremely great." The court employing the language just quoted relied upon Cumberland Coal Co. V. Sherman, 30 Barb. 553, and People v. Township Board, 11 Mich. 222, both of which were in point. In fact, the case last cited is an extreme one. It is vaguely reported. As we understand it, certain persons who were members of a board of freeholders, and, as such, authorized to participate in the letting of a contract, themselves bid for, obtained, and fully performed such contract, and being refused payment for the services rendered, applied for a writ of mandate to compel the allowance and payment of their demands. Though the applicants for the writ did not constitute a majority of the board of freeholders, and it did not appear that their votes were essential to pro- cure them the contract, the court declared it void, and denied them relief. This is, perhaps, the only American case maintaining that the corporation may accept and knowingly retain the fruits of the contract, and yet avoid payment on the ground that the contract, being against public policy, is void to the extent that no rights whatever can be based upon it. In the Wiscon- sin case, previously quoted, the court conceded that "perhaps the true theory is, that in all cases where the principle we have discussed is applica- ble, the contract is rather voidable in equity at the option of the principal 300 Beach v. Miller. [Illinois, than absolutely void at law. Undoubtedly, in such cases, the principal, hav- ing full knowledge of all the facts, may affirm the contract. And if he should do so, it would become binding. If it had been fully executed by the contracting party, and the principal should, knowing all the facts, elect to accept and retain the benefit of it, he might be held to have thereby ratified it according to all its terms and conditions. And where it had not been so executed, but had been partially fulfilled, and he elected to accept and retain Buch partial benefit, he might become liable, upon a quantum meruit, upon the same principles as in other cases." In San Diego v. S. D. A: L. A. R. R. Co., 44 CaL 106, the plaintiff, a municipal corporation of the state of California, brought an action to have a deed declared void, and canceled as a cloud upon its title. The deed in question was executed to the defendant by two of the plaintLfif 's trustees, and purported to convey to the defendant certain lands be- longing to the plaintiff, pursuant to an act of the legislature under which the trustees of plaintiff were authorized to select and convey certain lands to the defendant at such prices as such trustees might deem advisable, and upon such terms and conditions as they might determine. At the time when the resolution was passed by the plaintiff's trustees, directing a deed to be given the defendant, one of the trustees voted in the negative and two in the affirmative, and of the two thus voting in the affirmative, one was interested in the defendant corporation, being both a stockholder and a director therein. The deed made pursuant to the resolution was adjudged void, and canceled; but this adjudication might well be rested solely upon the ground that the vote by which it was carried included that of the director of the de- fendant corporation, and that without his vote no resolution whatever could have been passed. It is unquestionably true that a director acting in his quasi legislative capa- city as a member of a board of trustees is incompetent to act in matters in which his interest is adverse to the corporation. Probably an interested director may be counted as one of the parties whose presence is necessary to constitute a quorum of a board of directors, and if a resolution could have been adopted, had he voted against it, the mere fact that his presence was necessary to constitute a quorum will not deprive the resolution of validity: Buell V. Buckingham, 16 Iowa, 284; 85 Am. Dec. 516. His vote, however, cannot properly be counted when it is necessary to constitute a majority, if the question is one in which he is personally interested, and if, without hia vote, the resolution could not have been carried by the requisite number of votes. In other words, it is not adopted at all, and he cannot enforce any claim or right which is based solely upon it: Bennett v. St. Louis Car Roofing Co., 19 Mo. App. 349; Chamberlain v. Pacific Wool O. C. Co., 54 Cal. 103. Hence a resolution fixing the compensation of the president of a corporation cannot be regarded as binding upon it if his vote was necessary to the adop- tion of such resolution. Copela)ui v. Johnson Mfg. Co., 47 Hun, 235. If a resolution authorizes the renewal of two notes, one of which is in favor of a director, and the other in favor of a third person, and the vote of such direc- tor is necessary to constitute a majority of the quorum, by which alone the resolution can be passed, it will, df so passed, be absolutely void, and it can neither support the note of the director nor that of the third person: Smith v. Los Angeles I. - -.iO-.'^O.S. COTTRILI r. IvRlJM. [100 Missouri, 397.] Actions for false representations. Pages :)(i',t :.;■.'. CRAIG z;. V AN BEBBER. [ion Mis-oi u. .■)S4.] Contracts of infants. Pages 874:-,8«S. ALSTON <' HAWKINS. [105 North Carolina. :>. | Presumption of payment from lapse of time. i April, 1890.] Cottrill v. Krum. 649 made by the probate court for the sale of the land at public vendue. The land was appraised at one hundred and fifty dollars, and sold for ten dollars to Wm. H. Long; six years thereafter he sold by warranty deed to Andrew Hendricks for three thousand dollars. In April, 1884, Hendricks conveyed by like deed for same consideration to defendant. By stipulation filed, it is agreed that the sole question to be determined is, whether the curator's deed is valid. There can be no hesitation on this point; it is a plain matter of statutory provision. Sections 28, 29, and 30, page 469, General Statutes, 1865, control this case. The last-named section declares: " No real estate of any minor, sold under the provisions of this chapter, shall be sold for less than three fourths of its appraised value," etc. The probate court had no jurisdiction to approve such a sale. Its order of approval was therefore coram non judice, and the deed showing the facts already recited was void on its face. We reverse the judgment, and remand the cause, with direc- tions to enter a judgment for plaintiff's, after having taken an account of rents and profits. JimisDicnoN — Statutory Authority. — Where a statute prescribes the mode of acquiring jurisdiction, it must be strictly pursued, or all the pro- ceedings will be mere nullities: Note to Bloom v. Bur dick, 37 Am. Deo. 308, 309. Cottrill v. Krum. 1100 Missouri, 897.] MsANiNG OF Ordinary Words in Instructions need not bb Explained WHEN. — It is not necessary that the meaning of ordinary words and phrases, such as "diligent inquiry," used in their usual and conven- tional sense in instructions to the jury, should be defined or explained. False Representations, Diligent Inquiry not Essential to Recovery IN Action for. — In an action for false representations, it is error to in- struct the jury that although the defendant made false representations as to material existent facts, calculated to affect the plaintiff's estimate of the value of property, for the purpose of inducing him to trade there- for, upon which the plaintiff relied, and by which he waa induced to make the trade, yet if by diligent inquiry he might have discovered that such representations were false, then he cannot recover. And such an instruction is especially erroneous in a case where the evidence makes it apparent that the means of knowledge were not in fact equally avail- able to the plaintiff and to the defendant. Waiter of Right to Sue for False Representations, What is not. — A plaintiff does not waive his right to sue for damages for false repre- 550 CoTTBiLL V. Krum. [Missouri, sentationa by offering, after the purchase of the property, to sell it at the price which the defendant represented to be its value, nor by allow> ing four or five months to elapse before bringing his suit. Substantial Misdirection of Jury, Ground for New Trial. — The su- preme court cannot say that a judgment is for the right party, and ought to be affirmed, when there has been a substantial misdirection of the jury upon a question of law bearing upon the issues of fact to be tried by the jury, but for which they might have reached a different con- clusion. Action to recover damages. The opinion states the case. C H, Krum, for the appellant. John C. Orrick, for the respondent. Brace, J. The plaintifif in this action seeks to recover damages for false representations alleged to have been made by the defendant in a trade in which the plaintiff, in exchange for fifty shares of paid-up stock in the Globe Panorama Com- pany, sold and conveyed to the defendant a certain lot of ground in the city of St. Louis. The verdict was for the de- fendant, and from the judgment thereon in his favor the plaintiff appeals. Many grounds are assigned in the motion for a new trial, but the only one urged here why the court should have granted a new trial is, the alleged error of the court in giving the seventh instruction for the plaintiff, which is as follows: *' 7. If you find, from the evidence, that plain- tiff, by diligent inquiry, might have ascertained the truth or falsity of the alleged representation, and failed to make such investigation, then the court instructs you that he cannot re- cover in this action." 1. It is urged against this instruction that it is merely an abstract proposition of law, and does not define or explain to the jury what meaning the law gives to the expression " dili- gent inquiry," and is therefore erroneous; and in support of this contention, we are cited t-o many cases in which instruc- tions were held to be erroneous, because legal propositions and the meaning of technical legal phrases or words were therein submitted to the jury; e. g., Fugate v. Carter, 6 Mo. 267, and Anderson v. McPike, 86 Mo. 293, in which the jury were called upon to determine what was "a material averment"; Morgan V. Durfee, 69 Mo. 469, 33 Am. Rep. 508, to define "malice"; Boogher v. Neece, 75 Mo. 383, in which the question of what was " adverse possession " and " color of title " was left to the jury; Wiser v. Chesley, 53 Mo. 547, what was "gross negli- gence"; and Atteberry v. Powell, 29 Mo. 429, 77 Am. Dec. 579, April, 1890.] Cottrill v. Krum. 551 in which it was left to the jury to determine the meaning to be applied to the words "in substance," in an action of slan- der. In all these cases, it will be observed, either a question of law or the meaning of certain words and terms to which a special and peculiar meaning had, by law, been applied, was left to the jury, and it was properly held that this was error. It is possible that cases might arise in which the words "dili- gent inquiry," might become the proper subject of judicial in- terpretation, but in this case it is evident they were used by the court and could have been understood by the jury in no other than in their usual, ordinary, and conventional sense, and such sense is presumed to be as well comprehended by the jury as the court, and needs no definition. It is not ne- cessary that the meaning of ordinary words and phrases used in their usual and conventional sense should be explained in instructions. 2. It is further argued against said instruction, that it as- serts an incorrect legal proposition, and ignores the difference between the situations of the parties in regard to the property concerning which the representations are alleged to have been made. The facts upon which the court, in its first instruc- tion to the jury, authorized a finding for the plaintiff, were: "That if, at the time when the defendant traded to plaintiff the panorama stock in the petition described, defendant was, and from the opening of the enterprise had been, business manager of the Globe Panorama Company, and in charge of the business in St. Louis, and that, with a view to the trade of the stock aforesaid to the plaintiff, and as an inducement thereto, he stated to plaintiff, in substance, tliat the intrinsic and actual value of said panorama stock was one hundred dollars per share, and that none of said stock had been sold or could be bought for less than par, or one hundred dollars per share, and if he further stated, at the time and with the purpose aforesaid, that the actual cost price of the panorama property in St. Louis was seventy-five to eighty thousand dolhirs, and that from the opening of the business the com- pany had been, and was still, doing a profitable business, and that from the time the business opened, the company had been earning and paying a dividend of two per cent or two dollars per share per month; and if you further find that said statements were untrue, that they were made for the purpose of deceiving and misleading plaintiff as to the true character or value of said stock; and if you find that plaintiff 552 CoTTRiLL V. Krum. [Missouri, traded the Pine Street lot for said stock on the faith of said representations, and that he would not have made the trade but for those statements and representations; and if you further find that the defendant, in making said representa- tions, knew they were untrue, or if he made them as of hia own knowledge, without knowing whether they were true or false, and with the intent of deceiving and misleading the plaintiff, — then the court instructs the jury that your verdict must be for the plaintiff." The other instructions given, except the one under consid- eration, were in harmony with this one. There was evidence to support this instruction, and with the legal propositions, it asserts that no fault has been found. Nevertheless, the jury were told in the seventh instruction that although they should find all these facts to exist, yet if the plaintiff, by diligent in- quiry, might have discovered that defendant's said represen- tations were false, then he could not recover. In other words, the jury were told in this instruction that although the de- fendant made false representations as to material, existent facts, calculated to affect the plaintiff's estimate of the value of the property, for the purpose of inducing him to trade therefor, upon which the plaintiff relied, and by which he was induced to make the trade, yet if, by diligent inquiry, he might have discovered that such representations were false, then he could not recover. We do not understand this to be the law. " It has indeed been laid down as a broad proposition of law that if the means of knowledge be at hand and equally available to both parties, and the subject of the transaction be open to the in- spection of both alike, the injured party must avail himself of such means, if he would be heard to say that he was de- ceived by the representation of the other party, unless there was a warranty of the facts": Bigelow on Fraud, 522. This instruction cannot be maintained even upon the broad terms of this proposition; for by it the plaintiff is precluded from recovery if he could have discovered the truth by dili- gent inquiry, whether the means of knowledge were at hand, or whether they were equally available to him as to the de- fendant or not. It may be well, however, to note the continuing remarks of Mr. Bigelow on the general proposition. He says, pages 523, et seq.: "But there is serious ground for doubting the cor- rectness of this proposition in its broad form. It will be seen April, 1890.] Cottrill v. Krum. 553 upon reflection that the situation of the person to whom the misrepresentation was made is quite different in regard to means of knowledge from that of the person who made it. The latter may well be held to the duty to know the facts; no one has prevented him from knowing them. The former has been put off his guard and misled by the very represen- tation which has been made. Indeed, a representation may as well mislead, even where the means of knowledge are directly at hand, as where they are not. The supposed rule in regard to means of knowledge came to be applied in this country before this distinction had been pointed out Recent authority has, however, gone far towards setting the matter right in principle; the proposition has now become very widely accepted, at law as well as in equity, at least as general doctrine, that a man may act upon a positive representation of fact, notwithstanding the fact that the means of knowl- edge were specially open to him It may be improbable that a man w.th the truth in reach should accept a represen- tation in regard to it; but the improbability can be no more than matter of fact. If the representation were of a charac- ter to induce action, and did induce it, that is enough. It mat- ters not, it has been well declared, that a person misled may be said in some loose sense to have been negligent, .... for it is not just that a man who has deceived another should b; permitted to say to him, ' You ought not to have believed or trusted me,' or, ' You were yourself guilty of negligence.' " After citing many cases illustrative of the principle here stated, the learned author sums up thus, page 528: " The re- sult appears to be, not only in principle, but by the weight of authority, that the party to whom the representation is made is affected by means of knowledge or by notice, only where the language or conduct was not of a kind to withdraw his atten- tion from what otherwise he would be bound to know; i. e., only where the representation was not calculated to put him off his guard, as in cases of representations of value or opin- ion." To use the language of another author: " The doctrine of notice has no application where a distinct representation has been made. A man to whom a particular and distinct repre- sentation has been made is entitled to rely on the representa- tion, and need not make any further inquiry, altliough there are circumstances in the case from which an inference incon- nistent with the representation might be drawn ": Kerr on 554 CoTTRiLL V. Krum. [Missouri, Fraud, 80. "No man can complain that another has relied too implicitly on the truth of what he himself stated ": Kerr on Fraud, 81. The same general principle has been ex- pressed by this court in the following terms: "It is no excuse for, nor does it lie in the mouth of, the defendant, to aver that plaintiff might have discovered the wrong and prevented its accomplishment had he exercised watchfulness, because this is but equivalent to saying, 'You trusted me, therefore I had the right to betray you ' ": Pomeroy v. Benton, 57 Mo. 531. The same idea is expressed in another opinion, thus: "We doubt if it is equity to allow a sharper to insist on the fulfillment of his bargain on the ground that his vic- tim was so destitute of sagacity as to make no further in- quiries ": Wannell v. Kem, 57 Mo. 478. It is not seen how instruction No. 7 can be maintained without doing violence to the just and equitable principles announced in these authorities, even concedisg that the par- ties at the time were upon an equal footing, and therefore to be treated as dealing at arm's-length; but when it is con- sidered that the defendant was the originator and promoter of the enterprise, its business manager, fully conversant with every fact of its past history and present condition, having actual knowledge of the cost of the plant, the amount of the stock, and the dividend it was actually yielding, and that the plaintiff was a stranger to the enterprise, it becomes at once apparent that the means of knowledge were not in fact equally available to the plaintiff as to the defendant, and the in- struction has nothing to stand upon; for " where the parties do not stand upon equal footing, the objection to a plea or claim of false representations that the party to whom they were made was 'negligent' in not making inquiry or examination has still less force, and would nowhere be allowed": Bigelow on Fraud, 534; Wannell v. Kem, 57 Mo. 478. So that in any view of the case this instruction must be condemned. 3. There is nothing in the contention that the plaintiff waived his right to sue for damages for false representations by reason of the fact that after the purchase of the stock, and before suit, he may have offered the stock for sale at par, or that four or five months elapsed between the time when he acquired the stock and the institution of his suit. Nor is it within the power of this court to say the judgment is for the right party, and ought to be affirmed, when there has been a substantial misdirection of the jury upon a question of law April, 1890.] Cottrill t;. Krum. 555 bearing upon the issues of fact to be tried by the jury, but for which they might have reached a different conclusion. For the error of the court in giving the seventh instruction, the judgment is reversed, and cause remanded for new trial. Action TO Recover for False Representations. — An action for false representations, called also an action of or for deceit, may be maintained against a party who makes a false representation of a fact with knowledge of its falsity, to one who is ignorant of the falsity, with intent that it shall be acted upon, where the person to whom it is made acts upon it, and by so doing suffers injury: Pasleyv. Freeman, 3 Term Rep. 51; Taylor v. AsJiton, 11 Mees. & W. 401; Ormrod v. HutJi, 14 Mees. & W. 651; Peek v. Derry, 59 L. T., N. S., 78; Bigelow on Fraud, 466; Marshall v, Buchanan, 35 Cal. 264; 95 Am. Dec. 95; Williams v. McFadden, 23 Fla. 143; 11 Am. St. Rep. 345; Menoinv. Arbuckle, 81 111. 501 ; Miner v. Riclder, 51 111. 299; Wheeler v. Randall, 48 111. 182; Keith v. Ooldston, 22 111. App. 457; Stanhope v. Swnfford, 80 Iowa, 45; Bhoda V. Annis, 75 Me. 17; 46 Am. Rep. 354; Buschman v. Codd, 52 Md. 202; McAleer v. Horsey, 35 Md. 4.39; Pendergast v. JReed, 29 Md. 398; 96 Am. Dec. 539; Lilclifield v. Hutchinson, 117 Mass. 195; Medbury v. Watson, 6 Met. 246; 39 Am. Dec. 726; Busterud v. Farrington, 36 Minn. 320; Humphrey v. Merriam, 32 Minn. 197; Wilder v. De Cou, 18 Minn. 470; Cartwright v. Car- penter, 7 How. (Miss.) 328; 40 Am. Dec. 66; Schwenk v. Nay lor, 102 N. Y. 683; Miller v. Barber, 66 N. Y. 558; Rice v. Manley, 66 N. Y. 82; 23 Am. Rep. 30; White v. Merritt, 7 N. Y. 352; 57 Am. Dec. 527; Cidier v. Avery, 7 Wend. 380; 22 Am. Dec. 586; Benton v. Pratt, 2 Wend. 385; 20 Am. Dec. 623; Upton V. Vail, 6 Johns. 181; 5 Am. Dec. 210; Lum v. Shermer, 93 N. C. 164; Hexter v. Bast, 125 Pa. St. 52; 11 Am. St. Rep. 874; Cox v. Highley, 100 Pa. St. 249; Routh v. Caron, 64 Tex. 289; Paddock v. Fletcher, 42 Vt. 389. In such an action the motive of the defendant in making the false repre- sentation is wholly immaterial. The law infers an improper motive, if what he says is false within his own knowledge, and occasions damage to the plaintiff: Keith v. Ooldston, 22 III. App. 457; Hiner v. Richter, 51 111. 299. Benefit to Party Making False Representation not Necessary to Liability. — It is not necessary, in order to maintain an action to recover damages for a false representation, to show that the defendant was in any way benefited by the making of such representation, or that he was in collusion with some one else who was benefited: Pasley v. Freeman, 3 Term Rep. 51; Hart V. Tallmadge, 2 Day, 381; 2 Am. Dec. 105; Endsley v. Johns, 120 111. 469; 60 Am. Rep. 572; FL'iher v. Mellen, 103 Mass. 503; Patten v. Ourney, 17 Mass. 182; 9 Am. Dec. 141; Aeu) York L. I. Co. v. Chapman, 118 N. Y. 288; Rice v. Manley, 66 N. Y. 82; 23 Am. Rep. 30; Hubbard v. Briggs, 31 N. Y. 518; WhUe V. Merritt, 7 N. Y. 352; 57 Am. Dec. 527; Upton v. Vail, 6 Johns. 181; 6 Am. Dec. 210. Representation must be False at Time It is Made. — In determining the question of the liability of the person making a representation, its truth or falsity must be ascertained by the fact as it was at the time when th» representation was made. Any change in the condition of affairs that takes place after the time when the representation vas made cannot affect the question of the liability of the person who made it: Corbett v. Gilbert, 24 Ga. 454; Reeve v. Dennett, 145 Mass. 23. False Representations may be by Acts as well as Words.— Such a fraud aa will sustain the action for false representations may grow out of 556 CoTTRiLL V. Krum. [Missouri, actions as well as words. A party may make a false and fraudulent affirmation or representation by acts as well as by language: Jiizan v. Toulmin, 9 Ala. 662; 44 Am. Dec. 448; Chisholm v. Gadsden, 1 SLrob. 220; 47 Am. Dec. 550; Croyle v. Moses, 90 Pa. St. 250; 35 Am. Rep. 654; Bigelow on Fraud, 467. SUPPEESSION OF THE TrUTH EQUIVALENT TO FaLSE REPRESENTATION. — A false representation may consist in the suppression of the truth as well as in the assertion of a falsehood, and an action lies in either case if the intention to deceive exists and is the cause of the suppression or assertion: Kidney v, Stoddard, 7 Met. 252; Allen v, Addington, 7 Wend. 9; Croyle v. Moses, 90 Pa. St. 250; 35 Am. Rep. 654. Opinion, whether Constitutes Legal Representation. — As a general rule, a false representation for which a party is liable to an action must be a representation of a fact, and not a mere expression of opinion. Generally speaking, an opinion does not constitute a legal representation. It is, perhaps, safe to say that a mere expression of an opinion is not sufficient to sustain an action for false representations: Bigelow on Fraud, 473; Gordon v. Butler, 105 U. S. 553; Crown v. Carricjer, 66 Ala. 590; East v. Worthington, 88 Ala. 537; Nounnan v. Sutter County Land Co., 81 Cal. 1; Williams v. McFadden, 23 Fla. 143; 11 Am. St. Rep. 345; Tuck v. Downing, 76 111. 71; Endsley v. Johns, 120 111. 469; 60 Am. Rep. 572; Sieveking v. Litzler, 31 Ind. 13; Buschnian v. Codd, 52 Md. 202; Belcher v. Costello, 122 Mass. 189; Haven v. Neal, 43 Minn. 315; Starr v. Bennett, 5 Hill, 303; Simar v. Canaday, 53 N. Y. 298; 13 Am. Rep. 523; ^tna Ins. Co. v. Beed, 33 Ohio St. 283; Fulton v. Hood, 34 Pa. St. 365; Lyon V. Briggs, 14 R. I. 222; 51 Am. Rep. 372. Bigelow, in his work on the law of fraud, page 473, says: "It is very difficult, however, to distinguish opinion from fact in cases lying along the border; so much so, that the courts will often be found in conflict with each other. Sometimes the same court will be found in conflict with itself." In the confusion which exists on this subject, it is difficult to formulate a rule that can be regarded as general. The proposition that no man is liable for the expression of his opinion or judgment cannot be accepted without qualiflcation as universally true. It is true only when the opinion stands by itself, and is intended to be taken as distinct from anything else. If a party positively affirms an opinion upon a matter of fact suscepti- ble of actual knowledge in such a manner that the person to whom he makes the statement, instead of being put upon inquiry is put ofi" his guard, and the latter, relying upon such statement, is injured, an action will lie: Bigelow on Fraud, 475; Hickey v. Morrell, 102 N. Y. 454; 55 Am. Rep. 824, Danforth, J., in delivering the opinion of the court in that case, said: "So as to every representation concerning a matter of fact by which one man is induced to change his position to hia injury or the benefit of another. It may be so expressed as to bind the person making it to its truth, whether it take the form of an opinion or not ": See Teachout v. Van Hoesen, 76 Iowa, 113; 14 Am. St. Rep. 206. Representations by Vendor as to Value of Property. — Represen- tations as to the value of property, made by a vendor thereof to the vendee, are ordinarily regarded as mere statements of opinion, and the party to whom they are made is not generally justified in relying upon them. Such repre- sentations, though false, are not usually sufficient to sustain an action for false representations: Endsley v. Johns, 120 111. 469; 60 Am. Rep. 572; Sieve- king v. Litzler, 31 Ind. 13; Hunter v. McLaughlin, 43 Ind. 38; Mc A leery. Horsey^ 35 Md. 459; Medbury v. Watson, 6 Met. 259; 39 Am. Dec. 726; Kimball v. Bangs, 144 Mass. 321; Bristol v. Braidwood, 28 Mich. 191; Haven v. Neal, 43 Minn. 315; Walker v. Mobile etc. R. R. Co., 34 Miss. 245; Anderson v. Mo' i April, 1890.] Cottrill v. Krum. 657 Pike, 86 Mo. 293; Van Epps v. Harrison, 5 Hill, 63; 40 Am, Dec. 314; Simar V. Canaday, 53 N. Y. 298; 13 Am. Pvop. 523; Ellis v. Andrews, 5G N. Y. 83; 15 Am. Rep. 379; Chrysler v. Canaday, 90 N. Y. 272; 43 Am. Rep. 166. In Ellis V. Andrews, 56 N. Y. 83, 15 Am. Rep. 379, Grover, J., delivering the opin- ion of the court, said: " Upon the question of value, the purchaser must rely upon his own judgment; and it is his folly to rely upon the representation of the vendor in that respect." In Simar v. Canaday, 53 N. Y. 298, 13 Am. Rep. 523, it was held that the question whether a representation as to value is merely the expression of an opinion or an affirmation of fact is a question for the jury. And in Haven v. I^'^eal, 43 Minn. 315, it was held that such repre- sentations are admissible in evidence when connected with and serving to characterize other material statements. But if the buyer is induced by the eeller not to make inquiries as to the value in regard to any extrinsic facts aflfecting the quality or value of the property, he may rely uj^on the assur- ance of the seller; and if he does so rely, and such assurances are fraudulently made to induce him to buy, he may have an action for the injury he sustains: Hanger V. Evins, 38 Ark. 334; Nysewander v. Lowman, 124 Ind. 58i; Parker V. Moulton, 114 Mass. 99; 19 Am. Rep. 315; Bradbury v. Haines, 60 N. H. 123; Stewart v. Stearns, 63 N. H. 99; 56 Am. Rep. 496; Weidner v. Phillips, 39 Hun, 1; Ellis v. Andreios, 56 N. Y. S3; 15 Am. Rep. 379. ' If the value of property sold can be known only to an expert, and the seller, representing himself as knowing its value, makes false representations in reference thereto, which are relied on and acted upon by the buyer to his injury, an action for damages will lie: Hanger v. Evins, 38 Ark. 334; Allen V. Hart, 72 111. 104; Teachout v. Van Hoesen, 76 Iowa, 113; 14 Am. St. Rep. 206; McKee v. Batoji, 26 Kan. 226; Picard v. McCormick, 11 Mich. 68; Kost V. Bender, 25 Mich. 515. Some authorities hold that a false and fraudulent statement as to the number of acres in a tract or piece of land sold is actionable: Stark- weather v. Benjamin, 32 Mich. 305; Coon v. Atwell, 46 N. H. 510; Whitney v. Allaire, 1 N. Y. 305; Bardsley v. Duntley, 69 N. Y. 577; Hill v. Brower, 76 N. C. 124. But see contra, Gordon v. Pannelee, 2 Allen, 212; Mooney v. Mil- ler, 102 Mass. 217; Credle v. Swindell, 63 N. C. 305. In Lewis v. Jewell, 151 Mass. 345, however, it was held that a seller of certain carpets laid upon various floors, halls, and stairs of a large dwelling-house was liable to the buyer for false representations as to the number of yards, and that the latter was not bound to ascertain, by measurement or otherwise, the number of yards he was buying. It was stated in that case that the rule as to land adopted in that state did not extend to such a case. In Iowa, it is held that a buyer may rely upon the representations of the seller as to ownership of real property, its location, and the like; and in order to recover for false representations in reference to such matters, it is not necessary for the plain- tiff to show that he instituted inquiry by consulting plats or records, or by employing a surveyor, or the like: McGibbons y. Wilder, 78 Iowa, 531; Car- michael v. Vandebur, 50 Iowa, 651; Hale v. Philbrick, 42 Iowa, 81. And the same doctrine seems to prevail in Indiana also: Ledbetter v. Davis, 121 Ind. 119; Westv. Wright, 98 Ind. 335; Campbell v. Franken, 65 Ind. 591. In some states it is held that false representations -iirule by a vendor of real estate as to the price which he paid for it are not actionable: Holbrook V. Connor, 60 Me. 578; 11 Am. Rep. 212; Bishop v. Small, 63 Me. 12; Med- bury v. Watson, 6 Met. 246; Hemmer v. Cooprr, 8 Allen, 334; Mooney v. Miller, 102 Mass. 217; Cooper v. Lovering, 106 Mass. 77. But in other states the coutrary doctrine is held: Ive^ v. Carter, 24 Conn. 392; Qreen v. Bryant, 558 CoTTRiLL V. Krum. [Missouri, 2 Ga. 66; McAleer v. Horsey, 35 Md. 439; Van Epps v. Harrison, 5 Hill, 63; Sandford v. Handy, 23 Wend. 260. In the case of Kenner v. Harding, 85 111. 264, 28 Am. Rep. 615, it was proved that the defendant represented to the plaintiff that he had been offered a certain sum for the land he was selling him, and fraudulently in- duced the person who, he said, had made him the offer to corroborate hia statement. The plaintiff, relying on the statement and its corroboration, bought the land, paying for it much more than it was worth. Judgment was rendered in favor of the plaintiff. Scholfield, J., who delivered the opinion of the court, affirming the judgment of the lower court, said: "The general rule of law is, that the mere statements of the vendor as to the value of land, or what he has been offered by others for it, are not of themselves such evidence of legal fraud as will authorize a recovery; but that does not apply here, where the statement comes from a third party, unknown to have any interest in magnifying the value of the land. The plaintiff, being him- self uninformed as to the value of the land, was entitled to expect that he could get honest information from others, and was not to anticipate they were in a conspiracy with the defendant to deceive him. By this conspiracy the defendant caused a source of information to which the plaintiff had a right to resort, and on which to rely, to become corrupted, and thereby pre- vented his obtaining correct information, and so the plaintiff was both morally and legally defrauded." It is well settled that false representations as to the character and pecuniary standing of a third person, made with knowledge of their falsity, and with intent to deceive, to one who, relying upon them, is thereby injured, will sustain an action. This subject is dis- cussed in the note to Lord v. Colky, 25 Am. Dec. 447-451 ; and see Bigelow on Fraud, 481; EndsUy v. Johns, 120 111. 469; 60 Am. Rep. 572. In the following states, however, statutes have been enacted requiring representa- tions concerning the credit of another to be in writing, in order to bind the party making them: Alabama, California, Idaho, Indiana, Kentucky, Maine, Massachusetts, Michigan, Missouri, Oregon, South Carolina, Vermont, Vir- ginia, West Virginia, and Wyoming. On the question whether a purchaser of property is liable to an action for deceit for misrepresenting his own financial ability, the authorities are divided. In Vermont, it is held that an action for deceit will not lie against one who makes a false representation of his own pecuniary resources in order to obtain, and thereby obtains, a credit for goods sold him: Fisher v. Brown, 1 Tyler, 387; 4 Am. Dec. 726; Dyer v. Tilton, 23 Vt. 313; Jude v. Wood- burn, 27 Vt. 415; Best v. Smith, 54 Vt. 617. And in Lyon v. Briggs, 14 R. I. 222, 51 Am. Rep. 372, it was decided that the action will not lie against one obtaining credit by fraudulently representing that he is "a person safely to be trusted and given credit to." Bigelow, on the other hand, says: "The matter of one's own solvency is a fact capable of actual knowledge and there is no good reason for holding a representation concerning it to be of less effect than a representation concerning the solvency of a third person." And see Cai7i v. Dickenson, 60 N. H. 371. Promise is not Representation. — It is well settled that a promise to perform an act, although accompanied at the time with an intention not to perform it, is not such a representation as can be made the basis of an action for false representations. Strictly speaking, a promise is not a representation: Lawrence v. Gayetty, 78 Cal. 126; 12 Am. St. Rep. 29; Oage v. Lewis, 68 111. 604; People v. Hmly, 128 111. 9; 15 Am. St. Rep. 90; Burt v. Boioles, 69 Ind. 1; Long v. Woodman, 58 Ale. 49; Dawe v. Morris, 149 Mass. 188; 14 Am. St. April, 1890.] Cottrill v. Krum. 559 Rep. 404; Knowlton v. Keenan, 146 Mass. 86; 4 Am. St. Hep. 282; Oallager V. Brunei, 6 Cow. 347; Lexon v. Julian, 21 Hun, 577; Farrar v. Bridges, 3 Humph. 566; Fenwick v. Grimes, 5 Cranch C. C. 439. Misrepresentations of Law not Ground of Actiow. — Generally speaking, a misrepresentation of law affords no basis for an action of deceit: Bigelow on Fraud, 487; Upton v. Trihilcock, 91 U. S. 45; Jordan v. Pickett, 78 Ala. 331; Lehman v. Shnckleford, 50 Ala. 437; Beall v. McOehee, 57 Ala, 438; Townsend v. Cowles, 31 Ala, 428; Fixh v. Clelnnd, 33 111. 243; Burt V. Botvles, 69 Ind. 1; Rmsell v. Branham, 8 Blackf, 277; Reed v. Sidener, 32 Ind. 373; Carter v. Harden, 78 Me. 528; Thompson v, Phmilx Ins. Co., 75 Me. 55; 46 Am. Rep. 357; Grant v. Grant, 56 Me. 573; Bunis v. Lane, 138 Mass. 350; ./acrr/e v. Winslmo, 30 Minn. 363; Lexon v. Julian, 21 Hun, 577; ^ell v Hillmcu., 15 B. Mon. 50S; 61 Am. Dec. 195; Kingsbury v. 660 CoTTRiLL V. Krum. [Missouii, Taylor, 29 Me. 50S; 50 Am. Dec. 607; Lamm v. Port Deposit Assn, 49 Md. 23.3; 33 Am. Rep. 246; Boioker v. Belong, 141 Mass. 315; Cole v. Cassidy, 138 Mass. 437; 52 Am. Rep. 284; Emerson v. Brigham, 10 Mass. 197; 6 Am. Dec. 109; Tryon v. Whitmarsh, 1 Met. 1; 35 Am. Dec. 239; Stone v. Denny, 4 Met. 151; Cowley v. Smyth, 46 N. J. L. 380; 50 Xm. Rep. 432; Wah-mnn v. Dalley, 51 K Y. 27; 10 Am. Rep. 551; Griswold v. Gebble, 126 Pa. St. 353; 12 Am. St. Rep. 878; Hexter v. Bast, 125 Pa. St. 52; 11 Am. St. Rep. 874; Erie City Iron Works v. Barber, 106 Pa. St. 125; 51 Am. Rep. 508; Cox v. Highley, 100 Pa. St. 249; Fulton v. Hood, 34 Pa. St. 365; 75 Am. Dec. 664; Staines v. Shore, 16 Pa. St. 200; 55 Am. Dec. 492; Jackson v. Stockbridge, 29 Tex. 394; 94 Am. Dec. 290. The law raises no presumption of knowledge on the part of the party mak- ing the representation from the mere fact that the representation is false. If he honestly belipved it to be true at the time he made it, he cannot be held liable in this form of action: Lord v. Qoddard. 13 How. 198; Schwabacker v. Eiddle, 99 III. 343; Holdom v. Ayer, 110 111. 448; Avery v. Chapman, 62 Iowa, 144; Hartford Ins. Co. v. Matthews, 102 Mass. 221; Sollund v. Johnson, 27 Minn. 455; Sims v. Eiland, 57 Miss. 83; Cowley v. Smyth, 46 N. J. L. 388; 50 Am. Rep. 432; Stitt v. Little, 63 N. Y. 427; Erie City Iron Works v. Barber, 106 Pa. St. 125; 51 Am. Rep. 508; Crown v. Brown, 30 Vt. 707. But one who makes a representation without knowing whether it is true or false is, in morals and in law, as blamable as if he made it knowing it to be false. If, therefore, a party states as of his own knowledge material facts susceptible of knowledge, which are false, he is guilty of a fraud which renders him lia- ble to the person who relies and acts upon his representations as true, and it is no defense that he believed the representations to be true: Bigelow on Fraud, 513; Juzan v. Toidmin, 9 Ala. 662; 44 Am. Dec. 448; Munroe v. Prit- chett, 16 Ala. 785; 50 Am. Dec. 203; Einstein v. Marshall, 58 Ala. 153; 25 Am. Rep. 729; Hanger v. Evins, 38 Ark. 334; Mayer v. Salazar, 84 Cal. 646; Foard v. McComb, 12 Bush, 723; Ingalls v. Miller, 121 Ind. 188; West v. Wright, 98 Ind. 335; Brown v. Blunt, 72 Me. 415; McAleer v. Horsey, 35 Md. 439; Savage v. Stevens, 126 Mass. 207; Tucker v. White, 125 Mass. 344; Litchfield V. Hutchinson, 117 Mass. 195; Fisher v. Mellen, 103 Mass. 503; Stone v. Denny, 4 Met. 151; Lobdell v. Baker, 1 Met. 193; 3r Am. Dec. 358; Stone v. Covell, 29 Mich. 359; Beebe v. Knapp, 28 Mich. 53; Bullitt v. Farrar, 42 Minn. 8; ante, p. 485; Busterud v. Farrington, 36 Minn. 320; Humphrey v. Merriam, 32 Minn. 197; Merriam v. Pine City Lumber Co., 23 Minn. 314; Wilder V. De Coil, 18 Minn. 470; Sims v. Eiland, 57 Miss. 607; Walsh v. Moise, 80 Mo. 568; Caldwell v. Hem-y, 76 Mo. 254; Phillips v. Jones, 12 Neb. 213; Wakeman v. Dalley, 51 N. Y. 27; 10 Am. Rep. 551; Oberlander v. Spiess, 45 N. Y. 175; Meyer v. Amidon, 45 N. Y. 169; Lunn v. Shermer, 93 N. C. 164; jEtna Ins. Co. v. Reed, 33 Ohio St. 283; Mitchell v. Zimmerman, 4 Tex. 75; 51 Am. Dec. 717; Cabot v. Christie, 42 Vt. 121; 1 Am. Rep. 313; Peek v. Derry, 59 L. T., N. S., 78; Brownlie v. Campbell, L. R. 5 App. Cas. 925; Taylor v. Ashton, 11 Mees. & W. 401. In the late case of Peek v. Derry, 59 L. T., N. S., 78, Sir James Hannen said: "If a man takes upon himself to assert a thing to be true which he does no* know to be true, and has no rea- sonable ground to believe to be true, in order to induce another to act upon the assertion, who does so act, and is then damnified, the person so dam nified is entitled to maintain an action for deceit." So, too, if a party in conscious ignorance of the fact, recklessly represents that a thing is true, es- pecially under circumstances where he ought to have known it to be false, he will be liable, in an action for false representations, to the person who, April, 1890.] Cottrill v. Krum. 561 relying on his statements, has suffered injury: Derry v. Peelc, L. R. 14 App. Cas. 337; Peek v. Derry, 59 L. T., N. S., 78; Orisioold v. Gehbie, 126 Pa. St. 353; 12 Am. St. Rep. 878; Beehe v. Ar«rtj)p, 28 Mich. 53; Ingalls v. Miller, 121 Ind. 1S8; L?o(n v. Shermer, 93 N. C. 164. Intent to Deceive Essential to Maintain Action. — In order to main- tain an action for false representations, it must he shown that the represen- tations were fraudulently made with intent to deceive the person to whom they were maile, and to induce him to act upon them: Terrel v. Benctt, 18 Ga. 404; HoUom v. Ayer, 110 111. 448; SchwabacJcer v. Riddle, 99 111. 343; Avery v. Chapman, 62 Iowa, 144; Hartford Ins. Co v. Matthews, 102 Mass. 221; Tucker v. White, 125 Mass. 344; Sims v. Eiland, 57 Miss. 83; Griswold V. Habin, 51 N. H. 167; 12 Am. Rep. 76; Cowley v. Smyth, 46 N. J. L. 380; 50 Am. Rep. 432; Marsh v. Falker, 40 N. Y. 562; Zahriskie v. Sinith, 13 N. Y. 322; 64 Am. Dec. 551; Yovmj v. Corcll, 8 Johns. 23; 5 Am. Dec. 316; Huber v. WiLson, 23 Pa. St. 178; Lebhy v. Ahrens, 26 S. C. 275; Crown v. Brojvn, 30 Vt. 707; Smith v. Mariner, 5 Wis. 551; G8 Am. Dec. 73. But if a false representation is made with knowledge of its falsity, an intent to de- ceive will be conclusively presumed: Jxidd v. Weber, 55 Conn. 267; Etidsky v. Johns, 120 111. 469; 60 Am. Rep. 572; Chatham Furnace Co. v. Moffatt, 147 Mass. 403; 9 Am. St. Rep. 727; Hwlnut v. Gardner, b^d Mich. 341; Haven v. ^'eal, 43 Minn. 315; Cowley v. S/nyth, 46 N. J. L. 380; 50 Am. Rep. 432; Grisivold v. Oebbie, 126 Pa. St. 353; 12 Am. St. Rep. 878; Hine v. Campion, L. R. 7 Ch. D. 344. Loomi.s, J., in delivering the opinion of the court in Judd v. Weber, 55 Conn. 207, said: " It is a mistake to suppose that it is essential to a fraudulent intent that it should reach forward and actually contemplate the resulting damage to the other party. There is a fraudulent intent, if one, with a view of benefiting himself by intentional falsehood, mis- leads another in a course of action which may be injurious to him." Representations must have been Relied upon. — In an action to recover damages for false representations, the plaintiff must show that he relied upon the representations made to him by the defendant, and that be was deceived thereby: Bennett v. Gihbons, 55 Conn. 450; Merwin v. Ar- buckle, 81 111. 501; Tuck v. Downing, 76 III. 71; Hiner v. Hichter, 51 111. 299; Wheeler v. Randall, 48 111. 182; Bowman v. Carithers, 40 Ind. 90; Hale, the idea represented is, that the contract is susceptible of confirmation or avoidance by the promisor, though it is not binding until it is ratified." This is a senseless and erroneous distinction. Execiitory contracts of infants are no more invalid than executed contracts. Both are binding until disaffirmed. No one would contend that infants' executory contracts could be disregarded as nullities by the adult contracting parties, or by third persons, until they had been ratified; yet this is precisely what the doctrine leads to. It may be that a ratification will result from less positive acts or conduct in case of executed contracts than in case of execu- tory; but this does not prove that the one class has a greater binding effect than the other. It may finally be observed that the rules concerning the binding effect of infants' contracts are, in general, the same at law and in equity. This prop- osition is well expressed by Dorsey, J., in Bramner v. FninJcIin, 4 Gill, 4G3, 468, as follows: "It is a general rule and well-settled principle, as well at law as in equity, that no person under the age of twenty-one years is compe- tent to make a contract, binding upon him, unless it be for 'necessaries.' No executory contract, by him bona Jide entered into during his minority, unless confirmed by him after arriving at years of maturity, can be de- creed to be specifically performed by a court of equity, or enforced in a court of law. Nor, in the absence of such confirmation, when pursuing his legal rights, in contravention of such contract, can he be restrained from so doing, by a court of equity interposing a prohibition, by way of injunction." It is true that certain special rules, diU'erent from those at law, are enforced by courts of equity, as, for example, compelling infants to repay money advanced to them to procure necessaries, and, perhaps, imposing conditions upon them when they seek the aid of equity for relief; but the general rule still remains, that their contracts have no more but the same binding force iu courts of equity as in courts of law, Statutoky Regulation. — It has already been said that persons under the age of twenty-one are sometimes p«rmitted by statute to enter into contracts to which nonage is no defense. Special statutes have also been passed relat- ing to the disalfirmance and ratification of contracts by infants, and concerning some other matters. Tliese statutes, and the cases decided under them, will be found discussed under their appropriate heads. Tliere are, however, some general statutes and some decisions which require a separate notice. It has been held that a statute conferring capacity upon married women to contract generally does not thereby remove the disability of infancy: ('uni- ■tiiimjs v. Ecerelt, 82 Me. 260; nor can a statute giving validity to the marriage settlements of minors be held to further remove the disabilities of married infants to enter into contracts: Burr v. Wilson, 18 Tex. 367, 374; Hemp- hill, C. J., also saying (p. 376): "The general power of making contracts is not expressly or impliedly included in any of the laws conferring rights on married infants; and consequently they have the right to avail themselvea 580 Craig v. Van Bebber. [Missouri, of their privilege, when any such contracts are attempted to be enforced." Where an early statute of Maryland jji-ovided that the orphans' court should have the power to appoint guardians to infant females until they attained the age of sixteen, or married, when the guardianship should cease, and the property delivered up to the wards or their hii,sl)ands, it is held that the dis- abilities of infancy are not thereby removed, with the exception that a female infant on attaining the age of sixteen has capacity to receive from her guar- dian her real and personal estate. She cannot, therefore, under the age of twenty-one, make a binding disposition of her personal property: DaviD v. Jacqtdn, 6 Har. & J. 100; nor is she even bound by a settlement with or release to her guardian: Bowers's Adm'x v. Slaip, 7 Har. & J. .32; Fridje v. State, 3 Gill & J. 103; 20 Am. Dec. 463. Statutes enabling married women to convey their lands and release their claims to dower in the lands of their husbands, and providing the manner in which the conveyances shall be executed like- wise, do not remove the disability of infancy: See post, " Deeds of Infant Femes Covert." The legislation in England concerning infants' contracts has been radical and really extraordinary By section 1 of the Infants' Relief Act, 1874, 37 and 38 Victoria, ciiapterC'i, it is enacted that "all contracts, whether by specialty or by simple contract, henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied (other than contracts for neces- saries), and all accounts stated with infants, shall be absolutely void; provided always, that this enactment shall not invalidate any contract into which an infant may, by any existing or future statute, or by the rules of common law or equity, enter, except such as now by law are voidable"; and by the second section: "No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age." There is no room for question that all contracts of infants falling within the provisions of this statute are mere nullities, and good for no purpose. The Civil Code of California contains several sections on this subject, which, as amended, exhibit a minimum acquaintance with the general law and a maximum obscurity of thought. The sections certainly have not the "pride of ancestry," and we will venture to predict that in an intelligent commu- nity they have not the " hope of posterity." The principal sections are as fol- lows: Sec. 33. "A minor cannot give a delegation of power, nor, under the age of eighteen, make a contract relating to real property, or any interest therein, or relating to any personal property not in his immediate possession or control." Sec. 34. "A minor may make any other contract than as above specified, in the same manner as an adult, subject only to his power of dis- affirmance under the provisions of this title, and subject to the provisions of the titles on marriage, anil on master and servant." Sec. 35. "In all casea other than those specified in sections 36 and 37 [sections concerning contracts for necessaries, and obligations entered into undei the express authority or direction of statutes], the contract of a ihinor, if made whilst he is under the age of eighteen, may be disaffirmed by the minor himself, either before his majority or within a reasonable time afterwards; or in case of his death within that period, by his heirs or personal representatives; and if the con- tract be made by the minor whilst he is over the age of eighteen, it may be disaffirmed in like manner upon restoring the consideration to the party rrom whom it was received, or paying its equivalent." Sections 15, 16, and 17 of April, 1890.] Craig v. Van Bebbeb. 681 the Civil Code of Dakota are the same in language as the foregoing sections of the Civil Code of California, except that instead of the words "or within a reasonable time afterwards," in section 35 of the California code, section 17 of the Dakota code reads, "or within one year's time afterwards," and adds to the section, "with interest." It should be remarked that both in California and Dakota males attain their majority at twenty-one years, and females at eighteen years. The result of this half-way legislation seems to be that any appointment of an agent by a minor during his or her entire minority is absolutely void, and consequently any contract made by such agent in pursuance of his ap- pointment is absolutely void: See Wambolev. Foote, 2 Da.k. 1. Furthermore, leaving out of consideration such contracts as are expressly made binding, any contract whatever made by a female minor during her whole minority, and by a male minor under the age of eighteen, relating to real property, is absolutely void. All purchases, sales, and leases of real property by and to such minors are consequently void. Again, any contract made by such minors, relating to any personal property not in his or her immediate posses- sion or control, is also void. It seems that the contract of a male minor above the age of eighteen, relating to real property, is simply voidable; also, that the contract of a female minor or of a malt minor under the age of eighteen, relating to personal property in his immediate possession or con- trol, is likewise only voidable; also, that the contract of a male minor above the age of eighteen, relating to personal property, wiiether in his im- mediate possession or control, or not, is voidable; also, all other contracts, not relating to real or personal property, entered into by male or female minors of any age, are simply voidable. The provision concerning disaffirm- ance will be noticed hereafter, under the appropriate head. These distinc- tions made by the codifiers are perfectly senseless. It is difficult to appreciate the reason why it should be provided that if a female minor or a male minor under the age of eighteen owns personal property, she or he may make a voidable sale of it, if it be in her or his immediate possession or con- trol, while if the property be not in such possession or control, the sale should be void; or why the purchase by such minor of personal property not in her or his immediate possession or control, or as would be usually the case, in the possession or control of the seller, should be absolutely void, while if such minor have possession of the property as a bailee for any pur- pose, the purchase be merely voidable. In Georgia, it is provided that "the contracts of an infant under twenty- one years of age are void, except for necessaries; and for necessaries they are not valid unless the party furnishing them proves that the parent or guar- dian fails or refuses to supply sufficient necessaries for the infant. If, how- ever, the infant receives property or other valuable consideration, and after arrival at age, retains possession of such property, or enjoys the proceeds of such valuable consideration, such a ratification of the contract shall bind him ": Code 1SS2, sec. 2731. It is plain, both from this section in itself, and other sections connected with it, that although the legislature has used the word "void," what it really meant was "voidable"; for a void contract is not subject to ratification. Compare Shuford v. Alexander, 74 Ga. 293. An early statute of Connecticut enacted "that no person under the gov- ernment of a parent, guardian, or master shall be capable to make any con- tract or bargain which in the law shall be accounted valid, unless the said person be authorized or allowed so to contract or bargain by his or her parent, guardian, or masicr, in which case such parent, guardian, or master 582 Craig v. Van Bebber. [Missouri, shall be bound thereby." Under this statute it was held that a con- tract made by an infant who was under the care of a parent and guardian was absolutely void, and consequently could not be made valid by a ratifi- cation by the infant after he came of ago: Alsop v. Todd, 2 Root, 105, 109. In other cases, however, it was held that the contracts of an infant under the government of a parent, guardian, or master, if against his inter- est, were void, and incapable of ratification, whileh is contracts with a sem- blance of advantage were voidable only: Rogers v. Hurd, 4 Day, 57; 4 Am. Dec. 182; Maples v. Wightman, 4 Conn. 376; 10 Am. Dec. 149. In reaching these conclusions, no stress seems to be placed on the fact whether the par- ent, guardian, or master authorized the infant to contract, except for the purpose of holding the parent, etc., liable. If the infant be not under the government of a parent, guardian, or master, his contracts, at least those which have a semblance of benefit, are voidable only: Larence v. Gardner, 1 Root, 477; Kline v. Beebe, 6 Conn. 494. Furthermore, it is held that an infant, to be incapacitated from contracting under the statute, must be un- der the legal and actual government of his parent, guardian, or master: Kline v. Beebe, 6 Conn. 494. Particular Contracts of Infants. — The application of the foregoing general principles as to the binding effect of infants' contracts to the princi- pal kinds of contracts will now be considered. It might be observed that while many of the cases discussing questions of disaffirmance and ratifica- tion of their contracts by infants may not expressly state that the contracts are voidable, as distinguished from void, yet the proposition is necessarily assumed, and the cases are really authorities to that effect. Deeds of Conveyance. — An infant's deed of conveyance, whether it be a feoffment, a deed operating under the statute of uses, or a statutory grant, it is well settled, is voidably only, and not void: Whittinghams Case, 8 Coke, 42 b; Zoiich v. Parsons, 3 Burr. 1794; v. Handcock, 17 Ves. 383; Allai V. Allen, 2 Dru. & War. 307, 338; Tucker v. Moreland, 10 Pet. 59, 70, 71; 1 Am. Lead. Cas. *224, *228, *229; Irvine v. Irvine, 9 Wall. 617; Freeynan v. Bradford, 5 Port. 270; Maiming v. Johnson, 26 Ala. 446; 62 Am. Dec. 732; Hastings v. Dollarhide, 24 Cal. 195; Rogers v. Hurd, 4 Day, 57; 4 Am. Dec. 182; Kline v. Beebe, Conn. 494; Wallace's Lessee v. Lewis, 4 Harr. (Del.) 75; Colev. Pe.nnoyer, 14 111. 158; Doe ex dcni. Moore v. Abernathy, 7 Blackf. 442; Hartwan v. Kendall, 4 Ind. 403, 404; Pitcher v. I^aycock, 7 Ind. 398; Babrock v. Doe ex deni. Bowman, 8 Ind. 110; Johnson v. Rockwell, 12 Ind. 76; Laiv v. Long, 41 Ind. 586; Scranton v. Stewart, 52 Ind. 68; Keil v. Healey, 84 111. 104; 25 Am. Rep. 434; Tunison v. Chamblin, 88 111. 378; Jenkins v. Jenkins, 12 Iowa, 195; Green v. Wilding, 59 Iowa, 679; 44 Am. Rep. 696; Philips v. Green, 3 A. K. Marsh. 7; 13 Am. Dec. 124; 5 T. B. iMon. 344; Breckenridge's Heirs v. Ormsby, 1 J. J. Marsh. 236, 243; 19 Am. Dec. 71, 77; Vallanduig- ham V. Johmon, 85 Ky. 288; Hoffert v. Miller, 86 Ky. 572; Webb v. Hall, 35 Me. 336, 338; Daiis v. Dudley., 70 Me. 236; 35 Am. Rep. 318, 319; Keifs Lessee v. Davis, 1 Md. 42; Ridgeley v. Crandall, 4 Md. 435; Kendall v. Law- rence, 22 Pick. 540; Allen v. Poole, 54 Miss. 3l-'3, 330; Ferguson v. Belt's Adm'r, 17 Mo. 347, 351; Youse v. I\'orroms, 12 Mo. 549; 51 Am. Dec. 175; Jackson' ex dem. Wallace v. Carpenter, 11 Johns. 539; Bool v. Mix, 17 Wend. 119; 31 Am. Dec. 285; Eagle Fire Co. v. Lent, 6 Paige, 635, affirming 1 Edw. Ch. 301; Gillctt v. Stanley, 1 Hill, 121; Van Nostrand v. Wright, Hill & D. Sup. 260; Dominick v. Michael, 4 iSand. 374, 418; Voorhies v. Voorhies, 24 Barb. 150, 152; McHvaine v. Kadel, 30 How. Pr. 193; 3 Rob. (N. Y.) 429; Drake's Leasee v, Rarnsay, 5 Ohio, 251, 253; Ihley v. Padgett, 27 S. C. 300; White v. April, 1890.] Craig v. Van Bebber. 583 Flora, 2 Over. 426, 431; Wheaion v. Ei>;, Cro. Jac. 320, was explained as intending that an occupation and enjoyment of the infant until after the rent became payable would render the infant liable, independently of the fact that the defendant was of full age before the rent day came; and the dictum of Baron Parke in Northwestern B'y v. McMichael, 5 Ex. 114, 126, to the efifect 592 Craig v. Van Bebber. [Missouri, that the avoidence by the infant could take place after the rent (calls) be- came due, was disapproved. While we do not agree with Baron Parke as to the ground on which Ket- seys Case was decided, yet we believe that his views as to the liability oi aa infant for rent, as expressed in Nortlmestern R'y v. McMichael, 5 Ex. II 4, 126, are nearer correct than those of Chief Baron Pigot in Blake v. Concannon, 4 Ir. Rep. C. L. 323. There is no doubt that the infant's contract of tenancy is good; that an estate vests in him by his entry under the contract; and that the contract and estate continue until avoided by him. The tenancy may be ratified by him after he arrives at full age, when it would no longer be sub- ject to his disaffirmance; and it may be ratified by his continuing in posses- sion and enjoyment of the estate after he conies of age. He could not hold the estate, and repudiate his obligation to pay rent. In the event of such a ratification he would be liable for rent falling due thereafter; and since the ratification would render the letting valid Irom tlie beginning, he would also be liable for rent which became due during his infancy. But we fad to ap- preciate the force of any argument which iiolds the infant liable, notwith- standing his infancy, for rent tailing due during his infancy, if he fails to repudiate the tenancy before the pay day arrives. It is true that the infant may have received a benefit from the occupation and enjoyment of the land, and that a restoration of tlie land to tlie lessor will not restore to him what he has lost by the occupation and enjoyment of the infant, yet it does not follow, according to the best authorities, that because the infant has received a benefit from his contract, and that a disaffirmance will not restore the other party to his original position, the infant is bound by his contract. In Lemprih-e v. Lange, L. R. 12 Ch. D. 675, it was held that where an in- fant obtained a lease of a furnished house on an implied representation that he was of full age, the lease would be declared void and canceled at the suit of the lessor, and possession of the house ordered to be given up, and the de- fendant restrained by injunction from parting with the furniture; but that the defendant was not liable for use and occupation. An infant may be liable for use and occupation of a dwelling, if it be a necessary: See Cmp v. Churchill, cited 1 Bos. & P. 340; Lowe v. GriJ/Uh, 1 Scott, 458; 1 Hodges, 30. It was held in an old case, under the benefit and prejudice theory, that the surrender of an infant lessee by the acceptance of a new lease was void, if it be without increase of his term or decrease of his rent; for where there was not an apparent benefit, or semblance of benefit, his acts were void: Lloyd v. Gregory, Cro. Car. 501. In an action of ejectment against an infant, the defendant is not estopped, by his contract of tenancy with the plaintifl's, from showing title in himself and others, and out of the plaintiffs: McCoon v. Smith, 3 Hill, 147; 38 Am. Dec. 623. Mechanics' Liens. —A number of cases have decided that a mechanic's lien cannot be claimed on the land of a minor, against his objection of infancy, by one who has done work and furnished materials under a contract with him: McCarty V. Carter, 49 111. 53; 95 Am. Dec. 572; Hall v. Ac/cen, 47 N. J. L. 340; Alvey v. Reed, 115 Ind. 148; 7 Am. St. Rep. 418; Wornoch v. Loar, 88 Ky. 000. "A lien implies a contract, and as an infant cannot make a valid contract, no lien can be obtained against his property ": Alvey v. Heed, 115 Ind. 148; 7 Am. St. Rep. 418. "The lien given by the mechanic's lien law is, except in the case of the land of married women, as to which there is an express provision fcr lien, incident only to a legal liabdity to pay which a minor is not competent April, 1890.] Craig v. Van Bebbeb. 693 to incur for building upon his land": Hall v. Acken, 47 N, J. L. 340. "If the contract ceases to be binding, the lien necessarily fails A convey- ance or mortgage by an infant of his real estate would not be binding upon him, and the legislature certainly never intended to allow him to encumber his property indirectly by a contract for its improvement, when he cannot do the same thing in a binding mode by an instrument executed expressly for the purpose The mechanic who erects a building must take, like all other persons, the responsibility of ascertaining that he is contracting with a person who has reached the requisite age ": McCarty v. Carter, 49 111. 53; 95 Am. Dec. 572. These cases, therefore, decided that the particular me- chanic's lien laws in question did not confer a lien on the property of infants. It would undoubtedly be competent, however, for the legislature to provide that the lien could be so claimed. One to whom land has been conveyed, against which a mechanic's lien for materials furnished is sought to be enforced, may, after the grantor has dis- affirmed the contract on the ground of infancy, avail himself of the disaffirm- ance in defense; and this, it is held, although the contract was disaffirmed by the grantor by a plea of infancy in the same action: P^-ice v. Jennings, 62 Ind. 111. Marriage Settlements. — There was at one time considerable dispute in the English courts as to whether a jointure settled on an infant wife before marriage was a bar of dower. It was finally settled, however, that the infant was bound at law by a legal jointure under the statute of 27 Henry VIII., chapter 10, and that an equitable jointure, or a competent and certain pro- vision for the wife, in lieu of dower, if assented to by the parent or guardian of the infant before marriage, would, in analogy to the statute, constitute an equitable bar: See Harvey v. Ashley, 3 Atk. 607, 612, per Lord Hardwicke; Earl of Buckini/hamshire v. Drury (Drury v. Drury), 2 Eden, 60; 4 Bro. C. C. 506, note, 3 Bro. P. C. 492, Wihn. Op. 177; Williams v. Williams, 1 Bro. C. C. 152; Caruthers v. Caruthers, 4 Bro. C. C. 500; Simpson v. Gutteridge, 1 Madd. 609; Williams v. Chittij, 3 Ves. 545; Smith v. Smith, 5 Ves. 189; Cor- bet v. Corbet, 1 Sim. & S. 612; 5 Russ. 254; McCartee v. Teller, 2 Paige, 511. The leading case of Earl of Buckinghamshire v. Drury, 2 Eden, 60, 4 Bro. C. C. 506, note, 3 Bro. P. C. 492, Wilui. Op. 177, established that the statute of Henry VIII. applied to infants as well as adults, and that a jointure was not a contract, but a provision made by the husband for the wife. As before remarked, to make an equitable jointure binding on the infant wife, the provision should be beneficial to her and certain, and not precarious and uncertain. Furthermore, slie will not be bound by her agreement to accept a pecuniary consideration, instead of an interest in land, in beu of dower: Shaw V. Boyd, 5 Serg. & R. 309; Drew v. Drew, 40 N. J. Eq. 458. "As the /erne must have a freehold, there is no reason to say a gross sum, which was to be received as a consideration for having executed a bond, shall be con- eidered as a provision settled on the fetiie in lieu of dower": Shaw v. Boyd, 5 Serg. & R. 309. In Michigan, it is provided that "a woman may also be barred of her dower in all the lands of her husband, by a jointure settled on her with her assent before the marriage, provided such jointure consists of a freehold estate in lands for the life of the wife at least, to take eflfect in pos- session or profit immediately on the death of her husl)and," and that "such assent sh;ill be expressed, if the woman be of full age, by her becoming a party to the conveyance by which it is settled, and if she be under age, by her joining with her father or guardian in such conveyance ": 2 Howell's Ann. Stats. 1882, sees. 5746, 5747. A similar statute exists in New York: 4 R. S., AJi. br. Kep., Vol. XVIII. — 33 594 Craig v. Van Bebber. [Missouri, Banks & Bros.' 8th ed., 2455, sees. 9, 10; and perhaps in some other states where dower is recognized. In some states, if the jointure was made when the wife was an infant, she may, after her husband's death, waive her joint- ure and demand her dower: New Jersey R. S. 1877, 322, sec. 10; Ohio R. S. 1890, sec, 4189. With respect to the settlement of her own real and personal estate by a female infant upon her marriage, it also became established, after some fluctuation of opinion, that she was bound by the settlement of her general personal property, because such personalty became by the marriage the prop- erty of her husband, and the settlement was in eflfect his settlement, and not hers; but as to her real estate and also her personal property settled to her separate use, she was not bound, although the settlement was made with the approbation of her parents or guardian, or even the court of chancery: See Harvey v. Ashley, 3 Atk. 607. 613, per Lord Hardwicke; Dumford v. Lane, 1 Bro. C. C. 106, 115; Clowjh v. Clouuh, 5 Ves. 710, 717; Milnerv. Lord Hare- wood, 18 Ves. 259, 275; Shnson v. Jones, 2 Russ. & M. 365; Johnson v. John- son, 1 Keen, 648; Campbell v. Ingilhy, 21 Beav. 567; In re Waring, 21 L. J. Ch. 784; Field v. Moore, 25 L. J. Ch. 66; 7'emple v. Hawley, 1 Sand. Ch. 153; Wet7norev. Kissa7n, 3 Bosw. 321; Mcllvainev. Kadel, 30 How. Pr. 193; 3 Rob. (N. Y.) 429; Tahh v. Archer, 3 Hen. & M. 398; 3 Am. Dec. 657; Healy v. Rowan, 5 Gratt. 414; 52 Am. Dec. 94; Levering v. Heighe, 2 Md. Ch. 81; 3 Md. Ch. 365; Whichcote v. Lyles Exrs, 28 Pa. St. 73. This rule is nowhere better expressed than in Sinison v. Jones, 2 Russ. & M. 365, by Sir John Leach, M. R., who says, at page 376: "The general personal estate of a female infant is bound by a settlement made on her marriage, because such personal estate becomes by the marriage the absolute property of the hus- band, and the settlement is, in effect, his settlement, and not hers. It is now established that the real estate of a female infant is not bound by the settle- ment on her marriage, because her real estate does not, by the marriage, be- come the absolute property of the husband, although by the marriage he takes a limited interest in it"; and again, he says, page 377: "Whatever doubts may have been entertained on the subject formerly, I take it to be clear that the real estate of a female infant would not be bound by a settle. ment made with the approbation of the court; and it appears to me to follow that the same principle is applicable to personal estate settled to her separate use." If she is not a party to the marriage articles, but they are entered into between her guardian and her intended husband, they are of no obligatory force upon her: Healy v. Rowan, 5 Gratt. 414; 52 Am. Dec. 94. It may be, however, that she will not be permitted to disaffirm her voidable settlement because of infancy, during coverture, and perhaps not after issue born, on the ground that it might interfere with the rights of the husband and of the issue: See Milnerv. Lord Harcwood, 18 Ves. 259, 275; Temple v. Hawley, 1 Sand. Ch. 153, 168; Wetmore v. Kissam, 3 Bosw. .321; Mcllvaine v. Kadel, 30 How. Pr. 193; 3 Rob. (N. Y.) 429; Tahb v. Archer, 3 Hen. & M. 398; 3 Am. Dee. 657. But she may affirm the settlement during coverture, after she becomes of age: Temple v. Hawley, 1 Sand. Ch. 153, 168, and in Dumford v. Lane, 1 Bro. C. C. 106, 115, the lord chancellor remarks: "if she had a settlement from her husband, ami after his death she had taken possession of it, I think she would be bound by the equity arising from her own act"; that is, she would thereby affirm her settlement. A male infant who marries an adult female, and unites with her in a set- tlement by which she covenanted that her estate should be settled to certain uses, is bound by her covenant: Slocombe v. Glubb, 2 Bro. C. C. 545; the lord April, 1890.] Craig v. Van Berber. 595 chancellor saying: "It is not necessary to discuss the other question, how far the infant husband could be bound by his own contract; for I go upon the covenant of the wife, who was adult. And the husband's covenant operates no more than to show his concurrence, and to take away every imputation of fraud from the transaction." But a settlement of his property executed by a male infant is not binding upon him; and notwithstanding he falsely repre- sented to the solicitor, before executing the instrument, that he was of age, it appearing that the intended wife knew that he was not of age, and there- fore was not deceived: Nelson v. Stacker, 4 De Gex & J. 458. An oI)jectiou to the validity of a marriage settlement, on the ground that the parties to it were infants, can only be made, as a general rule, by the parties tliemselves, the instrument being merely voidable, and not void, at their election. It cannot therefore be avoided for nonage by the trustee acting under it, especially when a court of equity is asked to compel him to render an account: Jones v. Butler, 30 Barb. 641; nor by the creditors of the infant's son, whom the infant left surviving her: Lester v. Frazer, 2 Hill Eq. 529; Riley Eq. 76; but it may be avoided by the infant's privies in blood, after her death: Levering v. Heujhe, 2 Md. Ch. 81 ; 3 j\Id. Cii. 365. See further, as to who may avoid an infant's contract, ■post, "Who may Take Advantage of Infancy." In England, the Infants' Settlements Act, 1855, 18 and 19 Victoria, chapter 4.3, provides that an infant above a certain age may, with the ap-probation of the court of chancery, make a valid settlement, or contract for a settlement, of his or her property. See, as interpreting this statute. In re D'llton, 6 De Gex, M. & G. 201; In re Strong, 2 Jur., N. S., 1241; Powell v. Oalley, 34 Beav. 575. In Georgia, section 1784 of the code (1882) enacts: "The minor- ity of either party to marriage articles, or a marriage contract, shall not in- validate it; provided such party is of lawful age to contract marriage"; and section 2734 reads: "Marriage contracts and settlements made by infants, but of lawful age to marry, are binding as if made by adults." In Texas, the statute of 1840 giving validity to the marriage settlements of minors was held not to further remove the disabilities of married infants to enter into contracts: Burr v. Wilson, 18 Tex. 3G7, 374. Sales?, Exchanges, and A.ssignments of Personal Property. — There can be no doubt, in the light of the foregoing discussion, that an infant's sale or exchange of his chattels, or his as.signment of a thing in action, is not void, but voidable only: Holmes v. Bice, 45 Mich. 142; Williams v. Brown, 34 Me. 594; Kiixjman v. Perkins, 105 Mass. Ill; and see post, "Bills and Notes," as to Ids transfer of commercial paper. And as in the case of an infant's deed of conveyance, or any other contract, as heretofore seen, his sale of goods is valid until rescinded by him: Badger v. Phinmy, 15 M iss. 359, 363; 8 Am. Dec. 105, 108. In an English nisi prius case there is, however, an expression of opinion to the effect that the contract of a sale of an infant is absolutely void, and is no answer to an action of trover brought by the infant to recover the value of the goods: Latt v. Booth, 3 Car. & K. 292. The report does not disclose whether there was a demand for the goods before the action was brought. If there was, it was unnecessary to hold the sale to be void. la some early New York cases it will also be found stated that a sale of chattels by an infant vendor is absolutely void, if the infant do not deliver the goods with his own hand; for an infant could not appoint an agent tc make delivery for him: Stafford v. Roof, 9 Cow. 626, 627; Fonda v. Van Home, 15 Wend. 631; 30 Am. Dec. 77; but .see posi, "Delegation of Authority." A sale not being void, bat voidable only, at the election of the infant, it 596 Cbaiq v. Van Bebber. [Missouri, is not within the power of a stranger, certainly not of a wrong-doer, to set up the infant's incapacity to contract as a protection to himself: Holmes v. Rice, 45 Mich. 142. Nor can an assignment of a debt by an infant be avoided by his creditors on the ground of nonage: Kingman v. Perkins, 105 Mass. 111. See further on this question, who may take advantage of infancy, post, "Who may Take Advantage of Infancy." It is no defense, it may be noticed, to an action by an infant to recover the possession of property exchanged by him, or damages for its conversion, based upon his rescission of the contract, that the property received by him in exchange had depreciated in value while in his hands, through his misuse of it, or otherwise: Price v. Fur man, 27 Vt. 268; 65 Am. Dec. 194; White v. Branch, 51 Ind. 210; and see Carpenter v. Carpenter, 45 Ind. 142; Whitcomh V. Joslyn, 51 Vt. 79, 31 Am. Rep. 678; contra, Bartholomew v. Finnemore, 17 Barb. 428. An infant's contract of sale or exchange is not rendered binding upon him at law from the fact that he fraudulently represented himself to be of full age at the time he entered into the contract, and the other party relied upon such representation: Norris v. Vance, 3 Rich. L. 164; Carpenter v. Cat-pen- ter, 45 Ind. 142. See post, "Infant's Concealment or Misrepresentation aa to Age." Warranties in Sales and Exchanges of Personal Property. — An infant's contract of warranty on the sale of a chattel by him is also undoubt- edly voidable. Of course, no action on the warranty can be maintained against his objection of infancy. Therefore infancy is a good defease to an action on a warranty of soundness of a horse: Howlett v. Hasioell, 4 Camp. 118. And it is well settled that infancy is a good bar even to an action founded on a false and fraudulent warranty, whether the action is in form ex delicto or ex contractu: Green v. Greenbank, 2 Marsh. 485; West v. Moore, 14 Vt. 447; 39 Am. Dec. 235; Morrill v. Aden, 19 Vt. 505; Hewitt v. War- ren, 10 Hun, 560; contra. Word v. Vance, 1 Not't & McC. 197; 9 Am. Dec. 683; and see post, "Torts of Infants Connected with Contracts." Chattel Mortgages. — The chattel mortgage of an infant is likewise only voidable, and not void: Coenter, 45 Ind. 142; contra, Bartholomew v. Finnetnore, 17 Barb. 428; but see, on the proposition that the money paid cannot be recovered back by the in- fant. Earl of Buckinghamshire v. Drnry, 2 Eden, 60, 72, per Lord Mansfield; Holmes v. Blogij, 8 Taunt. 508; 2 Moore, 552; Wibon v. Kearse, Peake Ad. Cas. 196; Crummey v. Mills, 40 Hun, 370; and see further on this question, f>ost, "Infant's Right to Recover back Money Paid by Him on Disaffirmance of Contract." The sale vests the title to the property in the infant: Crymes V. Day, 1 Bail. L. 3"_'0. But on disaffirmance by the infant of tlie purchase, the title revests in the vendor, who may reclaim the goods from the infant, if he still have them: Badger v. Phinney, 15 Mass. 359; 8 Am. Dec. 105; Boyden V. Boyden, 9 Met. 519, 521; Strain v. Wrijht, 7 Ga. 568; Heath v. We.>t, 28 N. H. 101; Skinner v. Maxiocll, 66 N. C. 45; Carpenter v. Carpenter, 45 lad. 142; Shirk v. Shidtz, 113 Ind. 571; Nichol v. Ste,,er, 2 Tenn. Ch. 328, atiSrmed in 6 Lea, 393; see post, "Adult's Right to Recover back Consideration from Infant on Disaffirmance." If the infant claims to retain the property pur- ■chased, he should, on the plainest principles of justice, be compelled to pay 598 Craig v. Van Bebbeb. [Missouri, the price, or answer to any security which he may have givea therefor: See post, "Disaffirmance of Part of Transaction." An infant's purchase of personal property is not rendered binding upon him, either at law or in equity, from the fact that he traded as an adult and the vendor dealt with him on that supposition: Carpenter v. Pridtjen, 40 Tex. 32, 35; Folds v. Allardt, 35 Minn. 488, 489; Stikeman v. Dawson, 1 De Gex & S. 90. Nor will he be estopped from avoiding the contract at law because of his false representations concerning his age, his means of payment, and the like, on which the vendor relied: Brown v. McCune, 5 Sand. 224; Studwell v. Shnpfn; 54 N. Y. 249; Vinsen v. Lockard, 7 Bush, 458; Carpenter v. Car- penter, 45 Ind. 142; Whltcomb v. Jo > iud pays its debts, these acts, unexplained, will amount to a confirmation of the part- nership: Miller v. Sims, 2 Hill (S. C.) 479. It is held that if an infant acta 602 Craig v. Van Bebber. [Missouri, as a partner until within a short period of his coming of age, it is his duty to give notice of the termination of the partnership on reaching the age of twenty-one, and if he neglects to do so, he is responsible to persons who thereafter trust his former partner on the credit of the partnership: Goode v. Harrison, 5 Barn. & Aid. 147. As in other cases, if a party seeks to hold an infant member of a partnership, against the defense of infancy, on an obli- gation of the firm, the burden of proof is upon the plaintiff to show that after the infant came of age he affirmed and ratified the obligation: Tohey v. Wood, 123 Mass. 88; 25 Am. Rep. 27, 28. "Such ratification maybe shown either by proof of an express promise to pay the debt, made by the infant after he came of age (wliich is not claimed in this case), or by proof of such acts of the infant after he became of age as fairly and justly lead to the in- ference that he intended to ratify the contract and pay the debt": Tohey v. Wood, 123 Mass. 88; 25 Am. Rep. 27, 28. The ratification will not be in- ferred from a mere acknowledgment of the debt: Coiiklin v. Ogborn, 7 Ind. 553. See further on the question of ratification post. It has been held that an infant could not disaffirm his contract of partner- ship during his infancy: Dunton v. Brown, 31 Mich. 182; but this is not cor- rect on principle, and has been decided to the contrary: Adams v. Beall, 67 Md. 53; 1 Ain. St. Rep. 379. The infant may rescind a contract entered into by the firm, as to himself, and maintain a suit in enforcement of the dis- affirmance: Kerr v. Bell, 44 Mo. 120; and infancy may be interposed by him as a bar to any claim of personal liability in an action upon a contract made by the partnership: Folds v. Allardt, 35 Minn. 488; Mason v. Wright, 13 Met. 306. "The goods having been furnished to a partnership of which defendant was known to be a member, the court ruled that he was liable, on the ground, substantially, that by engaging in business as a member of the firm, he held himself out as competent to bind himself by contract, and hence is estopped to set up his infancy as a sole defense. The rule is not, however, changed by the fact that he was a member of a partnership. His contracts are void- able as in other cases ": Folds v. Allardt, 35 Minn. 488. So infancy is a good defense to an action against an infant, as a secret partner, to recover the price of goods purchased ostensibly by his co-defendant on the false repre- sentations of the infant as to the solvency of the co-defendant, in order that they might both profit by obtaining the goods, the action being founded on contract, and not seeking to avoid the sale and reclaim the goods, or to re- cover on the ground of fraud practiced by the infant: Vinsen v. Lockard, 7 Bush, 458. See the subject of disaffirmance fully discussed, post. It was held in an early case that if a firm of partners accept a bill of ex- change, and one of the partners is an infant, the contract being void as to the infant, the holder of the bill might declare on it as accepted by the adult partner only, and if the defendant pleads in abatement that the other part- ner ought also to be sued, the plaintiff might reply his infancy: Burgess v. Merrill, 4 Taunt. 468; and see Gibbs v. Merrill, 3 Taunt. 307, 313; but this ruling is certainly not now law, if indeed it ever was; and a short time after- wards it was correctly decided in this country tiiat where one of the mem- bers of a partnership which executed a promissory note was an infant, the plaintiff could not treat the note as void as to the infant, and sue the adult partner only: Wamsley v. Lindinherger, 2 Rand. 478. See post, "Bills and Notes." Where, in a suit against two partners for a partnership debt, one of them pleads infancy, and judgment is taken against the adult partner, the judgment, it is held, was nevertheless for a partnership debt, and, as such, was a charge on the partnership property: Gay v. Johnson, 32 N. H. 167. April, 1890.] Craig v. Van Bebber. 603 It has been stated above that an infant member of a partnership may plead his infancy in bar to any claim of personal liability made against him on con- tracts of the firm. This proposition cannot be doubted, the infant not hav- ing ratified the contract of partnership, nor the particular firm contract in question, which perhaps he might have ratified without ratifying other part- nership engagements. And even according to the case of Kerr v. Bell, 44 Mo. 120, where a partnership of which one member was an infant purchased real estate, the infant had the right to rescind the contract as to himself, and to maintain a suit in enforcement of the disaffirmance, and to compel a restoration of the property received by the vendor, the vendor having been restored to the lanil sold. It is, however, a question of cousidurable diffi- culty to determine what are the riglits of an infant partner, as against the firm creditors, with respect to tlie assets of the firm, and his rights, as against his copartners, with respect to capital contributed by him, services he may have rendered the firm, and money paid by him for an interest in the business. It has been held that where an infant partner renounces and dis- affirms his contract of pai-tnership, and tiles !iis petition in court asking the appointment of a receiver, he will be deemed to have thereby consented that the court shall deal with the assets and close out the business so as to settle the ultimate rights of the parties concerned, and in such case the court will treat the assets as partnership assets as in any other case, and apply them first to the payment of the firm debts, before paying the infant the amount invested by him: Shirk v. ShuUz, 113 Ind. 571. There would seem to be no doubt of the correctness of this decision. In Yates v. Lyon, 61 N. Y. 344, which was a case involving the validity of an assignment for the benefit of creditors, made by copartners, of whom one was an infant, Reynolds, C, said: "It cannot be doubted but that the law would devote the assets of this firm to the discharge of the partnership obli- gations whenever any court should be appealed to for that purpose, and I do not see that the supposed equity of an infant partner should in such a case prevail against that of tl>e creditors of the firm We see no substan- tial diflference whether, in such a case, the property of the firm is subjected to the ]>ayment of the proper debts of the firm by the process of the law, or by the voluntary act of the insolvent debtors. In either case the result is pre- cisely the same, and the infant is bound if he simply says nothing It is not too much to say that if an infant goes into a mercantile adventure which proves unsuccessiul, he ought, at least, to be held so far that the assets ac- quired by the firm should be applied to the payment of the debts of the con- cern. If he has been cajoled into any waste of his capital, it hardly seems equitable that the creditor of the firm should, either directly or indirectly, be called upon for reimbursement. The utmost exemption that lie ought to claim in such a case is, that he should not be made personally liable for debts beyond what the assets of the firm are able to pay; and even then the infant should claim the exemption." Again, in Btush v. Lintliirum, 59 Md. 344, it was held that a plea of infancy was no bar to a suit for the dissolution of a partnership, the granting of an injunction restraining the defendant from collecting or disposing of the assets or contracting debts on account of the firm, and the appointment of a receiver to take charge of the assets of the firm and apply the same to the payment of its debts, Irving, J., saying: "Having formed this partnership, he cannot so far repudiate it dwing minority as to escape such consequences of partnership as do not involve personal liability for claims against the firm or costs incident to the legal settlement of its afi"air3. Such partnership must be dissolvable as any other. 604 Craig v. Van Bebber. [Missouri, and the partnership assets must be assignable to partnership creditors." The broad views expressed by these two latter cases, that the assets of a partner- ship should be appropriated to the satisfaction of firm creditors over the claims of an infant partner, appear to ns to be a departure from the general principles governing the liability of infants on their contracts. Why the interest of the infant in the partnership assets should be subjected by im- plication of law to the claims of creditors of the firm, when it is perfectly well settled that an infant may repudiate any security, as a mortgage, ex- pressly given by him, is not clear. Of course, if an infant would rescind a contract he may be obliged to restore the consideration he may have received, provided he still retains it; but the rule as stated here makes no distinction between such creditors who have disposed of property to the firm, which it still retains, and those creditors who are not in that condition. If it be said that the infant must restore an equivalent, if he have not the original consideration, the rule should not have stopped with the firm assets, but should at least make the infant answerable to the extent of any property which may belong to him. The question cannot be regarded as settled. In the celebrated case of Ea7-l of Buckinghamshire v. Drury, 2 Eden, 60, 72, there is a dictum accredited to Lord Mansfield, to the efi"ect, that " if an infant pays money with his own hand, without a valuable consideration for it, he cannot get it back again." This dictum was approved by Gibbs, C. J., in Holmes v. Blogg, 8 Taunt. 511, 2 Moore, 560, where it was held that an in- fant who took a lease of a house, occupied the premises for a time, and paid the rent, could not recover back the rent so paid, on avoiding the lease after he came of age, and quitting the premises. It was sought to apply the rule of this mischievous case to the case of an infant who agreed to enter into a partnership with a tradesman, and paid a deposit towards the purchase of an interest in the business, which was to be forfeited to the tradesman if the in- fant failed to fulfill the agreement, sought to rescind the agreement, and re- cover back the money so paid by him. It was held that he might recover, the court distinguishing Holmes v. Blogg, 8 Taunt. 511, 2 Moore, 560, on the ground that there the infant had received something of value for the money he had paid, and could not put the defendant in the same position as before, while in this case the infant had derived no benefit from the transaction, and, besides, was subjected to a penalty: Covpe v. Overton, 10 Bing. 252; 3 Moore & S. 738; and see Everett v. Wilhins, 29 L. T. 846. In Ex parte Taylor, 8 De Gex, M. & G. 254, decided more than twenty years after Co)-pe v. Overton, 10 Bing. 252, 3 Moore & S. 738, an infant paid, by means of borrowed money, a pre- mium upon entering into a partnership, and before he became of age disaf- firmed the contract of partnership. It was held, approving Holmes v. Blogg, 8 Taunt. 511, 2 Moore, 560, that the infant could not have recovered hack the premium had his partners remained solvent, and therefore could not prove it under their bankruptcy. In this country. Holmes v. Blogg, 8 Taunt. 511, 2 Moore, 560, has been the subject of much adverse criticism. See post, "Infant's Right to Recover back Money Paid by Him on Disaffirmance of Contract. " Yet, so far as the ques- tion under consideration is concerned, it has been held in Page v. Morse, 128 Mass. 99, that if an infant becomes a partner with another person, puts a sum of money into the business, and does work for the partnership, he can- not . afterwards, by rescinding the contract, recover of his partner the money so paid, or the labor performed, in the absence of an express promise to pay him therefor. The court cites Moley v. Brine, 120 Mass. 324, a case the same in principle. The members of a partnership contributed to the common I April, 1890.] Craig v. Van Berber. 605 stock in unequal proportions, with an agreement that the profits should be equally divided between them. Upon the dissolution of the partnership, the assets were insufBcient to pay back the contributions of the several members in full. It was held, on a bill in equity to close up the partnership, that the assets must be divided in the proportions of the contributions, and the defi- ciency borne by the partners equally, and the fact that one of the members of the firm was a minor made no diflference; the court saying: "The assets remaining at the time of the dissolution being insufficient to pay the claims of all the partners, the loss of capital must fall upon the three partners in equal proportions, and the infant cannot throw upon his copartners the obli- gation of making up the deficiency "; citing, among other cases, Holmes v. Blo'jg, 8 Taunt. 511, 2 Moore, 560; Ex parte Taylor, 8 De Gex, M. & G. 254; and Breed v. Judd, 1 Gray, 455. In this latter case, an infant, in considera- tion of an outfit to enable him to go to California, agreed to give the party furnishing the outfit one third of all the avails of his labor during his absence, which he afterwards sent accordingly. The jury having found that the agree- ment was fairly made, and for a reasonable consideration, and beneficial to the infant, it was held that he could not rescind the agreement, and recover back the amount so sent, deducting the amount of the outfit and other money expended for him by the other party in pursuance of the agreement. The court said the contract, in substance and eflfect, was, that the defendants should furnish the outfit, and the plaintiff his labor and time, and that the parties should divide the fruits of the enterprise in a certain proportion. And although such a construction made the contract one of partnership, and an infant could not be bound by such a contract so long as it remained ex- ecutory, yet, said Thomas, J., "we know of no ground upon which, after arriving at full age, he can change the entire character of a contract so made and executed, treat the money so advanced by the defendants as a simple loan, and claim for himself all the fruits of an enterprise in which their money and his labor were the common stock, and this when the contract as originally made is found to have been fair, reasonable, and even beneficial to the plaintiff." The court went on to discuss the contract under other aspects, which need not here be considered. Again, it was held in Adams v. Beall, 67 Md. 53, 1 Am. St. Rep. 379, citing Holmes v. Blo^/g, 8 Taunt. 511, 2 Moore, 560, that wheie money is paid by a minor in consideration of being admitted as a partner in a business, and he does become and remain a partner for a time, he would not be allowed, on voluntarily withdrawing from the partner- ship, to recover back the money thus paid, unless he was induced by fraudu- lent representations to enter into the partnership. But, on the contrary, it was held, with more correctness, in Spnrmnn v. Keim, 83 N. Y. 245, that an infant might avoid an agreement of partnership, and recover back the money which he was induced to invest in the business on restoring the benefits re- ceived from the partnership. Lending and Borrowing of Monet. — There can be no question that an infant who makes a loan of money may disaffirm his contract of lending, and recover back the money. It is even held that if an infant makes a usurious loan, taking the borrower's note, he may avoid the contract of lending, and recover the money loaned under a contract for money had and received: Millard v. Hewlett, 19 Wend. 301; Nelson, C. J., saying: "I put the case en- tirely upon the ground tliat the illegal contract is out of the question, unless we say that infants shall be bound by illegal ojontracts, though they are not by those which are legal, and then the objecti(m of usury fails, and the right to recover becomes very plain." 606 Craig v. Van Bebbeb. [Missouri, On the other hand, an infant's contract of borrowing can be no more than voidable. It may, therefore, be ratified by the infant on coming of age, like any other voidable promise: Kennedy v. Doyle, 10 Allen, 161. " The agree- ment stood on the same ground as any other contract by an infant for any- thing but necessaries. It was voidable, and not void, and if affirmed by her after coming of age, was binding upon her." The contract may, of course, be disaffirmed. And, certainly, one who has paid off a mortgage on the land of infants, at the request of their guardian, cannot maintain an action against them for money had and received or money lent; for the payment was voluntary, and not upon any contract with the defendants, and their guardian had no authority to subject tliem to the payment of the claim: Bkknell v. Bicknell, 111 Mass. 265. It may also be here noticed that infancy is a good defense to an action for money, generally, paid over to the defend- ant for the plaintiff: Root v. Stevenson s Adm'rs, 24 Ind. 115. As to an in- fant's liability on notes and bills, see post, next head, "Bills and Notes." A number of cases have arisen concerning an infant's liability for money loaned to or advanced for him to pay for necessaries. It seems to be the rule that an infant is not liable at law for money borrowed by him for neces- saries, although actually expended by hira for that purpose; but, on the other hand, he is liable for money directly applied by the lender in procur- ing necessaries for him: Rearshy and Cuffers Case, Godb. 219; Darhy v. Boucher, 1 Salk. 279; Eark v. Peak, 10 Mod. 67; 1 Salk. 386; Ellis v. Ellis, 12 Mod. 197; 3 Salk. 197; 1 Ld. Raym. 344; Prohart v. Knouth, 2 Esp. 472, note; Clarke v. Leslie, 5 Esp. 28; Hedgeley v. HoU, 4 Car. & P. 104, 105; Bateman v. Kingston, 6 L. R. Ir. 328; Stoi/t v. Bennett, 10 Cush. 436; Randall v. Sweet, 1 Denio, 460; Smith v. Olipliant, 2 Sand. 306; Price v. Sanders, 60 Ind. 310; Beeler v. Young, 1 Bibb, 519. The infant is, however, liable in equity for money borrowed and actually applied by him for the payment of neces- saries: Marlow v. PilfeUd, 1 P. Wms. 558; Hickman v. Halts Adm'rs, 5 Litt. 338, 342; Watson v. Cross, 2 Duvall, 147, 149; Price v. Sanders, 60 lud. 310. Several cases have determined, under different conditions of fact, that the particular purposes for which money was lent to or expended for an infant did not fall under the head of necessaries: See Stnith v. Gibson, Peake Add. Cas. 52; Hedgeley v. Holt, 4 Car. & P. 104; West v. Gregg s Adm'r, 1 Grant Cas. 53; Magee v. Welsh, 18 Cal. 155; Dorrell v. Hastings, 28 Ind. 478, 479; McKanna v. Merry, 61 111. 177; Decell v. Lewenthal, 57 Miss. 331; 34 Am. Rep. 449; State v. Hounrd, 88 N. C. 650, 651. See this question were fully considered post, under the head " Liability for Money Borrowed or Advanced for Necessaries." Bills and Notes. — Some early cases entertained the view that the bills of exchange and promissory notes of infants were absolutely void. Thus it was held by Sir James Mansfield that if a firm of partners accepted a bill of exchange, and one of the partners was an infant, the contract being void as to the infant, the holder of the bill might declare on it as accepted by the adult partner only, and if the defendant pleaded in abatement that the other partner ought also to be sued, the plaintiff might reply his infancy: Burgess V. Merrill, 4 Taunt. 468; and see Gibbs v. Merrill, 3 Taunt. 307, 313. The Fame judge had previously held at nisi prius that infancy was a good defense to an action on a bill of exchange accepted by the defendant for necessaries, remarking: "Did any one ever hear of an infant being liable as acceptor of a bill of exchange T The replication [of necessaries to the plea of infancy] is nonsense, and ought to have been demurred to ": Williamson v. Waits, 1 Camp. 552. It has also been said, in actions on promissory notes to which April, 1890.] Cbaiq v. \JlS Bebber. 607 the plea of infancy has been interposed, that a negotiable note giren by an infant, even for necessaries, is absolutely void, and not merely voidable: Swasey v. Vanderheyden's Adm'r, 10 Johns. 33; Bouchell v. Clary, 3 Brev. 194; McMinn v. Eichmonds, 6 Yerg. 9; for the reason, in the language of Swasey V. Vanderheyden's Adm'r, 10 Johns. 33, "if the note be valid in the first instance, as a negotiable note, the consideration cannot be inquired into when it is in the hands of a bona Jide holder, and the infant would thereby be precluded from questioning the consideration." But this is no reason; for, on the contrary, a party to the negotiable instrument may plead his infancy as a defense to an action brought thereon by even a bona Jide holder for value without notice, and before maturity: See Tiedeman on Commercial Paper, sec. 280. It will be further noticed that the facts of these cases did not call for an expression of opinion that the paper was void. Other cases, for a similar reason, have denied the right of the holder of a promissory note given for necessaries to maintain an action thereon against the defense of infancy. In other words, infancy is a complete defense to an action on a promissory note given for necessaries, but without any particular regard to the question whether the note is void or voidable: Fenton v. White, 4 5f. J. L. 100; McCrillis v. How, 3 N. H. 348. In Morton v. Steward, 5 111. App. 533, it was held that the promissory note of an infant given for neces- saries was invalid unless ratified; and although, perhaps, the payee might maintain an action thereon, a transferee of the note could not recover upon it. It should be observed that while, according to these views, no action can be maintained on the negotiable instrument, yet the infant will be required to pay the reasonable value of the necessaries: McMinn v. Eichmonds, 6 Yerg. 9; McCrillis v. How, 3 N. H. 348. According to what we understand to be the better authority, however, an infant may be held liable on his express contract for necessaries, when the contract is of such a form that the consideration may be inquired into, and the amount agreed to be paid is simply the reasonable value of the necessaries; and should the stipulated amount exceed the reasonable value, the recovery on the contract is simply reduced to a just compensation. Therefore an action may be maintained against an infant on a promissory note, whether in the hands of the original payee or not, given for necessaries; but the infant may show that the agreed sum is in excess of the reasonable value of the neces- saries, and thus reduce the recovery to their reasonable value: Bradley v. Pratt, 23 Vt. 378; Earle v. Reed, 10 Met. 387; Duhose v. Wheddon, 4 McCord, 221; Aaron v. Harley, 6 Rich. L. 26; Aske.y v. Williams, 74 Tex. 294; and see Rainwater v. Durham, 2 Nott & McC. 524; 10 Am. Dec. 637; compare Howard v. SimpMns, 70 Ga. 322. And this so ruled by an early case con- cerning a single bill: Rmsel v. Lee, 1 Lev. 86; compare Beeler v. Young, I Bibb, 519. If a surety signs the note, and afterwards pays it, he may re- cover the amount so paid from the infant: Conn v. Coburn, 7 N. H. 368; 26 Am. Dec. 746; Haine's Adm'r v. Tarrant, 2 Hill (S. C.) 400; but see Ayersv. Burm, 87 Ind. 245; 44 Am. Rep. 759. Several cases have decided that un- der the facts presented in them the notes were not executed for necessaries at all, and consequently the defense of infancy was good: Turner v. Oaither, 83 N. C. 357; 35 Am. Rep. 574; see also Bouchdl v. Clary, 3 Brev. 194; Raimoater v. Durham, 2 Nott & McC. 524; 10 Am. Dec. 637; Howard v. Simpkins, 70 Ga. 322. See these questions concerning necessaries more fully discussed post, under the head " Necessaries." If a note be executed by an infant pursuant to some statute, it will be binding. Thus if a statute authorizes an iufaut father of a bastard child 608 CRAia V. Van Bebber. [Missouri, to settle with the mother, and secure to her compensation for keeping the child, it impliedly gives him the power to execute instruments necessary in making such settlement, and, therefore, to a promissory note executed under such circumstances, infancy will be no defense: Gavin v. Burton, 8 lud. 69. See pos<, " Contracts Entered into Pursuant to Statutes." With regard to general bills and notes to which an infant becomes a party, there is no doubt that his infancy is a good defense to an action against them thereon: Williams v. Harrison, Garth. 160; Holt, 359; Hussey v. Jewell, 9 Mass. 100. But his contract is voidable only, and not void. Therefore an infant's acceptance of a bill of exchange is merely voidable, and is suljject to confirmation after his arrival at full age: Hyer v. Hyatt, 3 Cranch C. C. 276; and the acceptance of a bill drawn while the acceptor was an infant, but accepted by him after he came of age, is not even voidable: Stevens v. Jackson, 4 Camp. 164; and see Belfast Banking Co. v. Doherty, 4 L. R. Ir. 124. The infant's note, whether negotiable or not, which he signs as a maker, is likewise simply voidable: Young v. Bell, 1 Cranch. C. C. 342; Jef- fo^'iTs Adm'r v. Ringgold, 6 Ala. 544, 548; Fant v. Cathcart, 8 Ala. 725; Strain v. Wright, 7 Ga. 568; Trustees of La Grange Collegiate Institute v. An- derson, 63 Ind. 367; 30 Am. Rep. '.24; Best v. Givens, 3 B. Mon. 72; Reed'v. Batchelder, 1 jSlet. 559; Minock v. Shortridge, 21 Mich. 304; P/ulpot v. Sand- wich Mfg. Co., 18 Neb. 54; Wright v. Steele, 2 N. H. 51; Aldrich v. Grimes, 10 N. H. 194; Edgerly v. Shaw, 25 N. H. 514; 57 Am. Dec. 349; Houston v. Cooper, 3 N. J. L. 866; Goodsell v. Myers, 3 Wend. 479; Everson v. Carpen- ter, 17 Wend. 419; Taft v. Sergeant, 18 Barb. 320, 321; Cheshire v. Barrett, 4 McCord, 241; 17 Am. Dec. 755; Wamsley v. Lindenberger, 2 Rand. 478. It is therefore subject to his ratification or disafErmance. If he ratifies the paper on coming of age, he thereby makes it a good negotiable note from the time it was made, and conseauently, if he makes a new promise to pay the note to the payee, who afterwards transfers the note, the transferee takes the paper as a valid negotiable instrument: Reed v. Batchelder, 1 Met. 559; see also Cheshire v. Barrett, 4 McCord, 241; 17 Am. Dec. 735; and on the other hand, if he disaffirms the note, no action can be maintained against him either by the payee or a subsequent transferee: Hoyt v. Wilkinson, 57 Vt. 404. The same objection has been urged against the validity of an in- fant's general negotiable note as against the validity of his negotiable note given for necessaries; namely, that the defense of infancy would not avail against a bona fide holder for value without notice, and before maturity, and the note might necessarily operate to his prejudice. This, however, as has been said, is a mistaken notion; for infancy may be set up as a defense to an action on the note by such a holder. There is, then, no more reason why the negotiable note of an infant should be void than his non-negotiable note; and no more reason why his non-negotiable note shoiill be void than any other contract which he may make. The same remarks apply to an infant's bill of exchange, or other negotiable instrument. If the criterion of Lord Chief Justice Eyre, to the effect that if the court can pronounce the contract of an infant to be to his prejudice, it is void, while if it be uncertain whether the contract be to his benefit or prejudice, it is voidable, be adopted, still, an infant's general commercial paper, whether it be negotiable or not, would be simply voidable. But as shown supra, under the head "Void and Voidable," this is no longer a test. As early as 1827, Cranch, J., said in Hyer v, Hyatt, 3 Cranch C. C. 276, 277, in holding ao infant's acceptance of a bill of exchange to be voidable only, and not void: "I am inclined to think that no contract entered into by an infant is abac- April, 1890.] Craig v. Van Bebber. 609 lately void, although all contracts by infants, except for necessaries, are voidable. There are some dictd that contracts made by an infant to his pre- judice are void, not voidable; but I doubt whether in law there be any difl'er- ence as to validity between those which are beneficial and those which are prejudicial to the infant; both are voidable, but neither is absolutely void. There is no case in which it has been decided that a contract between an infant and an adult can be avoided by the adult upon the ground of the infancy of the other party. If the contract were absolutely void, neither party would be bound. The question whether the contract be prejudicial to the infant is a question of fact, not of law, and is too uncertain to become the test of the validity of the contract. It is a question which depends upon many circumstances, and cannot always be ascertained at the time of the contract." It should be remembered, however, that a statute may make an infant's general bills and notes, as well as his other contracts, void: See supra, "Statutory Regulation"; and see, under a former statute of Connecticut noticed under that head, Alsopv. Todd, 2 Root, 105, 109; Lawrence v. Gard- ner, 1 Root, 477; Maples v. Wiyhtman, 4 Conn. 376; 10 Am. Dec. 149, —cases which apply the statute t^ promissory notes^ A statute conferring capacity upon married women to contract generally does not thereby remove the disability of infancy, and therefore a married woman may plead her infancy to an action on a promissory note: Cummings v. Ecerett, 82 Me. 260. Tiie doctrine that the executed contracts of infants are binding until avoided, but their executory contracts are invalid until affirmed, also here deserves a passing notice, for, according to it, it is said that the promissory note of an itifant is not void, because it may be confirmed, but that it is in valid until it is confirmed: Edgerly v. Shaio, 25 N. H. 514, 516; 57 Am. Dec, 349, 350; Minock v. Shortridge, 21 Mich. 304, 315; Morton v. Steward, 5 111 A[jp. 538, 535; and see also State v. Plahtul, 43 N. H. 413. This notion which seems to be founded on a misconception of what is meant by " void able," is, happily, not widespread. See it criticised supra, "Void and Voidable." The promissory note of an infant has been held to be equally voidable when given in settlement of his torts or criminal acts, as when given in the adjust- ment of an account against him; although if the note be avoided by the plea of infancy, the plaintiff may be remitted to his original cause of action: Sliaw v. Coffin, 58 Me. 254, 256; 4 Am. Rep. 290; see also Haiiks v. Deal, 3 Mc- Cord, 257; contra, Ray v. Tuhbs, 50 Vt. 688; 28 Am. Rep. 519. In an action on a note executed by the defendant, it is sufficient, according to the code practice, for the defendant to allege in his answer that at the time of the execution of the note he was an infant. It is not necessary to allege that the note was voidable: Slern v. Freeman, 4 Met. (Ky.) 309. The burden of proof is upon the plaintiff, in an action on a note to which the plea of infancy is interposed, to show that the note was either given for necessaries (or, we may add, was given pursuant to some statute), or that the defendant ratified it after attaining full age: Catlin v. Haddox, 49 Conn. 492; 44 Am. Rep. 249, 254. There have been numerous attempts by parties to bills of exchange and promissory notes to escape liability thereon because of the infancy of some otlier party, but these attempts have generally been failures. A guarantor or surety of the infant, whether he is or is not really a party to the paper, cannot set up the infancy of the principal party as a defense to his collateral obligation. Thus in an action on a promise to pay the promissory note of Am. St. Kkp., Vol. XVIIL — 39 610 Craig v. Van Bebber. [Missouri, another, the fact that the note was voidable in consequence of the infancy cf the maker furnishes no defense to the action: Heaser v. Steiner, 5 Watts & S. 476; the note being voidable, and not void, was, with an agreement to forbear to sue it, a sufBcient consideration for the promise to pay it by the third per- son, and, furthermore, infancy can only be taken advantage of by the infant himself, or some one who represents him. But while, as a general proposi- tion, infancy will not protect the indorsers or sureties of an infant, or those who have jointly entered into his voidable undertakings, yet sureties on the promissory note of an infant, given for the price of land purchased by him, are not liable where the infant disaffirms the contract after attaining major- ity, and restores the land to the grantor, the consideration of the note being entirely extinguished: Baher v. Kennett, 54 Mo. 82. Though the maker of a promissory note be an infant, an indorser, very plainly, aside from the propo- sition that the objection of infancy is personal, will be bound by his indorse- ment, for he warrants the capacity of the maker: Henderson v. Fox, 5 Ind. 489; and for like reasons, it is no defense to an action by the indorsee of a bill of exchange against the acceptor that the drawers, who had drawn the bill payable to themselves, and indorsed it, were infants when the bill was drawn: See Taylor v. Croker, 4 Esp. 187. Furthermore, since the indorse- ment of a bill of exchange or promissory note by an infant transfers the title, and is simply voidable, and since the privilege of infancy is personal, the in- fancy of the payee of a bill or note is no defense to an action on the paper by an indorsee against tlie acceptor, drawer, or maker: Grey v. Cooper, 3 Doug. 65; Jones v. Darch, 4 Price, 300; Tayor v. Croker, 4 Esp. 187; Nightingale v. Wiihington, 15 Mass. 272; 8 Am. Dec. 101; DuUy v. Brownfield, 1 Pa. St. 497; Hardy v. Waters, 38 Me. 450; Frazier v. Alassey, 14 Ind. 382; and the same rule applies where the paper is transferred without indorsement: See Garner V. Cook, 30 Ind. 331; and where a non-negotiable note is indorsed by an infant payee: Hastings v. Dollarliide, 24 Cal. 195. A further reason is suggested why the maker of a note or drawer of a bill cannot set up the defense of the infancy of the payee to an action by the transferee of the paper; namely, that the maker or drawer by making a negotiable instrument payable to a certain person asserts to the world the competency of the payee to negotiate the paper: See Frazier v. Massey, 14 Ind. 382. There is no doubt that if an infant indorser were sued on his contract of in- dorsement, infancy would be, as to him, a complete defense: Nighlin'jale v. Withington, 15 Mass. 272, 274; 8 Am. Dec. 101, 102; Dulty v. Broionfield, 1 Pa. St. 497. As before remarked, the indorsement transfers the title, which, however, the infant may ratify or avoid. Undoubtedly, the infant may dis- affirm the indorsement, and intercept payment to the holder of the paper, at any time before the maker or other partj- who is called upon for payment has paid it to the holder; and, of course, in that case, the party called upon to pay could set up the disaffirmance as a defense to an action against him by the holder: See Hastings v. Dollarliide, 24 Cal. 195. Whether he could dis- affirm his transfer after payment made to the holder is another question. In Welch V. Welch, 10.3 Mass. 562, it was said by Colt, J., citing Nightingale v. Withington, 15 Mass. 272, 274, 8 Am. Dec. 101, 102, that the indorsement by an infant payee of a note could not be set aside by him as void, so as to give him a right to recover of the maker, who had paid the indorsee before notice that the order of payment had been countermanded, for the reason that the transaction had become executed in favor of the appointee, and could not be opened without restating the maker. We regard this dictum as entirely unsound, and see no reason on principle why the infant may not April, 1890.] Craig v. Van Bebber. 611 repudiate his indorsement after as well as before payment made to the holder of the paper, and himself claim payment, leaving the equities be- tween the parties to be otherwise adjusted. This was the view taken in Briggs v. McCahe, 27 Ind. 327, 89 Am. Dec. 503, 500, where there is an ex- pression of opinion to the effect that the infant payee of a non- negotiable note may disaffirm his contract of assignment, and recover of the maker, not- withstanding the maker paid the paper to the assignee before the infant's dis- affirmance of the assignment. It may here be noticed that an infant is not liable at law or in equity on his promissory note from the fact that he trailed as an adult, and his infancy was unknown to the party who took the note. He is not tliereby estopped from pleading his infancy as a defense: Van WhiMev. Ketcham, 3 Caines, 323; Houston V. Cooper, 3 N. J. L. 866; Baker v. Stone, 136 Mass. 405. Nor would he even be liable thereon at law because he fraudulently represented himself to be of full age at the time he executed, and the payee relied upon such representations: Batemanv. Kingston, 6 L. R. Ir. 328; Bu.lei/ v. Bttssell, !0 N. H. 184; 34 Am. Dec. 146. See this question fully considered infra, "In- fant's Concealment or Misrepresentation as to Age. Finally, it may be observed that the execution or indorsement of a note, negotiable or non-negotiable, by means of an agent appf)inted by an infant, is not void, but voidable: Whitney v. Dutch, 14 Mass. 457; 7 Am. Dec. 229; Hardy V. Waters, 38 Me. 450; HaMings v. Dollarliide, 24 Cal. 195. Contra. Semplev. Morrison, 7 T. B. Mon. 29S; and see post, "Delegation of Authority." Bonds. — An infant's bond, by which we are to understand his obligation under seal, with a penalty, has sometimes been considered as void, as being a contract clearly to his prejudice. In Fisher v. Mowbray, 8 East, 330, Lord EUenborough said that an infant could not bind himself in a bond with a penalty, conditioned for the payment of interest as well as principal; but the only question really involved was the right of the infant to avoid the bfmd by a plea of infancy. A few years later, in Baylis v. Dinely, 3 Maule & S. 477, in debt on a bond with a penalty, conditioned for the payment of the principal sum with interest, a replication that after the making of the bond, and before the commencement of the action, the defendant attained full age, and ratified and confirmed the bond, was held by the same judge to be ill on demurrer; for, it was again said, an infant could not give a bond with a penalty, and for the payment of interest, and unless the nifant was estopped by some act at full age of as high authority as the bond, the defense of in- fancy would be good. The case involves altogether a singular confusion of ideas; and perhaps is really only authority on the proposition that the bond of an infant caanot be confirmed by parol. This question will be noticed hereafter under the head of ratification. The case of Hunter v. Agnew, 1 Fox & S. 15, holds a bond with a penalty, given by an infant, to be void, and not merely voidable; and see also some remarks in Waples v. Hadlngs, 3 Hnrr. (Del.) 403. An infant's bond with a penalty, given for money paid out for necessaries, was also said to be void, in Ayliff v. Archdale, Cro. Eliz. 920; that is, no action could be maintained thereon against the defense of infancy; but it was remarked that if the plaintiff had taken an obligation for the very sura which he had laid out for the defendant, it would have been otherwise. According, also, to the case of Bliss v. Ferryman, 1 Scam. 484, an infant cannot bind himself by bond, not even, it seems, for necessaries; and it ia held, when the plaintilf relies upon a new promise made after full age, he must declare upon the simple contract which the new promise was meant to 612 Craig v. Van Bebber. [Missouri, establish; and, therefore, in an action on a bond, to which infancy was pleaded, the plaintiflF could give evidence of a new promise by the defendant after coming of age; and see Hussey v. Jewttt, 9 Mass. 100, 101. But "where the instrument given for necessaries is such as to admit of inquiring into its consideration, the infant is liable upon the instrument, and if the evidence be such as not to warrant a recovery for the amount, judgment may be ren- dered "pro tanto for that part due on the instrument for which a minor would be legally liable": Guthrie v. Morris, 22 Ark. 411, Therefore if, by statute, the consideration of a bond may be inquired into, an action may be main- tained on a bond given by an infant for necessaries: Guihrie v. Morris, 22 Ark. 411. "Being liable for the value of the necessaries upon a, quantum valebant, what protection could there be in permitting him to defeat an ac- tion on the instrument for the same amount? Protection is the sole end of the infant's privilege, and the latter should never be extended further than is demanded by the former": GtUhrie v. Morris, 22 Ark. 411. This opinion, in our judgment, is sound sense and sound law. In Conroe v. Birdsull, 1 Johns. Cas. 127, 1 Am. Dec. 105, the court, ap- proving the rule of Perkins, to the effect that all deeds of an infant which take effect by delivery of his hand were voidable only, held the bond of an infant to be simply voidable. And, as has been seen, a number of cases have established that an infant's bond for title is voidable merely, and not void: Mustard v. Wohlford's Heirs, 15 Gratt. 329; 76 Am. Dec. 209; Weaver V. Jones, 24 Ala. 420; Bozeinan v. Bromning, 31 Ark. 3G4; see ante, "Execu- tory Contracts to Sell Real Property." These cases are strictly in accord with the modern rule that all general contracts of infants are voidable, and not void. It has also been held that an administration bond given by an infant is not void, but voidable, and may be affirmed, or not, after he attains full age: Chambers v. Wherry, 1 Bail. L. 28. If the bond of an infant be executed by him pursuant to the requirements of a statute, it is then not even voidable, but so far as infancy is concerned, absolutely binding. Thus the bond or recognizance entered into by a minor for his personal appearance at court, to answer a charge against him, is valid and binding, under statutes which provide for the taking of such bonds or recognizances from defendants who may be infants: McCalL v. Parker, 13 Met. 372; State v. Weatlierioax, 12 Kan. 403; and infancy is no defense to an action on a bond, executed pursuant to statute, by the reputed father of a bastard child, conditioned to indemnify the town against liability for the support of the bastard: People v. Moores, 4 Denio, 518; 47 Am. Dec. 272; Inhabitants of Bordentown v. Wallace, 50 N. J. L. 13. Bronson, C. J., saying .in the first of these cases: "When an infant is under a legal obligation to do an act, he may bind himself by a fair and reasonable contract made for the purpose of discharging the obligation." The greatest question of difficulty in this connection has been, Is the infant included within the provisions of the statute? See post, "Contracts Entered into Pursuant to Statutes." It may here be noticed that although an infant, at the tune of making a bond, fraudulently represented that he was of full age, yet the bond is never- theless only voidable, at his election, at law, though it might be otherwise in equity: Conroe v. Birdsall, 1 Johns. Cas. 127; 1 Am. Dec. 105; and s&e post, "Infant's Concealment or Misrepresentation as to Age." Sealed Contracts, Generally. — The general contracts of an infant are none the less voidable because they are under seal, even according to the old theory that contracts prejudicial to an infant are void: Whitney v. Dutch, 14 Mass. 457, 461; 7 Am. Dec. 229, 232, per Parker, C. J.; West v. Penny, 16 April, 1890.] Craig v. Van Bebber. 613 Ala. 187; Stokes v. Brown, 4 Chanel. 39; 3 Pinn. 311; Litth v. Duncan, 9 Rich. L. 55; 64 Am. Dec. 760; Vaughan v. Parr, 20 Ark. 600. " From a careful review of the authorities," says Whitney, J., in Little v. Duncan, 9 Rich. L. 65, 64 Am. Dec. 760, "I do not perceive that the question in auy way turns on the fact of whether the contract was under seal or not." Such a contract is, therefore, capable of ratification or disaffirmance hy the infant; and it may be confirmed by the infant, after reaching full age, by parol: Vmujltan v. Parr, 20 Ark. 600; and see Stokes v. Brown, 4 Chand. 39; 3 Pinn. 311; Little V. Duncan, 9 Rich. L. 55; 64 Am. Dec. 760. Interest. — In Fisher v. Mowbray, 8 East, 330, and Baylis v. Dinely, 3 Maule & S. 477, Lord Ellenborough expressed himself to the effect that an infant could not give a security for interest; at least, his bond, with a penalty, conditioned for the payment of a principal sum, with interest, was void, as being clearly prejudicial. In Ta.ft v. Pike, 14 Vt. 405, 39 Am. Dec. 228, it was also held, citing Fisher v. Mowbray, 8 East, 330, that interest would not be allowed on an account against an infant for necessaries; but this ruling was disapproved in Bradley v. Pratt, 23 Vt. 378, in which it was held that interest might be recovered on a promissory note given by an infant for the reasonable value of necessaries, Redfiold, J., saying: "It seems to us, upon principle, if the infant is not to be held liable for interest, the price should be proportionately increased, which is the same thing. It is incomprehen- sible how if one, for board, deserves to have $2.50 per week in hand, if the payment be delayed for years, the same sum is to meet tlie obligation. One might as well hold that a merchant should furnish goods to infants at cost, without freight even. The rule has no force when carried to that absurd length." It is impossible to escape this reasoning with respect to necessaries; and in regard to other contracts of infants, certainly no court at the present day, even conceding that contracts which are to the infant's detriment, are void, would feel justified in declaring them to be void because they included stipulations for interest. Accounts Stated. — It was at one time commonly said that an infant could not state an account so as to bind himself: Hedgeley v. Holt, 4 Car. & P. 104; Oliver V. Woodroffe, 4 Mees. & W. 650; Buryhart v. Hnll, 4 Mees. & W. 727, 732; Ventv. Osijood, 19 Pick. 572, 575, per Putnam, J. "An infant cannot be liable on an account stated," says Lord Abinger in Burrjhart v. Hall, 4 Mees. & W. 727, 732, "and the reason given is, that he cannot calculate, and is therefore incapable of stating an account." This may mean nothing more than that infancy may be a good defense to an action on an accourt stated; but, nevertheless, these cases seem to have been regarded as holding the account stated of an infant to be absolutely void. It has also been very generally held that an infant is not liable on an account stated for necessaries: Wood V. Witherick, Latch, 169; Pickering \. Ounning, Palmer, 528; W.Jones, 182; Jngledew v. Douglas, 2 Stark. 36; Trueman v. Hurst, 1 Term Rep. 40; Bartlett v. Emery, 1 Term Rep. 42, note; Oliver v. Woodroffe, 4 Mees. & W. 650. It is difficult to understand upon what theory these latter cases proceed, except it be that the account stated is void; or, more probably, and it seems to us correctly, as suggested by Baron Parke in Williams v. Moor, 1 1 Mees. & W. 256, 265, and Chief Justice Shaw in Stone v. Dennison, 13 Pick. 1, 6, 23 Am. Dec. 654, 657, that the items cannot be gone into; for if the items could be inquired into, and the balance, as struck and agreed to, represented simply the reasonable value of the necessaries, a recovery, according to the weight of authority, might be had upon it: St-cpost, "Express Contracts for Necessaries." However this may be, the English case last cited settled the question that 614 Cratq v. Van Bebber. [Missouri, an account stated by an infant was not absolutely void, but voidable only, and therefore might be ratified by the infant after attaining full age. Baron Parke said: ''We can see no sound or sensible distinction in this respect between the liability of an infant on an account stated, and his liability for goods sold and delivered, or any other contract. The contract of an infant for goods sold and delivered (not being necessaries) is as completely void as his contract on an account stated, if by the word 'void' is meant incapahle of being enforced. The plea of infancy will be a bar to any demand on the one contract, as well as on the other. But if by the word ' void ' is meant incnpable of being ratified, then we can discover neither principle nor author- ity for the distinction relied on It was indeed argued for the defend- ant that on an account stated an infant deriv^es no benefit; that he does not, as on a purchase of goods, get anything valuable; that he has no quid pro quo. But this is a fallacy; an infant stating an account gets precisely the same benefit as an adult gets on a similar transaction. He makes certain the pre- viously uncertain state of the transactions between himself and the person with whom he is stating accounts, and he gets rid of the necessity of preserv- ing vouchers." Suretyship. — Dirin are to be found in a number of cases to the effect that an infant's contract of suretyship is necessarily prejudicial to him, and is therefore absolutely void: Wheaton v. East, 5 Yerg. 41, 61; 26 Am. Dec. 251, 252; West v. Penny, 16 Ala. 187, 189; Hastings v. Dollarhide, 24 Cal. 195, 209; jRohinson v. Weeks, 56 Me. 102, 106. In fact, the contract of suretyship of an infant is the usual example of a contract that is void because manifestly to his prejudice. In Cronise v. Clark, 4 Md. Ch. 403, it was also said that a mortgage of her reversionary interest in real and personal property, executed by an infant feme covert to secure a debt due by a firm of which her hus- band was a member, was absolutely void, as necessarily prejudicial, and in- capable of confirmation; but the facts of the case simply involved the right of the infant to avoid the mortgage for her infancy; and in Chandler v. McKinney, 6 Mich. 217, 74 Am. Dec. 686, it was likewise said that a mort- gage given by an infant feme covert to secure the debt of her husband was absolutely void, and not merely voidable, since it could not be beneficial to her; but here, also, the case simply involved the right of the infant to disre- gard the mortgage, and the proceedings had under it. And according to the early statute of Connecticut, quoted ante, under the head " Statutory Regu- lation," it was decided that a promissory note executed by an infant while under the government of a guardian, as surety of another, was a contract against his interest, and absolutely void, and incapable of confirmation: Maples v. Wightman, 4 Conn. 376; 10 Am. Dec. 149. luCurtin v. Patten, 11 Serg. & R. 305, 310, 311, the court calls an infant's contract of suretyship "absolutely void," but yet it recognizes the possibility of a confirmation by the infant when of full age; and of course there could be no confirmation if the contract were absolutely void. These views do not accord with principle or the weight of authority. It must now be regarded as settled that the contract of suretysliip of an infant, like his other general contracts, is voidable only, and not void, and is conse- quently capable of ratification by him when he arrives at full age: Fetrom v. Wiseman, 40Ind. 148; Owenv. Long, 112 Mass. 403; Harnerv. Dipple, 31 Ohio St. 72: 27 Am. Rep. 496; Williams v. Harrison, 11 S. C, 412; Reed v. Lane, 61 Vt. 481; and see Hinely v. Margaritz, 3 Pa. St. 428. In Harner v. Dipple, 31 Ohio St. 72, 27 Am. Rep. 496, Mcllvaine, J., says: " The privilege of infancy is accorded for the protection of the infant from injury resulting from impo- April, 1890,] Craig v. Van Bebber. 615 sition by others or his own indiscretion. That object is fully accomplished by conferring on him the power to avoid his contracts, or in other words, by giving him immunity from liability until such contracts are ratified b}' him- self after arriving at full age. And, again, that an adult laboring under no disability may perform his unexecuted contracts of infancy, whether they be beneficial or prejudicial to him, and that he will be bound by such per- formance we think is a proposition too plain to be doubted. If, therefore, with full knowledge of the facts, he ratifies and affirms them, being moved thereto by his sense of right and duty, he should, in law, as in morals, be bound to their performance." And in Williams v. Harrison, 11 S. C. 412, Wil- lard, C. J., remarks: "Assuming that a person, being of full age, and, as such, chargeable with knowledge of his legal rights, deliberately determines that his interest or duty demands that lie should reco^aiize and discharge an obligation, imperfect through the fact of its assumption during minority, it would be difficult to find any sound reason why the courts should interfere to deny effect to such an act." Even in a state where the benefit and detri- ment theory seems to some extent to be still adhered to it is said: "It can- not be held as a matter of law that to sign a promissory note as surety is necessarily not beneficial to an infant": Gray, C. J., in Owen v. Long, 112 Mass. 403. Finally, in Patchin v. Croinach, 13 \t. 330, it was held that the recognizance of an infant was not void, but voidable only; the court saj'ing: "A recognizance, or debt of record, acknowledged by an infant in court, or before a magistrate, is, in no case, to be adjudged void, but voidable only." Insurance. — An infant's contract of insurance by which he is insured against fire is not void, but voidable only, at tlie election of the infant; and the defense of infancy is personal, and is not open to tlie company, in an ac- tion against it to recover for the loss: Monaglian v. AgricuUtind F. Ins. Co., 53 Mich. 238. Such a contract cannot be a contract for necessaries, which will bind the infant absolutely: New Hampshire Mut. F. Ins. Co. v. Noi/ts, 32 N. H. 345. Share- HOLDER in Corporations. — There is no doubt that if an infant purchase of a corporation shares of its capital stock, he may avoid the con- tract of purchase, and recover back the money paid: Indianapolis Chair Mfg. Co. V. Wikox, 59 Ind. 429. Concerning the liability of an infant share-holder for calls, there have been a number of adjudications in England. In the first of these cases, that of Cork etc. Ry v. Cazciiove, 10 Q. B. 935, to a declaration in debt for calls, charging the deendant as tlie hohler of shares under a railway act incorporated with the Companies' Clauses Consolidation Act, 8 and 9 Victoria, chapter 16, it was held to be no answer that defendant, when he became the registered holder of the shares, and when he became indebted for the calls, was an infant, and that he had not, since he attaineil his age, been registered anew, or ratified the original registration; for (pur Denman, C. J., and Patteson, J.) an infant was liable for calls by the express wording of the statute of Victoria; at all events (per Coleridge and Erie, JJ.), he was liable if he was sued after attaining his age, and still lield the shares; for such holding would be a ratification. In the next case, Neivry etc. IVy v. Coombe, 3 Ex. 565, the de- fendant pleaded to a similar action that he became the holder of the shares by having contracted aixi subscribed for them, and that at the time of his so contracting and subscribing, and also at the time of making the calls, he was an infant, and while an infant he repudiated the contract and subscription. It was held that the plea was a good prima facie bar, and that if the de- fendant, after he became of age, disaffirmed his repudiation, or if he became 616 Craig v. Van Bebber. [Missouri, liable by enjoyment of the profits, those facts should be replied. Baron Parke, in discussing the liability of an infant subscriber under the Companies' Clauses Consolidation Act, said, in opposition to the view held by Chief Justice Den- man and Justice Patteson in Cork etc. R'y v. Cazenove, 10 Q. B. 935: "The law is never to be construed so as to affect with liability to a contract per- sons incapable of contracting; therefore, the liability imposed by this stat- ute cannot apply to such of the subscribers as are lunatics, infants, or feme coverts. It is true that the statute contemplates the case of infants being share-holders, and no doubt they may acquire shares by descent or marriage; but the question here is, whether when an infant has become a share-holder by contract, he may not disaffirm it. I am of the opinion that this is the ordinary case of a contract with the company which the defendant may dis- affirm." And see also Korthw/'stern R'y v. McMkhael, 5 Ex. 114, 124. In the case next in order, Leeds etc. R'y v. Ftamley, 4 Ex. 26, the de- fendant pleaded that at the time of making the calls, and also at the time he became the holder of the shares, he was an infant. The pleas were held bad, it not appearing that the defendant had become a share-holder by original contract with the company, or that he had repudiated the shares. Baron Parke, in the course of the argument, remarked: "This is not the ordinary case of a contract by an infant, but a purchase of shares, by which he acquired a property in the possible profits of the concern. Now, according to Ketsey^s Case, Cro. Jac. 320, and what is more distinctly laid down by Dodderidge, J., in Kirton v. Eliott, 2 Bulst. 69, he would be liable, unless he repudiated; then ought not the plea to aver that fact?" and Baron Rolfe said: "There is no averment that the defendant was o)-igi' nally a contractor for the shares with the company, nor that he avoided the contract, as there was in that case [Newry etc. R'y v. Coomhe, 3 Ex. 565], The defendant may have received these shares by will, or devolution upon him by the operation of law, or purchase from the original contractor, and he cannot be assumed to have repudiated them. The case of Cork etc. R'y V. Cazenove, 10 Q. B. 935, decides tliat, under these circumstances, an infant is bound." In the case following of NortJiwestern R'y v. McMirhnel, 5 Ex. 114, the defendant pleaded that he became the original holder of the shares by contract with the company, and that at the time he became such holder^ and also at the time the calls were made, he was an infant, and that he never ratified the contract, nor had he ever derived any profit, benefit, or advantage from the proprietorship of the shares. It was held that the plea was bad for want of an averment that the defendant had repudiated the contract, or, at least, that he continued a minor. Baron Parke, in this latter case, thus explains the effect of an infant's be- coming a share-holder: " If the effect of a person actually becoming a share- holder in a railway company by original agreement with the company ought to be treated as a mere contract with those to whom the proposal was made for a future partnership with the persons who should be afterwards fixed upon by them, and to contribute to the capital for carrying on the undertakings in a certain proportion, such a contract could not be presumably beneficial to an infant, and would be, as all mere contracts, except for necessaries, are, not binding on the infant at all; and the simple fact that the defendant at the time he made the contract was an infant would be an answer to an action upon it. The same may be said of an executed contract for the purchase of a mere personal chattel. But in the cases already decided upon this subject, infants having become share-holders in railway companies have been held liable to pay calls made whilst they were infants. They have been treated, April, 1890.] Craig v. Van Bebber. 617 therefore, as persons in a different situation from mere contractors, for then they would have been exempt; but, in truth, they are purchasers who have acquired an interest, not in a mere chattel, but in a subject of a permanent nature, either by contract with the company, or purchase or devolution from those who have contracted, and with certain obligations attached to it Avhich they were bound to discharge, and have been thereby placed in a situation analagous to an infant purchaser of real estate who has taken possession, and therchy becomes liable to all the obligations attached to the estate, for in- stance, to pay rent in the case of a lease rendering rent, and to pay a fine due on the admission in the case of a copyhold to which an infant has been admitted, unless they have elected to waive or disagree to the purchase alto- gether, either during infancy or after full age, at either of which times it is competent for an infant to do so: Bac. Abr., tit. Infancj^ and Age, I., 5; Co. Lit. 380. After commenting upon the previous cases, and again disapprov- ing the view taken in Coi-k etc. H'y v. Cazenove, 10 Q. B. 935, that an infant washable to pay calls under the Companies' Clauses Consolidation Act, Baron Parke continues: "Under the statute, therefore, our opinion is, that the in- fant is not absolutely bound, but is in the same situation as an infant acquiring real estate, or any other permanent interest; he is not deprived of the right which the law gives every infant, of waiving and disagreeing to a purchase which he has made; and if he waives it, the estate acquired by the purchase is at an end, and with it his liability to pay calls, though the avoid- ance may not have taken place till the calls was due When, there- fore, there is nothing but the simple fact of infancy pleaded to an action for calls against a purchaser who has been registered, and thereby become a share- holder in a subject of a permanent character, the interest continuing to be vested in the infant, and the consequent obligation to pay, the simple plea of infancy is, according to the above authorities, insufficient." Finally, it was held in Duhlin etc. R'l/ v. Black, 8 Ex. 181, that a plea of infancy to an action for railway calls which alleged that the defendant disaffirmed and repudiated his contract and subscription after he became of full age was bad for not alleging that he repudiated within a reasonable time after he became of age. It seems to us that the courts in the foregoing cases might have delivered themselves of the results attained with much less lal)or, and certainly with greater clearness of thought. While we concur in the main with the views finally expressed in them, yet we do not agree with all that they say. We suggest the following rule, based partly upon them and partly on the general principles of disaffirmance and ratification discussed post: That if an infant enters into an original contract of subscription for or purchase of shares in a corporation with the company itself, the contract, in the absence of a stat- ute to the contrary, is not absolutely binding upon him, but may be ratified or disaffirmed by him. If the contract is ratified, he is, of course, liable for future calls; and since the ratification makes the contract good ab initio, he will be liable for past calls as well, though made during his infancy. If the contract is disaffirmed, the shares revert to the corporation, and the infant, of course, is no longer a share-holder, nor liable for future calls; and since the disaffirmance avoids the contract from the beginning, he will not be liable for past calls. He may disaffirm the contract during infancy, and whether calls have been already made at the time or not; and he must disafi[irm, either be- fore he reaches full age or within a reasonable time thereafter, or he will be taken to have ratified the contract by retaining the shares. He can conclu- sively ratify the contract only after full age. If the infant has acquired the 618 Craig v. Van Bebber. [Missouri, shares by purchase, gift, or bequest from some original or intermediate holder, it seems to us that, on principle, the results are in general the same. He may either affirm his holding or repudiate the shares. If he does the former, he is, of course, liable for calls; if the latter, he is not liable, and the shares revert to the original holder, or his representatives, who are liable. He may repudiate the shares during his minority; but if he retains them, as an owner, after coming of age, he ratifies the holding, and must answer the calls. We are not quite sure that if a disaffirmance may be made by the infant at the time suit is brought against him for the calls, it is necessary, in either case of acquisition, to allege a repudiation of the shares, but that the repudiation may be sufficiently shown by a plea of infancy merely. A number of cases have been decided under the English Companies' Acts involving the liability of an infant share-holder to be placed on the list of contributories on the winding-up of the company. Thus it has been deter- mined that an infant share-holder who becomes adult before the winding-up order is made may become liable as a contributor, because of his failure to repudiate the shares within a reasonable time after his arrival at full age, or because of his failure to repudiate, coupled with some affirmative acts on his part: MitcheWs Case, L. R. 9 Eq. 363; Lumsdens Case, L. R. 4 Ch. 31; Ehleti's Case, L. R. 5 ("h. 302; and the same may be the result where he be- comes adult after the commencement of the winding-up of the company: Hart's Case, L. R. 6 Eq. 512; but compare WiUons Case, L. R. 8 Eq. 240; Castello's Case, L. R. 8 Eq. 504; Symons Case, L. R. 5 Ch. 298. Rele.\ses and Compromises. — An infant's release of a claim on account of personal injuries sustained by him by reason of the tort of the releasee is not binding, nor is it void, but it is voidable by him, at his election, and con- stitutes no bar to an action to recover damages for the injuries: Baker v. Lovett, 6 Mass. 78; St. Louis etc. B'y v. Higijhis, 44 Ark. 293; and the bring- ing of suit upon the claim is an unequivocal act of disaffirmance: St. Louis etc. R'y V. Hhjijins, 44 Ark. 293. But in the first of these cases, in which the release was given by the infant to one of two persons who had committed an assault and battery upon him, and the action was afterwards brought by the infant against the other wrong-doer, Parsons, C. J. said: "If the jury, on the trial, are convinced that the satisfaction received from Dennis [the releasee] was a compensation for the injury, they will assess for the plaintiff but nominal damages. But if the compensation be found inade- quate, the jury will give such further sum as, with the money received from Dennis, will amount to a reasonable satisfaction." The release by an infant of a claim arising from contract stands on the same footing as his release of a claim on account of a tort: See Commonwealth ex rel. Strayer v. Hantz, 2 Penr. & W. 333; but where, by statute, females of the age of eighteen are competent to enter into marriage contracts, a female of the age of eighteen may make a valid and binding release of a promise to marry: Dcvelin v. Riijijshee, 4 Ind. 464. If, also, a party litigant who executes a release to a witness to extinguish the interest of the witness in the suit be an infant, he will not be bound by the release: Walker v. Ferrin, 4 Vfc. 523; but in Lang- ford V. Frey, 8 Humph. 443, it was said, rigidly applying the rule of Keane V. Boycott, 2 H. Black. 511, 515, discussed supra, that a release by an infant of his legacy or distributive share, in order to enable him to become a wit- ness, was void, since the release could hardly be otherwise than injurious to him; and see Fridge v. State, 3 Gill & J. 103; 20 Am. Dec. 463. A release may, of course, be binding by statute. See, however, Bowers's Adinx v. State, 7 Har. & J. 32; Fridge v. State, 3 Gill & J. 103; 20 Am. Dec. 463. April, 1890.] Cbaiq v. Van Bebbeb. 619 An infaafc's compromise of a claim is likewise not binding upon him, but is subject to his avoidance: Ware v. Cartledge, 24 Ala. 622; 60 Am. Dec. 489; but it is no defense to an action on an agreement of compromise of a suit tliat the plaintifif was an infant, and the agreement was made on his behalf by his attorneys: Chicajo etc. R. R. Co. v. Lamniert, 19 111. App. 135, 140. Arbitration. — It was said in an old case that an infant's submission to arbitration was void: Rudston and Yates's Case, March, 111, 114. Of course the submission is not binding as against the objection of infancy: See Jones V. Payne, 41 Ga. 23. But there is no reason why the submission should be anything more than voidable, and why it may not be ratified by the infant after attaining full age. This view was taken in Jones v. Plicenkc Bank, 8 N. Y. 228, in which it was held that if an infant submits a claim to arbitration, and on coming of age receives the proceeds of the award from his guardian, he thereby ratifies the submission and the award, and cannot recover on his original claim; and in Barnaby v. Barnahi/, 1 Pick. 221, in which it was de- cided that an infant, after coming of age, ratifies an award made upon a submission by his guardian that the ward and infant heir shall pay an annu- ity to the widow in lieu of dower, where he pays part of the money then due, promises to pay the rest of that installment, and says that he had lodged property in his brother's hands to meet an annual payment. Service. — It has not been so much the question whether an infant's con- tracts of service, both when he is the employer and when the employed, are voidable, rather than void, but whether they are not binding, at least to some extent, upon him. There should be no doubt, however, that an infant employer is not liable for wages which he has agreed to pay: Hughes v. Oal- lans, 10 Phila. 618; but see Dclavae v. Clare, Latch, 156. But, plainly, in- fancy is no answer to a claim for wages accruing due after majority has been attained, although on a contract of hiring originally made under age: Thomas v. Waldo, 1 Fost. & F. 173. And, of course, the infant, on coming of age, may ratify the contract of hiring. There is more difficulty where an infant enters into a contract by which he agrees to serve another. In Rex v. Inhabitants of Chillesford, 4 Barn. & C. 94, ICl, Bayley, J., said: "An infant may make a contract for his own benefit; he may, therefore, make a contract for hiring and service, for that will be beneficial to him. It will give him a right to sue for wages. If he does not perform his contract, although no action will lie against him, he will be liable to the statutory regulations applicalile to masters and servants." And in a proceeding under 4 George IV., chapter 34, against a servant for ab- senting himself from the service, it was said in Wood v. Fenwkk, 10 Mees. & W. 195, that a contract of hiring and service for wages was a contract bene- ficial to an infant, and therefore binding upon him [so far as the statute was concerned], though the contract contained clauses for referring disputes to arbitration, and for the imposition of forfeitures in case of neglect of duty, to be deducted from the wages. But in Re head V. Mallis, L. R. 3 C. P. D. 439. But in Northcote v. Doughty, L. R. 4 C. P. D. 385, the defendant, during his infancy, made an offer of marriage to the plaintiff, which she accepted subject to the approval of his parents. He afterwards gave her an engagement ring, which she wore, and two days before he attained his majority, he went into the country to visit his father, and on his return, the day after he came of age, he saw the plaintiff and told her that he had explained all to his father, and that he assented to the en- gagement, the defendant adding that now he might and would marry the plaintiff as soon as he could. It was held that it was properly left to the jury to say whether this was a fresh absolute promise to marry, or merely a ratification of the original promise made during infancy, so as to be avoided by the operation of the second section of the above act. It was also held, ia Ditcham v. Worrall, L. R. 5 C. P. D. 410, that a fresh promise of marriage, made after the defendant came of age, was binding; but that a mere ratifi- cation of the original promise, made after coming of age, was not binding under section 2 of the act. In Develin v. Jiiyysbee, 4 Ind. 464, it was held that where, by statute, females of the age of eighteen were competent to contract marriage, a female of the age of eighteen might, as incident to such capacity, make a valid and binding release of a party from a contract to marry her. GiFfS. — A transfer of his property by an infant by way of gift is, of course, not a contract, but its validity may properly be noticed in connection with this subject of contracts of infants. If an infant may avoid his contract whereby his property, real or personal, has been transferred, he, or his per- sonal representatives in case of his death, should plainly have the right to avoid his gift of such property on the ground of his infancy: Person v. Chase, 37 Vt. 647; 88 Am. Dec. 030; Holt v. Holt, 59 Me. 464. And in Swafford v. Ferguson, 3 Lea, 292, 31 Am. Rep. 639, it was held, approving the criterion of Lord Chief Justice Eyre, that a deed executed by infants without con- sideration, being necessarily to their prejudice, was void, and being void, and I I April, 1890.] Craig v. Van Bebbeb. 629 not voidable, they could consequently maintain a bill during their infancy, by their next friend, to set the deed aside. But it was held, with better reason, that a deed of gift of a slave, executed by an infant in trust for his children, was not void, but voidable only: Slauyhter v. Cunnindoe, 36 Mich. 124, 129; lioofw. Stafford, 7 Cow. 179, ISO; Stafford V. Roof, 9 Cow. 626, 627; Fonda v. Van Home, 15 Wend. 6.51; 30 Am. Dec. 77; Bool v. Mix, 17 Wend. 119; 31 Am. Dec. 285; Bobbins v. Mount, 632 Craig v. Van Bebber. [Missouri, entered into by means of an agent: See Cole v. Pennoyer, 14 111. 158; Fetrow V. Wiaemav, 40 Ind. 148, 155; also Roof v. Stafford, 7 Cow. 179, 180; Stafford V. Roof, 9 Cow. 626, 627; Bool v. Mix, 17 Wend. 119; 31 Am. Dec. 285. In Fetrow v. Wiseman, 40 Ind. 148, 155, the court contents itself with saying that the proposition "may not be founded in solid reason, but is so held by all the authorities." Whenever the question has been at all examined, the courts have usually reached the conclusion that an infant's appointment of an agent, and a con- tract made under it, are not void, but that the contract stands on exactly the same footing as a contract entered into by the infant personally. Thus Chief Justice Parker held at an early day, in Whitney v. Dutch, 14 Mass. 457, 7 Am. Dec. 229, that an infant may authorize a person to execute a promissory note on his behalf, the delegation of authority not being void, and therefore tlie note might be ratified by the infant after coming of age. Furthermore, this au- thorization need not be express, but might result from a partnership relation existing between the infant and another person, who executed the note in tlie name of the firm for a firm debt. We cannot do better than to quote from the able opinion of the learned chief justice. He says: " Upon principle, what ^lifference can there be between the ratification of a contract made by the infant himself, and one made by another acting under a parol authority from him ? And why may not the ratification apply to the authority as well as to the contract made under it? It may be said that minors may be ex- posed if they may delegate power over their property or credit to another; but they will be as much exposed by the power to make such contracts themselves, and more for the person delegated will generally have more experience in business than the minor. And it is a sufficient security against the danger from both these sources that infants cannot be prejudiced; for the contracts are in neither case binding, unless, when arrived at legal competency, they volun- tarily and deliberately give effect to the contract so made. And in such case justice requires that they should be compelled to perform them." The learned justice, however, with more care than necessary, avoids the question whether an infant can confer an authorization to do an act under seal, saying: " Per- haps it cannot be contended, against the current of authorities, that an act done by another for an infant, which act must necessarily be done by letter of attorney under seal, is not absolutely void, although no satisfactory reason can be assigned for such a position." We might here observe that several cases noticed supra, under the head "Partnership Agreements and Transac- tions," which hold that an infant may ratify a partnership contract so as to be liable thereon, must necessarily assume, even if they do not decide, that an infant's appointment of an agent is not void: See particularly Miller v. Sims, 2 Hill {S. C.) 479. In conformity with this case of Whitney v. Dutch, 14 Mass. 457, 7 Am. Dec. 229, it has been held that if an infant payee of a promissory note authorizes a person to indorse and transfer the note for him, the transfer so made is not void, but is valid until avoided, the authorization not being void, but voidable only: Hardy v. Waters, 38 Me. 450; and that the same rule applies to a non-negotiable note: Hastings v. Dollarhide, 24 Cal. 195. Again, it is held that the fact that an infant notified his vendee of personal property of his election to rescind the contract of sale, ofiFered to return the consideration, and demanded a restoration of the prop- erty, through an agent, was no defense to an action of trover by the infant against the vendee to recover back the property, the acts of the agent not being void, but, at most, voidable, at the election of the infant: Towle v. April, 1890.] Craig v. Van Bebbeb. 631 right to disaffirm the coatract and recover back the money which his father had paid under it, on the ground that he had assented to the contract, oa being informed of it. It was held that he could not adopt the contract and recover; for, says Cooley, C. J., '"had the infant, in the first place, under- taken to make another his agent to enter into the contract for him, the appointment would not have been valid. On the authorities, no rule ia clearer than that an infant cannot empower an agent or attorney to act for him. But if he cannot appoint an agent or attorney, it is clear he cannot affirm what one has assumed to do in his name as such. He cannot affirm what he could not authorize." It seems to us that this language, as applied to the facts of the case, was wholly unnecessary. It does not appear that the infant assented to the contract made in his name, so far as to return, or promist to return, to his father the money advanced by the latter; and as he did not, any rights asserted by him under the contract were really claimed by him aa a gift from His father. If he had returned the money to his father, or even agreed to return it, and thus have fully adopted the contract, we do not see why he could not have afterwards repudiated the contract, and recovered the money paid to the- defendant. The court went on to hold, with more cor- rectness, that, treating the act of the father as a gift to the son, the son was not entitled to recover back the money paid; for the contract was valid in the father's hanSim. 465, 466; Steed- man V. Bose, Car. & M. 422; Kline v. L'Amoureux, 2 Paige, 419; 22 Am. Dec. 652; Johnson v. Lines, 6 Watts & S. 80; 40 Am. Dec. 542. *'But," says Tin- dal, C. J., in Dalton v. Gih, 7 Scott, 117, also reported in 5 Bing. N. C. 198, "a party may, by his conduct and appearance, render inquiry unnecessary "; and hence where an infant lived with her mother at a fashionable hotel, and drove to the tradesman's shop in a carriage with her mother, who waited in the carriage while the daughter purchased the goods, some of which were taken away in the carriage, and others sent to the hotel, it was held that the jury might fairly assume that the goods were subjected to the mother's inspec- tion, and that there was no necessity of making inquiry as to whether they were necessary or not; and where the friends of a minor, who was an orphan, had twice previously taken him to a dentist for like services, and the bills had been made out against the miaor, and paid, the guardian furnishing the money, without notice, to the dentist, of any objection, it was held that " these acts on the part of the defendant and his guardian rendered it unnecessary that the plaintiff should have instituted an inquiry as to a guardianship over the defendant, before performing these last services, as a prerequisite for a recovery in this suit, the work being necessary to meet an unsupplied want": Strong v. Foote, 42 .Conn. 203. Compare, however, the cases in the next paragraph. But the duty of the tradesman to inquire as to whether or not the infant is already supplied with similar articles before he trusts him is not a rule of law which will protect the tradesman, if, notwithstanding a diligent inquiry without ascertaining that the infant has been supplied, it turns out after he furnishes the articles applied for that the infant was sufficiently provided. If the infant was already supplied as a fact, the tradesman cannot recover for other goods supplied as necessaries, whether the latter knew of the fact or not, at the time he gave credit to the infant: Broyshaw v. Eaton, 7 Scott, 183; 5 Bing. N. C. 231; Foster v. Bedgrave, L. R. 4 Ex. 35, note; Barnes v. Toye, L. R. 13 Q. B. D. 410; Trainer v. Trumbull, 141 Mass. 527, 530; Nichol V. Steger, 2 Tenn. Ch. 328, affirmed in 6 Lea, 393; and see Byder v. Womb- well, L. R. 4 Ex. 32. There is no inflexible rule of law, according to the case of Brayshaw v. Eaton, 7 Scott, 183, 5 Bing, N. C. 231, making it incum- bent on a tradesman to institute inquiries as to the situation and resources of an infant before he gives him credit for necessaries. " No doubt," says Tin- dal, C. J., in the report of the case in 7 Scott, "a prudent tradesman would make such inquiry; and the total absence of inquiry would afford matter of strong observation to the jury. But whether inquiry were made or not, the question for the jury would still be the same; and their verdict must depend, not upon the degree of knowledge acquired by the tradesman as to the infant's circumstances, but upon whether the goods were necessaries or not." "In April, 1890.] Craig v. Van Bebber. 649 my view," says Lopes, J., in Barnes v. Toye, L. R. 13 Q. B. D. 410, "it is immaterial whether the plaiiitiflfs did or did not know of the existing sup- ply, just at it is immaterial whether they did or did not know that the de- fendant was a minor." It is sometimes stated as the reason for the rule that an infant is not liable as for necessaries, when he is already sufficiently supplied, applicable to the condition of circumstances, where he resides with and is supported by his parents, or is under the care of a guardian, that it is a matter for the parents or guardian to decide what shall be suitable and proper for the maintenance of the child or ward, and third persons have no right to interfere with the exercise of that discretion. Thus in Bainhridge v. Pickering, 2 W. Black. 13"25, it is said that "no man shall take upon him to dictate to a parent what cloth- ing the child shall wear, at what time they shall be purchased, or of whom. All that must be left to the discretion of the father or mother." And in Hoyt V. Casey, 114 Mass. 397, 19 Am. Rep. 371, this notion was carried to the extent of holding that a case could not be excepted from the operation of the principle because the father was a poor man, and unable to pay for the necessaries, — in this case medical attendance, — there being no refusal or ne- glect on his part to perform the duty of supporting and caring for his son. It may be very true that when a child is under the care and control of liis parents or guardian, they have the right to determine the character of his support; but we do not think that this afifords a reason for the rule under consideration even under that state of facts, and certainly it is no reason when the infant either lias no parents or guardian, or is not under tiieir control. We think the liability of the parent for necessaries furnished his child under certain circumstances has been confused by these cases with the liability of the child himself. We think that the reason of the rule is simply that when the infant is amply supplied with necessaries, nothing else is necessary, and hence he cannot be further bound as for necessaries. We should say it is certainly' true that the mere fact that an infant had a father, mother, and guardian, neither of whom did anything towards his care or support, does not prevent his being bound to pay for that which was actually necessary for him when furnished: Trainer v. Trumbull, 141 Mass. 527; and hence a person who takes from an almshouse a minor whose father was an inmate of a soldier's home, and whose mother was committed to a reforma- tory institution, who has a guardian, and who will inherit property on the death of his father, may maintain an action against the minor, after his father's death, for support and education furnished to him on the credit of. his expectations of j^roperty: Trainer v. Trumbull, 141 Mass. 527. Further- more, it is held that the mere fact that an infant lived with her mother did not necessarily render her incapable of binding herself for necessaries: Atchison V. Bruf, 50 Barb. 381. But when it appears that an infant lives with his father, or even his mother, who may not be under the same obligation to support him as the father, or is under the care of a guardian, it is a very natural and reasonable presump- tion that he is properly supplied with necessaries, and he is therefore not liable for anything furthei, in the absence of evidence to the contrary: Assignees of Hull v. Connolly, 3 McCord, 6; 15 Am. Dec. 612; Jones v. Colvin, 1 McMull. L. 14; Perrin v. Wilson, 10 Mo. 451; State v. Cook, 12Ired. L. G7; Freeman v. Bridger, 4 Jones L. 1; 67 Am. Dec. 258; compare Parsons v. Keys, 43 Tex. 557. And if it appears that a parent or guardian has furnished the infant with such articles as he regarded ample for the sup- port of the infant, according to his age and condition, or even that the 650 Craig v. Van Bebbeb. [Missouri, infant has been furnished with money by his parent or guardian, or by an allowance from the court, sufficient to supply him with necessaries, the presumption is, that he has been adequately and properly supplied, and a tradesman who seeks to charge the infant as for necessaries in addition has the burden of proving that such is not the fact: Nicholson v. Spencer, 11 Ga. 607; Nicholson v. Wilhorn, 13 Ga. 467; Bimrs v. Gregg, 5 Rich, Eq. 274. In Rivers v, Gregg, Dargan, C, says: "When it is shown that an infant is supplied with necessaries by hie parent or guardian, or with funds amply sufficient to procure them, the presumption of law and reason must be that he does not stand in need of credit to obtain what is necessary tor him. And after this prima facie showing, he who alleges that, notwith- standing this, the infant was in a state of destitution, must take upon himself the burden of proving the allegation. If he does this in a satisfactory man- ner, his claim should be allowed. But even then it should be limited to bare necessaries, and should not be allowed to embrace articles of luxury which would otherwise be suitable to the infant's fortune and condition in life." Again, he says: "It is a fallacy to suppose that a distinction can be drawn between the case where an infant is actually supplied with the neces- saries themselves, and that where he receives an allowance under an order of the court, which he is to disburse himself in their purchase. If it be urged that the infant may waste or misapply his allowance, and thus be reduced to a state of destitution that would require his necessary wants to be otherwise supplied, it is obvious that the argument applies with equal force to the case where the infant is supplied with the necessary articles for his use and con- sumption. These he may sell, give away, or waste, so that it may become necessary that he should have more, to save him from nakedness and starva- vation." If these special circumstances do not appear, however, and the infant relies as a defense to an action for necessaries on the fact that he was at the time properly supplied with necessaries, it would seem that the bur- den of proving the fact rests upon him: See Johnstone v. Marks, L. R. 19 Q. B. D. 509; also Parsons v. Keys, 43 Tex. 557, in which case, however, it appeared that the defendant had a guardian. It has been determined that a stranger cannot recover the price of goods sold to an infant, as for necessaries, against the injunctions of his guardian: Bredtn v. Deven, 2 Watts, 95; but, in our opinion, this ruling is altogether too broad. No doubt, if the guardian forbade the furnishing of the articles to the infant, this would be a circumstance to show that the infant was already properly supplied with necessaries; but we think the infant's lia- bility depends, after all, upon the question whether he was so supplied. And in other cases it has been held that an infant may bind himself for necessaries purchased with the consent of his guardian: Eundely. Keeler, 7 Watts, 237; Watson v. Hensel, 7 Watts, 344; but it was more correctly held in Johnson v. Lines, 6 Watts & S. 80, 40 Am. Dec. 542, that the permission of a guardian to tradesmen to deal with his infant ward might, in a doubtful case, justify a bona fide supply to the infant beyond the limits of strict necessity, for which the infant would be liable; but the connivance of the guardian at an improper supply would not subject the ward to pay for it. Again, we should say that the infant's liability depends, except in a doubt- ful case, not on the fact that the guardian assented to the furnishing of the articles, but upon the question whether the infant was really properly sup- plied at the time. Test as to What are Necessaries — Station and Circumstances op Imfant — Articles fob Mere Ornament oa Pleasure. — It la obvioua April, 1890.] Craig v. Van Bebber. 651 that the question what are necessaries depends upon the infant's sta- tion and condition in life. The term is entirely a relative one. What would be necessaries in one case might not be in another: Ford v. Fothergilt, V. 1 Esp. 211; Peake N. P. 229; Hands v. Slaney, 8 Term Rep. 578; Bunjhart Angeisiein, 6 Car. & P. 690; Mortara v. Hall, 6 Sim. 46.5, 467; Lou^e v. Gri/- Jith, I Scott, 458, 460; 1 Hodges, 30, 31; Brayshaw v. Eaton, 7 Scott, 183, 187; 5 Bing. N. C. 231, 234; Steedman v. Rose, Car. & M. 422; Smithfeters V. Grifuis Adm'r, 10 B. Mon. 259, 260; Breed v. Judd, 1 Gray, 455, 458; Price V. Sanders, 60 Ind. 310, 314. "What are necessaries," saya Camp- bell, J., in Epjierson v, Nugent, 57 Miss. 45, 47, 34 Am. Rep. 434, "cannot be determined by any arbitrary and inflexible rule. It depends on circum- stances, and each case must be governed by its own." And, says Dargan, Chancellor, in Birers v. Gregg, 5 Rich. Eq. 274, 278, "necessaries, when the term is applied to an inUnt, are those things that are conducive and fairly proper for his comfortable support and education, according to his fortune and rank. So that what would be considered necessary in one case would not be so regarded in another. The rule is entirely relative in its operation." It is not to be understood that the term " necessaries " is to be confined to those things required merely to sustain life; but it includes what may be suitable and proper for the particular person according to his station and circumstances: Peters v. Fleming, 6 Mees. & W. 42; Davis v. Caldiuell, 12 Cush. 512, 513; Nicholson v. Spencer, 11 Ga. 607, 610; Jordan v. Cojield, 70 N. C. 110; Strong v. Foote, 42 Conn. 203. Articles of mere luxury or of pure orna- ment would be excluded, unless, perhaps, in very extraordinary cases; but "luxurious articles of utility " might be included. Thus in Peters v. Flem- ing, 6 Mees. & W. 42, Baron Parke said: "It is perfectly clear that from the earliest time down to the present the word ' necessaries ' was not con- fined, in its strict sense, to such articles as were necessary to the support of life, but extended to articles fit to maintain the particular person in the state, station, and degree in life in which he is; and therefore we must not take the word ' necessaries' in its unqualified sense, but with the qualification above pointed out." Again, he says: "The true rule I take to be this: that all such articles as are purely ornamental are not necessary, and are to be rejected, because they cannot be requisite for any one; and for such matters, therefore, an infant cannot be made responsible. But if they are not strictly of this description, then the question arises, whether they were bought for the necessary use of the party, in order to support himself properly in the degree, state, and station of life in which he moved; if tliey were for such articles, the infant may be responsible." Baron Alderson, who also gave his views to the same effect, again remarked, several years afterward: "Articles of mere luxury are always excluded, though luxurious articles of utility are in some cases allowed ": Chappie v. Cooper, 13 Mees. & W. 252. Perhaps the same thing was intended when it was said in Wharton v. Mackenzie, 5 Q. B. 606, that articles of comfort and convenience merely, in a particular case, can never be included under the term " necessaries." See also McKanna v. Merry, 61 111. 177, 179. But in Ryder v. Womhwcll, L. R. 4 Ex. 32, 41, Willes, J., observes: "Possibly there may be exceptional cases in which things purely ornamental may be necessary. In such a state of things as we believe existed at the close of the last century, it might have been a question for a jury whether it was not necessary, for the purpose of main- taining his station, for a young gentleman moving in society to purchase wigs and hair-powder; but, as a general rule, and in the absence of some 652 Craig v. Van Bebber. [Missouri, evidence to show that the usages of society required the use of such things, we think the rule laid down in Peters v. BUeinimj, 6 Mees. & W. 42, is cor- rect." Ou the other hand, the mere fact that articles furnished or services ren- dered were beneficial or desirable to the infant does not make him liable therefor aa necessaries: Tapper v. Cadwell, 12 Met. 559, 563; 46 Am. Dec 704; 705; Phelps v. Worcester, 11 N. H. 51; Middkbury College v. Chandler, 16 Vt. 683, 686; 42 Am. Dec. 537, 538; Turner v. Oaither, 83 N. 0. 357, 362; 35 Am. Kep. 574, 576; and see other cases cited as to materials or money supplied and services performed for the benefit of his estate, post, title "Illustrations of What maybe Necessaries." And we may here observe, also, that it is laid down as a general principle that necessaries concern the person and not the estate of the infant: Neio Hampshire Mat, F. Ins. Co. v. Noyes, 32 N. H. 345; Deceit v. Lewenthal, 57 Miss. 331; 34 Am. Rep. 449; but see Epperson v. Nugent, 57 Miss. 45; 34 Am. Rep. 434. Question of Necessaries, whether of Fact or Law. — The province of the court and of the jury in solving the question of necessaries involves a proposition of considerable nicety, and one which is not always as clearly and definitely stated as it might be. The rule, having regard particularly to the latest cases, seems to be this: It is for the court to determine, as a mat- ter of law, in the first place, whether the things supplied may fall within the general classes of necessaries, and if so, whether there is sufficient evidence to warrant the jury in finding that they were necessary. If either of these preliminary inquiries be decided in the negative, it is the duty of the court to nonsuit the plaintiff who seeks to recover from the infant. If they be de- cided in the affirmative, it is then for the jury to determine whether, under all the circumstances, the things furnished were actually necessary to the posi- tion and condition of the infant, as well as their reasonable value, and whether the infant was already sufficiently supplied: Rainsford v. Fenwick, Cart. 216; Harrison v. Fane, 1 Scott N. R. 287, 289; 1 Man. & G. 550, 553; Peters V. Fleming, 6 Mees. & W. 42; Brooker v. Scott, 11 Mees. & W. 67; Wharton v. Mac- kenxie, 5 Q. B. 606; Bryant v. Bichardson, L. R. 3 Ex. 93, note; Ryder v. Womb- well, L. R. 4 Ex. 32; Skrine v. Gordon, 9 Ir. Rep. C. L. 479; Hill v. Arbon, 34 L. T. 125; Beeler v. Young, 1 Bibb, 519; Saunders v. Ott, 1 McCord, 572; Smith V. Young, 2 Dev. & B. 26; Tapper v. Cadwell, 12 Met. 559, 563; 46 Am. Dec. 704, 705; Merriam v. Cunningham, 11 Cush. 40; Davis v. Caldwell, 12 Cush. 512, 513; Grace v. Hale, 2 Humph. 27; 36 Ain. Dec. 296; Jordan v. Co/- Jield, 70 N. C. 110, 113; Henderson v. Fox, 5 Ind. 489, 491; Garr v. Haskelt, 86 Ind. 373; McKanna v. Merry, 61 111. 177; Decell v. Lewenthal, 57 Miss. 331; 34 Am. Rep. 449; compare the following cases: Maddox v. Miller, 1 Maule & S. 738; Bray sham v. Eaton, 7 Scott, 183, 188; 5 Bing. N. C. 231, 235; HaH v. Prater, 1 Jur. 623; Jenner v. Walker, 19 L. T. 398; Johnson v. Lines, 6 Watts & S. 80; 40 Am. Dec. 542; Mohney v. Evans, 51 Pa. St. 80; Sioift V. Bennett, 10 Cush. 436, 437. Burden of Proof as to Necessaries. — It has been seen, supra, title " Circumstance of Infant's being Already Supplied with Necessaries," that where it appears that an infant lives with his parents, or is under the care of a guardian, a presumption exists that he is properly supplied with neces- saries. Therefore one who seeks to charge the infant further for articles otherwise conceded to be necessaries has the burden of showing that he was not so supplied. But it seems that if the infant does not live with his pa- rents, nor is under the care of a guardian, but defends on the ground that he was already sufficiently provided, the burden is upon him to show the fact. April, 1890.] Craig v. Van Bebber. 653 Aside from these cases, one claiming to recover from an infant on the ground of necessaries is obliged to plead and prove the fact that having regard to the condition and circumstances of the infant, the things supplied the infant were such: Jve v. Chester, Cro. Jac. 560; Mortara v. Hall, 6 Sim. 4G5, 467; Johnson V. Lines, 6 Watts & S. 80; 40 Am. Dec. 542; Thrall v. Wrhjht, 38 Vt. 494; Wood v. Losey, 50 Mich. 475; and where the defendant pleaded in- fancy to an action on a promissory note, it was held that a reply that the note was given for necessaries furnished the defendant at her request, with- out specifying in what the necessaries consisted, was demurrable on account of its vagueness: Burr v. Wikon, 18 Tex. 367. Illustrations of What may be Necessaries. — According to the lan- guage of Lord Coke, heretofore quoted, "An infant may bind himself to pay for his necessary meat, drinke, apparell, necessary physicke, and such other necessaries, and likewise for his good teaching or instruction, whereby he may profit himselfe afterwards ": Co. Lit. 172 a. Subject to the foregoing general rules, there, of course, can be no doubt that food is included in the term "necessaries" for which an infant may bind himself: See Saunders v. Ott, 1 McCord, 572; Bivers v. Gregg, 5 Rich. Eq. 274, 278; Price v. Sanders, 60 Ind. 310, 314; Barnes v, Barnes, 50 Conn. 572. Entertainment furnished by an innkeeper may be classed under the head of necessaries, for which an infant is liable, and for which, it is held, the innkeeper has a lien on the in- fant's property brought within the inn: Watson v. Cross, 2 Duvall, 147. We think it doulitful that the innkeeper can claim a lien for the necessary enter- tainment. Besides, this case seems to us to be altogetlier incorrectly de- cided on the facts, which showed that the infant was placed by his guardian at school, but left there and came to the inn. Suitable clothing may likewise undoubtedly be a necessary for which an infant may l)e held liable: See Saunders v. Ott, 1 McCord, 572; Rivers v. Oregg, 5 Rich. Eq. 274, 278; Price v. Sanders, 60 Ind. 310, 314. Regimentals furnished in perilous times, to an infant who was a member of a volunteer corps, were held by Lord Ellenborough to be necessaries: Coa.tes v. Wihon, 5 Esp. 152; and an infant, a captain in the army, was held liable to pay for a livery ordered for his servant, but not for cockades ordered for the soldiers of his company, in Hands v. Slaney, 8 Term Rep. 578; Lord Kenyon saying: "I cannot say that it was not necessary for a gentleman in the defendant's situation to have a servant; and if it were proper for him to have one, it was equally necessary that the servant should have a livery." Clothing supplied an infant for his or her marriage, although not suitable for ordinary occa- sions, may be recovered for as necessaries: Sanis v. Siocliton, 14 B. Mon. 232; Garr v. Haskett, 86 Ind. 373; Jordan v. Coffield, 70 N. C. 110, 113. But ap- parel consisting in part of velvet and satin suits laced with gold lace, sup- plied an infant who was one of the gentlemen of the chamber to the Earl of Essex, was held not to be necessary, in Macharell v. Bachelor, Cro. Eliz. 583; compare Nicholion v. Spencer, 11 Ga. 607, 610, per Warner, J.; nor are racing-jackets necessaries, unless for a jockey: Burghart v. Angerstein, 6 Car. 6 P. 690, 698; and suitable clothing when supplied in an unreasonable quan- tity may not be recovered for: Johnson v. Lines, 6 Watts & S. 80; 40 Am. Dec. 542. Medical attendance, and articles furnished for the purpose of health, may also unquestionably be recovered for as necessaries: See Sannders v. Ott, 1 McCord, 572; Price v. Sanders, 60 Ind. 310, 314. Services rendered by a dentist to a minor, in filling his teeth, which were decayed and gave him pain, the work being essential for their preservation, were held to be ueces- 654 Craig v. Van Berber. [Missouri, Baries, in Strong v. Foole, 42 Conn. 203. So a horse may be a necessary for an infant who has medical advice to take exercise on horseback: Hart v. Prater, 1 Jur. 62.3; and see Clowes v. Brooke, 2 Strange, 1101; And. 277; Aaron V. Harley, 6 Rich. L. 26; but not if the horse is purchased by the infant for purposes of pleasure or Ijiisiness: Skrine v. Gordon, 9 Ir. Rep. C. L. 479; Beeler V. Young, 1 Bibb, 519; SmtlqKters v. Griffins Adinr, 10 B. Mon. 259, 260; Ealnwater v. Durham, 2 Nott & McC. 524; 10 Am. Dec. 637; Grace v. Bale, 2 Humph. 27; 36 Am. Dec. 29S; Wood v. Losey, 50 Mich. 475; Housr v. Alex- ander, 105 Ind. 109; 55 Am. Rep. 189; but see Mokney v. Ecam, 51 Pa. St. SO. A common-school education is a necessary: See Middlehtu-y College v. Chan- dler, 16 Vt. 683; 42 Am. Dec. 537; Saunders v. Olt, 1 McCord, 572; Rivers v. Gregg, 5 Rich. Eq. 274, 278; but not a collegiate education, at least not for an infant whose wealth, station in society, genius, or talent did not suggest its special fitness and expediency: Aliddlebtiry College v. Cliandler, 16 Vt. 683; 42 Am. Dec. 537; certainly a professional education is not a necessary: Bou- chell V. Clary, 3 Brev. 194; Turner v. Gaither, 83 N. C. 357; 35 Am. Rep. 574; and in Smith v. Gibson, Peake Ad. Cas. 52, Lord Kenyon was of the opinon that a sum of money advanced by the plaintiff to place out the infant wife of the defendant as an apprentice to learn millinery could not be considered a necessary. Proper lodgings may also be included in necessaries for an infant: See Rivers v. Gregg, 5 Rich. Eq. 274, 278; Price v. Sanders, 60 Ind. 310, 314; Crisp V. Churchill, cited 1 Bos. & P. 340; and wliere an infant rented a house, in which he lived and exercised his calling as a barber, it was held that it was properly left to the jury to determine whether the house was a necessary or not: Lowe v, Griffith, 1 Scott, 458; 1 Hodges, 30. Purchases made by an infant for the purpose of trading, although he thereby gain his living, on the other hand, do not bind him: Whittingham v. Hill, Cro. Jac. 494; and see Dilk v. Keighley, 2 Esp. 480; but he is liable for so much of goods supplied him to trade with as were consumed as necessaries in his own family: Turberville v. Wlutehouse, 1 Car. & P. 94, affirmed in 12 Price, 693; and as just seen, he may be chargeable for the use and occupation of a house in which he carries on his business, if he also uses it as a dwelling: Lowev. Griffith, 1 Scott, 458; 1 Hodges, 30. He is not liable as for necessaries for advances and supplies furnished him to enable him to carry on a plantation or farm: Decell v. Lewenthal, 57 Miss. 331; 34 Am. Rep. 449; State v. Howard, 88 N. C. 650, 651. Nor is he liable for a horse purchased by him to be used in farming, although he thereby supports himself and family: Rainivater v. Durham, 2 Nott & McC. 524; 10 Am. Dec. 637; Grace v. Hale, 2 Humph. 27; 36 Am. Dec. 296; Wood v. Losey, 50 Mich. 475; House v. Alexander, 105 Ind. 109; 55 Am. Rep. 189; but in Mohney v. Evans, 51 Pa. St. 80, where a lad seventeen years of age, carrying on a farm for his mother, who was a widow, and his guardian, purchased a pair of oxen, which were received by him and his mother, and afterwards exchanged for a horse, which was used to work the farm, it was held that the question whether the purchase of the oxen was necessary should have been submitted to the jury, — a decision at variance with the weight of authority. The board of four horses for six months, the prin- cipal use of which was in the business of a hackman, is likewise not within the class of necessaries for which an infant is liable, although the horses were occasionally used to carry his family out for a drive: Merriam v. Cunningham, 1 1 Cush. 40. An infant is not liable, furthermore, as for necessaries, for repairs upon his dwelling-house, although required for the prevention of immediate and seri- April, 1890.] Craig v. Van Bebbeb. 655 ous injury to the house: Tupper v. Cadwell, 12 Met. 559; 46 Am. Dec. 704; WallU V. Bardwell, 126 Mass. 3G6; West v. Grecjgs Adm'r, 1 Grant Cas. 53. Nor is he liable for labor and materials furnished for the erection of a dwell- ing or other building upon his land: Fie f man v. Brklyer, 4 Jones L. 1; 67 Am. Dec. 258; Price v. Sanders, 60 lud. 310, 314; Price v. Jenninijs, 62 Ind. Ill; Wornock v. Loar, 88 Ky. 000; Dewey, J., sayirg ia Tupper v. Cad- well, 12 Met. 559, 46 Am. Dec. 704: "No necessity can exist for such expendi- tures, solely upon the credit of the minor. The fact that he has real estate which may require supervision, and may need repairs, furnishes the proper occasion for the appointment of a guardian, through whose agency such re- pairs can be made, and as the law assumes, more judiciously made, than through the agency of the minor." Nor is a contract for the insurance of his property against loss or damage by fire a contract for necessaries which will bind the infant absolutely: Ne^c Hampsltire Mut. F. Ins. Co. v. Noyes, 32 N. H. 345. Nor is an infant liable, as for necessaries, for money lent him for the purpose of removing encumbrances upon his estate: We^t v. Grcg(fs Adm'r, 1 Grant Cas. 53; Magee v. Welsh, 18 C.il. 155. Services and expenditures of counsel in an action to recover an infant's lands are likewise not necessaries: Phdps \. Worcester, 11 N. H. 51. " An infant's rights to his estate are not prejudiced by his infancy, and any services to sustain such rights may be ratified by the infant when he comes of age, but cannot be enforced against him as necessaries": Phelps v. Worcester, 11 N. H. 51. But in Epperson v. Nugent, 57 Miss. 45, 34 Am. Rep. 434, it was lield that where there is no guardian, the infant's estate is liable for the fees of counsel whose services contributed to secure it; the court saying: "It is stated in the books that the wants supplied must be personal to the infant, either for the body or the mind, in order to come within the description of npcessaries, and that counsel fees and expenditures in a lawsuit are gener- ally excluded. This is, no doubt, the general rule, and for an obvious rea- son. Usually an infant who has an estate has a guardian, who may and should engage and pay counsel, wliere the interests of the infant committed to his guardianship require it. When an infant has no guardian, but has rights involved in litigation, and a liwyer has espoused the cause of the in- fant, and devoted his services to the protection of the interests of tlie infant in such litigation, and as the result of the litigation an estate has been se- cured to the infant, it is just and proper, and within the principle on which an infant is held liable for necessaries, that the reasonable fees of such counsel should be paid out of the estate thus obtained." And see Thrall v. Wright, 38 Vt. 494. This is simply begging the question. Tiie fact that the infant has no guardian is no reason why he should be able to contract concerning his estate. A guardian can easily be appointed. Nor does the fact that the ser- vices rendered have resulted in great benefit to the estate of the infant fur- nish a reason why he should bo charged for them as for necessaries. If this were so, the infant should be liable upon every contract by wJiich he secured a benefit. It is entirely a dififerent matter, however, where the suit is strictly per- sonal to the infant. Thus an infant is liable, as for necessaries, for reason- able attorney's fees for defending him in a criminal action: Askey v. Wil- Hums, 74 Tex. 294. "We are of the opinion," says the court, "that the services of an attorney should be held necessary to an infant, where he ia charged by an indictment with crime. His life or his liberty and reputation are at stake, and it would be unreasonable to deny liim the power to secure the means of defending himself. He may contract for food and raiment suit- 656 Craig v. Van Bebber. [Missouri, able to his condition in life, though they be such as are not demanded by his absolute wants, and it is not to be questioned that the immunity from punishment and disgrace is a matter of far more importance to his welfare." So an infant is liable, as for necessaries, for the reasonable services of an at- torney, rendered in defending him in a bastardy proceeding, the proceeding affecting his liberty and good name: Barker v. Hibbard, 54 N. H. 539; 20 Am. Rep. 160. And in Munson v. Washband, 31 Conn. 303, 83 Am. Dec. 151, it was held that while the ordinary fees and advances of an attorney in the prosecution of an infant's rights to property could not generally be said to be necessaries, yet where such services and expenses were requisite for the personal relief, protection, and support of the infant, they may lawfully be contracted for by the infant, and he will be bound in law to pay for them. Therefore an attorney might recover of husband and wife fees for his ser- vices, and moneys expended by him in commencing and prosecuting in favor of the M'ife, while she was a feme sole and a minor, an action for breach of promise of marriage against her present husband, with whom the suit was settled by the marriage, it appearing that the services and expenses were ab- solutely requisite for the minor's personal relief, protection, and support, since she had been seduced and was pregnant, and was left by her relations and friends in a state of destitution and suffering. " A civil suit may, under extraordinary circumstances," says Hinman, C. J., "be the only means by whicli an infant can procure the absolute necessaries which he requires; and where such is the case, it would be a reproach to the law to deny him the power of making the necessary contracts for its commencement and prosecution." A number of cases of a verj' miscellaneous character have been decided, and remain to be noticed. Money paid at the request of an infant to relieve him from a military draft, to which he was subjected by law, was held not to come within the term "necessaries ": Dorrell v. Hastings, 28 Ind. 478, 479. But a recognizance entered into by a minor for his personal appearance at court to answer to a criminal charge may, it was held, be classed among neces- saries, since the infant thereby secured his personal freedom: St-ite v. Weatherivax, 12 Kan. 463, 464; and see also Clarke v. Leslie, 5 Esp. 28. A settlement which affords a provision to an infant who on her marriage has no other certain provision was decided in England to be a necessary, for the costs of preparing which she was accordingly liable to solicitors whom she engaged: Helps v. Clayton, 17 Com. B., N. S., 553. And an infant widow was held bound by her contract, as for necessaries, for the funeral expenses of her husband, who left no property to be administered: Chappie v. Cooper, 13 Mees. & W. 252. A bridal outfit, including a chamber set, furnished an infant before her marriage, may be classed as necessaries: Jordan v. Cojfield, 70 N. C. 110, 113; and see also Garry. Haskett, 86 Ind. 373; Sams v. Stock- ton, 14 B. Mon. 232, In Hill v. Arbon, 34 L. T. 125, where an infant, who was sole manager of a farm belonging to his father, and who had some expec- tations, bought on credit a pair of spurs, a suit of kersey horse-clothing, a hunting breastplate, a set of harness, a saddle, and other articles of like nature, it was held that there was reasonable evidence to go to the jury, con- sidering the position of the infant, that the goods supplied were necessaries, or, as Blackburn, J., well put it, "proprieties." But in Johnson v. Lines, 6 Watts & S. 80, 40 Am. Dec. 542, the court drew the line at an account against an infant, which footed up to more than one thousand dollars, "comprising charges for many articles which might be ranked with necessaries when sup- plied in reason, but not at the rate of twelve coats, seventeen vests, and twenty-three pantaloons in the space of fifteen months and twenty-one daysj April, 1890.] Cratg v. Van Bebber. 657 to say nothing of three bowie-knifes, sixteen penknives, eight whips, ten whip-lashes, thirty-nine handkerchiefs, and five canes, with kid gloves, fur caps, chip hats, and fancy bag to match; and in Saunders v. Ott, 1 McCord, 572, the court refused to allow for "liquor, pistols, powder, saddles, bridles, whips, fiddles, fiddle-strings, etc., amounting to$111.53|." Andalsoin Jen- ner v. Walker, 19 L. T. 398, Cockburn, C. J., thought that betting-books, especially rich and costly ones, could not be necessaries. Balls and serenades cannot be accounted necessaries, even in case of a nobleman: North and Thomp-fon's Case, cited Carfc. 216. An infant lieutenant in the English royal navy was held not answerable for the price of a chronometer, as a necessary, in Berolles v. Ramsay, Holt N. P. 77. But Baron Parke thought that breastpins and a watch-chain, fur- nished the eldest son of a gentleman of fortune and member of Parliament, who was an undergraduate of the University of Cambridge, might be neces- saries; " the former [the breastpins] might be either of necessity or of orna- ment; the usefulness of the other might depend on this: whether the watch was necessary. If it was, then the chain might become necessary itself." In Ryder v. WomhweU, L. R. 4 Ex. 32, an infant, the son of a baronet, and having an income of five hundred pounds a year, with the prospect of twenty thousand pounds on attaining his majority, bought on credit a pair of jew- eled solitaire shirt-sleeve buttons worth twenty-five pounds, and a silver goblet worth fifteen pounds fifteen shillings, the latter for presentation to a friend at whose house he was staying. No evidence was given of anything peculiar in his station rendering it exceptionally necessary for him to have such articles. The jury, in answer to the question put to them, found that the articles were necessaries, and suitable to the infant's station and degre^. It was held that as the onus was on the plaintiff seeking to recover, and as he gave no evidence to show that the articles were necessaries, the question ought not to have been left to the jury. But in Jenaer v. Walker, 19 L. T. 398, Chief Justice Cockburn thought that a present of amethyst and diamond ear-rings, by a young gentleman who had an income of from seven hundred to one thousand pounds per annum, to a young lady to whom he was engaged to be married, and who eventually became his wife, were necessaries. Dinners, confectionery, and fruit supplied to an infant, an undergraduate of Cambridge, having lodgings in town, are "prima facie not necessaries, ac- cording to Brooker v. Scott, 11 Mees. & W. 67; and in an action brought against him for such supplies, no special circumstances being shown, the court directed a nonsuit; and in another case, on a very similar state of facts, it was held that in default of explanation, the court should decide the articles not to be necessaries, as a matter of law; but that in case of explanation, as if fruit or other articles were supplied in illness, the question whether they were necessaries or not should be left to the jury, with proper directions: Wharton v. Mackenzie, 5 Q. B. 606. So if there is no evidence to show that cigars and tobacco are necessary, medicinally or otherwise, in a particular case, the question should not be left to the jury: Bryant v. Richardaon, L. R. 3 Ex. 93, note. In an action to recover £150, the purchase price of a hunter sold by the plaintiff to the defendant, in which there was a plea of infancy, and a repli- cation of necessaries, it appeared that the defendant was an EiiLjlish youth on a visit to a country hunting gentleman in Ireland. At the time of tiie bargain, he stated that he was a member of the Surrey Stag Hunt, and was accustomed to hunt his step-father's horses, and talked of being allowed six hundred pounds a year by his step-father. It was held that tliere was no evi- Am. St. Kep., \ ol. XVIil. — 42 658 Craig v. Van Bebber. [Missouri, dence which could be properly left to the jury that the hunter was a neces- sary: Shine v. Gordon, 9Ir. Rep. 0. L. 479. In Beeler v. Young, 1 Bibb, 519, a horse saddle and bridle were held not to be necessaries, for which an infant would be liable; and see also Smithpnters v. Grijfin's Adrnr, 10 B. Mon. 259, 260. But a horse, as said before, might be a necessary, if exercise on horseback be recommended by a physician: Hart v. Prater, 1 Jur. 623; and see Clowes v. Brooke, 2 Strange, 1101; And. 277; Aaron v. Harley, 6 Rich. L. 26. Money advanced for the traveling expenses of an infant on a pleasure trip cannot be recovered as a necessary: McKanna v. Merry, 61 111. 177; but, plainly, traveling expenses under dififerent circumstances might be a neces- sary: See Breed v. Judd, 1 Gray, 455, 458. Money paid by a master for coach fares for the mother of his infant servant is not a necessary, and therefore cannot be deducted from the wages of the servant: Hedgeley v. Holt, 4 Car. & P. 104. In Charters v. Bayntun, 7 Car. & P. 52, it was left to the jury to say whether a stanhope was a necessary for an infant, under the circum- stances, for the hire and repair of which he was liable; but in Howard v. Sinvpkins, 70 Ga. 322, a buggy was held not to be an article of necessity for an infant; and in Pyne v. Wood, 145 Mass. 558, a bicycle was held not to be a necessary for an infant seventeen years of age, who lived with his father, and worked in a shoe-shop a mile from his father's house, and who went home for his dinner, and was allowed to be absent an hour. Infant is Liable for Necessaries Furnished his Wife and Family, as well as those furnished himself, and for the same reason: Hill and Blactons Case, 1 Sid. 112; Tamer v. Trlsby, 1 Strange, 168; Turherv'dle v. Wldtehouse, 1 Car, & P. 94, affirmed in 12 Price, 693; Rivers v. Gregg, 5 Rich. Eq. 274, 278; Cantine v. Phillip-i's Adrnr, 5 Harr. (Del.) 423; Price v. Sunders, 60 Ind. 310, 315; Chapman v. Hughes, 61 Miss. 339. Liability for Money Borrowed or Advanced for Necessaries. — As before observed, under the head "Lending and Borrowing of Money," it seems to be the rule that an infant is not liable at law for money borrowed by him to pay for necessaries, although actually expended by him for that purpose, but that he is liable for money directly applied by the lender in pro- curing necessaries for him: Rearsby and Cuffera Case, Godb. 219; Darby v. Boucher, 1 Salk. 279; Earle v. Peale, 10 Mod. 67; 1 Salk. 3SQ;Ellisv. Ellis, 12 Mod. 197; 3 Salk. 197; 1 Ld. Rayra. 344; Probart v. Knouth, 2 Esp. 472, note; Clarke v. Leslie, 5 Esp. 28; Hedgeley v. Holt, 4 Car. & P. 104, 105; Bateman V. Kingston, 6 L. R. Ir. 328; Swift v. Bennett, 10 Cush. 436; Randall v. Sweet, 1 Denio, 460; Smith v. Oliphant, 2 Sand. 306; Price v. Sanders, 60 Ind. 310; Beeler v. Young, 1 Bibb, 519. But in equity the infant is liable for money bor- rowed and actually applied by him for the payment of necessaries: Marlow v. Pitfeild, IP. Wms. 558; Hickman v. Hall's Adm'rs, 5Litt. 3H8, 342; Watson v. Cross, 2 Duvall, 147, 149; Price v. Sanders, 60 Ind. 310. The reason why an infant is not liable at law for money borrowed by him to pay for necessaries, although actually expended by him for that purpose, is usually stated to be that the lender, by intrusting the money to the infant, enables him to waste and misapply it, and his subsequent proper use of it could not confer an action when none existed, upon the contract of lending at the time of the loan. We think, however, that the true reason why the lender cannot recover at law is the want of privity between the lender and the one who supplies the ne- cessaries: See Bradley v. Pratt, 23 Vt. 378, 386, per RedfieM, J.; and see, in this connection, the remarks of Dargan, C, in Ricers v. Gregg, 5 Rich. Etj, 274. April, 1890.] Craig v. Van Bebber. 659 In conformity with these rules, if an infant gives a note for necessaries, signed by a surety, the surety who afterwards pays the note is entitled to recover the amount so paid from the infant: Conn v. Coburn, 7 N. H. 368; 26 Am. Dec. 746; Haines Admr v. Tarrant, 2 Hill (S. C.) 400; and see Dial V. Wood, 9 Baxt. 296; contra, Ayera v. Burns, 87 Ind. 245; 44 Am. Rep. 759. Disaffirmance. — The rules concerning the disaffirmance of their contracts by infants relate simply to those contracts which are voidable. Such con- tracts as are binding upon them, either by virtue of the common law or by statute, very plainly cannot be avoided on the ground of infancy. And should a statute make any or all of their contracts absolutely void, or shoixld the notion be persisted in, contrary to principle and authority, that certain of their contracts are void at the common law, there can obviously be no dis- affirmance in the proper sense of the word; for the contracts being mere nul- lities, there is nothing to disaffirm. In regard to their voidable contracts, it can be laid down as a general rule that they may be avoided by the infant contracting parties, whether the contracts be completely executory or exe- cuted, or whether executory on either side and executed on the other. The idea sometimes entertained that a contract entirely executed is not subject to disaffirmance by the infant because it is executed must necessarily be erroneous, unless it be true that certain contracts are no longer voidable when executed; for a contract cannot be voidable by him, and yet be binding upon him. It is certainly not true that the great mass of infants' contracts are binding when executed, and we do not believe it is ever true, either upon principle or authority, that any contract which an infant may make ceases to be voidable when and because it is executed. It may be that an infant is sometimes required to restore the consideration which he may have received on his disaffirmance, and, where this is a money payment, and he seeks to re- cover money, that the law, to avoid circuity of action, will i^ave the parties, so far as the infant has been compensated, in the condition in which it finds them; but this is merely an incident of the execution of the contract: See supra, *' Service." We may again observe, in this connection, that all voidable contracts of in- fants are binding until disaffirmed by them. It is not the rule that they are nugatory until ratified, but that they are good until avoided. If a contract has been ratified, it is then no longer subject to disaffirmance; but until it ia ratified, it may be disaffirmed. Tliese propositions are necessarily involved in the idea of a voidable contract. It makes no difference whether the con- tract be executory or executed, although it may be that a ratification will be held to result from slighter acts and circumstances in the latter case than in the former. See a distinction between executory and executed contracts, a3 to their binding force, noticed and criticised supra, title " Void and Void- able." Disaffirmance of Part of Transaction. — If an infant enters into several distinct anil sepa.ate contracts he may evidently disaffirm one or more, and not the others. Tims he may, on arriving at full age, disaffirm one of several deeds made by him during his minority, and leave the others to have legal effect as if made when of full age: Tunison v. Chamhlin, 88 111. 378, 387. But he cannot affirm a portion of a single transaction, and disaffirm the rest. Ho must abide by it, or disaffirm it in toto. If he ratifies a part of the agreement, he ratifies it all. Therefore if a contract bo upon a condition, if he wishes to accept the contract he must accept it in its entirety, with the condition: Biederwan v. O'Conner, 117 111. 493; Lowry v. Drakes Jleirs, I Dana, 46. So infants cannot, on coming of age, adopt their agreement for the partition of 660 Craig v. Van Bebbeb. [Missouri, lands in part, but may be compelled in equity to elect either to confirm the agreement or to relinquish all rights and preteusions resulting from it: Over- bach V. Heei-mance, 1 Hopk. Ch. 337; 14 Am. Dec. 546. And where an infant purchased a kettle and other articles of personal property, and gave his note for the price, under an agreement that he might return the kettle if it did not answer his purposes, and after he came of age the vendor requested him to return it if he did not intend to keep it, but he retained it and used it for several months afterwards, it was held that he thereby ratified the contract as to the kettle, and consequently the entire contract, and therefore an action was maintainable against him on the note: Aklrkh v. Grimes, 10 N. H. 194. And where an infant sells a horse, and receives the vendee's notes for the price, he aflSrms the contract in all respects by bringing an action on the notes after coming of age; and hence he cannot, by pleading his infancy, preclude the defendant from offsetting damages for a breach of warranty on the sale of the horse: Morrill v. Aden, 19 Vt. 505. Again, an infant who purchases land or chattels cannot, on coming of age, retain the property and repudiate his note given for the price, or other agree- ment upon which he obtained the property: Kitchen v. Lee, 11 Paige, 107; 42 Am. Dee. 101; Henry v. Root, 33 N. Y. 526; Weed v. Beehe, 21 Vt. 495; PhU- pot V. Sandwich M/g. Co., IS Neb. 54; Armfield v. Tate, 7 Ired. L. 258; Bennett V. McLaughlin, 13 111. App. 349; not even by showing that a partial payment made by him was equal to the entire value of the property; Bennett v. Mc- Laughlin, 13 111. App. 349. Thus in Kitchen v. Lee, 11 Paige, 107, 42 Am. Dec. 101, a retiring partner assigned his interest in the partnership property to his copartner, on condition that the latter would pay the debts of the firm. The assignee subsequently refused to pay the dehts, on the ground of infancy. It was held that he could not retain the partnership effects, and at the same time refuse to perform the condition upon which they were assigned to him. Where, too, an infant purchases land or chattels, and gives back a mortgage thereon to secure the price, the con\eyance or transfer and the mortgage constitute but one transaction, and the infant cannot avoid the mortgage without also avoiding the conveyance or transfer, or in other words, he cannot repudiate the one and affirm the other; and if, after coming of age, he ratifies the purchase, he thereby necessarily ratifies the mortgage: Roberts v. Wiggin, 1 N. H. 73; 8 Am. Dec. 38; Heath v. West, 28 N. H. 101; Hubbard V. Cummings, 1 Me. 11; Dana v. Coombs, 6 Me. 89; 19 Am. Dec. 194; Lynde v. Budd, 2 Paige, 191; 21 Am. Dec. 84; Ottman v. Moak, 3 Sand. Ch. 431; Bigelow v. Kinney, 3 Vt. 353; 21 Am. Dec. 589; Richardson v. Boright, 9 Vt. 368; Young v. McKee, 13 Mich. 552; Curtiss v. McDougal, 26 Ohio St. 66; Cal- lis V. Day, 38 Wis. 643; Uecker v. Koehn, 21 Neb. 559; 59 Am. Rep. 849; Betts V. Carroll, 6 Mo. App. 518. "Nothing is clearer," says the court in Bigelow V. Kinney, 3 Vt. 353, 21 Am. Dec. 589, "than that a party cannot affirm an entire contract in part and avoid it in part; and to allow the plaintiff to avail himself of the deed conveying the land to him, and to avoid the mortgage given by him to secure the purchase-money, would be no less repugnant to law than to the plainest dictates of justice." So in a suit to enforce a lieu for the purchase-money reserved on the face of a deed, the infancy of the grantee is no defense, the land being still retained by him: Smith v. Henhel, 81 Va. 524. And where an infant purchases land, and assumes the payment of mortgages as a part of the purchase price, and afterwards, and during her minority, procures a loan, and mortgages the land to pay off the prior encum- brances, if she ratifies the purchase of the land by dealing with it as owner, after her majority, she thereby ratifies her agreement to pay the existing April, 1890.] Craig v. Van Bebber. 661 mortgages, and also ratifies the manner in which she dealt with those mort- gages, and consequently ratifies the subsequent mortgage given to secure the money borrowed by her to satisfy them: Langdon v. Clay son, 75 Mich. 204. So, it is held, a surety on an infant's note for the purchase price of chattels who has satisfied a judgment recovered on the note, and received from the infant a note for the amount so paid secured by a mortgage of the same chattels, is entitled to be subrogated to the rights of the vendor, who, had he taken the mortgage for the price, would have been entitled to enforce it: Knaggs v. Orem, 48 Wis. 601; 33 Am. Rep. 838. Disaffirmance is not a Fraudulent Act which will avoid it, or render the infant liable at law as for fraud, or against which a court of equity will relieve on that ground: Tucker v. Moreland, 10 Pet. 59, 77; 1 Am. Lead. Cas. "224 *234; Clamorganv. Lane, 9 Mo. 442, 471; Hu/h v. Carondeht etc. B'yCo, 56 Mo. 202, 210; Burns v. Hill, 19 Ga. 22; Seahrook v. Gregg, 2 S. C. €8; Brantley v. Wolf, 60 Miss. 420, 430. In Tucker v. Moreland, 10 Pet. 59, 77, 1 Am. Lead. Cas.*224, *234, Story, J. says: "In many cases the disaf- firmance of a deed made during infancy is a fraud upon the other party. But this has never been held sufficient to avoid the disaffirmance, for it would otherwise take away the very protection which the law intends to throw round him, to guard him from tlie effects of his folly, rashness, and misconduct "; and again, it is said in Brantley v. Wolf, 60 Miss. 420, 4.30, "in one sense it is always a wrong and an injury for a person laboring under a disability to enter into a contract and enjoy its fruits, and thereafter to repudiate it to the prejudice of the other party; but legal fraud cannot be predicated of such conduct by a minor where it has been unmarked with any element of deceit or intentional wrong, because the right of disaffirmance is the privilege which the law attaches to the condition of disability, and of this riglit all men are bound to take notice." As to whether an infant will be es- topped from availing himself of his infancy as against a contract entered into through his concealments or misrepresentations, see supra, " Infant's Conceal- ment or Misrepresentation as to Age, etc."; and as to his liability in dain- ages for his frauds, and other torts connected with his contracts, see post, "Torts of Infants Connected with Contracts." Disaffirmance as against Subsequent Bona Fide Purchaser. — The protection of bona fide purchaser for value, and without notice, does not avail as against an infant's right to disaffirm his contract. His right to avoid his contract is an absolute and paramount right, superior to all equities of other persons. Therefore a purchaser of personal property from the vendee of an infant, although a purchaser for value, and without notice, cannot hold the property as against the infant who chooses to rescind*^is contract of sale: H'dl v. Anderson, 5 Smedes & M. 216. Nor is a bona fide holder of a negotia- ble instrument for value before maturity, and without notice, protected against the plea of infancy: Howard v. Simpkin.-!, 70 Ga. 322; Tiedcman on Commercial Paper, sec. 280. And an infant may avoid his deed of convey- ance, or executory contract to convey real property, as against a subsequent bona fide purchaser from his grantee or vendee for value, and without no- tice of the fact of infancy: Mustard v. Wohlj'onCs Heirs, 15 Gratt. 329, 340; 76 Am. Dec. 209, 213; Harrod v. Myers, 21 Ark. 592; 76 Am. Dec. 409; Jenkins v Jenkins, \1 Iowa, 195, 200; Miles v. Lingernian, 24 Ind. 385; Sims v. Siiiit/i, 80 Ind. 577; Buc/mnanv. Hubbard, 96 lud. 1; Brantley v. Wolf, 60 Miss. 420; AMcMorrk v. Webb, 17 S. C. 558; 43 Am. Rep. 629; "the right of the infant to avoid his contracts is an absolute and paramount right, superior to all equities of other persons, and may therefore be exercised against bona 662 Craig v. Van Bebber. [Missouri, Jlde purchasers from the grantee " : Brantley v. Wolf, 60 Miss. 420; ami in McMorria v. Webb, 17 S. C. 558, 43 Am. Rep. 629, in which dower was claimed by a widow who had renounced it during her infancy, it was said: "The plea of purchaser for valuable consideration without notice is equitable in its character, and has no proper application to a claim purely legal, liko that for dower." The fact that an infant induced a person to purchase his land upon the faith of his representation that he was of full age, it has also been held, cannot avail such purchaser in a contest between him and an in- nocent purchaser to whom the grantor made a subsequent conveyance after he became of age: Vallandingltam v. Johnson, 85 Ky. 288. Disaffirmance of Previous Deed, wheke Subsequent Grantee has Notice thereof. — If an infant disatBrms his deed of conveyance by the execution, after he reaches majority, of another deed to a different person, the second deed is not rendered fraudulent and void from the fact that the grantee had notice of the prior deed made during infancy. The privilege of an infant to disaffirm his contracts might be of little value to him if he were permitted to dispose of the property previously conveyed to such persona only who had no notice of that conveyance: Jackson ex dem. Brayton v. Burchln, 14 Johns. 124; Clamoryan v. Lane, 9 Mo. 442, 471. "The transac- tion is not, however, favored by a court. If the party purchasing under such circumstances gets the legal advantage, he will not be deprived of it; but further than this, the court is under no obligation to go ": Clamorgan v. Lane, 9 Mo. 442, 471. It has been held, also, that if an infant conveys his land, and on attaining his majority, ratifies the conveyance, and then conveys to another person for a valuable consideration, tlie second grantee, having notice of the deed made in infancy, but no notice of tlie ratification, is entitled to hold the land: Black v. Hills, 36 111. 376; 87 Am. Dec. 224; the court say- ing: "The argument that the subsequent purchaser takes with knowledge that the grantor may have ratified, and therefore takes subject to that risk, would applj' as well to all conveyances. For in every instance wliere a deed is made, the grantee knows that tlie grantor may have made a former con- veyance, and it is precisely to protect the innocent purchaser against such chances that our registry laws are enacted. " And again, the court says: " It can in no just sense be said that the grantee of a person who had conveyed during his infancy is not to be deemed an innocent purchaser, if he has notice of the first deed. He has as perfect a legal right to purchase land which his grantor had sold during minority as he would have to purchase land that had never been conveyed at all." We stop to remark that this lat- ter language is a little strong. Finally, it was observed: " If the ratification is by means of a written instrument, it is within the policy of the registry laws If the ratification is by acts in pais, then a subsequent purchaser must be affected with notice of those acts." Disaffirmance is Question of Intention, to be Indicated by Somb Positive Act. — It is almost a self-evident proposition that there can be no disaffirmance of a contract unless there is an intention to disaffirm on the part of the infant, and that this intention must be indicated by some positive act inconsistent with the continued validity of the contract: Illinois Land and Loan Co. v. Beem, 2 111. App. 390; Dixon v. Merritt, 21 Minn. ]96; Roberts v. Wiggin, 1 N. H. 73, 75; 8 Am. Dec. 38, 40. And where a female infant con- veyed her real estate to trustees, by way of marriage settlement, it is not sufficient to compel a purchaser of the land from her, after attaining her ma- jority, to accept a conveyance, to allege that no act had been done or caused to be dons by her after coming of age in confirmation of the deed of settle- April, 1890,] CRAia v. Van Bebbeb. 663 ment; bnt it must be alleged and proved that she has, since coming of age, by some positive act, disaffirmed such deed, the deed of an infant not being aa a matter of course superseded and annulled by the mere execution, after he at- tains his age, of another deed to another person: Dominick v. Michael, 4 Sand. 374; and see also Vourhie-s v. VoorJdes, 24 Barb. 150, 153. It is not necessary, however, that the infant should expressly disaffirm his contract. It may be enough if the act of disaffirmance be inconsistent with it: Mustard v. Woltl/onl's fleir.% 15 Gratt. 329, 338; 76 Am. Dec. 209, 212. This proposition finds a frequent illustration in those cases where an infant's deed is held to be disaffirmed by the execution, on coming of age, of another deed of the same premises to another person: See post, "Execution of Second Deed, Mortgage, or Lease." A disaffirmance, involving, as it does, a mental condi- tion, "necessarily implies the action of a free mind, exempt from all con- straint or disability ": Sims v. Everhardt, 102 U. S. 300, 312. Act of Disaffirmance, whether Required to be of Equal Solemnity AS Act Disaffirmed. — It seems that a feoffment of an infant with livery of seisin could only be avoided by an entry when he came of age which was an act of equal notoriety, or by writ of dum fuit infra mtatem: Jackson ex denu BraytoiiY. Burchim, 14 Johns. 124; Bool v. Mix, 17 Wend. 119; 31 Am. Dec. 285; Dominick v. Michael, 4 Sand. 374, 421; Vallaiiitern R'y V. McMkliael, 5 Ex. 114; Duhlin etc. R'y v. Black, 8 Ex. 181. An infant, also, who retains possession of real estate purchased or received in exchange by him for an unreasonable time after he attains full age thereby likewise affirms the contract of purchase or exchange: See Cecil v. Comes Salisbuiy, 2 Vern. 225; Roberts v. Wirjgin, 1 N. H. 73, 75; 8 Am. Dec. 38, 40; Boody v. McKenney, 23 Me. 517, 524; Baker v. Kennett, 54 Mo. 82; Hewy v. Root, 33 N. Y. 526; Walsh v. Powers, 43 N. Y. 23, 26; 3 Am. Rep. 654, 655; Callis v. Day, 38 Wis. 643; Hook v. Donaldson, 9 Lea, 56; Ellis v. Alford, 64 Miss. 8; and see Evelyn v. Chichester, 3 Burr. 1717; Armfield v. Tate, 7 Ired. L. 258; Middleton v. Hoge, 5 Bush, 478; Ihley v. Padgett, 27 S. C. 300; Langdon v. Clayson, 75 Mich. 204; Georgia Code (1832), sec. 2731; compare Benham v. Bishop, 9 Conn. 330; 23 Am. Dec. 358. A similar rule may be said to exist in case of a settlement of boundaries made during his infancy: Brown v. Caldwell, 10 Serg. & R. 114; 13 Am. Dec. 660; George v. Thoma.% 16 Tex. 74; 67 Am. Dec. 612. An infant lessee who retains possession of the premises for an unreasonable time, and, perhaps, in any case, after a rent day, after he attains his majority, similarly ratifies the letting, as a consequence: Boody V. McKenney, 23 Me. 517, 524; Baxter v. Bush, 29 Vt. 465; 70 Am. Dec. 429; McClure v. McClure, 74 Ind. 108; Mahon v. O'Farrell, 10 Ir. L. R. 527. The retention of property may, however, be under such circumstances as not to indicate an intention to affirm the contract. Thus an infant cannot be held to have ratified a contract of purchase of personal property, because the property is still retained bj^ him, after he has done all in his power to se- cure a rescission, and has brought suit for that purpose: House v. Alexander, 105 Ind. 109; 55 Am. Rep. 189, 191; and where an infant who had taken a conveyance of land made an attempt to disaffirm the contract before his ma- jority, and again, within a few days thereafter, and upon the refusal of the grantor to rescind, offered to give the grantor a sum of money, together with the improvements erected by himself on the land, by way of compromise, and then abandoned the premises, and left them in a position for the vendor to occupy at any time he saw fit, his acts were sufficiently speedy and xtn- equivocal to avoid the contract: Baker v. Kennett. 54 Mo. 82; so the reten- tion of possession and receipt of rents by a party, after majority, of a lot of April, 1890.] Ckaig v. Van Bebber. 717 land purchased for her in her infancy, is not a ratification of the purchase, where she repudiated the purcliase on the day she reached full age, and brought an action witliin three montlis thereafter to recover out of its sale so much of her money as was expended in its purchase: ScoU v. Scott, 29 S. C. 414. Again, where an infant transferred a portion of goods purchased by him to a third person to secure a debt, his retention of these goods for sale, after he became of age, as the servant of the assignee, does not amount to a ratification of the contract of purcliase: Thing v. Libbey, 16 Me. 55. In Smith v. Kelley, 13 Met. 309, an infant bought goods, and the sellers, three days before he came of age, brought an action against him for the price, and attached the goods on their writ. The goods remained in the hands of the altaching officer at the time of the trial of the action, and the defendant gave no notice, after reach- ing his majority, of his intention not to be bound by the contract of sale. It was held that there was not a ratification of the contract by the defendant, and the action could not be maintained. The court said that while if an in- fant, after coming of age, 'used the property bought as his own, or sold it, or kept it a long time, that would be evidence of ratification, yet such use, dis- position, or retention must be a voluntary act on the part of the minor, by which he manifests an intention to keep the property. In Todd v. Clapp, 118 Mass. 49-3, in an action to recover tlie price of goods sold to a firm, one member of which Avas an infant at the time of the sale, it appeared that the action was brought before the infant became of age, and that a portion of the goods sold were attached upon the writ, among other goods; that the at- tached goods were sold at auction by consent of all parties, and were bid off by the grandfather and guardian of the infant; and that the infant, after coming of age, purchased the goods of his grandfather, and afterwards used and sold them for his sole benefit. It was held that the court correctly ruled that the jury could not find, from these facts, that the infant ratified the original contract. The court said: " The ground upon which the retention and use by a defendant, after he becomes of age, of property bought while he was an infant, are held to be an affirmance of the contract of purchase, is, that these acts show a promise or undertaking to perform it after his inca- pacity to make contracts is removed. His only right to retain the goods is by virtue of the contract, and he can conscientiously do it only upon the as- sumption that the contract is valid. But the case at bar is different. The defendant, Clapp, after he became of age, did not claim or hold the goods under or by virtue of the contract with the plaintiffs. He held them by vir- tue of a new and independent contract of purchase. There is no inconsis- tency in his claim to hold the goods under this new purchase and his claim that his contract with the plaintiffs was invalid, and no inference can be drawn, from his thus holding the goods, of an intention to ratify and affirm the plaintiffs' contract." And in Manpin v. Grady, 71 Mo. 278, where a minor, on the sale of land under a deed of trust executed by his mother and brother to secure a debt, gave his promissory note for the balance of the debt remaining after the sale, and, after coming of age, the minor bought the land from the purchaser, it was held, in an action against him on the note, that the doctrine that infancy could not be invoked as a defense to a note while the defendant held the property for which it was given was not applicable, since the note was not given for the land. See also Baker v. Stone, 136 Mass. 405; Carrell v. Potter, 23 Mich. 377. It has also been held that the fact that a married woman united witli her husband in enjoying or exercising dominion over property received by the husband as part of the 718 Craig v. Van Bebbeb. [Missouri, consideration for a conveyance of her lands does not preclude her from as- serting the disability of infancy against her grantee or his successors: Bu- chanan v. Hubbard, 96 Ind. 1. Furthermore, an infant who enters into a partnership does not, by re- ceiving profits of the partnership during his minority, and retaining the same after he comes of age, become liable for partnership debts contracted before dissolution, which occurred before he caine of age: Dana v. Strums, 3 Cush. 372, 375; and the fact that infants retained and sold the crops raised by them on land which they had leased is not a ratification of their contract to pay rent, the consideration of the latter agreement not being crops, but the use of land, and the appropriation by defendants of the fruits of their labor not being such a positive and unequivocal act as to indicate an intention to bind themselves for the rent: Flexner v. Dkkerson, 72 Ala. 318; so where a minor contracts for materials and labor for the improvement of his property, his receipt of the rents from the property so improved, after he becomes of age, will not amount to a ratification of the contract so as to give the contractor a mechanic's lien upon the property: McCarty v. Carter, 49 111. 53; 95 Am. Dec. 572. In Toh^y v. Wood, 123 Mass. 88, 25 Am. Rep. 27, a firm, of which an infant was a member, gave certain checks in payment for goods, and the infant supposed, when he came of age, and until after the firm's dis- solution, that the checks, which were duly protested for non-payment, were paid. At the dissolution, which was seven weeks after the infant attained his majority, during which time he drew money from the firm for his per- sonal use, some of the goods were unsold, but he did not know it, and his partners agreed with him to assume and pay all the firm debts. It was held that these facts would not justify a finding that there was a ratification by the infant of his promise to pay the checks. Ratification from Failure to Disaffirm within Reasonable Time AFTER Rkachinq Foll Age. — The question of the ratification of a contract made during infancy by the mere failure to disaffirm it within a reasonable time after attaining majority, where there has been no property retained or used, and no other act of affirmance, has already been fully discussed, and needs no further consideration: See supra, titles "Disaffirmance of Contracts, in General, within Reasonable Time after Reaching Fall A'^e," "Disaffirm- ance of Deeds within Reasonable Time after Reaching Full Age, "and "Dis- affirmance of Deeds of Infant Femes Covert after Reaching Full Age." Ratification by Sale or Conveyance of Property Purchased. — If an infant purchases personal property, and after coming of age, sells the same, such an act of ownership will very evidently amount to a ratification. If the retention or use of property ratifies the contract, certainly a sale of it will have that effect: ChesJdre v. Barrett, 4 McCord, 241; 17 Am. Dec. 735; Lawson v. Lovejoy, 8 Me. 405; 23 Am. Dec. 526; Wiliiains v. Brown, 34 Me. 594; Deason v. Boyd, 1 Dana, 45; Robinson v. Hoskins, 14 Bush, 393; Shrop- shire V. Burn.i, 46 Ala. 108;- Minork v. Shortridge, 21 Mich. 304; compare Aldrich v. Grimes, 10 N. H. 194, 198; Counts v. Bates, Harp. L. 464. And there is no distinction, in this respect, between personal and real property. A sale and conveyance of real estate purchased during infancy' is an affirm- ance of the contract of purchase: Hubbard v. Cummings, 1 Me. 11; Dana v. Coombs, 6 Me. 89; 19 Am. Dec. 194; Lynde v. Budd, 2 Paige, 191; 21 Am. Dec. 84: Henry v. Root, 33 N. Y. 526; WaM v. "irers, 43 N. Y. 23, 26; 3 Am. Rep. 654, 655; Williams v. Mabee, 7 N. J. J, ^ 500; Middle ton v. Hoge, 5 Bush, 478; Johnston v. Furnier, 69 Pa. St. 449; Thomas v. Pullis, 56 Mo. 211, 219; Uecher v. Koehn, 21 Neb. 559; 59 Am. Rep. 849; Buchanan v. Hub- April, 1890.] Craig v. Van Bebbeb. 719 bajd, 119 Ind. 187. But if an infant purcliases real estate, and agrees as part of the consideration to pay off a mortgage thereon, and sulsequently, but before she comes of age, conveys the land to another, the retention of the fruits of the sale after she attains her majority is not an affirmance of her agreement to pay ofiF the mortgage: Walsh v. Powers, 43 N. Y. 23; 3 Am. Rep. C54; see also Garrell v. Potter, 23 Mich. 377; and where an administra- tor, who had sold the land of an infant witliout authority, other than the latter 's consent, invested part of the purchase-money in another tract of land, which he conveyed to the infant, and the infant, on arriving at age, re- pudiated the sale by the administrator, and afterwards conveyed the land purchased with the proceeds of that sale, at the direction of the administra- tor, without in any way profiting thereby, it was held that this did not operate as a ratification of the sale by the administrator: Davidson v. Young, 38 111. 145. Ratification by Various Miscellaneous Acts. — There are a number of cases of a miscellaneous character concerning what acts or conduct will amount to a ratification, which remain to be noticed. An infant, it is held, confirms a purchase of land made by him, the title to which was taken in his mother's name, by executing and recording an instrument, after attaining his majority, by which he proclaimed his mother to be the true and only owner of the land, and declared himself to be her agent, manager, and co-occu- pant only, and by his continued use of the land as her property, held for his benefit: Middle ton v. Hoge, 5 Bush, 478. A lease by an infant lessor is con- firmed by him, where he, after reaching full age, gives a receipt to the lessee for an instnllment of rent, and indorses on the lease a confirmation thereof: Slalor V. IVimble, 14 Ir. C. L. 342. And a ward affirms a contract with his guardian during infancy by executing, after majority, a receipt to the guardian for the property received under the contract: Clai-k v. Van Court, 100 Ind. 113; 50 Am. Rep. 774. Where a minor executes a deed of convey- ance, and, on arriving at age, executes, jointly with the grantee, a mortgage of the same premises to secure a debt of the grantee, this is an affirmance of the deed, the mortgage being executed in conjunction with the grantee at his instance and for his benefit: Waikins v. Wassell, 15 Ark. 73; and where an infant mortgagor, after coming of age, takes no steps to disaffirm the mortgage, but procures releases of portions of the premises from the mort- gagee, "such conduct was utterly inconsistent with the claim that the mortgage was invalid, and was a distinct recognition of its vaAkVity ": Wilson V. Ddrragh, 28 N. Y. St. Rep. 390; and also, wliere an infant, having come of age, and entered into partnership with third persons, took a lease for his firm of a part of certain property, which he had conveyed during infancy, from the person to whom he had made the conveyance, the lease is proper to go the jury, in an action by the infant to recover other parts of the land con- veyed, to show an affirmance of his deed for the whole; and with such evi- dence before the jury, the court rightfully refused to charge that the evidence showeil no affirmance: Irvine v. Irvine, 9 Wall. 017. A redelivery of a deed or mortgage by an infant, after coming of age, amounts to a ratification of the instrument: Doridson v. Young, 3S 111. 145, 153; Palmer v. Milter, 25 Barb. 39'J; and see Den ex dem. Murray v. Shanklin, 4 Dev. & B. 2S9. An infant, after coming of age, ratifies an award made upon a submission by his guanlian that the ward and infant heir shall pay an annuity to the widow in lieu of dower, where he pays part of the money then due, promises to pay the rest of that installment, and says that he had lodged property in his brother's hands to meet an annual payment: Barnahy v. Barnaby, 1 Pick. 720 Craig v. Van Bebber. [Missouri, 221. If an infant partner, after attaining full age, transacts the business of the firm, receives its mone3's, and pays its debts, these acts, unexplained, amount to a confirmation of the ])artnership, and make him liable for a debt of the firm contracted during his infancy: Miller v. Sims, 2 Hill (S. C.) 479; compare Crabtree v. May, 1 B. Mon. 289. An infant ratifies a contract of service by continuing in the service, without objection, after coming of age: Forsyth v. Hastings, 27 Vt. 646; Spicer v. Earl, 41 Mich. 191; 32 Am. Rep. 152, 155; Cornwall Y. HawJcim, 41 L. J. (Jh. 435; 26 L. T. 607; 20 Week. Rep. 653. Torts of Infants Connected with Contracts. — The liability of infants for torts connected with their contracts, as well as for torts in general, will be found discussed in the note to Uumph-ey v. Douglass, 33 Am. Dec. 180; and what will now be said concerning the subject will be somewhat in the nature of a supplement to that note. The general rule is elementary, as there said, that infants are liable for their torts; while, as has been seen, they are not liable, with certain excep- tions, for the violation of their contracts. Even the contract of an infant made in settlement of his tort, it is held, stands on no privileged footing, but is voidable by him: Shaw v. Coffin, 58 Me. 254, 256; 4 Am. Rep. 290; Hanka v. Deal, 3 McCord, 257. "It must require," says the court in the last case, "at least as much capacity and discretion to contract about a tort as about the ordinary concerns of life." But the contrary, with much reason, has been held: Ray v. Tuhbs, 50 Vt. 688; 28 Am. Rep. 519. If the tort of an infant is connected with his contract, it is a question of considerable dispute whether he should be held responsible because he is liable for his torts, or whether he may escape responsibility because he is not liable on his contracts. " Two principles," says Chalmers, J., in Ferguson v. Bobo, 54 Miss. 121, 127, " equally ancient and equally well settled with respect to the contracts and liabilities of infants, and which, as abstractly stated, seem not antagonistic, have been found in practice to produce two conflicting lines of decision, which it is difficult to reconcile; or rather, it is difficult to determine satisfactorily where one ends and the other begins: 1. The contracts of infants, except for necessaries with which they have not been supplied by their guardians, impose no liability upon them which is not voidable at their election. 2. Infancy is a shield, and not a sword, and cannot be set up to defeat lial)ility for torts, trespasses, or frauds." To give to each of these principles its appropriate force, and to prevent one from trenching upon the other is some- times a difficult matter. It has been seen that a minor is not estopped at law from setting up his infancy as a defense to an action upon his contract from the fact that he fraudulently represented himself to be of full age at the time the contract was entered into, or made any other false representations, whereby he induced the other contracting jjarty to give him credit. In other words, his false representations as to his age, means of payment, and the like, will not render a contract, procured on their faith, binding upon him at law. He may, how- ever, be estopped in equity, under such circumstances, from avoiding his contract on the ground of infancy. See ante, title " Infant's Concealment or Misrepresentation as to Age, etc." It is an entirely different question where an action is brought against the infant, not upon the contract, but sounding in tort, to recover damages for the fraud: See the observations of Chief Jus- tice Parker in Burley v. Paissell, 10 N. H. 184; 34 Am. Dec. 146. The rule is said to be general, that where the substantial ground of action is contract, a party cannot, by declaring in tort, render the infant liable, when he would April, 1890.] Craig v. Van Bebber. 721 not have been liable on the cont act. And it has been maintained that an infant is consequently not liable in an action, which would be, at common law, an action on the case, to recover damages for falsely representing him- self to be of full age, whereby the plaintiff was induced to enter into a con- tract with him, which he failed or refused to perform: Johnson v. Pie, 1 Lev. 169; 1 Keb. 905, 913; 1 Sid. 258; Price v. Heivett, 8 Ex. 146, 148; Bartleit V. Wells, 1 Best & S. 836; Brown v. McCune, 5 Sand. 224, 229; Nash v. Jewett, 61 Vt. 501; and see Jfe^-nam v. Cunninyham, 11 Cush. 40; Brown v. Dunham, 1 Root, 272. "While it is true, as a general proposition of law," says the court in Nash v. Jewett, 61 Vt. 501, " that infants are liable for their torts, yet the form of action does not determine their liability, and they can- not be made liable when the cause of action arises from a contract, although the form is ex delicto. " For the same reason, it has also been held that infancy is a bar to an action of deceit against a vendor for fraudulently selling property as his own, when it belonged to another: Grove v. Neville, 1 Keb. 778; Doran v. Smith, 49 Vt. 353; Chief Justice Pierpont saying in the latter case: "The representations alleged in the declaration are of the same character and stand upon the same principles as representations as to the quality of the property, — they enter into and constitute an element of the contract itself; it is that that makes them actionable. The contract must be alleged and proved, or there can be no reeovery. The contract is the basis of the action; the fraud is predicated upon the contract." And it has likewise been held, as intimated in the last quotation, that infancy is a good defense to an action to recover damages for a fraudulent warranty, representation, or concealment, on the sale of a chattel, as to its condition or quality: Ch-een v. Oreenbank, 2 Marsh. 485; West v. Moore^ 14 Vt. 447; 39 Am. Dec. 235; Gilson V. Spear, 38 Vt. 311; 88 Am. Dec. 659; Prescott v. Norris, 32 N. H. 101; Hewitt v, Warren, 10 Hun, 560; and we should say that this would be particularly true where the action, founded upon a false warranty, is, in form, ex contractu; as where the breach of warranty is pleaded as an offset to an action by the infant on promissory notes: Morrill v. Aden, 19 Vt. .505. "An infant," says the court in Gilson v. Spear, 38 Vt. 311, 88 Am. Dec. 659, "is liable in an action ex delicto for an actual and willful fraud only in cases in which the form of action does not suppose that a contract has ex- isted; but where the gravamen of the fraud consists in a transaction which really originated in contract, the plea of infancy is a good defense." And in Prescott V. Norrin, 32 N. H. 101, Chief Justice Perley observes: "If the tort or fraud of an infant arises from a breach of contract, although he may have •been guilty of false representations or concealments respecting the subject- matter of the contract, he cannot be charged for a breach of his promise by changing the form of the action. In this case, the claim of the plaintiffs arises out of representations made on the sale, which were substantially part of the contract of sale. And false representations made by an infant at the time of his contract are regarded as so far part of it that he may set up his infancy as a defense. But if the tort is subsequent to the contract, and not a mere breach of it, but a distinct, willful, and positive wrong of itself, then, although it may be connected with a contract, the infant ia liable." On the other hand, Johnson v. Pie, 1 Lev. 169, 1 Keb. 905, 913, 1 Sid. 258, which is the pioneer case on this subject, has been disapproved by some authori-, ties in this country; and it has been held that where an infant obtains property on the faith of his fraudulent representations that he is of full age, an action Am. St. Kei'., Vol. XVIII. — 46 722 CRAia V. Van Bebbeb. [Missouri, for the damages thereby sustained can be maintained against him: Fitts v. Hall, 9 N. H. 441; Echtein v. Frank, 1 Daly, 334; Bice v. Boyer, 108 Ind. 472; 58 Am. Rep. 53; and see Carpenter v. Carpenter, 45 Ind. 142; Ferguson v. Bobo, 54 Miss. 127 131; Teagerv. Knight, 60 Miss. 730. Chief Justice Parker, in Fitts V. Hall, 9 N. H. 441, says that such a representation was not a part of the contract, nor did it grow out of it, or in any way result from it. The dis- tinction is a fine one, and does not seem to be fully appreciated by some of the later cases which reach the same end. The rule is eminently an equitable one, and although its foundation is somewhat shadowy, there is an inclination to sustain it as correct, and to hold it distinguishable from tho cases where an infant fraudulently sells property as his own, or makes a fraudulent warranty as to its soundness or quality. In Word v. Vance, 1 Nott & McC. 197, it was even held that an action of deceit would lie against an infant for falsely warranting a horse, exchanged with the plaintiff, to be sound; but the case stands alone in this ruling. In Wallace v. Movss, 5 Hill, 391, it was held that an infant who fraudulently obtains goods on credit, with an intention not to pay for them, was liable in tort to the party injured. The kind of action in tort does not appear, nor is any reason given for the decision; but it might be suggested in explanation that the defrauded party could have himself rescinded the sale under such circumstances, and have maintained trover or replevin. See also Ashlock v. Vivell, 29 111. App. 388. It is also true that if goods are sold to a minor for cash, and he fraudulently obtains possession of them without paying the cash, his infancy will not shield him from liability in an action on the case or in trover: Mathews v. Cowan, 59 111. 341; the fraud is really independent of the contract. It has been further held that an infant who is arrested for fraud in obtaining goods cannot be discharged from arrest on the ground that he is an infant: Schuiiemanr^v. Paradise, 46 How. Pr. 426; and that a minor may be prosecuted criminally for obtaining goods under false pre- tenses, although he might not be liable civilly for the particular fraud com- mitted: People V. Kendall, 25 Wend. 399; 37 Am. Dec. 240. It should also be noted that if an in.ant avoids his contract for the purchase of property, whether the contract was induced by fraud or not, the contract being thereby rescinded on both sides, the vendor may maintain an action against the infant to recover the property if it be still in his possession, or damages for its conversion if he still has it at the time of avoidance of the contract, although, we should say, he should thereafter consume, destroy, or in any manner dispose of it: See the authorities cited supr%, title " Adult's Riglit to Recover back Consideration from Infant on Disaffirmance.' ' Again, while an infant who hires a chattel is net lia.de for any non-f-^as- ance, or want of or failure to use care and skdl, so long as he keeps within the terms of the bailment, yet if he departs from the object of the bailment, and uses the article for a dilferent purpose than that for n hich it was hired, he is liable as for a conversion, and if he inj'ires the chattel by any willful and positive act, he is responsible in damages for the injury: Burnard v. Haggis, 14 Com. B., N. S., 45; Walley v. Holt, 35 L. T. 631; Homer v. Timing, 3 Pick. 492; Green v. Sperry, 16 Vt. 390; 42 Am. Dec. 519; Towne v. Wiley, 23 Vt. 355; 56 Am. Dec. 85; Bay v. Tmbs, 50 Vt. 683; 28 Am. Rep. 519; Eaton v. Hill, 50 X. H. 235; 9 Am. Rep. 189; Campbell v. Stake.% 2 Wend. 137; 19 Am. Dec. 561; Fish v. Ferris, 5 Dner, 49: Moore v. East- man, 1 Hun, 578; 4 Thomp. & C. 37. In Pennsyh ania, it has, however, been denied that if an infant hires a chattel, as a horse, for one purpose, and uses it for another, and it is injured while being so used, trover will lie to Jl April, 1890.] Craiq v. Van Berber. 723 recover damages for the conversion, on the ground that the action "is an attempt to convert a suit, originally in contract, into a constructive tort, so as to charge the infant": Penrose v. Curren, 3 Rawle, 351; 24 Am. Dec. 356; Wilt V. Welsh, 6 Watts, 9. These cases are clearly opposed to the weight of authority; and the same may be said of Jenning'i v. Randall, 8 Term Rep. 335, and Schenk \. Strom/, 4 N. J. L. 87, so far as they hold that an infant is not liable in any form of action for willfully and maliciously injuring an article of personal property hired by him. Some of the decisions denying the infant's liability under the foregoing circumstances seem to do so, to a partial extent at least, on the ground that actions on the case, which were brought against the infants, could not be maintained. And in Campbell v. Stakes, 2 Wend. 137, 19 Am. Dec. 561, it was said: "If tlie infant was liable at all, trespass was thg proper form of action. An action on the case necessarily supposes the defendant to have a right to the possession of the p'-operty under the contract of hiring at the time the injury is committed. Independent of the contract of hiring, the defendant wouhl have no right to the possession, and trespass would be the proper remedy. If the plaintiff declares in case, lie affirms the contract of hiring, and the plea of infancy is a good defense to such an action; for he cannot affirm the contract, and at the same time, by alleging a tortious breach thereof, deprive the defendant of his pl^a of infancy. The cases of Jennings v. Randall, 8 Term Rep. 335, and Green v. Gieenhank, 2 Marsh. 485, were cases of that description. " But this technical view is disregarded by other decisions, and in Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189, it was expressly, and we think correctly, repudiated. It has also been otherwise held that an action of trover may be maintained against an infant for the conversion of goods intrusted to his care: Vas^e v. Smith, 6 Cranch, 220; 1 Am. Lead Cas. *i;37; Pehjne v. SidcVfe, 4 McCord, 387; 17 Am. Dec. 756; so detinue will lie against an infant, where goods were delivered to liim for a special purpose not accomplished: Mills v. Gra- ham, 1 Bos. & P. N. R. 40. Infancy, even, is no bar to an action of trover for specie and bank-bills deposited by the plaintiff with the infant as a stake- holder, pursuant to an illegal contract between tlie plaintiff and a third per- son: Lewis V. Littlcjield, 15 Me. 233; 17 Me. 40. And where a farm was leased to an infant, the lessor reserving the property in the crops as se- curity for the rent, the infancy of the leesee constitutes no defense to an action of trover by the lessor for the con'.ersion of the crops, since the lia- bility of ths lessee did not arise from any breacli of contract, but from an unlawful appropriation to liis own use of the lessor's property: Baxter v. Bush, 29 Vt. 465; 70 Am. Dec. 429. So an infant prevailing on a plea of infancy in an action on a note given by him for a ch.attel which he obtained by fraud is still liable to an action of tort for the conversion of the chattel: Walker v. Davis, 1 Gray, 506; and see supra, "Adult's Right to Recover back Consideration from Infant on Disafhrmance." But where a complaint alleged an agreement between the parties, by which the defendant was to take and sell good.s for the pi lintiff, and account, at certain prices, for all he should sell, and return the goods not sold, and after alleging a demand of the defendant to return the goods, or account for the avails, pursuant to the agreement, alleged as a breach tliat the defendant had neglected and refused to account, but there was no allegation of a conversion, it was held that the action was upon contract, and not for a tort, and that infancy, therefore, con- stituted a good defense: Muwjer v. I/ess, 28 Barb. 75. In an infant has embezzled or tortiously or criminally taken money, or 724 SoEDER V. St. Louis etc. R'y Co. [Missouri, converted into money property acquired in such a manner, he is even liable in an action for money had and received: Briston v. Eastman, 1 Esp. 172; PeakeN. P. 223; Ehucllw. Mnrfm, 32 Vt. 217; Shmo v. Coffin, 58 Me. 254; 4 Am. Rep. 290; and see Peiyne v. SutcVfe, 4 McCord, 387; 17 Am. Dec. 756. " If," says the court in Shatv v. Coffin, 58 Me. 254, 4 Am. Rep. 290, "the minor is liable for his torts, it is immaterial to him in what form of action recompense is sought. If for the purposes of justice the tort may be viraived in the case of an adult, and assumpsit maintained, it can, to accomplish the same great purpose, be eijually well waived as to the minor." SoEDER V. St. Louis, Iron Mountain, and South- ern Railway Company. [100 Missouri, 673.] EVIDENCB THAT DeATH RESULTED FROM DEFECTIVE RaIL, WhAT StTFFI- CIENT TO Go TO JuRY. — In an action against a railway company to recover damages for the death of a brakeman, evidence showing that the deceased was engaged at night in switching cars of the defendant upon a track in which there was a defective rail, in passing over which a car would be jolted; that when last seen he was standing on the top of one of the cars in the discharge of his duties; and that his dead body was found in a condition and at a place consistent with the inference that he had been thrown from the top of the car by the jolting caused by its passing over the defective rail, and run over by the wheels of the car, — is sufficient to authorize the submission of the case to the jury, although no one witnessed the accident. And whether there was a substantial defect in the track caused by the defective rail, and whether the deceased was familiar with the track in question, are questions for the jury, as different conclusions might be drawn from the evidence thereon. Knowledge by Employee of Unsafe Condition of Appliance does not Defeat Recovery when. — The knowledge of a brakeman of the un- safe condition of the railroad track upon which he was killed will not defeat a recovery for his death, if it was not so dangerous as to threaten immediate injury, or if he might have reasonably supposed that he could safely work on it by the use of care and caution. Widow Suing for Death of Husband may Testify as to Number of HEE Infant Children; and it is not such error as will call for a rever- sal to permit her to testify that she has an infant child by a former hus- band, where there is nothing in the amount of the damages assessed to suggest the idea that it ntay have been affected by the fact that she had such child. Action to recover damages. The opinion states the case. B. Pike, for the appellant. A. R. Taylor, for the respondent. Brace, J. This is an action by the widow of "William Soeder for damages for the death of her husband, alleged to CASES IN THE SUPREME COURT NORTH CAROLINA. Alston v. Hawkins. [105 North Carolina, 3.] Pkesumption op Payment Arisinq from Lapse ov Time, or the rebuttal of such presumption, is a question of law, which, when the facts are es- tablished, the court must determine, and not leave to the discretion of the jury. Payment, Presumption op. — When insolvency is relied upon to rebut the presumption of payment arising from lapse of time, the creditor must show that it existed during the entire statutory period next after the maturity of the debt. Patment, Rebutting Presumption of. — Non-residence alone is not suffi- cient to rebut the presumption of payment arising from lapse of time. It is, however, competent, when connected with other circumstances, such as insolvency, as tending to rebut such presumption. Presumption of Payment — Evidence to Rebut. — Where the presump- tion of payment, arising from lapse of time, is the sole ground relied upon by the defendant, the evidence of a witness interested in the result of the action is inadmissible to rebut the presumption; otherwise, if actual payment is relied upon. Suit on a note dated August 4, 1856, on which credit of one hundred dollars was indorsed June 1, 1866. Defendant relied upon the presumption of payment. Plaintiff sought to rebut this presumption by proof of defendant's non-residence since 1857, and also introduced, over objection, the following letter from defendant: — "Caney Post-office, Matagorda Co., Tex., "March 23, 1871. " Dear Charles, — I received your letter last week request- ing me to send you five thousand dollars, which is impossible for me to do. All my crop of last year will not bring more 874 Feb. 1890.] Alston v. Hawkins. 875 than five thousand dollars. I have not paid the thousand dollars I borrowed to send you. I promised to pay it out of last crop, which I will do. I owe other debts, but cannot pay them just now. I have had my property so fixed my cred- itors cannot disturb it; but I will pay every debt I owe in the world, but I must have a little time to do so. When I sell my sugar I will send you all the money I can. I expected to get some money from the bank. The suit has not been decided in the supreme court. I think I will recover half after a while. I have a full supply of hands this year, cultivating all the plantation. Hope to make a good crop this year " Yours truly, James B. Hawkins." The court intimated that there was no evidence to rebut the presumption of payment. Plaintiff then took a nonsuit, and appealed. J. B. Batchelor and John Devereux, Jr., for the appellant. E. C. Smith, for the respondent. Shepherd, J. "The presumption of payment arising from lapse of time under the statute is one which the law itself makes, and it has such an artificial and technical weight that whenever the facts are admitted or established, the court must apply it as an inference or intendment of the law; and 80, too, the question whether that presumption has been re- butted is one of law, which, when the facts are ascertained, the court must determine, and not leave to the discretion of the jury": Rutlin, J., in Grant v. Burgwyn, 84 N. C. 500. It is well settled that when insolvency is relied upon to rebut the presumption, the creditor must show that it existed during the entire statutory period next after the maturity of the debt: Grant v. Burgwyn, 84 N. C. 560; McKinder v. Little- john, 4 Ired. 198; Walker v. Wright, 2 Jones, 156. Applying these principles to the case before us, it is clear that the plaintiff" has failed to rebut the presumption of pay- ment arising from his long inaction. Assuming that the statute did not commence to run until the 1st of January, 1870, we have a period of seventeen years in which the plain- tiff' has made no effort whatever to enforce the payment of his claim. The only evidence as to the insolvency of the defend- ant during all of these years is contained in a letter written by him on ^lurch 28, 1871, and addressed to " Dear Charles." It does not appear that this person is in any way connected with this debt, nor does the letter so identify the indebtedness 876 Alston v. Hawkins. [N. Carolina, therein mentioned with the bond sued upon as to warrant us in holding that it amounts to an acknowledgment. Treating it, however, either as an acknowledgment, or, more properly, as evidence merely of insolvency at its date, there is no testi- mony as to the continuance of such insolvency during the succeeding sixteen years. It needs not the citation of authority to show that this proof is insufficient to repel the presumption of payment. The learned counsel, however, insist that the non-residence of the defendant should have been submitted to the jury. In Kline v. Kline, 20 Pa. St. 503, Woodard, J., in speaking of this position, says that "if it had ever been held to be, it might be doubted whether the rule ought not to be abrogated now, since the facilities of intercommunication have multi- plied so wonderfully in all directions. But such a rule has never been established. The states of this confederacy are not foreign countries in respect to each other. We have a common federative head and a common constitution, which secures to the citizens of each state all the privileges and im- munities of citizens of the several states. The tribunals of Ohio are as open to the citizen of Pennsylvania as his own courts, and if he will not avail himself of his privileges, he may not take advantage of his own inaction to rebut a statu- tory presumption of law." In the cases cited by the plaintiff {Armjield v. Moore, 97 N. C. 34, and Lilly v. Wooley, 94 N. C. 412), there are sug- gestions as to the hardship of requiring a creditor to resort to a distant forum in order to collect his debt; but the statute of presumption was not then under consideration, and the remarks of the justices who delivered the opinions cannot, therefore, be regarded as authority upon the question before OS. Especially is this true when we consider that this court has several times emphatically decided that non-residence alone is not sufficient to rebut the presumption. In Campbell v. Brown, ^6 N. G. 376, '^l Am. Rep. 464, Ruffin, J., in deliver- ing the opinion of the court, said that the presumption of payment is one "that may be rebutted by proof of circum- stances which raise a stronger counter-presumption, and, as was said in McKinder v. Ldttlejohn, 4 Ired. 198, evidence of a change of residence, or even distant residence, may be re- ceived for this purpose in aid of other evidence, such as the insolvency and general destitution of the debtor. But we Feb. 1890.] Alston v. Hawkins. 877 know of no authority proceeding from this or any other court for saying that a mere change of residence is of itself suffi- cient wholly to prevent the presumption which the law, by an intendment of its own, raises from the lapse of the pre- scribed number of years, without something having been done on the part of the creditor to enforce the satisfaction of his demand." Although non-residence is competent, when connected with other circumstances tending to rebut the presumption, we cannot hold that it is sufficient when the only circumstance with which it is to be consideredistheinsolvency of the debtor for only the second year of the statutory period, leaving the preceding year and the succeeding sixteen years wholly un- accounted for. The furthest that the court has ever gone in this direction was in McKinder v. Littlejohn, 4 Ired. 198. There was evidence of the continuous insolvency of the debtor for twenty-five years, with the exception of eighteen months during the first seven or eight years, when it was shown that the defendant had prop- erty. During this time he was a non-resident of this state. The court said -that " the circumstance of distance between the debtor and the creditor might, we think, be left to the jury, with the fact of a continuous insolvency during the residue of the twenty years, as some evidence that the debtor did not pay the debt during that small space of time The distance is material only as preventing the possession of property by the debtor for but a short period from counteracting the effect of insolvency as a circumstance repelling the presumption of payment. For if the debtor, living more than a thousand miles from the creditor, and in a situation between which and the place of the creditor's residence there was but little com- munication, should have had in possession property of value to pay the debt but for a very short time, so that the jury should think the creditor did not know of it, and could not get payment out of that property, it might be regarded as be- ing substantially a continued insolvency, especially where, as here, the debtor seems barely to have had possession of prop- erty without its appearing how he got it and whether he had paid for it." It will be observed how cautious the court is in giving any efficacy to such evidence, even in a case of long and continued insolvency, and the decision is put upon the ground that, owing to the distance, the plaintiffmight not have known of tho possession of property by the defendant. 878 Alston v. Hawkins. [N. Carolina, How different is the case before us. Here, as we have said, the only proof of insolvency are the declarations in the letter of 1871, from which it plainly appears that the debtor is in possession of considerable landed property, on which, he com- plains, there was only raised a crop of five thousand dollars the previous year. He calls it " my property," and frankly admits that he has had it so " fixed " that his creditors cannot disturb it. He has a suit in the supreme court, and thinks that he " will recover half after a while." He has "a full supply of hands " " cultivating all the plantation," and hopes to make a good crop. He is giving his whole attention to it. Surely this does not indicate such poverty as to render it impossible for the defendant to pay, nor are the circumstances of such a nature as to discourage the plaintifi" from a vigorous efi'ort to subject the property to the payment of his claim. In McKinder's case, the testimony, as we have remarked, was considered, because it was improbable that the creditor knew of his debtor possessing property for the short period of eighteen months. In our case, the creditor is actually in- formed by the debtor of his possession of a large property, and of his effort to prevent his creditors from reaching it, thus furnishing to the creditor valuable written testimony which he could use in subjecting the property to the satisfaction of his claim. It would, we think, be stretching the principle of Mc- Kinder v. Littlejohn, 4 Ired. 198, very far, to hold that such testimony is legally sufficient to go to the jury. The plaintiff further contends that the statute does not run during the absence of the debtor from the state, and for this he relies upon Summerlin v. Cowles, 101 N. C. 473. In that case, the late chief justice remarked that while there is no saving clause in the statute of presumption (Rev. Code, c. 65, Bee. 9), "yet when it is adopted as a measure of time in which an action must be brought, it must, by reason of the same an- alogy, be accompanied with the qualification attaching to all limitations, and mentioned in section 9, preceding." This suggestion on the part of the learned chief justice was unne- cessary to the decision of the case, as it will be observed that the defendant relied upon the statute of limitations. This will more particularly appear by an examination of the papers on file in this court. We cannot consider the suggestion as authority, as it is entirely opposed to many cases in which the point was directly presented and distinctly decided to the contrary: Feb. 1890.] Alston v. Hawkins. 879 Headen v. Womacly 88 N. C. 468; IIoucl v. Adams, 98 N. C. 519; Hamlin v. Mehane, 1 Jones Eq. 18; Hodges v. Council^ 86 N. C. 181; Campbell v. Brown, 86 N. C. 376; 41 Am. Rep. 464. His honor was correct in ruling that the testimony of- fered was not legally sufficient to rebut the presumption of payment. We are also of opinion that Dr. Willis Alston was properly excluded as a witness for the plaintiff. He was interested in the result of the action, and falls directly within the inhibi- tion of the code, section 580. It is urged that this section does not apply, because the defendant pleaded both the statute and actual payment. Where actual payment is pleaded and " relied " upon, the statutory prohibition has no application; but merely pleading actual payment does not prevent its operation. Here the defendant offered no testimony what- ever, and " relied " solely on the presumption of payment aris- ing from the lapse of time. It is very plain that our case is not within the exception: Brown v. Cooper, 89 N. C. 238. Upon a review of the whole case, we are unable to find any error. Affirmed. Presumption of Payment from Lapse of Time. — Independently of the Btatute of limitations, the law raises a presumption, in the absence of explan- atory evidence, that a debt which has been due and unclaimed, and without recognition or payment of interest for twenty years, has been paid. This presumption is not conclusive. Still, the burden of proof is thrown on the creditor to show that payment of the debt has not been made: Bentley'a Appeal, 99 Pa. St. 500; PhiWps v. Adams, 78 Ala. 225; Peters Appeal, 106 Pa. St. 340; Lash v. Von Neida, 109 Pa. St. 207; White v. Moore, 23 S. C. 456; Didlake v. Robh, 1 Woods. 680. In Bentlei/-'^ Appeal, 99 Pa. St. 500, the court said: "A debt which has been due and unclaimed, and without recognition for twenty years, in the ab- sence of explanatory evidence, is presumed to have been paid. This pre- sumption, prima facie, obliterates the debt, and the onus of proof is upon the creditor, not to establish a new contract, as in the case where a debt is barred by the statute of limitations, but to show that payment of the debt has not been made." To the same effect, Grefcion of payment arising from the lapse of twenty years, or a shorter period of time, may be rebutted by any evidence which is sufficient to satisfy the minds of the jury that the debt has not in fact been jjaid. An acknowledgment of an existing indebtedness, within the period required to raise the presumption, is sufficient to rebut it. More than twenty years had elapsed after a Ijond became due, a settlement took place between tlie re- spective parties to it, and the ol)ligor then acknowledged the bond to be due and unpaid, — this was considered sufficient to rebut the presumption of pay- ment: Eliy V. Ehy, 5 Pa. St. 435. So an admission that the debt has not been paid, with a positive declaration by the debtor that he does not intend to pay it, rebuts the presumption: Reed v. Reed, 46 Pa. St. 239. And evidence that demand for payment was made where the obligor, in a bond, acknowledged that it was unpaid, and gave some property to be applied in payment, which was entered as a credit on the bond,- is sufficient, with other circum- stances, to rebut the presumption of payment: White v. Beaman, 96 N. C. 122. If the debtor acknowledges a bond as a subsisting obligation within thirteen years after its maturity, the currency of presumption of payment dates only from the acknowledgment: Roberts v. Smith, 21 S. C. 455. So where the mortgagor acknowledged, in writing, that his mortgage, on which nothing had been paid, was still a valid security, such acknowledgment de- stroys the presumption of payment from lapse of time: Murphy v. Coates, 33 N. J. Eq. 424. And again, where judgment is rendered on a claim secured by mortgage of the judgment debtor, and where, in a subsequent action to foreclose the same within fifteen years from the date of the claim, he con- sents to a decree ordering the sale of the mortgaged premises, and that the proceeds may be applied to discharge the amount in the decree found to be due on the claim embraced in such judgment, such consent is an acknowledg- ment of an existing indebtedness upon the judgment, and an action thereon will not be barred until the expiration of fifteen years from the date of the acknowledgment: Bissell v. Jaiidon, 16 Ohio St. 498. Part payment of the debt at any time within the period required to raise the presumption of payment will rebut it; thus payment of interest on a bond by the principal will rebut the presumption of payment as well to the surety as to himself: Dichson v. Gourdin, 26 S. C. 391; 29 S. C. 343. So payment on a bond within the time required to raise the presumption of payment by the assignee in bankruptcy of one of the obligors repels tiie pre- sumption arising from lapse of time: Bdo v. Spach, 85 N. C. 122; Uandiii v. Hamlin, 3 Jones Eq. 191. The presumption of payment arising from lapse of time may also be rebutted by showing the inability of the debtor to pay the debt because of his insolvency during all, or nearly all, the time since the indebtedness be- came due. In Farmers' Bank v. Leonard, 4 Harr. (Del.) 536, this rule was applied to the payment of a judgment, and the court said that " the indigent circumstances of a debtor, his hopeless insolvency and inability to pay his debts, are properly admissible in evidence for the purpose of repelling pre- sumption of payment or satisfaction, arising from lapse of time." To the same effect, McLellan v. Orofton, 6 Me, 307-334. Where the insolvency of the debtor is shown to have existed during the greater portion of tlie time, proof of a short interval of solvency, of which the creditor was ignorant, will not affect the rebuttal of the presumption of payment: McKinder v. Little- john, 4 Ired. 198; 1 Ired. 66. The issuance and return of an execution nulla 888 Alston v. Hawkins. [N. Carolina, bona is a circumstance rebutting the presumption of payment of a judgment from lapse of time: Black v. Carpenter, 3 Baxt. 350. As is sliowQ by the principal case, insolvency of the debtor relied upon to rebut the presumption of payment must be shown in North Carolina to have existed during the entire statutory period: Grant v. Banjwyn, 84 N. C. 560. The insanity of the debtor will rebut the presumption of payment arising from lapse of time: McLellan v. Crofton, 6 Me. 334. So the near relation of the parties may repel the presumption; thus the situation of the parties, the mortgagor having married the daughter of the mortgagee, and had issue, is of itself sufficient to rebut the presumption. In other words, the fact that the parties interested were nearly related, and the collection of the money might have occasioned distress, and even the payment of interest inconve- nience, taken in connection with the fact that part of the money included in the mortgage was an advancement, and not to be repaid, is sufficient to repel the presumption of payment arising from the lapse of twenty years: Wan- malcer v. Van Buskirk, 1 N. J. Eq. 685. The existence of war, preventing the creditor from maintaining suit, will rebut the presumption. Hence if the parties to a bond reside in a country, the condition of which during war is such as to render it highly improbable that debts could or would be collected during that time, it should not be considered as forming part of the time whose lapse gives rise to the presumption of payment: Hale v. Pack, 10 W. Va. 145; Jackson v. Pierce, 10 Johns. 414; Bailey v. Jackson, 16 Johns. 210; 8 Am. Dec. 309; Dunlop y. Ball, 2 Crauch, 184. So the intent or agree- ment of the parties may be shown to rebut the presumption, as where it is proved that by the understanding of the parties by whom a bond was executed that it was not to be paid until a future time, although the bond on its face was payable on demand, the time which elapsed from the giving of the bond to such future tiuie should not be considered as forming ^ny part of the time whose lapse gives rise to the presumption of payment: Hale V. Pack, 10 W. Va. 145. So where a surety on a note against which a presumption of payment from lapse of time was asked during the time to sell his land to another, but replied that he could not, as his creditor, if he did, would push him on his note, which lie had promised not to do during his lifetime, — this will rebut the presumption of payment: Fisher v. Phillips, 4 Baxt. 243. A deed of trust was made and recorded in 1841; afterwards there were repeated sales of the land by the grantor and those claiming un- der him, the purchasers having no actual notice of the deed of trust until 1876; the court ruled that the presumption of payment was rebutted by the circumstances of the case: Bowie v. Poor School Society, 75 Va. 300. The presumption of payment from lapse of time is also treated in the note to Husky V. Maples, 88 Am. Dec. 590. AMERICAN STATE REPORTS. TYLER .'. HERRING. [67 MississirPT, 169.] Sales by trustee. I Oct. 1889.] Tyler v. Herring. 263 the defendant to show that it occurred before it received the goods for transportation. That is the only material question in the case. We think the better reason and policy, and the greater number of cases adjudged, favor the rule to require the car- rier which delivers goods damaged, and which are shown to have started on their journey over connecting lines of trans- portation in good condition, to exculpate itself from liability by showing that the injury did not occur by its default. Affirmed. Carriers — Damaged Freight — Burden of Proof. — The presumption arises that perishable goods shipped in good order continue iu that condi- tion when in the hands of a connecting carrier, and the burden of proof is on him to show that they were not in good condition when received by him: Beard v. Illinois C. H'y Co., 79 Iowa, 518; Shrioer v. Sioux City etc. li. R. Co., 24 Minn. 506; 31 Am. Rep. 353. Prima fade, the carrier is liable for goods upon proof of acceptance thereof for carriage, aad of loss or damage thereto while in transportation: Hall v. Chicago etc. R'y Co., 41 Minn. 510; 16 Am. St. Rep. 722. And the burden of proof rests upon the carrier to show the absence of negligence upon its part: Lindnley v. Chicago etc. R'y Co., 36 Minn. 539; 1 Am. St. Rep. 692, and note. Tyler v. Herring. [67 Mississippi, 169.J Trustee's Sale Conducted by his Agent — Failure of Trusteb to Takb Possession. — Trustee's Sale is not Rendered Invalid by the fact that the sale was cried by a person selected by the trustee, whose act the trustee afterwards confirmed, nor by the latter's failure to take posses- sion of the land before the sale, though the trust deed declared that upon default the trustee should immediately take possession, and after giving notice, sell the land therein described. Trustee's Sale. — The Performance of the Mere Ministerial Acts of posting the notice and making sale by agents selected by the trustee does not affect the validity of the sale. Trustee's Sale, Presumption in Support of. — The presumption is to be indulged that a trustee did those acts in pais which were conditions precedent to the valid execution of the power of sale. The force of this presumption may be overcome by any competent evidence sufficient to produce an equilibrium, or to leave the preponderance so lightly in favor of the presumption as that the jury do not believe some act to have been done which was essential to the validity of the sale. Evidence. — Tiiustee's Deed Which Recites that the sale had been made after giving notice as required by the deed of trust establishes Tpriina facie that proper notice has been given; but the effect of the deed in this respect may be overcome by any competent evidence which, notwith- standing the deed and its recitals, leaves the jury unable to say that the notices were given. 264 Tyler v. HERRiNa. [Miss. Action of ejectment. The plaintiff's title was dependent upon a sale made by a trustee acting under a deed of trust given to secure a debt due the plaintiff. The trustee was, on account of his illness, unable to attend the sale, and conduct it in person, and therefore directed his brother to make it as his agent. All the acts which the brother did were ratified by the trustee. The trust deed provided that upon default in payment of the debt the trustee should immediately take possession, and after giving notice of sale, sell the land de- scribed in the deed. After the default in the payment of the debt, the trustee demanded possession of the land, but being refused, proceeded to sell without first obtaining such posses- sion. Judgment in favor of the plaintiff. Defendant appealed. Haden and Dodd, for the appellants. Monroe McClurg, and Brame and Alexander, for the appellee. Cooper, J. The sale under the deed of trust was not in- valid either because the trustee did not take possession of the land before the sale, or for the reason that, the trustee being sick, the land was cried off by a person selected by him, whose act he afterwards ratified and approved. The provision of the deed of trust, that "upon default of payment of the debt secured the trustee shall immediately take possession, and having given notice, sell the land con- veyed," etc., was intended to confer upon the trustee the right of possession, but did not make such taking possession a con- dition precedent to the power of sale: Vaughn v. Powell, 65 Miss. 402. The performance of the mere ministerial acts of posting the notices and making the sale by agents selected by the trustee does not affect the validity of the sale: Jones v. Sergeant, 45 Miss. 332. The deed from the trustee to the purchaser, Herring (who was beneficiary in the deed of trust), recites that the sale was made after notice had been given in the manner prescribed by the deed. This was by posting notices in three public places in the county for the period of ten days preceding tlie day of sale. The trustee was introduced as a witness on behalf of plain- tiffs, and on cross-examination stated that he did not person- ally post any one of the notices, and only knows they were posted by what he has been told. Other evidence introduced by plaintiff showed that one of the notices had been posted Oct. 1889.] Tyler v. Herring. 265 for the required time; as to the other two, it appears that the trustee gave them to an agent, and directed liim to post one at Briscoe's mill and the other at Rickett's mill, these being public places within the county. It was then proved by a certain witness that some time before the sale of the property he saw the two notices at the above-named places; but this witness could not remember whether this was ten days before the day of sale. In this condition of the evidence, the court, at the instance of the plaintiff, charged the jury as follows: "The law pre- sumes that the notices were posted as stated in the trustee's deed, and if the defendants deny that they were, they must show to the satisfaction of the jur}"", by the evidence, that they were not so posted." The first instruction for the defendants, which was refused by the court, was this: "The burden of proof is upon the plaintiff to satisfy the minds of the jury by a preponderance of the evidence before them that Monroe McClurg, trustee, posted or had notices posted in three public places in Attala County of the sale of the lands in controversy, and if the jury are not so satisfied, they must find for the defendants." If by the instruction given for the plaintiff it was intended to state that the recitals in the deed of the trustee that the notices had been posted should control until it was shown by positive and direct testimony that they were not so posted, then the instruction was too rigid against the defendants. The presumption is to be indulged that the trustee did those acts in pais, which were conditions precedent to a valid exer- cise of the power of sale, as held in Graham v. Fitts, 53 Miss. 307, and in the absence of any evidence to the contrary, such presumption must prevail. But it is not required of the de- fendant to rebut such presumption by introducing evidence sufficient to show that the notices were not in fact posted. The presumption is not a conclusive one; its force and effect may be impaired by any competent evidence, and when op- posing evidence is introduced sufficient to produce an equilib- rium, or to leave the preponderance so slightly in favor of the presumption arising from the deed as that the jury do not believe the act to have been done, then the defendants are entitled to their verdict. The court, by refusing the instruction asked by the defend- ants, that the burden of proof was upon the plaintiff to establish the fact of posting the notices, imposed upon them, 266 Tyler v. Herring. [Miss. not the burden of meeting a prima facie case made by the plaintiff's evidence, but the burden of producing a clear and sufficient preponderance of evidence on the whole case. The true view is, that the plaintiff begins and ends with the bur- den of proof. Introducing the trustee's deed, he makes a prima facie case; it then devolves upon the defendant to meet the case thus made, failing in which the plaintiff is entitled to recover. But the defendant meets the case made by the plaintifif when his evidence equals in value and weight that of the plaintiff, or so nearly does so as to leave the plaintiff's evidence insufficient to establish the fact it was introduced to prove. In the case before us, if the jury, on the whole evidence, believed the notices to have been given as required by the deed of trust, the plaintiff was entitled to a verdict; if, on the other hand, on the whole evidence, they were unable to say that the notices were so posted, then the plaintiff failed to make out his case, and the verdict should have been for the defendant. The judgment is reversed and cause remanded. Sales and Conveyances by Trustees. — We propose in this note to treat of sales and conveyances by trustees, and the circumstances under which Buch sales and conveyances will be adjudged either void or voidable. In some instances, property, whether real or personal, is held in trust without the instrument vesting title in the trustee, indicating that it is so held. When such is the case, the trustee, while dealing with persons who have no notice of the trust, has the same power as if he were the holder of the equi- table as well as of the legal title. In other words, a purchaser from him in good faith and without notice of the trust obtains the title of the trustee, and holds it discharged of the trust, and free from all obligation to account to the beneficiary: Crocker v. Crocker, 31 N. Y. 507; 88 Am. Dec. 291; Wyse V. Dandridge, 35 Miss. 672; 72 Am. Dec. 149; Prevo v. Walters, 5 111. 35; Christmas v. Miihell, 3 Ired. Eq. 535; Thompson v. Gdliland, Addis. 296; Bracken v. Miller, 4 Watts & S. 102; Hudnal v. Wilder, 4 McCord, 294; 17 Am. Dec. 744; Henderson v. Dodd, 1 Bail. Eq. 138; Ex parte Williama, 18 S. C. 209; Perry on Trusts, sec. 218. To entitle a purchaser from a trustee to hold the property discharged from the trust, it is, of course, necessary that he be an innocent purchaser in good faith. We shall not stop to consider at length who is such a purchaser. It suflBces our present purpose to state that he must be a purchaser for a valu- able consideration, and such consideration must have been paid and a con- veyance of the legal title tciken before receiving notice of the trust: Paul v. Fulton, 25 Mo. 156; Freeman on Executions, sec. 141; Perry on Trusts, sec. 221. Notice of a trust will be imputed to a purchaser when there is any declaration or recital in the deeds through which he must deraign title, either asserting the existence of the trust, or sufiBcient to incite inquiry in a man of common prudence, where such inquiry, if pursued, would have re- Oct. 1889.] Tyler v. Herring. 267 vealed the existence of the trust: Brannon v. May, 42 Ind. 92; Howard Ins. Co. V. Halsey, 8 N. Y. 271; 59 Am. Dec. 478; Perry on Trusts, sees. 222-224; Wilson V. McCullouijh, 23 Pa. St. 440; 62 Am. Dec. 347; note to Oah v. Men- sing, 64 Am. Dec. 201. Notice of a trust is not, however, confined to the re- citals in the deeds through which the trustee acquires title. It may he acquired in any of the various modes by which notice may be given in other cases, and if a beneficiary under the trust, or his agents or lessees, are in possession, that fact is sufficient to put an intending purchaser on inquiry, and to charge him with notice of the trust, if no inquiry is made: Pritchard V. Brown, 4 N. H. 397; 17 Am. Dec. 434; Pell v. McElroy, 36Cal. 268; Perry on Trusts, sec. 223. Contra, Scott v. QalUvjher, 14 Serg. & R. 333; 16 Am. Dec. 508. If the grantee of a trustee is not a purchaser for a valuable consideration, or if, being a purchaser for a valuable consideration, he purchased with notice of the trust, actual or implied, unless the sale or transfer to him was authorized, he, if he acquires any title whatever, merely takes the place of his grantor, and becomes chargeable with the execution of the trust to the same extent that such grantor was chargeable before such transfer: Eyan v. Doyle, 31 Iowa, 53; Steioart v. Chadwlk, 8 Iowa, 463; Jones v. Shaddock, 41 Ala. 262; Webster V. French, 11 111. 254; Hagthorp v. Hook, 1 Gill & J. 270; Murray v. Ballvu, 1 Johns. Ch. 566; Shepherd v. McErers, 4 Johns. Ch. 136; Pinsonv. hey, 1 Yerg. 296; Heth v. Richmond etc. R. B. Co., 4 Gratt. 482; 50 Am. Dec. 88; Lincoln v. Purcell, 2 Head, 143; 73 Am. Dec. 196; Tohin v. Helm, 4 J. J. Marsh. 288; and he may also be held jointly liable with the original trustee for the breach of the trust: Barksdale v. Finney, 14 Gratt. 338. Where the rules of a law upon the subject have not been modified by stat- ute, all conveyances by a trustee, whether to an innocent purchaser or not, and whether in contravention of the trust or not, operate upon the legal title and vest it in the grantee. This conclusion necessarily followed from the re- fusal of the common law to recognize trusts or equitable titles, forunless such trusts or titles were to be considered, there was no reason why the trustee should not convey to whomsoever he pleased. His conveyance was therefore valid at law, and the rights of the beneficiary could be protected only by his seeking redress in equity and compelling the grantee to respect and to execute the trust, as the original trustee should have done: Oale v. Mensing, 20 Mo. 461; 64 Am. Dec. 197, and note; Taylor v. King, 6 Munf. 368; 8 Am. Dec. 746; Koester v. Burke, 81 111. 436; Wilson v. South Park Commissioners, 70 111. 46; Walton V. Follanshee, 131 111. 147; Bank of U. S. v. Benning, 4 Cranch C. C. 81; DVyley v. Loveland, 1 Strob. 45; Beece v. Allen, 5Gilm. 236; 48 Am. Dec. 336; Rowe v. Beckett, 30 Ind. 154. An exception to this rule exists in Penn- sylvania, probably having its origin in the blending, in that state, of the sys- tems of law and equity. It is, in the opinion of the courts of that state, tho duty of the grantee of property which is subject to a trust to reconvey to the original trustee; and they will presume that he has performed this duty, and by this presumption in effect annul the conveyance made to him by the origi- nal trustee, if in violation of the trust: Ri/e v. Oeyer, 59 Pa. St. 393; 98 Am. Dec. 352. In California, also, it was determined that under a deed to a trustee giving him authority to sell his estate upon the approval of the- grantor that it was incumbent upon one claiming under a conveyance from the trustee to show that such conveyance was made with the assent of the trustor, and that in the absence of such assent the conveyance must be treated as inoperative: Sprague v. Edwards, 48 Cal. 239. The disposition of the case before the court was doubtless correct, owing to the provision of the 268 Tyler t;. Herring. [Miss. statute of that state to be mentioned in a subsequent paragraph; but the ac- tion of the court was taken in apparent obliviousness of the statute, and was professelly based upon authorities whose pertinency to the subject under con- sideration we are unable to perceive. A trust estate may be vested in two or more trustees, and a conveyance may be made by one or by some number less than the whole of the trustees. In England the opinion seems to be entertained that, though the conveyance is in contravention of the trust, and the signatures of the co-trustees and of the cestui que trust, whose assent is requisite to a sale, are all forged, still that such conveyance transfers the legal estate of the trustee who executed it: Boursot V. Savage, L. R. 2 Eq. 134. The decisions in the United States pro- ceed upon the theory that the estate of trustees, being given to them to accomplish the purposes of a trust, must be regarded as an insev- erable unit, and a conveyance by either trustee without the concurrence of the others as absolutely void: Sinclair v. Jackson, 8 Cow. 553-5S3; Learned v. Wellon, 40 Cal. 349; Ridgeley v. Johnson, 11 Barb. 527; Wilbur v. Almy, 12 How. 180. The statutes of New York, Michigan, Wisconsin, Minnesota, Kansas, Cali- fornia, and Dakota declare that when a trust in relation to real property is expressed in the instrument creating the estate, every transfer or other act of the trustees, in contravention of the trust, is absolutely void: Cal. Civ. Code, sec. 870; Stimson's American Statute Law, sec. 1725. It is somewhat singular that these statutes have escaped judicial interpretation except in the first-named state, while in that state they have been quite frequently considered by its courts. The doubts most likely to arise concerning the signification of these statutes are, first, do they mean that inhibited convey- ances shall be deemed void in law as well as in equity ? and second, if void both at law and in equity, are they also void when, upon their face, they appear to be made pursuant to the authority conferred on the trustee ? And the fact of their being in contravention of the trust must be established by extrinsic evidence; and knowledge of this fact cannot be brought home to the grantee or his successors in interest. With respect to the first question, there appears to be no doubt that an inhibited conveyance is void at law; that the legal as well as the equitable title remains in the trustee; and he may main- tain an action to recover the property, or may exercise any other power, or perform any other duty, as if such conveyance had not been executed: Zim- Tnerman v. KinUc, 108 N. Y. 282; Russell v. Russell, 36 N. Y. 581; Fitzgerald V. Topping, 48 N. Y. 438; Wetmore v. Porter, 92 N. Y. 76. By these statutes the trust estate is made inalienable and indestructible, except by transfers not in contravention of the trust, and the courts have no power to authorize an inhibited convej'ance to be made: Douglas v. Cruger, 80 N. Y. 15; Cruger V. Jones, 18 Barb. 467. Nor can validity be imparted to a conveyance in contravention of a trust by the fact that it appears on its face to be made pursuant to the trust, and the persons claiming under it have no notice that the facts asserted in it did not exist. The presence of the facts authorizing a conveyance are regarded as conditions precedent to the exercise of the power to convey; and in their absence the power does not exist, and the conveyance is as if a stranger to the title had made it: Grixwokl v. Perry, 7 Lans. 105; Sivarthout v. Curtis, 5 N. Y. 301 ; 55 Am. Dec. 345. The leading case upon this topic is that of Briggs v. Davis, 20 N. Y. 15, 75 Am. Dec. 363, the facts of which were as follows: One Masten, being the owner of property, executed a conveyance thereof to three persons, in trust to sell the same for the benefit of his creditors. The trustees subsequently executed a reconveyance to the Oct. 1889.] Tyler v. Herring. 269 grantor, of property which had not been disposed of by thein, and in their reconveyance recited that the object of the trust had been accomplished. Masten, to whom this reconveyance was made, thereafter executed a mort- gage to one who had no notice that the trust had not been fully executed, as recited in the reconveyance. An action was afterwards brought in the inter- est of creditors of Masten, who claimed that the debts due to them from him had not been paid at the time of the reconveyance; that such reconveyance was in contravention of the trust; and they therefore asked that the mortgage made by Masten be set aside and canceled. In affirming a judgment granting the relief prayed for, canceling the mortgage and enjoining its foreclosure, the court of appeals said: "A party about to take a title under such a recon- veyance, with a knowledge of the terms of the trust, would know tliat it was an essential prerequisite to the validity of the deed that the trusts should have been actually performed. Tliere is no principle wliich substitutes the decla- ration of the trustees, however solemnly made, in place of the fact which could alone authorize them to recouvey. The purchaser, if he would be safe, must not content himself with the recital tliat the trusts have ceased, but must ascertain, at his peril, whether such is the case. The statute avoids all deeds which are, in truth, in contravention of the trust, and there is no ex- ception in favor of such as are fraudulently made to appear in consonance with it by means of untrue statements inserted in them. We have been re- ferred to the statutory provision declaring that the title taken under a trustee authorized to sell is not to be impeached on account of the misapplication of the money paid for such title by the trustees. The convej'ances here upheld are such as are made in fact and in form in pursuance of the trust, and where the only fault is the subsequent misconduct of the trustees in embezzling or misapplying the money; and I conceive that the enactment has no applica- tion to a case like the present.'' After mentioning authorities which in Eng- land maintain that a bona fide purchaser for a valuable consideration, who acquires the legal title, shall be protected against a prior equity, of which he had no notice, the court held that these authorities could have no application because the statute under consideration precludes a grantee of a conveyance made in contravention of a trust from obtaining the legal title, and said that the title did not pass, because the trustees " could not legally make an opera- tive conveyance, except in the execution of the trust, and the deed to Mastea was not in the execution of the trust, but in disaffirmance of it. It was in hos- tility to it, and if operative, it subverted and put an end to it, though ita objects were not accomplished. It was precisely such a conveyance as the statute referred to by the terms 'convej'ances in contravention of the trust.' The mandate of the statute tliat such conveyances shall be absolutely void forbids us to hold that they shall pass the legal estate which was vested in the trustees, for the purpose of tacking equitable interests to it, or for any other purpose. I repeat, therefore, that this reconveyance, upon the facts which were established on the trial, was inoperative as agr.inst the creditors of Masten, and that they were, notwithstanding, entitled to have the land embraced in it subjected to sale for the payment of their debts." One contemplating a purchase from a trustee nmst, as in other cases, re- member that no grantor can transfer an estate of which he has never been seised: Walton v. Follinshee, 131 111. 147. In determining whether a trustee has an estate, and if so, what is its extent, the same investigation needs to be made and the same rules to be observed as in other cases, except that the estate vested in him may be determined from the general purposes of the trust, though not otherwise specially described or limited in the deed bj 270 Tyler v. Herring. [Miss. which the trust was created. In the absence of any statutory modification of the common law, a conveyance does not vest an estate of inheritance in the grantee, without the use of the word "heirs"; but this rule is not always applicable to conveyances of trustees. If the purposes of the trust are dis- closed by the conveyance, and are such as cannot be accomplished unless the trustee acquires a fee, then an estate in fee vests in him, though the word " heirs " does not appear in the deed: Melick v. Pklcock, 44 N, J. Eq. 525; 6 Am. St. Rep. 901; Cleveland v. HallHt, 6 Cush. 407; Newhall v. Wheeler, 7 Mass. 189; Brooks v. Jones, 11 Met. 191; Gould v. Lamb, 11 Met. 84; 45 Am. Dec. 187; Sears v. Russell, 8 Gray, 86; Fisher v. Fields, 10 Johns. 505; Cham- berlain V. Thompson, 10 Conn. 243; 26 Am. Dec. 390; Villiers v. Villi'-rs, 2 Atk. 72; Morton v. Barrett, 22 Me. 257; 39 Am. Dec. 575. "The extent or quan- tity of the estate taken by the trustee is determined, not by the circumstance that words of inheritance in the trustee are or are not used in the deed or will, but by the intent of the parties. And the intent of the parties is de- termined by the scope and extent of the trust. Therefore, the extent of the legal interest of a trustee in an estate given to him in trust is measured, not by words of inheritance or otherwise, but by the object and extent of the trust upon which the estate is given. On this principle, two rules of con- struction have been adopted by courts: first, wherever a trust is created, a legal estate sufficient for the purpose of the trust shall, if possible, be im- plied in the trustee, whatever may be the limitatioa in the instrument, whether to him and his heirs or not; and second, although a legal estate may be limited to a trustee to the fullest extent, as to him and his heirs, yet it shall not be carried further than the complete execution of the trust neces- sarily requires": Perry on Trusts, sec. 312; Ellia v. Fisher, 3 Sneed, 231: 65 Am. Dec. 52; Neilson v. Lagow, 12 How. 98. Having ascertained that the trustee has such an estate as he is willing to purchase, the next inquiry necessary on the part of an intending purchaser is, whether the trustee has power to sell. This power, we assume, must be found in the instrument vesting the estate in the trustee, or in some other in- strument executed or assented to by him and declaring the purposes of the trust. We have been unable to discover any authority determining whether or not a trustee has power to sell when the trust estate is vested in him without any declaration being anywhere made regarding the extent of his powers or the purposes of the trust. In a case in one of the supreme courts of New York, it appeared that a conveyance had been made to one McLean, "as trustee for the association of the Open Board of Stockbrokers of the city of New York "; that the association was not incorporated, and consisted of about four hundred persons; that McLean, on the day of receiving the deed, conveyed the same property to a corporation known as "The Open Board of Stockbrokers' Building Company of the City of New York "; that a receiver was subsequently appointed for both the corporation and the associa- tion, and was authorized by the court to sell the same property, and on his making the sale, the title was objected to, on the ground that the trust to McLean was not defined, and therefore that it did not appear that he was au- thorized to convey as he had done. The court compelled the purchaser to take the title, saying that the trustee, under the statutes of the state, had power to convey, except in contravention of the trust, and that as there was no suggestion that his conveyance was in contravention of the trust, it must be adjudged to vest a perfect title: People v. Stockbrokers' Building Co., 49 Hun, 349. The circumstances of this case were, however, very peculiar. The receiver who had made the sale represented the trustee's cestui que trust Oct. 1889.] Tyler v. Herrinq. 271 as well as his grantee, and it was certain that the purchaser, whether the conveyance by the trustee was authorized or not, would succeed to a com- plete equity, and that there was no one entitled to assail the conveyance made by the trustee. If it be true when land is vested in one person as the trustee of another, and the purposes of the trust and the powers of the trustees are nowhere stated, that all transfers by the trustee are valid until shown to be in coutravention of the trust, then every transfer by him must be held effective, becaiise, as the trust is not disclosed, it is impossible to show affirmatively that anything whatever is in contravention of it. We apprehend, though we can find no authority upon the subject, that when a couveyance is made to one person as trustee of or for the use of another, unless through the opera- tion of the statute of uses the legal as well as the equitable estate is thereby vested in the beneficiary, the law implies that the trustee shall continue to hold the property for the use and benefit of the beneficiary until ^^he latter or his successor in interest demands a conveyance thereof, and that any con- veyance by the trustee is in contravention of this implied duty, and will therefore be vacated in equity. If there are directions in the instrument creating the trust showing that the property is to be retained until a designated time for the purjpose of division, or of being turned over to some other person, or for any other purpose, the power of the trustee to sell does not exist, though there are other provisions which, if they stood alone, would confer this power. If land is conveyed in trust, first, to pay the debts of the grantor out of the rents and profits, second, for the support of himself, his wife and children, and third, at his death to be divided among his children, the trustee has no power to sell for the payment of the debts of the grantor, nor for any other purpose, however urgent the necessities for such sale may become: Mumhj V. Vnwter, 3 Gratt. 518. If a testator devises property to trustees, with the direction that they manage the same so as to produce income, which shall remain in their hands or under other control and management until the eldest child of his daughter shall arrive at the age of twenty-one years, or shall marry, and shall then divide the original property among the children of such daughter then living, any power to sell inferable h-om the direction to manage the property so as to produce an income is annulled by the directions to divide the original property among the children of his daughter after the oldest becomes of age: Blanton v, Mayes, 58 Tex. 422. So by expressly giving power to sell a portion of the estate devised to trustees, and testator manifests his intention that the like power shall not be exercised over the balance: Anderson v. Anderson, 31 N. J. Eq. 560. On the other hand, it is quite certain that a power of sale need not be conferred on a trustee in direct or express terms, and may be implied from the purposes of the trust. Whenever a trustee is directed to do something, the doing of which cannot be accomplished otherwise than by a sale, then a power to sell is implied. Note to Rankin v. Rankin, 87 Am. Dec. 216; Perry on Trusts, sec. 766; Curlinr] v. Austin, 2 Drew. & S. 129; Eidsforth v. Armste.ad, 2 Kay & J. 333; 25 L. J. Ch. 237; 4 Week. Rep. 279. Thus if a trust contemplates that the trustee will pay the grantor's debts: Blatrh v. Wilder, 1 Atk. 419; ]Yinston v. Jo7ies, 6 Ala. 550; Valieitev. Bennett, 69 111. 632; Barker V. Devonshire, 3 Mer. 310; or will, if necessary, apply the body of the estate for the benefit or support of persons designated: Amesv. Ames, 15 R. I. 12; or will distribute the estate or its proceeds: State v. Cincinnati, 16 Ohio St. 170; a power of sale is implied. It has also been decided that where trustees were directed to divide property equally among seven persons, 272 Tyler v. Herring. [Miss. and the property tp be divided consisted chiefly of a single plantation that the grantor could not have intended that they should undertake to make a partition into seven equal parts, but that the power was best executed by a sale of the property and the division of its proceeds: Winston v. Jones, 6 Ala. 550. In truth, some of the courts have deemed trustees vested with an implied power to sell in instances in v.'hich it is doubtful whether the grantor ever contemplated the existence of such power. Thus in Porter v. SchoJieJd, 55 Mo. 303, the purposes of the trust were to have and to hold real estate forthe purpose of receiving and collecting the rents, issues, and profits, and after paying taxes and necessary expenses of repairing the same, to pay certain mortgages and judgments designated in the deed of trust. The trustee having sold the property for the purpose of realizing moneys with which to pay the indebtedness described in the deed of trust, the validity of the sale was affirmed, and the opinion of the supreme court expressing its views upon the subject was stated as follows: " The language of the deed does not, in express words, create the power to sell for the payment of the debts, but it is manifestly implied from the fact that the debts were charged upon the land, and the trustee was directed to pay them out of the rents and profits. As the rents and profits were wholly insufficient for that purpose, they must be looked upon only as one means of payment, and not as the only means. The property itself being bound for the debts, an implied power exists in the trustee to make the sale for that purpose, without resorting to the tedious and expensive process of a suit in chancery." In the United States, the rule generally prevailing is, that the mere charge of the debts of a testator upon his lands by his will does not vest his executors with an implied power of sale. The only effect of this charge is to designate the portion of his property out of which his debts are to be paid. The remedy of his creditors remains, however, to be sought in the courts having jurisdiction of his estate, to which application must be made for the orders of sale requisite to carry out the intentions of the testator: Hill v. Den, 54 Cal. 21 ; Will of Fox, 52 N. Y. 530; 11 Am. Rep. 751; Dunne v. Keeky, 2 Dev. 484; Wells v. Child, 12 Allen, 333; Harrk v. Douglas, 64 III. 466; Cornish v. Wilson, 6 Gill, 315; Clark v. Riddle, 11 Serg. & R. 311. Though the instrument creating the trust does not authorize the sale of the trust property, courts of equity may, upon proper cause shown, and after bringing all of the parties in interest before them, decree a sale. And if the trust is brought before the court by a bill filed for its execution, it is said that the power of the trustee to make a sale is thereby suspended, and that he cannot thereafter sell without the sanction of the court: Perry on Trusts, sees. 764, 770, citing BufJi v. Bush, 2 Duvall, 269; Walker v. Small- wood, Amb. 676; Raymond v. Webb, Lofift. 66; Drayson v. Pocock, 4 Sim. 2S3; Culpepper v. Aston, 2 Ch. Cas. 116; Reesidev. Peter, 35 ]\Id. 222. Though the instrument creating the trust may not have authorized the trustee to sell the trust property, such authorization may have been at- tempted by the legislature. There is a very great difi'erence between the authority of the legislature over the estate of a trustee and its authority over that of the cestui que trufit. Tlie title of the former is not a beneficial or vested interest. He holds it merely that he may perform duties imposed by the trust, and he can therefore be divested of it without being divested of any valuable or vested right of property. The legislature may therefore author- ize a new trustee to be appointed, and to be invested with the legal title, sub- ject to the trust upon which it was held by the original trustee: Williamson V. Suydam, 6 Wall. 723; Cochran v. Van Surlay, 20 Wend. 365; 32 Am. Dec Oct. 1889.] Tyler v. Herrinq. 273 670. Cesiuis que trust, on the other hand, have a beneficial interest in the Bubject-mater of the trust, which is, in general, no more subject to legislative control than if the legal estate were added to their equitable title, and the two estates united in one person. If the cestuk que trust are minors, or per- sons otherwise not competent to act for themselves, the legislature may, even by a special statute, authorize the sale of the trust property, and the appli- cation of the proceeds to their use and benefit: Clarke v. Van Surlay, 15 Wend. 436; Legoett v. Hunter, 19 N. Y. 445; Cochran v. Van Surlay, 20 Wend. 365; 32 Am. Dec. 570; Williamson v. Berry, 8 How. 495. Ordinarily, the legis- lature has no power to authorize one person to act for another who is com- petent to act for himself; and a special statute is void if it undertakes to authorize a sale of the property of one person by another, where no necessity is shown for such sale, and its object is merely to promote the supposed interest of the owners of the property by changing the form of investment: Shoember- ger v. School Directors, 32 Pa. St. 34; Brevoori v. Grace, 53 N. Y. 245; Bren- ham V. Stoj-y, 39 Cal. 179. It has been determined, in at least one state, that a special statute authorizing a trustee to sell land for the purpose of converting into money and dividing the proceeds among the cesiuis que trust is valid: Kerr v. Kitchen, 17 Pa. St. 433. We think this decision to be unsound in principle, and that the proper rule is, that the legislature has no power, as against the wish of the beneficiaries of a trust, to authorize the trustee to sell the subject-matter of the trust, where such sale is not necessary to accom- plish the purpose of the trust: Powers v. Bergen, 6 N. Y. 358. A power of sale does not authorize a trustee to transfer the title for some other purpose. If his estate is in severalty, it will not justify him in ex- changing the subject of the trust for other lands or property: Ringgold v. Ringgold, 1 Har. & G. 11; 18 Am. Dec. 250; Mauser v. Dix, 8 De Gex, M. & G. 703; Fluke v. Fhike, 16 N. J. Eq. 478; and though he is a tenant in com- mon, his power of sale does not empower him to convert his estate into an estate in severalty by a voluntary partition: Brassey v. Chalmers, 4 De Gex, M. & G. 528; 16 Beav. 223; Bradshaw v. Fane, 3 Drew, 536. Even if he holds property which the instrument creating the trust directs to be divided among certain beneficiaries, the trustee is without power to make the divis- ion: Naglee's Estate, 52 Pa. St. 154. Though a trustee was originally invested with a power to sell, that power may have terminated, and if so, a sale by him is inoperative. We have already stated that the estate of a trustee is to be measured by the purposes and necessities of his trust. " The doctrine is well settled, that whatever the language by which a trust estate is vested in the trustee, its nature and duration are governed by the requirements of the trust. If it requires a fee- simple estate in the trustee, that will be created, though the language be not apt for that purpose. If the language conveys to the trustee and his heirs forever, while the trust requires a more limited estate either in quantity or duration, only the latter will vest ": Young v. Bradley, 101 U. S. 782. It therefore follows that if the purposes of a trust have already been fully accomplished, the trustee can make no further sales or conveyances, because his estate is terminated and he has nothing to sell or convey. In the case last cited, land had been devised to trustees to hold, — 1. For the benefit of testator's widow during her life; 2. To divide the property among certain of his heirs, specified in the will; 3. To hold the shares of his daughters as a protection against their husbands, and for the children of these daugh- ters, until the youngest of such children should attain the age of twenty-one years. After the testator's widow, and all other persons who could possibly Am. ST. Kep.. Vol. XUC— la 274 Tyler v. Herrinq. [Miss. acquire any interest under this will, except the children of his son, had died, the trustee made a conveyance of the trust property, and such conveyance was declared void, because the estate of the trustee had terminated before the conveyance was made. This termination resulted from the fact that the trustee no longer had any duties to perform. He could not hold the prop- erty for the widow, for she was dead, nor to protect it against the daughters husbands, nor for the benefit of the daughters' children, for both the daugh- ters and their children were also dead, nor for the purposes of partition, for all the property had become vested in the children of the testator's son, over whose interest the will gave the trustees no control. If a trust has been created merely for the purpose of securing the pay- ment of a debt, and the power of sale is to be exercised in default of such payment, the weight of authority favors the rule that the continued existence of the debt is essential to the continuation of the power of sale, and that a sale is void if made after the debt has been paid: Penny v. Cook, 19 Iowa, 538; Mills V. Traylor, 30 Tex. 7; Murdoch v. Johnson, 7 Cold. 605; or after a tender of payment has been made: Welch v. Greenalage, 2 Heisk. 209; It is impossible for an intending purchaser to know with certainty whether or not a debt, to secure the paj^ment of which a trust deed has beea given, is fully paid. The application of this rule is attended with occa- sional hardships, but it is difficult to deny that the rule itself follows as an inevitable result of the other rule, that when the purposes of a trust have been fully accomplished the estate of the trustee ceases. The rule is also, in many instances, the logical and necessary result of an- other rule, to the effect that a power to sell upon default in the payment of a debt or other obligation makes such default a condition precedent to the existence of the power, and that the power can never precede the existence of such condition. Nevertheless, there are cases maintaining that a purchaser in good faith cannot be deprived of his purchase by showing that an accounting between the trustee and the debtor would result in the estab- lishment of the fact that the debt had been fully paid: Thompson v, McKay, 41 Cal. 221. The extinction of a debt by payment differs very substantially from the loss, through the operation of the statute of limitations, of legal remedies to enforce it. In the former case the debt no longer remains, while in the lat- ter it continues, though resort to the courts to coerce its payment may be unavailing. If, however, real or personal property has been conveyed to a trustee, and he has been given power to sell it, and to apply tha proceeds of the sale to the payment of a debt, the debt is not obliterated, nor are the trust and its attendant power terminated by the debt becoming barred by lapse of the time within which, under the statute, an action can be main- tained thereon. The trustee may therefore proceed to sell, and no court will restrain the exercise of his power on the ground that the debt is barred: Whitinore v. San Francisco S. U., 50 Cal. 145; Grant v. Burr, 54 Cal. 298. Trust deeds, the sole purpose of which is to secure the payment of a debt due either to the trustee or to some other person designated therein, and •which, therefore, are in most respects substitutes for mortgages, except that they are more harsh and summary in their operation, are sometimes viewed with both legislative and judicial aversion. In a few of the states, sales by trustees acting under powers conferred in deeds are not permitted, and a foreclosure in the courts is necessary: Ingle v. Culhertson, 43 Iowa, 265; Campbell v. Johns/on, 4 Dana, 178; Samuel v. HolUday, I Woolw. 400. But in the absence of any controlling statute, a trust deed differs from X Oct. 1889.] Tyler v. Herring. 275 mortgage in three essential particulars: 1. It vests the legal title in the trus- tee, while in many of the states a mortgage is a mere lien, the legal title remaining in the mortgagor: Balemanv. Burr, 57 Cal. 481; 2. After a sale under and pursuant to a trust deed, the purchaser is immediately vested with a complete title, and the debtor has no opportunity to redeem: Gillespie V. Smith, 29 111. 473; 81 Am. Dec. 328; and 3. There is not only no necessity for a foreclosure, but the remedy by foreclosure does not exist, and therefore cannot be resorted to by the creditor or trustee: Koch v. Brifjga, 14 Cal. 256; 73 Am. Dec. 651; Grant v. Burr, 54 Cal. 298; Bate-nan v. Burr, 57 Cal, 481. If trustees are directed to sell within a time specified, the lapse of that time without their making any sale, where the necessity for the sale con- tinues, appears not to terminate their power of sale. The designation of the time will, in most cases, be treated as directory merely, and a sale after the time named will be held valid: Smith v. Kinney, 33 Tex. 283; Shatter's Ap- peal, 4 Pa. St. 83; Pearce v. Gardiner, 10 Hare, 287; 1 Week. Rep. 98. If, on the other hand, a trustee is directed to sell after a specified time, or upon the happening of a designated event, the power to sell is not in being until the arrival of such time or the happening of such event, and a sale made by its authority is without support: Booraem v. Wells, 19 N. J. Eq. 87; Isham V. Delaware etc. R. R. Co., 11 N. J. Eq. 227. So a power to sell may be made contingent on other facts than the inei-e lapse of time, as where a trustee is authorized to sell only when it becomes necessary to do so to pay certain debts or charges, or to supply certain deficiencies, should such exist. The existence of the debts or charges, or the deficiency to be supplied, is regarded as a condition precedent to the existence of the power of sale: Perry on Trusts, sec. 785. If there are two or more trustees, all must concur in the execution of the trust: Sloov. Law, 3 Blatchf. 459; Lipse v. Sj^ear, 4 Hughes, 535; Naylor v. Goodall, 47 L. J. Ch. 53; 37 L. T. 422; 26 Week. Rep. 162. If one, or any less number than all, undertake to make a conveyance, it is void, and does not even pass the legal title: Ridjelcy \. Johnson, 11 Barb. 527; Ham v. Ham, 58 N. H. 70; Learned v. Welton, 40 Cal. 349; Van Rensselaer v. Akin, 22 Wend. 54i); Sinclair v. Jackson, 8 Cow. 553; WiUmr v. Almy, 12 How. 180. Contra, Perry on Trusts, sec. 334; Boursot v. SntKvje, L. R. 2 Eq. 1.34. The fact that the deed creating the trust names two or more persons as trustees does not necessarily make them such. Some of them may renounce or disclaim the trust. " The person or persons thus renouncing thereaftet stand in the same relation to the estate as though they had never been named as trustees, while those accepting are entitled to the estate in the same manner and to the same extent as though they only had been named in the grant or devise": freeman on Cotenancy and Partition, sec. 45; Zehaclis Lessee V. Smith, 3 Binn. 69; 5 Am. Dec. 352; Niks v. Steimis, 4 Denio, 402; Scull V. Reeves, 3 N. J. Eq. 84; 29 Am. Dec. 694; Flanders v. Clark, 1 Ves. 435; Adams v. Taunton, 5 Madd. 435; Worthimjtonv, Eoam, 1 Sim. & B. 165. Where an estate is granted or devised to two or more, to hold in trust, thert: is no doubt that, at the common law, they take as joint tenants with the benefit of survivorshiiJ, and when one of them dies, that those surviving take the whole estate, and with it the power to execute the trust: Freeman on Cotenancy, sec. 44; Osgood v. Franklin, 2 Johns. Ch. 20; 7 Am. Dec. 513; Peter v. Beverly, 10 Pet. 564; Burr v. Sim, 1 Whart. 266; 29 Am. Dec. 48; Jones v. Pi-ice, 11 Sim. 557; 10 L. J., N. S., Ch. 195; 5 Jur. 719. In the United States, various statutes have been enacted with the design 276 Tyler v. Herring. [Miss. either of destroying estates in joint tenancy, or of limiting them to grants or devises in which it is expressly stated that the grantees or devisees shall hold as joint tenants. Some of these statutes except from their operation the estates of trustees. Independently of any express exception, it has been generally, though not universally, decided that they did not apply to estates held in trust, and therefore that the trustees surviving are always competent to execute the trust: Freeman on Cotenancy, sec. 43; Parsons v. Boyd, 20 Ala. 118; Gmi/ v. Lynch, 8 Gill, 423; PJiiladelphia & R. R. R. Co. v. Lehigh C. & N. Co., 36 Pa. St. 204; Shortz v. Unangst, 3 Watts & S. 45; Steionrt v. Pettus, 10 Mo. 755. Contra, Boston F. Co. v. Condit, 19 N. J. Eq. 398; San- ders's Heirs v. Morrison's Executors, 7 Men. 54; 18 Am. Dec. 161. Of course, the general rule that those who accept a trust or that the survivors of sev- eral trustees may execute it as all tliose originally named might have done, had all qualified or all survived, is inapplicable when the instrument creating the trust shows that in the event of death, resignation, or refusal to act, the vacancy thus occasioned must be filled before any further action is taken; but it has been decided that where surviving trustees have power to fill a vacancy, a sale made by them, without first supplying such vacancy, is valid: Belmont v. O'Brien, 12 N. Y. .S94; Colder v. Bressler, 105 111. 419. Ordinarily, the death of the person who created the trust cannot nffect it in any way. In Virginia, however, where the object of a trust deed is merely to secure the payment of a debt owing from the grantor, it is thought im- proper for the trustee to proceed to sell after the death of the grantor, unless pursuant to an order of court: Spencer v. Lee, 19 W. Va. 179. If a person is styled a trustee, and authorized to sell, but is not vested with the legal title, his power is not coupled with an interest, and does not survive the death of the person for whom he was authorized to act: Gartland v. Dunn, 11 Ark. 720. Where a conveyance, whether in contravention of the trust or not, is deemed valid as a tran-ifer of the legal title, a trustee may doubtless convey by his attorney in fact: May v, Frazee, 4 Litt. 391; 14 Am. Dec. 159; Gil- lespie V. Smith, 29 111. 473; 81 Am. Dec. 328; Connolly v. Belt, 5 Cranch C. C. 405. There is nothing in the mere execution of such a conveyance which requires the exercise of any personal trust or special judgment or discretion, and we see no reason why a conveyance may not be executed by a trustee, acting by his duly authorized agent, as well as in person, provided the gran- tee has at the time an absolute right to the conveyance, which the trustee has no discretion to refuse: Haioley v. James, 5 Paige, 489. If trustees have sold property pursuant to the terms of a trust, and have received the pur- chase price, they have no further right or discretion in the matter, but are under the duty of executing a conveyance sufficient to vest the title in their vendee, and if they fail to do so, a court of equity may compel the perform- ance of their duty in this respect: Saunders v. Schmnelzle, 49 Cal. 59. Whenever a power is given, whether over real or jjersonal estate, and whether coupled with an interest or not, so far as it reposes a personal trust or confidence in the donee of it to exercise his own judgment or discretion, he cannot execute it by another: Note to May v, Frazee, 14 Am. Dec. 170; Saunders v. Webber, 39 Cal. 287. A trustee authorized to sell property under an instrument which does not contain any special directions as to the mode or time of sale must exercise his own judgment in detertnining the time and mode of sale, the notice to be given, the manner of conducting the sale, and whether the amount oflfered shall be accepted or not, or whether or not the sale shall be continued to Oct. 1889.] Tyleb v. Herrixq. 277 some other time or place. He cannot, with respect to any of these matters, delegate the exercise of his judgment or discretion to another: Graham v. Kiiuj, 50 Mo. 22; Howard v. Thornton, 50 Mo. 291; St. Louis v. Priest, 88 Mo. 612. While he may employ agents to a limited extent, their employ- ment should only be in the carrying out of what he has already determined upon. The judgment or discretion used must be his, though in accomplish- ing what his judgment has previously approved he may call others to his aid. If a personal trust or confidence is reposed in two or more as trustees, neither can delegate his part or share of it to the other. Therefore, if one trustee executes a power of attorney, purporting to authorize his co-trustee to sell lands which are subjects of the trust, upon such terms and conditions as he should deem expedient, and the trustee so authorized makes an agree- ment to sell, signed by himself as trustee, and by him as attorney in fact of the other trustee, such agreement is not a due execution of the power to sell vesteil in the trustees, and cannot be enforced: Berger v. Duff, 4 Johns. Ch. 367; Crewe v. Dlcken, 4 Ves. 97. The mere mechanical duties connected with making a sale, such as posting the notices, receiving the bids, and acting as auctioneer, may be performed by agents of the trustee: Gillespie v. Smith, 29 111. 47.3; 81 Am. Dec. 328; Ken- nedy V. Dunn, 58 Cal. 339; Johns v. Sergeant, 45 Miss. 3.'?2; and his agents may make contingent sales, subject to his subsequent ratification: Hawley v. James, 5 Paige, 487. So if the instrument prescribing the duties of the trustees contains directions concerning any act or acts to be done at or before the sale, which are so specific that the trustee has no discretion to exercise with reference to them, but must simply comply with such direc- tions, he may have them complied with by his agent, with like effect as if done by himself: Singleton v. Scott, II Iowa, 589; Pearson v. Jamison, 3 Mc- Lean, 197. There are authorities which support the conclusion that even though the acts done by an agent are such as the trustee had no right to delegate the doing of to another, yet that t!ie trustee may subsequently ratify them by executing conveyances or otherwise, and that thereafter no sufficient cause of complaint against the sale exists. Thus where a trustee had a discretion to exercise in the selection of the day of sale and the paper in which the notice of sale should be published, and another exercised this discretion for him, but he attended and conducted the sale, it was decided that he thereby "adopted the selection made and time fixed, and the case nmst stand as if he had acted from the beginning by himself, instead of through another": Simjleton v. Scott, 11 Iowa, 589. The correctness of this decision is question- able. The better view is one that requires the trustee to exercise in ad- vance this discretion or judgment in tlie performance of the trust confided to him, and does not leave him at liberty to delegate the exercise of such judg- ment and discretion to an agent, with the power to make the acts of the agent valid merely by executing a deed, or otherwise manifesting his assent to what the agent has previously done. Thus it has been held that where a trustee was not present at a .sale, he could not know whether or not it was fairly or fraudulently made, and the sale in his absence was therefore set aside: Taylor v. Uopkins, 40 111. 442. In several other cases a like conclu- sion was reached, that the trustee nmst be present during the entire sale: FtUler V. O'Neal, 69 Tex. 349; 5 Am. St. Rep. 5i»; Sjmrlock v. Sproule, 72 Mo. 503. In declaring invalid a sale made by an auctioneer, when the trus- tee was present just before the sale, and also just after it was completed. 278 Tyler v. Herking. [Miss. but was on the opposite side of the street when it was actually made, the supreme court of Missouri said: "The counsel for the plaintifiF contends, however, that such absence from the place of sale as that testified to by the trustee will not avoid the sale; that he was present at its conclusion to do all that he could have done had he been present at the actual crying of the sale. In this, we think, the learned counsel for the plaintiff is in error. It was the duty of the trustee to be present during the crying of the sale, to observe the progress thereof, protect the interests of the parties concerned, to reject fraudulent bids made to frustrate the sale, and, if necessary, to adjourn the sale: Graham v. King, 50 Mo. 22; Bales v. Perry, 51 Mo. 452; Vail V. Jacobs, 62 Mo. 130; Perry on Trusts, sees. 779, 780; Gray v. Veira, 33 Md. 18. If, however, the auctioneer may lawfully make a sale in the absence of the trustee, and should, during his absence, accept a bid, declare the person making the same to be the purchaser, and by a proper memoran- dum in writing complete the sale, it would be out of the power of the trustee to set such sale aside: White v. Watlcins, 23 Mo. 427. And in this way the trustee might substitute the auctioneer for himself in the exercise of that very discretion which the law declares is a personal trust and cannot be delegated by him. The trustee himself should be present to sanction the acceptance of the bid by the auctioneer before any binding memorandum of the sale is made ": Brickcnkamp v. Bees, 69 Mo. 426. In New York, under a statute which provided that upon default in the payment of certain loans the title to property should vest in the loan commissioners, who should ad- vertise and sell, it was decided that both of the commissioners must be present, and that a sale made by one of them, in the absence of the other, though after due notice, was not a valid execution of their power of sale; that one of the commissioners could not authorize the other to represent or act for him; and that the fact that both commissioners united in a convey- ance purporting to be made in pursuance of the sale could not endow it with validity: Poivellv. Tuttle, 3 N. Y. 396. Whoever acquires title from a trustee when the instrument creating the trust shows the purpose for which the trustee holds the title, and the terms and conditions upon which he is authorized to sell and convey, must take no- tice of such terms and conditions, and can never maintain a claim of title, the maintenance of which is based upon his ignorance thereof. In other words, he is not an innocent purchaser, and his title must fail if it is shown that the contingency upon which the trustee was entitled to sell and convey has never occurred: Hill v. Den, 54 Cal. 21; Huse v. Den, 85 Cal. 399. The creator of a trust, the trustee of which is to have a power of sale, may impose any restraint upon such power which he may consider proper, and unless it is in contravention of law, its observance is essentia] to the valid execution of the power. The restraint may be in regard either to the cause of sale or the proceedings to be pursued when a cause of sale exists. The power to sell may be in abeyance until the happening of some contingency, upon which, and not before, the grantor of the trust has declared it may or shall be exercised. In the absence of the contingency, there is no existing power of sale. Thus a trustee may be given power to sell, subject to the approval of the person who created the trust, or with the assent of the bene- ficiary, or of the tenant for life, or of some other person. If so, the power is not in being in the absence of such approval or assent, and any conveyance which the trustee may make is unwarranted: Sprngue v. Edivards, 48 Cal. 239; Mortlock v. Bidler, 10 Ves. 308; Bateman v. Davis, 3 Madd. 98; Wrighi X. Wakeford, 17 Ves. 454; Rickett's Trust, 1 Johns. & H. 70. Oct. 1889.] Tyler v. Herring. 279 If the written consent of the beneficiary is required hy the deed of trust, it must be obtained before making a sale: Berrien v. Thomas, 65 Ga. 61. But the fact that the cestui que trust joins in a couvej'ance of trust property will not validate a sale made by a trustee before the arrival of the time or the happening of the contingency on which he was authorized to sell: Isham v. Delaware B. R. Co., 11 N. J. Eq. 227. Where the assent of the cestui que trust is necessary, it may be manifested by his joining in the deed made by the trustee: Weltonv. Palmer, 39 Cal. 456; Qindrat v. Montgomery Gas Light Co., 82 Ala. 596. If the person whose assent to a trustee's sale is required dies without giv- ing such assent, the power of sale never can become operative, because the assent cannot be dispensed with: Kissam v. Dierlces, 49 N. Y. 602; Alley v. Lawrence, 12 Gray, 373. If, however, it is clear that a sale at some time is necessary to accomplish the purposes of the trust, as where the trustee is di- rected to sell the trust property and to distribute the proceeds among the testator's children, and the chiUlren of his deceased children, and all the per- sons have died whose assent to the sale was required, a sale by the trustee without such assent is within his power, because the purposes of the creator of the trust will not be permitted to be thwarted and the trust to become un- availing by the accident of the failure of the persons named by him, in their lifetime, to give their assent to the sale of the property: Leeds v. Wakefield, 10 Gray, 514; Sohier v. Williams, 1 Curt. 479. If a time is designated, on the arrival of which the trustees are directed to sell, as where a sale is to be made when a certain beneficiary reaches the age of majority, or on the happening of some other event in his life, a sale in advance of that time is unauthorized: Styer v. Freas, 15 Pa. St. 339; Davis v. Howcote, 1 Dev. & B. 460; Jackson v. Lignan, 3 Leigh, 161; Loomisv. Mc- eiiMock, 10 Watts, 274. If trustees are directed to sell an estate situate a A, and if its proceeds prove insufficient to pay the testator's debts, then to sell his estate at B, it is impossible for them to give good title to the estate at B until the estate at A has been sold, and the fact estaljlished beyond doubt that its proceeds are insufficient to pay the testator's debts: Pierce v. Scott, 1 Younge & C. 257; 4 L. J., N. S. , Ex. Eq. 36. A power to sell after redemption from certain taxes has been made cannot exist before such redemption: Deiinney v. Reynolds, 1 Watts & S. 332. If trustees authorized to sell to raise moneys to discharge obligations of a testator are required, before selling, to make oath of the amount due, this requisition creates a condition precedent, and the power of sale cannot be exercised in its absence: Mason v. Martin, 4 Md. 125. It has been held, in Pennsylvania, that notwithstanding directions given to trus- tees to sell at a particular time, as at the death of a testator's widow, a sale made before that time may be sustained, where it is evident that the object of postponing the time of sale to the period designated was to benefit a partic- ular person, and that person has assented to the sale: Oast v. Porter, 13 Pa. St. 535; Styer v. Freas, 15 Pa. St. 339. With respect to conditions precedent imposed by the creator of a trust, and the happening of which gives rise to a cause of sale, the rule of caveat emptor applies, and the purchaser must therefore ascertain at his peril whether a cause of sale exists or not: Gunnellv. Cockerill, 79 111. 79; Oriswold v. Perry, 7 Lans. 98: ffuntt v. Townseiid, 31 Md. 336; 100 Am. Dec. 63. It may be that trustees are vested by the terms in which the power of sale is expressed with authority to determine whether or not a condition pre- cedent has arisen. If so, their determination is conclusive, unless it can be 280 Tyler v. HERRma. [Miss. shown to have been made in bad faith. Thus if they are to sell when, in their opinion, it becomes necessary to raise funds for a specified purpose, or when they deem it advisable, and in all other cases where it is manifest that they have been given discretion and judgment to be exercised, the purchaser need not stop to inquire whether or not they may have erred in the conclusion which they have reached in exercising it; for the creator of the trust hcts not made its exercise subject to review: Barksdale v. Finney, 14 Gratt. 338; Rendleshanv. Meux, 14 Sim. 249; Bunnerv. Storm, 1 Sand. Ch. 357; Champlin V. Champlin, 3 Edw. Ch. 571; Greer v. McBeth, 12 Rich. Eq. 254. A devise to trustees with full power and authority at any and all times to sell and dispose of the testator's estate or any part thereof, as they shall deem most expedient and for the best interests of all the legatees men- tioned in the testator's last will and testament, does not authorize a con- veyance to be made to one of the legatees of a portion of the real estate of the testator in payment of a debt due to him from such legatee, there being at the time sufficient personal property for the payment of the testator's debts, without calling upon his real estate for that purpose: Russell v. Russell, 36 N. Y. 5S1. Unless it is clear that the trustees have been given power to determine the necessity of a sale, then a sale not needed to accomplish the purposes of a trust, or for a purpose for the accomplishment of which the trustees have not been given power to sell, is invalid. Tlius where an estate was devised to the testator's wife for life, and if not sufficient to support her comfort- ably, then with power to sell any of his estate for that purpose, and she afterwards granted certain premises in fee, it was held that evidence was admissible for the purpose of avoiding this deed; that there was a sufficiency of personal estate for the support of the wi'lo'.v at the time the deed waa executed: Minot v. Prescott, 14 Mass. 495. • Though a cause of sale exists, it may happen that the trustee, in pro- ceedings looking to the making of the sale, fails to conform to the directions contained in the instrument creating the trust. Generally, these directions are also treated as conditions precedent to the proper and valid execution of the power of sale. " Public policy, as well as the stability of rules of prop- erty, demands that sales and titles founded thereon should not be avoided for slight and trivial reasons; but where a power has not been executed in accordance with essential conditions, the sale and deed will be held to be utterly void, both at law and in equity ": Powers v. Kueckhoff, 41 Mo. 4'?5; 97 Am. Dec. 281 ; Eitelrjcorge v. Mutual B. Ass'n, 69 Mo. 55. " The authority to sell being derived from a power, it follows that a pumhaser is bound to look for and to understand the extent of such power; or, as elsewhere ex« pressed, ' taking under the power, he is bound to see that these terms are complied with.' And of course in this, as in all other contracts, the object and design of the parties should be kept strictly in view in ascertaining the nature and extent of the power. The authority and its exercise are matters of contract. In ascertaining whether the authority has been prop- erly exercised or followed, it is not a question of jurisdiction, as in judicial sales, for it is not from the court s, but from the contract or agreement of the parties, that the power is derived": Sears v. Livermore, 17 Iowa, 297; 85 Am. Dec. 564. Hence, in the case last cited, it was held that under a trust deed requiring the notice of sale to be posted on the front door of a certain hotel, a sale made under a notice posted not on, but near such door should be set aside, though it appeared that the proprietor of the hotel would not permit the notice to be posted on the door. If the trustor directed the property to Oct. 1889.] Tyler v. Herring. 281 be sold at public auction, it is not competent for the trustee to establish any other mode, though by so doing he may promote the interests of those for whom he acts: Grefnleafv. Queen, 1 Pet. 138. If a trust deed gives direc- tions concerning the notice of sale, of the mode, place, or length of time of its publication, these directions must be substantially complied with, or the sale will be unauthorized: Thornhttrg v. Jones, 36 Mo. 514; Beeside v. Peter, 33 Md; 129; Young v. Van Benthuysen, 30 Tex'. 762. If the deed authorizes a sale for cash, the trustee cannot sell upon credit; and if he docs so, the sale may be set aside as void: Cassell v. Boas, 33 111. 244; 85 Am. Dec. 270. But a prohibition against sales on credit is not violated by a sale at which the vendee pa3fs partly in cash and partly in notes given to the holders of liens, who accept such notes as cash: Mead v. McLauglilin, 42 Mo. 198. The general statement, which we have frequently made herein, that a sale for a purpose not authorized by the instrument creating the trust is not within the power of sale vested in the trustee, and can therefore derive no support from such power, must not be understood as referring to a secret pur- pose of the trustee, existing either at the time of the sale op subsequently, to betray his trust, and to misapply or convert moneys in his hands, as the result of sales made pursuant to the trust. If the purchaser has notice of or participates in any misapplication of the proceeds of the sale, this fact cer- tainly furnishes sufficient grounds for holding the purcliaser personally liable to the beneficiaries or for the vacation of the sale, and perhaps for declaring it void: Potter v. Gardner, 12 Wheat. 49S; Grimsky v. Grimsley, 79 Ga. 397; Clyde v. Simpson, 4 Ohio St. 445; and such notice may be inferred if the pur- chaser contracts to pay the purchase price in such mode that it may not be applied to the purposes of the trust: Cardwell v. Cheatham, 2 Head, 14; Rabb V. Flenniken, 29 S. C. 278. Indeed, the English, and perhaps the American, decisions make it incumbent upon purchasers from trustees to see to the application of the purchase-money, if the instrument creating the trust shows that the money is to be paid im- mediately over to a certain person or persons, and no investigation or discre- tion is required xipon the part either of the purchaser or of the trustee to ascertain who such person or persons are, or the amount which ought to be paid to each. In such a case, the persons so ascertainable and entitled to immediate payment are regarded as having an equitable title which cannot be divested by the trustee only, and it is the duty of the purchaser to call for their receipts, and failing to do so, their equitable title remains unim- paired until the actual payment to them of their share of the purchaso-money, unless the settlor of the trust has in express terms declared tiiat the receipts of the trustee shall be a sufficient discharge of the purchase-money, or used other words from which the power of the trustees to give receipts must be implied: Forbes v. Peacock, 12 Sim. 52l; Perry on Trusts, sec. 790-793. Where, on the other hand, a purchaser has no guilty knowledge, no notice of any intended wrong-doing on the part of the trustee, and the trustee is not under a duty to make immediate payment of the purchase-money to per- sons designated in the instrument creating the trust, or though, where under such duty, it is necessary for the trustee to make investigations, perhaps to take accounts, before he can determine to whom the money should be paid, then the purchaser is not affected by any misconduct of the trustee after re- ceiving the purchase-money. This rule is equally applicable whether the duty of the trustee is to retain the proceeds of the sale for the use of the beneficiaries, or to reinvest them in other property, or to pay debts or other obligations not specifically enumerated or disclosed in the instrument creat- 282 Tyler v. Herring. [Miss. ing the trust, or to improve other trust property: Keister v. Scott, 61 Md. 570; Paulding v. Marvin, 3 Redf. 365; Hughes v, TaJ)b, 78 Va. 313; John v. Barnes, 21 W. Va. 498; Webb v. Chisolm, 24 S. C. 487; Conovor v. Stothoff, 38 N. J. Eq. 55; Guill v. Northern, 68 Ga. 345; Steele v. Livesay, 11 Gratt. 454; Carrington v. Gaden, 13 Gratt. 587; Roper v. HalUfax, 8 Taunt. 845; Frank- tin Sav. Bank v. Taylor, 131 111. 376; Pennsylvania etc. Ins. Co. v. Austin, 42 Pa. St. 257; .H!ec. 274. A trustee mnst always act impartially, and as far as possible for the advantage of all the parties interested in the sale, and use reasonable efiforts to obtain the best price he can: Livey v. Winston, 30 W. Va. 555; Mnlkr's Adm'r v. Stone, 84 Va. 834; 10 Am. St. Rep. 889. Where the mode and time of his action are not regulated by the instrument creating the trust, all that can be said in the way of prescribing a rule for his govern- ment is, that he shall act in good faith, and adopt those modes of proceeding which will render the sale most beneficial to the debtor, or other persons whose interests are to be affected thereby: Talutn v. HoUiday, 59 Mo. 422; Chesley v. C/wsley, 49 Mo. 540. The duty of a trustee to act impartially between all the parties interested in the execution of the trust, and not to needlessly sacrifice those interests, may often require him to take some affirmative action before proceeding with the sale. If there is any cloud upon the title, or any other existing cause, the operation of which might be such as to prevent competition at the sale, it is his duty, where he can, to proceed to remove such cause, as by application to a court of equity to clear away the cloud from the title, or to remove any other impediment which may exist to a fair and reasonable sale of the prop- erty. "That a trustee is considered as the agent of both parties, and bound to act impartially between them, that it is his duty to use every reasonable effort to sell the estate to the best advantage, and that it is his duty to apply to a court of equity where there is a cloud upon the title, or where there is doubt or uncertainty as to the amount to be raised, or as to prior encum- brances on the trust subject, or where there is a conflict between the credi- tors, or in any case in which the aid of a court of equity is necessary to remove impediments in the way of a fair execution of his trust, are propositions which none will deny, and which have been repeatedly affirmed by this court: 1 Lomax's Digest, 323; Lane v. Tidball, Gilm. 130; Oay v. Hancock, 1 Rand. 72; Miller v. Argyle's Exr, 5 Leigh, 460; Wilkins v. Gordon, 11 Leigh, 547; Miller v. TreviUnn, 2 Rob. (Va.) 1; Bryan v. Stump, 8 Gratt. 241; 56 Am. Dec. 139; Rosett v. Fisher, 11 Gratt. 492; White v. Mechanics' Building Fund Ass'n, 22 Gratt. 233; Shurtz v. Johnson, 28 Gratt. 657; 2 Minor's Institutes, 286; 1 Barb. Ch. Pr. 447. And it is equally well settled that if the trustee fails in any such case to apply to a court of equity, the party injured by his default may do'so. The rule is well stated by Judge Burks in Shultz v. Hnnsbrowjli, 33 Gratt. 567, as follows: 'If a trustee in pais, with power to make sale of real estate for the payment of debts, attempts to make such sale while there is a cloud resting on the title to the property, or there is any doubt or uncer- tainty as to the debts secured or the amounts thereof, or a dispute or con- flict among the creditors as to their respective claims, a court of equity, on a bill filed by the debtor, secured creditor, subsequent encumbrancer, or other person having an interest, will restrain the trustee until these impediments to a fair sale have, by its aid, been removed as far as it is practicable to do Bo'": Muller's Adnir v. Stone, 84 Va. 834; 10 Am. St. Rep. 889; Byan v. Stump, 8 Gratt. 241; 56 Am. Dec. 140. Though it is the duty of the trustee not to sacrifice the property, it does not follow that a sale is either necessarily void or voidable because of the in- adequacy of the price realized. When the trustee is under no immediate necessity of selling, and there is no other object in the sale tlian to exercise his discretion of changing the form of the investment from real estate to personal, the fact that he sold it at a palpably inadequate price would, no doubt, be very persuasive evidence of fraud, such as would induce a court of equity to vacate the sale on prompt application by the parties interested. But there 286 Tyler v. Herring. [Miss. are many cases in which it is the duty of the trustee to make sales for the purpose of discharging the claims of creditors and others who are enti- tled to immediate payment, and where it may be the duty of the trustee to proceed, either at once or with reasonable celerity, although the times and circumstances are not propitious for the sale of the subject-matter of the trust. In such cases, mere inadequacy of price, standing alone, is not a sufficient ground to authorize the vacation of the sale: Carter v. Abshire, 48 Mo. 300; Clark V. St. Louis, Alton, etc. R. R. Co., 58 How. Pr. 21. The rule with respect to vacating trustee's sales for inadequacy of price is very similar to that which the covirts apply to judicial sales, and is substantially as follows: that mere inadequacy alone, unless so gross as to indicate unfairness on the part of the purchaser, or misconduct or fraud on the part of the trustee, does not warrant the vacating of the sale; but where there is a serious inadequacy in the price realized, the court will seize upon any incident of surprise, undue advantage, irregularity, or other equitable circumstance to grant relief: Warefield v. Ross, 38 Md. 85; Horsey v. Hough, 38 Md. 130; Meath v. Porter, 9 Heisk. 224. If the property to be sold consists of two or more lots, or if not already divided into lots it can be so divided, then the trustee must exercise his dis- cretion to sell either in bulk or in subdivisions, as may best promote the in- terests to be subserved by the sale: Gray v. Shaw, 14 Mo. 341; Stall v. Macalester, 9 Ohio, 19. Under ordinary circumstances, there can be no doubt that such interests will be best promoted by a sale in parcels; and where it appears probable that they have been sacrificed by a sale en masse, it will be vacated: Chesley v. Chesley, 54 Mo. .347; Goode v. Comfort, 39 Mo. 313; but a sale of property in gross is not necessarily, nor even presumptively, invalid. "While it is true that sales of this character will be narrowly watched; and every possible safeguard thrown around the interest of him who has been truly called 'a servant to the lender,' yet the mere fact that the property conveyed by deed of trust is sold in gross is not, per se, sufficient to avoid the sale, and no case that I am aware of has gone to that length. There must be some attendant fraud, unfair dealing, or abuse by the trustee of the confi- dence reposed in him, or some resulting injury from a sale made in this way, in order to obtain the aid of a court of equity to divest a title thus acquired ": Bankendorf V. Vincenz, 52 Mo. 441. A sale en masse is neither void nor void- able unless its operation is prejudicial to some one. "It is only upon the ground of fraud, or that some one may have been prejudiced by a sale of real estate en masse, that the sale would, be set aside in equity because the prop- erty was not sold in separate parcels ": Gillespie v. Smith, 29 111. 473; 81 Am. Dec. 328. To prevent the sacrifice of property, a trustee may fix a reserve price, and refuse to accept any bid of a less sum: In re Peyton, 8 Jur., N. S., 453; 31 L. J. Ch. 440; 10 Week. Rep. 515; 6 L. T., N. S., 883; 30 Beav. 252. If a bid has been made under a misapprehension of the terms of the sale, as where the bidder supposed his bid to be paj^able in currency, and the trustee was not willing nor under any duty to receive anything but gold, the trustee may permit such bid to be withdrawn, and may subsequently proceed to sell to another bidder: Waterman v. Spaulding, 51 III. 425. Nor is the trustee, though the sale is at public auction, bound to accept every bid which may be offered. He has the discretion to refuse any bid the acceptance of which would frustrate the purposes of the sale: G7-ay v. Veirs, 33 Md. 18. If the discretion of a trustee has not been limited by the instrument creat- ing the trust, he is not bound to give any notice of his intention to sell, but Oct. 1889.] Tyler v. Herring. 287 may dispose of the property at private sale, and without notice, as though he were selling his own private property: Burr v. McEwen, Baldw. 154; Minuse v. Cox, 5 Johns. Ch. 441; 9 Am. Dec. 313; Jltiger v. Huger, 9 Rich. Eq. 217; Maitox v. Eberhart, 38 Ga. 581; Crane v. Reeder, 22 Mich. 322; provided that, in adopting the means of sale, he acts in good faith, and not in a manner obviously prejudicial to the beneficiaries of the trust. If, on the other hand, the instrument creating the trust has given directions con- ceriiitig the mode of sale, tliey must be substantially pursued. Any direc- tion regarding the notice of sale is material, and the trustee is not at liberty to disobey it. His sale, made without complying with it, will, in most juris- dictions, be regarded as either absolutely void, or as liable to be vacated upon complaint of any person interested in the execution of the trust. Con- ditions as to the time or mode of publication must be followed, and in some courts, at least, no excuse will be received for not observing them: Sears v. JAvermore, 17 Iowa, 297; 85 Am. Dec. 564. If a trust deed exacts thirty days' notice of a sale, and the sale does not take place at the time specified in the notice, it has been held that if it is adjourned to another time, thirty days' notice must also be given of such adjourned sale: Thornton v. Boyden, 31 111. 200. If notice to a grantor of the time and place of a sale is stipulated for in the trust deed, the giving of such notice is a condition precedent to the validity of the exercise of the power of sale: Henderson v. Oalloway, 8 Humph. 692. The requirement of twenty days' previous notice of the time and place of sale is not satisfied by a single publication made twenty days before 3uch sale: Stine v. Wilknon, 10 Mo. 75. Publication of a notice of sale in a weekly newspaper on the 8th, 15th, 22d, and 29th of April, and on the 6th of May, the sale being on the 8th of May, complies with the directions in a trust deed that the trustees may sell after "first giving thirty days' notice of the time, place, and terms of' the sale, and of the property to be sold, by advertisement in some newspaper in Burlington, Iowa territory," there being no paper publishfd in Burlington oftener than once a week: Leffler v. Arm- strong, 4 Iowa, 482; 68 Am. Dec. €72. In this case, it will be observed that there were less than thirty days between the first and the last publication, though there were more than thirty days between the first publication and the time of sale. In a similar case it was held that publication in a weekly newspaper was sufficient, though there was a daily edition of the same paper, in which no publication was made: Campbell v. Tagge, 30 Iowa, 307; and the rule seems to be well settled that publication in a weekly newspaper is always sufficient, unless the trust deed has expressly required a publication at more frequent intervals: Johnson v. Dor»ey, 7 Gill, 269. Notices of sale are not required to I)e published on Sunday. Therefore, if notice is directed to be given ten days before the sale, the publication may be sufficient, though owing to an intervening Sunday it was published only nine times: Ciishman V. Stone, 69 111. 516. When a notice of sale is required to be posted, it is no objection to the posting that it was in a place where the notice could not be seen on Sundays. The law does not contemplate that notices of sale shall be exposed on those days: Oraham v. Fitts, 53 Miss. 307. If thirty days' notice of the time and place of sale is directed to be given by posting, and the original posting is correctly made, the direction is fully satisfied, though it appears that the notice, owing to no fault of the trustee or purchaser, did not remain up for the full time: Grahini v. FMx, 53 Miss. 307. If a tru^ deed, while it directs notice of sale to be given, is silent with respect to tiie newspaper in which it is to be published, the trustee has 288 Tyler v. Herring. [Miss. unlimited discretion in the selection of such paper, except that he must not yield to the influence of fraud, nor of any othar improper motive: Singleton V. Scott, 11 Iowa, 589. Every notice of sale " should contain such facts as are reasonably to ap- prise the public of the place, time, and terms of the sale, and of the prop- erty to be sold. But mere omissions or inaccuracies in these respects, not calculated to mislead and work prejudice, will not be regarded ": Poioers v. Kueckhoff, 41 Mo, 425; 97 Am. Dec. 281; Chesley v. Chesley, 49 Mo. 540; Stephenson v. Januai-y, 49 Mo. 465; Beatty v. Butler, 21 Mo. 313; 64 Am. Dec. 234. Though a statute prescribes the form of a notice, failure to use the precise language of such statute will not invalidate a notice: Boston Safe Deposit and Trust Co. v. Mixter, 146 Mass. 100. Misrecitals in a notice of acts on which the power of sale does not depend, and which are not re- quired to be recited, are immaterial: Inth v. Antioch College, 126 111. 474; 9 Am. St. Rep. 638. It is not necessary to follow any prescribed or stereo- typed form in giving a notice of sale: Newman v. Jackson, 12 Wheat. 570. There is no reason why the amount of the debt should be stated, when the object of the sale is to raise moneys to discharge it: Wiswall v. Ross, 4 Port. 321. A notice stating that a sale will be held at the court-house door of a designated town, but not naming the county, nor stating that the sale will be at public auction, is sufficient, where the notice also states the time of sale and describes the property to be sold: Poioers v. Kueckhoff, 41 Mo. 42.5; 97 Am. Dec. 281. A notice which does not state by nor to whom a deed of trust was executed, nor describe the land with sufficient particularity to en- able one not familiar with it to know what land was to be sold, is insufficient, and a sale made thereunder will be vacated: Reeds'ide v. Peter, 33 Md. 120. Manifestly the objects to be accomplished by a notice of sale are to advise the public of what is to be sold, and the time when, the place where, and the terms upon which it may be bought; and the essentials of a notice of sale under a trust deed are therefore a statement of the time, place, and terms of sale, and such a description of the property to be sold as, if read by persons familiar with the neighborhood, will advise them of what is to be sold, and upon what terms it can be bought, and induce them to attend the sale as prospective bidders, should they feel an inclination to invest in the prop- erty to be sold. It is generally advisable to state the authority under which the sale is to be made, that intending purchasers may know whose property is to be sold, and by what right the trustees claim to act, so that such pur- chasers may have opportunity to investigate the title and authority of the trustee, and determine for themselves whether the sale is one at which they can safely purchase. If the terms of the sale are different from those im- plied by law, or from those which are usual in like sales in the neighborhood, as where they are especially advantageous or especially onerous to pur- chasers, they should be stated also; but we doubt whether, under ordinary circumstances, it is indispensable in a notice of sale to set forth anything except the time and place of sale and a correct description of the property to be sold. If a trustee is left entirely to his discretion regarding a sale, he may sell for cash or upon credit, as to his own judgment may seem best: Rogers v. De Forest, 7 Paige, 273; Hoffman v. Mackall, 5 Ohio, 124; 01 Am. Dec. 637; but if the instrument describing his duties and powers gives explicit directions upon this subject, he must not disregard them, and if he sells upon credit, when he is commanded to sell for cash, the sale may be set aside: Cassell v. Ross, 33 111. 244; 85 Am. Dec. 270. Oct. 1889.] Tyler v. HERRiNa. 289 The trustee himself and those who are acting in his interests are the only persons who are incompetent to purchase property at a trustee's sale. A beneficiary under the trust may be a purchaser at the sale of the trust prop- erty as freely as if he were a stranger to the trust, and is under no obliga- tion to hold the property so purchased for the benefit of his fellow-beneficiaries, if any there be: Walker v. Brnvgard, 13 Smedes & M. 723. If a power of Bale is to be exercised only with the assent of the tenant for life, this does not disqualify him from becoming a purchaser at a sale made by the trustee: Dircomon v. Talbot, 19 Week. Rep. 138; Com. L. Ch. 32; 24 L. T. 49. The decisions concerning the purchase of trust property by or in the inter- est of the trustee, whose duty it was to sell it, are very numerous, and not altogether free from conflict. The vast majority of them, however, sustain the following propositions: 1. That a purchase by a trustee, or in his inter- est, is not necessarily or absolutely void: Stephens v. Beall, 22 Wall. 329; Union State Property v. Tilton, 69 Me. 244; Veasey v. Graham, 17 Ga. 99; third persons cannot question it: McNish v. Pope, 8 Rich. Eq. 112; nor has the trustee a right to treat it as void; it is binding upon him until the cestui que trust chooses to avoid it: McClure v. Miller, 1 Bail. Ch. 107; 21 Am. Dec. 522; 2. That a trustee has no right to purchase trust property either directly or by the agency of a third person acting at his instigation and intending to hold the purchase for his benefit: Michoud v. Oirod, 4 How. 503; Campbell v. Johnston, 1 Sand. Ch. 14S; Boyd v. Hawkins, 2 Ired. Eq. 304; Mathews v. Dragaud, 3 Desaus. Ch. 25; Thnrp v. McCullum, 6 111. 614; Davis v. Simpson, 5 Har. & J. 147; 9 Am. Dec. 500; Saltmarsh v. Beene, 4 Port. 283; 30 Am. Dec. 525; Renew V. Butler, 30 Ga. 954; Remick v. Butterfield, 31 N. H. 70; 64 Am. Dec. 316; Denv. Wright, 31 N. H. 175; 11 Am. D.^c. 546; Sheldon v. Sheldon, 13 Johns. 220; Ohert v. Hammel, 18 N. J. L. 73; Bank of Orleans v. Torrey, 7 Hill, 260; and 3. That a cestui que trust may within a reasonable time after discovering that trust property was sold to a trustee, or to some one acting in his interest, or in the interest of his wife, or to a corporation or association in wliich he is largely interested, elect either to treat the sale as void and the property as still subject to the trust, or to have an accounting and pay- ment of the profits realized by the trustee and his agents: Bussef.t v. S/uye- moker, 46 N. J. Eq. 538; post, p. 435; Rohhins v. Butler, 24 111. 387; Hunt V. Biss, 2 Dev. Eq. 292; 24 Am. Dec. 274; Jennison v. Hapgood, 7 Pick. 1; 19 Am. Dec. 258; Herrs Estate, 1 Grant Cas. 272; Rosenhergers Appeal, 26 Pa. St. 67; Smith v. Frost, 70 N. Y. 65; McNeil v. Gates, 41 Ark. 264. Only when a sale is made under tlie authority of the court, or with the concur- rence of a cestui que trust, and the purchase by or in the interest of the trustee is known to the court confirming or the beneficiary approving the Bale, or when the trustee is one of the persons for whose debt the trust deed was given, will such purchase be permitted to stand as against an objecting beneficiary: Kennedy v. Dunn, 58 Cal. 339; Fancett v. Fnucctt, I Bush, 511; 89 Am. Dec. 639; Cumberland etc. Co. v. Sbrr-nan, 20 Md. 117; Ames v. Port Huron etc. Co., 11 Mich. 139; 83 Am. Dec. 731; Roberts v. Roberts, 65 N. C. 27. It has also been held that a trustee cannot as an agent of a third person purchase the trust property, for the obvious reason that if he did so he would undertake to diseliarge conflicting duties, and probably sacrifice the inter- ests of one or the other of his principals: Hawley v. Cramer, 4 Cow. 717; Gould V. Gould, 36 Barb. 270. Where there are two or more trustees, each ia as much prohibited from purchasing the trust property as if he were sole trustee: Ringgold v. Ringgold, 1 Har. & G. 11; 27 Am. Dec. 250. If a cestui que trust, with full knowledge of a purchase by or in the inter- AM. ST. Kep., Vol. XIX. —19 290 Tyler v. Herring. [Miss. est of his trustee, and of his right to disaffirm it, elects to ratify such purchase, he is irrevocably concluded by such ratification, and the sale is thereafter not subject to successful assault at law or in equity: Boerum v. Schenck, 41 N. Y. 182; Van Dyke v. Johns, 1 Del. Ch. 93; 12 Am. Dec. 76. If when a trustee made a sale he had no interest therein, and no intention of becoming the owner of the property in his own right, his trust relation to it ceases, and he may subsequently deal with it as discharged from the trust, and may therefore purchase it from its owner without incurring any obliga- tion to hold it subject to the original trust: Creveling v. Fritts, 34 N. J. Eq. 134; Rammehberg v. Mitchell, 29 Ohio St. 22. If, on the other hanon v. Clark, 7 Johns. 225; Sayles v. Smith, 12 Wend. 57; note to Bicswll V. Richards, 26 Am. Dec. 537. It is the duty of a trustee to exercise the power which he has to adjourn sales whenever, from the small attendance of bidders or from other circumstances, it seems apparent that a sale of the property is likely to result in its realizing a much less sum than if the sale were adjourned to another time or place: Judge v. Boor/e, 47 Mo. 544. While the right and the duty of a trustee to adjourn a sale in certain con- tingencies are well established, it is impossible to state with confidence what notice, if any, he must give of such adjournment. Undoubtedly he must not postpone a sale in such a way that the persons interested do not know that it has been adjourned, nor at what time or place they must attend to protect their interests: Dana v. Farrington, 4 Minn. 433. Perhaps the better opinion is, that when a sale is adjourned, notice of the time and place to which it is adjourned must be given in the same manner and for the same length of time as if the sale were advertised for the first time. The result of this is, that if any adjournment is ordered, it must be for a time sufiBcient to allow notice to be given for the length of time stipulated in the trust deed or other instru- ment regulating the time and manner in which the trustee must give notice before he proceeds to sell any part of the trust estate: Oriffin v. Marine Co., 52 111. 130; Thornton v. Boijden, 31 111. 200; Montgomery v. Barrow, 19 La. Ann. 169; Enloe v. Miles, 12 Smedes & M. 147; Patten v. Stewart, 26 Ind. 395. If the bidder to whom the trustee sells property at public auction does not comply with his bid, it may be a^ain offered for sale, but under ordinary cir- cumstances, the second sale must be preceded by notice given in the same manner and for the same time as required for the first: Burnard v. Duncan, 38 Mo. 170; 90 Am. Dec. 425; Judga v. Booge, 47 Mo. 544; Oivan v. Doe, 5 Blackf. 260; Williams v. Barlow, 49 Ga. 530. Certainly this nmst be so where the persons in attendance at the sale, or any considerable portion of them, have dispersed. For in such a case the benefit of the original notice is lost, and any sale of the property will almost surely be for a price dispropor- tionate to its value. Every conveyance by a trustee must possess the requisites of a conveyance by a grantor conveying in his own right. Therefore, it nmst name or de- 292 Tyler v. Herring. [Miss. scribe the grantee; and if it merely purports to relinquish the interest of the trustee without stating to whom, it is inoperative: Dick v. Pitchford, 1 Dev. & B. Eq. 480. While it is desirable that a conveyance executed by a trustee in the exercise of a power of disposition vested in him should contain re- citals from which it is apparent that he executed it in his capacity of trustee, and for the purpose of exercising the power vested in him as such, and that the circumstances under which he is entitled to execute the power in fact exist, still it cannot be said that any of these recitals are absolutely necessary. It is sufBcient for him to describe himself or affix his signature as trustee: Porter V. Schofield, 55 Mo. 303. He need not recite the trusts under which he holds the property, nor state that his conveyance is for the purpose of execut- ing those trusts: Bradstreet v. Clarice, 12 Wend. 602; nor need he affirm the existence of debts or of any other cause making his sale or conveyance neces- sary or proper: FLvx v. Bert, 31 L. T., N. S., 645; 23 Week. Rep. 228. If the only estate or interest which the trustee has in the property is one wliich he holds in trust, and he makes a conveyance which describes and purports to convey property which is subject to the trust, and the conveyance must either operate to convey the trust estate or not operate at all, then it will be construed as being executed in the exercise of the power vested in him as trus- tee, and will convey the trust property therein described, though it does not re- fer to the capacity in which he holds such property, nor to his intention to execute the power of sale vested in him as such trustee: Oindrat v. Mont- gomery Oas Light Co., 82 Ala. 596; 60 Am. Rep. 769; Biahop v. Remplc, 11 Ohio St. 277; Hall V. Preble, 68 Me. 100; Baird v. Bowher, 60 Miss. 329; South v. South, 91 Ind. 221; Campbell v. Johnson, 65 Mo. 439; Funk v. Eg-■ ^ O C n P CD G> 5G 57 68 59 Passa ^eway. ►d *^i .^ S .^ ^ H O Ch ^ A «-i cc Pr » / (Tl- t'pnrker, 52 Me. 481; 83 Am. Dec. 527; Downs v. Fuller, 2 Met. 135; 35 Am. Dec. 393; Mackie v. Cairns, 5 Cow. 547; 15 Am. Dec. 477; Robinson v. Da is, II N. J. Eq. 302; 69 Am. Dec. 591; Bunnv. Ahl, 29 Pa. St. 387; 72 Am. Dec. 6.39; Mwrill v. Morrill, 20 Or. 96; ante, p. 95. A stranger to a judgment, prejudiced by it when entered, may not avoid it collaterally for mere error or irregularity, though he may doubtless show by extrinsic evidence that the court did not have juri:sdiction to enter it, and may further show that it Dec. 1890.] State v. Wheeler. 119 is erroneous, and also collusive, and if not collusive, that the nominal defend- ant made no defense therein, because he had no interest to be protected; but when a real defense is made in good faith, we think a stranger afifected by the judgment will not be permitted to impeach it by retrying the case before another court, for the purpose of convincing it that a different judg- menb ought to have been entered in the former action: Freeman on Judg- meuts, sec. 337. Statu v. Wheeler. [20 Oregon, 192.] Cbimikal Law — Forgbrt of Note. — One who signs a promissory not* under a false, fictitious, or assumed name, with intent to defraud another, is guilty of forgery. Cbiminal Law — Forgery — Intent. — The essential element of forgery consists in the intent, when making the signature or procuring it to be made, even though the name affixed is that actually borne by the person affixing it, to pass it fraudulently as the signature of another than the one who actually makes it. Lydell Baker, for the appellant. T. A. Stevens, district attorney, and W. T. Hume, for the re- Bpondent. Bean, J. The defendant was indicted, tried, and convicted of the crime of forgery, from which judgment he appeals. The indictment cliarges that on June 28, 1890, the defendant made and forged a promissory note for $85.50, payable to John P. Fidock or order, due thirty days after date, by then and there signing the name of John Williams to said note, with an intent to defraud and injure J. T. Milner. At the trial in the court below, after the evidence for the state was closed, defendant's counsel moved the court that the jury be instructed to render a verdict of not guilty, upon the ground that the evidence failed to prove the crime charged. The refusal of the court to give this instruction is the only error claimed on this appeal. An examination of this ques- tion reiulers it necessary to briefly state the evidence as given on the trial, which was as follows: On June 28, 1890, the de- fendant called at the office of J. T. Milner, in Mulkey's block, in the city of Portland, and represented to Mr. Milner that his name was John Williams, and applied for a loan of $85.50, offering to secure the same by a chattel mortgage on a team of horses. He drove the team up in front of the office, and Mr. Milner looked at them and agreed to make the loan. The note was drawn up by Milner, and the defendant signed i AMERICAN STATE REPORTS. Vol. XX 1\', Pa.ms :by-819. BOLLING V. KIRBV. [9(1 Al VUVMA, •i\h.\ Conversion. i May, 1890.] Bolling v. Kirby. 789 BOLLING V. KiRBY. [90 Alabama, 216.] Conditional Sale — Payment and Rescission thereof. — Where a note is given in payment for a sewing-machine, the title to which is to be held by the seller until the payment of the note, which is left with a third party authorized to receive cattle in payment and to surrender the note, and after such surrender the cattle are claimed by the execution creditors of the maker of the note, who thereupon redelivers the note to the third person, under agreement that it shall be considered that no payment has been made, the title to the machine is thereby reinvested in the seller upon his ratification of the transaction, although the third party had no authority except to receive payment of the note and to surrender it. Conversion — What Constitutes. — An intermeddling with or dominion over the property of another, whether by the defendant alone or in connection with others, which is subversive of the dominion of the true owner, and in denial of his rights, is a conversion. It is not essential to conversion sufficient to support the action of trover that the defend- ant should have the complete manucaption of the property. Conversion — What Constitutes. — Where, under a conditional sale of a sewing-machine, the seller, upon default in payment, demands the machine from the purchaser's wife, the purchaser himself having left the state, and her father unconditionally refuses to allow the seller to take possession of the machine, this will amount to a conversion; but if such refusal is based on a disputed question of payment, and upon an agreement that the father is to have time to ascertain if payment has been made, and if it has not, to surrender the machine, then he is not guilty of conversion, although in the mean time the original pur- chaser returns and removes the machine without his knowledge or con- sent. Conversion cannot be Based on Possession Retained by Agreement until demand and refusal to deliver after the assent has been with- drawn, or the time covered by it has lapsed. CoHVERSiox, TO Sustain Trover, must be a destruction of the plaintifiTs property, or some unlawful interference with his use, enjoyment, or dominion over it; an appropriation of it by defendant to his own use, or to the use of a third person, in disregard or defiance of the owner's right, or a withholding of possession under a claim of title inconsis- tent with the title of the owner. Conversion upon Which Trover may be Based must be a positive tor- tious act. Non-feasance or neglect of legal duty, or mere failure to per- form an act made obligatory by contract, or by which property is lost to the owner, will not support the action. Conversion. — Bailee Undertaking to Carry Property to the Owner, but failing to do so, whereby it is subsequently lost while in his posses- sion, through no positive misconduct of his, is not liable for conversion. But if he does any affirmative act inconsistent with the bailment, and known by him to be so, trover will lie against him, ComrsBSiON. — One having Notice of the claim of the true owner, and who delivers the property to another person, or permits him to take it out of his possession, whereby it is lost to the owner, is liable for its value in trover. 790 BoLLiNO V. KiRBY. [Alabama, OoNVERSioiT. — Bare Possession of Property, without some wrongful act in the acquisition of possession, or in its detention, and without any illegal assumption of ownership, or illegal user or misuser, is not a con- version for which trover will lie. Trover by Kirby and Brother, a partnership, against W. Boiling to recover for the conversion of a sewing-machine. On the trial, it appeared from the testimony of Kirby that on September 7, 1885, the plaintiffs sold to T. Bishop and his wife a sewing-machine, taking their joint note for the price, payable on November 15, 1885, and retaining the legal title in themselves until payment was made; that when the ma- chine was delivered, it was agreed between the parties that young cattle would be taken in payment, and this was in- dorsed on the note; that about the time that the note became due he went to Bishop's house, and upon being told by Mrs. Bishop that Mr. Bishop had the cattle, he left word for him to bring them to a place called Guntersville, at which place he authorized one A. R. Hooper to receive the cattle, and left the note with him to be delivered to Bishop. Hooper testi- fied that Bishop came to him in Guntersville a few days after he was given the note, and said that he had brought the cat- tle to pay it; that they then went to where the cattle were standing in the street; that he agreed to take the cattle, and handed Bishop the note; that two of the latter's creditors immediately claimed the cattle under a mortgage lien; that Bishop then gave them the cattle, handing the note back to the witness, saying that he had more cattle, and would bring them and pay the note; that witness had not taken charge of the cattle, tried to drive them away, nor taken any control over them. Kirby then testified that during the fall of 1886 he went to the residence of Bishop and wife to get the ma- chine, as the note had not been paid; that he found that they had removed, Mrs. Bishop having gone to the home of defend- ant Boiling, who was her father, her husband being absent in another state; that he went to defendant's house and demanded the machine; that Mrs. Bishop claimed that the machine had been paid for in cattle, and that defendant re- fused to allow him to take the machine, as it was paid for, and belonged to Mrs. Bishop; that after some further conver- sation between them, defendant Boiling agreed to go to Gun- tersville and ascertain if witness had a right to take the ma- chine, and if so, he would have nothing further to do with it; that they met in that town the next day, when defendant said May, 1890.] Bollinq v. Kirby. 791 he was ready to deliver the machine; that witness told de- fendant to deliver it to one Winston, and that he had never received it. Winston testified that he agreed to receive the machine at the request of the parties; that defendant agreed then and afterwards to send the machine, but failed to do so, and subsequently informed witness that Bishop had moved his family away, and had taken the machine with him. Judg- ment for plaintiffs, and defendant appealed. Lush and Bell, for the appellant. McClellan, J. We do not doubt that the title to the ma- chine involved in this action remained in the plaintififs below, under the contract put in evidence, until the purchase-money thereof was paid. In considering the question whether the transaction between Hooper and Bishop was a payment, it may be admitted that Hooper was the special agent of plain- tiffs to receive cattle in payment, and to deliver up the paper, and that he did so receive the cattle and deliver up the paper^ as that, without more, the debt was satisfied; and it may be further conceded that he had no authority to enter into an arrangement with Bishop by which creditors of the latter, having a lien of some sort on the property, were allowed to take the cattle, and the note was handed back to him by Bishop, and the satisfaction thereof obviated and expunged, so to speak. Yet we do not doubt that Bishop had full au- thority to make this arrangement, and that the lack of power to this end in Hooper was cured by the ratification of his un- authorized act in this behalf by his principals, the present plaintiffs. The note did not bind the wife: 2 Brickell's Digest, 98; Walker v. Struve, 70 Ala. 167. Under the facts of the case, the delivery of the cattle in payment of the note was no more than an exchange of that property for the machine, vesting title to the machine in the husband alone; and this, even had the cattle belonged to the wife, of which there is no proof: Woods V. Dunlap, 73 Ala. 169; Kennon v. Dibble, 75 Ala. 351. The title thus being in Bishop alone, it was entirely compe- tent for him to agree that the payment which had so vested it in him should be considered as not having been made, and that it should revest in Kirby and Brother; and this agree- ment he must be held to have made, by handing the note back to Hooper, in consideration of the cattle being applied to another debt owed by him. The rulings and instructions of the court on this part of the case were free from error. 792 BOLLINQ V. KiRBY. [Akibaiua, It is not essential to a conversion which will support the action of trover that the defendant should have the complete manucaption of the property. An intermeddling with or do- minion over the property of another, whether by the defend- ant alone or in connection with others, which is subversive of the dominion of the true owner, and in denial of his rights, is a conversion: Freeman v. Scurlock, 27 Ala. 407; Conner V. Allen, 33 Ala. 515. Hence it is not important that when Kirby went to the residence of the defendant to demand the machine, it was not in his possesssion, strictly speaking, but in that of Mrs. Bishop, who then lived on his premises, if the defendant interfered to prevent, and did prevent, the plaintiff from then taking possession of it by the unqualified assertion of a title inconsistent with the plaintiffs', and an uncondi- tional refusal to allow the plaintiffs to take the property away. Whether the defendant had the possession in himself or not, such intermeddling, in defiance of plaintiffs' right, was a conversion. But if there was a bona fide controversy as to whether payment had been made; and if the defendant, while asserting payment, and predicating his right to prevent a removal of the property on title in Bishop springing out of payment, recognized the controversy and uncertainty as to whether payment had been made, and declined to allow the machine to be removed until the truth of that matter could be ascertained; and if it was thereupon agreed between him and Kirby that he should go to Guntersville the next day, and satisfy himself about it, and that if he found the note had not been paid, the property should be surrendered to the plain- tiffs, — these facts would not constitute a conversion. Such a qualified and conditional refusal by Mrs. Bishop would have been reasonable and justifiable under the circumstances, and would not have afforded any evidence of a conversion by her; and the interference of Boiling in her behalf stands .upon the same footing: Dent v. Chiles, 5 Stew. & P. 383; 26 Am. Dec. 350; Butler v. Jones, 80 Ala. 486. In such case the plaintiffs are held to have assented to the retention of possession by Mrs. Bishop, pending the investigation agreed on, and no action for conversion can be predicated on a possession so retained until a demand and refusal to deliver after the assent has been withdrawn, or the time covered by it has lapsed: Voltz v. Blackmar, 64 N. Y. 646; Finch v. Clark, Phill. (N. C.) 335. Conversion which will sustain trover must be a destruction May, 1S90.] Bolling v. Kikby. 793 of the plaintiffs' property, or some unlawful interference with his use, enjoyment, or dominion over it; an appropriation of it by the defendant to his own use, or to the use of a third person, in disregard or defiance of the owner's right; or a with- holding of possession under a claim of title inconsistent with the title of the owner: Glaze v. McMillan, 7 Port. 279; Gray V. Crocheron, 8 Port. 191; Freeman v. Scurlock, 27 Ala. 407; Conner v. Allen, 33 Ala. 515; Thweat v. Stamps, 67 Ala. 96; Central R. R. etc. Co. v. Lampley, 76 Ala. 357, 368; 52 Am. Rep. 334; Tinker v. Morrill, 39 Vt. 477; 94 Am. Dec. 345; Burroughs v. Bayne, 5 Hurl. & N. 296; Fauldes v. Wil' loughhy, 8 Mees. & W. 539; 2 Greenl. Ev., sec. 642. It is im- material whether the conversion or appropriation be for the benefit of the defendant or of a third person. " The true in- quiry is. Does the defendant exercise a dominion over the property in exclusion or defiance of the plaintiff's right? If he does, that is, in law, a conversion, be it for his own or an- other person's use ": Cooley on Torts, 448; Liptrot v. Holmes, 1 Ga. 381-391. Conversion upon which recovery in trover may be had must be a positive, tortious act. Non-feasance or neglect of legal duty, mere failure to perform an act made obligatory by contract, or by which property is lost to the owner, will not support the action: Sturges v. Keith, 57 111. 451; Bailey v. Moulthrop, 55 Vt. 17; Rodgers v. Hirie, 2 Cal. 571; 56 Am. Dec. 363; Ragsdale v. Willinms, 8 Ired. 498; 49 Am. Dec. 406. A bailee is not liable in trover for a loss of proi)erty through larceny from him, or because of negligence resulting in its destruction: Hawkins v. Hoffman, 6 Hill, 586; 41 Am. Dec. 767; Packard v. Getman, 4 Wend. 613; 21 Am. Dec. 166. If the bailee undertakes to carry the property to the owner, and fails to do so, and it is subsequently lost while in his posses- sion, through no positive misconduct of his, he is not liable for conversion: Farrer v. Rollins, 37 Vt. 295. But if he does any affirmative act inconsistent with the bailment, and known by him to 1)e so, trover will lie against him: Jones v. Hodgkins, 61 Me. 480. And if, having notice of the claim of the true owner, he delivers the property to another jierson, or permits another to take it out of his possession, whereby it is lost to the plaintiff, he is liable for its value in this form of action: Dearborn v. Union Nat. Bank, 58 Me. 273; Phillips v. Brvj- ham, 26 Ga. 617; 71 Am. Dec. 227; Alabama etc. R. R. Co. v. Kidd, 35 Ala. 209. 794 BoLLiNG V. KiRBY. [Alabama, Each of the several charges given by the court below at the re(iuest of the plaintiffs is supported by one or another of the principles we have announced. Only one of them is objec- tionable in any respect, and that not in such sort as will work a reversal. Charge No. 6 is argumentative, in that it directs that the jury may look to certain testimony, etc., as determin- ing whether defendant had control of the property; but while the charge might have been refused on this ground, the giving of it is not a reversible error: Birmingham F. Brick Works v. Allen, 86 Ala. 185. Of the charges asked by the defendant, the first and tenth direct a verdict for the defendant, if the jury believe the evi- dence. We suppose these charges, as also charges 5, 7, and 9, were requested on the theory that the cattle transaction, to which reference has been had, was a payment of Bishop's note, and operated a divestiture of plaintiffs' title. This position, as we have seen, is untenable, and it follows that charges 1, 5, 7, 9, and 10 were properly refused. Charge No. 4 is bad, in that it required the jury to find that Boiling had not converted the property, although they should believe that when Kirby de- manded it from Mrs. Bishop, Boiling interfered, and unquali- fiedly and unconditionally refused to allow him to remove it, and by these means prevented its removal. Charge No. 6 would have defeated a recovery, unless the jury believed Boiling converted the machine to his own use, when he would have been, as we have seen, equally liable for a conversion to the use of Bishop or Mrs. Bishop, or for a delivery to either of them, if he had possession or control of it after notice of plaintiffs' claim. Charge No. 8 is open to the same infirmity as No. 6, and moreover is misleading, at least in its require- ment of evidence of possession in the defendant, since the jury might thereby have been induced to the conclusion that his intermeddling with the property while in strictness the posses- sion was in Mrs. Bishop was not a conversion, although it was in one aspect of the evidence a palpable dominion over it to the exclusion of plaintiffs' rights. The defendant also requested the following charge: " If the jury find from the evidence that all the defendant did ia reference to the machine was to move it, with his daughter, to a house on his place, and come to town to make inquiry as to what was the truth as to the payment of the note given by Bishop for the machine, and that he allowed bis daughter, Mrs. Bishop, to remain in a house on his place, and that the May, 1890.] BolliiNg v. Kirby. 795 machine was afterwards carried away by Bishop, one of the makers of the note, this would not make him guilty of a con- version of the sewing-machine, and the verdict of the jury should be for the defendant." This charge was refused, and an exception reserved. As we read the evidence, every fact it hypothesizes is based on testimony in the case. It is there- fore not abstract. It presents the defendant's aspect of the case, not upon a part of the testimony, but on all of it. The jury are not restricted in determining whether they will be- lieve the facts hypothesized to the evidence in behalf of the defendant, but they are directed to consider the whole evi- dence, and if upon that consideration they find these facts to be true, they must find for the defendant. If the charge as- serts a correct proposition of law, therefore, it should have been given: Alexander v. Wheeler, 78 Ala. 167; Hunkers v. Stale, 87 Ala. 84. Our opinion is, that the charge asserts a sound principle of law. If the facts stated were found to exist by the jury, the only act the defendant did in connection with the property was in conservation of it, — he gave it shelter, — a ''kindness to the owner, done without any intention of injury to the thing, or of converting it, — an act perfectly consistent with the right of the owner and his dominion over it": Con- ner v. Allen, 33 Ala. 515; Dent v. Chiles, 5 Stew. & P. 383; 26 Am. Dec. 350. And though he thus gave shelter to the prop- erty, it was as property, the possessory right, at least, to which was in Mrs. Bishop; and on these facts he never dis- turbed her possession, or acquired any possession in himself, that would have authorized or enabled him to have prevented the removal of the machine by Bishop. The charge ought to have been given. So ought charge No. 2. The bare posses- sion of property, without some wrongful act in the acquisition of possession, or in its detention, and without illegal assump- tion of ownersln'p, or illegal user or misuser, is not a conver- sion: Glaze V. McMillan, 7 Port. 297. For the errors committed in refusing to give the two charges last considered, the judgment of the circuit court is reversed, and the cause remanded. CoNVERSioK OF Personalty SaFFiciENT to Sustain Trover — Dbfini* TIONS. — Conversion of personal property takes place whenever a person who is neither the owner nor entitled to the possession exercises dominion or control over it inconsistent with or in defiance of the rights of a person who is either in possession or entitled to the immediate possession thereof : Fuller y. Tahor, 39 Me. 519; Liptrot v. Holmes, 1 Ga. 381; Oilman y. Hill, 36 N. H. 311; Wett 796 BoLLiNG V. KiRBY. [Alabama, Jersey R. R. Co. v. Trenton etc. Co., 32 N. J. L. 517; Brktol v. Burt, 7 Johns. 254; Murray V. Burling, 10 Johns. 172; RcynokUv. Shuler, 5 Cow. 323; Cham- bers v. Lewis, 28 N. Y. 454; Boyce v. Brockway, 31 N. Y. 490; Reid v. Colcock, 1 Nott & MoC. 592; 9 Am. Dec. 729; Allen v. Crary, 10 Wend. 349; 25 Am. Dec. 566; Beakl v. Carey, 11 Com. B. 977; 16 Jur. 197; 21 L. J. Com. P. 97; Ragsdale v. Williams, 8 Ired. 498; 49 Am. Dec. 406; Woodman v. Hubbard, 25 N. H. 67; 57 Am. Dec. 310; Maxwell v. Harrison, 8 Ga. 61; 52 Am. Dec. 385; Baker v. Wheeler, 8 Wend. 505; 24 Am. Dec. 66; Hale v. Ames, 2 T. B. Mon. 143; 15 Am. Dec. 150; Goell v. Smith, 128 Mass. 238. Conversion has b(;en defined as a dealing by a person with chattels not belonging to him in a manner inconsistent with the rights of the true owner: Velsain v. Leiois, 15 Or. 539; 3 Am. St. Rep. 184; Ramsby v, Beezley, 11 Or. 51. The word "owner," as here and elsewhere used in connection with the law of conver- sion, does not necessarily signify the person in whom the title to the prop- erty is vested, for there are instances in which persons who are not owners may recover for a conversion of chattels: Hicholls v. Bastard, 1 Tyrw. & G. 156; 2 Cromp. M. & R. 659; 1 Gale, 295; Jeffries v. G. W. Ry Co., 5 El. & B. 8G2; 2 Jur., N. S., 250; 25 L. J. Q. B. 107; Roberts v. Wyatt, 2 Taunt. 268; and in which he who is their owner may not recover therefor. Conversion is an offense against the possession; and a recovery therefor may be had by him who was either in i>ossession or entitled to the immediate possession of the property when the conversion was committed, and by no other person. Hence if the owner was neither in possession nor entitled to the immediate possession of his property when it was conv erted, whatever his other reme- dies may be, he cannot recover in trover for the conversion: Gordon v. Harper, Term Rep. 9; 2 Esp. 465; Owen v. Knight, 4 Biiig. N. C. 54; 6 Dowl. P. C. 245; 5 Scott, 307; Bradley v. Coph-y, 1 Com. B. 685; 9 Jur. 599; 14 L. J. Com. P. 2-22; Pain v. Sheriff of Middlesex, Ryan & M. 99; Middlestvorth v. Sedgwick, 10 Cal. 392; Swift v. Moseley, 10 Vt. 208; 33 Am. Dec. 197. " 'Whoever undertakes tortiously to deal with the property of another as his own, or tortiously detains it from the owner, is, in contemplation of law, guilty of a conversion ': Watt v. Potter, 2 Mason, 77. *A conversion, in the sense of the law of trover, consists either in the appropriation of the thing to the party's own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the plaintiff's right, or in withholding the possession from the plaintiff under a claim of title in- consistent with his own': 2 Greenl. Ev. , sec. 642. But the use, or dispo- sition, or detention of a thing that 'might be a tort under one circumstance might, if done under others, assume a different appearance '; as, for example, if the use, disposition, or detention was to do a kindness to the owner, and without any intention of injury to the thing, or of converting it to the use of the person using, disposing of, or detaining it, and was merely conservative of it, and perfectly consistent with the right of the owner and his dominion over it: 2 Greenl. Ev., sec. 643; Drake v. Shorter, 4 Esp. 165; Sparks v. Purdy, 11 Mo. 219; Watt v. Potter, 2 Mason, 77; Glover v. Riddick, 11 Ired. 582; Vent v. Chiles, 5 Stew. & P. 383; 26 Am. Dec. 350": Conner v. Allen, 33 Ala. 516. Hence where the act relied upon as a conversion consisted of the bottling of a large quantity of wine, and there was evidence that it was likely to suffer injury if not bottled, the bottling was adjudged not to be necessa- rily a conversion, and it was left for the jury to determine from the whole evidence whether a conversion had taken place or not: Phillpot v. Kelley, 4 Nev. & M. 611; 3 Ad. & E. 106; 11 Har. & W. 134. " In the sense of the law of trover, a conversion consists either in the ap- May, 1890.] Bollino v. Kirby. 797 propriation of the property to the party's own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it, in exclusion or defi- ance of the plaintiff's right, or in withholding the possession from the plain- tiff under a claim inconsistent with his own: 2 Saund., Patterson and Williams's ed., 47 h; 2 Greenl. Ev., sec. 642. Lord Holt's general definition of a conversion, in Baldwin v. Cole, 6 Mod. 212, is, that it is ' the assuming upon one's self the property in and right of disposing of another's goods' ": Tinker v. Morrill, 39 Vt. 477; 94 Am. Dec. 345. Conversion by Selling Chattels of Another. — If one has under- taken to convert the chattels of another to his own use, or to do any act which, if accomplished, must result in depriving the owner of his property, then clearly the wrong-doer is answerable for a conversion: Clark v. Whit- taker, 19 Conn. 319; 48 Am. Dec. ICO; Harker v. Dement, 9 Gill, 7; 52 Am. Dec. 670. Hence one who, without authority, assumes to sell or otherwise dispose of the chattels of another, whetlier for his own benefit or not, is guilty of a conversion: Houston v. Dyclie, Meigs, 76; 33 Am. Dec. 130; Ev- erett v. Coffin, 6 Wend. 603; 22 Am. Dec. 551; Gentry v. Madden, 3 Ark. 127; Thompson v. Cuirier, 24 N. H. 237; Firemen's Ins. Co. v. Cochran, 27 Ala. 228; Anderson v. Nicholas, 28 N. Y. 600. Conversion by Sale not Made Pursuant to Agent's, Bailee's, or Of- ficer's Authority. — Though the person making a sale of the chattels of another might have been autliorized to make such sale under certain circum- stances, yet if he was not authorized to make the sale at the time or in the manner in which it was made, or to the person who became the purchaser, the act may generally be treated as a conversion: Bailey v. Col'y, 34 N. H. 29; 66 Am. Dec. 752; Perkins v. Tliompson, 3 N. H, 144; Sargent v. Gile, 8 N. H. 325; Grace v. McKissack, 49 Ala, 163; Porter v. Fo.4er, 20 Me. 391; 37 Am. Dec. 59; Johnson v. Stear, 15 Com. B., N. S., 330; 10 Jur., N. S., 99; 33 L. J. Com. P. 130; 12 Week. Rep. 349; 9 L. T., N. S., 804. A sheriff or constable who has levied upon property under a writ entitling him to sell it in the manner prescrdjed by law, for the purpose of satisfying the writ, is deprived of the protection of his writ, and made a trespasser ab initio, if he abuses his authority, and lience is liable as for the conversion of the property, if he sells it in defiance of a proper claim for its exemption from sale, or if he makes the sale before or after the time at which he was author- ized to make it, or at a place different from that designated in the notice of sale, or in the absence of such notice: Hall v. Bay, 40 Vt. 576; 94 Am. Dec. 440; Evarts v. Burgess, 48 Vt. 206; Breck v. Blnnchard, 20 N. Y. 223; 51 Am. Dec. 220; Freeman on Executions, sec. .302. A pledgee of personalty may also become liable for its conversion by its sale, though he was authorized to sell to certain persons, or after complying with certain prerequisites, if the sale was made before it was authorized, or was made to one not authorized to purchase, or without complying with some of the prerequisites exacted either by the contract of pledge or by the law applicable to the relation of the parties: Johnson v. Stear, 15 Com. B., N. S., 3.30; 10 Jur., N. S., 99; 33 L. f. Com. P. 130; 12 Week. Rep. 349; 9 L. T., N. S., 804; Maryland F. I. Co. v. Dalrymple, 25 Md. 242; 89 Am. Dec. 779; Stearns v. Marsh, 4 Denio, 227; 47 Am. Dec. 248. Conversion by Vendee of Properiv Sold without Authority. — When a sale is made under such circumstances that the seller is guilty of a conversion in making it, the vendee is also guilty of a conversion, if he takes possession of the property pursuant to the sale and exercises any dominion or 798 BoLLiNQ V. KiRBY. [Alabama, control over it: Cooper v. Willomatt, 1 Com, B. 672; 9 Jur. 598; 14 L. J. Com. P. 219; Cundy v. Lindsay, L. R. 3 App. C. 459; 47 L. J. Q. B. 481; 38 L. T., N. S., 575; 26 Week. Rep. 406. A recovery may therefore be had against him in an action of trover without any prior demand upon him for the prop- erty, though he purchased it in good faith, and paid a full consideration there- for, in the belief that the seller was the owner of the property or had power to sell and dispose of it: Gilmore v. Nnvton, 9 Allen, 171; 85 Am. Dec. 749; Saltus V. Everett, 20 Wend. 267; 32 Am. Dec. 541; Sanborn v. Colman, 6 N. H. 14; 23 Am. Dec. 703; Freeman v. Underwood, G6 Me. 229; Hyde v. Noble, 13 N. H. 494; 38 Am. Dec. 508; VeMan v. Leiois, 15 Or. 539; 3 Am. St. Rep, 184; McCombie v. Davis, 6 East, 538; Galvin v. Bacon, 11 Me. 29; 25 Am. Dec. 258; Stanley v. Gaylord, 1 Cush. 536; 48 Am. Dec. 643; Trudo v. An- derson, 10 Mich. 358; Hake v. Buell, 50 Mich. 89; Harpending v. Meyer, 55 Cal. 555; Williams v. Merle, 11 Wend. 80; 25 Am. Dec. 604; Agnew v. John- mm, 22 Pa. St. 471; 62 Am. Dec. 303; Houston v. Dyche, Meigs, 76; 33 Am. Dec. 130; Chapman v. Cole, 12 Gray, 141; 71 Am. Dec. 739; note in 25 Am. Dec. 605; Porter y. Foster, 20 Me. 391; 37 Am. Dec. 59; Tuttle v. Campbell, 74 Mich. 652; 16 Am. St. Rep. 652. The mere bidding off or purchasing of property at a sale thereof by one who is neither the owner nor authorized by him to make such sale appears not to be, of itself, suflBcient to constitute a con- version, unless it is followed on the part of the purchaser by his taking actual or virtual possession of the property, or exercising some other unequivocal dominion or control over it: Trnylor v. Horrall, 4 Blackf. 317. The courts of New York insist that one who purchases and takes possession of property in good faith cannot properly be treated as a wrong-doer until he has notice of the invalidity of his title, and they will not sustain an action against him by the owner for their conversion, unless the latter has demanded possession or otherwise made his title known, and the demand has been refused, or some other act done in defiance of the owner's title, after its existence was made known: Oillett v. Roberts, 57 N. Y. 28; Ely v. Ehle, 3 N. Y. 506; Bar- rett V. Warren, 3 Hill, 348. Conversion, though No Sale is Made. — It is by no means essential to the conversion of chattels that the wrong-doer sell or attempt to sell them, or even that he do any other act calculated to convert them to his own use. Any other exercise of dominion over personalty in defiance of the owner's rights accomplishes the same legal redult. Hence one who aids another to take property from its owner, or to withhold possession of it from him in de. fiance of his rights, is guilty of a conversion, though the act was done with- out intending to claim any personal benefit or advantage therefrom, and in the belief that it was merely in the way of rendering assistance to one who was entitled either to take or to retain possession of the property: Baler v. Beers, 64 N. H. 102; Cowjhlin v. Ball, 4 Allen, 334; Mead v. Jack, 12 Daly, 65; McCormick v. Stevenson, 13 Neb. 70; Freeman v, Scurlock, 27 Ala. 407; Scott V. Perkins, 28 Me. 22; 48 Am. Dec. 470. Conversion by Words Alone. — There may also be a conversion, though there is no moving or seizing of the Chattels, and no interference with them except such as consists in words, spoken or written, indicating an intention to claim and exercise dominion over them inconsistent with the rights of their owner, as where an officer had a writ proclaiming a levy upon goods, and threatened to take them away unless a receipt was given for them, and was prevented from so taking them by the giving of such receipt, though he did not touch them: Wintringham v. Lafoy, 7 Cow. 735; Connah v. Hale, May, 1890.] Bollinq v. Kirby. 799 23 Wend. 462; PhilUpa v. Hall, 8 Wend. 610; 24 Am. Dec. 108; Allen v. Crary, 10 Wend. 349; 25 Am. Dec. 566; Fonda v. Van Home, 15 Wend. 631; 30 Am. Dec. 77. Of some of the cases last cited it may be said that the requiring a person to give a receipt for the property was in fact requiring him to hold it for the oflScer, and therefore Wds an actual holding by the offi- cer through the receiptor as his agent; but it is not necessary that a person, to be guilty of a conversion, should take actual possession, either in person or by his agent. It is sufficient that, being in a condition to exercise do- minion and control over the property, he assumes the right so to do, and the assumption is acquiesced in by the owner or the party in possession at the time the assumption is made: Bristol v. Burt, 7 Johns. 254; 5 Am. Dec. 264, Webber v. Davis, 44 Me. 147; 69 Am. Dec. 87; Hall v. Amos, 5 T. B. Mon. 89; 17 Am. Dec. 42. Therefore, where one who claimed to be entitled to certain hay notified the owner not to remove it, and apparently intended and designed that it should be used by the person in whose possession it was, and by whom it was subsequently used, both were held to be guilty of a conversion, the court, in so deciding, saying: "Any distinct act of dominiou wrongfully exerted over another's property in denial of his right, or incon- ■istent with it, is a conversion. It is not necessary that there should be a manual taking of the property. If the wrong-doer exercises a domiiiioa over it in exclusion or in defiance of the owner's right, whether it be for his own or another's use, it is in law a conversion: Cooley on Torts, 448; 2 Greenl. Ev., sec. 642; Evans v. Mason, 64 N. H. 98. ' The very denial of goods to aim that has a right to demand them is an actual conversion, and not only evidence of it, as has been holdeu; for what is a conversion but an assuming upon one's self the property and right of disposing of anotlier's goods? And he that takes upon himself to detain another man's goods from him without cause takes upon himself the riglit of disposing of them': Holt, C. J., in Baldwin v. Cole, 6 Mod. 212. Although the defendant did not have the possession of the hay after the sale, or the right to control the movements of Bosworth, there was evidence that both understood, after the sale, that Bosworth was authorized by the defendant as vendor to use the hay, and that was a conversion by the defendant. He had sold it for a price to Bosworth. His claiming that he bought it of the plaintiflF, and his forbidding the plaintiff to remove it, then in the actual possession of Bos- wortli, was evidence from which it was competent to find that his purpose was to enable his vendee to consume the hay, and that, for the purpose of this case, its conversion by his vendee, authorized by the vendor, was the act of the vendor. In authorizing and aiding Bosworth to convert it to his own use he became liable to the plaintiff in trover: Flanders v. Colhy, 28 N. H. 34. When several join in the conversion, trover will lie against either of them: Paltee v. Gllniore, IS N. H. 400; 45 Am. Dec. .385. There was evidence from which it was competent to lind a conversiou by the de- fendant ": Baker v. Beers, 64 N. H. 102. There is perhaps not an entire accord in the authorities upon the subject of a conversion of chattels by mere words indicating an intention on the part of the speaker to take or to retain possession of them when the property ia not in his possession nor under his immediate control when they are uttered. Thus in New York, one who had purchased property from a person having no title was visited at his home, thirty miles distant from the property, by its true owner, who there made a demand for its possession, to which such purchaser replied that he was willing to do what was* right; that he did not want any trouble about it; that he would not give it up unless he could get 800 BoLLiNG V. KiRBY. [Alabama, released from paying the man he bought it of. There was, at the time, nothing to prevent the owner from taking possession of his property where it was. The court hehl that no conversion had taken place, saying: "It ia true that, to constitute a conversion, a manual taking is not necessary, but where words are relied upon, they must be uttered in such circumstances in proximity to the property as to show defiance of the owner's right, — a deter- mination to exercise dominion and control over the property, and to exclude the property from the exercise of his rights ": Gillett v. Roberts, 57 N. Y. 28. Though chattels are in the possession of one who claims to be their owner, his assertion of ownership is not a conversion if made to a stranger not in sight of the property, nor in the presence of the owner, nor made with a view to preventing him from taking possession or assuming his rightful do- minion and control: Irish v. Cloyes, 8 Vt. 30; 30 Am. Dec. 446. Illustrations Showing Various Modes of Conversion. — The follow- ing acts have, in harmony with the general rules herein stated, been declared to be sufficient evidence of a conversion on the part of the person guilty of their commission: Sawing logs bearing plaintiff's marks, which had be- come intermingled in a boom with defendant's logs: Clark v. Nelson Lumber Co., 34 Minn. '289; selling under execution chattels of one who is not a party to the writ, whether the chattels were removed or not: Scudder v. Anderson, 54 Mich. 122; attaching the property of one person under a writ against an- other, though there was no manual taking or removal: John>ion v. Farr, 60 N. H. 426; Woodbury v. Long, 8 Pick. 643; 19 Am. Dec. 345; selling the property of another, though the party making the sale never had nor at- tempted to deliver the possession of the property sold, and there was no evidence whether the purchaser ever took possession or not: Ramsby v. Beezley, 11 Or. 49; procuring a certificate of stock to be issued to one not entitled thereto, and then selling it to an innocent purchaser: Baker v. Wasson, 59 Tex. 140; permitting plaintiflf's sheep to become intermingled with defendant's, and then assisting the purchaser of defendant's flock to drive away such flock with plaintifif 's sheep therein, knowing that such pur- chaser intended to convert tliem to his own use, tliough he said he would send back and pay for them if any one claimed it: Allen v. McMonac/le, 77 Mo. 478; taking bonds from a bank in which tliey were depositeil, and send- ing them out of the state, to be used as collateral security for the debt of the taker, though he intended and expected to have the identical bonds returned to their place of custody: Commonwealth v. Tenney, 97 Mass. 50; cutting tim- ber on the lands of another, though it is not carried away: Sanderson v. Haver' stick, 8 Pa. St. 294; claiming the ownership of property, and by threats pre- venting the rightful owner from taking possession of it: Hare v. Peat-son, 4 Ired. 76; Crocket v. Beaty, 8 Humpli. 20; attaching chattels and placing them in the care of a keeper, who, upon demand, refuses to deliver them to their owner: Boiqen v. Sanborn, 1 Allen, 389; receiving payment, under a claim of right, of a note or security in the possession of the party receiving, but which belongs to another: Schroeppel v. Corning, 5 Denio, 236; Donndlv. Thompson, 13 Ala. 440; taking possession of premises and letting them, together with the use of chattels thereon, and receiving pay for such use: Miller v. Plumb, 6 Oow. 665; 16 Am. Dec. 456; delivery by a bailee of a certificate of stock to the officers of a corporation, to be canceled and a new certificate to be issued to another person, though such delivery was induced by a forged order purporting to be signed by the owner: HuJibell v. Blandy, 87 Mich. 209; ante, p. 154; receiving the transfer of and collecting a promissory note, which the transferee knew had previously been indorsed to another in blank May, 1890.] Bolling v. Kirby. 801 as collateral security: Carter v. Lehman, 90 Ala. 126; treating a special de- posit as though it were a part of the general fund of a bank: Monmouth Bank v. Dunbar, 19 111. App. 5.58; refusal by innocent purchasers of stolen property to pay the proceeils of a sale thereof to its rightful owner: AIcDan- ielv. Adams, 87 Tenn. 756; delivery by agent in payment of his debt of a watcli intrusted to him for sale: KoiUck v. Cohurn, 68 Me. 170; continuing to use and claim a chattel taken in exchange of a person having no title thereto, after being informed of the title of the owner: Porter v. Foder, 20 Me. 391; 37 Am. Dec. 59; unjustifiable refusal by a master to proceed on a voyage, or deliver the cargo to its owners: Portland Bank v. Stuhhs, 6 Mass. 422; receiving a loan of property, knowing that he who granted the loan was without authority to do so: like v. Clark, 8 Vt. 109; purchasing and collecting a promissory note, with knowledge of the claim of its owner: Allison V. King, 25 Iowa, 56; removal of goods by a purchaser after notice that his vendor held them only as a factor: Scriher v. Masten, 11 Cal. 303; refusal by an auctioneer to surrender property upon a demand being made on him by an assignee in insolvency, and proceeding to sell in disregard of such demand, after knowledge of the insolvency: MiUikln v. Hatliawny, 148 Mass. 69; agreement by an agent to hold the goods of his principal for a third person: Holbrook v. Wigld, 24 Wend. 169; 35 Am. Dec. 607; refusal by an officer to deliver upon demand intoxicating liquors seized without a war- rant, and detained without legal authority: Weston v. Carr, 71 Me. 356. Con VERSION by Delivering Chattels to One not their Owner. — If the holder of goods, as the agent or bailee of another, delivers them to one who claims title adverse to the owner, or who seeks possession of them for the purpose of destroying or devoting them to some use inconsistent with the rights of the owner, the party so delivering them is liable for a conversion: Savage v. Darling, 151 Mass. 5; Hill v. Hayes, 38 Conn. 532; Hicks v. Lyle, 46 Mich. 488; Huhbell v. Blandy, 87 Mich. 209; ante, p. 154; nor can this liability be avoided by showing that the person to whom the delivery is made was an officer claiming tlie right to seize the property as such under a writ in his hands, unless in fact the writ authorized the seizure: Gibbons v, Farivell, 63 Mich. 344; 6 Am. St. Rep. 301; Kiffv. Old Colony etc. Ry Co., 117 Mass. 591; 19 Am. Rep. 429; Edwards v. White L. T. Co., 104 Mass. 159; 6 Am. Rep. 213; Hall v. Boston R. R. Co., 14 Allen, 439; 92 Am. Dec. 783. If, however, a bailee receives goods from one whom he finds in posses* sion of them, and believes to be their owner or entitled to their possession, and sul)sequently redelivers them to him in good faith in pursuance of the express or implied terms of the bailment, and without any knowledge of the claims of one who turns out to be their true owner, he is not answerable to the lat- ter for their conversion: NeLwnv. Iverson, 17 Ala. 216; Burditt v. Hxint,2?t Me. 419; 43 Am. Dec. 289; Nanson v. Jacob, 93 Mo. 331; 3 Am. St. Rep. 531; Sheridan v. Neiu (Jitny Co., 4 Cum. B., N. 8., 619; Ogle v. Atkinson, 5 Taunt. 759; Riddle v. Bond, 6 Best & S. 225; Hardmanv. Willcock, 9 Bing. 328; Bales v. Stanton, 1 Duer, 79; Mctcalfv. McLaughlin, 122 Mass. 84. Perhaps he may sa;ely return them after having notice of the claims of the owner, if he does so before any demand is made for the possession of the property and without asserting any right of dominion or control over it adverse to the title or inconsistent with the rights of the owner: Rembaughv. Phipps, 75 Mo. 422. A bailee of goods from one whom he knows did not lawfully hold tliem has al.-so been held not to be liable for letting them be taken out of bis possession by the bailor, where he did nothing to withhold possession from the owner, and tiiere is iioihing to indicate that he would have withheld such Am. St. Kfip. Vol. XXiV.— 51 802 BoLLiNG V. KiRBY. [Alabama, possession had the owner made any demand upon him therefor: Loriiig v. Mulcahy, 3 Allen, 575. A warehouseman who, when an officer goes to his warehouse with a writ of attachment and demands access for the purpose of levying upon certain goods therein, opens the house and permits, or at least does not oppose, the officer's taking them, has been held not to be guilty of a conversion, though the taking was not authorized. The grounds upon which this decision was placed by the court which rendered it were, that the ware- houseman in not impeding the officer in finding or taking the goods, and even in pointing them out to him as the goods he was in search of, did not show any intention to give permission to take the goods, but merely submit- ted to legal process and to the exercise of authority made by the officer holding it: Clet, 25 Minn. 189; Wheeler v. Wheeler, 33 Me. 347; Perminter v. Kdly, 18 Ala. 71(3; 54 Am. Dec. 177; Nowlen v. Colt, 6 Hill, 461; 41 Am. Dec. 756; Hall v. Page, 4 Ga. 428; 48 Am. Dec. 235; Hyde v. Stone, 9 Cow. 230; 18 Am. Dec. 501; Hutchinson, v. Chase, 39 Me. 508; 63 Am. Dec. 645; Burbank v. Crooker, 7 Gray, 158; 66 Am. Dec. 470; while the English decisions and those of a few of the American states deny that a sale by a part owner can be a conversion of the interest of his co-tenant, unless accompanied by pecu- liar circumstances resulting in the loss of the property to the latter: Sanborn V. Merrill, 15 Vt. 700; 40 Am. Dec. 701; Welch v. Clark, 12 Vt. 681; 36 Am. Dec. 368; Pitt v. Petway, 12 Ired. 73; Rooks v. Moore, 1 Busb. 1; 57 Am. Dec. 569; Barton v. Williams, 5 Barn. & Aid. 403; Mayhew v. Hfrrirk, 7 Com. B. 229; 13 Jur. 1078; 18 L. J. Com. P. 179; Morgan v. Marquis, 9 Ex. 145; Brady v. Arnold, 19 U. C. C. P. 46; Freeman on Cotenancy, sec. 309. Personalty Which may be Converted, — Every species of personal property which is subject to ownership, and over which another than the owner can exercise dominion or control in defiance of or inconsistent with the owner's rights, may, when such dominion or control is so exercised, be regarded as converted: Spalding v. Preston, 21 Vt. 9; 50 Am. Dec. 68. Hence an action of trover may be sustained for the conversion of money or bank bills: Moody v. Keener, 7 Port. 218; promissory notes and other evi- dence of indebtedness: Lowremore v. Berry, 19 Ala. 130; 54 Am. Dec. 188; Day V. Whitney, 1 Pick. 503; Davis v. Funk, 39 Pa. St. 243; 80 Am. Dec. 519; Grisivold v. Judd, 1 Root, 221; Comparet v. Burr, 5 Blackf. 419; Brick- house V. Brickhouse, 11 Ired. 404; Otisfield v. Mayhen-y, 63 Me. 197; Stone v. Clough, 41 N. H. 290; Penniman v. Winner, 54 Md. 127; contracts for the sale of land and other property: Hazewell v. Coursen, 45 N. Y. Sup. Ct. 22; cer- tificates of the stock of corporations: Kingman v. Pierce, 17 Mass. 247; Payne V. Elliot, 54 Cal. 339; 35 Am. Rep. 80; Neiler v. Kelley, 69 Pa. St. 403; Budd V. R. R. Co., 12 Or. 271; 53 Am. Rep. 355; Daggett v. Davis, 53 Mich. 35; 51 Am. Rep. 91; copies of accounts: Fullam v. Cummings, 16 Vt. 697; 0' Donoghue v. Corby, 22 Mo. 394; writs of execution: Keeler v. Fassett, 21 Vt. 539; 52 Am. Dec. 71; and fixtures, which, either from their character, mode, or annexation, or the agreement of the parties, reniRin personal prop- erty: Smith V. Benson, 1 Hill, 176; Osgood v. Howard, 6 Greenl. 452; 20 Am. Dec. 322; Harris v. Powers, 57 Ala. 139; Da7ne v. Dawe, 38 N. H. 429; 75 Am. Dec. 195; Korbe v. Bar/our, 130 Mass. 255; Powers v. Harris, 68 Ala. 409; Russell v. Richards, 11 Me. 371: 26 Am. Dec. 532; Hilhorne v. Brown, 12 Me. 162; Brown v. Wallis, 115 Mass. 156; Crippen v. Morrh-on, 13 Mich. 23; but it is said that such an action is not sustainable for the conversion of judgments or other records: Piatt v. Potts, 11 Ired. 26(3; 53 Am. Dec. 412; Cobb V. Cornegay, 6 Ired. 358; 45 Am. Dec. 497. The fact that the property alleged to have been converted has no value except to its owner will not defeat an action for its conversion: Pierce v. GiUon, 9Vt. 216; Piatt v. Potts, 11 Ired. 266; 53 Am. Dec. 412; Lowremore v. Be7-ry, 19 Ala. 130; 54 Am. Dec. 188. Where a bond, note, or other evidence of indebtedness is, after it8 payment, seized, detained, or transferred by a person having no right so to do, when it is no longer capable of being asserted as a cause of action, some May, 1890.] Roach v. Privett. 819 of the cases have regarded it as so extinguished by the payment as no longer to be the subject of conversion: Besherer v. Snnshn; 3 N. J. L. 748; Todd V. Crookshanks, 3 Johns. 432; Lowremore v. Berry, 19 Ala. 130; G4 Am. Dec. 188; Piatt v. Potts, 11 Ired. 266; 53 Am. Dec. 412. While, in other cases, any wrongful disposition of a paid note or bond has been adjudged to amount to its conversion as against the maker, who by such payment becomes en- titled to its possession: Stone v. Gloiigh, 41 N. H. 290; Oiisjield v. Maijberry, 63 Me. 197; Neal v. Hanson, 60 Me, 84; Buck v. Kent, 3 Vt. 99; 21 Am. Dec. 576; Spencer v. Dearth, 43 Vt. 98. If a note is founded upon illegal consid- erations, the payee cannot sustain an action for its conversion: Morrill v, Ooodenow, 65 Me. 178; nor can such action be maintained in any instance when the thing converted is such that it was unlawful and criminal for the plaintiflF to have it in his possession, as where it is a counterfeit coin, or an implement designed to aid in the making of such coin: Spaldiny v. Preston, 21 Vt. 9; 50 Am- Dec. 68. KoACH V. Privett. [90 Alabama, 391.J Judgments — Merger — Foreign Judgment. — A judgment appealed from is merged in a judgment of affirmance on appeal. This rule applies in a suit on a judgment of affirmance rendered in another state. Judgments — Merger by Affirmance — J aRiSDicTiON. — When the judg- ment sued on was affirmed on appeal, and the defendant submitted him- self to the jurisdiction of the appellate court, he cannot assail it on the ground that the trial court never acquired jurisdiction of his person. This rule applies to affirmed judgments of other states. Judgments — Conclusiveness of, as against Set-off. — A set-off may or may not be pleaded, at the election of the defendant; and if not pleaded, the right to sue upon it as an independent cause of action, or to rely upon it in defense to another action by the same plaintiff, is not affected or impaired by a judgment against the defendant. This rule applies to a suit on a judgment rendered in another state, in the absence of proof that a different rule prevails there. Practice — Error without Injury in Exclusion of Evidence. — When evidence is erroneously excluded, the rule of error without injury can- not be invoked, on the ground that the ruling was made after all the evidence on that point had been adduced, and that the evidence was in- sufficient. Judgments. — Parol Evidence of Justice's Judgment rendered during a former term of office is not admissible on proof of search in his office for his docket and papers, and in the absence of proof that he has been in office continually since the judgment was rendered, or has succeeded himself after being out one or more terms. William L. Martin and J. E. Brown, for the appellant. Hunt and Clopton, for the appellee. McClellan, J. The judgment sued on was rendered by the supreme court of Tennessee on appeal from a circuit AMERICAN STATE REPORTo. SIATK :. (lOODW'IIJ,, Si V t 1 '. MINOR. |33 Wksi Vik(;ima, 17y. | Constitutional law, equal rights employers and employes, Nov. 1889.] State v. Goodwill. 863 WATEKcouKSEg — Floatablf. Stream — Right of Land-owner to Erect Mill-dam. — Tlie owner of soil over which a floatable stream passes may build a dam across it, but he must furnish a suitable sluice for the public by or through his dam: Lancey v. Clifford, 54 Me. 487; 92 Am. Dec. 5()1 ; Dwi' nel V. Veazie, 44 Me. 167; 69 Am. Dec. 94, and note; note to Statev. Thomp- son, 47 Am. Dec, 589; Bicharda v. Peter, 70 Mich. 286. State v. Goodwill. State v. Minor. [33 West Virginia, 179.J Constitutional Law — Equal Rights. — The Rights of Every Indi- vidual must stand or fall by the same rule of law that governs every other member of the body politic under similar circumstances, and every partial or private law which directly proposes to destroy or affect individual rights, or does the same thing by restricting the privileges of certain classes of citizens, and not of others, when there is no public necessity for such discrimination, is unconstitutional and void. Constitutional Law. — The Police Power, however broad and extensive, is not above the constitution, and must be exercised in subordinacy to it. Constitutional Law — Employers and Employees. — A statute declar- ing that all persons engaged in mining coal, ore, or other minerals, or mining or manufacturing them, or either of them, or manufacturing iron or steel, or both, or any other kind of manufacturing, shall not issue, for the payment of labor, any order or other paper, unless the same purports to be redeemable at its face value in legal money of the United States, bearing interest at the legal rate, made payable to the employee or bearer, and redeemable within thirty days by the maker thereof, ia unconstitutional and void. Henritze and Hay the, C. W. Smith, J. W. St. Clair, and Brown and Jackson, for the plaintiffs in error. Alfred Caldwell, attorney-general, for the state. Snyder, P. These two cases present the same questions and may therefore be considered together. The first is a writ of error to a judgment of the circuit court of Mercer County pronounced on April 3, 18(S9; and the second is a writ of error to a judgment of the circuit court of Fayette County pronounced September 29, 1887. Both are indict- ments and convictions for the violation of section 3 of chapter 63, Acts of 1887: See Code 1887, p. 963. The title of said act ia as follows: "An act to secure to operatives and laborers engaged in and about mines, manu- factories of iron and steel, and all other manufactories, the payment of their wages at regular intervals, and in lawful money of the United States." And the first and third sec- 864 State v. Goodwill. [W. Virginia, tions are in these words: " 1. That all persons, firms, cor- porations, or associations in this state engaged in mining coal, ore, or other minerals, or mining and manufacturing them, or either of them, or manufacturing iron or steel, or both, or any other kind of manufacturing, shall pay their em- ployees as provided in this act 3. That it shall not be lawful for any person, firm, company, corporation, or association engaged in the business aforesaid, their clerk, agent, officer, or servant, in this state, to issue for the payment of labor any order or other paper whatsoever, unless the same purports to be redeemable, for its face value, in lawful money of the United States, bearing interest at the legal rate, made payable to employee or bearer, and redeemable within a period of thirty days by the person, firm, company, corporation, or association giving, making, or issuing the same." The resi- due of the section makes its violation a misdemeanor, and fixes the penalty at not less than twenty-five dollars, or more than one hundred dollars. There was a demurrer to each of the indictments, which was overruled by the court; and the plaintiffs in error assign this as ground for the reversal of the judgments. The main question argued before this court is, whether or not the said statute is constitutional, the counsel for the plain- tiffs in error contending that it is unconstitutional and void, and the attorney-general insisting that it is a proper exercise of the police power, and therefore not unconstitutional and void. It will be observed that this statute applies to certain specified classes of persons, firms, companies, corporations, and associations, and none others. It is by its terms limited to persons, corporations, etc, engaged in mining coal or other minerals, or any kind of manufacturing. While these terms include not only all persons engaged in mining coal and other minerals, and all persons engaged in manufacturing iron and steel, but also all persons engaged in any kind of manufacturing, such as the shoemaker, the cigar-maker, the undertaker, the distiller, the brick-maker, the jeweler, the weaver, the milliner, the dairy-man, and the miller, it does not include the wholesale merchant with his hundreds of clerks and agents, the railroad construction companies or railroad companies with tlieir thousands of employees. The propriety or the necessity, if such exists, of applying the provisions of the statute to these latter is equally as great, if not greater, Nov. 1889.] State v. Goodwill. 865 as it is to any of the former. The rights and privileges of certain specified employers are abridged, while others of the same class are left free. By the first section of the fourteenth amendment of the con- stitution of the United States, all persons born or Jiaturalized in the United States are made citizens thereof; and it then declares that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." And the bill of rights of this state declares that "all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, »ud of pursuing and obtaining happiness and safety ": Const., art. 3, sec. 1. Can the legislature, in view of these constitu- tional guaranties, limit or forbid the right of contract between parties under no mental, corporal, or other disability, when the subject of contract is lawful, not public in its character, and the exercise of it is purely private, and personal to the parties themselves? The court, in People v. Gillson, 109 N. Y. 398, 4 Am. St. Rep. 465, says: "The term 'liberty,' as used in the constitu- tion, is not dwarfted into mere freedom from physical re- straint of the person of the citizen, as by incarceration, but is deemed to embrace the right of man to be free in the enjoy- ment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. Liberty, in its broad sense, as under- stood in this country, means the right, not only of freedom from servitude, imprisonment, or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation": Field, J., in Butchers^ Union etc. Co. v. Crescent City etc. Co., Ill U. S. 755; Butchers^ Ass'n v. Crescent City Co., 1 Abb. 898. The court in Civil Rights Cases, 109 U. S. 23, says: "Under the Fourteenth Amendment, it [Congress] has power to coun- teract and render nugatory all state laws and proceedings which have the effect to abridge any of the privileges or im- munities of citizens of the United States, or to deprive them of life, liberty, or property without due process of law, or to deny to any of them the equal protection of the laws Am. St. Rep., Vol. XXV.— 55 866 State v. Goodwill. [W. Virginia^ Many wrongs may be obnoxious to the prohibitions of the Fourteenth Amendment, which are not, in any just sense, inci- dents or elements of slavery. Such, for example, would be the taking of private property without due process of law; or allowing persons who have committed certain crimes (horse- stealing, for example) to be seized and hung by the posse coiul- tatns without regular trial; or denyin gto any person or class of persons the right to pursue an}'' peaceful avocation allowed to others. What is called 'class legislation ' would belong to this category, and would be obnoxious to the prohibitions of the Fourteenth Amendment." The rights of every individual must stand or fall by the same rule of law that governs every other member of the body politic under similar circumstances; and every partial or pri- vate law which directly proposes to destroy or affect individ- ual rights, or does the same thing by restricting the privileges of certain classes of citizens, and not of others, when there is no public necessity for such discrimination, is unconstitutional and void. Were it otherwise, odious individuals or corporate bodies would be governed by one law, and the mass of the community, and those who make the law, by another; whereas a like general law affecting the whole community equally could not have been enacted: Wally v. Kennedy^ 2 Yerg. 554; 24 Am. Dec. 511. The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing these in what manner he may think proper, without injury to his neighbor, is a plain viola- tion of this most sacred property. It is equally an encroach- ment both upon the just liberty and rights of the workman and his emplo3^er, or those who might be disposed to employ him, for the legislature to interfere with the freedom of contract be- tween them, as such interference hinders the one from working at what he thinks proper, and at the same time prevents the other from employing whom he chooses. A person living under the protection of this government has the right to adopt and follow any lawful industrial pursuit, not injurious to the community, which he may see fit. And as incident to this is the right to labor or employ labor, make contracts in respect thereto upon such terms as may be agreed upon by the parties, to enforce all lawful contracts, to sue, and give evidence, and Nov. 1889.] State v. Goodwill. 867 to inherit, purchase, lease, sell, and convey property of every kind. The enjoyment or deprivation of these rights and l)rivileges constitutes the essential distinction between freedom and slavery; between liberty and oppression. These princi- ples have been fully recognized and announced in many de- cisions of the supreme court of the United States and other courts: Yick Wo v. Hopkins, 118 U. S. 356; Slaughter House Cases, 16 Wall. 36; Butchers^ Union Co. v. Crescent City etc. Co., Ill U. S. 746; 6 Myer's Fed. Dec, sec. 1000; In re Ja- cobs, 98 N. Y. 98; 50 Am. Rep. 636; People v. Marx, 99 N. Y. 377; 52 Am. Rep. 34; Ex parte Westerfield, 55 Cal. 550; 36 Am. Rep. 47; Ragio v. State, 86 Tenn. 272; State v. Divine, 98 N. C. 778. The vocation of an employer, as well as that of his em- ployee, is his property. Depriving the owner of property of one of its attributes is depriving him of his property, under the provisions of the constitution: People v. Otis, 90 N. Y. 48. The right to use, buy, and sell property, and contract in respect thereto, including contracts for labor, — which is, as we have seen, property, — is protected by the constitution. If the legislature, without any public necessity, has the power to prohibit or restrict the right of contract between private persons in respect to one lawful trade or business, then it may prevent the prosecution of all trades, and regulate all contracts. "Questions of power," says Marshall, C. J., in Brown v. Maryland, 12 Wheat. 419, ''do not depend on the degree to which it may be exercised. If it may be exercised at all, it must be exercised at the will of those in whose hands it is placed." No one questions the position that, unless the government intervened to protect property and regulate trade, property would cease to exist, and trade would exist otdy as an engine of fraud; but this does not authorize the government to do for its people what they can do for themselves. The natu- ral law of supply and demand is the best law of trade. In Munn V. Illinois, 94 U. S. 113, and otlier cases involving the same questions, the supreme court of the United States has held that persons or corporations engaged in occupations in which the public have an interest or use may be regulated by statute. But the reasons assigned for these decisions are, that the public has a use in these occupations, and that the persons engaged in them are in the exercise of a public fran- chise, or special privileges, not enjoyed by others not so en- 8G3 State v. Goodwill. [W. Virginia, gaged; that their business implies a trust and public duty; and that the government has therefore the power to see that this trust is not abused, and that the duty imposed by it is properly performed. On this principle, statutes have been upheld which regulate the charges of railroad companies and other common carriers; elevator, telephone, telegraph, and other companies; hackmen, warehousemen, owners of water- mills, etc. But we are aware of no well-considered case in which a statute has been upheld that undertook to regulate the dealings between employer and employee, even in this class of occupations, much less in cases that are not im- pressed with a public trust or duty. But the claim is made that the legislature should pass fhe act now in question, in the exercise of the police power which every sovereign state possesses. That power is very broad and comprehensive, and is exercised to promote the health, safety, and welfare of society. Its exercise in extreme cases is frequently justified by the maxim, Sahts populi suprema lax est. It is used to regulate the use of property by enfor- cing the rule. Sic utere tuo ut alienuvi non Ixdas. Under it, the conduct of an individual and the use of property may be regulated so as to interfere, to some extent, with the freedom of the one and the enjoyment of the other; and in cases of great emergency, engendering overruling necessity, property may be taken or destroyed without compensation. The limit of the power cannot be accurately defined, and the courts have not been willing definitely to circumscribe it. But this power, however broad and extensive, is not above the consti- tution, which is the supreme law; and, so far as it imposes restraints, the police power must be exercised in subordination to it: In re Jacobs, 98 N. Y. 98; 50 Am. Rep. 636; Cooley's Constitutional Limitations, 719; Mugler v. Kansas, 123 U. S. 623. Generally, it is for the legislature to determine what laws and regulations are proper in the exercise of the police power; but if it passes an act ostensibly for the public health or safety, and thereby destroys or takes away the property of a citizen, or interferes with his rights or personal liberty, then it is for the courts to determine whether it is a proper and reasonable exercise of the power, and if it is not, to declare it void: Austin v. Murray, 16 Pick. 121; State v. Gilman, 33 \V. Va. 146. The right to regulate the rate of interest existed at the time' Nov. 1889.] State t;. Goodwill. 869 the constitution was adopted, and cannot therefore be consid- ered as either an abridgnjent or restraint upon the rights of the citizen guaranteed by the constitution. The power to pass usury laws exists by immenioriai usage; but such is not the case with such acts as we are now considering: Munn v. Illiiwis, 94 a. S. 113, 153. Our act is almost a literal copy of an act passed by the legislature of Pennsylvania on June 29, 1881: Pa. Laws, 1881, p. 147. In Godcharles v. Wigeman, 113 Pa. St. 431, the supreme court of that state declared the first four sections of that act unconstitutional and void. The court, in its opinion, says: " Tlie first, second, third, and fourth sections of the act of June 29, 1881, are utterly unconstitutional and void, inasmuch as by them an attempt has been made by the legislature to do what, in this country, cannot be done; that is, prevent per- sons who are s^d juris from making their own contracts. The act is an infringement alike of the rights of the employer and the employee. More than this, it is an insulting attempt to put the laborer under a legislative tutelage, which is not only degrading to his manhood, but subversive of his rights as a citizen of the United States. He may sell his labor for what he thinks best, whether money or goods, just as his employer may sell his iron or coal; and any and every law that pro- poses to prevent liira from so doing is an infringement of his constitutional privileges, and consequently vicious and void." In Millett v. People, 117 111. 294, 57 Am. Rep. 869, the supreme court of Illinois, in a well-considered opinion, held unconstitutional and void an act of the legislature of that state wliich required the owners or operators of mines to pro- vide scales for weighing their coal, and make the weight of coal the basis of the wages of miners. A part of the syllabus is as follows: "It is not competent for the legislature, under the constitution, to single out owners and operators of coal mines and provide that they shall bear burdens not imposed on other owners of property or employers of labor, and prohibit them from making contracts which it is competent for other owners of property or employers of labor to make. Such legis- lation cannot be sustained as an exercise of tlie police power." In view of what the courts have uniformly held in respect to this class of legislation, it is needless to prolong this dis- cussion. It is a species of sumptuary legislation which has been universally condemned, as an attempt to degrade the intelligence, virtue, and manhood of the American laborer, 870 State v. Goodwill. [W. Virginia, and foist upon the people a paternal government of the most objectionable character, because it assumes that the employer is a knave and the laborer an imbecile. "Such legislation," as is well said by the court in In re Jacobs^ 98 N. Y. 114, 50 Am. Rep. 636, "may invade one class of rights to-day and another to-morrow; and if it can be sanctioned under the constitution, while far removed in time, we shall not be far away in practical statesmanship from those ages when governmental prefects supervised the build- ing of houses, the rearing of cattle, the sowing of seed, and the reaping of grain, and governmental ordinances regulated the movements and labor of artisans, the rate of wages, the price of food, the diet and clothing of the people, and a large range of other affairs long since, in all civilized lands, re- garded as outside of governmental functions. Such govern- mental interferences disturb the normal adjustments of the social fabric, and usually derange the delicate and compli- cated machii^ery of industry, and cause a score of ills while attempting the removal of one." For the reasons aforesaid, we are clearly of opinion that the said third section of the act aforesaid is unconstitutional and void. In arriving at this conclusion, we have not been un- mindful that the power of the courts to condemn legislative acts as unconstitutional is one of great delicacy, and to be exercised with extreme caution, and even with reluctance. But, as said by Chaticellor Kent (1 Kent's Com. 450), "it is only by the free exercise of this power that courts of justice are enabled to repel assaults, and protect every part of the gov- ernment and every member of the commuity from undue and destructive innovations upon their charter rights." The statute itself being, as we have seen, unconstitutional and void, there could be no valid indictment founded upon it; and consequently the circuit court erred in overruling the demurrer to the indictment in each of these cases; and for that reason the judgments of the circuit court are reversed, and the defendants discharged. The Fourteenth Amendment Considered -with Relation to Special Privileges, Burdens, and Restrictions.* The First Section of the Fourteenth Amendment to the constitution of the United States declares that " all persons born or naturalized in the United ♦reference to monographic notes. statutes prohibiting adulteration of milk: 51 Am. Rep. 347-354. Statutes prohibiting business on Sunday: -19 Am. Dee. 616-6-23. statutes regulating sales of intoxicating liquors: a5 Am. Dec. 331-334 I Nov. 1889.] State v. Goodwill. 871 States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside. No state shall make or en- forue any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its ju- risdiction the equal protection of the laws." Many of the state constitu- tions contain provisions of nearly similar import, the object of which is to secure to all persons equality before the law, and to prevent the imposition of burdens upon one person to which others are not subject under the same circumstances. No questions exceed in interest and importance those which present for judicial determination the validity of statutes assailed on the ground that they concede privileges to, or impose penalties or burdens upon, one or more persons to which others belonging to the same class are not en- titled in the one case and not liable in the other. Orhjinal Purpose of the Fourteenth Amendment. — Speaking of the amend- ments to the constitution of the United States adopted at the close of the Civil War, the supreme court said: " We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all, and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of tlie slave race, the security and firm establishment of that fi'eedom, and the protection of the newly made freeman and citizen from the oppressions of those who formerly exercised unlimited dominion over him. It is true that only the Fifteenth Amendment in terms mentions the negro by speak- ing of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to rem- edy them, as the fifteenth. We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Un- doul)tedly, while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may be safely trusted to make it void. And so if other rights are assailed by the states which properly and necessarily fall within the protection of these articles, that protection will apply, though the party in- terested may not be of African descent. But what we do say, and what we wish to be understood, is, that in any fair and just construction of any sec- tion or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accomplish it": Slauijhler House Cases, 16 Wall. 71; Plunkard v. State, G7 Md. 364. With respect to the privileges or immuni- ties of citizens of a state as coutradistinguislied from the privileges or immu- nities of citizens of the United States, the decision from which we have just quoted established that it was the latter only which were secured by the Fourteenth Amendment, and that if there were any difiference between the privileges and immunities "belonging to a citizen of the United States as Bucli, and those belonging to a citizen of a state as such, the latter must rest for their security and protection where they have heretofore rested; for 872 State i\ Goodwill. [W. Virginia, they are not embraced within this paragraph of the amendment; and fur- thermore, that the inhibition against any state denying to any person within its jurisdiction the equal protection of its laws was chiefly designed to ren- der void " laws in the states where the newly emancipated negroes resided which discriminated with gross injustice and hardship against them as a class, "and to forbid the enactment or enforcement of such laws in the fu- ture." Privileges and Immunities of Citizens. — The Fourteenth Amendment did not add to the privileges and immunities of any citizen of the United States, but merely furnished additional guaranties of such as he already had. Hence, as the right of sufferage was not necessarily a privilege of a citizen, it was not conferred upon any person by that amendment: Minor v. Hap- persett, 21 Wall. 162. The only consequence of its denial was, when de- nied to any male citizen and inhabitant of a state more than twenty-one years of age, except for participation in some crime, a diminution in the number of representatives in Congress, and electors for President and Vice- President, to which the denying state was otherwise entitled. Nor has any amendment given to all citizens the right to vote, though the fifteenth has prohibited the denial of that right "on account of race, color, or previous condition of servitude." The result is, that any state may discriminate be- tween its citizens by denying to some of them the right of suffrage, provided the test of exclusion is not that of race, color, or previous condition of servi- tude: United States v. Reese, 92 U. S. 214; United States v. Cruikahanh, 92 U. S. 542. Nor is the right to practice law: Bradicellv. State, 16 Wall. 130; or to have a cause in a state court tried before a jury: Walker v. Sauvinet, 92 U. S. 90, — a privilege or immunity secured by this amendment. And if there is any privilege or immunity of a citizen of the United States which could have been abridged by a state before the adoption of this amendment, and which has by the amendment been witlidrawn from the power of state abridgment, it does not stand revealed in any light emitted by the highest of the national courts. The real force of the amendment is contained in its clauses declaring who are citizens, and prohibiting the denial of the equal protection of the laws and the deprivation of life, liberty, or property with- out due process of law. Who are Protected by the Fourteenth Amendment. — While, as indicated in the Slaui/Iiter Houfte C(ise», the purpose of the Fourteenth Amendment of protecting the enfranchised negro against oppression and unjust discrimi- nation may properly be considered in determining whether the special privileges granted or burdens exacted by a statute are forbidden by the amendment, and the fact that the statute in question is or is not against or specially applicable to that race may exercise a great or even paramount influ- ence in the deliberations of the judiciary, yet there is no doubt that all other races or persons within the jurisdiction of the state, whether citizens or aliens, " without regard to any dififeiences in race, color, or nationality," are within the protection of that portion of the amendment prohibiting any state from depriving any person of life, liberty, or property without due process of law, and from denying to any person within its jurisdiction the equal protec- tion of the laws: Yick Wo v. Hopkins, 118 U. S. 3(39. As to non-residents, a difi"erent rule may apply. If they are citizpns of the United States, the privi- leges and immunities to whicli they are entitled as such are by the express terms of the amendment not to be impaired by any state; but if there is any immunity or privilege peculiar to the citizen of a state, and not possessed by other citizens of the United States, it may doubtless be withheld from non- Nov. 1889.] State v. Goodwill. 873 residents. It has been decided that a state may impose conditions upon non-residents suing in its courts not imposed upon residents, — such, for in- stance, as requiring them to give security for costs: Cuinmings v. Wingo, 31 S. C. 427; or may deny to non-residents the right to sue foreign corporations in its courts, unless the cause of action shall have arisen, or the subject of the action shall be situated within, the state: Central etc. Co. v, Georgia etc. Co., .32 S, C. 319. So far as a state possesses property, it may restrict the right to use it to residents. Hence it may prohibit residents of other states from planting or taking oysters, or fishing in tide or other waters, the ownership of which is vested in the state: People v. Loumles, 130 N. Y. 455; McCreddy v. Virginia, 94 U. S. 391; Commomvealth v. Manchester, 152 Mass. 280; 23 Am. St. Rep. 820; Manchester v. Masmchnsetts, 139 U. S. 240. The privileges to which non-residents are entitled under the constitution must, we apprehend, be those secured them by section 2 of article 4, declaring that "the citizens of each state shall be entitled to all privileges and im- munities of citizens of the several states." The consideration of this clause of the constitution is not within the purview of the present note. The leading decisions construing it are Corfield v. Coryell, 4 Wash. C. C. 380; Conner v. Elliott, 18 How. 591; Paid v. Virginia, 8 Wall. 180; Ward v. Marylind, 12 Wall. 418. Corporations, to What Extent Protected. — Private corporations must also be regardept. The imposition of special restrictions or burdens or the granting of special privi- leges to persons engaged in the same business, under the same circumstances, is in contravention of the equal right which all can claim in the enforcement of the laws and in the enjoyment of liberty, and the right of acquiring and pos- sessing property ": State v. Hinm5(). | Malicious Prosecution. Jan. 1891.] Ross v. Hixon. 123 case, the court said: "Where a parent executes to his infant son a conveyance of property in consideration of services per- formed, it must be considered as a voluntary conveyance, without legal consideration, as he is not legally bound to pay for his son's services. Such a deed is therefore void against the creditors of the parent, if made when his remaining prop- erty is insufficient to pay his debts." We think there was no evidence to support a consideration in the deed for the lots in question from Beverly Anderson and wife to their minor son. We do not deem it necessary at this time to pass upon the sufficiency of the consideration of the conveyance as to William Mack Anderson. We recommend a reversal of the judgment, and that a new trial be granted. The Court. It is so ordered. Fraudulent Conveyances between Parent and Child. — A convey- ance by ail insolvent father to his son of property, the consideration for which is that the sou should support him during his life, is fraudulent and void as to his existing creditors: Woodallv, Kelli/, 85 Ala. .368; 7 Am. St. Rep. 57; John- ston V. Harvy, 2 Penr. & W. 82; 21 Am. Dec. 426, and note; and the same rule exists where the consideration for the conveyance was the earnings of a minor unemancipated son: Holliday v. Miller, 29 W. Va. 424; 6 Am. St. Rep. 653, and note; Ionia Savings Baiik v. McLean, 84 Mich. 625. Eoss V. HlXON. [46 Kansas, 550.] Malicious Prosecution — Pkobablk Cause — Findino as Evidenck. — The finding of a contmitting magi.strate that an offense has been com- mitted, and that there is probable cause to believe the defendant guilty thereof, is only piima fitrie and not conclusive evidence of probable eause, in an action for nialicious prosecution, brought by such defendant after his discliarge, against the complaining witness. Malicious Pho.secution — Probable Cause. — Conviction is generally con- clusive of probable cause in actions for malicious prosecution, yet it may be overcome by showing that it was procured by fraud, undue means, or the false testiniuuy of the proi^ecution. Hulett and Fletcher, for the plaintiff in error. Hill and Chenault, for the defendant in error. Simpson, C. On the seventeenth day of .January, 1887, Hixon filed an affidavit before a justice of the pence in Bour- bon Coutity, charging Ross with having mixed certain poison 124 Ross V. HixoN. [Kansas, with a quantity of flour, with the intent and for the purpose of causing the death of certain persons. Upon said complaint a warrant was issued, and Ross was arrested. A preliminary trial was had on the 4th of February, before the justice who issued the warrant. At the preliminary examination, twelve witnesses were examined for the state and seven for the de- fendant. After the hearing of all the evidence, the justice bound Ross to appear at the district court and answer the charge. He failed to give bond, and was committed to jail. The finding of the justice was as follows: "After hearing the evidence, I find that said offense has been committed, and that there is probable cause to believe the defendant guilty thereof" Ross was in jail from the seventeenth day of January, 1887, until May 2, 1887. On the latter date, the district court of Bourbon County being in session, the county attorney filed a statement showing cause for non-prosecution, and Ross was dis- charged. On the eighth day of August, 1887, he commenced this action for malicious prosecution against James Hixon, the prosecuting witness. A trial was had at the May term, 1888. The plaintiff in error offered evidence showing the proceedings before the justice of the peace on the criminal charge, and tending to prove every material allegation in such an action. When the plaintiff rested, the defendant, Hixon, introduced a large number of witnesses, when he was interrupted by the court, the trial was stopped, and a verdict was ordered for the defendant. The jury returned a verdict for the defendant, and a motion for a new trial was overruled. The record itself dis- closes no reason for the ruling of the court, but counsel agree that the reason assigned by the trial court was, that the ex- amining magistrate had made a finding of probable cause, and that such finding was conclusive upon that question. It is further claimed by counsel for the defendant in error that the trial court made the further statement: "That as the petition does not charge fraud or undue means in obtaining the finding of probable cause by the magistrate, the same can- not be attacked." The sole question discussed in the oral argument of counsel for defendant in error and the briefs on both sides is as to the weight to be given to the finding of the examining magistrate; as to whether it is prima facie or conclusive on the question of probable cause; and whether or not, in either case, the find- ing must be attacked for fraud or undue means by proper al- legations in the petition. In the case of Sweeney v. Perney, 40 Jan. 1891.] Ross v. Hixon. 125 Kan. 102, this court incidentally noticed the conflict in au- thorities as to whether or not proof of arrest, committal, and indictment is prima facie proof of probable cause; and the case o( Riconlv. Central Pac. R. R. Co., 15 Nev. 167, was cited on one side, and that of Womack v. Circle, 29 Gratt. 192, on the other. The question in this case is closely allied to this controversy, but authorities can be found on both sides of this question. In the case of Bauer v. Clay, 8 Kan. 580, Mr. Jus- tice Valentine says: "The proof showing that the justice or- dered that Clay should be bound over for his appearance at court, or in default of bail, that he should be committed to the county jail, is only 'prima facie a.n^ not conclusive evidence of probable cause." The cases of Ash v. Marlow, 20 Ohio, 119, and Ewing v. Sanford, 19 Ala. 605, are cited in support. The force of this decision is sought to be destroyed by counsel for defendant iii error by an assertion that it is a dictum. It is sometimes dif- ficult to draw the line between what is authoritative and what is not in a judicial opinion. The report of the case does not give either the pleadings, the assignment of errors, or the briefs, but it is evident that the question was necessarily in- volved in the rulings of the trial court, and this court thought it necessary to give this as one of the reasons for affirmance of the judgment below, because, if counsel for defendant in error are now right in their contention. Clay had no cause of action, and the case was decided wrongfully in both the trial and the appellate courts. However the rule may be in cases in which the magistrates have jurisdiction to hear and pass judgment, we are satisfied that the case of Bauer v. Clay, 8 Kan. 580, states the true rule in cases in which the magis- trates have only power to bind over. This rule is upheld by the cases of Ash v. Marlow, 20 Ohio, 119; Eiving v. Sanford, 19 Ala. 605; Raleigh v. Cook, GO Tex. 438; Ricord v. Central Pac. R. R. Co., 15 Nev. 167; Hale v. Boylen, 22 W. Va. 284; Bacon v. Toxone, 4 Cush. 217; Spalding v. Loioe, 56 Mich. 366; Ganea v. Southern Pac. R. R. Co., 51 Cal. 140; Diemer v. ITer- her, 75 Cal. 287. These are all express adjudications on that particular question. In one of these cases, decided in 1885, being that of Spalding v. Lowe, 56 Mich. 366, the defendant requested the trial court to instruct the jury as follows: "It appears from the proofs in this case that an examination was had upon the cliarge made against Spalding, and that the justice, upon such examination, determined that this of- 126 Ross V. HixoN. [Kansas, fense charged against Spalding had been committed, and that there was probable cause to believe said Spalding guilty thereof. This was a judicial determination the justice was au- thorized to make, and unless such action and determination of the justice was corrupt or collusive, or was wrongfully pro- cured by the defendant herein, it is final as to the question of probable cause, and your verdict should be for the defendant." The trial court refused to so instruct the jury, and this refusal was assigned as error in the supreme court; but that court say (page 372): "No authority has been produced in support of it, and we think none exists." We have been unable to find a reported case in which the rule is held as claimed by counsel for defendant in error. There are cases that so hold when the magistrate has power to render a judg- ment of conviction. How much weight as proof of probable cause shall be attrib- uted to the judgment of a court in an original action when subsequently reversed for error is elaborately discussed by the supreme court of the United States in the case of Cres- cent City Live Stock Co. v. Butchers^ Union etc. Co., 120 U. S. 141, — a case much relied on by counsel for defendant in error. To our mind, however, the distinction between that case and the one at bar is plain and distinct. If the magistrate in Bourbon County had possessed the statutory power to hear the evidence and determine the guilt or innocence of the defend- ant, and to punish by fine and imprisonment if guilt was found, then his finding and judgment would come within the rule established by that case to be the law of the land. The ques- tion in this case is, How much weight, as proof of probable cause, shall be attributed to the finding of an examining ma- gistrate that "an offense has been committed, and that there is probable cause to believe the defendant guilty thereof," when the defendant is subsequently discharged, the prosecu- tion against him confessedly ended, and he has instituted a suit for malicious prosecution against the complaining witness? In the one case, there is a solemn judgment, rendered by a court having full and complete jurisdiction both of the parties and subject-matter, binding on all until reversed on appeal or error. In the other case, there is a finding in effect that suffi- cient facts have been developed that justifies a magistrate in sending the parties before a court competent to ultimately deal with the question of guilt or innocence. Again, while a conviction is generally conclusive of prob- I Jan. 1891.] Ross v. Hixon. 127 able cause, yet it may be overcome by a showing that it was procured by fraud, undue means, or the false testimony of the prosecution: Womack v. Circle^ 29 Gratt. 192; Olson v. Needy 63 Iowa, 214; Cloon v. Gerry, 13 Gray, 201; Whitney v. Peck' ham, 15 Mass. 243; Peck v. Choteau, 91 Mo. 138; 60 Am. Rep. 236; Bowman v. Brown, 52 Iowa, 437; Palmer v. Avery, 41 Barb. 290; Richey v. McBean, 17 111. 63; Paysonv. Caswell, 22 Me. 212; Herman v. Brookerhoff, 8 Watts, 240; Jones v. Kirk- sey, 10 Ala. 839. In such a case the petition in the action for malicious prosecution must directly attack the judgment of conviction, or it will be suicidal. It is therefore unimportant whether the words used by the court in Bauer v. Clay, 8 Kan. 580, are dicta or authoritative in that case, as they express the law as universally held by all courts of last resort that have spoken on this subject. It follows that the other sug- gestion of counsel, that the finding of the magistrate must be directly attacked in the petition for fraud or undue means, is without force; because, as that finding is only prima facie, all that is necessary for the plaintiff to do to win is to overthrow it by a preponderance of evidence. It can be fairly said that there was evidence submitted at the trial by the plaintiff in error, other than the transcript of the proceedings before the examining magistrate, bearing upon the question of probable cause, which the court below permitted to go to the jury, from which they might have found that the prima facie case made by the magistrate's finding was overcome. It is recommended that the judgment of the district court be reversed, and the cause remanded, with instructions to grant a new trial. The Court. It is so ordered. Malicious Prosecution of Criminal Chargres.* Scope of This Note. — In Texas, and perhaps in other states, the institu- tion of a criminal prosecution by one person against another for the purpose of extorting money, or the payment or security of a debt, or with intent to vex, harass, or injure such person, is made an offense by the Penal Code, punishable by fine or imprisonment: Dempsey v. State, 27 Tex. App. 269; 11 Am. St. Rep. 193. It is not the purpose of this note to treat of malicious prosecution as a crime, nor to show what acts may constitute the offense de- •befkrknck to monooraphic notes. MalicloM prosecution of civil actions: 14 Am. Dec. 599-603; 44 Am. Rep. S46-348. Malicious prosecution, where the indictment does not charge a crime: 22 Am. Repw 689-644. Malicl«us prosecution, liab llty of corporations for: 34 Am. Rep. 495-499. Malicious prosecution, Judgment in, as a bar to subsequent action for libel or slaih der: 65 Am. Dec. 303, 304. yals« imprisonment, liabilities and remedies for: 54 Am. Dec 25S-27L 128 Ross V. HixoN. [Kansas, nounced by the penal codes of any of the states. Our attention will be con- fined to the consideration of the malicious prosecution of criminal proceedings as "rounds for the maintenance of civil actions to redress injuries suffered thereby, including the pleadings and evidence in such actions and the meas- ure of damages applicable thereto. Nature and Essentials of the Action. — To maintain a civil action for the malicious prosecution of a criminal charge, the plaintifif must show, — 1. A prosecution of him such as may support a recovery; 2. That it was in- stigated or procured by the defendant, or where there are two or more defendants, by the co-operation of all of them; 3. That the prosecution has teriniuated in the final acquittal or discharge of the plaintiff; 4. That it was without probable cause; and 5. That it was malicious: Vind v. Core, 18 W. Va. 1; Scott v. Shelor, 28 Gratt. 891; Wheeler v. Neshitt, 24 How. 544. The essential difference between an action for malicious prosecution and one for false imprisonment is, that in the former the imprisonment must have been under legal process issued as the result of a prosecution commenced or continued maliciously and without probable cause, while the latter lies for an imprisonment which is extrajudicial and without legal process, and from which the prosecutor cannot escape liability by proving that he acted upon probable cause and without malice: Boeger v. Langenberg, 97 Mo. 390; 10 Am. St. Rep. 322; Murphy v. Martin, 58 Wis. 276; Mitchell v. Slate, 12 Ark. 50; 54 Am. Dec. 253; Colter v. Lower, 35 Ind. 285; 9 Am. Rep. 735; Sutton V. Johnstone, 1 Term Rep. 493, 784; Floyd v. State, 12 Ark. 43; 54 Am. Dec. 250. What are the elements of damages arising out of a malicious prosecu- tion which may properly be considered by the jury in determining the com- pensation to be awarded the injured party will be treated in the latter part of this note. Whether an action be for malicious prosecution, false imprisonment, slan- der, or libel, injury to the plaintiff's reputation is one of the elements, and ordinarily the chief element, of his damages; and where two or more of these causes of action exist in favor of the plaintiff, and against the defendant, they may generally be united: Hashins v. Ralston, 69 Mich. 63; 13 Am. St. Rep. 376; Shore v. Smith, 15 Ohio St. 173; Miles v. Oldjield, 4 Yeates, 423; 2 Am. Dec. 412. When they all arise out of the same transaction, it is evident that all may be considered by the jury and recompensed by a single verdict: Williams V. Planters' Ins. Co., 57 Miss. 759; ^Teil v. Thorn, 88 N. Y. 270; and that one recovery in favor of the accused must preclude any further action by him: Boe(jer w, Langenberg, 97 Mo. 390; 10 Am. St. Rep. 322; Jarniganv. Fleming, 43 Miss. 710; 5 Am. Rep. 514; Sheldon v. Carpenter, 4 N. Y. 578; 55 Am. Dec. .301. What Pro.skcutions will Support the Action. — With respect to the crime alleged against the plaintiff in the prosecution of which he complains, we apprehend that it will sustain an action if it appears to have been a pros- ecution for any act or offense for which, had he been convicted, he might lawfully have been punished. As already indicated, the subject of the mali- ci'His prosecution of civil actions is not within the purview of this note. There are proceedings for which, though not strictly civil actions nor crimi- nal prosecutions, redress may be obtained by actions for malicious prosecu- tion, as where one is arrested or prosecuted on the suggestion of his lunacy: Lockenow v. Sides, 57 Ind. 360; 26 Am. Rep. 58; Look v. Dean, 108 Mass. 116; 11 Am. Rep. 323; Turner v. Turner, Gow, 50; or a search-warrant is maliciously or without probable cause obtained, authorizing the searching of his premises on the allegation that stolen goods are concealed therein: Whit- Jan. 1891.] Ross v. Hixon. 129 son V. May, 71 Ind. 269; Carey v. Sheets, 67 Ind. 375; Borger v. Langenherg, 97 Mo. 390; 10 Am. St. Rep. 322; J/eVfer v. Brown, 3 Mo. 127; 23 Am. Dec. 693; Ohon v. Tvele, 46 Minn. 225; Boot v. Cooper, 1 Term Rep. 535. Defects in the Accusation or Proceedings. — It may be that the charge as made does not constitute a public offense, or that for some other reason no conviction can be had under it, or though constituting some offense, it does not justify the proceeding taken or warrant issued by the magistrate, and cannot for that reason result in a conviction. In each of the instances sup- posed, there cannot, if the law is properly construed and applied, be any con- viction, and on that account it has been insisted that there is no prosecution such as will sustain an action, though it is shown to be malicious and with- out probable cause. As we shall hereafter show, it is necessary, to maintain an action for malicious prosecution, that the defendant was guilty of malice and acted without probable cause in preferring the charge which he made. If both of these elements are shown to have been present, it is not material that the prosecutor, in the complaint whicli he made, did not state facts suf- ficient to constitute a crime, or that some irregularity of proceeding after the complaint was preferred made the arrest under it improper and unau- thorized. Hence if the charge as made was false, malicious, and without probable cause, the person prosecuted cannot be deprived of compensation for such injury as may have resulted to him from it, by proving that the afl&- davit or complaint was defective in not charging a criminal offense or that the proceedings were otherwise irregular: Bell v. Keepers, 37 Kan. 64; Shaul v. Brown, 28 Iowa. 37; 4 Am. Rep. 151; Pofter v. Gjertien, 37 Minn. 386; Forrest v. Collier, 20 Ala. 175; 56 Am. Dec. 190; Ward v. Sator, 70 Tex. 343; 8 Am. St. Rep. 606; Parli v. Reed, 30 Kan. 534; Farley v. Danh-^, 4 El. & B. 493; Barton v. Kavanaugh, 12 La. Ann. 332; Dennis v. /?//««, 65 N. Y. 385; 22 Am. Rep. 635; Kline v. Shuler, 8 Ired. 484; 49 Am. Dec. 402; Streight v. Bell, 37 Ind. 550; Stocking v. Hoioard, 73 Mo. 25. There are cases, however, which, without denying the liability of the prosecutor, insist that it can be enforced only by an action of trespass, a>i tliough the arrest were not justified by legal process: Maker v. Ashmead, 30 Pa. St. 344; 72 Am. Dec. 708; Kramer v. Lott, 50 Pa. St. 495; 88 Am. Dec. 556; Krause v. Spiegel, 94 Cal. 370; 28 Am. Rep. If the Charge Made liy the Prosecutor in True, but the legal conclusion drawn from it is erroneous and cannot be sustained, and the prosecution must there- fore fail, no action aL'ainst him can be maintained, as where he correctly stated the facts upon which he relied, and the magistrate erroneously regarded them as criminal and issued his M'arrant thereon: Cohen v. Morgan, 6 Dowl. & R. 8; Carratt v. Morley, 1 Gale & D. 45; 1 Q. B. IS; Hi^hn v. Schmidt, 64 Cal. 284; Newman v. Davis, 58 Iowa, 447; McNeely v. Dridill, 2 Black f. 259; Leigh v. Webb, 3 Esp. 165; Bocger v. Langenberg, 97 Mo. 390; 10 Am. St. Rep. 322; or the grand jury found an indictment for a crime different from that supported by the prosecutor's testimony: Leidig v. Jiawson, 1 Scam. 272; 29 Am. Dec. 354; and whenever the facts are truly stated in the prose- cutor's complaint or affidavit, he cannot bo held lial)le, on the failure of the prosecution, because he drew wrouE; inferences from those facts, and his affi- davit named a particular crime as the result of the acts, when they did not, as he supposed, lead to such result, as where tlie prosecutor charged the com- mission of larceny, but showed by his affidavit that the property taken was such that larceny could not be committed by taking it: Bartlctt v. Brown, 6 R. I. 37; 75 Am. Dec. 675; Thmde v. Krekeler, 81 N. Y. 428. Want of Jurisdiction in the Court in Which the Prosecution was Commenced. — Whether a prosecutor may in all cases shield himself by showing that th« Am. St Rkp., Vol. XXVL — » 130 Ross V. HixoN. [Kansas, court or tribunal in which he maintained, or attempted to maintain, his pros- ecution was without jurisdiction to entertain it, is a question upon whicli the courts are almost equally divided. Certainly, if a complaint were made to a person neither possessing, nor assuming to possess, authority to entertain it, or to cause the person charged to be apprehended or punished, there is, in the eye of the law, no criminal prosecution, and this has been held to be equally true when the charge was made before or to a magistrate possessing some judicial functions, but having no authority over the subject-matter contained in the charge preferred: Bixby v. Brundige, 2 Gray, 129; 61 Am. Dec. 443; Bodweliv. Osgood, 3 Pick. 379; 15 Am. Dec. 228; Whiting v. Johnson, 6 Gray, 246; Marshall v. Betner, 17 Ala. 832; Turpin v. Bemy, 3 Blackf. 210; Painter V. Ives, 4 Neb. 122. The majority of the cases upon the subject, in our judgment, sustain the proposition, that though the court in which the prose- cution took place did not have jurisdiction over it, yet if it was malicious and without probable cause, and its prosecution inflicted injury upon tiie person thus prosecuted, he may recover: Morris v. Scott, 21 Wend. 281 ; 34 Am. Dec. 236; Smith v. Cattel, 2 Wils. 376; Stone v. Stevens, 12 Conn. 219; 30 Am. Dec. 611; Elsee v. Smith, 1 Dowl. & R. 97; Boon v. Man!, 3 N. J. L. 863; Hays V. Younglove, 7 B. Mon. 545. If the court had jurisdiction over the subject-matter, and its alleged want of authority to proceed with the prosecution rested upon some irregularity or omission, but the warrant issued was valid upon its face, and the want of jurisdiction must be established by extrinsic evidence, the courts will, we think, agree that such want of juris- diction will not defeat the action for malicious prosecution: Sweet v. I^egii-f, 30 Mich. 406; Oibbs v. Ames, 119 Mass. 60; Ward v. Sutor, 70 Tex. 343; 8 Am. St. Rep. 606. Arrest of Person Prosecuted, whether Essential. — When we come to the in- quiry, What stage must the criminal prosecution reach before the prosecutor becomes answerable? and consult the authorities upon the subject, we find that they "speak a varied language." The majority seem to affirm that it is not until an arrest has been made that a cause of action arises in favor of the person accused, and furthermore, that the arrest must be made under a warrant which is at least valid on its face, so as to constitute a justification to the officer in what he did under it: Cockjield v. Braveboy, 2 McMull. 270; 39 Am. Dec. 12:^; Vinal v. Core, 18 W. Va. 1; Lewin v. Uzuher, 65 Md. 341; Cooper V. Armour, 42 Fed. Rep. 215; Bartlett v. Christhilf, 69 Md. 219. On the other hand, it is said, apparently with the better reason, that the person accused is injured by the mere fact that a criminal charge is maliciously and wantonly preferred against him, whereby his reputation is injuriously affected and he is exposed to disgrace and infamy; that after the charge has been made, and the person accused is thereby injured in his reputation, its dismissal with- out making any arrest does not absolve the prosecutor from liability: Coffey V. Myers, 84 Ind. 105; and some of them go so far as to assert that the mere making of the charge before a magistrate for the purpose of inducing him to entertain it as a charge of felony creates a liability against the accuser, though it is not taken down in writing: Clarke v. Postan, 6 Car. & P. 423. None of the authorities insist that any actual imprisonment is essential to support the action. It is sufficient that the officer having the warrant of arrest noti- fies the person to be arrested of that fact, reads the warrant, and proclaims the arrest, to which the accused submits, and then procures sureties for his appearance before the proper magistrate to answer the charge against himr Malone v. Huston, 17 Neb. 107. Nor is it necessary to show that the prose- cutor directly procured or assented to the issuing of the warrant on which 1 Jan. 1891.] Ross v. Hixon. 131 the arrest was made, if he preferred the charge in such a way that it there- upon became the duty of some public official to issue a warrant thereon re- quiring the apprehension of the person accused to answer the accusation made against him: McLeod v. McLeod, 75 Ala. 483. Who may be Held Liable. — The question who may be held answerable for the malicious prosecution of a criminal charge may be considered, — 1. With reference to the persons who may be guilty of or chargeable with such prosecution; and 2. What acts on the part of persons who have capacity to be thus guilty and chargeable fix upon them responsibility for the injury 8ufi"ered by the person prosecuted. Upon principle, it would seem that all persons, whether natural or artificial, capable of instituting, or causing to be instituted, a malicious prosecution without probable cause, must respond in damages for their unlawful and malicious act. The Liability of Private Corporations for malicious prosecutions has teen denied in a few cases, partly on the ground that they are incapable of enter- taining malice or acting from malicious motives, and partly for the reason that to prosecute any person maliciously and without probable cause is not within the scope of the powers conferred upon them by law or by their char- ters, and such prosecution must therefore be ultra vires: Owsley v. Montgomery etc. R. R. Co., 37 Ala. 5G0; overruled in Jordan v. Alabama etc. R. R. Co., 74 Ala. 85; 49 Am. Rep. 800; and Gillett v. MissouH etc. R. R. Co., 55 Mo. 315; 17 Am. Rep. 653; Childs v. Bank of Missouri, 17 Mo. 213; overruled in Boogher v. Life Ass'n, 75 Mo. 319; 42 Am. Rep. 413. Probably no law or charter ever authorized a corporation to do any kind of a wrong, or even to neglect or omit to do any duty devolving upon it, and if it may not be held liable for doing things not authorized by law or its charter, it cannot be held liable for anything whatever; for certainly it ought not to be responsible in datnages for doing anything authorized by its charter, for in thus doing it must be acting not only by the warrant, but under the protection of the law. The American courts, and perhaps the English also, at the present time, will not exonerate a corporation from responding in damages for a wrong done by it, on the ground that it had no authority or power to do it; and will therefore hold it liable for a malicious prosecution under substantially the same rules of law as apply against private persons: Fenton v. Wil- son Seioiw I -machine Co., 9 Phila. 189; Williams v. Planters^ etc. Co., 57 Miss. 759; 34 Am. Rep. 494; Whdvss v. Second Nat. Bank, 1 Baxt. 4G9; 25 Am. Rep. 783; Goodxi>eed v. Eoi't Haddam Bank, 22 Conn. 530; 58 Am. Dec. 439; Ricord v. Central P. R. R. Co., 15 Nev. 167; Woodward v. St. Louis etc. R. R. Co., 85 Mo. 142: Carter v. Noive Machine Co., 51 Md. 290; 34 Am. Rep. 311; Reed v. JJome Savings Bank, 1.30 Mass. 443; 39 Am. Rep. 468; Vance v. Ei-ie R. R. Co., 32 N. J. L. 334; 90 Am. Dec. 665; Morton v. Metropolitan L Co., 34 Hun, 366; 103 N. Y. 645; Gnlfetc. R. R. Co. v. James, 73 Tex. 12; 15 Am. St. Rep. 743; llusiiey v. Norfolk etc. R. R. Co., 98 N. C. 34; 2 Am. St. Rep. 312; National Bank v. Oraham, 100 U. S. 699; Denver etc. R. R. Co. V. Harris, 122 U. S. 597; Jordan v. Alabama etc. R. R. Co., 74 Ala. 85; 49 Am. Rop. 800; Henderson v. Midland R. R. Co., 20 Week. Rep. 23; 25 L. T., N. S., 881; Edwards v. Midland R. R. Co., L. R. 6 Q. B. D. 287; 50 L. J. Q B. 281; 43 L. T., N. S., 694; 29 Week. Rep. 669. Corporations, when Liable. — The dilHculty now is, not in showing that piivata corporations may be answerable for a malicious prosecution, what- ever be tlie nature of their powers, but as they can act only through agent.s. and as their agents, like those of natural persons, may act in matters over which authority has not been delegated to them, it ia often questionable 132 Ross V. HixoN. [Kansas. whether a particular prosecutiou instituted or carried on by an agent of a corporation ia a corporate act or not. Of course, the fact that a prosecution was instituted by an agent of a corporation, even thnugh in what he did he claimed to be acting as such agent, does not subject it to responsibility if he acted without its knowledge, and not within the scope of the authority com- mitted to him: Stevens v. Midland etc. R. R. Co., 2 Com. L. Rep. 1300; 10 Ex. 352; 18 Jur. 932; 23 L. J. Ex. 32S; Sprimjfield etc. Co. v. Green, 25 111. App. 106. Formal action on the part of the board of directors of a corpora- tion need not be established: Ricord v. Central P. R. R. Co., 15 Nev. 176. If the entire business affairs of the corporation are under the control of a gen- eral manager who has authority to institute criminal prosecutions arising out of alleged violations of its rights of property, the corporation is liable if he ex- ercises his authority in such manner and under such circumstances as would support an action against a private person: Gulf etc. R'y Co. v. James, 73 Tex. 12; 15 Am. St. Rep. 743. Perhaps a majority of the great transpor- tation companies have special agents or detectives whose duties include the apprehension of all persons who have committed crimes by which the prop- erty of the corporation has been embezzled, stolen, or destroyed, or its inter- ests otherwise prejudiced; and while it may be said that the delegation of authority to do these things does not imply that an agent thus constituted shall in any event act maliciously and without probable cause, to this the unanswerable reply has been made by the courts, that one of the consequences liable to attend the delegation of the authority is that of the malicious prose- cution of persons who are not offenders, and that when this consequence does result, the corporation must be held answerable: American Exp. Co. v. Pat- terson, 73 Ind. 430; Evansville etc. R. R. Co. v. McKee, 99 Ind. 519; 50 Am. Rep. 103; Goffv. Great Northern R'y Co., 3 El. & E. 672; 30 L. J. Q. B. 138; Pennsylvania Co. v. Weddle, 100 Ind. 138. A Prosecution Instituted by a Partner for an alleged crime relating to the property of the firm cannot impose any liability on another partner who did not assent to nor have any knowledge of the prosecution at its commence- ment, and especially if he repudiates it as soon as known to him: Rosenkrans V. Barker, 115 111. 331; 56 Am. Rep. 169; Gilbert v. Emmons, 42 111. 143; 89 Am. Dec. 412. Sometimes Associations are Formed for the purpose of contributing money and otherwise aiding in the prosecution of alleged criminals or of persons sus- pected of being guilty of crimes of a specified class, and as the result of this arises the question whether all the members of the association are answerable for prosecutions incited or aided by it, whether they participate therein or not. So far as we can ascertain, this question has not yet been adequately considered. In one instance, where the organization of an association of this character was proved, and that those of its members who were assemVtled on one occasion voted to prosecute a particular charge and to raise money for that purpose, members who were not present when this vote was taken, and who did not contribute, by money or otherwise, to the prosecution of the charge, were held not to be answerable, though they made contributions to the general purposes of the association: Johnson v. Miller, 63 Iowa, 535; 50 Am. Rep. 758; 69 Iowa, 562; 58 Am. Rep. 231. Whether Infancy or Coverture Necessarily Relieves from liability for a ma- licious prosecution is a question which has been but little considered. Both infanta and married women are, in general, answerable for their torts: Note to Humphrey v. Douglass, 33 Am. Dec. 178-185; note to Craig v. Van Bebber, 18 Am. St. Rep. 720-724; Cooley on Torts, 116; except that a wife may, in Jan. 1891.] Ross v. Hixon. 133 some instances, escape liability on the presumption, when the wrongful act was done in the presence of her husband, that it is to be imputed to him, rather than to her; and when a tort involves some element of design or of guilty intent or purpose not imputable to an infant on account of his tender age or his want of capacity, he cannot, unless his capacity is aflfirmativelj Bhowu, be adjudged guilty of its commission, and if very young, tlie pre- sumption of his incapacity is indisputable. The court of appeals of New York appears, in Caxsin v. Delany, 38 N. Y, 178, to have proceeded on the assumption that when a husband and wife prosecute a charge of embezzle- ment, she may be held liable in damages, though she acted in his presence, upon proof that she acted upon her own motion, and not by his direction. If a civil action is br( ught in the name of a minor, without his authority or knowledge, by a prochein ami, the infant, though he subsequently assents to the suit upon being informed of it, cannot be held liable for its prosecution, for the reason tliat he had no power to discontinue it during his minority: Burnham'v. Seaverns, 101 Mass. 360; 100 Am. Dec. 123. His prosecution of an action after coming of age would undoubtedly make him liable: Sterling v. Adams, 3 Day, 411. A criminal charge may be preferred by a minor, and if unfounded and malicious, the wrong done is not less than if it were preferred by a person of more advanced years. If the age of the minor, and his man- ifest capacity and discrimination, and the circumstances accompanying tha making of the charge, are such as to demonstrate that his act was malicious and without probable cause, we know of no reason in the law, or elsewhere, for not obliging him to respond in damages for the injury maliciously in- flicted by him. Heal Prosecutor, Evidence to Show Who was. — The person sued for malicious prosecution is generally the one who made the affidavit or complaint, or pre- ferred the charge, or otherwise set tlie machinery of the law in motion, and thereby brought about the arrest of the accused. The person who makes the afhlavit upon which the arrest is effected may undoubtedly be regarded as the prosecutor, and held liable as such: IVeil v. Israel, 42 La. Ann. 955; Walser v. Thies, 56 Mo. 89. Nor is it essential to the character and liability of the prosecutor that he should have made the affidavit for the purpose of procuring the arrest. Thus it has been decided that he who by means of his perjured evidence leads a judge to believe that another witness has beea guilty of perjury, and to hold the latter to answer and be tried therefor, is liable in damages as for a malicious prosecution: Fitzjohn v. MacLinder, 9 Com. B., N. S., 505; 7 Jur., N. S., 1283; 30 L. J. Com. P. 257; 9 Week. Rep. 477; 4 L. T., N. S., 149. But liability does not attach to one who fairly discloses to a magistrate or a prosecuting officer all the information in his possession, and leaves him to judge of the propriety of proceeding with the charge: Smith v. Auntin, 49 Mich. 286; Teal v. Flssel, 28 Fed. Rep. 351. When one has set the machinery of the law in motion, so that in the regular and ordinary course of its action an arrest nmst be made, or will probably follow, it need not be sliown that he ordered or directed the warrant or other process to issue, or participated in its execution: Waher v. Thies, 56 Mo. 89; McLeod v. McLcod, 75 Ala. 483. On the other hand, he is not answerable for acts which do not properly result from this charge, and were not intended by him, as for a wrongful and unauthorized proceeding of the officer in serv- ing the warrant: Bartktt v. Hnwley, 38 Minn. 308. The liability of a person for the prosecution of a criminal case need not ajipear from the record therein. The question is, not whether it proceeded in his name, but whether it pro- ceeded by virtue of his authority or procurement. If he was the real, or one 134 Ross 17. HixoN. [Kansas^ of the real, prosecutors, he cannot escape liability by keeping some other per- son in the position of apparent prosecutor. Hence evidence outside of the record is always admissible to show who was in fact prosecutor: Knauer v. Morrow, 23 Kan. 360. For he who conducts a prosecution in the name of another is not less liable than if he conducted it in his own name: Cotterell v. Jones, 11 Cora. B;. 713; 16 Jur. 88; 21 L. J. Com. P, 2; Clements v. Ohrly, 2 Car. & K. 868. If the defendant is the person, or one of the persons, who caused the prosecution, he is liable, whatever may be the means he employed. He may have incited some other person to present and verify the complaint, or have procured the action of some prosecuting officer, or have acted by his servant or agent. In employing either of these supposed means of action, he is equally culpable and equally liable: Stanshury v. Fogle, 37 Md. 369; Kline V. SImler, 8 lied. 484; 49 Am. Dec. 402; Wells v. Parso/is, 3 Harr. (Del.) 505; Grant v. Deuel, 3 Rc.b. (La.) 17; 38 Am. Dec. 228. A PHnci'pal Acting by or through his Agent may be answerable for a mali- cious prosecution. If he directs the agent in what the latter does, there can be no question that his liability must be the same as if he had acted without the aid or intervention of an agent. But where he did not direct the agent, and the latter acted without his knowledge, then the questions most likely to arise are: 1. Was the act of the agent within the limits of his powers? and 2. If so, can the principal be subjected to exemplary damages, where, from his ignorance of what was done in his name, it is not possible to impute to him actiial malice, desire to injure the accused, or reckless and wanton disregard of the latter's rights or feelings? With respect to the first ques- tion, it is clear that the agent must have been acting in the business of hia principal and within the power delegated to him, either expressly or by im- plication. Hence where tlie ticket-seller of a railway corporation, acting at the suggestion of a police-officer, and with a view of aiding in the apprehen- sion of persons engaged in passing counterfeit money, sold tickets and re- ceived payment in a bank bill which the agent believed to be counterfeit and •worthless, and then caused the arrest of the ticket-buyer while he was yet in the station waiting for his train, it was held, by a divided court, that in what he did the ticket-seller was not transacting the business committed to him, and his principal was not answerable: Mulligan v. New York etc R. R. Co., 129 N. Y. 506; 27 Am. St. Rep. A principal is not, in an action for a malicious prosecution, necessarily chargeable with whatever knowledge his agents may have had. "Actual malice implies a wrongful purpose or intent in the mind of the person whose conduct is in question. It is not to be con- clusively presumed or legally imputed to him merely because of the mental condition or the knowledge of another person, however related to him ": Reitan V. Mott, 42 Minn. 49; 18 Am. St. Rep. 489. To render one liable for a criminal prosecution, where he acts by his agent, it is not necessary that he know of or contemplate the action taken by the agent, if it was within the power dele- gated to him, or though not within that power, was ratified after being done: Kinsey v. Wallace, 36 Cal. 462; Forbes v. Hagman, 75 Va. 168; in each of which events both the principal and the agent are liable, and may be joined as defendants in the same action: Hussey v. Norfolk etc. R. R. Co., 98 N. C. 34; 2 Am. St. Rep. 312; unless the agent, in what he did, eitlier had probable cause or acted without malice. Therefore, an attorney at law is liable as well as his client when he aided in a prosecution which he knew to be unfounded and malicious: Sta.lnj v. Turner, 21 Mo. App. 244; Warjield v. Camp'iell, 35 Ala. 349; Burnap v. Marsh, 13 III. 538. On the other hand, an attorney is not liable who does not know that the action ia groundless, even Jan. 1891.] Ross v. HixoxN. 135 though he is aware that his client is actuated by malice. He may act upon the statemeufc of facts made to him by liis client, and is not under a duty to institute an inquiry for the purpose of verifying his statement before giving advice thereon. Therefore, an instruction to a jury that an attorney is liable if he, "by the exercise of reasonable diligence, might have known that there were no facts sufficient to constitute probable cause " is erroneous: Peck v, Chouteau, 91 Mo. 13S; 60 Am. Rep. 2.36; Bkhiell v. Dorion, 16 Pick. 478. Teemxnatiok of Prosecution. — The prosecution on which the action is based must have terminated without resulting in the conviction of the plain- tifif. It is sometimes said that it must have terminated in his acquittal, but this is not true. A trial on the merits or otherwise is not essential. It is sulficient that the prosecution has ended so that it cannot be reinstated nor further maintained without commencing a new proceeding, but it must have terminated in some of the several modes in which it is possible for a criminal proceeding to reach a stage beyond which the accused cannot be further prosecuted therein: Caseheer v. Drahoble, 13 Neb. 465; McWilliams v. Hohan, 42 Md. 56; Blalockv. Randall, 76 111. 224; Gillespie v. Hudson, 11 Kan. 163; Schippel V. Norton, 38 Kan. 567. The propriety of this rule is obvious, for if the civil action could be maintained before the termination of the criminal prosecution, it might happen that, after the defendant had been called upon to resjiond in damages as a malicious prosecutor acting without probable cause, the good faitli of his prosecution would be vindicated by a verdict of the jury convicting the accused. In Texas, as we have already shown, the malicious prosecution of criminal cases for certain purposes has been made criminal. As the Penal Code of the state did not expressly require the ter- mination of the malicious prosecution before the prosecution of the prosecu- tor for instituting it, an information against the defendant for instituting a malicious criminal prosecution need not aver that it has terminated: Demp- sey V. State, 27 Tex. App. 269; 11 Am. St. Rep. 193. We shall now refer to the dififerent means, other than by a trial on the merits, by which a criminal prosecution may so terminate as to support a civil action. Dischanje hy Committing Magistrate. — The criminal practice in most of the states requires the accused, if the offense charged is of a serious nature, to be brought before a magistrate for a preliminary examination for the purpose of determining whether the evidence against him is such as to warrant his being held to answer hefore the grand jury, or before some court having jurisdic- tion to try him after the information shall have been filed by the proper prosecuting officer. If the examining magistrate finds tliat there is not suffi- cient cause to hold the accused to answer, and therefore discharges him, that prosecution is thereby ended; and the consideration that other prosecutions maybe brought against the same person on the same charge, and that the grand jury, on its presentation to them, niaj' find an inilictment thereon, cannot pre- vent the action of the magistrate from having its effect as a termination of the prosecution before him, sufficient to support the civil action: Moyle v. Drake, 141 Mass. 238; Costrllo v. Knight, 4 Mackcy, 65; Fay v. O'Neill, 36 N. Y. 11; Jonei v. Finch, 84 Va. 204. Failure of Grand Jury to Find Indictment. — If the grand jury considers the charge against the accused, whether after he has been held to answer or otherwise, and refuses to indict, this is also generally regarded as a final ter- mination of a prosecution authorizing an action to be maintained thereon, if it was malicious and without probable cause: Morgan v. Hughes, 2 Term Rep. 22.5; Fatter v. Casterline, 41 N. J. L. 22; Graves v. Daw>ton, 130 Mass. 78; 39 Am. Rep. 429; Apgar v. Woolston, 43 N. J. L. 57; Slancliffv. Falmeter, 136 Ross V. HixoN. [Kansas, ISInd. 321; Rower -v. Lewton, 18 Fla. 328; Mitchell v. Williams, 11 Mees. & W. 205; 12 L. J. Ex. 193; though ia some of the states the action of the grand jury must be supplemented by an order of court discharging the ac- cused from custody or from the duty of further appearing to answer the charge against him: Thomas v. De Oi-affenreid, 2 Nott & McC, 143; O'DriscoU V. McBurney, 2 Nott & McC. 54; Knott v. Sargent, 125 Mass. 95. Whether an order of court is necessary or not depends upon the practice in the par- ticular state in which the question arises. It is not the mere failure of the grand jury to indict at any particular time which terminates the prosecution; for their non-action, instead of proceeding from their judgment that no cause for prosecution exists, may be the result of their not being able to secure the attendance of the requisite witnesses, and their consequent postponement of the investigation to some later day, in which event it is clear that the prose- cution is not yet at an end: Knott v. Sargent, 125 Mass. 95; and whenever, by the practice in the state, the court, notwithstanding no indictment has been made, retains the right to refer the charge to another grand jury, it is proba- ble that a formal order discharging the accused is a condition precedent to the maintenance of an action for his malicious prosecution. Entry of Nolle Prosequi. — There has been a disinclination to admit that the termination of a prosecution by the entry of nolle prosequi will support an action for malicious prosecution, and some cases have affirmed in general terms that it cannot be so supported: Oaring v. Fraser, 76 Me. 37; Parker v. Farley, 10 Cush. 279; Perher v. Hvmtington, 2 Gray, 128; Brown v. Lakeman, 12 Cush. 482. But we think they must all, as to this extreme view, be re- garded as dicta. If some action or proceeding on the part of the court, or otherwise, is required to make an entry of nolle prosequi operative as a final termination of a prosecution, then, of course, such action or proceeding must supplement such entry; but when it is manifest that the prosecution is at an end, and cannot be revived, it is not material how it came to its end, and the right of the party injured by it to seek redress is complete: Kennedy v. Hoi- laday, 25 Mo. App. 503; Lowe v. Wartman, 47 N. J. L. 413; Brown v. Ran- dall, 36 Conn. 56; 4 Am. Rep. 35; Yocum v. Polly, 1 B. Mon. 358; 36 Am. Dec. 583; Hatch v. Cohen, 84 N. C. 602; 37 Am. Rep. 630; Briggs v. Bnrion, 44 Vt. 124; Graves v. Dawson, 130 Mass. 78; 39 Am. Rep. 429; 133 Mass. 419; Woodworth V. Mill% 61 Wis. 44; 50 Am. Rep. 135; Richter v. Koster, 45 Ind. 440. Perhaps if the accused procures or assents to the entry of a nolle prosequi, he thereby waives his right to redress by civil action against his prosecutor: Langford v. Boston etc. R. R. Co., 144 Mass. 431; Parker v. Far' ley, 10 Cush. 279; Cowpnl v. Ward, 106 Mass. 289. Other Means of Terminating Prosecution. — The only reasonable ground for denying that the termination of a prosecution by the entry of a nolle prosequi will support an action for malicious prosecution was, that there had been no trial on the merits, and therefore no acquittal of the accused; but it is settled, as we think, beyond dissent that a trial on the merits is not essential: Schip- pel V. Norton, 38 Kan. 567; Bell v. Mattheivs, 2>1 Kan. 686; Gilhert v. Emmons, 42 111. 143; 89 Am. Dec. 412. To hold it essential would be to permit a prosecutor to do all the damage which a malicious prosecution can possibly effect, and then deny the accused the opportunity to vindicate himself by a trial, by having the proceeding quashed or dismissed, and thus escaping all liability for the wrong unlawfully inflicted. Therefore, any mode by which a prosecution may be dismissed or ended, though without a trial, is sufficient. The indictment may be insufficient, and for that reason may be quashed be- fore trial, or upon trial may require the jury to return a verdict of acquittaL I Jan. 1891.] Ross v. Hixon. 137 In either event, if the accused is discharged by the court, the prosecution is finally terminated in the sense that an action for malicious prosecution may be instituted and sustained, though there is nothing to prevent the finding of anotlier indictment, sufficient in form: Hays v. BliTzard, 30 Ind. 457; Lytton V. Baird, 95 Ind. 349; Wicks v. Fentham, 4 Term Rep. 247; Pippet v. Beam, 1 Dowl. & R. 2(36; 5 Barn. & Adol. 634. A prisoner may be dis- charged from custody after a hearing upon a writ of habeas corpus. If the legal effect of his discharge is such that the prosecution against bim can be carried no further, it must necessarily be such a termination as will justify the commencement of a civil action for redress: Zehby v. Storey, 117 Pa. St. 478. If, on the other hand, the prosecution may still go on and the accused may possibly be convicted, his di>charge on hnheas corpus, because it does not relieve him from the duty of further defending himself, cannot support his action for malicious prosecution: Walker v. Martin, 43 III. 50S; Merrimnn v. Morgan, 7 Or. 68. If, before a trial, the prosecution is terminated in any way, as by the failure of the prosecutor to appear, or by the entry of a dismissal by competent authority, the civil action may be at once begun: Leever v. Hnmill, 57 Ind. 423; Kdley v. Sage, 12 Kan. 109; Cleggv. Walerhury, 88 Ind. 21; Sioensgaard v. Dnvis, 33 Minn. 3G8; Broion v. Randall, 36 Conn. 56; 4 Am. Rep. 35; Fay v. O'Neill, 36 N. Y. 11. But if the prosecutor dismisses his prosecution for the purpose of recommencing it in another court, and pro- ceeds without delay to execute such purpose, it is said that the action for malicious prosecution cannot be maintained until the second prosecution has been disposed of: Schippel v. Nortoi), 38 Kan. 567. Whether the fact that the judgment has been appealed from will destroy its effect, so that the action for malicious prosecution cannot be maintained while the appeal is pending, is unsettled; some of the courts conceding this effect to an appeal: Reynolds V. De Qecr, 13 111. App. 113; and others denying it: Marks v. Towmend, 97 N. Y. 590. Prosecutions Resulting in Convictions. — The reason already suggested for re- quiring a final disposition of a criminal charge before permitting any civil ac- tion to be maintained for having instituted the prosecution implied that if such prosecution should not result in favor of the person accused he could under no circumstances recover damages on the ground that it was unfounded and ma- licious. His conviction, in all cases where he had an opportunity to be heard in his defense, is, while it remains in force, conclusive against him that his prosecution was not without probable cause, and that he cannot recover dam- ages from his prosecution: Severance v. Judkins, 73 Me. 376; Griffis v. Sellara, 2 Dev. & B. 492; 31 Am. Dec. 422. If, however, the proceeding of which plaintiff complains was ex parte, or one in which the court was obliged to act upon the accusation alone, as where an affidavit is filed to require a party to give sureties to keep the peace, upon the filing of which it is the duty of the magistrate to exact such sureties, the fact that they were exacted, and the accused required to furnish them, is not conclusive against him that his pros- ecutor did not proceed without probable cause: Ste%oart v. Gromett, 29 L. J. Com. P. 170; 7 Com. B., N. S., 191 ; 6 Jur., N. S., 776; Hyde v. Greuch, 62 Md. 577. Commitments to an insane asylum, though not necessarily ex parte, do not rank as final adjudications of probable cause, nor preclude the person com- mitted from sustaining an action against the person procuring his commit- ment: Kellogg v. Cochran, 87 Cal. 192. In civil actions the defendant may be arrested and imprisoned, maliciously and without probable cause, and yet the plaintiff have a right to judgment on the cause of action upon which he sued. If such judgment when rendered does not necessarily 138 Ross V. HixoN. [Kansas, affirm the exsitence of facts , sustaining and warranting the arrest, it Mm- not estop the defendant from showing that his arrest and detention were malicious and without prolxihle cause, nor from recovering damages therefor: Forlman v. RoUler, 8 Ohio St. 548; 72 Am. Dec. 606; Bump v. BeUs, 19 Wend. 421. Guilty Person cannot Recover. — No judgment in favor of the plaintifiF is sustainable if it appears that there was probable cause for his prosecution. Before proceeding to consider what may be regarded as probable cause on the part of a prosecutor, we wish to remark that the plaintiff, notwithstanding his acquittal, must always be regarded as tendering the issue of his innocence, and must fail in his action if that innocence can be disproved, whether the prosecutor acted from malicious motives or not, and whether or not he knew of the facts establishing plaintifiF 's guilt. An action for malicious prosecu- tion will never lie in favor of a guilty man: Newton v. Weaver, 13 R. I. 616; Parhhurst v. Madelkr, 57 Iowa, 474; Whitehurdv. Ward, 12 Ala. 204; Three- foot V, Nuckols, 68 Miss. 117; Johnson v. Chambers, 10 Ired. 287; Barber v. Gonld, 20 Hun, 446; Pliimmer v. Gheen, 3 Hawks, 66; 14 Am. Dec. 572; Ad- ajnsv. Linker, 3 Blackf. 241; 25 Am. Dec. 102; except that one prosecuted on two or more charges, of one of which he was convicted, may recover for his prosecution on the other charge, by proving that, as to it, his prosecution was without probable cause and malicious: Reed v. 7\iylor, 4 Taunt. 616; Ellis V. Abrahams, 8 Q. B. 709; 10 Jur. 593; 15 L. J. Q. B. 221. Sometimes the courts have incautiously said that probable cause did not depend on the guilt or innocence of the accused: Lytton v. Baird, 95 Ind. 349; King v. Calvin, 11 R. I. 582; Hazzard v. Flury, 120 N. Y. 223; Carl v. Ayers, 53 N. Y. 14; but when they have so said, they have been referring to the fact that the plaintiflf had urged his innocence as conclusive in favor of his right to recover, and have merely intended to affirm that, notwithstanding such innocence, the action of the prosecutor may have been justified because of incriminatory cir- cumstances known to him, and not that the guilt of the accused could co-exist with a right on his part to recover for being prosecuted for a criminal act of which he was guilty. Probable Cause, What is. — Numerous definitions of probable cause have been given, some of which will be here quoted: " A definition of probable cause sufficiently exact to meet satisfactorily every possible test would be difficult, if not impossible, to furnish. The complete legal idea expressed by that term is not to be gathered from a mere definition. But, perhaps, with reference to many practical cases, it may be nearly accurate to say that prob- able cause consists of a belief in the charge or facts alleged, based on suffi- cient circumstances to reasonably induce such belief in a person of ordinary prudence in the same situation ": Bocger v. Langenberg, 97 Mo. 390; 10 Am. St. Rep. 322. Probable cause is " the existence of such facts and circum- stances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the ofiFense for which he was prosecuted ": Dempsey v. State, 27 Tex. App. 269; 11 Am. St. Rep. 193; Ramsey v. Arrott, 64 Tex. 320; Glasgow v. Given, 69 Tex. 167; Wheeler v. Nesbitt, 24 How. 544; Scott v. Shelor, 28 Gratt. 906; Thomp- son V. Beacon Valley Rubber Co., 56 Conn. 493. "A reasonable ground of sus- picion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the person charged is guilty of the oflfense charged ": Ames v. Snider, 69 111. 376; Davie v. Wisher, 72 IlL 262. " Prob- able cause may be defined to be that apparent state of facts found to exist upon reasonable inquiry, — that is, such inquiry as the given case rendered Jan. 1891.] Ross v. Hixon. 139 convenient and proper, — which would induce a reasonably intelligent and prudent man to believe the accused person had committed, in a criminal port of the probative facta which the court inay direct them to find in order to determine in which way their general verdict 142 Ross t;. Hixon. [Kansas, shall be rendered ": Ball v. Rawles, 93 Cal. 222; 27 Am. St. Rep. It is well known that there are many instances in which, though evidence is ac- cepted, or conceded to be true, dififerent persons may honestly draw diverse con- clusions from it. The definitions of probable cause are such as to require the prosecutor to act as a reasonable and prudent man would under like circum- stances. They do not impose liability upon him for mistaken conclusions drawn by him, if they were such as a reasonable and prudent man would draw if placed in the same situation as the prosecutor. The evidence may be without substantial conflict, and the witnesses by whom it was given not only entitled to credit, but in fact implicitly believed, and yet one jury or court might reach the conclusion that the prosecutor acted as a reasonable and prudent man, and another that he did not so act. In such a contingency, is the jury or the court to draw the inference from this undisputed evi- dence ? We have seen but little discussion of this question, but the author- ities which unqualifiedly assert that when the evidence is not conflicting the court must decide whether probable cause existed imply that the inference to which we have referred must be drawn by the court. Nevertheless, we think it should be submitted to the jury: Heyne v. Blair, 62 N. Y. 19; by some mode which will "leave the question of fact to the jury and the ab- stract question of law to the judge ": Panton v. Williams, 1 Gale & D. 504; 2 Q. B. 192; Ball v, Bawles, 93 Cal. 222; 27 Am. St. Rep. If there is any substantial difference between the two modes of submitting the ques- tion of probable cause to the jury, the one which exacts special findings of fact or requires the case to be submitted to the jury hypothetically seems best adapted to enable the court to draw all inferences which are necessary to determine from the established facts whether the action of the prosecutor wa3*thatof a reasonable and prudent inan or not. The prosecutor's belief or want of belief in the guilt of the accused, or in the information upon which his action was based, is often an issue in the case upon which the mainte- nance of his defense of probable cause must rest. It is clear that this issue must be submitted to the jury: Steioart v. Sonnehorn, 98 U. S. 187. If it be true that the question, What is probable cause? is always one of law for the court, then in every case in which the evidence is not conflicting it ought to be possible to state whether or not it establishes probable cause or the absence of it. We doubt the truth of the assertion that probable cause is always a question of law, even when there is no conflict in the evidence: Cochran \. Toher, 14 Minn. 385; Anderson v. Keller, 67 Ga. 58; Steivart v. Sonnehorn, 98 U. S. 187; though there have been and must again be many cases in which it is perfectly clear that undisputed evidence does or does not establish proliable cause. We shall now refer to cases of this class, showing many instances in which it has been possil)le for the court, from the evidence before it, and without the aid of the jury, to determine that the defense of proi)able cause had or had not Ijeen proved. The Conviction of the Person Prosecuted, while it remains in force, is con- clusive evidence of probable cause on the part of the person prosecuting him: Freeman on Judgments, sees. 319, 417; Griffis v. Sellars, 3 Dev. & B. 492; 31 Am. Dec. 422; Herman v. BrooLerhoff. 8 Watts, 240; though no remedy by appeal or otherwise could have been resorted to by the accused for the pur- pose of reviewing or setting aside the judgment against him as being contrary either to the law or to the evidence: Basehe v. Matthews, 36 L. J. M. C. 93; L. R. '2 Com. P. 084; 15 Week. Rep. 839; 16 L. T., N. S., 417. If a convic- tion has been set aside upon appeal or by the granting of anew trial, either ia the court in which the conviction was had or upon appeal to some higher Jan. 1801.] Ross v. Hixon. 143 court, it is doubtful whether the judgment does not still continue in all cases to be conclusive evidence of probable cause. In ordinary circumstances, its effect as evidence of probable cause is not diminished by the granting of a new trial or the reversal upon appeal, though it be shown that the evi- dence on which the original conviction was procured was false and perjured: Parker v. lluntinr/ton, 7 Gray, 36; 60 Am. Dec. 455; Wlulney v. Peckham, 15 Mass. 2-i3; Parker v. Farley, 10 Gush. 279; Cloon v. Gerry, 13 Gray, 203; Adams v. Bicknell, 126 Ind. 210; Grijfis v. Sdlars, 3 Dev. & B. 492; 31 Am. Dec. 422; Welch v. Bodon etc. R. R. Co., 14 R. I. 609; Reynolds v. Kennedy, 1 Wils. 232; Sjmmj v. Before, 12 B. Mou. 551; PhilUps v. Kalamazoo, 53 Alich. 33. Tliere are cases, however, declaring that a conviction, after it has been set aside, no longer constitutes conclusive evidence of probable cause, though it is still receivable in evidence and entitled to great consideration if the trial appears to have been a fair one: Goodrich v. Warner, 21 Conn. 432; Burt v. Place, 4 Wend. 5'.)1; Moffatt v. Fisher, 47 Iowa, 474; Bowman v. Brown, 52 Iowa, 437. In our judgment, the conviction of the accused nmst be accepted as conclusive evidence of probable cause, unless the circumstances attending it are exceptional in their character, as where it appears to have been founded on evidence suborned by the prosecutor or known to him to be false, or where it appears that the proceedings in the court in which he was tried were such as to give him no opitortunity to vindicate himself: Womack v. Circle, 29 Gratt. 192; 32 Gratt. 324; Kaye v. Kean, 18 B. Mon. 839; Spring v. Besore, 12 B. Mon. 555. If the charge was of a felony, and the accused was convicted of a lesser crime involved in the charge, and this conviction on appeal was reversed and a judgment of acquittal entered, the judgment of conviction is not evidence of probable cause in making the charge a felony: Lobar y. Vra7ie, 49 Mich. 561. Indicting or Holding Accused to Answer. — If the examining magistrate de- cides that the evidence is such as to warrant the holding of the accused to answer, or the grand jury determines that it is sufScient to found an indict- ment upon, or the jury before which the trial takes place is unable to agree, it clearly appears that other persons than the prosecutor reached the same conclusion that he did respecting the guilt of the accused; and the fact that they did reach this same conclusion is admissible in favor of the prosecutor, and is generally treated as prima facie evidence of probable cause: Johnson v. Miller, 63 Iowa, 529; 50 Am. Rep. 758; Sharpe v. Johnston, 76 Mo. 660; Hale V. Boylen, 22 W. Va. 234; Peck v. Chouteau, 91 Mo. 138; 60 Am. Rep. 239; Ricord v. Central Pac. R. R. Co., 15 Nev. 167; Bell v. Pearcy. 11 Ired. 233; Brown v. Griffin, 1 Cheves, 32; Rosa v. Hixon, 46 Kan. 550; ante, p. 123. But this effect is not conceded to the finding of an indictment in Alabama: Motes V. Bales, 80 Ala. 382. Advice of Counsel. — It has been said that the fact of the prosecutor's con- sulting counsel, and obtaining and acting upon his advice, should be consid- ered rather as tending to rebut malice, than as bearing upon the issue of probable cause: Brewer v. Jacobs, 22 Fed. Rep. 217; and that there is a sub- Btantial difference between applying the evidence of such advice to the ques- tion of malice, and applying it to the issue of probable cause. For if it be regarded as tending merely to disprove malice, it must rest with the jurors to give it such effect as they believe proper; while if it be admissible as evi- dence of probable cause, it may require the court, as a matter of law, to de- termine that probable cause existed, from the fact that the prosecutor in good faith, and upon a full disclosure of the circumstances, sought, obtained, and acted upon the advice of disinterested counsel of unquestionable competency: 144 Ross V. HixoN. [Kansas, Paddock V. Watts, 116 Ind. 146; 9 Am. St. Rep. 832. Perhaps evidence of this character may properly be considered by the jury as tending to disprove malice as well as to establish probable cause, but, in our judgment, its chief purpose is to show the existence of probable cause, and, when entirely satis- factory, it must induce the court to decide, as a matter of law, that probable cause did exist, and therefore that the prosecutor cannot be liable for the prosecution. As we shall hereafter show, it is indispensable that the prose- cutor act in good faith by not proceeding against one whom he supposes to be innocent, and that in seeking the advice of counsel he must make a full and fair disclosure of all the facts and circumstances within his knowledge, and, perhaps, of all which he might with reasonable diligence have discovered. If his counsel then advises him that there is sufficient cause for the prosecution, and he acts upon such advice, the majority of the courts will protect him in thus acting, though they may not agree as to whether such protection is to be extended to him because probable cause for his action is established, or malice in what he did disproved: Rnvegna v. Macintosh, 4 Dowl. & R. 107; 2 Barn. & C. 693; 1 Car. & P. 204; Paddock v. Watts, 116 Ind. 146; 9 Am. St. Rep. 832; Adams v. Bichiell, 126 Ind. 210; 22 Am. St. Rep. 576; Collins v. Hayte, 50 111. 337; 99 Am. Dec. 521; Ross v. Innis, 26 111. 259; Murphy v. Larson, 11 111. 172; Walter v. Sam-pie, 25 Pa. St. 275; McLeod v. McLeod, 73 Ala. 42; Anderson v. Friend, 71 111. 475; Potter v. Vasterline, 41 N. J. L. 22; Donnelly v. Daggett, 145 Mass. 314; Jones v. Jones, 71 Cal. 89; Schippel y. Norton, 38 Kan. 567; Mesher v. Iddings, 72 Iowa, 553; StOM v. Swift, 4 Pick. 389; 16 Am. Dec. 349; Bartlett v. Brown, 6 R. I. 37; 75 Am. Dec. 675; White v. Carr, 71 Me. 555; 36 Am. Rep. 353; Wicker v. Hotchkiss, 62 111. 107; 14 Am. Rep. 75; Smithy. Austin, 49 Mich. 286; Emerson v. Cochran, 111 Pa. St. 619; Yocum V, Polly, 1 B. Mon. 358; 36 Am. Dec. 583; Coggsioell v. Bohn, 43 Fed. Rep. 411; Dreyfus \. Aul, 29 Neb. 191; Motes v. Bates, 80 Ala. 382; Blunk v, Atchison etc. R. R. Co., 38 Fed. Rep. 311; Smith v. Walter, 125 Pa. St. 453; Moort V. Northern P. R. R. Co., 37 Minn. 147; Oilbertson v. Fidler, 40 Minn. 413; Jackson v. Linnington, 47 Kan. 396; 27 Am. St. Rep.; Ball v. Rawles, 93 Cal. 222; 27 Am. St. Rep. As the question of malice is for the jury, if it be conceded that evidence of the advice of counsel is receivable merely to dis- prove malice or to prevent the jury from inferring malice from the absence of probable cause, it follows logically that the jury may disregard evidence of the advice of counsel, if, notwithstanding such evidence, they still believe the prosecutor to have been actuated my malice. Therefore, in those states in which this evidence is applied to the issue of malice, it does not necessarily, however satisfactory the proof, make out the defense, and the prosecutor may be liable if the jury think proper to so hold him, after hearing evidence show- ing that he in good faith sought, obtained, and acted upon the advice of com- petent counsel: Ltmay-v. Williams, 32 Ark. 166; Olasgowv, Owen, 69 Tex. 167; Gulf etc. R'y Co. v. James, 73 Tex. 12; 15 Am. St. Rep. 743; Ramsey v. Arrott, 64 Tex. 320; Shannon v. Jones, 76 Tex. 141; Turner v. Walker, 3 Gill & J. 377; 22 Am. Dec. 329; Griffin v. Chubb, 7 Tex. 603; 58 Am. Dec. 85. The decisions in Georgia upon this subject are governed by the code of that state, which, as construed by its courts, does not admit the advice of counsel as a defense to the action, but merely as a circumstance tending to show absence of malice and the existence of probable cause, to be weighed by the jury with other facts in the case, "as well as to mitigate damages": Fox v. Davis, 55 Ga. 298; Philadelphia F. Ass'n v. Fleming, 78 Ga. 733. A recent New York case seems to create an exception to the rule that the advice of counsel furnishes probable cause for the proceedings taken in reliance upon it, by declaring Jan. 1891.] Ross v. Hixon. 145 that when the facts are known to the prosecutor, but do not constitute the crime charged by him, then that the advice of his counsel does not protect him absolutely, but must be treated as bearing only upon the issue of malice, "Probable cause, " said the court, "may be founded on niisiii formation as to the facts, but not as to the law": IJ'izzird v. Flary, 120 N. Y. 227. This deci.sii)n proceeds upon tlie principle that to the prosecutor must be imputed knowledge of the law, and that he cannot be deemed to proceed upon prob- alile cause, whatever be the advice of his counsel, when the facts as known by him would "not tend to cause a man with knowledge of the law to sus- pect or believe that it had been violated." But for what purpose are lawyers consulted more legitimate than that of obtaining their opinions upon questions of law? Certainly, if the prosecutor's conduct is to be considered upon the assumption that he knew the law, the advice of counsel can never protect him. For if the advice be correct, he is sQbject to no liability, and needs uo protection; but if incorrect, he is by this decision charged with knowledge of its incorrectness, and denied the defense of probable cause. Character of Attorney. — In some of the opinions, language is employed which indicates that the question of the competency of the attorney giving the advice must be established, or, at least, that it may be disproved. Where, however, certain persons are regularly licensed to practice law, we apprehend that their attainments in their profession can rarely or nev6r be made an issue on a trial for malicious prosecution, for the purpose of showing that their professional skill was not such as to justify the prosecutor in taking or acting upon their advice: Home v. Sullivan, 83 111. 30; though it may be that evidence is receivable for the purpose of showing that, by habits of intemper- ance and the like, known to the prosecutor, they had ceased to be regarded as reputable or reliable advisers: Roy v. Goings, 112 111. 656. On the other hand, if the person consulted is not a regular or licensed attorney, but a mere pettifogger, or other person practicing law or undertaking to give ad- vice without any license or authority to do so, his advice is no protection; Stanton v. Hart, 27 Mich. 539; Murphy v. Larson, 77 111. 172; Olmstead v. Partridge, 16 Gray, 381; Burgett v. Burgett,43 lud. 78. If the person con- sulted was acting as an attorney at law, and his advice was sought in good faith, evidence of it may be "adnutted, not in justification of the action, nor in reduction of any actual damage suffered, but in mitigation of any exem- plary damages that might be visited upon defendant ": Murphy v. Larson, 77 111. 172. Advice of Interested or Prejudiced Attorney. — While it would be very unjust to require a person seeking a regularly licensed attorney in good faith, and act- ing upon his advice, to determine in advance, at his peril, the extent of the professional skill of such attorney, yet from the very necessity of acting in good faith the client must not disregard facts tending to bias the judgment of the attorney, or' otherwise to make him an unfit adviser in that partic- ular case. If the client and attorney are conspiring together for the pur- pose of instituting and maintaining a malicious prosecution, of course the former cannot be protected by the advice of the latter: Hamilton v. Smith, 39 Mich. 222. The prosecutor cannot be sure of protection if he acta upon the , advice of an attorney whom he knows to be interested, and therefore prob- ably biased by his self-interest: White v. Carr, 71 Me. 555; 36 Am. Rep. 353; and where the attorney consulted was also acting for the prosecutor in a civil action relating to the same transaction out of which the prosecution grew, the court may leave it to the jury to decide whether the attorney selected was a proper adviser under the circumstances: Watt v. Corey, 76 Me. 87. ▲m. St. Kbp., Vol. XXVI.— 10 146 Ross V. HixoN. [Kansas^ Advice of Mngistrate. — If a justice of the peace or other magistrate before whom the criminal charge was made is not an attorney at law, he is not a proper person to seek for advice, and the prosecutor is not protected by the fact that he in good faith fully stated all the facts to such magistrate, and was by him advised that the prosecution would be sustained, and acted in consequence of such advice: Brobst v. Rnff, 100 Pa. St. 91; 45 Am. Rep. 358; Gee V. Culver, 12 Or. 22S; Dolhe v. Norton, 22 Kan. 101; Coleman v. Heurich, 2 Mackey, 189; Sutton v. MrConnell, 46 Wis. 269; Straus v. Young, 36 Md. 246. Whether, if the magistrate were also a licensed attorney, his advice would be sufficient to shield the prosecutor, is a question upon which we have been unable to discover any judicial opinion. If the facts are correctly stated to a magistrate, and he, through error of law, erroneously believes that they constitute a crime, and issues his warrant accordingly, the prosecutor is not liable: Hahn v. Schmidt, 64 Cal. 284; Newman v. Davis, 58 Iowa, 447. In a very recent case these authorities are cited as establishing the right of a pros- ecutor to rely on the advice of a magistrate to the same extent as if he were an attorney: Ball v. Baiclex, 93 Cal. 235; 27 Am. St. Rep.; but the learned judge either misapprehended the effect of these decisions, or employed lan- guage which cannot be correctly understood, unless considered in connection with the peculiar facts of that case. The statements made by the prosecutor to the justice, orally and in the written accusation, were confessedly true. The justice, after examining the penal code of the state, reached the conclu- sion that the facts so stated to him constituted a crime; but the courts subse- quently determined that the accusation did not charge the commission of any criminal act. In other words, the case belonged to the class to which we have referred, in which there was abundant cause for belief in the truth of the acts charged, but the magistrate, through his error of law, mistook inno- cent acts for crimes, and issued his warrant solely on account of such error. Doubtless, the advice of a magistrate is admissible, when obtained and fol- lowed in good faith, as tending to rebut the presumption of malice: Sisk v. Hurst, 1 W. Va. 53. The Advice of Counsel must be Sought and Acted upon in Good Faith. — It appears to be essential to the existence of the good faith required by the authorities that the advice of the counsel, together with the facts known to the prosecutor, generate in his mind a belief in the guilt of the accused. When a client fully and fairly states the case to his attorney for the purpose of receiving his advice and acting upon it, we think he should be protected by the opinion given him, though it does not meet his concurrence. He con- sults the attorney because he supposes him to be learned in the law, and capable of forming a more correct opinion than himself, and therefore he ought to be protected while acting upon that opinion, though he does not comprehend it, and is still unable to surrender his own previously formed conclusion upon the same subject. The cases are infrecjuent, but so far as we have seen, they incline towards holding the prosecutor answerable if he acted upon the advice of an attorney, if he nevertheless believed that the prosecution would fail, or that the accused was innocent: Johnson v. Miller, 47 N. W. Rep. 903 (Iowa); especially if actuated by hostile feelings: S/iarpe Johnston, 76 Mo. 660. Failure to Disclose All the Facts to the Attorney. — A prosecutor cannot be acting in good faith when he proceeds upon the advice of an attorney taken without informing him of all the facts within the knowledge of the prosecu- tor which might reasonably be supposed to affect the opinion of the attorney. If he withheld any of such facta, the opinion obtained cannot protect him: Jan. 18'Ji.] lloss v. Hixon. 147 Coinfemrnt v. Cropper, 41 La. Ann. 30.3; Cutlihert v. GnUoway, 35 Fed. Rep. 466; Norrdlx. Vojel, 39 Minn. 107; Roy v. Goings, 112 III. 656; Dreiifusv. Aid, 29 Neb. 191; Thurston v. Wriglit, 77 Mich. 96; Beidler v. Beirhaert, 25 111. App. 422; Mesher v. Iddinrjs, 72 Iowa, 55.3; Forbes v, Hagman, 75 Va. 168; Z>eco'JX v. Zi>M.x, 2.3 La. Ann. 392; Block v. Meyers, 33 La. Ann. 776; Logan v. Maytag, 57 Iowa, 107; iJayie v. H'JsAer, 72 111. 262; Kimmel V. Henry, 64 111, 505. The omission to state any material fact, though it resulted from an honest mistake of the prosecutor in supposing it not to be material, deprives him of the immunity otherwise obtainable by seeking the advice of counsel. If, after obtaining the advice of counsel, and before tlie delivery of the warrant of the airest, new and material facts come to the knowledge of the prosecutor, tending to lessen the probability of the guilt of the accused, the prosecutor should communicate such facts to his counsel for his further opinion before proceeding to the execution of the warrant: Ash V. Mar low, 20 Ohio, 119. Wa7ii of Diligence in not Ascertaining All the Facts. — A number of authoritiea declare that the prosecutor is not protected by the advice of his counsel un- less, in addition to the facts known to him, he further stated all facts which he could have ascertained by reasonable diligence: Sappington v. Wctson, 50 Mo. 83; Cooper v. Utterhach, 37 Md. 282; Hill v. Palm, 38 Mo. 13; Pipkin v. Haucke, 15 Mo. App. 373; Sharpe v. Johnston, 76 Mo. 600. This, however, is probably an inaccurate statement of the law, or, at least, one which ia inapplicable when the prosecutor was acting in good faith, and without any- thing to indicate to him that further inquiry might reveal to him circum- stances which, if disclosed to his counsel, would probably affect the advice given. Upon this subject we think tlie better opinion is that expressed by the supreme court of Iowa in Joluison v. Miller, 69 Iowa, 562, 58 Am. Rep. 231, as follows: "One who seeks the advice of counsel with reference to the commencement of a criminal prosecution is bound to act in good faith in the matter. Unless he does this, he will not be protected from liability on the ground that he acted upon the advice given him. He is required to make to counsel a full and fair statement of all the material facts known to him. If he has a reasonable ground for believing that facts exist which would tend to exculpate the accused from the charge, good faith requires that he shall either make further inquiry with reference to those facts, and communicate the in- formation obtained to the counsel, or that he shall inform him of his belief of their existence, in order that he may investigate with reference to them, and take into account, in forming his opinion, the information attained with reference to them. But he is not required to do more than this. He is not required to institute a blind inquiry to ascertain whether facts exist which would tend to the exculpation of the party accused. But if he honestly be- lieves that he is in possession of all the material facts, and makes a full and fair statement of those facts to the counsel, and acts in good faith on the ad- vice given him, he ought to be protected." The mere statement of a prose- cutor, in giving evidence in his defense, that he made a full and fair disclosure of all the facts to his counsel is not conclusive. What he stated should be proved by him or other competent evidence, and the jurors left to draw the conclusion whether the statement made was a full and fair one or not: Mc- Leod V. McLeod, 73 Ala. 42. Instances of Probable Cause. — The following facts have been held to consti- tute probable cause: The stealing of coal during the night. and the finding of it the next morning in a place where the accused kept his coal, though he denied all knowledge of the crime: McDonald v. Atlantic etc. R'y Co., 21 Pac. 148 Ross V. Hixo-v. [Kansas, Rep. 338 (Ariz.); prosecution based upon statement, apparently truthful, made by a child eleven years of age, who claimed to have seen the offense committed by the accused: Dwain v. DescaUo, GO Cal. 415; the intentional killing of one person by another, though the accused, on his trial, was ac- quitted on the ground that he acted in self-defense: Glaze v. Whitley, 5 Or. 164; Dietz v. Langjltf., 63 Pa. St. 234; prosecution baaed upon information received from respectable persons believed to be credible: Ch'itjield v. Vome- ford, 4 Fost. & F. lOOS; or upon facts and circumstances brought to the knowledge of the prosecutor through the usual and ordinary business chan- nels, believed by him to be true, and of such a character and coming from such source that business men of ordinary' care, prudence, and discretion would act upon them under similar circumstances: Gallaway v. Burr, 32 Mich. 332; or upon the fact that the prosecutor's property was burned, and a woman who was in charge of it pointed out the accused as one of the persons by whom it was fired: Angela v. Faul, 85 111. 106; or upon statements of a per- son made in the presence of the prosecuting attorney of the state, to which statements such person would not testify on the trial of the accused: Ander- son V. Friend, 85 111. 135; or upon the confession of a convict implicating himself and others, giving a detailed statement of the facts preceding, attend- ing, and following the crime, when the party to whom the confession was made investigated the statements and found them to be substantially correct, and acted upon the confession thus fortified by personal investigation, though the persons suspected or accused were not notified of the accusation before taking proceedii gs against them: Blunh v. At'hison etc. R. R. Co., 38 Fed. Rep. 311; or upon information that tlie accused was unlawfully selling lot- tery tickets, verified by the statement of a person sent to the office of the accused to buy such tickets, and who returned with one which he stated he had bought of the accused: Plassan v. Louisiana Lottery Co., 34 La. Ann. 246; a prosecution of a mortagagor for secreting personal property with in- tent to defraud the mortgagee, where it appeared that such property had been removed to some place unknown to the mortgagee or his agents; that he was not informed of any intention to so remove it, nor of the place to which it had been taken; that the mortgagor was about to remove to another state, and re- fused to tell an agent of the mortgagee where such property was, though he professed a willingness to inform another agent, should he apply for such information: Hooper v. Vernon, Sup. Ct. Md., March, 1891. Where the plain- tiff had for several years before January 1, 1869, been employed in an exten- sive mercantile business, and had received large shipments of goods during a large part of the month of December, 1868, through defendants as common carriers, without paying freight thereon, and he also received through them money packages of considerable value, and he gave defendants checks for freight, all of which were dishonored at the bank for want of funds, and oa January 3d, demand being made upon plaintiff for payment of the freight bills, he told defendant's agents that he had no money, and since January had been doing business as agent, it was held that these facts furnished probable cause for swearing that the plaintiff had within two years fraudu- lently conveyed and assigned his property to hinder and defraud his creditors: Barrett v. Spaids, 70 111. 408. There is probable cause for a prose- cution when property has been stolen and several persons have told the prose- cutor that they had seen it at the house of the accused, and the prosecutor himself believed he had seen part of it there, and made an affidavit for a search-warrant, in which he charged the property to have been stolen, and hd, at the time, believed his charge to be true: Bailey v. Dodge, 28 Kan. 72. Jan. 1891.] Ross v. Hixon. 149 Instances of Want of Probable Caitse. — If a tenant of premises, returning at night from a temporary absence, finds the entrance thereto barred, and removes the obstruction and enters, and thereupon the landlord appears, and in a menacing manner orders the tenant to leave, which he declines to do, and tells the landlord that if he interferes with him, he will kill him, and the landlord then makes an affidavit for the arrest of the defendant, charging him with breaking into tlie premises and threatening to kill, and requests the warrant to be served at night after the tenant had gone to bed, and compels him to be taken to jail without being given any opportunity to procure bail for his appear- ance, the action of the landlord is without probable cause, and the circum- stances are such as to justify the jury in regarding it as malicious: Ckapmanv, Cawrey, 50 III. 512. The following prosecutions were also adjudged to be with- out probable cause: A prosecution for taking and withholding a package from the United States mail., when the accused had not done anything to create a suspicion of his guilt, and the belief of the prosecutor was founded upon mis- take of himself and his assistants in overlooking the package while it was in the mail-wagon: Merriam v. Mitchell, 13 Me. 439; 29 Am. Dec. 514; a prose- cution for larceny in disposing of mortgaged chattels when the mortgagee, when the mortgage was being drawn, had assented that the mortgagor might sell them whenever fit for market: Walker v. Camp, 69 Iowa, 741; a prosecution for .breaking into a store with intent to steal, when the property in the store had been attached as tiie property of the accused, and the prosecutor had reason to believe that the breaking into the store was done under a claim of right and without felonious intent, there being no attempt at secrecy or concealment, or to carry away goods: Bobsin v. Kintjshury, 138 Mass. 538. Malice. — To sustain an action for malicious prosecution, there must be a concurrence of malice and want of probable cause. Neither, however clearly establislied, will support an action, in the absence of the other: Fai^ mer v. Darling, 4 Burr. 1971; Kelton v. Bevins, Cooke, 90; 5 Am. Dec. 670; Turner v. Wal/cr, 3 Gill & J. 377; 22 Am. Dec. 329; Leidig v. Bawson, 1 Scam. 272; 29 Am. Dec. 354; Mdlonei/ v. Doane, 15 La. 278; 35 Am. Dec. 204; Grant v. Deuel, 3 Rob. (La.) 17; 38 Am. Dec. 22S; Griffin v. Chubb, 7 Tex. 603; 58 Am. Dec. 85; Dickin-'^on v. Maynard, 20 La. Ann. 66; 96 Am. Dec. 379; Dearmond v. St. Amant, 40 La. Ann. 374; Girotv. Graham, 41 La. Ann. 511; McGarry v. Missouri P. R. R. Co., 36 Mo. App. 340; Evans v. Thomp- son, 12 Heisk. 534; Jordan v. Alabama etc. R. R. Co., 81 Ala. 220; Deitz v. Langjitf, 63 Pa. St. 234; Turner v. O'Brien, 11 Neb. 108; Stacy v. Emei-y, 97 U. S. 642; Glaze v. Whitley, 5 Or. 164; Murphy v. Martin, 58 Wis. 276. We have heretofore shown that if the accused was guilty he cannot recover for his prosecution, however malicious the motives of the prosecutor. But his defense does not require proof of the actual guilt of the accused. It is suffi- cient that there was probable cause for the prosecution, and if that be found to have existed, it is not material that the prosecutor was also influenced by malice or other unlawful motive. Malice, however clearly proved, cannot support the action if there was probable cause for the prosecution, nor can it be so extreme in its character or manifestation as to create an inference or presumption that there was no probable cause: Travis v. Smith, 1 Pa. St. 234; 44 Am. Dec. 125; Green v. Cochran, 43 Iowa, 544; Krmj v. IVard. 77 111. 603; Kaufman v. Wicks, 62 Tex. 234; Meysenberg v. Engelke, 18 Mo. App. 346; Ulmer v. Leland, 1 Greenl. 135; 10 Am. Dec. 48; Smith v. Zent, 59 Ind. 362; Bartlett v. Brown, 6 R. I. 37; 75 Am. Dec. 675; Demp^ey v. State, 27 Tex. App. 2G9; 11 Am. St. Rep. 193; Coleman v. Allen, 79 Ga. 637; 11 Am. St. Rep. 449. On the other hand, while the absence of probable cause may jus- 150 Ross V. HixoN. [Kansas, tify the jury in inferring malice or in not exacting any other evidence of it, yet if the absence of probable cause, considered in connection with all the evidence in the case, does not satisfy the jury that the prosecution was actu- ated by malice, the verdict should be for the defendant: Schojield v. Ferrers, 47 Pa. St. 194; 86 Am. Dec. 532; McQarry v. Missouri P. E'y Co., 36 Mo. App. 340; L^thsfordv. Deilrich, 86 Ala. 250; 11 Am. St. Rep. 37. Deftnitlotis of Malice. — It has been said that a satisfactory definition of the term '* malice " "may not be easy." Of course, it includes all cases in which the prosecutor has ill-will against the accused, and because of such ill-will institutes or continues the prosecution against him; but it is not necessary to prove any actual ill-will or grudge, for one having no ill-will against another may notwithstanding be guilty of the malicious prosecution of him: Blank V. Atchison etc. R. R. Co., 38 Fed. Rep. 311. "The malice necessary to sustain this action is not express malice or specific desire to vex or injure from malevolence or motives of ill-will, but the willful doing of an unlawful act to the prejudice of another": Johnson v. Ebbcrts, 6 Saw. 538; 11 Fed. Rep. 129. " Any other motive tha.n di bona fide purpose to bring the accused to punishment as a violator of the criminal law, or associated with such bona fide purpose, is malicious. There need be no personal ill-will, hate, desire for revenge, or other base or malignant passion. Whatever is done willfully and purposely, whether the motive be to injure the accused, to gain some advantage to the prosecutor, or through mere wantonness or carelessness, if it be at the same time wrong and unlawful within the knowledge of the actor, is in legal contemplation maliciously done ": Lunsford v. Deitrich, Ala., May, 1891; Jordan v. Alabama etc. R. R. Co., 81 Ala. 220. "The malice neces- sary to be shown in order to maintain this action is not necessarily re- venge or other base or malevolent passion. Whatever is done willfully and purposely, if it be at the same time wrong and unlawful, and that known to the partj', is malicious ": Wilh v. Noyes, 12 Pick. 324; Pullen v. Olidden, 66 Me. 202. A prosecution brought to aid in the collection of a debt or to obtain possession of property, and not to vindicate justice, is malicious: Ross v. Langworthy, 13 Neb. 492; Krug v. Ward, 77 111. 603; Kelley v. Sage, 12 Kan. 109; Gahelv. Weisensee, 49 Tex. 131. So it has been held that a pros- ecution with a view to frightening others, and thereby deterring them from committing depredations on the property of a corporation, is malicious: 6'^- vens V. Midland C. R'y Co., 2 Com. L. Rep. 1300; 10 Ex. 352; 18 Jur. 932; 23 L. J. Ex. 328; though it is obvious that this motive does not deprive the prosecutor of the protection of probable cause, nor expose him to liability when he had reasonable ground for believing, and did believe, in the guilt of the accused, for surely the deterring of others from the commission of crime is not a less laudable object than the punishment of those already guilty: Coleman v. Allen, 79 Ga. 637; 11 Am. St. Rep. 449. Malice, in its legal sense, is any improper and sinister motive not necessarily arising from spite or hatred, nor prompted by a corrupt design, towards the accused. Any act " done wrongfully, and without reasonable and probable cause in a wan- ton disregard of the rights of another, is malicious in law ": Mitchell v. Wall, 111 Mass. 492; Commomvealth v. Snelling, 15 Pick. 337. "Malice means wickedness of purpose, or a wrongful or malevolent design against another, a purpose to injure another, a design of doing mischief, or any evil design or inclination to do a bad thing, or a reckless disregard of the rights of others, or an intent to do injury to another, or absence of legal excuse, or any other motive than that of bringing a party to justice ": Shannon v. Jones, 76 Tex. 141; Dempsey v. State, 27 Tex. App. 269; 11 Am. St. Rep. 193. "Malice, Jan. 1891.] Ross v. Hixon. 151 then, in the enlarged sense and meaning of the law, is not restricted only to actual anger, hatred, and revenge, but includes every other unlawful and un- justitiable motive. So that it may be said that any motive other thaa that of simply instituting a prosecution for the purpose of bringing a person to jus- tice is a malicious motive on the part of the person who acts under the influence of it ": Oee v. Culver, 13 Or. 598. In the light of the foregoing defiuitions, it clearly appears that the purposes of the prosecution, justly rendering it sub- ject to the charge of being malicious and unlawful, may be infinite in variety, while there is one single purpose which always relieves it from this charge, and this is the purpose of bringing to justice one believed to be guilty of crime; and, therefore, that however numerous may be the instances or speci- fications of malice, they are all embraced within this definition: Malice in a criminal prosecution is merely the instituting or maintaining of such prose- cution without being induced so to do by tlie desire to bring the accused to justice: Speai- v. Hiles, 67 Wis. 350; Viiial v. Core, 18 W. Va. 1; Stevens v. Midland C. I?. R. Co., 2 Com. L. Rep. 1300; 10 Ex. 352; 18 Jur. 93l'; 33 L. J. Ex. 328; Johns v. Marsh, 52 Md. 323; Alexander v. Harrison, 38 Mo. 258; 90 Am. Dec. 431. If this design is present, and its influence controlling, the action of the prosecutor is not malicious, though influenced to some extent by otiier and forbidden considerations. "If the selfisli element is only inci- dental, it cannot be regarded as evidence of malice, for it can hardly be expected that all selfish aims and desires can be eliminated from such prose- cution ": Thompson v. Beacon Valley Rubber Co., 56 Conn. 493. Hence one who in good faith and upon probable cause prosecutes another for a malicious trespass is not rendered answerable for a malicious prosecution by the fact that one of his purposes in bringing the prosecution was to prevent the ac- cused from building a house on the premises on which the trespass was alleged to have been committed: Jackson v. Linnington, 47 Kan. 396; 27 Am. St. Rep. Malice is a Question for the Jvry. — If the facts are such as t6 establish want of probable cause, then the issue of malice on the part of the prosecutor must be determined. There is no doubt that this is a question for the jury. The court is not permitted to determine it either by telling the jury that because of the absence of probable cause, they should find for the plaintiff, nor by in- structing them tiiat the evidence in tlie case created a presumption of malice, or made such presumption conclusive. Any action of the court tending to take the decision of this question from the jury is erroneous, and entitles the defeated party to a new trial: Reisan v. Moft, 42 Minn. 49; 18 Am. St. Rep, 489; Turner v. Walker, 3 Gill & J. 377; 22 Am, Dec. 329; Harkrader v. Moore, 44 Cal. 144; Levy v. Brannan, 39 Cal. 485; Potter v. Seale, 8 Cal. 218; Oee V. Culver, 12 Or. 228; Strirkler v. Greer, 95 Ind. 596; Stewart v. Sonne- born, 98 U. 8. 187; Mitchell v. Jenkins, 2 Nev. & M. 301; 5 Barn. & Adol. 688; S'hojield v. Ferrers, 47 Pa. St. 194; 86 Am. Dec. 532. Inferrinij Malice. — The authorities all declare that malice must be proved: Stone V. Stevens, 12 Conn. 219; 30 Am. Dec. 611; FUckimjer v. Wagner, 46 Md. 681; George v. Radford, 3 Car. & P. 404; Turner v. Turner, Gow, 50. By this is not meant that tliere must be any direct or specific j)roof of ill-will, or of a desire to injure the accused, or of any other wrongful motive. While the absence of probable cause does not render the prosecutor liable if his act was not malicious, still the same evidence which proves the absence of prob- able cause for the prosecution may satisfy the jury that it was malicious, and if it does so satisfy them, they should find for the plaintiflF. Some of the authorities say that malice may be inferred from want of probable cause: 152 Ross V. HixoN. [Kansas, Mitchell V. Jenkins, 2Nev. & M. 301; 5 Barn. & Adol. 588; Williams v. Vanmeier, 8 Mo. 339; 41 Am. Dec. 644; Yocum v. Polly, 1 B. Moa. 358; 36 Am. Deo. 583; Griffin v. Chubb, 7 Tex. 603; 58 Am. Dec. 85; Boss v. Innis, 35 111. 487; 85 Am. Deo. 373; Bell v. Graham, 1 Nott & McO. 278; 9 Am. Dec. 687; Turner v. Walker, 3 Gill & J. 377; 22 Am. Dec. 329; Merriam v. Mitchell, 13 Me. 439; 29 Am. Dec. 514; Murphy v. Hobhs, 7 Col. 541; 49 Am. Rep. 366; Heap V. Parrish, 104 Ind. 36; Roy v. Goings, 112 111. 656; Block v. Meyers, 33 La. Ann. 776; Decoux v. Lieux, 23 La. Ann. 392; Harpham v. Whitney, 77 111. 32; and others that it may be inferred from the same facts which estab- lished the want of probable cause: Sharpe v. Johnston, 76 Mo. 660. The dis- tinction is not material. What is meant by either form of expression is, that the jury may, without any evidence being offered, except that which tends to show that there was no probable cause for the prosecution, conclude that it was malicious; but that they are not bound to draw such conclusion as a matter of law, nor at all, unless it is generated in their minds from the evi- dence. They should not be instructed to draw it, but left free to infer it, or not, as from the evidence to them shall seem to be true: Harkrader v. Aloore, 44 Cal. 144; Closson v. Staples, 42 Vt. 209; 1 Am. Rep. 316; Carson v. Edge- worth, 43 Mich. 241; Strickler v. Greer, 95 Ind. 596; Griffin v. ChiM, 7 Tex. 603; 58 Am. Dec. 85; Oiicer v. Pate, 43 Ind. 132; Greer v. Whitjield, 4 Lea, 85. Plaintiff's Pleadings. — "Originally, an action of this character was an action on the case in the nature of a writ of conspiracy, in which the plain- tiff, in the declaration, charged the defendant with having falsely and mali- ciously caused his arrest. The defendant in his plea set forth the grounds of his suspicion under which he caused the arrest, the sufficiency of which was determined by the court upon a demurrer to the plea: Chambers v. Tay- lor, Cro. Eliz. 900; Coxe v. Wirrall, Cro. Jac. 193; Com. Dig., tit. Pleader, 2, K; Wear v. Wells, 3 Bulst. 284. In process of time a change was effected in the manner of pleading the cause of action, by which the plaintiff antici- pated this plea by averring in the declaration a want of probable cause: Savil V. Roberts, 1 Salk. 13; 1 Ld. Raym. 374; and the facts were presented under the general issue": Ball v. Rawles, 93 Cal. 229; 27 Am. St. Rep. In actions for malicious prosecution, as well as in other civil actions, the sub- stantial elements of the plaintiff's complaint or declaration may be ascer- tained by considering what is essential to the maintenance of his action. These essentials have been heretofore stated, and each of them must ap- pear from the complaint to have existed. The prosecution of the plaintiff must be shown. The proceedings need not be set out in full, but their substance must be stated: Clos-ion v. Staples, 42 Vt. 209; 1 Am. Rep. 316. The jurisdiction of the court in which the prosecution took place need not be alleged in those states in which it is not regarded as essential to the maintenance of the action: Morris v. Scott, 21 Wend. 281; 34 Am. Dec. 236. It must also appear from the complaint not only tliat the prosecu- tion has been terminated, but that its termination was such as to entitle the plaintiff to maintain the action, as that he has been acquitted, or dis- charged from custody, so that no further prosecution can take place with- out making a new accusation: Fisher v. Bristow, 1 Doug. 215; Morgan v. Hughes, 2 Term Rep. 225; Johmon v. Finch, 93 N. C. 205; Hatch v. Cohen, 84 N. C. 602; 37 Am. Rep. 630; Wall v. Toomey, 52 Conn. 35; Gorrell v. Snow, 31 Ind. 215; Hays v. Blizzard, 30 Lid. 457; Whitworth v. Hall, 2 Barn. & Adol. 695; Turner v. Walker, 3 Gill & J. 377; 22 Am. Dec. 329. Jan. 1891.] Ross v. Hixon. 153 TVie Existence of Probable Cause for Che Prosecution muH be Denied in the Complaint: Dennehey v. Woodsum, 100 Mass. 195; Turner v. Turner, 85 Tena. 387. The usual form of making this denial is to allege that the prosecution was without reasonable or probable cause: Adams v. Lisher, 3 Blackf. 241; 26 Am. Dec. 102; Scotten v. Longfellow, 40 Ind. 23; and there appears to be no doubt of the sufficiency of this general allegation, and that there is no necessity of stating the facts or evidence by which the plaiutilT will support it: Benson v. Bacon, 99 Ind. 156; though if such facts are so fully stated as to show that the prosecution was without probable cause, the general allega- tion of its absence may be omitted: Wall v. Toomey, 52 Conn. 35. As it is not the innocence of the accused or the failure of the prosecution which subjects the prosecutor to liability, but his having proceeded in the absence of probable cause, any allegation which falls short of showing this absence is insufficient. Hence a complaint is defective in this respect which merely alleges that the charge made was false and malicious: Scotten v. LongfeUow, 40 Ind. 23; Kirtley v. Deck, 2 Munf. 10; 5 Am. Dec. 445; Young v. Oregorie, 3 Call, 446; 2 Am. Dec. 556; Ziegler v. Powell, 54 Ind. 173. The complaint must also allege that the charge against the plaintiff was made maliciously, as well as without probable cause: Turner v. Walker, 3 Gill & J. 377; 22 Am. Dec. 329; and if the recovery of special damages is sought, they should be stated with particularity: Stanfield v. Phillips, 78 Pa. St. lA; as where plaintiff wishes to enhance damages by showing his mistreatment while in prison: Miles v. Weston, 60 111. 361; or his losses in his business: Horne v, Sullivan, 83 111. 30. Answer. — In an early South Carolina case it was erroneously stated that the defense of probable cause presents new matter, and therefore is not ad- missible under the general issue: Fant v. Mc Daniel, 1 Brev. 172; 2 Am. Dec- 660. The absence of probable cause is one of the grounds of action neces- sarily alleged in the plaintiff's complaint, and anything which merely dis- proves the necessary allegations of the plaintiff's complaint is not new matter, and need not be specially alleged. With reference to the various matters which we have shown must be stated in the complaint, there is no doubt that they may be put in issue by a general denial, and that all evidence tending to counteract or contradict the evidence required to be offered by plaintiff in support of his complaint is admissible under the general issue, and therefore need not be specially pleaded. Hence, under the general issue, tiie defendant is entitled to prove, if he can, that the plaintiff was guilty of the crime charged against him: Bndei/v. Rose, 57 Iowa, 651; or that the prosecu- tion was not malicious: Hitchcock v. Xorth, 5 Rob. (La.) 3-8; 39 Am. Dec. 540; Sparling v. Conivay, 75 Mo. 5i0; or was upon probable cause: Trogden v. Deckard, 45 Ind. 572; Brigham v. Aldrich, 105 Mass. 212; Hitchcock v. North, 5 Rob. (La.). 328; 39 Am. Dec. 540; Grifin v. Chuhh, 7 Tex. 603; 58 Am. Dec. 85; and as part of his defense of probable cause, the advice which he received from his counsel, and that it was made after a full and fair disclosure of the facts: Sparling v. Conway, 6 Mo. App. 2S3; 75 Mo. 510; Levy v. Brannan, 39 Cal. 485; Folger v. Washburn, 137 Mass. 60. Evidence — Burden of Proof. — As it is essential that the plaintiff in his complaint affirmatively allege all the facts necessary to support his action, it follows that he must assume the burai;/e v. WisJier, 72 111. 262; Cafe/ v. Thomas, 81 111. 478; Scott v. 5/ho7ie Co., 48 N. J. Eq. 91; ante, p. 462. Commerce when Begins so as to Protect Subjects of. — The fact that articles or a class of articles are proper subjects of interstate commerce, or that they are intended to be employed in such commerce, does not relieve them from the authority of the state to make regulations concerning them. When they begin to move from one state to another as articles of trade, then commerce commences: T/ie Daniel Ball, 10 Wall. 557. If goods are in course of trans- portation through a state, though detained within it by some cause of delay, " they are in the course of commercial transportation, and are clearly under the protection of the constitution. There must be a point of time when they cease to be governed exclusively by the domestic law, and begin to be gov- erned and protected by the national law of commercial regulation, and that moment seems to us to be the legitimate one for this purpose, in which they commence their final movement for transportation from the state of their origin to that of their destination ": Coe v. Errol, 116 U. S. 525. Until this moment arrives, they cannot be within the protection "of the national law of commercial regulation," though there is an intention to export them, and they have been brought from the place of their growth or manufacture to some point or station for the purpose of exporting them thence by railroad or some other means of transportation there available: (7ofi v. Errol, 116 U. S. 517; Turvin v. Burgess, 117 U. S. 504; Turner v. Maryland, 107 U. S. 38. If an article of commerce is such that the state, in the lawful exercise of its police powers, may prohibit its manufacture within the state, on the ground that it is injurious to the health or morals of its inhabitants, or for some other sufficient reason, the exercise of the police power cannot be avoided or invalidated by the claim, whether true or false, that the articles, if their manufacture is allowed by law, will become subjects of interstate commerce: Beer Co. v. Massachusetts, 97 U. S. 25; Kansas v. Zeiholt, 123 U. S. 623; Kidd V. Pearson, 128 U. S. I; Powell v. Pennsylvania, 127 U. S. 678. Commerce, Termination of Bight of Subjects of, to Protection. — While the commencement of transportation is also the commencement of the right of the articles transported to protection as articles of interstate commerce, the com- pletion of such transportation does not terminate the right to such protection. Feo. 1892.] People v. Wemple. 553 It is manifest that the right to regulate commerce as soon as the subjects of it reach a state, or place in the state, where their owners desire to sell or engage in traffic with them would be equivalent to a right to regulate com- merce between states, and to impose regulations at variance with those im- posed by Congress, or to enforce restrictions where Congress intended all should be free from restraint. Therefore, though an article is such that the state, in the exercise of its police powers, may forbid its manufacture in the state, or its sale if there manufactured, still if it is an article of commerce, the state has no power to impose any regulation or restriction which will pre- vent its being brought within the state, or its sale at any time after its ar- rival, and while it remains in original packages: Leisy v. Hardin, 135 U. S. 100; Lt/ng v. Michigan, 135 U. S. IGl; State v. Intoxicating TAquors, 83 Me. 158. The protection to the importer ceases when he has so acted that the prop- erty imported becomes "incorporated and mixed up with the general mass of property in the country, which happens when the original package is no longer such in his hands": Brown v. 3Tari/la))d, 12 Wheat. 419; Low y. Austin, 13 Wall. 29; Keith v. State, 91 Ala. 1. The only question remaining to be finally determined is, What is an original package, and the breaking thereof, within the meaning of these decisions ? As to size or quantity, there can be no doubt that the importer may, in the absence of congressional legislation to the contrary, make it as large or small as to him may seem convenient or desirable for accomplishing the purpose he has in view of transporting his property from one state and making it a subject of sale or exchiinge in another. Original Par/cages. — " Evidently the ' original package ' referred to in these decisions was and is the package of the importer as it existed at the time of its transportation from one state into the otlier. The whole subject has rela- tion to commerce and to interstate commerce, and to nothing else. Hence the words must mean the package as transported by the importer himself, or by his agent, either a common carrier or a private carrier, for the purposes of commerce; and therefore it would seem that it is for the importer to deter- mine how large or how small the package should be, and the manner in whicii the package should be made up, and the materials used in making it up. Certainly an importer has as much right, under the federal constitu- tion, to import into a state and sell against its laws a single gill of intoxi- cating liquor as he has to import into such state and sell against its laws a gallon or a barrel or a hogshead of the same interdicted article. In some cases of interstate commerce it would scarcely seem necessary that any pack- age should be used. For instance, in the transportation of live-stock, the individual articles transported might be horses, cows, sheep, or hogs, and these articles might be very large or very small, even little pigs, and none of them placed in packages ": State v. Winters, 44 Kan. 728. An importer of articles of commerce from one state into another may, if he chooses, ship them in small boxes or bottles, and the smallness of the box or bottle cannot prevent it from being entitled to protection as an original pack- age: In re Beine, 42 Fed. Rep. 545; Keith v. State, 91 Ala. 1. But he may, on the other hand, find it more convenient, or that his property is less liable to breakage or destruction, when he incloses two or more bottles or boxes within something, as with a cord, a paper wrapper, or a larger box. On what principle are the articles thus protected or united to be treated differ- ently from the treatment applicable to them when they are shipped sepa- rately ? If two or more bottles happen to be tied together with a cord, or inclosed in a paper or other wrapper, does the cutting of the cord or the 554 People v. Wemple. [New York, tearing of the wrapper deprive their owner of the protection of the constitu- tion ? And what is there in the language of the constitution to indicate that one transporting goods from one state to another shoukl not be entitled to sell them by retail as well as by wholesale, or that his right to sell in either manner should be dependent on the form or size of the package in which he happens to ship them. We think that the use of the terna "original pack- age " was merely intended to furnish one of the tests by which it could easily be ascertained whether the articles in question were the same articles im- ported, and to assert that because they were still in such packages, they could not have been commingled with other articles, and were therefore un- doubtedly still entitled to protection. But there is no reason why this test should be exclusive, nor have we seen any case in the national courts in which articles still in the possession and ownership of the importer have been denied protection because, when imported, they were boxed up or inclosed with other articles from which they have since been separated; but in some of the state courts, bottles of intoxicating liquors, which had they been shipped separately would have been treated as in original packages and en- titled to protection, have been decided to have lost their immunity because taken out of the boxes in which they were shipped before being exposed for sale: Smith v. State, 54 Ark. 248; Keith v. State, 91 Ala. 2; Wade v. State, 63 Vt. 80. Navigation — Rivers, Obstruction of. — While, as we have heretofore shown, the power to regulate commerce includes the power to regulate navigation, and, as a general rule, that any state regulation of navigation which afifects interstate commerce is so far inoperative and void, still there are regulations of a local character which a state may lawfully enact and enforce, which in- directly affect navigation, and through it interstate commerce, and which are nevertheless upheld. Thus the construction and maintenance of a bridge across a navigable stream, while it tends to interfere with navigation, and to that extent to obstruct commerce, may aid transportation across the stream, and the advantage which it affords commerce may exceed the detriment to it arising from the obstructions to navigation. The local legislature, in the ab- sence of any congressional action upon the subject, is permitted to determine whether commerce is best promoted by a bridge or not, and therefore any enactment by the state upon this subject is controlling, unless it conflicts with national legislation: Oilman v. Philadelphia, 3 Wall. 713; Veazie v. Moor, 14 How. 568; Willamette Iron Bridge v. Hatch, 125 U. S. 1; Escanaba Co. v. Chicago, 107 U. S. 678; Cardwell v. American Bridge Co., 113 U. S. 205; Hamilton v. Vicksbtirg R. R. Co., 119 U. S. 280; Huse v. Glover, 119 U. S. 543; State v. Leighton, 83 Me. 419, So there are instances where dams across navigable streams may promote rather than hinder commerce, as where by such dams the capacity of rivers for water carriage is increased. "In order to develop their greatest utility in that regard, it is often essential that such structures as dams, booms, piers, etc., should be used, which are sub- stantially obstructions to general navigation, and more or less so to rafts and barges. But to the legislature of the state may be most appropriately confided the authority to authorize these structures where their use will do more good than harm, and to impose such regulations and limitations in their construction and use as will best reconcile and accommodate the interest of all concerned in the matter ": Pound v. Turck, 95 U. S. 459. When, however. Congress interposes to sanction or condemn an obstruction to navigation, its authority is paramount and its action -conclusive. Hence, after it has authorized the maintenance of a bridge, it can no longer be pro- Fc'o. 1802.] People v. Wemple. 555 ids v. Manistee River Improvement Co., 123 U. S. 288; Raijiiles v. Improvement Co., 123 U. S. 297; Huse v. Glover, 119 U. S. 543; McRcy Holds v. Smallhoiise, 8 Bush, 447; Thames Bank v. Lovell, 18 Conn. 500; 46 Am. Dec. 332; Wisconsin R. etc. Co. v. Manson, 43 Wis. 255; 28 Am. Rep. 542; Carondelet Canal Co. v. Parker, 29 La. Ann. 430; 29 Am. Rep. 339. Ferries. — The earlier cases in the national courts indicate that the states have the right to grant ferry licenses, and the privilege of maintaining ferries over navigable waters within tlieir limits, although the opposite shore on which the ferry must land is in another state, and that a license fee may be imposed on the keepers of ferries living in a state, for boats owned by tliem and used in ferrying passengers and goods from a landing in the state across a navigable stream to a landing in another state: Carroll v. Campbell, 17 S. W. Rep. 8S4; Mo., Dec. 1891; IVie Lottaioanna, '21 Wall. 577; Fanning v. Gregoire, JO How. 534; Conunty v. Taylors Exrs, 1 Black, 603; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 305. Nor do we understand the later decisions as denying "that the privilege of keeping a ferry, with a right to take tolls for passengers and freight, is a franchise grantable by the state, to be exercised within such limits and under such restrictions as may be required for the safety, comfort, and convenience of the public "; but they do make it clear that no taxes can be imposed upon the property used in the business of main- taining and operating a ferry between two or more states, the effect of whieh may be to regidate interstate commerce, and that such property is exempt " from charges other than such as are imposed by way of compensation for the use of the property em[jloyed, or for facilities afforded for its use, or as ordinary taxes upon the value of the property ": Gloucester Ferty Co. v. Penn- sylvania, 114 U. S. 196. Wharfage Fees. — A city or state may have improved landings or erected wharves on a navigable stream or in a harbor. If so, it may charge for tlie use of such landing or wharf, and may declare that the compensation for such 556 People v. VVemple. [New York, use shall be proportionate to the size or tonnage of the vessel, and the regu- lation imposing and enforcing such conipeusation is not objectionable either as a regulation of commerce or as a tax on tonnage: Worsley v. Second Munici- ■pality, 9 Rob. (La.) 324; 41 Am. Dec. .333; Sioeeney v. Otis, 37 La. Ann. 520; Cincinnati etc. Co. v. Cntlettshurg, 105 U. S. 559. "A duty on tonnage is a charge for the privilege of entering or trading or lying in a port or harbor; wharfage is a charge for the use of a wharf "; and if a city owning a wharf adopts an ordinance whereby specific charges " for landing at or using it are imposed as and for wharfage," such charges cannot be avoided or the ordi- nance declared invalid on the ground that they are excessive, and " constitute but a duty on tonnage, in the name and under the pretext of wharfage." The intent of the legislative body imposing charges professedly for wharfage cannot be ascertained and thwarted by extrinsic evidence: Parkershurg etc. Trans. Co, v. Parkershurg, 107 U. S. 691; Ouachita P. Co. v. Aiken, 121 U. S. 444; Bobbins v. Shelby Tax Dist., 120 U. S. 489. If, however, an ordinance or statute imposing wharfage discriminates between vessels laden with the products of diflferent states, it cannot be sustained; as where vessels laden with the products of the state are exempt from charges to which vessels bear- ing the products of other states are subject: Guy v. Baltimore, 100 U. S. 434. With the exception that discriminations will not be allowed which might in themselves operate as regulations of interstate or of foreign coninerce, "wharfage, the matter now under consideration, is governed by the local state laws; no act of Congress has been passed to regulate it. By the state laws it is generally required to be reasonable, and by those laws its reason- ableness must be judged. If it does not violate them, as before said, the Uiuted States courts cannot interfere to prevent its exaction. Of course, neither a state nor any municipal corporation under its authority can lay duties on tonnage; for that is expressly forbidden by the constitution; but charges for wharfage may be graduated by the tonnage of the vessels using a wharf, and that this is not a duty on tonnage within the meaning of the con- stitution has been distinctly held in several cases ": Ouachita P. Co. v. Aiken, 121 U. S. 448. Tonnage, What Forbidden as a Charge upon. — Although the decisions of the national courts sanction charges for wharfage, and the exaction of port charges for various services which may be rendered to vessels engaged in commerce, and receiving benefits from the facilities afforded to them by the erection of wharves and the like, it must not be forgotten that the national constitution declares that "no state shall, without the consent of Congress, lay any duty on tonnage," and that any state exaction which amounts to such a duty can- not be enforced. Any system of taxing vessels which, instead of taking their value as a basis of taxation, imposes a tax to be computed upon and accord- ing to their tonnage is unconstitutional: State Tonnage Tax Cases, 12 Wall. 204. Because the authorities show that where a vessel is chargeable with wharfage or for other services rendered to it such charge may be proportioned to its tonnage, it is often difficult to determine whether a charge to be ascer- tained from the tonnage of the vessel chargeable is invalid as an exaction of tonnage, or sustainable as a compensation due for services rendered. But if the charge attempted to be imposed is one which, by the terms of the statute or ordinance imposing it, may become due from the vessel, without any ser- vices being rendered to it, and from the mere fact that it has arrived in a port of the state, it is a charge on tonnage, and therefore not collectible. •It is periectly clear that a duty or tax or burden imposed under the au- thority of the state, which is, by the law imposing it, to be measured by the I Feb. 1892.] People v. Wemple. 557 capacity of the vessel, and ia, in its essence, a contribution claimed for the privilege of arriving or departing from a port of the United States, is within the prohibition ": Cannon v. New Orleans, 20 Wall. 581; Inman Steamship Co. V. I'lnker, 94 U. S. 238. Nor can an exaction be enforced on the ground that it is intended as wharfage, and entitles the vessel charged with it to the use of a wharf, if it is equally chargeable whether a wharf is used by it or not. " A tax which is, by its terms, due from all vessels arriving and stopping in a port, without regard to the place where they may stop, whether it be in the channel of a stream or out in a bay, or landed at a natural river bank, cannot be treated as compensation for the use of the wharf ": Cannon v. Neio Orleani<, 20 Wall. 581; Inman SleamsJiip Co. v. Tinker, 94 U. S. 238. While the states have power to establish quarantine laws and regulations, and to provide the revenue necessary for their enforcement, this power must be ex- ercised in subordination to the constitution of the United States, and the requisite revenue cannot be raised by charges imposed upon vessels, to be computed upon their respective tonnages: Peete v. Morgan, 19 Wall. 581. The essential test of a tax on tonnage "is, that it is imposed, whatever be the subject, solely according to the rule of weight, either as to capacity to carry or the actual weight of the thing itself ": Inman Steamship Co. ▼. Tinker, 94 U. S. 238. I'ilots and their Charges. — Tliat the regulation of pilots and pilotage is a regulation of commerce is conceded. "A pilot is as much a part of the com- mercial marine as is the hold of tlie ship and the helm by which it is guided"; and there is no doubt that Congress may, whenever it chooses, take full con- trol (if the matter of regulating pilots and pilotage; and a statute of a state will not be permitted to make any exaction or discrimination in conflict with the national legislation: The Alameda, 31 Fed. Rep. 3l56; Freeman v. The Undaunted, 37 Fed. Rep. 662. In the absence of any action on the part of Congress, each state has power to enforce regulations concerning pilots and pilotage in and approaching its harbors: Cooley v. Board of Wardens, 12 How. 299. Congress has sometimes expressly given its consent to such regulations, and at other times has made regulations of its own with re- spect to certain matters; but the decisions concur in declaring, that, except to the extent that Congress has acted, each state may act for itself: Ex parte McNeil, 13 Wall. 236; Wihon v. McNamee, 102 U. S. 572; Spraiguev. Thomp- son, 118 U. S. 90. A statute, however, declaring that the master and port- wardens of a port within the state shall be entitled to demand and receive a specified sum, whether called upon to perform any service or not, from every vessel arriving in that port, has been held void, both as a regulation of com- merce and as a duty on tonnage. Tliis statute was thought to differ essen- tially from the statutes imposing cliarges for pilotage, because pilots are not by this statute allowed to recover compensation, except for services either performed or tendered, while the statutes declared void created a liability against vessels, whetherservices were performed or tendered, or not: Steamship Co. V. Port' wardens, 6 Wall. 31. A statute making it the duty of the master and wardens of a port to offer their services, and make a survey of the hatches of all sea-going vessels which should arrive at that port, and declaring that no persons other than such master or wardens, or their deputies, should make any such survey or any survey of damaged goods coming on board such ves- sels, or give certificates or orders for the sale of such goods at auction, was also adjudged to be void as a regulation both of foreign and interstate com- merce: Pouter V. Master etc. of New Orleans, 94 U. S. 246. Discriiniiiotiona in Favor qf the Products or Manufactures of tlie State. 558 People v. Wemple. [New York, One of the most natural attempts at the indirect regulation of commerce is to impose some restriction or prohibition, or to grant some privilege or exemp- tion, which will probably or certainly especially encourage the manufactures or products of one state, or discourage the introduction, sale, or use of the products or manufactures of some other state. Instances of legislation of this character which have been held void include the following: Statutes pro- hibiting all persons from selling wine in the state, but excepting from their provisions persons who grow grapes or berries, and make wine therefrom, and sell it on the premises where such grapes or berries are grown, or in any other place where the sale of intoxicating liquors is licensed: State v, Des- champ, 53 Ark. 490; Bogan v. State, 84 Ala, 449; or imposing taxes on per- sons engaged in the business of selling liquors at wholesale, or taking orders for such liquors to be shipped into the state from any place out of the state not having their principal place of business in the state, and not imposing a like tax on persons engaged in a like business in reference to liquors manufac- tured within the state: Walling v. Michigan, 116 U. S. 446; or levying taxes on persons selling liquors not manufactured within the state: Tiernan v. Rinkev, 102 U. S. TJS; or requiring any person who shall sell or offer for sale the manufactured articles or machines of other states or territories, unless he be the owner thereof and taxed as a merchant, to take out a license, and to pay a specified sum therefor: Wchher v. Virginia, 10.3 U. S. 344. Rpstrictions upon Transportation. — State legislation may also attempt to discourage or prohibit the transportation of articles of commerce into, out of, or across the state in professed exercise of the police power, or upon some other ground supposed to be tenable. Of course, any such interference with transportation necessarily interferes with commerce. There may be circum- stances which will justify it as an exercise of the police power, and whether and when this is so we shall consider hereafter. But it is generally true, that the police power of the states will not be suffered, without the permission of Congress, to interpose any restriction amounting to a regulation of commerce, either among the states or with a foreign nation. A statute imposing a tax or charge on the landing of passengers: Henderson v. Mayor of New York, 92 U. S. 259; Chy Lung v. Freeman, 92 U. S. 275; Smith v. Turner, 7 How. 283; or a charge against persons or property going out of or coming within a state, or any prohibition against the arrival or departure of persons or property, or tending to prevent the receipt or sale of property while in the original pack- ages in which it was imported, — is void, because it is an attempted regulation of commerce: State v. Stihing, 52 N. J. L. 517; Bowman v. Chicago d: N. W. R'y, 125 U. S. 465; State v. Saunders, 19 Kan. 127; Bennett v. American Exp. Co., 83 Me. 236; 23 Am. St. Rep. 774; State v. Intoxicating Liquors, 83 Me. 158. Natural gas is an article of commerce, subject to purchase and sale, and to be transported from one place to another. A statute, therefore, declaring it to be unlawful for any person "to pipe or conduct natural gas from any point within this state to any point or place without this state," and that any per- son or corporation permitting sucti gas to be carried through its pipes to any place without the state, shall forfeit all right, title, and interest in and to the real property used or held for the purpose of mining for natural gas, is unconstitutional: State v. Indiana etc. Co., 120 Ind. 575. The Regulation of Common Carriers necessarily includes transportation, and therefore commerce; and when such regulation is undertaken by a state, its operation cannot extend to interstate commerce or commerce with a foreign nation. Therefore, a statute fixing rates for the transportation of freight or passengers: Wabash etc. R'y v. Illinois, 118 U. S. 557; Hardy v. Atkinson etc^ Feb. 1892.] People v. Wemple. 559 B. B. Co., 32 Kan. 698; State v. Chicago etc. R. R. Co., 40 Minn. 267; 12 Am. St. Rep. 7.30; State v. Chicajo etc. R. R. Co., 70 Iowa, 162; S. C. R. R. Comm'ra V. R. R, Co., 22 S. C 220; Commonwealth v. Houmtonic R. R. Co., 143 Mass. 264; Gulf etc. R'l/ v. Dwyer, 75 Tex. 572; 16 Am. St. Rep. 926; or declaring that certain discriminations shall or shall not be made between certain classes of passengers: Hall v. De Cub; 95 U. S. 485, — is invalid if construed as apply- ing; to interstate commerce, and is valid if restricted by its terms or by the decision of the state court to commerce transacted wholly within the state: Rtilroad Commission Cases, 116 U. S. 307; Doiunham v. Alexandria Councib 10 Wall. 173; Louisville etc. R. R. Co. v. Mississippi, 133 U. S. 5S7. But, it is said that "where the state legislature, without discrimination, passes a law wliich operates uniformly in aid of domestic and interstate trade alike, and Congress has not acted, or has not the authority to afford so complete a rem- edy for the evil as the state legislature, there can be no question about the validity of such legislation, or the duty of the state courts to enforce it," and therefore, that a state may by statute impose a penalty upon all railway com- panies for. a failure to ship freight within five days, though such statute operates alike upon freight to be shipped outside as well as inside the state: Bagg v. Wilmington etc. R. R. Co., 109 N. C. 279; 26 Am. St. Rep. 569. " A Tekgraph Company occupies the same relation to commerce as a carrier of messages that a railroad conlpany does as a carrier of goods. Both com- panies are instruments of commerce, and their business is commerce itself. They Jo their transportation in different ways, and their liabilities are in some respects different, but they are both indispensable to those engaged to any considerable extent in commercial pursuits ": Telegraph Co. v. Texas, 105 U. S. 464; Pensacola T. Co. v. Western Union Tel. Co., 96 U. S. 1. There- fore, a state cannot tax each message sent out of the state: Telegraph Co. v. Texas, 105 U. S. 4G0; nor can it regulate "the transmission or delivery of interstate telegrams, even within its own borders." "The whole subject of the transmission and delivery of interstate telegrams is, it seems, a subject national in its character and admits safely of only one uniform plan of regu- lation. But howevur it may be as to the regulation by a state of the trans- mission and delivery of such telegrams within its own boundaries, it seema certain that no power exists in a state to regulate the mode and order of transmission and delivery of interstate telegrams, starting from points within its own territory, after such telegrams have passed the state line and are within the boundaries of other states": Western Union Tel. Co. v. Pendleton, 122 U. S. 355. "These principles are as applicable to messages by telephone as to merchandise. There can be no reasonable distinction between the office of common carrier of telephone and the office of a common carrier of goods by railway or steamboat": In re Pennsylvania Telephone Co., 48 N. J. Eq. 91; ante, p. 462. Taxes on Subjects of Commerce. — A tax imposed upon the subjects of inter- state or foreign commerce, or a license fee exacted of persons engaged in such commerce, might not merely discourage such commerce, but in extreme cases be equivalent to its prohil)ition. "The power to tax includes the power to destroy," and therefore the taxation of interstate or foreign commerce with- out restriction cannot be conceded without at the same time conceding the power to destroy it. Doubtless every form of taxation direTitly imposed upon interstate or foreign commerce, or its instrumentalities or operations, is pro- hibited to the states, and the only question is, how far it may be incidentally iiniiosed without falling within the inhibition implied from the exclusive Dower of Congress to regulate such commerce. A tax cannot be laid by a 560 People v. Wemple. [New York, state on the amount of sales made by auctioneers, and requiring the sum pay- able to be greater in the case of articles grown or manufactured in other states than upon articles which are grown or manufactured in the state wherein they are sold: Cooh v. Pennsylvania, 97 U. S. 566; nor upon passen- gers departing from {Crandall v. Nevada, 6 Wall. 35) or coming within the state: People v. Compagnie Gcnerale, 107 U. S. 59; Henderson v. Mayor of New York, 92 U. S. 259; whether aliens or not; nor upon messages sent by a tele- graph or telephone corporation out of the state or received within the state from another state: Batterman v. Western Union Tel. Co., 127 U. S. 411; Le- loiip V. Port of Mobile, 127 U. S. 640; In re Pennsylvania Telephone Co., 48 N. J. Eq. 91; ante, p. 462; nor can a statute imposing a tax upon the gross receipts of persons or corporations engaged in transportation be enforced against a corporation engaged in interstate commerce. If a railroad corpora- tion transports goods from one portion of a state to another, but in so doing necessarily passes through part of another state, it is not engaged in inter- state commerce, and a state tax levied upon such transportation is not in- valid: Lehigh Valley R. R. Co. v. Pennsylvania, 145 U. S. 192. Taxes, when may he Levied on Subjects or Instrumentalities of Commerce. — On the other hand, it is no objection to a tax that it may fall upon subjects of interstate commerce, or affect persons engaged in such commerce, if these re- sults are incidental, and do not flow from apparent attempts to regulate com- merce or the persons transacting it, but from the fact that such subjects or persons are affected in the same way or to the same extent as other persons or subjects are affected. A tax upon all the sales of goods made within a state is valid, and may be enforced against persons who have sold goods imported from other states or territories, though such goods remain in the original packages in which they were imported, though such taxes are not enforceable against the importers themselves in making the first sale after importation: Woodruff v. Parham, 8 Wall. 123; Waring v. Mayor, 8 Wall. 110; Hinson v. Lott, 8 Wall. 148. A tax may be levied on all peddlers of sewing- machines, and one cannot escape such tax by proving that the machines which he sells were manufactured in another state: Machine Co. v. Gage, 100 U. S. 676. If a man has mr^neys on hand on the day when they are assessed, he cannot escape taxation on the ground that he usis his capital in interstate or foreign commerce by investing it in cotton for exportation to foreign coun- tries: People V. Commissioners, 104 U. S. 466. The owners of property are not entitled to have it exempted from state or local taxation because of its employment in interstate commerce: Delaware Railroad Tax, 18 Wall. 206; Horn S. M. Co. v. New York, 143 U. S. 205. Taxes may be imposed on railroads though established by Congress: Railroad Co. v. Peniston, IS Wall. 5; though not on franchises granted to such railroads by the United States: California v. Central Pacific R. R. Co., 127 U. S. 1. "It is well settled that there is nothing in the constitution or laws of the United States which pre- vents a state from taxing personal property employed in interstate or foreign commerce, like other personal property within its jurisdiction. Ships or ves- sels, indeed, engaged in interstate or foreign commerce upon the high seas, or other waters which are a common highway, and having their home port at which they are registered under the laws of the United States at the domicile of their owners iit one state, are not subject to taxation in another state at whose ports they incidentally and temporarily touch for the purpose of de- livering or receiving passengers or freight. But that is because they are not, in any proper sense, abiding within its limits, and have no continuous pres- ence or actual situs within its jurisdiction, and therefore can be taxed only Feb. 1892.] People v. Wemple. 661 at their legal situs, their home port and the domicile of their owners: Pullman Car Co. V. Pennsylvania, 141 U. S. 23. In other words, property employed in interstate cominerce is subject to taxation by the states, though there may be some difficulty in determining in whac state it may be taxed, or the extent to which it may be taxed in several different states. The business in which it is employed makes necessary its frequent passage from one state to another, so that during each fiscal year it may be at different times in several states, or even in all the states of the Union. To tax it in each state might paralyze interstate commerce, and to altogether exempt it from taxation would be to exempt from the burdens of local government vast amounts of property well able to share such burdens, and constantly in need and receipt of protec- tion afforded by the state and municipal governments, and paid for out of the fruits of state and municipal taxation. A subject of commerce, or an instru- mentality of carrying it on, is not liable to taxation in the state from the mere fact that it happens to pass through, or even to rest for a short time therein, wliile in process of transportation: State Freiijht Tax Cases, 15 Wall. 2.^2. But as to these instrumentalities of commerce which are constantly passing from state to state, whether they are wholly taxable in one state or not, some system may be employed which will subject them to taxation in the states through which they pass, so far as may be just under the circumstances. Thus, if a sleeping-car corporation is engaged in running its cars in, through, and out of a state, and has at all times a number of such cars within its territory, it is subject to a statute applicable to all corporations engaged in the transporta- tion of fi eight or passengers, and requiring them to pay taxes based upon an assessment, the basis of which is, "such proportion of the capital stock of the company as the number of miles over which it ran cars within the state bore to the whole number of miles in that and other states over which its cars were run. This was a just and equitable method of assessment, and if it were adopted by all the states through which these cars ran, the company would be assessed upon the full amount of its capital stock, and no more ": Pullman Car Co. v. Pennsylvania, 141 U. S. 23; Pullman Car Co. v. Hayward, 141 U. S. 3(5; State v. Pullman Car Co., 04 Wis. 89. So a state may impose taxes upon each corporation doing business within the state, for the privilege of there exercising its franchise, to be determined, when the corporation is engaged in transportation, by the gross amount of its receipts, and that when tlie corporation is doing business partly within and partly without the state, the tax should be equal to the proportion of the gross receipts of the state, to be ascertained as follows: "The gross transportation receipts of such rail- road line or system, as the case may be, over its whole extent within and without the state, shall be divided by the number of miles operated, to obtain the average gross receipts per mile, and the gross receipts in this state shall be taken to be the average gross receipts per mile multiplied by the number of miles operated in this state." This statute was sustained, on the ground that it was not a tax upon interstate commerce, and that the means adopted were intended solely for the purpose of determining the amount of business transacted within the state, and of levying a tax thereon: Maine v. Grand Trunk R'y Co., 142 U. S. 217. Licenses Which State may Exact. — The principles to which we have referred as applicable to taxation are equally applicable to license fees exacted for the privUege of doing business within a state. A state may exact a license fee from persons carrying on business within its territory, without rendering its action in so doing subject to the objection that it is attemi)ting to regulate interstate or foreign co'nmerce, provided it does not discriminate in favor of Am. St. Rep., Vol. XXVU. — 36 562 People v. Wemple. [New York, its people, products, or manufactures, nor charge persons importing articles of commerce within the state for the privilege of there disposing of them. " No doubt can be entertained of the right of a state legislature to tax trades, professions, or occupations, in the absence of inhibitions in the state constitu- tion in that regard; and where a resident citizen engages in general business subject to a particular tax, the fact that the business done chances to consist, for the time being, wholly or partly in negotiating sales between resident and non-resident merchants of goods situated in another state, does not involve the taxation of interstate commerce, forbidden by the constitution ": Ficklen v. Shelby Co., 145 U. S. 1. A license tax may be exacted of persons buying and selling on commission or otherwise doing business within the state, and esti- mated, when they have no capital invested, on their gross yearly commissions or charges, though the business transacted by them was for principals resid- ing in other states, and the goods sold by them for such principals were to be shipped into the state in wliich the brokers did business: Ficklen v. Shelby Co., 145 U. S. 1. A tax imposed on merchants and other dealers, of one tenth of one per cent of their purchases, whether made within or without the state, except on purchases of farm products from the producer, has been sustained, on the ground that such tax was a valid license or occupation tax for the privilege of doing business within the state: State v. French, 109 N. C. 722; 26 Am. St. Rep. 590; State v. Steiemon, 109 N. C. 730; 2G Am. St. Rep. 595. So a tax may be imposed on the keepers of ferries, "although tlieir boats ply between landings lying in two dififerent states ": Wigr/i7is F. Go. v. Ea-it St. Lonh, 107 U. S. .365. One who has imported goods from another state or a foreign country has, while they remain in the original packages, a right to sell them, and no state can require that he, as a condition precedent to the exercise of this right, shall take out any license or pay any license fee or other charge: Brown v. Manjland, 12 Wheat. 441, 442. It appears equally certain that such importers need not make their sales in person, and that no license may be exacted of persons whom they may employ to effect sales for them. Therefore a statute declaring that all drummers or persons not hav- ing a place of business in the taxing district, offering for sale or selling goods therein by sample, shall be required to pay a specific sum per week or month for that privilege cannot be enforced against one who was employed and acting for merchants doing business in another state, and for wliom he exhib- ited samples for the purpose of effecting sales: Rabbins V. Shelby Taxing Dist., 120 U. S. 489; Corson v. Maryland, 120 U. S. 502. So one who is act- ing as agent in one state of a line of railroad between points in two other states, for the purpose of inducing persons going from the point at which he acted as such agent to points in other states to take the road which he rep- resented, but not selling tickets for the road nor receiving or disposing of moneys on account of it, is engaged in interstate commerce, and cannot be required to pay a license tax: Norfolk etc. B. R. Co. v. Pennsylvania, 136 U. S. 114; McCall v. C ilifornia, 136 Q. S. 104. We are not sure that we appre- hend the distinction between the cases of the class last cited and F cklen v. Shelby Co., 145 U. S. 1, but probably it is this, tliat a license tax imposed by a state upon an occupation may be enforced against persons engaged in that occupation and having the right under the license to transact all business falling within the line of their occupation, whether domestic, interstate, or foreign, though they, as a matter of fact, do not transact any business whatever, except such as constitutes interstate or foreign commerce, but that if they are employed by a person engaged solely in interstate or foreign com- merce, and represent him to the extent that taxes upon them necessarily oper- Feb. 1892.] People v. Wemple. 563 ate as taxes upon him and his transactions, then they cannot be required to take out and pay for a state or local license: McLaughlin v. South Bend, 126 Ind. 471; Asher v. I'exas, 128 U. S. 129; Stoutenhuryh v. Hennkk, 129 U. S. 141; State v. A gee, 83 Ala. 110; Fort Scott v. Pelton, 39 Kan. 764; Fecheiimr V. Louisville, 84 Ky. 306; Stale v. Bracco, 103 N. C. 349; Simmons Co. v. Mc- Guire, 39 La. Ann. 848; Ex parte Boxenblatt, 19 Nev. 439; Ex jKirte Thomas, 71 Cal. 204; Corson v. Maryland, 120 U. S. 502; Crutcher v. Kentucky, 141 U. S. 47. Licenses, Discrimination in Favor of State Products. — Of course any system of license taxes which discriminates between tlie products or manufactures of different states: iVtlton v. Missouri, 91 U. S. 275; Tiernan v. Rinker, 102 U. S. 123; Webber y. Virginia, 103 U. S. 344; Walling v. Michigan, 116 U. S. 446; or gives a citizen or resident of the state a riglit to carry on commerce oa more favorable terms than are accorded to citizens of other states, — cannot be sustained: Ward v. Maryland, 12 Wall. 418; State v. Wiggin, 64 N. H. 508. A statute imposing a license tax upon peddlers of articles manufactured out- side of the state is invalid, because it is an attempted discrimination in favor of the manufactures of the state: Wellon v. Missouri, 91 U. S. 275; State v. Pratt, 59 Vt. 590; Badgers v. McCoy, 6 Dak. 238; Wrought Iron Co. v. Johnson, 84 Ga. 754; MarshalUown v. Blum, 58 Iowa, 184; 43 Am. Rep. 115; Vines v. State, 67 Ala. 73; State v. Browning, 62 Mo. 591; but a license tax may be im- posed upon all peddlers, or upon peddlers of a particular class of goods, and when imposed, no peddler can escape from its payment on the ground that the articles he happens to sell were wholly or partly manufactured or produced in another state: State v. Emert, 103 Mo. 241; 23 Am. St. Rep. 874; State v, Smithson, 106 Mo. 149; Ex parte Butin, 28 Tex. App. 304; and it has been held that a state may prohiliit all sales by peddling within its limits: Com- monwealth V. Gardner, 133 Pa. St. 284; 19 Am. St. Rep. 645. License Fee Exacted of Inter atnte Commerce. — A state cannot first declare that the carrying on of some portion of interstate commerce is a privilege, and then impose a license tax for the exercise of such privilege. It is obvious that to do this is equivalent to the power to tax all interstate commerce out of existence. Therefore a statute imposing a license tax on each sleeping- car not owned by the road upon which it is run within the state is uncon- stitutional: Pichard v. Pullman Car Co., 117 U. S. 34; Tennessee v. Pullman Car Co., 1 17 U. S. 51. A license tax cannot be imposed upon persons owning and running tow-boats to and from the Gulf of Mexico and the city of New Orleans, because to permit its imposition might enable the state to regulate interstate commerce, and the license fee is in eff«!ct a charge upon " tiie price of the privilege of navigating the Mississippi River between Kew Orleans and the gulf, in the coastwise trade": Moran v. New Orleans, 112 U. S. 74. According to the ordinary course of business, a bill of lading " is invariably associated with every cargo of merchandise exported to a foreign country, and consequently a duty upon that is, in substance and eflfect, a duty upon the article imported." A statute imposing a stamp duty on bills of lading for gold or silver transported from a port within to a port without the state is therefore void: Almy v. California, 24 How. 169. If a statute of a state imposes an excise tax upon tobacco, but exempts from such tax tobacco in- tended for export, and requires every package intended for export to have affixed to it an engraved stamp indicative of such intention, and allows the sum of twenty-five cents to be charged for affixing each of such stamps, such statute merely provides a mode of identifying tlie articles intended for export, and of securing their exemption from the tax to which they would otherwise 564 People v. Wemple. [New York, be liable, ani. XXVm, Packs -illM^lJO. CHES. &c. TEL. CO. :. MACKENZIE. Telegraph and Telephone poles across private property. CASES IN THB SUPREME COUET ov MARYLAND. Chesapeake and Potomac Telephone Company V. Mackenzie. [74 Maryland, 36.] TBLEPHoyE Company — Erection of Polk in Street — Injunction. — A declaration alleging that plaintiff is possosseil of a valuable warehouse, and that defendant, a telephone company, without his authority or con- sent, and without making or offering to make compensation therefor, has planted a large and unsightly pole in front of such warehouse, which ob- structs and prevents the comfortable, reasonable, and beneficial enjoy- ment and use of such premises, without alleging the mode and manner of such obstruction and interference, states a cause of action, and may prop- erly include a prayer for injunction. Pleading — Demurrer — Injunction. — The question as to whether tha additional relief asked by way of injunction is appropriate or not, under the facts disclosed by the declaration, must be raised by special demur- rer, and a general demurrer, whether interposed directly to the declara- tion or to some subsequent pleading, will not be sufficient to raise that question. Tblrphone Compant — Authority to Plant Poles cannot bk En- larged BY Ordinance. — The planting of a telegraph or telephone pole in a highway or street is not a public nuisance when sanctioned by stat- ute; but the right to so plant such pole is derived from and depends solely on such statute, and cannot be enlarged by municipal ordinance. Telephone Company — Planting Polk in Strhet — Additional Servi- tude. — When the fee in the bed of a street or highway is in the abut- ting land-owner, the planting of a telegraph or telephone pole therein is an additional servitude imposed upon the land, for which such owner is entitled to compensation of which he cannot be deprived by statute. Telephone Company — Plantino Polk in Street — Damages for Spe- cial Injury — Injunction. — When land has been acquired for streets by the exercise of the right of eminent domain, and has been appropri- ated by a corporation for the planting of telegraph or telephone poles, under legislative and municipal sanction, so as to unreasonably abridge 219 220 Chesapeake etc. Tel. Co. v. Mackenzie. [Maryland^ the right of adjacent lot-owners to the use of the street as a means of inofress and egress, or otherwise, they are thereby deprived of a right without compensation, and may maintain an action against such corpora- tion for the recovery of the immediate and direct damages sustained by them. In an appropriate case an injunction may be procured to prevent a continuance of the interference with the use of the street. Telephone Company — Planting Pole in Street — Measure o» Dam- ages. — In an action by an abutting owner on a street or highway ta recover of a telephone company for placing a pole in front of his premises, the measure of damages is not what a particular individual would be willing to charge for having the pole put up or remain, nor the amount some other person might consider the rental value was depreciated for the purpose of his business; but when plaintiff's land is not actually taken nor his soil invaded, the measure of damages is the extent to which the rental or usable value of the particular property has beea diminished by the erection of the pole, or the difference in the value of the property before the erection of the pole and afterwards, if the de- preciation has been caused by its erection. Pleadings — Instruction. — When a complaint alleges the possession by plaintiff of a warehouse, and an interference with his use and enjoyment thereof by the erection of a telephone pole, without alleging a reversion- ary interest in the warehouse, and the proof shows that the premises were in the possession of a tenant of the plaintiff, a prayer for an instruc- tion that plaintiff is not entitled to recover damages for the erection of the pole, without making any reference to the pleadings, is properly re- fused, if the evidence is sufficient to sustain any action by plaintiff as the owner of the reversion in the warehouse. Charles J. M. Gwinn, for the appellant. George Norbury Mackenzie and John V. L. Findlay, for the appellee. McSherry, J. The declaration in this case alleges " that the plaintiff is possessed of a lot of ground, with the improve- ments thereon, being valuable warehouse property, known as No. 22 South Charles Street, and while so possessed the de- fendant, without her authority or consent, and without making or offering to make compensation therefor, planted a large and unsightly pole in the footway in front of said premises, which obstructs and prevents the comfortable and reasonable and beneficial enjoyment and use of the said premises, and though repeatedly notified to remove the said pole, refuses so to do, although a reasonable time for the removal of the same has elapsed," etc. There is added an application for an injunction under section 117 of article 75 of the code. The defendant filed three pleas. The second was the plea of not guilty, and the first and third are as follows, viz.: " That the defendant, at the time of the alleged trespass, was duly incorporated as a tele- phone company under the laws of the state of Maryland, and March, 1891.] Chesapeake etc. Tel. Co. v. Mackenzie. 221 was entitled as a corporation so formed, in the prosecution of its business, and for the purpose thereof, to erect and maintain the pole upon the footway of South Charles Street, in the city of Baltimore, in front of the warehouse of the plaintiflT, com- plained of in the declaration of the plaintiff, without making, or offering to make, compensation therefor to the plaintiflf; and that the alleged trespass complained of in the declaration of the plaintiff was a use by the defendant of its said right"; 3. " That the plaintiff ought not further to have or maintain her aforesaid action against it, because it says that by a cer- tain ordinance of the mayor and city council of Baltimore, approved on the ninth day of May in the year 1889, and since the institution of the suit in this cause, it, the said defendant, was and is authorized to maintain its said pole in and upon the footway of South Ciiarles Street, in the city of Baltimore, in front of the warehouse of the plaintiff complained of in the declaration of the plaintiff, for the period of two years after the said date of the approval of said ordinance, and so long as said pole is necessary to be maintained by the defendant for the purpose of making distribution of and forming connections between any wire or wires forming part of the underground wire cables authorized by said ordinance to be laid within the limits of the city of Baltimore." To these pleas, — the first and third, — the plaintiflf demurred, and the court of common pleas sustained the demurrer. It is insisted by the appellant, the defendant below, that as the demurrer mounted to the first fault in the pleading, the court ought to have ruled the decla- ration to be bad, and its failure to do so is assigned as the first error for review on this appeal. We are, of course, confined to the declaration itself in determining its legal sufl&ciency. Neither the averments of the pleas nor the evidence in the* record can be looked to or considered in passing upon that question. The forms of pleading have been materially changed by legislation, and since the adoption of the simplification act, which is substantially incorporated in the code, nothing more is needed in a declaration than a plain statement of the facts which are relied on to sustain a recovery: Code, art. 75, sec. 3. Whilst it does not appear from the narr. whether the foot- way in front of the warehousepreniises is a public tlioroughfare or not, or whether the title to it is in the plaintiflf, it is dis- tinctly alleged that the plaintiflf is possessed of a valuable warehouse property, and that without her authority or consent the defendant planted a large and unsightly pole in front 222 Chesapeake etc. Tel, Co. v. Mackenzie. [Maryland, thereof, which obstructs and prevents the comfortable and rea- sonable and beneficial enjoyment and use of the premises. As framed, the narr. alleges a direct interference by the defendant with the use and enjoyment by the plaintiff of her property. And it further alleges that this interference was without her authority or consent. If these facts be true, why do they not furnish a ground of action? That the appellee had the right to the comfortable, reasonable, and beneficial use and enjoyment of her property is undeniably true, unless the contrary be averred and shown. That the unauthorized obstruction of or interference with that right is a wrong which will support an action for damages cannot be open to controversy. Though it might have been more artificial pleading had the mode and marmer of the obstruction and interference been set forth in the declaration, they were not necessarily elements of the in- jury complained of, but rather matters of proof, showing the character and extent of that injury. The narr., on its face, does not declare for an obstruction of the footway or the street; and it was, therefore, not necessary to allege that, by reason of the plaintiff's possession of the premises, she was entitled to the way, in the exercise of which she was interfered with by the defendant. The averment is, that the pole thus planted in the footway obstructed, not the footway, but the plaintiff's use and enjoyment of the property in her possession, — her warehouse; and that averment, it seems to us, is, under the code, sufiicient, if proved, to sustain an action. This conclu- sion is founded, of course, exclusively and solely upon the face of the declaration, without any reference to other parts of the record. It has been further insisted, as a reason for holding the *declaration bad, that the prayer for an injunction was im- properly included therein, because, so it is alleged, the facts disclosed by the narr. do not justify the application of that remedy. Sections 116 to and including 128 of article 75 of the code make provision for the issuing of writs of injunction and mandamus by courts of law in certain actions instituted in these courts. Under these provisions, the prayer for an in- junction to restrain the appellant from continuing the pole in its place, and to order the removal thereof, was added to the declaration. By section 119 it is provided that "the defend- ant may demur to so much of the plaintiff's declaration as claims such writ, and such demurrer shall raise the question whether the facts stated as the ground of such claim disclose March, 1891,] Chesapeake etc. Ti^.L. Co. v. Mackenzie. 223 any such legal duty as that so souglit to be enforced, but shall be subject to all rules governing general demurrers at law, both as to the proceedings thereon and thereafter." Now, it was argued that the general demurrer filed by the plaintiff to the defendant's first and third pleas mounted, according to the well-settled rule, not only to the declaration proper, but also to the prayer for relief by injunction. Whether this view is correct or not depends upon the meaning of the section from which we have just quoted. The remedy by injunction from a court of law is a purely statutory remedy. The mode to be pursued for obtaining it is defined and pointed out in the code. If the facts stated in the declaration do not disclose a case which will justify the issuing of such a writ, the defendant may demur "to so much of the plaintiff's declaration as claims such writ," and the statute expressly declares what quf'stion that demurrer shall raise. It is consequently a spe- cial demurrer that is thus provided for, notwithstanding the antecedent provision in section 6 of the same article that no special demurrer shall be allowed in civil cases. Can a gen- eral demurrer be treated as equivalent to or the same as this special demurrer? If so, then the general demurrer to the pleas would reach any defect in the prayer for injunctive re- lief in the narr. Inasmuch as the demurrer prescribed by the statute is a special demurrer, it seems to us quite apparent that a general demurrer would not answer, if interposed by the defendant directly to the narr. Of course, therefore, a general demurrer interposed by the plaintiff to pleas of the defendant could not serve any other or wider purpose, or raise any other question, than a general demurrer filed by the de- fendant to the declaration would itself have done, unless the clause declaring that the special demurrer " shall be subject to all rules governing general demurrers at law, both as to the proceedings thereon and thereafter," was intended to convert the special into a general demurrer. No such intention is manifested by tlie language used as we read it. The special demurrer is declared to be subject to the rules governing gen- eral demurrers, only so far as respects the proceedings on a general demurrer, and the proceedings after a ruling is made thereon. In other words, when a special demurrer under this statute is interposed to the declaration, the same proceedings shall be had as are provided by the rules of law with reference to proceedings on and after a general demurrer. That is to say, the right to amend if the demurrer be sustained, and the 224 Chesapeake etc. Tel. Co. v. Mackenzie. [Maryland, right to plead over if it be overruled, are preserved, precisely as in tlie qase of similar rulings on a general demurrer. This, and this only, is the effect of the clause just quoted from the code. Our interpretation of the statute, then, is this: If a de- fendant desires to raise a question as to whether the additional relief by way of injunction or mandamus is appropriate under the facts disclosed by the declaration, he must do so by spe- cial demurrer, and a general demurrer, whether interposed di- rectly to the declaration or to some subsequent pleading, will not be sufficient to raise that question. We now come to the consideration of the ruling of the court sustaining the demurrer to the first and third pleas filed by the defendant. These pleas present some of the principal questions discussed in the argument at the bar. They rely, as a defense to the action, upon an authority which the appel- lant claims to have under the code, and under an ordinance of the mayor and city council of Baltimore, to plant in its present position the pole complained of, without making or offering to make compensation to the appellee. By sections 224 and 232 of article 23 of the code, telegraph and telephone companies, incorporated under the general corporation law of this state, are empowered to construct their lines along and upon any postal roads and postal routes, roads, streets, and highways, provided their fixtures, posts, and wires do not "interfere with the convenience of any land-owner more than is unavoidable." It is expressly provided in section 224 that "the said corporation shall be responsible for any damages which any person or corporation may sustain by the erection, continuance, and use of such fixtures." It is further provided, that in any action brought for the recovery of damages, the company may elect to have included the damages for allow- ing the said fixtures permanently to continue. The following proviso is then added: " Provided, that no person or body poli- tic shall be entitled to sue for or recover damages, as afore- said, until the said corporation, after due notice, shall have failed or refused to remove, in reasonable time, the fixtures complained of." It is not necessary to allude to the ordinance of the mayor and city council of Baltimore, for the reason that whatever authority the appellant possesses, in reference to the planting and maintenance of the pole in question, must be de- rived from and depend on the act of assembly. The ordi- nance could not enlarge that authority. To what extent, then, does the statute justify the action of the appellant, and March, 1891.] Chesapeake etc. Tel. Co. v. Mackenzie. 225 protect it from liability? The planting of a telegraph or tele- plione pole in a highway or street is not a public nuisance, because the legislature has declared that it shall not be; but the general assembly was powerless to subject the reversionary interest in the bed of such highway or street to an additional servitude, without making appropriate provision for just com- pensation to the owner: Phipps v. Western Maryland R. R. Co., 66 Md. 319 J American Telephone and Telegraph Co. v. Pearce, 71 Md. 585. In the case last referred to, this court held that planting telephone poles upon the right of way acquired by a railroad company was, when the telephones were used for pur- poses other than the operation of the road, an additional ser- vitude imposed upon the soil, which entitled the owner of the reversion to an injunction against the telephone company to restrain it from so appropriating the land until compensation, to be ascertained in the method prescribed in section 40, article 3, of the constitution of the state, should be first paid or ten- dered. And so the condemnation of private property for a highway subjects the land so taken merely to an easement in favor of the public, and does not divest the owner of the fee: Thomas v. Ford, 63 Md. 346; 52 Am. Rep. 513. Planting telephone or telegraph posts upon a public highway in the country is an appropriation of private property, and unlawful unless the right to do so is acquired by contract or condemna- tion: Western Union Tel. Co. v. Williams, 86 Va. 696; 19 Am. St. Rep. 908; Broome v. New York and New Jersey Tel. Co., 42 N. J. Eq. 141. The use to which streets in a town or city may be lawfully put are greater aud more numerous than in the case of an ordinary road or highway in the country. With reference to the latter, as we have just observed, all the public acquires is the easement of passage and its incidents; and hence the owner of the soil parts with this use only, retaining the soil, and by virtue of tliis ownersliip is entitled, except for the pur- poses of repair, to the earth, timber, and grass growing thereon, and to all minerals, quarries, and springs below the surface. But with respect to streets in populous places, the public con- venience requires more tlian the mere right of way over and upon them. They may need to be graded, and therefore the municipal authorities may not only change the surface, but cut down trees, dig up the earth, and may use it in improving the street, and may make culverts, drains, and sewers upon or under the surface. Pipes may also be laid under the sur- Am. St. Rkp.. Vol. XXVIII. — 15 226 Chesapeake etc. Tel. Co. v. Mackenzie. [Maryland, face when required by the various agencies adopted in civi- lized life, such as water, gas, electricity, steam, and other things capable of that mode of distribution: 2 Dillon on Municipal Corporations, sees. 656 a, 688. Subject to these and other like rights of the municipality and the public to the use of a street for street purposes, the owner of the fee in the bed of the street possesses the same right to demand compensation for addi- tional servitudes placed thereon that the owner of the bed of a highway in the country is entitled to. If, then, the fee in the bed of the street be in the appellee, the planting of the pole was an additional servitude imposed upon her land, for which she could claim compensation, and the act of assembly could not deprive her of it. But in many instances the beds of the streets are owned in fee by the city, and in others the fee is vested in the original owners of the land or their heirs, and does not belong to the owners of the lots abutting on the streets. If the fee be in the city, or in some third person, then, — 1. What are the rights, in a case like this, of the owner of a lot abutting on the street? and 2. How are those rights affected by the provisions of the code relied on in the ple;is? There is some diversity of opinion in the decided cases upon the first of these questions, but all agree in going at least this far, — and we are not required to go any farther in deciding this appeal, — that where the fee or legal title has passed from the original proprietor, as in cases where the land has been acquired for streets by the exercise of the right of eminent domain, the adjoining owner cannot maintain an action for injuries to the soil, or ejectment, but he nevertheless has a as remedy for any special injury to his rights by the unauthor- ized acts of others. Hence, if an appropriation of a street by a person or body corporate, even under legislative and muni- cipal sanction, unreasonably abridges the right of adjacent lot-owners to use the street as a means of ingress and egress, or otherwise, they are thereby deprived of a right without com- pensation; and an action will lie against the person or corpora- tion guilty of usurping such unreasonable and exclusive use for the recovery of such immediate and direct damages as the abutter may sustain: Elizabeth etc. R. R. Co. v. Combs, 10 Bush, 382; 19 Am. Rep. 67; Schurmeier v. St. Paul etc. R. R. Co., 10 Minn. 82; 88 Am. Dec. 59; affirmed in 7 Wall. 272; Cooley on Constitutional Limitations, 556. Indeed, this is merely the application of familar principles of the common law. Whether, then, the appellee be the owner of the reversion in March, 1891.] Chesapeake etc. Tel. Co. v. Mackenzie. 227 the bed of the street, or only entitled to the rights of an abut- ter on the street, the pleas demurred to set forth no facts which furnish a defense to the action; because, as against the owner of the fee, the provisions of the code relied on in the pleas are inoperative for the reasons we have given; and as respects the owner of a lot abutting on the street, they ex- pressly reserve, and they could not have validly denied, his right to recover for such direct and immediate injuries as he might sustain by the construction of a line of telegraph and telephones upon a public street or thoroughfare. Whetlier the damages to be recovered shall be upon the basis of the permanent occupation of the premises, or only for the period up to the bringing of the suit, is left to the election of tlie company; and it would necessarily follow, if the recovery should be limited at its instance to the latter period, that sub- sequent suits could be brought; and in an appropriate case an injunction could be procured to prevent a continuance of the interference. It results, then, that neither the rights of the owner of the reversion nor those of the abutter upon a street are abridged by the statute, and that, in so far as that statute attempts or was intended to effect that result, it is nugatory and inoperative. As a consequence, whatever rights the ap- pellant did acquire under the statute are subordinate to the property rights of the appellee, and the pleas which rely upon the statute and the ordinance as giving the appellant author- ity to plant and maintain its posts and wires, witliout regard to the injury caused the appellee, were very properly declared to be no answer to the action. The remaining questions involved are presented by the ex- ceptions taken to the admission of evidence, and to the rulings of the court on the prayers for instructions to tl.e jury. There are twelve of these exceptions. Eleven of them relate to the admissibility of evidence adduced by the appellee upon the question of damages, and the twelfth to the granting of the ap- pellee's second praj'er, and the rejection of the appellant's first. It is not necessary to discuss separately the exceptions which relate to the measure of damages, for they all present the same question, substantially. The appellee proved by several witnesses the amount which, if they owned the prop- erty, they would, in their opinion, give not to have the pole placed where it is, and the amount they would give to have it taken away. She further proved by another witness that. 228 Chesapeake etc. Tel. Co. v. Mackenzie. [Maryland, with the pole removed, he would be willing to pay more rent for the property than he would with the pole standing where it is; and by still another, that for the purposes of his business he would make a difference of five hundred dollars in the rental value of the premises. None of this testimony was ad- missible. The true measure of damages in such a case as this is not what a particular individual would be willing to charge for having the pole put up or remain, nor the amount some other person might consider the rental value was depreciated for the purposes of his business; but where the land of the plaintiff is not taken nor his soil actually invaded, the meas- ure of damages, as adjudged in many cases, is either, — 1. The extent to which the rental or usable value of the particular property has been diminished by the trespass or injury com- plained of: Baltimore etc. R. R. Co. v. Boyd, 67 Md. 41 ; 1 Am. St. Rep. 362; Wood v. State, 66 Md. 61; or 2. The difference in the value of the property before the construction of the pole and its value afterwards, if the depreciation in value has been caused by the erection and maintenance of the pole: Shepherd V. Baltimore etc. R. R. Co., 130 U. S. 426. Lastly, with regard to the prayers. There was no error in rejecting the first prayer of the appellant, because the prayer failed to refer or point to the pleadings. The correctness of this ruling must depend, not upon the state of the pleadings, but upon the evidence to which alone the prayer makes refer- ence: Giles v. Fauntleroy, 13 Md. 136. The declaration counts upon a possession, by the plaintiff, of the warehouse, and an interference with her use and enjoyment thereof, and the proof shows that the premises were in the occupancy and possession of a tenant of the plaintiff, and not in the possession of the plain- tiff, who was only entitled to the reversion. For an injury to the possession, the tenant in possession alone can sue, though if the same injury affects the reversion, the reversioner may sue in case: 1 Ch. PI. 63. The evidence in the record shows that the appellee does not own the reversion in the bed of Charles Street; and it further shows that no damage was done to the plaintiff's possession, because she was not in pos- session. The narr. does not declare for an injury to the rever- sionary interest in the warehouse, as it might have done, and the prayer did not point to the pleadings; but if tlie evidence adduced was sufficient to sustain any action by the appellee, it would have been error in the court to grant a prayer declar- ing that there was no evidence that the plaintiff had sustained March, 1891.] Chesapeake etc. TiiL. Co. v. Mackenzie. 229 damage by the erection of the pole, unless the prayer had made reference to the pleadings. There is nothing in the appellee's granted prayer of which the appellant can complain. Taken in connection with the appellant's third instruction, the recovery was limited to the time that suit was brought. For the error in admitting the evidence objected to in the first eleven exceptions, the judgment must be reversed, and a new trial must be awarded. Telegraph and Telephone Poles and Wires In Streets and High-ways and Across Private Property.* Poles, Erection of, without A uthority. — The principle ia universally recognized, that in the absence of legislative or municipal sanction, the erection of tele- graph or telephone poles, and the stringing of wires thereon, in the public streets or highways is a public nuisance, which may be abated at the in- stance of an abutting land-owner, if the poles obstruct or prevent the free passage of carriages, horses, or foot-passengers: Regina v. United Kingdom Electric Tel. Co., 31 L. J. M. C. 156; 2 Best & S. 647; 9 Cox C. C. 174. Legislative Power to Authorize U.^e of Highways. — Although the legislature has authority, in the exercise of the police power of the state, to determine that the erection of poles and the stringing of wires of telegraph or telephone cor- porations is a public use, not inconsistent with the use of the street for street purposes, yet the interesting, perplexing, and doubtful proposition is involved, as to whether the legislature may authorize such use of the street or high- way without providmg for compensation to the abutting land-owner. In other words, the question is necessarily involved as to whether or not, when the public has acquired an easement in land for a street or highway, by taking it under the right of eminent domain, or by dedication, prescription, or grant, a new use and an additional servitude is to be deemed as imposed by appropriating the street or highway, under legislative sanction, for the use of a line of electric telegraph or telephone, by the erection of poles and wires above the surface of the ground, so that the owner of an abutting es- tate, or of the soil to the center of the street, is entitled to further compen- sation therefor, or is such use included by implication in the purposes for which the land was condemnod, dedicated, or granted. Compe7isation, whether Legislature may Deprive Land-owner of Right to. — The adjudged cases upon this subject present an irreconcilable conflict of authority, and seem to be about equally divided. The topic is new, and al- though it may not be safe to hazard an opinion as to how it will be finally settled, still it may be stated that the later cases, and it seems the weight of authority, sustain the doctrine, without qualification, that a telegraph or telephone line along a public street or highway is no part of the equipment of the street, but is foreign to its use, and the imposition of an additional servitude, for which the abutting owner must be compensated; and also that the legislature has no power to authorize the imposition of such servitude, • KEFRRBNCB TO MONOGRAPHIC NOTES. Telegraph and telephone companies, right to erect and maintain poles and wires In public streets and highways, and proceedings to abnte the same: 54 Am. Rep. 290, 293; 67 Am. Rep. 40»-412; 10 Am. St. Rep. laO, 131; Iti Am. St. Kep. 614. 230 Chesapeake etc. Tel. Co. v. Mackenzie. [Maryland, except on condition that due compensatiou shall be made therefor to auch abutting owner. Under this rule the abutting owner is entitled to an in- junction restraining the maintenance or erection of a line of telegraph or telephone poles and wires in front of his premises, unless he is first compen- sated therefor, or his consent thereto is in some manner obtained. Cases Holding that Abuttimj Owner is not Entitled to Additional Compensation. — The courts of Missouri have uniformly maintained that the erection of tel- egraph and telephone poles and wires in public streets or highways does not impose a new and additional servitude thereon; that this is simply a new use to which the street may be put, under legislative sanction, without the con- sent of the abutter; that he has no right to restrain such use by injunction, or to have the poles removed as a nuisance; and that the legislature has power to authorize such use without providing for compensation therefor to the abutting land-owners. This doctrine was first announced in Gay v. Mil' tual Union Telegraph Co.. 12 Mo. App, 485, followed and affirmed in Julia Building Association v. Bell Telephone Co., 88 Mo. 258, 57 Am. Rep. 398, and in City of St. Louis v. Bell Telephone Co., 96 Mo. 623; 9 Am. St. Rep. 370; and State v. FkuL 23 Mo. App. 185. The court, in Julia Building Asso- ciation V. Bell Telephone Co.. 88 Mo. 258, 57 Am. Rep. 398, based its decision on the following reasons: "These streets are required by the public to promote trade, and facilitate communications in the daily transaction of business be- tween the citizens of one part of the city with those of another, as well as to accommodate the public at large in these respects. If a citizen living or do- ing business on one end of Sixth Street wishes to communicate with a citizen living and doing business on the other end or at any intermediate point, he is entitled to the use of the street, either on foot, on horseback, or in a carriage or other vehicle, in bearing his message. The defendants in this case propose to use the street by making the telephone poles and wires the messenger to bear such communications instantaneously, and with more dispatch than any of the above methods, or any other known method of bearing oral communi- cations. Not only would sunh communications be borne with more dispatch, but to the extent of the number of communioations daily transmitted by it, the street would be relieved of that number of footmen, horsemen, or carriages. If a thousand messages were daily transmitted by means of telephone poles, wires, and other appliances used in telephoning, the street through these means would serve the same purpose which would otherwise require its use, either by a thousand footmen, horsemen, or carriages, to effectuate the same purpose. In this view of it, the erection of telephone poles and wires for the transmission of oral messages, so far from imposing a new and additional ser- vitude, would, to the extent of each message transmitted, relieve the street of a servitude or use by a footman, horseman, or carriage. If it be true, as laid down by the authorities herein cited, that when the public acquires the right to a street, either by dedication, grant, or condemnation, the munici- pality has the power to appropriate it, not only to such uses as are common and in vogue at the time of its acquisition, but also to such new uses as ad- vanced civilization may suggest as conducive to the public good, the conclu- sion is inevitable, that the use of Sixth Street in the manner and for the purposes proposed is allowable, for it cannot, with any show of reason, be de- nied that the means these appliances would afford for the instantaneous trans- mission of communications for the transaction of business, without resorting to the slower and common methods of bearing them, would be conducive to the public good, and make the street by these means serve one of the chief purposes for which it was dedicated. But it is argued that the erection March, 1891.] Chesapeake etc. Tel. Co. v. Mackenzie. 231 of two telephone poles, each eighteen inches at the bottom, with a gradual taper to the top, would obstruct the street, and deny to the public the complete and unrestricted use of the street. This argument, I think, is more specious than sound. It is true that to the extent of the space of eighteen inches, each of the poles proposed to be erected would be an obstruction, but the same could be said of lamp-posts erected on the streets of a city, the necessities of which might require its streets to be lighted with oil, gas, or electric lights; and yet no one would be heard to complain that the lamp-posts constituted such an obstruction or impediment to the free use of the streets as to demand their removal If the conclusions announced in the foregoing part of this opinion, that all the uses to which a street may properly be devoted are to be ret,'arded as permitted by and included in the original appropriation or dedication of the street, and that the erection and maintenance of telephone- poles as proposed is one of these uses, and that in digging holes through the stone slabs and stone walks in which to plant them, there is no taking of pri- vate property of the abutting lot-owner entitling him to compensation, are correct, it would seem logically to follow that damages resulting from such use need not be compensated for. If, by reason of the dedication, the publio have the right to apply the private property of the plaintiff to the use pro- posed without his being entitled to compensation, how can it be that it be- comes entitled to compensation for damages flowing as an incident from an act which the dedicator by his dedication has authorized to be done? If the dedication of the street is sufficiently operative to allow private property in the soil of the street to be actually invaded, and physically taken for a street use without compensation, why is it not sufficiently operative, if in such tak- ing damages ensue, to relieve the taker from the payment of such damages? If, by dedicating property for a street, the dedicator gives up his right to compensation for the uses included in the dedication, how can it be said that he does not also give up his right to compensation for damages to adja- cent property not taken, resulting from the application of the street to a use which, by his dedication, he authorized it to be put?" The views above announced are ably and forcibly refuted by Mr. Justice Henry, in a dissenting opinion, which is reported in a note to the principal case in 57 Am. Rep. 409. In McCormick v. District of Columbia, 4 Mackay, 396, 54 Am. Rep. 284, it was also decided that the erection of telegraph poles and wires in the street was not such a private nuisance as would be restrained by injunction at the suit of an abutting lot-owner. And in Pierce V. Drtio, 136 Mass. 75, 49 Am. Rep. 7, it was determined that the above rule was law, and that the legislature might authorize their erection on the line of a public highway without providing for compensation to the owner of the fee therein. In this case the court said: " When the land was taken for a highway, that which was ttken was not merely the privilege of travel- ing over it in the then known vehicles, or of using it in the then known methods for either the conveyance of property or transmission of intelligence. .... The discovery of tlie telegraph developed a new and valuable mode of communicating intelligence. Its use is certainly similar to, if not iden- tical with, tliat public use of transmitting information for which the high- way was originally taken, even if the means adopted are quite different from the post-boy or the mail-coach Weare therefore of opinion that the use of a portion of a highway for the public use of companies organized under the laws of the state for the transmission of intelligence by electricity, and sub- ject to the supervision of the local municipal authorities, wliich has been permitted by the legislature, is a public use similar to that for which the 232 Chesapeake etc. Tel. Co. v. Mackenzie. [Maryland, highway was originally taken, or to which it was originally devoted, and that the owner of the fee is entitled to no further compensation That it was the intent of the statute to grant to those corporations, formed under tho general incorporation laws for the purpose of transmitting intelligence by electricity, the right to construct lines of telegraph upon and along highways and public roads, upon the locations assigned them by the oflScers of the mu- nicipalities wherein such ways are situated, cannot be doubted There remains the inquiry, whether there is any objection to the statute because it does not provide a sufficient remedy for the owners of property near to or ad- joining the way, who may be incidentally injured by the structures which the telegraph companies may have been permitted to erect along the line of the highway and within its limits The only compensation to which such owner is entitled is that which the legislature deems just, when it permits the erection of these structures. The legislature may provide for compensation to the adjoining owners, but without such provision there can be no legal claim to it, as the use of the highway is a lawful one." The same rule is announced in hwin v. Great Southern Telephone Co., 37 La. Ann. 63, where it was de- cided that the state and municipal corporations, in the exercise of the right of ein.nent domain and of the police power, may authorize telephone companies to use the streets and sidewalks of a city for the purpose of erecting poles and other works necessary for the transmission of intelligence, and can impose terms and conditions for the enjoyment of the privilege; but the adjoining owners in front of whose premises such poles have been so erected have no right to require the removal of the same as nuisances, when the poles do not materially obstruct them in the free use of their property, or inflict on them some injury which is not common to all other persons. In Roake v. American Telephone etc. Co., 41 N. J. Eq. 35, an injunction was refused an abutting owner to restrain a telegraph and telephone company from stretching its wires over the land in the street in front of his property. The court said: "The city claims the right to use the streets for the purpose of telegraphic or telephonic communicacion; that such use is part of the pub- lic uses to which the streets of a city may lawfully be put by the city au- thorities, without the consent of the owners of lots abutting on the streets, or making compensation to them. The legislature of this state appears to have considered that the use of the street, so far as the wires are concerned, was not a violation of the rights of the owner of the soil in the street; for while it recognizes such rights as to the erection of poles, it does not do so as to the wires. It is laid down that if telegraph posts be erected within the limits of a street or highway without legislative authority, they are nuisances, but if the erection be thus authorized they are not. In the case in hand the company does not, as before stated, intend to erect poles on the land in front of complainant's lot, but means merely to stretch its wires along the front, at least twenty-five feet above the ground, on poles erected on adjacent or neighl)oriiig property. The present injury from such use cannot be great It certainly is not so great as to warrant a preliminary injunction." A railroad company may, for its own use in operating its road, construct a telegraph or telephone line over and along its right of way, and in so doing may cut down trees, if necessary, thereon standing, or in any other way use its riglit of way for such purpose, without subjecting itself to any additional claim by the original land-owner for compensation. But if the line is not constructed for such purpose, it will be a new servitude, putting an additional burden on the land, for which the original owners of the land are entitled ta March, 1 891.] Chesapeake etc. Tel. Co. v. Mackenzie. 233 be compensated: Western Union Tel. Co. v. Etch, 19 Kan. 517; 27 Am. Rep. 159; American Telephone etc. Co. v. Pearce, 71 Md. 535. Cases Holding Abutting Oioner Entitled to Additional Compensation, — The cases which maintain that the erection of a line of telegraph or telephone poles and wires on a street or highway is foreign to its use, and the imposi- tion of a new and additional servitude, which the adjoining owner has the right to restrain by injunction, unless his consent is first obtained or he is compensated therefor, may be grouped as follows: Board of Trade Telegraph Co. V. Barnett, 107 111. 507; 47 Am. Rep. 453; Broome v. New York etc. Tele- phone Co., 42 N. J. Eq 141; StiUe etc. Tele]>hone Co. v. Mayor of Newark, 49 N. J. L. 344; Western Union Telrgraph Co. v. Williams, 86 Va. 696; 19 Am. St. Rep. 908; Willis v. Erie Telegraph etc. Co., 37 Minn. 347; Stoioers v. Postal Tele- graph etc. Co., 68 Miss. 559; 24 Am. St. Rep. 290; Dusenbnrij v. Mutual Tele- graph Co., 11 Al)b. N. C. 440; Metropolitan Telephone etc. Co. v. Colwell Lead Co., 67 How. Pr. 365; 50 N. Y. Sup. Ct. 488; Pacific Postal Telegraph etc. Co. v. Irvine, 49 Fed. Rep. 113, The majority' of th'isc cases maintain that neither the legislature nor any municipal corporation can authorize the erection of a l:ne of posts and wires in a street or highway without providing for compensation to the abutting owner, whether the fee is in him or in the public: Stoicers v. Postal Telegraph etc. Co., 68 Miss. 559; 24 Am. St. Rep. 290, and cases cited. But there is some difiference of opinion on this point, although it may b© questionable if any sound reason therefor exists. This distinction is shown by the case of Pacific Podal Telegraph Co. v. Irvine, 49 Fed. Bep. 113, where it was said: " It appears that the poles and wires were erected by complainaut under a grant from the board of supervisors so to do, but without the con- sent and against the protest of the defendants. The right of way granted to the supervisors was for a public road, that is to say, a way to be used by the pul>lic for ordinary travel. Where the fee of the highway is vested in the public, there is no valid legal objection to the grant. by the public of a riglit to erect such poles and wires, without regard to the adjacent property holders; but where, as here, the fee of the highway remains in the adjacent owner, and its use for purposes of public travel has been granted, I think it clear that every use of the highway not in the line of such travel is an addi- tional burden, for which the proprietor of the fee is entitled to additional compensation, and which cannot be constitutionally taken from him with- out his consent, except by proceedings regularly instituted and prosecuted according to law." In Western Union Telegraph Co. v. Williams, 86 Va. 696, 19 Am. St. Rep. 90S, 916, the court said: "That the erection of a telegraph line upon a highway is an additional servitude is clear from the authorities. That it is such is equally clear upon principle, in the light of the Virginia cases cited above. If the right acquired by the commonwealth in the coi dem- nation of a highway is only the right to pass along over the highway for the public, then, if the untaken parts of the land are his private property, to dig up the soil is to dig up his soil; to cut down tlie trees is to cut down his trees; to destroy the fences is to destroy his fences; to erect any structure, to affix any pole or post, in and upon his land, is to take possession of his land; and all these interfere with his free and unrestricted use of his property. If tho commonwealth took this without just compensation it wouhl be a violation of the constitution. The commonwealth cannot constitutionally grant it to an- other. It is true that tlie use of the telegraph company is a public use; tliat the company is a public corporation, as to which the public has right which the law will enforce. But tlie public riglits can only be obtained by paying for them. Tlie use, while in one sense public, is not for the public generally; it- 234 Chesapeake etc. Tel. Co. v. Mackenzie. [Maryland, is for the private profit of the corporation. It is its busines? enterprise, en- gaged in for gain. Its services can only be obtained upon their being paid for. There is no reason, either in law or common justice, why it should not pay for wliat it needs in the prosecution of its business. Upon this burden being placed upon it, it can complain of no hardship; it is the common lot of all. If the said company has use for the private property of a citizen of this common- wealth, and it is of advantage to it to have the same, it is illogical to argue that the property is of small value to plaintiff, and in the aggregate a great matter to the plaintiff in error. This argument is not worth considering; it cuts at the very root of the rights of property. It would apply with equal force to all the transactions of life. It is sudicieut to say, the ceyis of the constitution is over this as over all other private property rights, and there is no power which can divest it without just compensation." In Broome v. New York etc. Tde'phone Co., 42 N. J. Eq. 141, a mandatory injunction re- quiring a telephone company to remove its poles from the highway in front of complainant's premises, and forbidding it to erect others there, WoS granted, and in this case the court said: "The defendants, a telephone com- pany, without any leave or license from or consent by the complainant, but, on the other hand, against his protest and remonstrance, and in disregard of his warning and express prohibition, and without condemnation, or any steps to that end, set up their poles upon his land It is enough to say that it does not appear that the road board had any power to authorize any one to set up poles in the land of the highway, and thus subject the laud to an additional servitude besides that for which it was condemned. What has been said is sufficient, of itself, to establish the right of the com- plainant to relief; for in order to justify the defendants in setting up the poles, it is necessary for them to show that they have acquired the right to do so, either by consent or by condemnation from the owner of the soil. The designation by the city or town authorities of the streets where the poles may be set up is not enough." In Board of Trade Telegraph Co. v. Barnelt, 107 111. 507, 47 Am. Rep. 453, it was announced that legislative authority to telegraph companies to erect poles in the public street is subject to the liability to make just compensation to the adjacent land-owners for the use, and the court said: "The position taken by the defendant is, that the state can right- fully, as it has done, authorize the county board to permit defendant to con- Ba-uct its line of telegraph upon the highway without the consent of the abutting land-owner, that it imposes no new or additional burden thereon, and that when the public acquire an easement over land, for a compensa- tion fully paid, the public obtain all the rights the land-owner had, and the state may authorize any use of it not inconsistent with its use as a high- way. On the other hand, it is insisted the proprietary rights of plaintiff liad been interfered with in a manner detrimental to his interests as the owner of the fee, and that the action of defendant in taking possession of his land forcibly and against his will comes within the constitutional inhibition, 'private property shall not be taken or damaged without just compensation.' Tlie latter position is the one beat sustained by authority, and rests on sounder principles. It is for the reason the construction and maintenance of a telegraph line upon the highway is a new and additional burden upon the fee to which it was not contemplated it should be subjected, and for which the owner is entitled to additional compensation. The principle is, neither the state nor a mtxnicipal corporation has any rightful authority, under the con- stitution, to grant away the private property of the citizen; and if corpora, tioas quasi public, in the exercise of the right of eminent domain with which March, 1891.] Chesapeake etc. Tel. Co. v. Mackenzie. 235 khey are clothed by the sovereign power of the state, seek to appropriate it, 00 that they may have a benefit therefrom, every principle of justice de- mands they should make just compensation, whether the property taken or damaged is of little or great value," A railway upon a highway is an addi- tional servitude, and "in the same sense, the construction of a line of tele- graph on the highway is an additional servitude, to which the fee of the land had not before been subject. The servitude differs more in degree than in charicter, and whether the damages are great or small, the corporation ask- ing for or appropriating to itself the benefit of such new servitude must mike just compensation to the owner of the fee," Invasion 0/ Private Property is Unlawful, and may he Enjoin'>d. — The inva- sion of private property in which the public has obtained no easement, for the purpose of erecting telegraph or telephone poles, or for stringing wires, is unquestionably unlawful, and may be restrained by injunction, Tliis ques- tion is decided in A vitrican Telephone etc. Co. v. Pearce, 7 1 Md. 535, where it was determined that a telegraph or telephone company is, with respect to the right to construct its lines over private ])ioptrty, ^ust as much subject to the constitutional prohibition against taking private property for public use without just compensa ion as is a railway or any other corporation clotlicd with the power of taking private property for public use; and the avcrnient that such company is proceeding, or threatens to proceed, to construct its line of poles or wires on and over the complainant's land without his leave or license, and without paying or tendering him compensation for the use of his land for this purpose, is sufficient to entitle him to an injunction. Under a license from a municipal corporation for the erection of a telephone line, or a fire-alarm telegraph, there is no authority to enter private property and cut off the limbs of trees, although they project over the line of the sidewalk on the street: Tissot v. Great Southern Telegraph etc. Co., 39 La. Ann. 99G; 4 Am. St. Rep, 248; Memphis Bell Telephone Co. v. Hunt, 16 Lea, 456; 57 Am. Rep. 237. Elfx'tric-car Poles and Wires on Streets and Highways not an Ad- ditional Servitude. — A question clo:3ely allied to the one above considered is, whether or not the erection of poles and stringing wires in the street for the purpose of propelling electric street-cars imposes an additional servitude for wliich the adjoining owner is entitled to compensation; and wiiether or not a failure to obtain such compensation, and an atteiniit to appropriate the street to such use without his consent and against his expressed wish, will entitle him to an injunction. The authorities seem to be unanimous in an- swering this question in the negative, and to the elTect tiiat the placing of poles and wires in the street for the purpose of using electricity for street- car propulsion does not impose a new servitude on the land in the street, and may be authorized by legislative or municipal autliority without compen- sation to the abutting owner of the land: Detroit City Ridlwny v. MilU, 85 Mich. 634; Halxey v. Rapid Transit etc. R'y Co., 47 N. J. Eq. 380; Potter v. Saginaw Union etc. Railway, 83 Mich. 285; Barber v. Saginaw Union etc Bail- way, 83 Mich. 299; Taggart v. Newport Street It'y Co., IG R. I. GlJ8; WilUama V. City Electric Street By Co., 41 Fed. Rep, 556, in which the following syl- lihus was prepareil by the court. '"The operation of a street-railroad by mechanical power, when authorized by law, on a public street is not an addi- tional servitude or burden on land already dedicated or condemned to the \xse of a public street, and is therefore not a taking of private property, but is a modern and improved use only of the street as a public highway, and iiti'ords to the owner of the abutting pi-operty, though he m ly own the fee of 236 Chesapeake etc. Tel. Co. v. Mackenzie. [Maryland, the street, no legal ground of complaint." In Tagijnrl v. Netepori Street R'y Co., 16 R. I. 668, the court said: "The street railway here complained of ia operated by electricity. It does not appear, however, that it occupies the streets or highways any more exclusively than if it were operated by horse power. The answer avers that ' electricity, besides being as safe and as easily managed as horse power for the propulsion of street-cars, is more quiet, more cleanly, and more convenient than horses, both for residents on the streets used by said cars for the public generally, and also causes much less wear and injury to the streets and highways than is occasioned by street-cars of which horses are the motive power.' These averments, the case being heard on bill and answer, must be taken as true. We see no reason to doubt their truth. It is urged that electricity is a dangerous force, and that the court will take judicial notice of its dangerousness. The court will take notice that electricity, developed to some high degree of intensity, is exceedinLly dangerous, and even fatally so, to men or animals, when brought in contact with them; but the court has no judicial knowledge that, as used by the defendant company, it \% dangerous. The answer denies that it is dangerous to either life or property. It is also urged that the cars, moving apparently without external force, alarm and frighten horses. This, so far as it is al- leged in the bill, is denied in the answer. We see no reason to suppose that this danger is so great that on account of it the railway should be regarded as an additional servitude. The answer alleges that many street-railways, operated by electricity in the same manner as the defendant's, are in use in diflferent states, and that many more are in process of construction. Refer- ence has been made to cases which hold that telegraph or telephone poles and wires erected on streets or highways constitute an additional servitude, entitling the owners of the fee to additional compensation, and from these cases it is argued that the railway here complained of is an additional servi- tude by reason of the poles and wires which communicate its motive power. There are cases which hold as stated, and there are cases which hold other- wise. But assuming that telegraph and telephone poles and wires do add a new servitude, we do not think it follows that the poles and wires erected and used for the service of said street-railway likewise add one. Telegraph and telephone poles and wires are not used to facilitate the use of the streets where they are erected for travel and transportation, or if so, very indirectly so; whereas the poles and wires here in question are directly ancillary to the uses of the streets as such, in that they communicate the power by which the street-cars are propelled." r AMERICAN STATE REPOKTS. A'o! XXX, Pages 373-413. GODDARD :. INHABITANTS OF HARPS WELL. [84 Mainr, 409.] Municipal Corporations, liability of. May, 1892.] Goddard v. Inhabitants of Harpswell. 373 GoDDARD V. Inhabitants op Harpswell. [81 Maine, 499.] Municipal Corporations — Liability of. — When a public officer, in the line of his duties, does a public work within a town, for the public bene- fit or use, the town, in the absence of any direction to him, is not liable for his misconduct in such work, though it appointed him, and is obliged to pay the coats of the work, and therefore a town ia not answerable to one whose property was taken an 1 used in the construction of a high- way by a highway surveyor, charged with the duty of opening and keep- ing in repair all public highways, and who is appointed and paid by the town. C. W. Larrabee, for the plaintiff. Weston Thompson, for the defendants. Emery, J. The county commissioners of Cumberland County, upon an appeal from the refusal of the selectmen, laid out a town road in Harpswell. This action of the com- missioners was, upon appeal, affirmed by this court, and the certificate of affirmance sent down May 31, 1886. Within the limits of the road thus located, the plaintiff had, prior to the location, placed some amount of stone, timber, and earth, with the consent of the owners of the land, for the purpose of constructing a road and bridge, along the same line after- ward located by the commissioners. After the location and establishment of the road by the commissioners, as affirmed by this court, the road and the necessary bridge therein were constructed, and the stone, tim- ber, and earth of the plaintiff, found within the limits of the location, were used in such construction. The plaintiff, as- suming that this taking and using of his material were by the direction of the town, or by its authorized agents, brought this action of trover against the town for such conversion. He recovered a verdict, which the town lias moved the court to set aside as against law and evidence. There is no evidence in the case that the town ever voted to open or build the road or bridge, or appropriated any money or appointed any agents for that purpose, or gave any instructions to any officers, or in any way ever even consid- ered the question. Nor is there any eviilence that the munici- pal officers ever in any way took any direction or cognizance of the matter. Counsel and witnesses spoke incidentally of the road and bridge having been built by the town, and now the plaintiff asks us to assume that the town built the 374 GoDDARD V. Inhabitants of Harpswell. [Maine, road and bridge, inasmuch as it was the town's duty to do bo, and we may assume that it did its duty. He means for us to assume that the town directly, by vote, assumed charge, appointed agents, and gave directions in the matter. But in the absence of any evidence showing any action of the town or its municipal officers in the premises, we cannot as- sume anything more tlian that the road and bridge were built by the usual public officer (in this case the highway surveyor of the district), in accordance with the directions of the statute and the commissioners. This assumption gives full effect to any presumption of duty done, and indeed such acts of pub- lic officers are commonly spoken of as acts of the town, though not technically or legally so. Giving the plaintiff the full benefit of this assumption, is the town proven guilty of the unlawful conversion of his ma- terial ? It is settled law that when a public officer, in the line of his duty, does a public work within a town, for the public benefit or use, the town, in the absence of any directions to him, is not liable for his misconduct in such work, even though it appointed him, and is obliged to pay the cost of the work: Small v. Danville, 51 Me. 359; Mitdiell v. Rockland, 52 Me. 118; Cobb v. Portland, 55 Me. 381; 92 Am. Dec. 598; Woodcock V. Calais, 66 Me. 234; Farrington v. Anson, 77 Me. 406; Bulger v. Eden, 82 Me. 352. A highway surveyor is a public officer, charged with a pub- lic duty " to open and keep in repair " public ways legally established within his district. He is appointed and paid by the town, and the town supplies him with the necessary funds for the performance of his duty. But the town does all this as a public duty, not for its own peculiar gain. It has no proprietorship in the roads and bridges built and maintained by taxes upon its inhabitants. The roads and bridges belong to the public. In appointing highway surveyors, in raising and expending money for roads and bridges, the town acts simply as the political agent of the state, and should have no more pecuni- ary liability for the misconduct of such officer than should the governor for the misconduct of a public officer bearing his commission. Of course, the statute may impose such a liabil- ity on a town, as it may on the governor, but no such statute is invoked or cited in this case. It was in accordance with these principles that Small v. May, 1892.] Goddard v. Inhabitants of Harpsvvell. 375 Danville, 61 Me. 359, was decided. In that case the plaintiflF had some split stones lying upon the land taken for a highway when the way was located. In building a culvert in this highway, the highway surveyor of the tow;n used this split stone, and the i)laintiff brought an action of trespass against the town. It was conceded that the using of the stone con- stituted a trespass, but it was held tbat the town was not lia- ble. That case was very like this in its facts. The surveyor was evidently opening and making a road just located. The principle there established is decisive of this case. The plaintiflf cites several cases from Massachusetts, which should be noticed. In Hawks v. Charlemont, 107 Mass. 414, the town voted to take charge, and appointed its selectmen as agents with full discretion. It did not leave the work to the highway surveyors. In Deane v. Randolph^ 132 Mass. 475, the town voted to put the selectmen in charge of the work, and they assumed such charge, hiring men, etc. In Waldron V. Haverhill, 143 Mass. 582, the city, " instead of leaving the duty of keeping the highways in repair to be performed by the officers and in the methods provided by the general laws," assumed to perform it by means of its own agents. In Doherty V. Ih-aintree, 148 Mass. 495, the town voted to take charge of the work, and appointed a committee of five to act with the selectmen, all as agents of the town. On the other hand, in the later case in the same state, Prince v. Lynn, 149 Mass. 193, the same court reiterated the doctrine that the municipality was not liable for the miscon- duct of its highway surveyors while engaged in their public duties. In the still later case of Hennessey v. New Bedford, 153 Mass. 260, the city voted a specific sum of money for the improvement of a particular street. The mayor and street commissioner, without special instructions, assumed the care of the work. Held, that the city was not liable for their mis- conduct in the premises. The distinction between the two classes of cases is clear. In the one class, the municipality has interfered by giving directions, or taking charge of tlie work by its own agents, as in Woodcock v. Calais, 66 Me. 234. In the other class, the municipality has not interfered, "but has left the work to be performed by the proper public officers, in the methods pro- vided by the general laws." Upon a new trial the plaintiff may be able to adduce evi- dence which will bring the case within the former class, but 376 GoDDARD V. Inhabitants of Harpswell. [Maine, upon the evidence now before us, the case is clearly within the latter class. The exceptions do not need to be considered. Motion sustained. New trial granted. liiability of Cities for the Negligrence and Other Misconduct of their OflB.cers and Agents.* The Pui-pose of Tim Note is to consider the liability of municipal corpo- rations for the wrongful acts and omissions of their servants and agents. These corporations, like other corporations aggregate, cannot act or omit to act except through and by their officers and agents, and therefore, in every instance in which they have been held answerable for any wrongful act or omission, it must necessarily have been a wrongful act or omission on the part of one or more of their officers or agents, or of some person who, though not strictly occupying the relation of an officer or agent, yet is one to whom the municipality has deputed the performance of some duty, and has thus made itself answerable for his wrongful act or omission relating thereto. With Bespect to the General Principles by which the liability of municipal corporations must be determined, the divergence of judicial opinion is not greater than might naturally be expected, where the subject is so difficult and important, and the circumstances to which the principles are to be ap- plied are so variant. These corporations are regarded, with reference to some of their duties and functions, as representing and acting for the state or sov- ereign, and with reference to others, as acting for themselves, somewhat as private corporations, and, generally, when acting in the former capacity they are not answerable for the acts or omission of their officers or agents, while when acting in the latter capacity their liability is ordinarily the same as that of a private person or corporation. The great difficulty and the great divergence of judicial opinion arise from the fact that no test has been for- mulated by which to decide with unerring accuracy whether a particular act or omission occurred in the discharge of governmental or of quasi private duties. General Test of Municipal Liability. — If the duty in respect to which there has been a wrongful act or omission is one resting primarily upon the mu- nicipality, and is not a mere governmental duty, the performance of which has been delegated to the municipality by competent legislative authority, then the liability of the municipality is substantially that of a private corpo- ration. Hence one of the tests formulated and applied by the courts of New York is as follows: " To determine whether there is municipal responsibility, the inquiry must be, whether the department whose misfeasance or non- feasance is complained of is a part of the machinery for carrying on the mu- nicipal government, and whether it was at the time engaged in the discharge of a duty or charged w^ith a duty primarily resting upon the municipality ": Ehrgott v. Mayor, 96 N. Y. 273; 48 Am. Rep. 6-22; Pettengill v. Yonkers, 116 N. Y. 558; 15 Am. St. Rep. 442. "Whenever," said the supreme court of * BKFERENCE TO MONOGRAPHIC NOTES. Liability of cities for neglect to repair streets: 63 Am. Dec. 350-357. Liability of cities for unauthorized acts of their officers: 100 Am. Dec. 358-360 Liability of cities for defects in and want of repair of sewers: 29 Am. St. Rep. 737- 741. Tests for determining city's liability for damases occasioned in the execution of governmental or sovereign powers: 66 Am. Dec. 434-142. May, 1892.] Goddard v. Inhabitants of Harpswell. 377 Georgia, "the negligence or non-feasance of the ordinary agents and servants of the corporation, as distinguished from that of its officers, causes the injury, or when the loss results from acts merely ministerial, as distinguished from such as are legislative and governmental in character, exercised for the sole and immediate benefit of the public, or where the corporation is exercising, as a corporation, its private franchise powers and privileges, 'which belong to it for its immediate corporate benefit, or is dealing with property held by it for its corporate advantage, gain, or emolument, though inuring ultimately to the benefit of the general public, then, and only then, it becomes liable for the negligent exercise of such powers precisely as are individuals ": Wright v. Aiiijicsta, 78 Ga. 241; 6 Am. St. Rep. 256, 258. In an action against the representatives of the city of New York to recover for injuries resulting from alleged negligence in keeping open an excavation in the street unguarded and unlighted at night, the court of appeals of that state said: "The corpo- ration of the city of New York possesses two kinds of powers, — one govern- mental and public, and to the extent they are held and exercised, is clothed with sovereignty; the other private, and to the extent they are held and exercised, is a legal iTidividual. The former are given and used for public purposes, the latter for private purposes. While in the exercise of the for- mer, the corporation is a municipal (.'overnment, and while in the exercise of the latter, is a corporate, legal individual. The distinction between these two classes of powers is obvious, and has been frequently recognized and established in our courts: Wilson v. Mayor etc. of New York; 1 Denio, 595; 43 Am. Dec. 719; Bailey v. Mayor etc. of Neio York, 3 Hill, 531; 38 Am. Dec. 6G9; Mayor etc. of New York v. Bailey, 2 Denio, 450, opinion of Hand, S. ; Rochester White Lead Co. v. City of Rochester, 3 N. Y. 4G3; 53 Am. Dec. 316. Although the difference between the two kinds of powers is plain and marked, yet, as they approximate each other, it is oftentimes difficult to ascertain the exact line of distinction. When that line is ascertained, it is not difficult to determine the rigiits of parties; for the rules of law are clear and explicit which establish the rights, immunities, and liabilities of the appellants when in the exercise of each class of powers. All that can be done, probably, with safety is to determine, as each case arises, under which class it falls ": Lloyd V. Maym- etc. of N etc York, 5 N. Y. 369; 65 Am. Dec. 347. Liable in Respect to Municipal Duties only. — Doubtless many decisions may be found in which the liability of municipal corporations for the acts or omissions of their officers or agents is compared to that of private persons or corporations, and language is used from which the inference might be drawn that whenever the latter are liable the former are equally so: Cline v. Crescent City R. R. Co., 41 La. Ann. 1031; Ross v. Madison, 1 Ind. 281; 48 Am. Dec. 361; Wallace v. Muscatine, 4 G. Greene, 373; 61 Am. Dec. 131; Templin v. Iowa City, 14 Iowa, 59; 81 Am. Dec. 455; Rochester White Lead Co. v. Roches- ter, 3 J'ii K\a.. IIG; 70 Am. Dec. 562; Fort Wayne V, Coomhi, 107 Ind. 75; 57 Am. Rep. 82; C'lalLlry v. Richmond, 88 Va. 402; 29 Am. St. Rep. 730, and note; Coofer v. City of Dallas, 83 Tex. 239; 29 Am. St. Rep. 645; Mayor of FrosUmrg v. Dufty, 70 Md. 47; Spanglerv. San Fran- cisco, 84 Cal. 12; 18 Am. St. Rep. 158; Frodburg v. IJiichins, 70 Md. 5t5; Hardy v. Brooklyn, 90 N. Y. 435; 43 Am. Rep. 182. The same rule applies to embankments, culverts, dams, drains, and reservoirs, when, through negligence or carelessness in their maintenance, lands are flooded or other- wise damaged: Ross v. Madison, 1 Ind. 281; 48 Am. Dec. 361; Wallace v. City of Mwicatine, 4 G. Greene, 373; 61 Am. Dec. 131; Rochester White Lead Co. V. Rochester, 3 N. Y. 463; 53 Am. Dec. 31(5; Perry v. Worcester, 6 Gray, 544; 66 Am. Dec. 431; Cooper v. City of Dallas, 83 Tex. 239; 29 Am. St. Rep. 645; Aldworth v. Lynn, 153 Mass. 53; 25 Am. St. Rep. 60S. Public Streets, Defects in Planof Improcement. — Negligence or carelessness in respect to streets and sewers of which we have spoken as leading to muni- cipal liability relates rather to the mode in which a plan or system is carried out than to the system itself. In determining whether a street shall be laid out or improved, or the manner of its improvement, the municipality exer- cises quasi legislative or judicial functions, and from error or mistake therein, as a general rule, no liability results. Hence the statement is frequently made in the opinions of the courts, that while liability may exist for neg- ligence in the execution of a plan, it cannot arise from a defect in the plan itself. This rule, while of general, is not of universal aj)plication. For a mere error of judgment on the part of tlie officers of a municipality not so gross as to support the iuierence of imbecility or willful inattention, a city ia not answerable, though as a result of such error public works are constructed from which injury results to persons or property: Note to Chalkley v. City of Richmond, 29 Am. St. Rep. 737, 738; Urquhart v. Ogdensburg, 91 N. Y. 67; 43 Am. Rep. 655. The tendency of the more recent decisions is to affirm that " any particular plan that may be adopted must be a reasonable one": Hitchins V. Mayor, 68 Md. 100; 6 Am, St. Rep. 422. This subject was carefully exam- ined in Gould v. Topeka, 32 Kan. 485, 49 Am. Rep. 496, and the following con- clusions reached: "The control of the streets of cities was not put into their hands for the purpose that they might plan or order that the streets should be made dangerous or unsafe for the public to travel thereon, nor was such control put into their hands for the purpose that they might plan or order that the streets should remain in an unsafe or dangerous condition if previ- ously dangerous, but such control was given to them for the sole purpose that they should make and keep the streets safe and convenient for the trav- eling public; and we think it was put into their hands as a mandatory duty, which they have no right or discretion to evade or avoid. If a city should plan or arrange tliat a street should be made unsafe and dangerous, we should be inclined to think that it would so transcend its powers as given to it by the legislature, and so violate its duties as imposed upon it by the legisla- ture, that it would be liable for any injury which might occur to anj' individual by reason of such unwise action. Such action would be substantially the same as planning and creating a public nuisance. Can a city, by planning tiiat a cistern should be left uncovered in the middle of a public street, avoid all 388 GoDDARD V. Inhabitants of Harpswell. [Maine^ liability for injuries that may occur by reason of some person's falling into it in the night-time, without fault on his part, when, on the other hand, it would be liable if the cistern were left uncovered by the person wlio constructed it, or was afterward uncovered by some other person, and notice of its condi- tion had been given to the city officers? Is such a distinction founded in reason ? 2 Thompson on Negligence, pp. 734, 735, 836, sees. 2, 3, and notes; pp. 766, 767, 768, and notes. After a careful consideration of this entire question, we have come to the conclusion that where a street as planned or ordered by the governing board of a city is so manifestly dangerous that a court, upon the facts, can say as a matter of law that it was dangerous and unsafe, the rule contended for by the defendant should not have any application, and the city should be held liable; but where, upon the facts, it would be so doubtful whether the street as planned or ordered by the gov- erning board of the city was dangerous or unsafe or not, — that diflferent minds might entertain different opinions with respect thereto, — the benefit of the doubt might properly be given to the city, or rather to its governing board that planned or ordered that the street should be placed in such a condition, and the rule should be held to apply, and the city should not be held to be liable." The plan adopted need not be such as to prove adequate in extraordinary emergencies, which a prudent man might fail to anticipate without being guilty of want of reasonable care and forethought. Thus in an action to re- cover for injuries suffered from an embankment and culvert, and the flooding of the plaintiff's premises by water from the inadequacy of the culvert, the defendant asked that the jury be instructed as follows: ''If the jury shall find that the damage complained of was occasioned by a flood of water so much more extraordinary than usual that ordinarily careful and thought- ful men and ordinarily skillful engineers would not contemplate that such a flood would ever come, and such embankment and culvert did prove sufficient for all purposes for about three years, the jury should find the damage to have happened by what, in law, is called the 'act of God,' and should find for the defendant." This instruction was refused, and the in- ference to be drawn from the instructions given, taken as a whole, was to the effect that "if the damage to the plaintiff happened in consequence of the improvement, the city is liable." The judgment of the trial court was reversed on the ground that the instruction asked for "was within the law, and should have been given " : City of Madison v. Ross, 3 Ind. 236; 54 Am. Dec. 481; Mayor of Neio York v. Bailey, ^'D&mo, 433; City of Evansvillev. Decker, 84 Ind. 328; 43 Am. Rep. 86. Though a flood or fall of rain is so extraordinary that the municipality might have been exonerated from liability had the plan of its sewers proved inadequate for the discharge of all the water falling into them, yet if such plan was not in fact inadequate even for the extraordinary emergency which arose, the municipality is answerable to one whose property is damaged by the failure to keep the sewer as originally planned and con- structed in proper repair; for whether the municipality was in law bound to plan and construct the sewer, and it did or not, after, if it was constructed, every property holder affected by it had the right to assume that it would be kept in repair, and that its capacity would not be materially diminished by the negligence of the municipal authorities: Spamjler v. San Francisco, 84 Cal. 12; 18 Am. St. Rep. 158. Public Streets — Negligence, and not Injury, is the Test of Liability. — The mere fact that injury was occasioned by a street being out of repair, or sewer being inadequate, or not in proper condition, does not result in municipal May, 1892.] Goddard v. Inhabitants of Harpswell. 389 liability, unless it further appears from the attendant circumstances that the condition leading to the injury was a consequence of negligence. Thus where it was shown that a sewer had become obstructed during or imme- diately succeeding a heavy fall of rain, so that it could not carry off the waters running into it, and that, as a consequence, plaintiff's premises were floodfid and damaged, it was held that he was not entitled to recover with- out some evidence of negligence or omission of duty on the part of the muni- cipality. The ruling upon the subject and the reasons for it were thus expressed by the court: "It is found upon sulBcient evidence that the over- flow was caused by a stoppage of the sewer with sand, dirt, and refuse mat- ter washed in from the street, and that at or just before the flooding of the plaintiff's premises there was an unusually heavy shower of rain. There is no proof of any obstruction before that time. There being no fault in the construction of the sewer, causing the overflow, it was incumbent upon the plaintiff to show a neglect by the defendants to remove the obstruction after notice of its existence, or some omission of duty on the part of the city oflacers in looking after it and seeing that no obstruction occurred. There was no evidence, and there is no finding, that the sewer was liable to become obstructed under ordinary circumstances, so as to require the watch and care of the officials to prevent its becoming filled and choked with the wash of the street, or that it had been obstructed for any time and under circum- stances from which it might be assumed that the officers of the city did know or ought to have known the fact. The city does not insure the citizen against damage from works of its construction, but is only liable, as other proprietors, for negligence or willful misconduct. The principles upon which municipal corporations are held liable for damages occasioned by defects in streets and sewers and other public works are well settled by numerous cases, and the liability is made to rest, in any case, upon some neglect or omission of duty: Barton v. Syramxe, 37 Barb. 202; 36 N. Y. 54; Griffin v. Mayor etc. of New York, 9 N. Y. 456; 61 Am. Dec. 700; McCarthy y. Syracuse, 46 N. Y. 194; Nims v. Troy, 59 N. Y. 500": Stnith v. Mayor,' m N.Y. 295; 23 Am. Rep. 53, In the GroiUnij of a Street, a city is liable for negligence or unskillfulness from which injury results, to the same extent as if such injury had arisen, after the grading was completed, from a failure to keep the street in a safe condition: Meares v. Comnmsionera, 9 Ired. 73; 49 Am. Dec. 412; Oomnmsionera v. Wood, 10 Pa. St. 93; 49 Am. Dec. 582. Where such negligence or unskillfulness does not exist, a municipality, having power to establish or change grades, and to improve streets in accordance with grades as established or changed by its common council or other competent authority, is not answerable for con- sequential damages resulting to property by means of such grading: Oreen v. BoroiKjh of Reading, 9 Watts, 382; 36 Am. Dec. 127; Smith v. Corporation of Wasliin'jton, 20 How. 135; Imlcr v. Sprinn/ield, 55 Mo. 119; 17 Am. Rep. 645; Shaw v. Crocker, 42 Cal. 438; Wilson v. Mayor of New York, 1 Denio, 595; 43 Am. Dec. 719; Mayor of Philadelphia v. Randolph, 4 Watts & S. 614; 39 Am. Dec. 102; except in states whose constitutions prohibit the dam- aging of private property for public use without first making just compensa- tion to its owner. The liability of cities for injuries resulting from the gradini; of streets, and from changes in the grades thereof, is considered in the note to O'Brien v. Philadelphia, 150 Pa. St. 589; post, p. 835; except that such note does not treat of claims for damages occasioned by the grading of streets in such a manner as to interfere with the flow of water. Walercouraea, Orading Streets so as to Interfere with. — It is often difficult to 3d0 GoDDARD V. Inhabitants of Harpswell. [Maine, determine whether a depression in which water flows is or is not a water- course within the legal signification of that term, and it is not within the purpose of this note to furnish definitions or authorities to aid in the decision of that question. Whenever tliere exists in a city a natural watercourse, the authority given to the municipality to grade streets does not carry with it the right, by such grading, to deprive persons of their rights in such stream, by preventing its flow to or through their property, nor does it entitle the municipality to so grade its streets as to hold bauk the waters of the stream, or to collect them into new channels and throw them upon the lands of pri- vate proprietors who were not injured by it in its natural state. If a street extends across a watercourse, the municipality is not at liberty by grading the street to prevent or obstruct the flow of the water, and it must therefore provide, by culverts or other appropriate means, for the escape of the water, so that the rights of riparian proprietors shall not be substantially impaired and the adjacent lands shall not be flooded to a greater extent than would occur if such watercourse were left in its natural condition. If by reason of the failure of the municipality to provide proper culverts, injuries result, it must respond in damages therefor: Helena v. Thompson, 29 Ark. 569; Noonan V. City of Albany, 79 N. Y. 470; 35 Am. Rep. 540; Burden v. Portnge, 79 Wis. 12(5; Rose v. St. Charles, 49 Mo. 509; Barns v. Hannibal, 71 Mo. 449; Haynes v. Burlington, 38 Vt. 350; Rochester White Lead Co. v. Rochester, 3 N. Y. 463; 53 Am. Dec. 316; Wheekr v. Worcester, 10 Allen, 591; Kellogg v. Thompson, 66 N. Y. 88; Mootry v. Danbury, 45 Conn. 550; 29 Am. Rep. 703; Parker V. Lowell, 11 Gray, 353; Morse v. Worcester, 139 Mass. 389; Stanch- Jield v. Newton, 142 Mass. 110; Rice v. Evansville, 108 Ind. 7; 58 Am. Rep. 22; Powers -v. Council Bluffs, 50 Iowa., 197; Richardson v. Eureka, 96 Cal. 443. If, however, a city has undertaken to provide suiiicient culverts, and to aid it in accomplishing that purpose has consulted an engineer of skill and of good repute, whose advice it has followed in good faith, it is doubtful whether it is liable for injuries resulting from his error of judgment: Van Pelt V. Davenport, 42 Iowa, 308; 20 Am. Rep. 622. Surface Waters, Interference toith, by Grading Streets. — Two opposing rules regarding the right to dispose of surface waters are still contending for su- premacy in this country. According to one of them, the land-owner whose property is injured has a right to defend and protect hia property by such means as to him shall seem tit, and may, therefore, by embankments, restrain such waters from flowing upon his land, or may, by drains, hasten their de- parture from his lands, though in either event injury may result to the land of another, unless he, in turn, takes some measure either to prevent the waters coming upon his land or to cast them oflf upon the lands of a third person. The other rule ia sanctioned by the civil law, and ia thus stated by Pothier: " Each of the neighbors may do upon hia heritage what seemeth good to him, in such manner, nevertheless, that he do not injure the neighbor- ing heritage." The application of this rule requires the owner of the lower heritage to receive su3h waters as naturally flow upon his land, whether Ly a natural watercourse or not, and not to resist their flow by embankments or other defenses tending to overflow and injure the lands of hia neighbor ubove him, who, in turn, is prohibited from collecting the waters into new channels and casting them in unusual amounts or places upon the land of the neighbor below him: See note to Martin v. Jett, 32 Am. Dec. 123-127; note to Shane v. Kansas City etc. R. R. Co., 36 Am. Rep. 490-492. A somewhat similar divergence exists respecting the right of municipali- ties to deal with surface waters in grading and otherwise improving streets. May, 1892.] Goddard v. Inuabitants of Harpswell. 891 The weight of authority probably inclines to the view that as long as the grading is done under the sanction of the law, and pursuant to a power authorizing the municipality to adopt grades and to improve streets in ac- cordance therewith, no lial:)ility can arise against it from the fact that the grading results in an injury to some private proprietor, eitlier by damming up and detaining surface waters on his land or by throwing thereon surface waters from which it was before exempt; but this imtnmiity of the city from claims for damages does not extend to its wrongful and intentional acts in concentrating surface waters and discharging them upon the lands of private proprietors to their injury: Pye v. Citi/ of Mankaio, 36 Minn. 373; 1 Am. St, Rep. 671; O'Brien v. City of St. Paul, 25 Minn. 331; 33 Am. Rep. 470. Where there is no natural watercourse, but the surface waters, owing to the slope of the land, draw off in a particular direction, and by tlie grading of the street an embankment is made, which prevents this flow of waters, whereby they are held back upon and caused to overflow adjacent premises, the persons damaged are, in the majority of the states, without redress, though by the construction of culverts or drains injury might have been pre- vented: Wilson V. Mayor of New York, 1 Denio, 595; 43 Am. Dec. 719. In a case in New York the general principle was declared that the city had the same right to grade a street, and in so doing to erect an embankment that the owner of a lot would have to fill it in and raise it to such heigiit as might make it more desirable, and therefore that the city cannot be held answerable, where a private proprietor would not be liable had he done a sim- ilar a'^t. It is true that in this case there was no ground whatever for hold- ing the municipality liable, and there was nothing to show that any injury had resulted to any one from any cause, and the opinion of the court, so far as it dealt with general principles, was therefore a dictum. Nevertheless, as it has 1 een much relied upon in other cases, we quote it, so far as material: "The defendant had, at least, as much right to fill up and raise this avenue as a private owner of a city lot has to fill up and improve his lot; and there can be no question that such an owner may fill up his lot and build upon it, and the surface water of adjoining lots may thus be prevented from flowing upon it, or tlie surface water may be thrown from it upon adjoining lots, and flow upon them in a difl"erent way and in larger quantities than before, and yet no liability would arise. If it were otherwise, it would be quite difficult to improve city lots and build up a city. Each owner may improve his lot and protect it from surface water. He may not collect such water into a channel, and throw it upon his neighbor's lot. But he is not bound, for his neighbor's protection, to collect the surface water which falls upon his lot, and lead it into a sewer: Vamlerwiele v. Taylor, 65 N. Y. 341; Gannon v. Ilargadon, 10 Allen, 106; 87 Am. Dec. 625": Lynch v. Mayor of New York, 76 N. Y. 60; 32 Am. Rep. 271. These views are in harmony with those pro- nounced in many other courts in which the question was necessarily involved: Imler v. Springfield, 55 Mo. 119; 17 Am. Rep. 645; ClaiJc v. Wilmington, 5 Harr. (Del.) 243; Flagg v. Worcester, 13 Gray, 601; Corcoran v. City of Benecia, 96 Cal. 1; 31 Am. St. Rep.; Waters v. Bay View, 61 Wis. 644; Henderson v. City, 32 Minn. 319; and are perhaps a logical consequence of many other cases, which, while not involving the question of damages resulting from surface waters, affirm the general principle that in no event can a municipality be held liable for consequential damages resulting from the exercise, without negligence on its part, of an authority confided to it by law: Wakefield v. Newell, 12 R. I. 75; 34 Am. Rep. 598; Smith v. Tripp, 13 R. I. 152; Gilfeather v. Council Blujfs, 69 Iowa, 310; Simmona v. City of 392 GoDDARD V. Inhabitants of Harpswell. [Maine, Camden, 26 Ark. 276; Dormnn v. Jacksonville, 13 Fla. 538; 7 Am. Rep, 253; Keasy v. Louisville, 4 Dana, 154; 29 Am. Dec. 395; C'ily of Delphi v. Evans, 36 Ind. 90; 12 Am. Rep. 12; Smith v. Corporation of Washington, 20 How. 135; Lee v. Minneapolis, 22 Minn. 13; Humes v. Mayor of Knoxville, 1 Humph. 403; 34 Am. Dec. 657; White v. Yazoo City, 27 Miss. 357; O'Connor V. Pittsburgh, 18 Pa. St. 187; Carr v. Northern Liberties, 35 Pa, St. 324; 78 Am. Dec. 342. la some instances the waters whose flow was arrested by the grading of a street had before that time been drawn off by depressions or ravines, and the contention was, that the city had become liable as for interference with a natural watercourse; but this liability was denied, unless the depression " in question had the proper qualities of, and constituted what is known in law as, a watercourse, as distinguished from a ravine, hollow, or other depression in land through which, in times of rains, heavy showers, and melting snows, the surface water is accustomed to escape. The term * watercourse ' is well defined. There must be a stream usually flowing in a particular direction, though it need not flow continually. It may sometimes be dry. It must flow in a definite channel, having a bed, sides, of banks, and usually discharge itself into some other stream or body of water. It must be something more than a mere surface drainage over the entire face of a tract of land, occa- sioned by unusual freshets or other extraordinary causes. It does not in- clude the water flowing in the hollows or ravines in land, which is the mere surface water from rain or melting snow, and is discharged through them from a higher to a lower level, but which at other times are destitute of water. Such hollows or ravines are not, in legal contemplation, water- courses: Shields v. Arndt, 4 N. J. Eq. 234; Luther v. Winnisimmet Co., 9 Cash. 171; Washburn on Easements, 209, 210": Hoyt v. City of Hudson, 27 Wis. 656; 9 Am. Rep. 473. On the other hand, there are cases which proceed upon the theory that while a city has the right to grade its streets, and is not answerable for in- juries resulting from a prudent exercise of that right, yet that it is negli- gence on its part for it to close up drains or gutters which have been used to protect lands from the accumulation of surface waters, and that where, by grading a street, it fills up such drains without providing others, it is guilty of negligence, and therefore liable for resulting damages: Smithy. City Coun- cil of Alexandria, 33 Gratt. 208; 36 Am. Rep. 788. We find a number of other cases which we are unable to reconcile with the general principle that munici- palities are not answerable for surface waters being held back or restrained upon lands from which, before the grading of the street, they escaped by nat- ural or other depressions. In most of these, some attempt had been made by means of culverts or other appliances to carry off the waters otherwise retained by the grade, and damages were recovered for the insufficiency of such appli- ances, or negligence in not keeping them in proper repair; and perhaps it may be truly said that the liability of the city was not founded upon its obstruction by grading the street, and thereby arresting the flow of surface waters, but upon its negligence in not keeping in proper repair culverts and sewers planned and constructed by it: Eoss v. Clinton, 46 Iowa, 606; 26 Am. Rep. 169; Aurora v. Gillett, 56 111. 132; Aurora v. Eeid, 57 111. 30; 11 Am. Rep. 1; Bloomington v. Brokato, 77 111. 194: Elgin v. Kimhall, 90 111. 356; Maguire v. Cartersville, 76 Ga. 84; Reid v. City of Atlanta, 73 Ga. 523. The general language employed by the court in City of Dixon v. Baker, 65 111. 518, 16 Am. Rep. 591, does not, it is true, place the decision on the ground of the insufficiency of the sewers, though it is clear from the opinion that such May, 1892.] Goddakd v. Inhabitants op Harpswell. odo was the real cause of the injury. The court here said: "This was an action of trespass on the case, brought against the city, to recover damages for flowing surface water upon the lot of plaintiflF, by the raising of the grade of the street and sidewalk. The proof shows that by the elevation of the grade of the street, on the part of the city, surface water flowed into the basement of the house of the plaintiff, and thereby the building was injured and the walls cracked. The broad ground is taken, that municipal corpora- tions are not liable for damages caused by such flowage of the surface water, tl)at the damages are incidental, and they are not liable for incidental dam- ages. Before the change of the grade, the building of the plaintiff was two feet above the grade, and the gutters carried off all the surface water. After the change, the water ran over the sidewalk and into the cellar of the plain- tiff. From the evidence, tliis might have been prevented by proper sewerage. If municipal corporations can raise the grade of streets at discretion, and not provide suitable gutters to carry off the surface water, and tlms overflow the lands abutting upon the streets with impunity, then the owners of lots in our towns and cities are entirely at the mercy of the authorities of the nm- nicipality. They may make the premises unliealtliful, or may compel the owners of the lots to incur great expense in raising the building to the grade established, or may wholly destroy the property for use. One owner of land has no right, by artiticial structures, to turn the surface water from his land upon the land of another, when, without such structures, the flowage never would have taken place. The same principle which controls individuals must control as between towns and cities and individual proprietors. Mu- nicii)alities hold the streets of towns in trust for the public, and may regu- hite and establish their grade, but this must be done so as to do no serious injury to owners of abutting lots. In A^evins v. City of Peoria, 41 111. 502, 81) Am. Dec. 392, this question was fully considered and the authorities re- viewed. It was there held that while a city has the absolute control over the grade of its streets, and may elevate or lower it at pleasure, yet it has no more power over the streets than a private individual has over his own land, and that its liability for injury to the property of another is the same as that of the private individual. It was further held that if, in the elevation of its streets, it turned water upon the grountl and into the cellar of one of its citizens, it must respond in damages for the injury thus occasioned. That case is decisive of the plaintiff's right in tliis case, and there was no error in giving the plaintiff's hrst instruction. Error is assigned upon the refusal of the court to instruct the jury, in behalf of the city, that it was not liable for injuries resulting from error in judgment of the common coun- cil as to the size of the sewers necessary for the passage of the surface water. The evidence is overv/helming that the sewers were insufficient, and the common council might and ought to have known the fact. The city did not exercise reasonable care in their construction, ami the instruction was properly refused": City of Dixon v. Baker, 65 111. 518; 16 Am. Rep. 591. Tlie Throwing of Surface Waters upon Lands, where they did not flow be- fore, or though upon lands where they before ran, at a different place, or with increased velocity, or in much greater quantities, presents a case sub- stantially different from the merely restraining of water by street embank- ments. When, as a result of the grading of a street, surface waters which before ran off upon the natural surface of the soil are collected togetlier in one channel and thrown upon the lands of a private proprietor, who is dam- aL,'ed thereby, he may recover com]>ensation therefor from the city: Young v. JlighwnjCoinmrs, 134 111. 509; n'hq'jilev. Fairharen, 6.3 Vt '221; Pyew City 394 GoDDARD V. Inhabitants of Harpswell. [Maine, of Mankato, 36 Minn. 373; 1 Am. St. Rep. 671; Nerins v. City of Peoria, 41 111. 502; 89 Am. Dec. 392; Follmann v. Manknto, 45 Minn. 457; Ashley v. Port Huron, 35 Mich. 296; 24 Am. Rep. 552; Miller v. Morristoivn, 47 N. J. Eq. 62; 48 N. J. Eq. 645; Seifert v. City of Brooklyn, 101 N. Y. 136; 54 Am. Rep. 664; Gilhson v. City of Charleston, 16 W. Va. 282; 37 Am. Rep. 763; Bitchina V. Mayor of Frosthurg, 68 Md. 100; 6 Am. St. Rep. 422; West Orange v. Field* 37 N. J. Eq. 600; 45 Am. Rep. 670; Field v. West Orange, 46 N. J. Eq. 183; Davis V. City ofCraufordsville, 1 1 9 Ind. 1 ; 12 Am. St. Rep. 36 1 ; Turner v. Dart- month, 13 Allen, 291; Young v. Leedom, 67 Pa. St. 351; Blake'y v. Devine, 36 Minn. 53. Hence where a city causes the grade of a street to be changed by cutting it down, whereby surface water which had collected in a pond or natural reservoir was released and carried upon the premises of the plain tifif, flooding his cellar and well, and otherwise damaging him, he was entitled to recover: Inman v. Tripp, 11 R. I. 520; 23 Am. Rep. 520; Pettigrew v. Village of Evansville, 25 Wis. 223; 3 Am. Rep. 50. The fact that waters were con- centrated by means of a culvert cannot sustain a recovery by a lot-owner upon whose lands they afterwards flowed, unless it appeared that by an in- crease in their quantity or force he suffered injury in excess of that he would have sustained had the waters been left in their natural condition: Noble V. St. Albans, 56 Vt. 522; Ridherford v. Village of Holley, 105 N. Y. 632. In Missouri we understood the decisions of the supreme court as de- claring that no liability can accrue against a city for increasing the flow of surface waters by means of grading a public street as long as the plan adopted is carried out without negligence or want of skill, and therefore that if it is a part of such plan that waters shall be concentrated and thrown iipon the lands of private proprietors, they are without legal redress: Lambar v. St. Lotus, 15 Mo. 610; St. Louis v. Gurno, 12 Mo. 414. Speaking of evidence offered in support of a claim for damages, and determining that it did not support such claim, the court said: "It not only tended to show, but con- clusively established, che fact that the work of grading and opening the said street in accordance with the plan was well and carefully, and not neg- ligently, done, and that the injury to plaintiff's lots was not occasioned by any careless or negligent execution of the work in grading and opening said street which the ordinance authorized, but resulted from an error of judg- ment on the part of the city council in ordering the opening of a street at a certain grade without providing, in the plan and specifications for doing the work, some method of drainage for the disposition of the surface water. The passage of the ordinance establishing the grade of said street, directing it to be opened according to the plan and specifications, was quasi judicial, and the city is not liable for consequential damages arising from a defect in the plan adopted, but can only be held liable for damages resulting from the negligent execution of the work done in compliance with such plan": Foster v. St. Louis, 71 Mo. 157. Few, if any, of the courts of this country at the present time concur with these views. Their inclination would rather be to affirm that the fact that the plan necessarily involved the invasion of private rights of property was an unanswerable reason for holding the municipality liable for its execution. Even the supreme court of Missouri, as we under- stand its most recent opinion, has receded from the position formerly taken by it upon this question. I:i Ryrhlicki v. City of St. Louis, 9S Mo. 497, 14 Am. St. Rep. 651, the plaintiff, in his opening statement in the trial court, declared that he expected to prove that he was the owner of certain lands in the city of St. Louis, on the north side of which was a block of land separati?! from plaintiff's land by Page Avenue; that in opening and grading curtain May, 1892.] Goddard v. Inhabitants of Harpswell. 395 streets, defendant diverted large quantities of surface water at the north line of the block referred to, and after conducting it by culverts and drains under the the road-bed of Page Avenue, discharged it upon plaintiff's prop- erty, by reason of which six acres of such property was turned into a morass, anlic works exonerated the municipality from negligence in its performance. " A municipal corporation," said that court, " may act through its mayor, through its common council, or its legislative department, by whatever name called, its superintendent of streets, commissioner of high- ways, or board of public works, provided the act is within the province committed to its charge. Nor can it, in principle, be of the slightest conse- quence by what means these several officers are placed in their position, — whether they are elected by the people of the municipality, or appointed by the President or a governor. The people are the recognized source of all authority, state and municipal, and to this authority it must come at last, whether immediately or by a circuitous process." Torts, Qeiwrally. — We have heretofore considered the liability of manici« pal corporations for negligence in the performance or non-performance of some corporate duty. We now wish to treat of their liability for torts of a more active and intentional character. Sometimes doubt has been expressed concerning the liability of municipal corporations for torts, but if any doubt upon this subject ever existed, its existence has long since ceased: Anthony V. Inlinhitants of Adams, 1 Met. 284; Seioall v. St. Paul, 20 Minn. 511; Allen V. Decatur, 23 111. 332; 76 Am. Dec. 692; Wilde v. New Orleans, 12 La. Ann. 15; Hunt v. Boonville, 65 Mo. 620; 27 Am. Rep. 299; Sheldon v. Kalamazoo, 24 Mich. 383; Ashley v. Port Huron, 35 Mich. 296; 24 Am. Rep. 552; Thayer v. City of Boston, 19 Pick. 511; 31 Am. Dec. 157. Whenever liability exists, it must necessarily be for the act of an officer or agent, for except through officers or agents, a municipality cannot act at all. In an action against a city for a tort it may defend with success, — 1. By showing that the act complained of was as to it ultra vires, and therefore, in contem- plation of law, could not have been its act; and 2, By proving that the officer or other person by whom it was done was not, in doing it, the agent of the city. Torts, Ultra Vires. — The defense of ultra vires exists when the act com« plained of as wrongful was wholly bej'ond the powers of the corporation, or in other words, wlien it was not possible for the corporation, under any cir- cumstance, to have authorized the doing of the act. Thus if a city, having no power to enact, under any circumstance, a valid ordinance giving a firm a monopoly of the slaughtering of animals, attempts to enact such ordinance, and its officers undertake to enforce it, no municipal liability can result: Oily of Chica(]0 v. Turner, 80 111. 420. A law which is void because it con- flicts with the constitution of the state, and a municipal ordinance which is void because the laws of the state do not permit the municipal authorities to enact and enforce it, stand upon the same ground, and any act done in tlie attempted enforcement of either is ultra vires, and the only liability re- sulting is against the persons who did or attempted to do it: Mayor of Albany V. Cunliff, 2 N. Y. 105; Worlpy v. Jiihalntants of Columbia, 88 Mo. 106; Brown V. City of Cape Girardeau, 90 Mo. 377; 59 Am. Rep. 28; Cuylerv. Rochester, 12 Wend. 165; Lemon v. Newton, 134 Mass. 476; Trammellv. Rusaellville, 34 Ark. 105; 36 Am. Rep. 1. Hence where the common council of a city, by its vote, directed that a dam be erected on the land of a private citizen for the purpose of flooding it, and thereby abating an alleged nuisance, and such dam was 406 GoDDARD V. Inhabitants of Harpswell. [Maine, accordingly built, it was held that the municipality was not liable for the consequent damages to the owner of the land, because "the acts done hav- ing been beyond the authority and power of the city to do, the city cannot be held answerable in damages for that which was done under the supposed authority of illegal and void votes": Cavaitaijh v. Boston, 139 Mass. 4ii6; 52 Am. Rep. 716; Seek v. Deering, 79 Me. 343; 1 Am. St. Rep. 314. If the officers or employees of a municipality, whether pursuant to a vote of its common council or not, engage in an act which the latter had no power to authorize, they are not, while so engaged, the representatives of the munici- pality, and it is therefore not liable for tlieir negligence or misconduct. Tlierefore, if the fire department is directed to participate in a celebration when there is no authority to so direct it, or a vote to raise a committee to celeljrate a holiday is so taken as to be void, no municipal liability can result from the misconduct or negligence of persons acting under the void order of the city council: Smith v. City of Rochester, 76 N. Y. 506; Morrison v. City of Lawrence, 98 Mass. 219. Where an act, because it is ultra vireSf cannot be authorized in advance of the doing of it, it is impossible to ratify it, and therefore the liability of a city cannot be sustained for injuries growing out of such act by showing that it was ratified subsequently to its commission: Horn V. Baltimore, 30 Md. 218. There are a few cases apparently in conflict with the principles we have stated. Thus municipalities undertaking, by the resolutions of their common councils, to authorize the placing and keeping of obstructions or dangerous objects in a public street have been held liable for resulting damages: Gohenv. Mayor of New York, 113N. Y. 5^2; 10 Am. St. Rep. 506; Stanley v. Davenport, 54 Iowa, 463; 37 Am. Rep. 216. But these decisions are defensible on the ground that it was the duty of the municipality to keep the streets in a safe condition, and it was equally answerable for their con- dition after notice thereof, whether it attempted to license their obstruction or not. A case decided in Georgia we are unable to reconcile with the other authorities upon this subject. It was an action against a city, the complaint in which alleged that the mayor and common council had passed a resolution declaring that plaintififs were itinerant and non-resident speculators and traders within the meaning of a certain tax ordinance of the city, and had directed the clerk of the city council to issue execution to collect taxes claimed to be due from plaintiffs as such non-residents, and that the purpose of such resolution was to protect merchants of the city from competition in business, and that execution was accordingly issued and levied upon plain- tiffs' property. There was no claim that in passing the resolution the com- mon council were acting within the limits of any authority delegated to them, and yet it was held that the complaint stated a cause of action. The court, however, in its opinion, did not consider any question except that of the right of the plaintiffs "to transact business in Atlanta without any hos- tile proceedings against them founded upon the mere fact of non-residence ": Oould V. Atlanta, 60 Ga. 164. Unlawful Acts Which are not Ultra Vires. — Tf the wrongful act in ques. tion is one which the municipality had the right to do under some circum- stances or in some manner, then it is not ultra vires, though done in different circumstances or in a different manner; and if authorized by the city, a recov- ery may be had at the instance of one injured thereby, as where a road is authorized to be constructed in a particular manner and out of designated materials, but it is constructed in a different mode and with other materials: Pekin v. Newell, 26 111. 320; 79 Am. Dec. 378. If a city has invaded the rights of private proprietors by a trespass upon their property or by any May, 1892.] Goddard v. Inhabitants of Harpswell. 407 other actionable tort, it is not always, nor usually, a sufficient answer to say that if the act was wrongful and unlawful, then the city was not authorized to do it, and it is not the act of the city. If such were the case, municipal liability for tort could not exist. If a municipality, acting by its common council or other governing boJy, determines to do an act, and commits the duty of doing it to some officer or agent, and the act was one which it had power to authorize, he and the niunicinality occupy substantially the rela- tion of principal and agent, and hence it is answerable at least for such torts aa he commits while acting in good faith, in the exercise of the power confided to him: Soulard v. St. Louis, 36 Mo. 546. " Wlien officers of a town, acting as its agents, do a tortious act with an honest view to obtain \or the public Bome lawful benefit or advantage, reason and justice require that the town in its corporate capacity should be liable to make good the damage sustained by an individual in consequence of the acts thus done. The contrary doc- trine would be injurious to the person damaged and to the agents employed by the town. It would also be injurious to the town, by paralyzing the energies of such agents or officers, as they would be likely to refuse to act when prompt action is important": Hdwki v. Charlemont, 107 Mass. 417. Therefore a municipality is liable if it auchorizes its selectmen to repair a highway, and in so doing they enter upon private property witiiout the con- Bent of the owner, and take away stone to be used in repairing a bridge: Hawks V. Charlemont, 107 Mass. 417; or if a warden or other officer, acting under a vote of the burgesses or town council requiring him to remove an encroachment from a public highway, causes a fence, which he in good faith believed to be on such highway, to be removed therefrom, when it was not thereupon, nor was it an encroachment: Weed v. Greenwich, 45 Conn. 170; Woodcock V. City of Calais, 66 Me. 234; Lee v. Sandy Hill, 40 N. Y. 442; Sheldon v. Kalamazoo, 24 Mich. 383. And whenever a city directs a street to be opened, or other public work to be done, and sends a force to do it, and in so doing enters upon private property, witiiout first acquiring the right to do so by proceedings in the exercise of the right of eminent domain, or by some other appropriate proceeding, it is guilty of a trespass for which it must respond in damages: HUdrethv. Lowell, 11 Gray, 349; Hickersonv. Mexico, 58 Mo. 61; Soitlard v. City of St. Louis, 36 Mo. 546; Allen v. City of Decatur, 23 111. 332; 76 Am. Dec. 692; Sewellv. St. Paul, 20 Minn. 511. The result of the authorities upon this subject was thus forcibly stated by Judge Cooley: "It is very manifest from this reference to authorities that they recognize in municipal corporations no exemption from responsibility, where the injury an intlividual has received iu a direct injury accomplished by a corporate act which is in the nature of a trespass upon him. The right of an individual to the occupation ami enjoyment of his premises is exclu- sive, and the public authorities have no more liberty to trespass upon it than has a private individual. If the corporation send people with picks and spades to cut a street through it without first acquiring the right of way, it is liable for a tort; but it is no more liable under such circumstances than it ia when it pours upon its land a tloo I of water by a public sewer so con- Btructed that the flooding must be a necessary result. The one is no more nnjustifi ible, and no more an actionable wrong, than the other. Each is a trespass, and in each instance the city exceeds its lawful jurisdiction": Ash- ley V. Port Huron, 35 Mich. 296; 24 Am. Rep. 552; Rhode.i v. City of Cleve- land, 10 Ohio, 159; 36 Am. Dec. 82; Ooodloer. City of Cincinhati, 4 Ohio, 500; 22 Am. Dec. 764. Hence where a city, authorized to change the grade of a street upon certain contingencies only, and upon making compensation to 408 GoDDARD V. Inhabitants of Harpswell. [Maine, any lot-owner damaged thereby, proceeds to change the grade, and to grade the street accordingly, in the absence of such a contingency, and without com- plying with the requirements of the law or compensating the owner, he may recover damages from the city by an appropriate action: Trustees of Diocese of Iowa V. City of Anamosa, 76 Iowa, 538. A city, acting by its agents, pur- chased certain broken rock, and entered upon the land where it was lying and removed it. The vendor of the city, however, had no title to the prop- erty, and hence an action was brought against the city by the true owner of the rock. It was argued for the defendant " that as the city had no au- thority under its charter to commit a trespass, or to order the commission of a trespass, an order to its servants to do an act which, when performed, con- stituted a trespass, would not make the city liable, as both the order and the act would be tiltra vnres." To this the court replied: "This argument fails to distinguish between the doing of an act in its nature unlawful or prohibited, and the doing of an act in its nature lawful and authorized at an unauthorized place or in an unlawful manner. On the defendant's theory, municipal corporations could never be held liable for negligent or tortious acta of their agents and servants. As they have no authority to do wrong, and cannot authorize their officers or servants to do wrong, therefore it is argued they can never be held liable for injuries inflicted by them. This is an unwholesome doctrine, and is not supported either by reason or authority ": Hunt v. Boonville, 65 Mo. 620; 27 Am. Rep. 299. Another . case in the same state is somewhat more extreme in character. A city being authorized to purchase a pest-house, its physician and police took possession of plaintiff's premises without authority, and used them for the purposes of the pest-house for the period of two months, after which an action was brought for the trespass involved in this seizure and use of the property. The defendant contended that as it was not authorized to acquire property for use as a pest-house except by purchase, its occupancy of plaintiff's prem- ises was ultra vires. The court replied that as the property was taken for a purpose sanctioned by the charter, and as everything was done in accord- ance with the charter, except the acquisition of the title, the act was not ultra vires in such a sense as excluded municipal liability: Dooley v. City of Kansas, 82 Mo. 444; 52 Am. Rep. 380; Sheldon v. Kalamazoo, 24 Mich. 383. Wrongful Acts not Authorized by the Municipality. — In all the cases cited in the preceding paragraph, the wrongful acts were committed under such circumstances as showed them to have been autliorized or ratified by the city council, and they were therefore, to all intents and purposes, the acts of the city, done in good faith under a claim of right. We are now to consider that class of cases in which it appears that the wrongful act was committed by an officer of the city acting in good faith, but nevertheless not authorized by law to do what he did, nor authorized by the city itself, unless the fact that he was its officer, acting in good faith, may be treated as equivalent to such aiithorization. If the common council deputes the performance of certain work to specified persons, whether they happen to be officers of the corpora- tion or not, and those persons in doing such work, but acting in good faith, commit a trespass upon the lands of a private proprietor, they may still be regarded as the agents of the city, and it is responsible for the trespass, though it did not authorize the particular unlawful act in controversy: Plat- ter v. Seymour, 86 Ind. 323; Gonniffv. San Francisco, 67 Cal. 45; Waldron v. Haverhill, 143 Mass. 582. When an officer of a municipality has no other authority than that intrusted to him by law, and he acts beyond that author- ity, and commits a tort, whereby a citizen is injured either in person or May, 1892.] Goddard v. Inhabitants of Harpswell. 409 property, the tort is the act of the ofScer only, and ordinarily no recovery of damages can be had, except against him: Board of Trustees v. Sckroeder, 58 111. 353; Cooney v. Town of Hartland, 95 111. 516; Horn v. Mayor of Balti' more, 30 Md. 218; Sherman v. City of Grenada, 51 Miss. 186; Danovan v. Jones, 36 N. H. 248; New York etc. Co. v. City of Brooklyn, 71 N. Y. 580; Donnelly v. Tripp, 12 R. I. 97; Pierce v. Tripp, 13 R. I. 181; Rowland v. City of Gallatin, 75 Mo. 134; 42 Am. Rep. 395; Walling v. Shreceport, 5 La. Ann. 660; 52 Am. Dec. 608. The rule upon this subject was thus formu- lated by Chief Justice Shaw in a leading case: "As a general rule, the cor- poration is not responsible for the unauthorized and unlawful acts of its oflBcers, though done colore officii; it must further appear that they were ex- pressly authorized to do the acts by the city government, or that they were done bona fide in pursuance of a general authority to act for the city on the subject to which they relate, or that, in either case, the act was adopted and ratified by the corporation": Tkayerv. Bo-^ton, 19 Pick. 511; 31 Am. Dec. 157; Mitchell v. Rockland, 41 Me. 363; 63 Am. Dec. 252; Casp,iry v. Port- land, 19 Or. 496; 20 Am. St. Rep. 842. Therefore, if the mayor of a city, having no power to contract for the removal of dead animals, entei's into a contract for the removal of such animals, the municipality cannot be held liable for damages arising from the depositing by the contractor' of carcasses upon private property: Hihidorfw. City of St. Louis, 45 Mo. 94; 100 Am. Dec. 352. In attempting to specify the cases in which municipalities are not answer- able for the torts of their officers, Judge Shaw, in the extract quoted in the last paragraph, mentioned as among the contingencies in which cities are lia- ble, those in which torts are committed by their officers or agents, acting bona fide, "in pursuance of a general authority to act for the city on the sub- ject to which they relate," This limitation, while perhaps not inaccurately expressed, is, we think, misleading, because it is likely to create the impres- sion that every officer, as to matters falling within his department, acts in pursuance of a general authority to act for the city; or in other words, that if a street superintendent does anything in relation to public streets, or a tax Collector in relation to the collection of taxes, the city must be answer- able therefor, because of the general authority over the streets in the one^ case and the collection of taxes in the other. Such is not the law, nor is it within the meaning of the learned jurist we have quoted. For unless by law or the action of the city discretion is vested in the officer or agent to determine how he shall act, his act, thout^'h apparently falling within his department, is but his personal act, for which he alone is answerable if it is contrary to law. We have already shown that officers of the street depart- ment have no authority to go upon private property and take material there- from, though for the purpose of using it upon the public streets, and that therefore such officers alone are liable: Rowland v. Gallatin, 75 Mo. 134; 42 Am. Rep. 395. But if the city, by a resolution of its common council, had authorized them to do what they did, the result would be otherwise: Buffalo etc. T. Co. V. Buffalo, 58 N. Y. 639. The clerk of a common council may by law be vested with authority to issue warrants to persons for such sums as may be allowed by such council or by law, but this authority can in no way in- culpate the city in or make it liable fur his wrongful act in issuing warrants for other sums, or in altering them after they are issued: Chandler v. Bay St, Louis, 57 Miss. 327. If an officer or employee is chargetl by law or the mu- nicipality with tlie duty of serving writs or warrants under which, in proper cases, he is entitled to seize property or arrest persons, his seizure or arrest. 410 GoDDARD V. Inhabitants of Harpswell. [Maine, without authority and .without the previous direction or subsequent ratifica- tion of the city, does not create any liability against it: Fox v. Northern Lib- erties, 3 Watts & S. 103; Everson v. Syracuse, 100 N. Y. 577; Corsicana v. White, 57 Tex. 382; Thomas v. Grafton, 34 W. Va. 282; 26 Am. St. Rep. 924. So for the acta of an assessor or collector of taxes, as where the latter levies upon property not subject to levy under his warrant, the municipality is not answerable, unless it directed him to do what he did: Lorillard v. Monroe, 11 N. Y. 392; 62 Am. Dec. 120; Wallace v. Mennsha, 48 Wis. 79; 33 Am. Rep. 804. If, however, the common council of the city undertakes to make an assessment for damages and benefits in a case where they are authorized to do so, but the assessment is void for some reason, and the collector in what he does is, in effect, acting by the authority of the city, then it is answerable for his acts: Horton v. Newell, R. I. Jan. 2, 1892; 17 R. I.; Durkee v, Kenosha, 59 Wis. 123; 48 Am. Rep. 480; HoweU v. Buffalo, 15 N. Y. 512; Bank of Commonioealih V. New York, 43 N. Y. 184. If, on the other hand, certain officers are by law authorized or required to abate nuisances, and they proceed in good faith to abate an alleged nuisance, any person injured by their acts may recover of the municipality, if he can show that no nuisance in fact existed, because the offi- cfers in what they did were acting under a general authority to act for the city: Americus v. Mitchell, 79 Ga. 807. So where the officers of the executive de- partment of a city prevented the laying of a railway track under a claim that the time allowed by the ordinance within which to lay it had expired, and it was claimed that the city was not answerable for their acts because they were not authorized, the court said: " We recognize the doctrine to be- that the unauthorized acts of municipal officers are regarded as acts of the municipal corporation, provided the acts are performed by that branch of the municipal government which is invested with jurisdiction to act for the corporation upon the subject to which the particular acts relate. In the present case, the mayor, the superintendent of police, and the superintendent of streets were engaged in doing the acts which prevented the railroad com- pany from constructing its road. The mayor is the general executive officer of the city. He and others under his control are the executive department of the city, and we cannot doubt that the city was by law liable for those wrongful acts done by the officers of the executive department within the sphere of their authority, though not authorized by the common council to do them, as by its (the city's) own acts": Chicago v. Chicago etc. H. B. Co., 105 111. 73. This language was probably a correct statement of the law ap- plicable to the particular case to which the court applied it, but the inference which might be drawn from it — that the municipality is, as a general rule, liable for the wrongful acts or omissions of its officers — is not at all true. We have already called attention to the fact that a municipality is not answerable for the performance of duties confided to it or its officers of a governmental, discretionary character, for the performance of which neither the state nor its officers would have been answerable had the duty remained with them, and its performance not been delegated to the municipality or its officers. Besides these duties are many others devolved upon the officers of a munici- pality for the performance of which it is not answerable. Thus while the law may require a city treasurer to keep certain moneys, or a city clerk or auditor to keep certain accounts and records, or a city surveyor to mak* surveys, the city is not answerable for the default of either in performing his duties. The reason is, that he is not an agent of the city, nor carrying out its orders, nor doing anything which the law requires it to do. If a duty is one which the law requires the city to perform, and it ia not a public May, 1892.] Goddard i'. Inhabitants of Harpswjcll. 411 governmental duty, then the city ia answerable for the manner of its per- formance, and for such injuries as result from its omission or its negligent performance. If, on the other hand, the law requires some officer to per- from a duty, then its omission or negligent performance is a matter for which he alone is answerable: Maxmilian v. Mayor, 62 N. Y. 160; 20 Am. Rep. 468. "The officers of a city are quasi civil officers of the government, although appointed by the corporation. They are personally liable for their malfeasance or non-feasance in office, but for neither is the corporation re- sponsible. Omissions of a duty imposed upon them by law, productive of prejudice to an individual, is not a corporate injury. The duty of the officers of the city is prescribed by the statute, from which, also, they derive their power. The corporation appoints them to office, but does not in that act sanction their official delinquencies nor render itself liable for their official misconduct ": Prather v. City of Lexington, 13 B. Mon. 559; 56 Am. Dec. 585. Even with respect to matters for which the corporation is liable for the negligence of its officers, such liability cannot be enhanced by showing that they were actuated by malice: City Council v. Gilmer, 33 Ala. 116; 70 Am. Dec. 562. Whenever the duty of keeping in repair the highways is not regarded as a municipal duty which the city or town must, at its peril, per- form, it is not liable for the neglect of its highway surveyors or overseers of highways: Pratt v. Weymouth, 147 Mass. 245; 9 Am. St. Rep. 691; Goddard v. Ilarpswell, 84 Me. 499; ante, p. 373 (the principal case); People v. Board etc. o/Esoptis, 74 N. Y. 310. Contractors, Liability for. — When a municipality contracts for the doing of a work, and injury results to private persons from the wrongful or negli- gent act or acts of the contractor or his employees, and the city is sought to be made liable for such injury, the inquiry should be, — 1. Was the work one which it was the duty of the city to do, and for negligent acts in the doing of which it must necessarily be answerable ? and 2. If the work was not of this class, were the circumstances under which it was done and the control of the city over it by the terms of the contract or by law such that whatever was done must be regarded as its act accomplished by its contractor acting as its agent? As we have already shown, certain duties are by many of the courts regarded as private municipal duties, the negligent performance or omission of which is at the peril of the municipality. The principal of these is keeping in safe condition autl repair the public streets. It seems obvious to us that a municipality cannot escape liability with respect to these duties by contracting for their performance by some one who is not an officer of the city. It cannot contract away its liability, and thus delegate its respon- sibility to another, so that a person injured by his putting or leaving a street in a dangerous condition must look to him alone for recompense. Tlius where a city owing to the public the duty of keeping its streets in a safe condition for travel contracted for the construction of a sewer in one of such streets, and the contractor, in making an excavation for the sewer, permitted it to reuiain open and unguarded at night without any light or other signal of danger, and a person using due care fell into the excavation and was in- jured, and a city denies its lial)ility on the ground that the work was exe- cuted under a contract which contained no stipulation that the contractor should take any precautions to prevent injury to travelers, but the court de- cided that "although the work may be let out by contract, the corporation still remains charged with the care and control of the streets in which the improvement is carried on," and therefore that the city was liable. Some stress was, however, in the opinion of the court, placed upon the fact that 412 GoDDARD V. Inhabitants of Harpswell. [Maine, the work was such that its performance necessarily left the street unsafe for travelers at night: Storrs v. City of Utica, 17 N. Y. 104; 72 Am. Dec. 437. See also Water Company v. Ware, 16 Wall. 566; Bobbins v. Chicago, 4 WalL 657. Nor is it material in such case that the municipality provided in its contract that the contractor should take such precautions as would have prevented injury to persons using the street had he complied with his agree- ment: McAlii'iter v. City of Albany, 18 Or. 426. The decided weight of au- thority at the present time is to the effect that where it ia the duty of the municipality to keep its streets in safe condition for travel, it must respond in damages to any person injured hy the streets being left in an unsafe or dangerous condition, though they were so left through the act or neglect of an independent contractor, or of his servants or agents over whom it had no direct control: Mayor etc, of Baltimore v. O'Donnell, 53 Md. 110; 36 Am. Rep. 395; Mayor of Birmingham v. McCary, 84 Ala. 469; Nashville v. Brown, 9 Heisk, 1; 24 Am. Rep. 289; Logansport v. Dick, 70 Ind. 65; 36 Am. Rep. 166; St. Paul V. Seitz, 3 Mum. 297; 74 Am. Dec. 753; Circleville v. Neuding, 41 Ohio St. 4G5; Wilson v. Wheeling, 19 W. Va. 323; 42 Am. Rep. 780; Dillon on Mu- nicipal Corporations, 4th ed., sec. 1027. In a few of the states the rule as we have stated it is not recognized, and the contractor alone is answerable for his negligence in leaving the streets in a dangerous condition, where the city reserves no control over him and his work, other than the right to have done it according to the plans and specifications: Barry v. St. Louis, 17 Mo. 121; Painter v. Pittsburgh, 46 Pa. St. 213; City of Erie v. Caulkins, 85 Pa. St. 247; 27 Am. Rep. 642. If an injury occurred, not from the condition in which the street is left by the contractor, but by his doing, while engaged in the performance of his contract, some act in a negligent manner, then the au- thorities are more equally divided concerning the liability of the city. Thus if he blasts rocks without giving warning of danger, and a person using a street in the vicinity is struck by a fragment of such rock, some of the courts affirm [Logansport v. Dick, 70 Ind. 65; 36 Am. Rep. 166) and others deny {Blumb V. Kansas, 84 Mo. 112; 54 Am. Rep. 87; Herrington v, Lansing' burgh, 110 N. Y. 145; 6 Am. St. Rep. 348) the liability of the city, while others make the liability depend on whether or not the work for which it contracted was such that in the doing of it blasting was necessary, holding that liability exists if the blasting was a necessary consequence of the doing of the work according to the contract: Joliet v. Harwood, 86 111. 110; 29 Am. Rep. 17. Where the injury for which recovery is sought resulted from the act or neglect of a contractor, and does not consist in the leaving of the street or other public place in an unsafe or dangerous condition, nor in the doing of work which, if done according to the contract, ia necessarily and intrinsically dangerous, than the liability of the city exists only when it occupies with the contractor the relation of principal and agent. Thus if it retains full control over the mode and manner of performing the work, or if the wrong or injury was a necessary consequence of the work, or occurred in doing something which the contract gave the contractor a right to do, then the municipality must be regarded as itself guilty, and held answerable ac- cordingly: Harper v. City of Milwaukee, 30 Wis. 375; Cincinnati v. Stone, 5 Oliio St. 38; Nevins v. Peoria, 41 111. 502; 89 Am. Dec. 392. Hence if a con- tract provides that as part of the consideration for doing the work, the con- tractor may receive and use all stone in a street, and he accordingly takes and uses such stone, when it belonged to the owner of the fee of the street, the latter may recover of the city therefor: Hick v. Minneapolis, 37 Minn. 423; 5 Am. St. Rep. 861. If the work which the municipality employs the Aug. 1892.] Grotton v. Glidden. 413 contractor to do is "intrinsically dangerous, however skillfully performed, then a municipality, like any other employer, is responsible for damages in- flicted in the doing of the work: Blake v. Ferris, 5 N. Y. 48; 55 Am. Dec. 304; Erie v. Calkins, 85 Pa. St. 187; 27 Am. Rep, 642; Dillon on Municipal Corporations, sees. 1029, 1030. "But employers not personally giving direc- tions respecting the manner of the work, but contracting with a third person to do it, are not liable for a wrongful or negligent act in the performance of the contract, if what was agreed to be done was lawful, and does not consti- tute a nuisance, or is not intrinsically dangerous ": Dillon on Municipal Cor- porations, sec. 1029; HerringUn v. Village q^ Lanaingburgh, 110 N. Y. 145; « Am. St. Rep. 348. Grotton v. Gliddeit. [84 Maink, 689.] PiOHTiNO, LiATiTLiTT FOR INJURIES INFLICTED IN. — If two persons volun- tarily engage in a fight, either may maintain an action against the other to recover damages for injuries received. The fact that tbo fight was voluntary is admissible only in mitigation of damages. H. Bliss, Jr., and W. A. Fogler, for the plaintiflEL L. M. Staples, for the defendant. Walton, J. This is an action to recover damages for an assault and battery. The plaintiflF has obtained a verdict for fifty dollars, and the case is before the law court on motion and exceptions by the defendant. The evidence satisfies us that the plaintiflf's injuries were received while he and the defendant were engaged in a volun- tary fight. The defendant contends that he acted only in self-defense. But the evidence satisfies us that the fight was voluntary on the part of both parties. This brings us to the question whether, if two persons engage voluntarily in a fight, either can maintain an action against the other to recover damages for the injuries he may receive. We think he can. It seems to be settled law that each may maintain an action against the other. It is familiar law that each may be pun- ished criminally. And it seems to be equally well settled that, by the rules of the common law, each may have an ac- tion against the other and recover full damages for all the injuries he received. The fact that the fight was voluntary is admissible in evidence, as are many other facts, to keep down the amount of the punitive damages, but not to reduce the actual damages. In Boulter v. Clark, cited in Bull. N. P. 16, the court held i 4 i AMERICAN STATE liEPOKTS, Vn[,. XX \1, P\(;i ■ ■ (iMl. JN RE HESS WILL. [4S Miw V.I -., :.IM. I Undue influence. ALTOONA SEC. XA'r. liK. r. DUNN. jI.M I'i'XN ■'■js. I Accommodation Notes. March, 1892.] In re Hess's Will. 665 • fraudulent disposition of property, must show that he was a creditor at the time that the act was done, and that it was in fraud of his rights: Stone v. Myers, 9 Minn. 303; 86 Am. Dec. 104, and note; Reid v. Oray, 37 Pa. St. 508; 78 Am. Dec. 444. A conveyance is not void as against subsequent creditors unless fraudulent in fact, — that is, made with a view to future debts: Horny. Volcano Water Co., 13 Cal. 62; 73 Am. Dec. 569, and note; Inhabitants of Pelham v. Aldrick, 8 Gray, 515; 69 Am. Dec. 266, and note; BullM v. Taylor, 34 Miss. 708; 69 Am. Dec. 412, and note; Nicholas v. Ward, 1 Head, 323; 73 Am. Dec. 177; Cook v. Johnson, 12 N. J. Eq. 51; 72 Am. Dec. 381, and note; Bewick v. Muir, 83 Cal. 368. See also Rollins v. Shaver Wagon etc. Co., 80 Iowa, 380; 20 Am. St. Rep. 427. In rb Hess's Will. [48 Minnesota, 504.] Wills — Undue Influence. — Circumstances Relied upon to Prove Un- due Influence must be such as, taken together, point unmistakably to the fact that the mind of the testator was subjected to that of some other person, so that his will is that of the latter, and not of the former. Wills. — Burden of Proving Fraud or Undue Influence rests upon the contestants of the will. Wills — Undue Influence. — While evidence of declarations of a testa- tor, made subsequent to the execution of his will, may be received for the purpose of showing the extent and effect of the undue influence claimed to have been exercised over him, yet if the evidence, indepen- dent and exclusive of his declarations, does not satisfy the jury that un- due influence was used in procuring the will, they must answer the question of undue influence in the negative. The evidence of undue in- fluence must be other than that which proceeds from the testator's own mouth after the will was made. Wills. — Undue Influence is not Established by the fact that there were motive and opportunity. It must further appear that the influ- ence was exercised, and that its effect was to destroy the free agency of the testator, and to control the disposition of his property under the will. Wills — Undue Influence. — The Influences Resulting in Favor of Persons Who are Nearest the testator in respect and affection, or by reason of intimate social or domestic relations, cannot be regarded as undue. Wills. — Undue Influence cannot be Presumed from the mere fact that the provisions of the will are much more favorable to some of the bene- ficiaries than to others. Lloyd Barber, for the proponents. Keyes and Brown, for the contestants. Vanderburgh, J. Timothy Hess, late of Winona County, died testate, in December, 1889, leaving him surviving five children, James Hess, Mrs. Ella Dearborn, Mrs. Mary Foster, 666 In rk Hess's Will. [Minu. Mrs. Emma Ryan, and Cornelius Hess. He was upwards of seventy years old. His will was executed September 24, 1888. In this will, James Hess and Mrs. Ella Dearborn were named executors, and legacies of fifty dollars each, only, were left to Mrs. Foster, Mrs. Ryan, and Cornelius Hess, a legacy of five hundred dollars to George Ford, a son of Mrs. Dearborn, and all the rest and residue of the estate of the deceased was given and devised to the executors, James Hess and Mrs. Dearborn, share and share alike. The estimated value of the estate was about five thousand dollars. The validity of this will is con- tested by Mrs. Foster and Mrs. Ryan and Cornelius Hess, who alleged that the* same was procured to be executed through the fraud of James Hess and Mrs. Dearborn, and constraint and undue influence by them executed and exer- cised over the mind of the testator at the time of the execu- tion thereof. On appeal from the order and judgment of the probate court, the issue of fraud and undue influence was tried by jury in the district court of Winona County, and a verdict thereon rendered in favor of the contestants. One of the principal assignments of error is, that the find- ing and verdict of the jury are not justified by the evidence. It is contended by the proponents that there was no evidence of fraud or undue influence in the case warranting the sub- mission of the question to the jury. It is not necessary, in considering this assignment of error, to review the evidence in extenso, or to make special reference to the testimony of the several witnesses. It will be sufficient to refer to such parts of it as may be necessary to show the basis of our conclusions upon this question. What is and is not undue influence has been considered and declared in our former decisions, and we need do little more than refer to them here: In re Storer^s Will, 28 Minn.ll; Nelson's Will, 39 Minn. 205-208; Mitchell v. Mitch- ell, 43 Minn. 73. It is said, in In re Storer's Will, 28 Minn. 11, " From the nature of the case, the evidence of undue influence will be mainly circumstantial. It is not usually exercised openly, in the presence of others, so that it can be directly proved. But the circumstances relied on to show it must be such as, taken together, point unmistakably to the fact that the mind of the testator was subjected to that of some other person, so that the will is that of the latter, and not of the former." But the burden of proof rests upon the contestants to establish the existence of fraud or undue influence; and I March, 1892.] In re Hess's Will. 667 that, we are obliged to hold, after a very careful and thorough consideration of the evidence in this case, they failed to do. Evidence was received, on the trial, of the declarations of the testator subsequent to the execution of the will, for the pur- pose of showing the extent and effect of the undue influence claimed to have been exercised over him when the will was made; but the court correctly charged the jury that if tho evidence, independent and exclusive of the testator's declara- tions, did not satisfy them that undue influence was used in procuring the making of the will, they must answer the question of undue influence in the negative. And this must, of course, be so; otherwise the fact would be permitted to be proved by such declarations, though not part of the res gestae. The evi- dence of undue influence must be other than that which pro- ceeds from the testator's own mouth after a will is made. And in this case the evidence fails to show, apart from such declara- tions, that there had been either such pressing solicitations or fraudulent practices on the part of the proponents as to amount to moral coercion of the testator, not only affecting his judg- ment, but overriding his free agency also. Indeed, with the exception of the testimony of the witnesses to the will of what transpired at the time it was drawn and executed, there is no evidence of any importance on the main issue. It is not enough that there be motive and opportunity, as the evidence undoubtedly tends to show there were in this case, but the influence must be exercised and take effect so as to destroy the free agency of the testator, and control the disposition of the property under the will when it is made. Unless the influence of these beneficiaries was unfairly and unlawfully executed, so as to dominate his will at the time, it is not material that tliey were interested in the will, or had better opportunities for solicitation or persuasion than the contest- ants. Nor is it surprising that a testator should favor those who are nearest to him in respect and affection, or by reason of intimate social or domestic relations. The influences grow- ing out of such causes must be allowed to have their natural and legitimate effect upon the mind of the testator, so that, if he chooses to make unwise and apparently unjust discrim- ination among those who are the natural objects of his bounty, he is at liberty to do so; for wlicn he comes to make his will, he is entitled to distribute his property as he pleases, provided only that, in the exercise of this right, his mind is under no such constraint or moral coercion as to interfere with his free €68 In re Hess's Will. [Minn. agency: Mitchell v. Mitchell, 43 Minn. 73. The principal actors in this contest are Mrs. Dearborn and Mrs. Foster, who is the chief contestant. The record shows, we think, quite clearly that the testator was previously dissatisfied with the conduct and social relations of Mrs. Ryan and Mrs. Foster. And though he had not forgotten that Mrs. Foster had, years before, rendered him valuable service in his household after the decease of his wife, yet he was displeased at her marriage, and feared and believed that any property which she might receive would be squandered. And we gather from the record sufficient evidence, we think, to warrant the belief that there were grounds for such dissatisfaction on the part of the testator. As respects the specific charge of fraud growing out of the alleged representations of Mrs. Dearborn, we dismiss it by say- ing that it is not sustained by the evidence; nor does the record present a much stronger case of undue influence. The testator had made his home with his son, James, on the farm of the latter, in Winona County, for several years before his death. Mrs. Dearborn lived in Chicago. A few days before the will was executed, Mrs. Dearborn came on a visit to her father, and remained till after its execution, when her father went with her to Chicago, but afterwards returned to Minnesota, and, before his death, visited Mrs. Foster in Wisconsin. As respects James, the evidence shows that he brought his father and sister to the magistrate when the will was made. His father also left with him the key to his box in a safety-vault, where the testator had deposited it before he went to Chicago. A witness also testifies that Mrs. Dearborn said, in presence of the magistrate and her father, that James did not want the contestants to be allowed any more than a nominal sum each, in the will, — "just enough to prevent breaking the will." There is no other evidence connecting him with the will. But Mrs. Dearborn was present when the will was made, and talked with other persons present, including the testator, about its provisions. The testator was of sound mind, and unquestionably competent to make a will, and a man of reso- lute and determined purpose. Searl (who drew the will) and his wife were the principal witnesses in the case. Searl swears that Mrs. Dearborn said, when they came in, that her father had come to have a will made, and she came to tell him how they wanted it made, or how their father wanted it made. Then he says the testator said he " wanted to make March, 1892.] In be Hess's Will. 669 his will, and told him how he wanted it made." Searl was greatly surprised at the inequality of the bequests in the will, and 80 expressed himself. This led to more or less conversa- tion, particularly in respect to further provision for Mrs. Fos- ter. It seems that tlie testator was not very communicative, but said, in substance, in reference to Mrs. Foster, that he would like to give her more, but her husband would squander it. The witness stated that the testator was not satisfied, and was uneasy and restless; but it distinctly appears that after all the suggestions were made, and notwithstanding all that was said, he firmly adhered to his purpose to make his will as he had at first indicated. The witness Searl states, on his cross-examination: " Mrs. Dearborn did not dictate the will to me. I drew the will as he dictated it. Q. And drew it just as he told you, I suppose? A. Yes, sir. Q. Now, then, you state that Mr. Hess appeared to be thoughtful, very silent, peculiar in his manner, do you? A. I did not see anything peculiar about him at that time. I may have expressed it in that way. I don't remember. Q. Do you now state that when you were talking over the will, he was decided in mak- ing it as ho dictated it? . A. Yes, sir; he was decided. Q. That the will should be as he dictated? A. Yes, sir; he did not want it changed, as he had arranged it in his mind." So that it is quite apparent that the testator was not influenced to change the nature of the bequests or the frame of the will by anything that occurred at the office of the magistrate, where it was drawn and executed. It was already " arranged in his mind." And there is nothing to show either that in forming his purpose or in adhering to it he was unduly in- fluenced, or that the instrument was not his will, as he under- stood and declared it to be. The witness further states that "after it was completed, he said it might not amount to any- thing." He knew that he could alter it afterwards if he de- sired to do so, and he was advised by some of the witnesses to do so, but did not. He visited his daughter Mrs. Foster during the summer before he died, and it appears that she understood that he had made his will, and knew that she was not favored, and she endeavored afterwards to induce him to change it, but could not prevail on him to do so. The more closely the case is examined in the light of all the testimony, the more clearly it appears that there is no Bufficient proof of facts from which undue influence can be inferred. The testator was a man of strongly marked charac- 670 In re Hess's Will. [Minn. teristics, of sound mind and determined will, abundantly able to protect himself, — a matter not to be overlooked in consid- ering a case of this kind; and as long as the law permits a disposition of property by will different from that which the statute makes in case of intestacy, the mere fact that the tes- tator makes an unequal, partial, or seemingly unjust division of his property is no ground for setting it aside. The provis- ions of the will may be considered, in connection with other evidence, in trying the question of undue influence, but is not itself evidence of such influence; and the court cannot assume to judge of the justice of the provisions of the will, or to ques- tion the motives of the testator in making it: Cudney v. Cud- ney, 68 N. Y. 152; Nelson's Will, 39 Minn. 205; Latham v. Udell, 38 Mich. 238. Order reversed. Undue Influence as Affecting the Validity of Wills.* 1^0 Precise Test Possible. — Tliat undue influence exercised over s testa- tor will iuvalidate a will executed by him as the result of ita domination is everywhere conceded, and it is therefore of the utmost importance that some test be formulated, by the application of which to established facts a correct oonclasion may be reached as to whether or not a will is incurably tainted by this vice. We must, however, confess at the outset that such a test has not been, and cannot be, prescribed, and that each case must be left to be decided in the light of its attendant circumstances: Elkinton v. Brick, 44 V. J. Eq. 154; Waddington v. Buz^>y, 45 N. J. Eq. 173; 14 Am. St. Rep. 706; Hartman v. Strickler, 82 Va. 225. It is not the means employed, so much as the efifect produced, which must be considered in determining whether un- due influence has contributed to the making of a will; for no matter what means have been employed for influencing the judgment or overcoming the will of the testator, yet if he was able to resist them, and, notwithstanding their existence, to make a disposition of his property according to his own desires, that disposition must stand, because the influences were unavailing. Though, on the other hand, the influence exerted over the testator was such as if applied under ordinary circumstances, or exercised over persons of or- dinary powers of resistance, would be regarded as innocent, yet if, in the particular case, it resulted in a disposition of property contrary to the testator's desire, the influence was undue: Leveretis Heirs v. Carlisle, 19 Ala. 80. Oeneral Definitions. — Though no precise or absolute test of undue influ- ence has been or can be formulated, equally applicable to all cases, still, many general definitions have been given of sufficient accuracy to be of value in considering this topic. "Undue influence, legally speaking, must be such as, in some measure, destroys the free agency of the testator; it must • REFERENCK TO MONOQRAPHIC NOTBS. Seclaratiou* of a testator as evidence of undue influence or of imposition: 3 Am. Deo. 395-8M. Influeuce or importunity sufficient to invalidate a will: 16 Am. Dec. 257-26S« Presumptions of undue iuflueuce: 21 Am. St. Rep. 94-104. March, 1892.] In re Hess's Will. 671 be sufficient to prevent the exercise of that discretion which the law requires in relation to every testamentary disposition. It is not enough that the testator is dissuaded by solicitations or arguiiient from disposing of his prop- erty as he had previously intended; he maj' yield to the persuasions of affec- tion or attachment, and allow their suggestion to be exerted over his mind; and in neither of these cases would tlie law regard the influence as undue. To amount to tliis, it must be equivalent to moral coercion, — it must con- strain its subject to do what is against his will, but which, from fear, the desire of peace, or some other feeling, lie is unable to resist; and when this is so, the act which is the result of that influence is vitiated": Gilbert v. Gilbert, 22 Ala. 529; 58 Am. Dec. 2G8; Duiilap v. Robinson, 28 Ala. 100; Taylor v. Kelly, 31 Ala. 59; 68 Am. Dec. 150; llalVs Heirs v. Hall's Exrs, 38 Ala. 131; O'Neall V, Farr, 1 Rich. 80. " On this subject, as on that with regard to capacity, no precise and distinct line can be drawn. Suffice it to say, that the influence exercised must be an unlawful importunity, on account of the manner or motive of its exertion, and by reason of which the testator's mind was so endjarrassed and restrained in its operation that he was not master of his own opinions in respect to the disposition of his estate ": Potts v. House, 6 Ga. 324, 359; 50 Am. Dec. 329. "The testator should enjoy full liberty and freedom in the making of his will, and possess the power to withstand all direction and control. That degree, therefore, of importunity or undue influence which deprives the testator of his free agency, if it is such as he is too weak to resist, and will render the instrument not his free and unre- strained act, is sufficient to invalidate it": Davis v. Calvert, 5 Gill & J. 269; 25 Am. Dec. 282; Wampler v. W"nrds, 4 Mot. (Ky.) 163; Higgins v. Carleton, 28 Md. 115; 92 Am. Dec. 666; Floyd v. Floyd, 3 Strob. 44; 49 Am. Dec. 626. The Influences of Kind Offices or of Good Deeds are certainly legitimate, and a will cannot be avoided because produced by them: TrumiiuU v. Gibbons, 22 N. J. L. 117; 51 Am. Dec. 255; Kerry. Lunsford, 31 W. Va. 680; Williams s Estate, 13 Phila. 302. If a will is but a recognition and reward of kind offi- ces, there is no doubt that their influence cannot be regarded as undue. In many instances it may be insisted that while these ofiices have existed, and were entitled to recognition and recompense, yet that an undue ascendancy was, through them, obtained over the testator, and was exercised to the ex- tent of overcoming his will, and obtaining a testamentary disposition which, under the circumstances in which he was placed by his benefactors, he was unable to denj\ So, too, it may be urged that those offices were not incited by friendship or benevolence, but were part of a scheme devised for the purpose of weaning the testator away from his friends and kindred, and procuring a will in which their claims should be sacrificed in favor of those who, from selfish motives, had obtained possessiori of his person, and minis- tered to his .wants or his whims, in his old age or in his last illness. Doubt- less there may be instances in which the caring for a person in his declining years may be regarded with suspicion, and, in connection with other evi* March, 1892.] In re Hess's Will. 677 dence, may justify a finding of undue influence, but in the absence of such other evidence, this can rarely or never be so. To hold otherwise would bo to discourage " that affectionate care and attention which the law upholds, rather than condemns ": Bush v. Lisle, 89 Ky. 393; White v. Starr, 47 N. J. Eq. 244. The Influence of Illicit Relatione. — The social ties and kind oflBces of which we have hitherto spoken do not include relations or ofBces of an unlawful or immoral character, though it is by no means certain that the principles applicable to moral and praiseworthy relations are not equally applicalile to those of a meretricious nature, provided it be clear that the testator retained his self-control, and his bounty was the result either of his affection or his pity. In a case arising in South Carolina, a will was sought to be set aside on the ground that a beneficiary was a woman of African descent with whom the testator had lived in disgraceful intimacy, and that she had interposed her influence in favor of another beneficiary. There being, however, no evidence that anything had been done to interfere with the free agency of the testator, the court said: "Not merely in the ordinary affairs of life, but in the disposition of his property, even the sternest man is sometimes in- fluenced by the wishes of a friend, a wife, or even an unworthy mistress, who has usurped, both in his affections and at his table, tlie place of his law- ful wife. It has happened, and will happen again, that a mistress may so captivate the affections of her paramour, that he shall give her his ivhole es- tate, to the exclusion of his lawful wife and children. Such an act all wcnld condemn, and concur in denouncing as immoral and improper the influence which had pro'luced it; but if it be done under the influ- ence of affection merely, however unworthy the object may be, such wills have been, and must be, supported, so long as the law allows a man to dispose of the property according to his own wishes. It has never been supposed to be essential to a will or deed that the motive which led to the act should be virtuous, or that the object of the donor's bounty should be meritorious, but it is essential that it should be the free and voluntarj' act of a sane mind. If, in makmg it, he has been influenced by modest persua- sion, by arguments addressed to his understanding, or by appeals to affec- tion merel}', the act is a valid one. If it be in conformity to his wishes, it is emphatically his will, and not the will of another, and we are bound to give it effect, without reference to the motive of the testator, or the un- worthiness of the legatee, until the legislature, upon considerations of public policy, shall think proper further to abridge the right of an owner to dis- pose of his property": O'Neall v. Farr, 1 Rich. 80, 83; Farr v. Thomp- son, 1 Cheves, 37; Monroe v. Barclay, 17 Ohio St. 302; 93 Am. Dec. 620. As long as the absolute power of testamentary disposition is conceded, and the owner of propeity is allowed to dispose of it to whomsoever he pleases, and for such reasons as to him shaft seem adequate, his right to make a be- quest to one with whom his relations have been meretricious must be ad- mitted, even though it be furtlier conceded that the bequest was made because of those relations. Nor can the existence of those relations create a presumption of undue influence, and impose upon the beneficiary the bur- den of disproving the exercise of such influence: In re Mondorf, 110 N. Y. 450; Wainwri'/ht's Appeal, 89 Pa. St. 220; Roe v. Taylor, 45 III. 4S5; McClure V. McClure, 86 Tenn. 178; Rudy v. Ulrich, 69 Pa. St. 177; 8 Am. Rep. 233; Porschet v. Porschet, 82 Ky. 93; 56 Am. Rep. 880. Nevertheless, it is true that when undue influence is cliarged, the fact that the person accused of exercising it lived in illicit relations with the testator or testatrix may prop- 678 In re Hess's ^YILL. [Minn. erly be admitted in evidence, to be considered by the jury, in connection with circumstances tending to prove undue influence: Main v. Ryder, 84 Pa. St. 217; Davis v. Calvert, 5 Gill & J. 269; 25 Am. Dec. 282; McGlure v. Mc- dure, 86 Tenn. 173; and it is probably true, in some states at least, that acts and conduct of a mistress may amount to undue influence when that efiFect would not be attributed to like acts or conduct on the part of a wife: McClure v. McClure, 86 Tenn. 173; Derm v. Necjley, 41 Pa. St. 312; 80 Am. Dec. 620. Thus in one case the court said: "We are of the opinion that there is a difference in the two cases, and that an influence when exercised by a wife might be lawful and legitimate, but which, if exercised by a woman occupying an adulterous relation to the testator, might be undue and illegitimate": Kessinger v. Kessiiujer, 37 Ind. 341. Possibly this is true; but no court has as yet pointed out any influence exercised by a wife to the extent of destroying the liusband's free agency which will not vitiate his will, nor any influence of a mistress, leaving the testator free to exercise such agency, which will vitiate such will. Perhaps all that can be affirmed upon this subject with any degree of confidence is, that in the practical ad- ministration of the law both courts and juries, from their aversion to a mis- trees and their sympathy for a wife, will resolve all doubtful questions against the former and in favor of the latter, and thus it will occur that evi- dence sufficient to produce the conviction of the undue influence of the for- mer will not accomplish that result if offered against the latter. Argument, Persuasion, Importunity. — It is not influence over the testator, but undue influence, which may vitiate his will. It is not essential that his will be suggested wholly by himself, nor that, as ultimately executed, it be of the same purport as if no one had made any suggestion to him concerning it, or used argument, persuasion, or even earnest entreaty, with a view of affecting its provisions. These are not unlawful, and, though often indeli- cate, are not improper, provided the testator's mental and physical condition, and the circumstances under which he is placed, are such that he may delib- erate upon and either grant or deny them, through the untrammeled opera- tion of his own mind and will. Thus a suggestion to a testator that particular dispositions of his property would be just to the natural objecti of his bounty: Elkinton v. Brick, 44 N. J. Eq. 154; or even a suggestion re- ■ulting in a legacy which otherwise might not have been made, do not of themselves support a charge of undue influence: Lyons v. Campbell, 88 Ala. 462; Thornton y. Thornton, 39 Vt, 122. There can be no doubt of the right of a wife not only to counsel with her husband respecting his will, but even to employ argument and entreaty for the purpose of affecting its provisions. That she urged upon him the propriety of leaving all his property to her, and that ha acted accordingly, does not establish undue influence: Hughes v. Murthn, 32 N. J. Eq. 288. In many instances, what he is about to dispose of is the result of the labors of her lifetime as well as of his, and while the law, perhaps unwisely as well as unjustly, may give her no absolute right to control the disposition, yet it will not regard as improper any influence which ihe may exercise over him, short of coercion, or the substitution of her will for his. "We do not know of any rule of law or morals which makes it unlawful or improper for a wife to use her wifely infl.uence for her own benefit, or for that of others, unless she acts fraudulently or extorts benefits from her husband when he is not in a condition to exercise his fac- ulties as a free agent. A faithful wife ought to have a very great influence over her husband, and it is one of the necessary results of proper marriage relations. It would be monstrous to deny to a woman, who is usually an March, 1892.] In re Hess's Will. 679 important agent in building up domestic prosperity, the right to express her wishes concerning its disposal. And there is no legal presumption against the validity of any provision which a husband may make in hia wife's favor": Latham v. Udell, 3S Mich. 238, 240; Pierce v. Pierc, 38 Mich. 412; Moritzv. Brough, 16 Serg. & R. 403; Pingree v. Jones, 80 III. 177; Lide v. Lide, 2 Brev. 403. While the right of children may not stand on tlie same high footing as that of a wife to be heard respecting a will, still there is no >re dis- tinctly considered the effect of misrepresentation and fraud employed, not for the purpose of destroying the free agency of the testator, but for the pur" pose of causing such agency to be exercised upon what may, for want of a better expression, be styled false premises. Of course, a misrepresentation that does not influence a will cannot vitiate it: Taylor v. Kelly, 31 Ala. 59; 68 Am. Dec. 150; and the fact tliat the beneficiary of a will has, in the pres- ence of the testator, denounced one who is discriminated against by it does not establish undue influence, when the testator was under no restraint, and, being in the full maturity of his powers, was competent to determine for him- self whether the denunciation was merited or not: Dumont v. Dumont, 46 N. J. Eq. 223. But a testator may not be in a position to judge for himself, either because from age or illness his mind and will can no longer delil)erate or resist, or because the true facts are sedulously concealed. We apprehend whenever it can be shown that by intentional misrepresentation, expressed or implied, or by a course of treatn.ent or concealment, that the testator has been led to disinherit an heir, or to revoke a devise or bequest because of his belief that such heir or beneficiary has become or is unworthy of his bounty, or that some other person is more worthy of it, then such misrepresentation, if exercised by or on behalf of the person in whose favor the testamentary disposition is finally secured, is an undue influence, for which the will must be set aside: Tyler x. Gardiner, 35 N. Y. 559, 576, 593; fnre Budlong's Will, 126 N. Y. 423. Hence where a testator who had contracted a second marriage, disinherited the children of his first marriage, it was held that evidence should be received, giving an insight into the private family life and history, for the purpose of disclosing what means, if any, his second wife had employed to alienate his affection from such cliildren: Newton v. Carherry, 5 Cranch C. C. 632; Reynolds v. Adams, 90111. 134; 32 Am. Rep. 15. Burden of Proof, and Presumpiions. — He who contests the admission to probate of a will, or seeks to set aside such probate after it has been granted, on the ground that the will was procured by undue influence, must assume the burden of proof, and establish to the satisfaction of the court or jury the existence of such influence, and that the will is one of its fruits: Wondward V. James, 3 Strob. 552; 51 Am. Dec. 649; Baldwin v. Parker, 99 Mass. 79; 96 Am. Dec. 697; Ri'jj v. Wilton, 13 111. 15; 54 Am. Dec. 419; Wehher v. Sulliran, 58 Iowa, 260; D'tvit v. Dmis, 12:? Mass. 590; Ewen v. Perrine, 5 Redf. 640. And when the testator is shown to have 1 nn of sound mind, no presumption of the exercise of undue influence over him can be indulired, even though the will is, in tlie opinion of the court or jury, unreasonalile and unjust, and such as ought not to have been made. At least, such is the rule supported by a majority of the cases upon this subject. Tlie evi- dence may, however, show certain relations between the testator and the beneficiaries, well calculated to give them an undue influence over him, or that his condition of mind or body was such as to make it proI)able that he was not able to resist the influence of others, or that the provisions of the irill are unnatural and unreasonable, and contrary alike to his duty and hia previously expressed intentions, and this evidence, without any other, may often create a presumption of undue influence, and cast upon the proponent of the will the burden of removing such presumption. In the note to Rich' 682 In re Hess's Will. [Minn. mond's Appeal, 21 Am. St. Rep. 94-104, we so recently considered the pre- sumptions of undue influence that we shall here attempt no more than a brief synopsis of the law upon the subject. As to the relations of the testa- tor and a beneficiary of his will, it is suffioient to remark that the existence of undue influence may be presumed from them, — 1. When those relations are of such special trust and confidence as of themselves to warrant the presumption that they have an undue influence over him; and 2. When they were such as to place him in the power of the beneficiaries or their emissaries at a time when he was too weak, mentally or physically, to resist. Chief among the relations of the first class are those of guardian and ward, attorney and client, priest, or other spiritual adviser, and persons looking to him for advice. Thus if a ward makes a testamentary disposition in favor of his guardian or of members of the guardian's family, under such circumstances that undue influence may have been employed, the burden of proof must be assumed by those claiming under the will, and they must establish that it did not result from the undue influence of the guardian: Meek v. Perry, 36 Miss. 190; Gar- vin V. Williams, 44 Mo. 465; 100 Am. Dec. 314; Bridwell v. Swank, 84 Mo. 455; Breed v. Pratt, 18 Pick. 115, 117; Setter v. Strand, 1 Demarest, 264. So if the beneficiary was the attorney of the testator, undue influence is pre- sumed, and this presumption will naturally be most potent when the testa- tor was old and illiterate, or placed in such circumstances as not to have the advice of friends or relatives, and partly or wholly disinherits the natural objects of his bounty: Post v. Mason, 26 Hun, 157; 91 N. Y. 539; 4:? Am. Rep. 689; Grove v. Spiker, 72 Md. 300; Riddell v. Johnson, 26 Gratt. 152; St, Layers Appeal, 34 Conn. 434; 91 Am. Dec. 735; Richmond's Appeal, 59 Conn. 226; 21 Am. St. Rep. 85. If the beneficiary is a priest, a spiritual adviser, or a spiritualistic medium, he must also show that he exercised no undue in- fluence: Connor v. Stanley, I'l Cal. 556; 1 Am. St. Rep. 84; Leighton v. Orr, 44 Iowa, 679; Lyon v. Home. L. R. 6 Eq. 655; Nottige v. Prince, 2 GifiF. 246; Greenwood v. Cline, 7 Or. 17; Thompson v. Hawks, 14 Fed. Rep. 902; Maj-x V. McGlynn, 88 N. Y. 357. In the cases to which we have referred, the pre- sumption of undue influence arises from the fact that the relations spoken of are necessarily those of implicit trust and confidence, in which the temptation and opportunity for abuse would be too great if the beneficiary were not required to make affirmative proof that he did not betray the con- fidence placed in him, nor so use his influence as to coerce or mislead the testator, or otherwise obtain an undue ascendency over him. And when- ever the reason of the rule exists, the presence and applicability of the rule itself may generally be affirmed. Hence though the relation is not one of those already named, yet if it is one of such special trust and confidence that the testator apparently trusted the beneficiary as a client trusts an at- torney, a patient his physician, or a ward hi^ guardian, the absence of undue influence must be disproved: Richmond's Appeal, 59 Conn. 226; 21 Am, St. Rep. 85; Moore v. Spier, 80 Ala. 129; Delafield v. Parish, 1 Redf. 1; In re Walfh, 1 Redf. 238; Daniel v. Hill, 52 Ala. 430; and this is more especially true when the relations of the testator and the confidential friend and ad- viser were such that undue influence could have been exercised without any direct evidence of such influence being possible: Herster v. Herster, 116 Pa. St. 612; Waddington v. Bitz'y, 43 N. J. Eq. 154; or the testator was feeble in mind or body, or in his dotage: Waddington v. Buzhy, 43 N. J. Eq. 154; Ray V. Ray, 98 N. C. 566; or the will is in conflict with the intentions of the testator, as expressed in pre-existing wills or otherwise: Wilsons Aftpeal, 99 Pa. St. 545. The relation of members of the same family is ordinarily one March, 1892.] In re Hess's Will. 683 of extreme trust and confidence, and might very naturally lead to the pre- sumption of umlue influence, were it not for the fact that a testamentary disposition in favor of relatives by consangniiiity is treated as natural and jnst. Though sometimes the efiFect of relationship has been regarded as a circumstance to be considered in connection with other evidence: Oaither v. Oaither, 20 Ga. 709; yet there has been no instance, so far as we are aware, in which undue influence has been presumed merely from the relation of parent and child, husband and wife, or any other relation, either of consan- guinity or affinity: Armatrong v. Armstrowj, 63 Wis. 162; In re Martin, 98 N. Y. 19.S; Latham v. UdM, .38 Mich. '238; Rankin v. Rankin, 61 Mo. 295; Will of Nelson, 39 Minn. 204; Will of Andrews, 38 N. J. Eq. 514. The fact that illicit relations existed between the testator and the beneficiary, and that they lived together as liusband and wife, without being sucli, does not create any presumption of undue influence: Post v. Mason, 91 N. Y. 539; 43 Am. Rep. 689; Sunderland v. Hood, 84 Mo. 293; Rudy v. Ulrich, 69 Pa. St. 177; 8 Am. Rep. 238; Wainwriijht's Appeal, 89 Pa. St. 220; Main v. Ryder, 84 Pa. St. 217; PorschH v. Porschet, 82 Ky. 93; 56 Am. Rep. 880; Monroe v. Barclay, 17 Ohio St. 302; 93 Am. Dec. 620. If a will is drafted by one to whom, or to whose family, or some member thereof, a bequest or devise is made, this is sometimes regarded as a suspicious circumstance: Edmonds v, Lewer, 11 Jur., N. S., 911. Perhaps it may require more clear and satisfac- tory evidence that the contents of the will were clearly disclosed to the tes- tator, than if it were drawn by a disinterested person: Beall v. Mann, 5 Ga. 456; Kelly v. Settegast, 68 Tex. 13. However this may be, there is no pre- sumption that it was procured by the undue influence of the draughtsman; though if there is other evidence of undue influence, then the fact that the will was prepared by an interested party may properly be considered by the court and jury as giving increased force and probability to such evidence: Waddington v. Buz'iy, 45 N. J. Eq. 173; 14 Am. St. Rep. 706; Carter v. Dixon, 69 Ga. 82; Coffin v. Coffin, 23 N. Y. 9; 80 Am. Dec. 235; Cheatham v. Hatcher, 30 Gratt. 56; 32 Am. Rep. 650; Post v. Masoji, 91 N. Y. 539; 43 Am. Rep. 689; Montague v. Allan, 78 Va. 592; 49 Am. Rep. 384; Yardley v. Cuthhertson, 108 Pa. St. 395; 56 Am. Rep. 218. In some cases in which it appeared that the wills in question had been prepared by or at the in- stance of persons interested in them, expressions were made from which an inference might be drawn not in harmony with the rule as we have just stated it, but on examination of these cases we think nothing is necessarily affirmed by them, except that "it should be shown that the testator clearly ■understood the contents of the paper wliich he signed": Roltwagen v. Roll- wagen, 63 N. Y. 504; Kelly v. Settegast, 68 Tex. 13. " While the mere fact that a will is written by a party who takes a beneflt under it does not inval- idate it, yet if the benetit is large, and especially if the beneficiary is a stranger to the testator's blood, the instrument will be scrutinized with sus- picion, and clear proof that the testator knew its contents will be required to admit it to probate. Proof of testamentary capacity and of formal exe- cution are insufficient.^ Because of its accuracy and guarded limitations, we quote the statement of the rule made by Baron Parke: 'If a party writes or prepares a will, under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased: BaiTy v. Butlin, 1 Curt. 637.' Evidence in the shape 684 In re Hess's Will. [Minn. of instructions for the preparation of the will, or reading or hearing it read, is the most satisfactory, but not the only precise species of evidence of the testator's knowledge of the will, — circumstantial evidence may be suificient; but the party claiming under the will, whatever mode of proof he may adopt, must satisfactorily establish that the testator knew the contents; otius pro- handi is on him ": Lyons v. Camphell. 88 Ala. 462. The relations of the second class, to wit, those in which it appears that the testator was placed in the power or under the control of the beneficiary, or of his emissaries, to an extent which justifies the inference, in the absence of countervailing evidence, that he was subjected to undue influence, are of great variety, but all resemble in the fact that the circum-stances of the tes- tator were such that his acting freely and intelligently was less probable than his acting in obedience to the will of another. Thus if a will is made in favor of a ho-pital in which the testator was at the time lying in extremis, and is drawn by its chaplain, and ignores the natural heir, slight circum- stances will justify the jury in inferring undue influence: Midler v. St. Louis Hospital Ass'n, 5 Mo. App. 390. In truth, probably the majority of the courts would require additional evidence in support of the will, especially if it disregards the claims of kindred or conflicts with a pre-existing will. If a testator is helpless, either from illness or old age, and is in the house of anotiier, on whom he necessarily depends for care, comfort, and attention, the probability of his being subjected to influences which he cannot resist is very great. "The rule to be deduced from the decisions on the subject is this: that where a person, enfeebled by old age or illness, makes a will in favor of another person, upon whom he is dependent, and that will is at variance with a former will made or intentions formed when his faculties were in full vigor, and is opposed to the dictates of natural justice, the presumption is, that such a will is the result of undue influence, unless that presumption is satisfactorily rebutted by other evidence in the case ": Dcmmert v. Schnell, 4 Redf. 409; Carroll v. Hause, 48 N. J. Eq. 269; 27 Am. St. Rep. 469; Sioen- arton v. Hancock, 22 Hun, 38; Richmond's Appeal, 59 Conn. 226; 21 Am. St. Rep. 85. Generally, whenever it is shown that when the will was executed the testator was in extremis, or seriously ill, or that he was of weak mind, either from dissipation, age, or natural infirmity of intellect, it is incumbent upon those claiming under the will to show what were the circumstances under which it was executed, and to rebut the presumption of undue influ- ence which must be drawn in the absence of any explanatory testimony: Boydv. Boyd, 66 Pa. St. 283; Moore v. Moore, 56 Cal. 89; Allore v. Je^cell, 94 U. S. 506; Fishhurne v. Ferguson, 84 Va. 87; Harvey v. Snllens, 46 Mo. 147; 2 Am. Rep. 491. Secrecy in the Execution of a Will is not necessarily a badge of fraud, nor does it create a presumption of undue influence: Coffin v. Coffin, 23 N. Y. 9; 80 Am. Dec. 235; Gilbert v. Gilbert, 22 Ala. 529; 58 Am. Dec. 268; Brick v. Brick, 43 N. J. Eq. 167; nor can such presumption arise from the fact that when the will was executed the testator was surrounded by those of his children who were principally benefited by it, and th# child who was disin- herited was absent: Bundy v. McKnight, 48 Ind. 502. The fact that the ex- ecution of a will was kept secret froni some of the children and heirs of the testator is often entitled to great consideration, in connection with evidence tending to show undue influence. Thus where a testatrix was old and feeble, with a mind so impaired that she was easily influenced by those possessing her confidence, and her will was executed in the presence of one of her chil- dren, who was greatly benefited by it, the court regarded the secrecy of its March, 1892.] In re Hess's Will. 685 execution aa a circumstance tending to establisli undue influence: Greenwood V. Cline, 7 Or. 17. If it appears that deviceni were resorted to for the pur- pose of keeping the testator's relatives away froni him, or for preventing their being present wlien the will was made and knowing about its execution, and those devices were sanctioned by the persons who were made beneficia- ries under the will, to the exclusion of otlier relatives, undue influence may be presumed, especially if the testator was in a helpless condition, or his in- tellect was impaired: Byardv. Conover, 39 N. J. Eq. 244; Greenwood v. Cline, 7 Or. 18. What, for want of a better term, are often styled unnatural, ar- bitrary, and unreasonable provisions in a will are frequently spoken of as requiring explanation, or as raising a presumption of undue influence. But the law accords testators the ric^ht to make unnatural and unreasonable pro- visions, and it does not confer upon judges or juries authority to determine for a testator what will he shall make, nor to disregard his preferences as arbitrary or unjust. Nor has any judge claimed the existence of this power, or desired to exercise it. But when it is allo<:ed that a will has been pro- cured by fraud or undue influence, or was executed while the testator was not of a disposing mind, the fact that its provisions are not in harmony with the ordinary desires of a free and rational mind must always lend probability to the allegation. It may happen, too, that the evidence discloses what were the aflFections and wishes of the testator but a short time before the will was made, and if so, and nothing has apparently occurred to change them or de- stroy their force, and his testament is at variance with them, such variance is often so unaccountable that it calls for explanation, and if such explana- tion is wanting, justifies the inference that what he did was not the act of his free and disposing mind. If the testator was of sound mind and health, and free from all constraint, the mere preference of one relative to another, or the preference of persona to whom he was not in any way related over his kinsmen, does not necessarily show undue influence: Kitcliell v. Beach, 35 N. J. Eq. 446; Woodward v. James, 3 Strob. 552; 51 Am. Dec. 649; Coffin v. Coffin, 23 N. Y. 9; 80 Am. Dec. 235; Storers Will, 28 Minn. 9; Hubbard v. Hubbard, 7 Or. 4"2; Turnure v. Tarnure, 35 N. J. Eq. 437; Jenrkes v. Court of Probate, 2 R. I. 255. An eminent writer has said that "where the will is unreasonable in its provisions, and inconsistent with the duties of the tes- tator with reference to his property and family, this, of itself, will impose upon those claiming under the instrument the necessity of giving some rea- sonable explanation of the unnatural character of the will," and that "gross inequality in the dispositions of the instrument, where no reason for it is suggested, either in the will or otherwise, may change the burden, and require explanation, on the part of those who support the will, to induce the belief that it was the free and deliberate offspring of a rational, self-poised, and clearly disposing mind": 1 Redfield on Wills, 5U), 537; and this language has been quoted with apparent approval in some of the decisions: Gay v. V. Gillilan, 92 Mo. 250; 1 Am. St. Rep. 712. Nevertheless, we think that it does not correctly state the law upon tliis subject, at least when there is evidence that the testator was of sound and disposing mind. It is rarely possible to know wliat were the reasons influencing a testator, and even when they are known, there is no test by which to determine whether they are arbitrary, unnatural, or unjust. With some persons the ties of kindred are strong, and with others weak, and it would be difficult to establish that the latter are less sane or more subject to undue influence than the former. In every case coming within our observation in which the supposed unnatu- ralnesa or unjustness of a devise or bequest has been given any weight, there 686 In re Hess's Will. [Minn. were other circnmstancea indicating either undue influence or a defect iu testamentary capacity, such as fear, dependence, feeble health, old age, and the like, and whenever any of these circumstances is shown, then no doubt the character of the will may be taken into consideration for the purpose of determining whether or not the probable undue influence was not in fact efifective: Harrel v. Harrel, 1 Duvall, 203. That the beneficiaries had an opportunity or a motive for exercising undue influence over the testator cannot create any presumption that they exercised it, and that it was effect- ive in producing the will: Turnure v. Tui-nure, 35 N. J. Eq. 437; Hubbard V. Hubbard, 7 Or. 42. The exceptions to this rule arise out of cases, to which we have already referred, in which the established relations of the parties were such that the law presumes that the one had an undue ascendency over the other, or where it is proved by direct evidence that such ascendency ex- isted, and the will is contrary to the wishes of the testator as revealed when he was not subject to such ascendency: Clark v. FUher, 1 Paige, 171; 19 Am. Dec. 402; Lynch v. Clements, 24 N. J. Eq. 431; Banta v. Williams, 6 Dena- arest, 84. Evidence. — It is not possible to specify or describe all the evidence which may properly be received either to prove or disprove the existence of un- due influence. Of course, every fact from which the inference might legiti- mately be drawn that such influence had or had not been exerted, or if exerted, that it had or had not been effective, is admissible, provided the time of its exertion is not so remote, either from the making of the will or from the death of the testator, that no effect can reasonably be attributed to it. On the one hand it may be conceded that it is not essential that the in- fluence be employed at the time of the execution of the will, and on the other, that it must continue to be operative upon the mind and will of the testa- tor when he executed his last testament, no matter when it was first exer- cised: In re Shaw's Will, 1 1 Phila. 51; Davis v. Calvert, 5 Gill & J. 269; 25 Am. Dec. 282; Hartman v. StricUa; 82 Va. 225; Taylor v. Wilburn, 20 Mo. 306; 64 Am. Dec. 186. In other words, if any fraud, coercion, misrepresentation, or other means of undue influence are exercised over the testator, it is not neces- sary to prove that they were so exercised at the time the will was executed, but the probability of their being effective or influential must ordinarily dimin- ish with the lapse of time, and the time may be so remote as to justify the exclusion of the evideuce, and hence it was decided that evidence of the re- lations, some eight or ten years before the making of the will, between the testator and the persons claimed to have influenced him was too remote to be taken into consideration: Batchelder v. Batchelder, 139 Mass. 1; Horahv. Knox, 87 N. C. 483. Though the supposed influence was exerted at or about the time of the making of the will, the fact that the testator lived for a long period afterwards, and did not change his will in any respect, is entitled to great consideration. If it be conceded that the will was executed under the domination of undue influence, there is souxe difference of opinion as to whether it may be ratified by mere lapse of time, or by his retaining it in his custody after the influence has ceased to be operative, without revoking it, or indicating in any way his desire to do so. If he should execute a codicil to it, attested in the same manner as an original will is required to be attested, there can be no doubt that this would be an effective ratification of the will, if the undue influence was no longer controlling: O'Neall v. Farr, 1 Rich. 80. In other cases it has been said, in general terms, that a ratification of a will after the undue influence was withdrawn, and when the testator was certainly a free agent, would destroy the vitiating effect of the influence March, 1892.] In re Hess's Will. 687 ■under which the will was originally executed, but the court did not explain whether, by ratiticatiou, it meant merely retention and acquies- cence, or some expression of desire made and attested in the same form and with the same solemnity as the original will: Taylor v. Kelly, 31 Ala. 59; 68 Am. Dec. 150. On the other hand, the position has been taken that if a will was originally tainted with undue influence to the extent that it was not then operative, it was, in legal contemplation, not the will of the testator at all, and therefore that he still remained intestate, and must so continue, either until he executes another paper, and thereby ratifies the will by some writing attested so as to amount to a new will: Lamb v. Oirt- man, 26 Ga. 6-'5; Chaddick v. Haley, 81 Tex. 617. Very rarely does it occur that a will is conceded to have been the fruit of undue influence. Even if it be clear that there was an attempt to exert such influence, yet there is always doubt whether or not it was effective; for the will, though it accords with the desires of those guilty of attempting to unduly influence the testa- tor, may nevertheless correctly express his testamentary desires, and be the result of them, and not of any extraneous influence. If, after a will is exe- cuted, the testator lives for a considerable time in the possession of his men- tal faculties, and apparently free from all undue influence, the presuinptiou that the will never was tainted by any undue influence becomes very strong, if not absolutely irresistible: Jrisk v. Smith, 8 Serg. & R. 573; 11 Am. Dec. 648; Floyd v. Floyd, 3 Strob. 44; 49 Am. Dec. 626; Kelly v. Thewles, 2 Ir. Ch. 510. As to the Amount of Evidence required to support the allegation of undue influence, the decisions speak "a varied language." " In order to set aside the will of a person of sound mind, it is not suflicient to show that the cir- cumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with the contrary h3'pothesis ": Boyie v, Rostsboroiiijh, 6 H. L. Caa. 51. " Undue influence will not be presumed, but must be proved either by direct affirmative evidence, or by an array of circumstances making an inference of its exercise aliaolutely irresistible ": Whelpley v. Loder, 1 Dem- arest, 512. There is nothing in reason nor in the authorities to justify this extreme and emphatic language. The existence of undue influence must be proved by the persons attacking the will. The burden is on them, and they do not sufliciently support it by establishing motive, or opportunity, or even the existence of circumstancea which are as consistent with undue influence as with its absence: La Ban v. Vanderliilt, 3 Redf. 384; Boyse v. Ro^shorotigh, 6 H. L. Cas. 2. " To invalidate a will on the ground of undue influence, there must be affirmative evidence of the facts from which such influence is to be inferred. It is not sufficient to show that the party benefited by the will had the motive or the opportunity to exert such influence; there must be evidence that he did exert it, and so control the actions of the testator, either by importunities which he could not resist, or by deception, fraud, or other improper means, that the instrument is not really the will of the testator ": Cudney y. Cudney, 68 N. Y. J 52; Woodruard v. Jam^s, 3 Strob. 552; 51 Am. Dec. 049. This affirmative evidence nei'd not exclude every other hypothe- sis, nor satisfy the judge or jury beyond a reasonable doubt. It is sulficient that it preponderates over the evidence offered to rebut it. " The burden of proof being on those who attack a will on the ground of undue influence, it is not sufficient that they l)arely show that the circumstances of the will are consistent with the hypothesis of undue influence; for this would be but to create an equipoise in the testimony, and the onus being on the party at- 688 In re Hess's Will. [Minn. tacking the will, he must go a step further, and show by any suitable, evidence the inconsistency between circumstances of the execution of the will, and its being executed without the interposition of undue influence": Oay v. Gillilan, 92 Mo. t>50; 1 Am. St. Rep. 712. In fact, the question of the amount of evidence necessary to support the charge of undue influence must be de- termined by the jury, or the court sitting as the jury. The question is one of fact, and the jury may therefore properly reach the conclu.sion that the will is vitiated by undue influence, if any competent evidence is submitted to them tending to support that conclu.sion: Monroe\. Barclay, 17 Ohio St. 313; 93 Am. Dec. 620; Dean v. Neijb-y, 41 Pa. St. 312; SO Am. Dec. 620. But the court ought not to submit the question, where the evidence is of so weak and inconclusive a character that any verdict based upon it must be set aside: Herster v. Herster, 122 Pa. St. 339; 9 Am. St. Rep. 95; Mardy's Ap- peal, 123 Pa. St. 464. Inferred from Circumstances. — Evidence of undue influence is more often circumstantial than direct, and there is no doubt that circumstantial evi- dence is admissible, and that it is sufBcient to support the allegation of un- due influence: Marvin v. Marvin, 3 Abb. App. 192. The circumstances which are relied upon for this purpose must be such that the inference of undue influence may be legitimately and reasonably drawn from them, and it is not sufficient that they are consistent with the existence of such influence. Thus, for the purpose of establishing undue influence on the part of the testator's wife, it is not admissible to prove that in the ordi- nary affairs of life she exercised great control over him. Such control is not in itself inconsistent with her wifely position and duty; and if the fact of its existence established that it was undue, and was exercised over the tes- tamentary act, the presumption of undue influence would be created from those happy marital relations in which there is the greatest probability that the testator was moved solely by his affection and his sense of justice: Storers Will, 28 Minn. 9. It is generally proper to admit evidence tending to show the circumstances under which the will was made, and the relations of the testator to the beneficiary and others. For this purpose evidence may be received to prove who were the members of the testator's family, and what were the amount, situation, and character of his property. At least, such evidence must be proper when the other facts disclosed make it neces- sary to consider whether the will was that of a reasonable man acting with- out constraint: Richmond's Appeal, 59 Conn. 226; 21 Am. St. Rep. 85. If the testator has contracted a second marriage, and has disinherited the children of his former marriage, and there is evidence to establish the undue influ- ence of his second wife, it is competent to show that there was no reason for the exclusion of the children of his former marriage from the benefits of the will: Mullen V, Helderman, S7N. C. 471; orthat before the second marriage his relations with his children were kind and affectionate, but afterwards the}' were forbidden to enter his house, and that he was for a considerable time in feeble health, and under the apparent domination of his wife: Reynolds v. Adams, 90 111. 134; 32 Am. Rep. 15. " Upon the question of undue influence, we have no doubt the general condition and surroundings of the deceased, and his relations with his wife, — who is the only person supposed to have exer- cised any influence over him, — may be properly shown for any period which can reasonably be regarded as bearing on the act of the disposal of his prop- erty. But as the only important inquiry is concerning the pressure of undue influence at the very time of the will, the testimony, to show facts of an in- ferential nature, must be confined to what would be legitimately regarded as March, 1892.] In re Hess's Will. 689 his then present relations. No technical nicety aa to a few days, or perhaps a few weeks, can be demanded. But certainly, so far as domestic relations have any pertinency whatever on such questions, it is quite clear that if such influence is to be inferred from them, the facts must be more readily shown by recent than by past relations, and the testimony of fresh events is less likely to be manufactured than that of transactions long past ": Pierce v. Pierce, 38 Mich. 412. While in the case of a second marriage it is undoubtedly proper to receive sufficient evidence to show the relations between the testator and his second wife, and the other members of his family, for the purpose of assisting in reachin_£{ a correct conclusion lui to her influence over him, and as to whether it has been exerted, and with success, for the purpose of unduly affecting his will, yet it is not proper to investigate old scandals antedating their marriage, with reference to his and her con- duct before the marriage, and during the lifetime of his former spouse: Webber v. Sullivan, 58 Iowa, 260; Pierce v. Pierce, .38 Mich. 412. It is said that neither general good nor general bad treatment is evidence of undue influence: McMaJton v. Ryan, 20 Pa. St. 329; Tawney v. Long, 76 Pa. St. 106. The latter part of the proposition seems unreasonable; for if fraud and co- ercion are, as it must be admitted, most potent means of undue influence, is it not more reasonable to believe in their presence and potency when the conduct of the accused is shown to have been harsh and cruel, than when it was characterized by kindness or even by indifference? If tiie testator wholly or partly disinherited some of his heirs, the inference that in doing so he was exercising his own free agency is more reasonable when some estrange- ment was known to exist. Hence, evidence of such estrangement is always admissible: Alooney v. Olsen, 22 Kan. 69; Dale v. Dale, 36 N. J. Eq. 269. Evidence that a recital in a will is false, it has been held, is not admissi- ble to show undue influence. This cannot be true in all cases; for it often happens that an undue influence is acquired by a misrepresentation, and a false recital would, at least, be evidence of the testator's belief in, and his acting upon, the matters recited. When a beneficiary or other person al- leged to have exercised an undue influence was present at the execution of the will, or procured it to be executed, and took possession of it, what he said and did is generally admissible as part of the res rjestre. Therefore it may be shown that he was officious; that he intermeddled with or hurried the execution of the will: Gilbert v. Oil'^ert, 22 Ala. 529; 58 Am. Dec. 268; Hollimjiworth's Will, 58 Iowa, 526; or after causing it to be prepared, con- cealed it from the relatives: Byard v, Conover, 39 N. J. Eq. 244. When a testator of great wealth contracts a marriage in old age, or while seriously or mortally ill, and in such circumstances that the object of the other con- tracting person is obviously mercenary, and the will is made in harmony with that object, all these facts are proper evidence for the consideration of the court or jury, and but slight evidence of undue influence will justify the denial of the probate of the ■will: Primmer v. Primmer, 75 Iowa, 415; Wi'^eiier V. Maiipin, 2 Baxt. 342; Potters Appeal, 53 Mich. 106. The mere fact that the will in question differs materially from a pre-existing will is not evidence of undue iufluenie: Horn v. Pullman, 72 N. Y. 269; Booth v. Kitchen, 3 Redf. 52; Wood v. Bishop, 1 Demarest, 512; Rankin v. Rankin, 61 Mo. 295; Nelson's Will, 39 Minn. 204. Such a will is doubtless admissible for the purpose of showing what the testator's feelings and intentions were at the time it was executed, and if undue influence was attempted to be exercised over him, might justly lead to the conclusion that it had been effective. On the other hand, in so far as a former will agrees with a later one, it tends to Am. St. Kep., Vol. XXXL— 44 690 In re Hess's Will. [Minn. establish a fixed purpose on the part of the testator, and to support the in- ference that what he did was not the result of undue influence: Thompson v. Ish, 99 Mo. 160; 17 Am. St. Rep. 552. The fact that a will was retained by the testator for a considerable time after its execution, while he was under no constraint, tends to rebut the claim that it was the fruit of undue influ- ence; but this is not true if, during such time, he was too ill and his intellect was too weak to consider the propriety of revoking the will: Irish v. Smith, 8 Serg. & R. 573; 11 Am. Dec. 648. In nearly every case in which the allegation of undue influence is made, it becomes necessary to consider the health of the testator, mentally and physically, at or about the time his will was executed, because, unless in exceptional circumstances, it is difiicult to conceive of undue influence oper- ating on a person of mental and physical vigor to the extent of destroying free agency. Not only is evidence always admissible to prove that the tes- tator was weak in body or mind, or both, and therefore apparently not in a condition to resist, but where such weakness is satisfactorily established, evidence of undue influence may be treated as sufficient to justify the setting aside of the will, which, had it been employed against a person of vigorous mind and body, would have been scarcely worthy of consideration: Edge v. Edge, 38 N. J. Eq. '211; Rollwajen\. Rollwagen, 63 N. Y. 504; Taylor v. Wilbur n, 20 Mo. 306; 64 Am. Dec. 186; 3Tartin v. Teague, 2 Speers, 268; Chan- dler V. Ferris, 1 Harr. (Del.) 454; Leverett v, Carlisle, 19 Ala. 80; Potts v. House, 6 Ga. 324; 50 Am. Dec. 329; Reichenhach v. Reichenbach, 127 Pa. St. 564; Hartman v. Striclier, 82 Va. 225. Helplessness of mind and body may result from intoxication as well as from age and disease, and therefore it is competent to show that a testator executed his will while he was intoxicated: In re Cunningh'im, 52 Cal. 465. The Declarations of a Testator are generally admissible on the trial of the issue of undue influence, and yet, when received, their reception is never for the purpose of proving that such influence was exercised. Hence a finding of fraud or undue influence must be supported by some other evidence than the statements of the testator; and if there is no evidence of an attempt to exercise such influence, his declarations should not be received: Cudney v. Cudney, 68 N. Y. 148; La Bau v. VanderUlt, 3 Redf. 384; Griffith v. Diffen- derffer, 50 Md. 466; Barker v. Barker, 36 N. J. Eq. 259; Marring y. Allen, 25 Mich. 505; Stovers Will, 28 Minn. 9; Bush v. B^ish, 87 Mo. 480; Rusting v. Rusling, 35 N. J. Eq. 120; Kitchellv. Beach, 35 N. J. Eq. 446; Hayes v. West, 37 Ind. 21. But if there is evidence of the exercise of undue influence, then the subsequent declarations of the testator are admissible for the purpose of show- ing the condition of his mind and the efi'ect which the influence had upon him: Marx V. McOlynn, 88 N. Y. 358; Griffith v. Diffenderffer, 50 Md. 466; Par- sons v. Parsons, 66 Iowa, 754; Barker v. Barker, 36 N. J. Eq. 259; Reel v. Reel, 1 Hawks, 248; 9 Am. Dec. 632; Bates v. Bates, 27 Iowa, 110; 1 Am. Rep. 260. While the courts profess to admit evidence of this character solely for the purpose of ascertaining the condition of the testator's mind, and the efi'ect of the undue influence upon him, it is manifest that, when once admitted, its efi'ect cannot be restricted to this purpose. If it be true, as it undoubtedly is, that it is competent to prove that a testator said, after making his will, that he had not made it as he wanted to, that he had done wrong, but could not help it: Dennis v. We.ekes, 51 Ga. 24; or that, when in the presence of the person charged with exercising the influence, he could not resist her, and that he did not know but she had deceived him into dis- inheriting his son: Potter v. Baldwin, 133 Mass. 427; or that he knew noth« March, 1892.] Browning v. Hinkle. 691 ing about the will, and that they had got round him and " confuddled " him: Stephenson v. Stephemon, 62 Iowa, 163; then it is also equally true that juior» will not be able, if they give credence to these statements, to prevent their exercising a controlling influence upon the question of whether or not undua influence was exercised. Declarations made by a testator at the time of ex- ecuting hia will are admissible as parts of the i-es yentce: IfeUon v. McClana- han, 55 Cal. 308. Any evidence which tends to show that the disposition of his property by the testator was or might have been the result of his own desires or preferences, as well as of undue influence, or, on the contrary, that it must have been the result of undue influence rather than of his own desires or preferences, is admissible. His feelings are likely to find expres- sion in words. Hence his declarations, whether niaile before or after the execution of his will, may be received for the purpose of showing what hia desires or feelings were with respect to any particular person, whether this tends to support or to overthrow the will: Canada's Appeal, 47 Conn. 450; lioherts V. Trawick, 17 Ala. 55; 52 Am. Dec. 164; Qilhert v. Oilhert, 22 Ala. 529; 58 Am. Dec. 268; Stephenson v. Stephenson, 62 low n, 163; Neel v. Potter, 40 Pa. St. 483; Allen v. Public Administrator, 1 Bradf. 378; Griffith v. Dipnderffer, 60 Md. 466; Dye v. Young. 55 Iowa, 433. May Affect Part only of the Will. — Though undue influence has been effectively exercised, it does not always vitiate the whole will. It may have been restricted to procuring a devise or bequest in favor of a particular per- son or object, and the remainder of the will may be the result of the free agency of the testator, acting without even a suggestion from any other per- son. If a will consists of separable parts, and it is possible to affirm that some of them are not afi"ected by any undue influence, and thej' may be permitted to stand alone without doing injustice to the testamentary inten- tions of the decedent, then those parts will remain in full force, and the will will be denied probate only as to the part or parts procured by the undue influence: Baker's Will, 2 Redf. 179; Harrison's Appeal, 'iS Conn. 202; Lyons V. Camphell, 88 Ala. 462; Lord Trimlestown v. D'Alion, 1 Dow & C. 85; 1 Bligh, N. S., 427. Browning v. Hinkle. [48 Minnesota, M4.] Corporations. — Declarations of thb Ofkiuers of a Corporation bind it only when made in the course of the performance of their authorized duties, so that such declarations constitute part of the res i/est(e. Corporations. — One Sued for the Prick of Stock Issued to Him cannot escape his obligation to pay therefor by proving that certain officers of the corporation told him that such stock had been paid for by another person, unless he further proves that in making such declara- tion such otficer was acting for the corporation and clothed with author- ity to speak for it. Davis and Farnam, for the appellant. Keith, Evans, Thompson, and Fairchild, for the respondent. Dickinson, J. This is an action by a receiver of an insol- vent corporation, the Price-Condit Fence Company, to recover 742 Altoona Second National Bank v. Dunn. [Peun. fendant's second point, nor do we find substantial error in any of the other answers to points, or in those portions of the charge embraced in the respective specifications. The case was fairly submitted to the jury, and the verdict appears war- ranted by the testimony. Judgment affirmed. Rewards, when Earned: See extended note to Hapden v. Souger, 26 Am. Rep. 7, 8. The cases of Crawshaw v. City of Roxbury, 7 Gray, 374, and LouiS' viUe etc. B. R. Co. v. Goodnight, 10 Bush, 552, 19 Am. Rep. 80, there cited, are ia accord with the ruling of the principal case. Altoona Second National Bank v. Dunn. Gardner v, Dunn. [151 pennsylvania state, 228.] Negotiable Instruments — Accommodation Notes with Restrictions. — When the payee of a sealed accommodation note receives it subject to the restriction that it is to be used only in obtaining a loan, he cannot pledge it for an antecedent debt; but if he receives it without restriction as to its use, he may so pledge it. Negotiable Instruments — Accommodation Notes — Defenses against. — Proof that an accommodation note was given subject to the restric- tion that it was only to be used in obtaining a loan is a perfect defense by the maker against it in the hands of a pledgee, to whom it has been given as security for an antecedent debt. Rules to open judgments. Edward T. Dunn and Ellen Dunn, his mother, were indebted to the appellee bank, of which H. A. Gardner was cashier, in the sum of ten thousand dollars, and being called upon for security, said Edward ob- tained judgment notes aggregating ten thousand dollars from three of his brothers and sisters, and presented them to the bank. The bank accepted them as security, and entered up the judgments. The note in suit was given by Maggie Dunn to her brother, the said Edward, upon his representation that it would enable him to obtain a further loan from the bank, and it was given for this purpose. Edward Dunn seems to have received the other notes from his brothers and sisters upon the same representations; but after the bank had re- ceived all the notes from him, and entered up judgments thereon, it refused to make any further loans to him, and as his insolvency followed, the makers of the above notes were Bought to be held responsible for his debt. The rules to open Oct. 1892.] Altoona Second National Bank v. Dunn. 743 the judgments entered up by the bank upon the above notes were discharged, and the makers thereof appealed. Other facts appear in the opinion. John G. Johnson, Martin Belly and John D. Blair, for the appellants. A. S. Landis, Greevy and Patterson, and William S. Ham- mond, for the appellees. Heydrick, J. Conceding that the learned court below was justified by the evidence in the finding that " there was no misrepresentation on the part of Gardner to obtain the notes," it does not follow that the appellant can be held beyond tlie amount, if any, which the bank advanced upon her credit. The plantiff does not claim to have advanced more than about four hundred dollars upon the appellant's credit, and there is some doubt whether that sum was not advanced before the note in controversy was made, and without the knowledge or any promise upon the part of the appellant. While it is quite clear that two of the parties to the note, Edward T. Dunn and Ellen Dunn, were indebted to the bank in the sum of ten thousand dollars, for which it held the note of the latter, in- dorsed by the former, and that it was pressing for security for this indebtedness, it is not pretented that it accepted the note in suit in payment, or surrendered the note which it already held. The cashier says that when Edward handed it to him he told him that it was not what he had promised, and was not satisfactory, and insisted that he get the signatures of the other heirs of his father to it. And when Edward brought in three other judgment notes for $3,333.33^ eacli, signed by three of his brothers and sisters, the appellants in three other cases argued herewith, it does not appear that all together were ac- cepted in payment of the original debt. On the contrary, Mr. Gardner says: " Some time after that (the delivery of the last three notes), Mr. Dunn came in with a receipt drawn up, I do not remember the amounf oft exnctly, but, substiintinlly, it was an acknowledgment oi ou ■ part that both these three notes and the one given by lum a few days before for ten thousand dollars were to secure the note of his mother held by us, and not for twenty thousand dollars indebtedness, as the face of them would show. It appeared to me to be fair and right, and I signed and delivered it to Mr. Edward T. Dunn." The bank, then, uj)on its own showing, held these notes as collateral security for an antecedent debt, and it did not even 744 Altoona Second National Bank v. Dunn. [Penn. give time upon the original debt, because the notes were pay- able one day after date, and the evidence shows that that time must have elapsed before they were accepted. It was not, therefore, a bona fide holder for value: Lord v. Ocean Bank, 20 Pa. St. 384; 59 Am. Dec. 728; Lenheim v. Wilmarding, 55 Pa. St. 73; PraWs Appeal, 77 Pa. St. 378; Royer v. Keystone National Bank, 83 Pa. St. 248; Carpenter v. National Bank of the RejmUic, 106 Pa. St. 170. The next question is as to the character of the note. If it were an accommodation note, — that is to say, commercial paper given without value to enable the party to whom it was given to use it for his own benefit, without restriction as to the man- ner in which it should be used, — there is no question that it could have been pledged as collateral security for an antece- dent debt. " He who chooses to put himself in the front of a negotiable instrument for the benefit of his friend must abide the consequence, and has no more right to complain if his friend accommodates himself by pledging it for an old debt than if he had used it in any other way ": Lord v. Ocean Bank, 20 Pa. St. 384; 59 Am. Dec. 728. And since accommodation paper, strictly so called, in the hands of a pledgee for an an- tecedent debt is open to any defense, except want of considera- tion, that could be made to it in the hands of an original party (Cummings v. Boyd, 83 Pa. St. 372; Carpenter v. National Bank of the Republic, 106 Pa. St. 170), it might be difficult to show why a sealed bill given for accommodation, and without restriction as to the manner of its use, might not be pledged in like manner as a negotiable note. But it is not necessary to decide this point. The note was not signed by the appellant without restriction as to the manner of its use, if she can be believed, and if it had been negotiable, the present defense would have been available; Royer v. Keystone National Bank, 83 Pa. St. 248. She testified that she signed it to enable her brother to obtain a loan; and in this she was not contradicted, nor did the learned court below find that she was unworthy of belief. The expression of this one pur- pose was the exclusion of every other, and a restriction upon the manner in which the note should be used. Being under no obligation to either her brother or the bank, she could with- hold her signature, or give it upon her own terms; and because she had the right to impose terms arbitrarily, there can be no inquiry as to whether the use that was made of the note was Oct. 1892.] Altoona Second National Bank v. Dunn. 745 more disadvantageous to her than that stipulated would have been. For these reasons, the decree of the court below is reversed.. and a procedendo is awarded. Accommodation Paper — Rig-hts and Iiiabllitiea of Makers and In- dorsers.* Nature of Contract. — An accommodation maker or indoraer is a person who has signed a note without receiving value, and for the purpose of lend- ing his name to some other person as a means of credit: Benjamin's Chalmers's Digest, art. 90; Randolph on Commercial Paper, sec. 472; Miller v. Lamed, 103 III, 6G2. An accommodation note, in the strict sense, ia a loan of the maker's credit without inststootious as to the manner of its use: Lenheim v. WUmarding, 55 Pa. St. 73. The party accommodated impliedly agrees to take up the note at maturity, and to indemnify the accommodation maker or indorser against the consequences of non-payment: Reynolds v. Doyle, 1 Man. & G. 753; Asprey v. Levy, 16 Mees. & W. 851. As to third parties, the rights and liabilities of an accommodation party are, in general, the same as those of a party receiving valuable consideration for his signature; but between the accommodation party and the person accommodated, there is no such liability, and one who draws or indorses commercial paper for the accommodation of another is not liable on it to him, whatever their apparent relation upon the paper may be: Miller v. Lamed, 103 111. 562. Liability of Maker or Lidorser. — The contract and liability of an accommo- dation party are, in general, those of a surety for the party accommodated: Noll V. Oberhellinann, 20 Mo. App. 3.36; Child v. Eureka Powder Works, 44 N. H. 354; Oitmmini/s v. Little, 45 Me. 183; Barron v. Cady, 40 Mich. 259; Blakeslee v. I/ewett, 76 Wis. 341. And if he takes up the paper at maturity, the party accommodated will be liable for it as a princip.al is to a surety: Burton T. Slawjhter, 26 Gratt. 914; Lacy v. Lofton, 26 Ind. 324. In some jurisdic- tions, however, an accommodation maker is held liable as a principal, and not as a mere surety, as to a bona fide holder for value, and without notice: Stephens y. Mononijahela Nat. Bank, 88 Pa. St. 157; .32 Am. Rep. 4"8; First Nat. Bank v. Monjan, 6 Hun, 346. The maker of an accommoilation note delivered to the payee to be discounted for his benefit cannot set up want -of consideration as a defense against the holder for value: Waite v. Kal- misky, 22 111. App. 332; Miller v. Lamed, 103 111. 562; Grant v. Ellicott, 7 Wend. 227. The very purpose of making accommodation paper is that the party favored may dispose of it, and unless restricted, he may transfer it, either before or after maturity, and the maker or indorser will be equally bound. The only safe rule is, that when a note is given without restriction as to the time or mode of using it by the party accommodated, and it has been transferred in good faith and in the usual course of business, the holder, if he paid a valuable consideration for it, will be entitled to recover the full amount, although he may have had full knowledge that it was accommoda- tion paper: Winters v. Home Ins. Co., 30 Iowa, 172; Janet v. Berryhill, 25 Iowa, 289; Thompson v. Shepherd, 12 Met. .311; 46 Am. Dec. 676; Thatcher V. [Vest River Nat. Bank, 19 Mich. 196; Powell v. Waters, 17 Johns. 176; Miller V. Lamed, 103 111. 562; First Nat. Bank v. Grant, 71 Me. 374; .36 Am. • REFERENCK TO MONOORAPHIC NOTE. Accommodation paper, defenses available to acceptor of: 1 Am. St. Rep. 136-139 746 Altoona Second National Bank v. Dunn. [Penn. Rep, 334; Seyfert v. Edison, 45 N. J. L. 393. When a note is made to en- able the maker to raise money upon it, and it is indorsed by him for that purpose, the indorsee may recover upon it, not only as against the payee and indorser, but against all others who may have signed it: Norfolk Nat. Bank v. Griffin, 107 N. C. 173; 22 Am. St. Rep. 868. A person who makes his negotiable note, and gives it to another to raise money on, is bound by the note to a third person, who takes it for value; and in this respect there is no difference between a promissory note and a bill of exchange: Hawkins v. Neal, 60 Miss. 256. When such a note is made for the accom- modation of the payee, and is left with him to be used in the general trans- action of his business, it has no vitality while it remains in his possession; but when negotiated by him, it stands on an equality with other commercial paper, and the maker is bound primarily and unconditionally for its pay- ment. When such note is not made for any special purpose, and there is no restriction on it& use by the payee, the title and rights of the holder, as against the maker, are not affected by the fact that he acquired it of the payee after maturity with knowledge of the relation existing between the payee and the maker: Connerly v. Planters etc. Ins. Co., 66 Ala. 432. An accommodation note, indorsed by the payee, and delivered to one of the makers before due, to be negotiated, is not presumed to have been paid, and the person purchasing it in good faith and for value may recover thereon: Morris v. Morton, 14 Neb. 358. When the assignee of accommoda- tion paper again assigns it, before maturity, to an innocent purchaser for value, the latter takes it free of all equities between the first assignee and the payee: Cook v. Norwood, 106 111. 558. An accommodation indorser who signs a negotiable note, leaving the amount blank, and intrusts it to another with authority to fill the blank with an agreed sum, will, as to third persons having no knowledge of the limitations of such authority, be bound by the act of the person to whom the instrument is intrusted, although he fills the blank with a larger sum than that agreed upon: Johnson Harvester Co. V. McLean, bl Wis. 258; 46 Am. Rep. 39. An accommodation indorser cannot set up, in a suit against him and his indorsee, that there was an agreement between them, at the time of putting their names on the paper, that such indorsement should constitute a joint, and not a successive, lia- bility: Johnson V. Ramsey, 43 N. J. L. 279; 39 Am. Rep. 580. An accom- modation indorser on a note may, by agreement between himself and a subsequent indorser, render himself liable to the latter as an actual indorser for value: Le.eke v. Hancock, 76 Cal. 127. Although there is some conflict of authority, the general rule seems to be well settled that several accommodation indorsers on a note are not co- sureties, in the absence of an agreement between them to that effect: Moody V. Findley, 43 Ala. 167. Thus when several persons indorse their names on a note, in order to enable the maker to get it discounted, and some of them afterwards, on the failure of the maker, pay the note, they cannot maintain an action against the others for contribution, without proving that the relation between them was really that of co-sureties; but parol evidence is always admissible to show that such indorsers, by agreement between themselves, constituted themselves co-sureties: Clapp v. Rice, 13 Gray, 403; 74 Am. Dec. 639; Easterly v. Barhn; 66 N. Y. 433. In the absence of such special agreement, an accommodation indorser who is obliged to pay it to a holder for value may maintain an action for the whole amount, as against a prior indorser: Shaw v. Knox, 98 Mass. 214; McCarty v. Roots, 21 How. Oct. 1892.] Altoona Second National Bank v. Dunn. 747 432; McDonald v. McOruder, 3 Pet. 470; McCune v. Belt, 45 Mo. 174; Corf V. Wilson, 40 Ind. 204; Phillips v. Plalo, 42 Hun, 189. A subsequent accommodation indorser who pays the note may recover of a prior indorser the whole amount paid, and not merely a contribution, as in case of sureties. It makes no difference that the iadorsers both knew that each was an accommodation indorser, so long as there is no actual agreement between them to share the liability, nor, in the absence of such agreement, that the object of the indorsements is to enable the maker to get a loan at a bank upon the note, and that they were to operate together as a security to the bank: Kirschner v. Conldin, 40 Conn. 77. When one of two accommoda- tion signers executes a note as a joint maker with the principal debtor, and the other as payee and indorser, and there is no special agreement between them, the former cannot, after paying the note, call upon the latter for con- tribution: Hillegas v. Stephenson, 75 Mo. 118; 42 Am. Rep. .393. When the payee of an accommodation note indorses it in blank, after which it is in- dorsed in blank by two other persons, it will not be presumed that they are joint indorsers to the hokler; but the presumption is, that they are successive indorsers, and the second indorser may be sued alone, without noticing the other indorser: Girens v. Merchants' Nat. Bank, 85 111. 442. In some juris- dictions the rule prevails that indorsers on accommodation paper for the benefit of third persons, when there is no special agreement between them, and when neither is benefited, are to be considered as co-sureties, and only entitled to contribution: Daniel v. McRie, 2 Hawks, 590; 11 Am. Dec. 787; Dawson v. Pettway, 4 Dev. & B. 396. So it was decided in Douglas v. Wad- dle, 1 Ohio, 413, 13 Am. Dec. 630, that accommodation indorsers of promis- sory notes are co-sureties, and that the last indorser cannot recover more than a coutributive share against a previous indorser. This case is criticised, but adhered to, in Barnetv. Young, 29 Ohio St. 11, where the court said, quoting from the former case: " Where there are two or more upon an ac- commodation note, all of whom indorsed before the note became operative bj being transferred to some person not a party, for value received, and all of whom are charged by notice of demand and non-payment, they shall be treated as co-sureties, and contribution shall be made between them as such. Although the doctrine thus laid down and applied to promissory notes is not in accord with the great weight of authority on the subject, j'et the length of time that has elapsed since the decision was made, its having been subse- quently recognized by this court without questioning its correctness, and the fact that the rule as this class of commercial paper is and has been long understood in the state, all unite in roqniring the decision to remain undis- turbed." The rule maintained bj' these Ohio cases also prevails in Vermont: Pitkin v. Flanagan, 23 Vt. KIO; 56 Am. Dec. 61. Pledge as Collateral Seruriti/ or in Payment. — The rule is well settled that one not induced by fraud, who makes or indorses a note or bill for the ac- commodation of another, without restriction as to its use, is liable to a holder or indorsee who receives it in good faith, before due, as collateral security for an antecedent debt or in payment of a pre-existing or concur- rent debt of such holder or indorsee, although there is no other consideration, as the existence of the debt is sufficient consideration for the transfer: Srhepp V. Carpenter, 51 N. Y. 602; Pitts v. Foglesing, 37 Ohio St. 676; 41 Am. Rep. 540; Washington Bank v. Krtcm, 15 Iowa, 53; Fetters v. Muncie Nat. Bank, 34 Ind. 251;" 7 Am. Rep. 225; Grocers' Bank v. Penfield, 69 N. Y. 502; 25 Am. Rep. 231; Miller v. Lamed, 103 111. 562; Quinn v. Hard, 43 Vt. 373; 5 Am. Rep. 284; Kimbro v. Lytic, 10 Yerg. 417; 31 Am. Dec. 585; Dunn 748 Altoona Second National Bank v. Dunn. [Penn. V. Wesion, 71 Me. 270; 36 Am. Rep. 310; Dawson v. Goodyear, 43 Conn. 548; Maitland v. Citizens' Nat. Bank, 40 Md. 540; 17 Am. Rep. 620. Thus •when an accommodation bill is paid by one of the indorsers, and there ia no special agreement that they should be bound to pay in equal proportions as co-sureties, the indorser who takes up the bill may assign it as collat- eral security for a pre-existing debt; and the assignee may recover of the original payee, who is also an indorser: McCarly v. Roots, 21 How. 432. One who takes accommodation paper as collateral for a precedent debt, and surrenders other security for it, is entitled to recover upon it as a holder for value: Bepeau v. Waddiwjton, 6 Whart. 220; 36 Am. Dec. 216. When a note with an accommodation indorsement is pledged to one who afterwards becomes a purchaser of it, he is entitled to recover against the accommodation indorser, even tliough he knew of the accommodation at the time he took the note: Ranson v, Turky, 50 Ind. 273. When such paper has been pledged as collateral, only the amount which is actually due and secured by it can be recovered from the accommodation maker or in- dorser: Atlas Bank v. Doyle, 9 R. I. 76; 9S Am. Dec. 368; Buchanan v. International Bank, 78 111. 500. This is also true when it has been trans- ferred as collateral for advances made at the time, or afterward: Gordon V. Boppe, 55 N. Y. 665. In Alabama and in Pennsylvania, a creditor who receives accommodation paper as collateral security for the payment of a pre-existing debt is not regarded as having acquired it for a valuable con- sideration in the due course of business, and is not entitled to protection against equities or defenses on the part of the maker or indorser, of which he has no notice. This, however, is contrary to the great weight of author- ity: Boykin v. Bank of Mobile, 72 Ala. 262; 47 Am. Rep. 408; Marks v. First Nat. Bank, 79 Ala. 550; 58 Am. Rep. 620; Royer v. Keystone Nat. Bank, 83 Pa. St. 248; Carpenter v. National Bank, 106 Pa. St. 170. Even here, however, it is maintained that if a creditor takes the note in payment of a precedent debt, he becomes a purchaser for value in due course of busi- ness, equally as if he had advanced money on the faith of the note: Marks V. First Nat. Bank, 79 Ala. 550; 58 Am. Rep. 620. Misappropriation. — When accommodation paper is made or indorsed for a restricted or special purpose, and has been fraudulently diverted from the purpose for which it was intended by the payee or indorsee in the payment of a debt, or as collateral security for a precedent debt or otherwise, a holder with knowledge of the purpose for which the paper was made is not a pur- chaser for value, even if he acquires the paper before maturity, so as to free it of all defenses and equities which exist in favor of the maker or indorser. When such paper has effected the substantial purpose for which it was de- signed by the parties, the accommodation maker or indorser cannot object that it was not effected in the precise manner contemplated at the time of its creation; but when the paper is diverted from its original destination, and fraudulently put in circulation by the payee or his agent, the holder cannot recover upon it against the accommodation maker or indorser, unless he received it in good faith in the ordinary course of trade, without notice and for value: Wardell v. Howell, 9 Wend. 170; Small v. Smith, 1 Denio, 583; Moore v. Ryder, 65 N. Y. 438; Grocers' Bank v. Penjield, 69 N. Y. 502; 25 Am. Rep. 231; Thompson v. Poston, 1 Duvall, 389; DaggeU v. Whiting, 35 Conn. 366; Duncan v. Gilbert, 29 N. J. L. 521. Fraudulent Diversion of Accommodation Paper from the purpose for which it was drawn, by pledging it as collateral security for a precedent debt or otherwise, is no defense to an action by a bona fide holder for value and with- Oct. 1892.] Altoona Second National Bank v. Dunn. 749 out notice, before maturity: Firat Nat. Bank v. Hall, 44 N. Y. 395; 4 Am. Rep. 698; Fetters v. Muncie Nat. Bank; 34 Iml. 251; 7 Am. Rep. 225; Mnit- land V. Citizens' Nat. Bank, 40 Md. 540; 17 Am. Rep. 620. Thus when ac- commodation paper is fraudulently diverted from the purpose for which it was made, and a banker, who, without notice of such diversion, takes it from his payee as collateral for a previous loan not yet due, and in lieu and upon Burrender of collateral notes of other parties then past due, and protested for non-payment, which had previously been deposited as collateral to such loan, he is a bona fide purchaser, and entitled to recover against the accommodation maker, notwithstanding the diversion, and although the parties liable on the protested notes, for which this accommodation paper was substituted, were insolvent and the notes wortliless: Park Bank v. Watson, 42 N. Y. 490; I Am. Rep. 573. An accommodation indorser of a note, which is diverted from the purpose for which it was made and indorsed, and is transferred l)y the maker as security for a precedent debt, cannot avail himself of the de- fense of the misappropriation of the note as against one who has received it from the original transferee in the usual course of business, for value, before maturity, without notice of such defense. The latter is within the protec- tion accorded by the law merchant to all Ixma fide holders for value; and when, in such case, the original transferee of the note receives it without any knowledge of a restriction upon the rights of the makers in its use, and transfers it to a bank of which he is a director, the fact that he took it for a precedent debt does not affect the title of the bank: Merchants' Bank v. Comstock, 55 N. Y. 24; 14 Am. Rep. 168. One who takes a note in good faith, for value, before its maturity, without knowledge of the death of the maker, or that it is accommodation paper, may recover on it against the estate of the maker, even though the indorser, for whose accommodation it was made, put it in circulation fraudulently aa against the njaker: Clark v. Thayer, 105 Mass. 216; 7 Am. Rep. 511, When a bill of exchange is drawn and indorsed for the accommodation of the ac- ceptors, upon condition that it shall be discounted at a particular bank, a purchaser of the bill before maturity, without notice of the secret agreement, is not affected by it, though he may have taken the bill in payment of a pre- existing debt: Frank v. Quast, 86 Ky. 649. When a note is made or indorsed as accommodation paper with the understanding that it is to be discounted at a certain bank, or that money is to be obtained upon it in a particular manner, it ia not a fraudulent misappropriation to discount it at a dififerent bank, or to obtain money or credit upon it in a different way from what was intended. If the note eficcts the substantial purpose for which it was de- signed, it is not material that it was not effected in the precise manner con- templated, unless there is fraud, or ther interest of the maker or indorser ia prejudiced. In such case it is not a misappropriation to deposit the note aa collateral security for letters of credit tluis obtained, unless such act ia a fraud upon the maker or indorser, or in some way injuriously affects his in- terest: Duncan v. Gilbert, 29 N. J. L. 521. If an accommodation note is given with an agreement that the payee is to deposit it temporarily as collateral security for a loan to be made to him, but instead of obtaining a new loan, with the note as collateral, he deposits it with a bank as security for money already owing by him to it, this is not a misappropriation, because the paper effects the substantial purpose for which it was designed, though the result is not produced in the precise mode contemplated; and in order to constitute a misappropriation, the misuse must be tainted with fraud: Jackson v. First Nat. Bank, 42 N. J. L. 177. When a note ia drawn, payable at a certain 750 Altoona Second National Bank v. Dunn. [Penn. bank, and is indorsed for the accommodation of the maker, to enable him to raise money with which to purchase barley, and he then applies the note to the payment of a debt which he and another owe at a different bank, this is not such a diversion of the paper as will discharge the indorser, it not appear- ing that at the time of indorsing that the use to which it might be applied was at all important to him: Mohawk Bank v. Corey, 1 Hill, 513. When a note is indorsed by the payee to enable the maker to discount it at a bank for hia accommodation, and the maker, upon being refused by the bank, discounts it to a third person, M'ith knowledge of the circumstances, this does not amount to a fraud which can affect the rights of the holder against the indorser: Powell v. IVaters, 17 Johns. 176; Bank of Chenango v. Hyde, 4 Cow. 567. If an accommodation note is made payable to the accommodation indorser, to be discounted at a particular bank, but instead is sold to a private person, the indorsers thereon are liable, although the sale is made without their knowledge; Parker v. Mr.Dowell, 95 N. C. 219; 59 Am. Rep. 235. When a note is indorsed for the accommodation of the maker, to be discounted at a certain bank, it is not a fraudulent misapplication of the note to discount it at another bank, or to use it in the payment of a debt, or in any other way for the credit of the maker: Parker v. McDowell, 95 N. C. 219; 59 Am. Rep. 235. When an accommodation indorser agrees with the maker of a note that it is to be used only at a certain bank, and such bank, with notice of the agree- ment, advances money upon the note, and retains it as collateral security, it may then dispose of its claim against the maker, and transfer the note as col- lateral security therefor, and such transfer will not constitute a misappro- priation as against the accommodation indorser: Proctor V. Whitcomh, 137 Mass. 303. When the maker of a note, indorsed for his accommodation for a special purpose, misapplied it, and transferred it before maturity as collat- eral security for a debt, part of which he afterwards paid, it was decided that the holder, taking it without notice of its misapplication, might recover of the indorser the unpaid balance of the debt for which it was pledged as security, but no more: Stoddard v. Kiniball, 6 Gush. 469; Duncan v. Gilbert, 29 N. J. L. 521. The fact that accommodation paper is made payable to a particular person or at a particular place does not, without more, prevent the person to whom it is intrusted, and for whose accommodation it is made, from obtaining the money from another. Unless the makers or indorsers have some interest beyond the mere accommodation of their principal, any person may assume that it is an accommodation to advance the amount of money the paper calls for. Thus when mere accommodation makers, having no interest beyond the accommodation of their principal, either in the mode of raising the money, or in the manner in which it is to be applied, sign a note made payable to a named person, the fact that without their consent the note is delivered to another without any alteration, who advances the money upon it, is not such a perversion of the paper as will defeat it in the hands of a holder for value: Meeker v. Shanks, 112 Ind. 207. It is not a good defense to an action by the payee against the makers of a note that such makers are sureties for the principal maker, and that after signing it they intrusted it to him upon the condition that he procure the signature of a designated person as an additional surety, and that he delivered the note to the payee without their knowledge or consent, and without complying with the condition. In such case it must also be averred and proved that the payee, before the delivery to him, had notice of the condition: Jordan v. Jordan, 10 Lea, 124; 43 Am. Rep. 294. Oct. 1892.] Altoona Second National Bank v. Dunn. 751 In order that misippropriation of the paper may be set up as a (lefense by the accommodation maker or iiidorser, it is generally necessary that the party acquiring it have notice of the restricted indorsement, and that the condition has not been complied with, and also that the perversion of the paper from the purpose inteniled by the parties has injuriously interfered with the interest of the maiicr or indorser. When this condition exists, the holder is not considered a purchaser for value, and cannot recover of the maker or indorser ag linst whom the paper has thus been fraudulently diverted. Thus when a bill of exchange, indorsed for accoinmo lation, and delivered to the maker on the express condition that if it is not that day discounted by a particular bank, it is to be returnecl to the indorser or destroyed, and after the hank has refused to discount the l)ill, it is passed to another, with notice, to pay an existing debt, this is such a perversion and misappropriation of the paper as releases the indorser: Hickerson v. Raiguel, 2 Heisk. 329. Wiien a note is signed by a number of persons, it having a condition at- tached to it, in writing, that before its delivery ten solvent persons should sign it, and it is delivered after the condition has been complied with, and detached from the note, the party taking it with knowledge of the condition also takes the risk of the solvency of such signers, and cannot hold the in- dorser, unless the condition has been complied with: Campbell Printing Press etc. Co. V. Powll, 7S Tex. 53. When a note is indorsed in blank, and left with a third person to be signed by the maker and used for a particular pur- pose, and the maker takes it from the depositary without his knowledge, fills it up, and gives it to third parties with notice of the condition, this is such a fraud on the indorser as will release him: Lenheim v. IVilinarding, 55 Pa. St. 73. When an accommodation note is designed to be discounted for the purpose of taking up other paper of the person giving the accommoda- tion, or is otherwise intended for his benefit, a failure to have it thus used is a misappropriation. Thus when a note is indorsed for the accommodation of the maker, and delivered to him to be used in renewal of another note indorsed by the same party, and about to fall due, and it is transferred by the maker in payment of another debt existing against him, it cannot be enforced against such indorser by the creditor taking it with notice of the condition: Warddl v. Howell, 9 Wend. 170; Ka.'ison v. Smith, 8 Wend. 436. If the holder of such p iper misappropriates it with notice, he will be bound to reimburse the party whose name is misused for any resulting loss: Com- 8to<'h V. Ilier, 73 N. Y. 269; 29 Am. Rep. 142. When a pledgee of a note is made a garnishee, he cannot defend on tiie ground that the note is accom- modation paper, pledged for a specific purpose, and not to be enforced against the maker for any other purpose, as such defense can be resorted to by the drawer only when sued upon the note: Kirkpatrich v. Oldham, 3S La. Ann. 653. When the payment of accommodation paper is resisted on the ground that it has been misappropriated, and diverted from the purpose for which it was intended, the burden of proof is generally upon the maker or indorser to show such misappropriation, because the holder is presumed to be a bona ^(ie purchaser for value: Maillund v. Citizens' Nat. ffanA", 40 Md. 540; 17 Am. Rep. 620; Jordan v. Jordan, 10 Lea, 124; 43 Am. Rep. 294; II
enrer v. Sloan, 108 Iiid. 183; Tj Am. Rep. 35; Straug/ian v. Fairchild, 80 Ind. 598; Citizens' Bank v. Payne, 18 La Ann. 222; 89 Am. Dec, 650; Saylor v. Daniels, 37 111. 331; 87 Am. Dec. 250; Fisher v. Fisher, 98 Mass. 303; Allaire v. Hartshorne, 21 N. J. L. 665; 47 Am. Dec. 175; Bank of Ripuhlic V. Can-ington, 5 R. I. 515; 73 Am. Dec. 83; Payne v. Bensley, 8 Cal. 260; 68 Am. Dec. 318. Even in those states in which one taking a col- lateral for an antecedent debt is not protected as a purchaser for value, there is, to some extent, an exception in the case of accommodation paper, for the maker of such paper cannot, as against one to whom it has been transferred as collateral security, successfully resist its enforcement because of its \iant of consideration. " He who chooses to put himself in the front of a ne-'oti- able instrument for the benefit of his friend must abide the consequences; 714 Griggs v. Day. [New York, Walker v. Bank of Montgomery, 12 Serg. & R. 382; and has no more right to complain if his friend accommodates himself by pledging it for an old debt than if he had used it in any other way ": Lord v. Ocean Bank, 20 Pa. St. 384; 59 Ain. Dec. 728; Grocers Bank v. Penjield, 69 N. Y. 502; 25 Am. Rep. 231; Kimbro v. Lytle, 10 Yerg. 417; 31 Am. Dec. 585; Appleton v. Donald- son, 3 Pa. St. 381; note to Altoona S. Nat. Bank t. Dunn, 31 Am. St. Rep. 747, 748. He may, however, in those states interpose as against such paper every defense except want of consideration: Cummings v. Boyd, 83 Pa. St. 372; Carpenter 7. National Bank, 106 Pa. St. 170; as that the note was given subject to the restriction that it should be uned for a specified purpose only, which purpose did not include the right to pledge it except for a subsequent loan: AKoona S. Nat. Bank v. Dwin, 151 Pa. St. 228; 31 Am. St. Rep. 742. Rights of Holder are Restricted to his Interests. — A holder of collateral se- curity is in no instance entitled to be protected as a purchaser thereof except in BO far as may be necessary to enforce payment of the obligation to secure which it was given. If the title of the transferrer was imperfect or fraudu- lent and his transfer was in derogation of the title or interest of some other person, the latter, though he may be required to recognize the transfer and permit it to stand for the purpose for which it was given, may, in all other respects, assert his rights and compel payment to himself of any surplus re- maining after the satisfaction of the obligation for which his property stood as collateral security: Merchants' Bank v. Livingston, 74 N. Y. 223; Kellogg v. Thompson, 142 Mass. 76; In re Bonner, 8 Daly, 75. So where the maker has a defense as against the origiaal payee of a negotiable instrument transferred as collateral security, the holder is in no event entitled to enforce such in- strument, except to the amount of the debt which it was pledged to secure, as where the instrument was an accomodation paper: Atlas Bank v, Doyle, 9 R. I. 76; 98 Am. Dec. 368; 11 Am. Rep. 219; Chicopee Bank v. Chapin, 8 Met. 40; Farwell v. Importers' Nat. Bank, 90 N. Y. 483; Stoddard v. Kimball, 6 Cush. 469; or defenses. Farmers' etc. Bank v. Blevins, 46 Kan. 536, or offsetts. Second Nat. Bank v. Hemingray, 34 Ohio St. 381, exist in favor of the maker. The Rights of the Holder of a Collateral Security must necessarily be com- mensurate with his title. In other words, he must be allowed to possess, enforce, and enjoy the security and the profits and accumulations thereof, so far as may be necessary to the discharge of his debt. "A bond or chose which is transferred as collateral security is put under the dominion of the creditor to make his claim out of it": Cluimbersburg Ins. Co. v. Smith, 11 Pa. St. 120. "A creditor who holds collateral security for the protection of his debt stands in a different relation to the assignor of the collateral, though the latter be his debtor. By the assignment a privity is created or estab- lished which invests the assignee with the ownership of the collateral for all purposes of dominion over the debt assigned. He is alone empowered to re- ceive the money to be paid upon it and to control it in order to protect his right under the assignment." Harma v. Holton, 78 Pa. St. 334; 21 Am, Rep. 20. The assignor, therefore, loses all control over the paper, his dominion, if not entirely and finally extinguished, is at least suspended until by the payment of the obligation the title and rights of the holder of the collateral are ter- minated; and therefore, the assignor, if the collateral be a note or other in- strument for the payment of money, has no power to forbid or excuse such payment nor to attach conditions thereto: Johnston v. Allen, 22 Fla. 224; 1 Am. St. Rep. 180; and no payments made to him can discharge the obli- gation to the prejudice of one holding it as collateral security: Blake v. Buchanan, 22 Vt. 548. Nov. 1892.] Griggs v. Day. 715 Eights 0/ Holder of Stocks. — If the property held as collateral security con- aiats of the stock of a corporation, the holder is, for the time being, entitled to all the rights and privileges of a stockholder. His right to any dividenda which may be declared is paramount to that of his pledgor, and he may re- cover them of the corporation if they remain unpaid, or of the pledgor if they have been wrongfully received by him: Merchants' Nat. Bank v. Richards, 6 Mo. App. 454; Oaty v. Holliday, 8 Mo. App. 118; Oemmell v, Davis, 75 Md. 546: 32 Am. St. Rep. 412, 416. There is certainly a want of harmony in the views expressed by text writers and in some of the decisions respect- ing the riglit of the holder of stock for collateral security to vote it at those elections of the corporation in which its stockholders are entitled to par- ticipate. Sometimes it is said that the pledgee has no right to vote, although the stock stands in his name on the books of the corporation, and at other times the view has been expressed that equity may, at the in- stance of the pledgor, compel the re-assignment of the stock to him for the purpose of voting, or may otherwise prevent its being used or voted to hii injury by the pledgee. We doubt the correctness of either of these views. The title or interest of the holder of stock for collateral security is certainly paramount to that of the pledgor thereof. Therefore, there is no reason why tlie latter, rather than the former, should be permitted to participate in corporate elections. At all events, we think it well settled now that if the stock, though in fact held as security, has been so transferred upon the books of the corporation that its holder as collateral there appears to be the owner thereof, he has the same right to vote as if his ownership were absolute instead of conditional or qualified: Hop-pin v. Buffum, 9 R. I. 513; 11 Am. Rep. 291; Franklin Bank v. Commercial Bank, 36 Ohio St. 350; 38 Am. Rep. 594; Vail v. Hamilton, 85 N. Y. 453; and it may be said gener- ally that the holder of stock as collateral security has the same rights as an absolute owner thereof, including the right to protect it from waste and diminution: Baldwin v. Canjield, 26 Minn. 43; to hold it free from all liena and claims of the corporation not assertable against it were he its absolute owner: Neic Orleans etc. Co. v. Wiliz, 10 Fed. Rep. 330; Bank of Holly Springs v. Pinson, 58 Miss. 421; 38 Am. Rep. 330; and also against the claims of all creditors of the pledgor, whether by attachment or otherwise, whose liens do not antedate the transfer to him: Mercha/U.-i' etc. Bank v. Richards, 6 Mo. App. 454; 74 Mo. 77; Moore v. Bank, 52 Mo. 379; Continental Nat. Bank v. Eliot Nat. Bank, 7 Fed. Rep. 369; Nabringv. Bank of Mobile, 58 Ala. 204; Broadway Bank v. McElrath, 13 N. J. Eq. 24; Early's Appeal, 89 Pa. St. 411; Eby v. Guest, 94 Pa. St. 160; Fm-ser v, Charleston, 11 S. C. 487-519; Cornick v. Richarch, 3 Lea, 1; Beckwith v. Burroiigh, 13 R. I. 294; Cheever v. Meyer, 52 Vt. 66; Colt v. Ices, 31 Conn. 25; 81 Am. Dec. 161. These rules are equally applicable to the transfer of warehouse receipts or of bills of lading as collateral security. The transferree becomes to the ex- tent of his debt the owner of the property represented by such receipt or bill, and entitled to protect and vindicate his rights in the same manner and to the same extent as if the transfer to him were absolute: Davis v. Rmsell, 52Cal. 611; 28 Am. Rep. 647; Cartwri./ht v. Wibuerding, 24 N. Y. 521; Si. Louis Nat. Bank v. Ros.i, 9 Mo. App. 399, 411; Fourth Nat. Bank v. St. Louis Cotton Co., 11 Mo. App. 333, 341; Stewart v. P/wenix Ins. Co., 9 Lea, 104; Whitney v. Tihhit,^, 17 Wis. 359; Gibson v. Stevens, 8 How. 384; First Nat. Bank v. Bates, 1 Fed. Rep. 702. The Creditors of the Pledgor have no legal right to object to the pledge where the circumstances attending it are not such as to make it fraudulent as 716 Griggs v. Day. [New York, against them if it were an absolute transfer: Lmie v. Sleeper, 18 N. H. 209; nor after it is made, have they any right to insist upon its retention by the pledgee. He may, therefore, if he sees proper, return it to his debtor, re- linquishing all rights thereunder and electing to proceed upon the principal obligation alone, without giving the other creditors any just cause of com- plaint or interference: In re Dyott, 2 Watts & S. 403. As the pledgee has the riglit to retain possession of the property pledged until his debt is paid, such possession should certainly be deemed to be held in subordination to the rights of the pledgor, and perhaps it is impossible for it to be adverse so as to confer upon tlie pledgee any prescriptive title to it, as against the pledgor or his successors in interest: Cross v. Eureka etc. Canal Co., 73 Cal. 302; 2 Am. St. Rep. 803. There is, however, no objection to the pledgee's acquiring the title of the pledgor in any manner not incon- sistent with the pledge, and therefore the former may purchase and acquire the title of the latter at an execution sale: Cla7-k v. Holland, 72 Iowa, 34; 2 Am. St, Rep. 230. Where a collateral security is in the hands of a creditor, the right to pros- ecute an action iipon his original debt may terminate through the operation of the statute of limitations. Two strange and equally incorrect views re- specting his rights have been expressed, one being that his right to the col- lateral security thereupon becomes absolute, and that he is exonerated from accounting to his debtor for it or its proceeds, and the other, that he loses all right to it, and can no longer enforce it for any purpose whatever: Bussell V. La Rouqe 13 Ala. 149; Van Eaton, v. Napier, 63 Miss. 220. In one state, on the other hand, the continued existence of the collateral security has been held to suspend the running of the statute of limitations and to prevent its .operating against the maintenance of any action on the original debt: Blanc V. Hertzog, 23 La. Ann. 199; Police Jury v, Duralde, 22 La. Ann. 107; Citizens Ba)ik v. Knapp, 22 La. Ann. 117. But assuming the statute to run against the original debt, this certainly has no effect on the collateral. The operation of this statute, in the absence of any statute giving it a different effect, is merely to destroy the remedy without affecting the riglit. It does not cancel the debt nor bar any proceeding other than the action, the right to maintain which has been lost by the statute: Belknap v. Gleason, 11 Conn. 160; 27 Am. Dec. 721; Ludlow v. Van Camp, 7 N. J. L. 113; 11 Am. Dec. 529; Pittsburgh etc. R. R. Go. v. Bi/ers, 32 Pa. St. 22; 72 Am. Dec. 770. There- fore, if the creditor held the collateral security before the statutory bar against the original debt was perfected, he may continue to hold it after- wards, and may bring any appropriate action thereon as long as such colla- teral itself is not barred; and has the right to apply the proceeds of such action, or of any proper disposition he may make of his collateral, to the satisfaction of the original debt: Hancock v. Franklin his. Co:, 114 Mass. 155; Chateau v. Allen, 70 Mo. 290, 341; Roots v. Mason City etc. Co., 27 W. Va, 483. Purpose for which Collateral Maybe Held. — We have already had occasion to state incidentally that the title and rights of the holder of collateral se- curities were restricted to the principal debt. It follows from this that when such debt is paid the pledgor of the collateral security becomes en- titled to it, or so much of it as remains after such payment. Whenever the collateral was given for any specific purpose, the holder has no right to re- tain it, or any of its proceeds, after that purpose has been accomplished. Though the pledgor may be indebted to the holder of the security upon other obligations, the latter has no right to retain it or its proceeds for the Nov. 1892.] Griggs v. Day. 717 purpose of securing or satisfying such other liabilities: PJiillips y. Thompson, 2 Johns. Ch. 418; 7 Am. Dec. 5.3,'); Masonic Savifujs Hank v. Bantjfs, 84 Ky. 135; 4 Am. St. Rep. 197; Sckifer v. Feagm, 51 Ala. 835; Teutonia Nat. Bank V. Loeh, 27 La. Ann. 110; Talma;;e v. T/iird Nat. Bank, 91 N. Y. 531; Wycknff V. Anthony, 9 Daly, 417; Dvncan v. Brennan, 83 N. Y. 487; Loyd V. Lynchburg Nat. Bank, 86 Va. 690; San Antonio Nat. Bank v. Blocker, 77 Tex. 73. If the purpose for which the collateral security was given is ex- pressed in writing, such writing is not subject to be varied or contradicted by parol evidence for the purpose of showing that tlie collateral may be held to secure some other indebtedness not mentioned in the writing: Hardie v. Wright, 83 Tex. 345; Roosevelt v. Mark, 6 Johns. Ch. 266. If the purpose of giving the security does not clearly appear but there is no doubt that but one indebtedness existed against the pledgor and in favor of the pledgee at the time the security was given, it \«ill be presumed to have been made for the pur[iose of securing that indebtedness only, and its application to suba-- quently accruing indebtedness will not be permitted without the assent of the pledgor: Buckley v. Garrett, 60 Pa. St. 333; 100 Am. Dec. 564. The rule that a collateral security can be held or applied only upon the obligation which it was given to secure does not prevent its retention for and application to the satisfaction of that obligation in any changed form. Thus though the principal debt is prosecuted to, and merged in, a judg- ment, the right to hold the security is not lost. It may be held for and ap- plied to the satisfaction of the judgment: Smith v. Strout, 63 Me. 205; Charlen V. Coker, 2 S. C. 122; King v. Hutchina, 28 N. H. 561; Finher v. Finher, 98 Mass. 303. The renewal of a note is not as between the parties presumed to discharge or satisfy the pre-existing debt but merely to extend the time for its payment. It is at most a change in the evidence of the debt and not in the debt itself. Therefore every collateral security given for the original evidence of the debt stands equally good for the new evidence. Hence such collateral may be held for the satisfaction of a note given as a mere renewal of a pre-existing note for the payment of which such collateral was originally pledged: Shreivshury Savings Institution's Appeal, 94 Pa. St. .'')09; Me. Lead. Cas. 402, 403; Lawrence v. McCalmont, 2 How. 426; Ki-^er v. Ruddick, 8 Black f. 382. The law implies on the part of the pledgee, from the nature of the transac- tion, an agreement to use such care to protect the pledgor's interest and make the pledge available. Accordingly, if the pledge consists of indorsed negotiable paper, the pledgee must present it for payment at maturity, and, if it is not paid, must give notice to charge the indorser, or, if loss ensues, he will be liable to make it good: 1 Am. Lead. Cas. 123, 124; McLaughan v. Bovard, 4 Watts, 308; Ormsby v. Fortune, 16 Serg. & R 302; and there are cases which go so far as to hold that the pledgee will be liable for neglecting to put the collateral in suit, when a prudent man would do it. if any loss re- sults from the neglect: Lamberion V. IFiw^om, 12 Minn. 232; 90 Am. Dec. 301; Wakeman v. Oowdy, 10 Bosw. 208; Slevin v. Morrow, 4 Ind. 425; Ex parte Mure, 2 Cox, 63; Williams v. Price, 1 Sim. & St. 581; Lyon v, Huntingdon Bank, 12 Serg. & R. 61; Hoards. Garner, 10 N. Y. 261; but see 1 Am. Lead. Cas. 404. This being the law, we do not see how defendant can justify her neglect to collect the installments of interest as they accrued, especially when we consider how cheap and expeditious a means she had of enforcing pay- ment in the powers of sale contained in the mortgages. We have no hesi- tation, therefore, in holding that, havmg neglected to enforce the ptiyment of the interest when she could so easily have done so, she must herself be held responsible for it": Whitin v. Paul, J 3 R. I. 42. The cases in which the bolder of collateral has been held answerable for loss of the debt, through his failure to prosecute an action thereon, where the statute of limitation has not interposed through his inaction, are very infrequent, and we do not know of any in which his liability has been enforced, except when he was asked by the pledgor to take action and refused, or circumstances were called to his attention making it manifest to a man of ordinary intelligence that inaction must almost certainly result in loss. If it appears that the maker of the collateral was insolvent when it was transferred to the pledgee, and 80 continued, no laches will be imputed to the latter: Powell v. Heni-y, 27 Ala. 612. When the principal debt is paid, then the only duty of the holder of the collateral is to keep it safely until he can return it to the pledgor, and Nov. 1892.] Griggs v. Day. 721 he does not owe any duty to the latter, after such payment, to take steps for the collection of the collateral: Overlook v. Hillf!, 8 Me. 383. The holder of negotiable securities, whether they consist of negotiable in- struments or not, must exercise at least ordinary care in keeping them safely and thus preserving them from loss: Petty r. Overall, 42 Ala. 145; 94 Am. Dec. 6.34; Jones on Pledges, sec. 403-405, 410, and this duty does not ter- minate on the payment of the principal debt if the securities have not been surrendered to the pledgor. Thus where a bank received as collateral secu- rity certain bonds, coupons, and stocks, the title to which was transferable by delivery, and which, after the payment of the principal debt, were stolea from the custody of the bank through its failure to exercise ordinary care, it was held to be answerable for the loss: Third Nat. Bank of Baltimore v. Boyd, 44 iMd. 47; 22 Am. Rep. 35; but something more than the loss of the securities is required to make the holder answerable. Such loss must have resulted from his failure to exercise ordinary care: Mills v. Gilhreth, 47 Me. it20; 74 Am. Dec. 7S7; Jones on Pledges, sees. 510, 511. Therefore if they are lost by burglary or larceny without there being any want of ordinary care on the part of the holder, he is not answerable: IVinthrop Sav. Bank ^. Jack'ion, 67 Me. 590; 24 Am. Rep. 56; Jenkins v. National etc. Bank, 58 Me. 275; Dearborn v, Union Nat. Bank, 51 Me. 369. The duty ot the pledgee is not to be measured, or necessarily to be judged, by_ the man- ner in which he takes care of his own property. It is merely to exercise ordinary care, and is not increased by the fact that he exercises unusual care and diligence in his own afiairs and in the protection ol his own inter- ests, nor is it diminished by the fact tha^, he is negligent and inattentive to his own interests as well as to those of others committed to his care. In all instances there must be exercised such care and diligence in the custody of collaterals as persons of common prudence would exercise under like circumstances in keeping similar property: Third Nat. Bank oj Baltimore v. Boyd, 44 Md. 47; 22 Am. Rep. 35; Scott v. Crews, 2 S. C. 522, 535. If the property taken does not consist of choses in action to be collected by suit, but of stocks or other property which the creditor is given power to sell and to ajiply the proceeds to the payment of his debt, he may, by not acting promptly suffer the property to remain in his hands unsold until it is wholly or partly lost or destroyed, or has depreciated in value, so that it clearly appears that it would liave been better for the pledgor if the pledgee had promptly exercised his power to sell; and then the question presenting itself for decision is, which of the parties n.ust bear the loss of the creditor's inaction. If the pledgor has not demanded that the power to sell be exer- cised and the property disposed of, the authorities agree that the pledgee does not owe to him tlie duty of selling upon default in the payment of the princi- pal debt, nor at any other particular time- Colquitt v. StiiUz, 65 Ga. 305; Boh- insonv. Hurley, 11 Iowa. 410; 79 Am. Dec. 497; Richardson v. I nsurance Co. , 27 Gratt. 749; R(yzet v. McCleUan, 48 111. 345; 95 Am. Dec. 551; Howard v. Brig- ham, 98 Mass. 133; O'Neill v. Whiury in such action, because if it has been disposed of, or proceeds from it have otherwise been realized, they should be credited on the principal debt, and an issue respecting them may be tendered by the answer, and the plaintiff required to account for the proceeds of the collateral. So, though nothing has been realized from the collateral, yet if the failure to realize has arisen from such want of diligence that the holder is answerable for the face value of the collateral, or to any other extent, he can recover on the principal debt only so much thereof as remains unpaid after charging him with the amount of the collateral for which he has become answerable through his negligence or want of diligence: Rceres v. Plough, 41 Ind. 204. If the prin- cipal debt is secured by an indorsement, or guaranty, or other contract of 728 Griggs v. Day. [New York, suretyship, tlie creditor's right of action against the indorser, guarantor, or surety is not saspeuued by reason of the existence of the collateral securitj', nor can any of them, in the absence of an agreement to the contrary, insi«t that tlie collateral security shall be first exhausted or pursued before main- taining an action against him: First Ni, 12 N. J. Eq. 329. The fact that a bond or coupon will not fall due for a long period of time, and therefore cannot be collected by suit within the time in which the parties apparently contemplated that the principal debt should be paid, con- stitutes an unanswerable reason for deciding that the holder of it as collateral should be allowed to sell it where it has a market value, at any time after the maturity of the principal debt, and apply the proceeds to the extinction of that debt. We apprehend, however, that the existence of this reason ia not indispensable to the authority to sell, and that if the security held aa collateral is one of a class having a market value, and being sold from time to time in the market as the stocks of corporations are, then that the pledgee has an implied authority to sell it under the same circumstances as would authorize a sale of such stocks had they beeu^jledged as collateral for the same debt: Water Power Co. v. Brown, 2U Kan. 67t>; Alexander etc. B. R. Co. V. Burke, 22 Gratt. 254. Remedy by Foreclosure. — If the collateral is not made available by volun- tary payment or by suit thereon, then the only mode which can be lawfully pursued by the holder is to sell either by judicial sale or by a sale which, though not judicial, is authorized either by an express agreement or by the agreement which is implied from the contract of pledge. Whether in the case of ordinary choses in action, collectible by suit, a court of chancery will at the instance of a holder as collateral, direct them to be sold, is a doubtful question, but upon principle, relief must be denied where the holder has an adequate remedy by action at law against the makers of the collateral: Whitteker v. Charleston Gas Co., 16 W. Va. 717. If, however, for some cause not attributable to the holder of the collateral, he cannot pursue his action thereon without great difficulty, chancery may grant him relief by directing a sale, as where the maker of the collateral ia not witliin the state, and has no property therein, so that no action against him could be effective unless prosecuted in the courts of another state or nation: Donohoe v. Gamhle, 33 Cal. 340; 99 Am. Dec. 399; Garter v. Wake, L. R. 4 Ch. Div. 605. Unless an exception exists in the case of choses in action having no readily ascer- tainable market value and collectible by suit against the makers thereof, there is no doubt that in every case a holder of collateral may resort to equity and there obtain a decree fixing the amount for which the property is liable to be sold, and directing a sale to be made by an officer of the court and the proceeds to be applied to the payment of the principal debt: Sharpe V. National Bank, 87 Ala. 645; Stearns v. Marsh, 4 Deuio, 227; 47 Am. Dec. 248; Robinson v. Hurley, 11 Iowa, 410; 79 Am. Dec. 497, and note, p. 503. The advantages of proceeding in chancer}' are that the amount of the debt and the right to sell the proi)erty for its payment are established beyond any further controversy, and the holder of the collateral has the right to bid at the sale, and may thus prevent any eacritice of hia interest for want of 730 Griggs v. Day. [New York, bidders: Newport etc. Co. v. Douglass, 12 Bush, 673; Quincy v. White, 63 N. Y. 376. The parties may by tlieir contract declare the circumstances under which the holder of the collateral is authorized to sell it, and provide what steps shall be taken by him before such sale, and such agreement, unless fraudu- lent or contrary to public policy, is binding upon both parties, and a sale pursuant to it is valid: AIcDoivellw. Chicago etc, Co. 124 111. 491; 7 Am. St. Rep. 381; Jeanes's Appeal, 116 Pa. St. 573; 2 Am. St. Rep. 624; Union T. Co. V. Rigdon, 93 111. 458; Baker v. Drake, 66 N. Y. 518; 23 Am. Rep. 80; Carson v. loioa City etc.. Co., 80 Iowa, 638. If by the contract, the loan for which collateral is given, is made payable on one day's notice, and the holder of the collateral is authorized to sell withbut further notice, all notice of the time and place of sale is dispensed with, and the only obligation of the holder of the collateral is to sell it publicly and fairly for the best price he can obtain: Maryland etc. Ins. Co. v, Dalrymple, 25 Md. 242; 89 Am. Dec. 779. So where stocks were pledged, and the pledgee, in the event that they were not redeemed before a day specified, was " authorized to give the stock to any broker to sell on such day," it was held that this authorized a sale by any broker by private sale or in any other way: Bryson v. Rayner, 25 Md. 424; 90 Am. Dec. 69. Pledgee's Remedy by Sale. — If the parties do not make any express agree- ment concerning the power of the pledgee to sell and the time and manner in which it may be exercised, then one is implied and is to the effect that at any time after default in the payment of the principal debt, the holder of the collateral may demand that it be paid, or, in other words, that the pledged property be redeemed, and such demand not being complied with, may sell the property at public auction after first giving the debtor reasonable notice of the time and place of the sale, and a sale in the absence of such demand and notice is invalid: McDowell v. Chicago etc. Co., 124 111. 491; 7 Am. St. Rep. 381; Jeanes's Appeal, 116 Pa. St. 573; 2 Am. St. Rep. 624; King v. In- suranceCo., 58 Tex. 669; Wilson v. Brannan, 27 Cal. 258; Merchants' Nat. Bank V. Thompson, 133 Mass. 482; Stearns v. Marsh, 4 Denio, 227; 47 Am. Dec. 248; Lucketts v. Townsend, 3 Tex. 119; 49 Am. Dec. 723; Gay v. Moss, 34 Cal. 125; Robinson v. Hurley, 11 Iowa, 410; 79 Am. Dec. 497; Diller v. Bra- baker, 52 Pa. St. 498; 91 Am. Dec. 177; Brightman v. Reeves, 21 Tex. 70; Conyngham's Appeal, 57 Pa. St. 474. While there are many decisions declar- ing that the pledgor must have reasonable notice of the time and place of the sale in order that he may know when his opportunity to redeem will termi- nate, and may, if he can, procure persons to attend the sale and bid thereat, the authorities are singularly silent with respect to the giving of notice of the sale to the general public. Without some such notice it is clear that the property must ordinarily be sacrificed for want of bidders; for to bring out bidders persons interested in the class of property to be sold must in some way have their attention called to the sale. The authorities do, however, make it clear that in the absence of any controlling agreement to the contrary the sale shall be at public auction, and we infer from this that it must be preceded with such public notice as is ordinarily given for auction sales of like property in the same locality. If the agreement between the pledgor and the pledgee purports to authorize the latter, on default of the payment of the principal debt to make the money out of the pledged property in the best way he can and to sell the same for that purpose, it was held that the power should be construed to be such a power as exists in respect to pledges generally, and that it must be pursued in the same way, and therefore cau Dec. 1892.] Sopeb v. Brown. 73i- be exercised only upon reasonable notice to the debtor to redeem and of the time and place of sale: Ooldsmldt y. First M. E. Church Trustees, 25 Minn. 202. In one instance in which the contract expressly stipulated for notice to the debtor, it was held that a sale without such notice should be sustained where it had become impossible te give it: City Bank v. Bahcork, 1 Holmes, 181. The better opinion appears to be, that in the event of the making de- mand for payment and the giving notice of the sale to the debtor becoming impossible, the creditor cannot proceed without them, but must resort to a suit in equity to foreclose the pledge: Strong v. National etc. A&s'n, 45 N. Y. 718; Stearns v. Mursh, 4 Denio, 227; 47 Am. Dec. 248; Qarlick v. James, 12 Johns. 150; 7 Am. Dec. 294. There is no doubt that a debtor may waive the de- mand to redeem and the notice of the time and place of the sale: Fitzgerald V. Blocher, 32 Ark. 742; Hamilton v. State B in prelereuee to the grandchildren ui the testator. M .^ -n <~~> vIOSANl C3 jnv>jo>^ >^^iIBR; >&A«V}J .sVlOSAH ,c> c:? .<^l ''u'Oiii'^ n 33 UIFO% A^H- C5 ^•1 !>! 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