UCSB LIBR-ART DIGEST OF THE CASES REPORTED IN ANNOTATED CASES (American and English) 1916C TO 1918B WITH TABLE OP CASES REPORTED AND INDEX OF THE ANNOTATIONS BANCROFT-WHITNEY COMPANY EDWARD THOMPSON COMPANY SAN FRANCISCO NORTHPORT, L. I., N. Y. 1918 1918 COPYBIGHT, 1918 BY BANCROFT-WHITNEY COMPANY AND EDWARD THOMPSON COMPANY SAN FBANCISCO THE FILMER BEOTHEBS ELECTEOTYPE COMPANY TYPOGRAPHERS AND STEREOTYPERS TABLE OF CASES REPORTED IN ANN. CAS. 1916C-1918B Aarons T. State 105 Miss. 402 1916E Ackeret v. Minneapolis 129 Minn. 190 1916E Acme Brewing Co., Howard v. 143 Ga. 1 1917A Acme White Lead, etc. Works, Adams v. 182 Mich. 157... 1916D Adair, Faisan v. 144 Ga. 797 1918A Adam v. Ward [1917] A. C. 309 1917D Adams v. Acme White Lead, etc. Works 182 Mich. 157. . 1916D Adams, Embry v. 191 Ala. 291 1917C Adams, McKinney v. 68 Fla. 208 1917B Adams v. Tanner 244 U. S. 590 1917D Adams, Watson v. 187 Ala. 490 1916E Adams Express Co. v. Allen- dale Farm 116 Va. 1 1916D Addis v. Applegate, 171 Iowa, 150 1917E Adleman v. Ocean Accident, etc. Corp. 130 Md. 572 1918B Admiralty Commissioners v. S. S. Amerika [1917] A. C. 38 1917B Aetna Life Ins. Co., Johnson v. 158 Wis. 56 1916E Aetna Life Ins. Co., Little Cahaba Coal Co. v. 192 Ala. 42 1917D Aetna Life Ins. Co., Moore v. 75 Ore. 47 1917B Aetna Life Ins. Co. v. Taylor 128 Ark. 155 1918B Agar v. Streeter 183 Mich. 600 . 1916E PAGE PAQB Age-Herald Publishing Co. v. 263 Waterman 188 Ala. 272... 1916E 900 Aitchison, Sherod v. 71 Ore. 897 446 Aitken, Brown v. 88 Vt. 148 . 91 A. J. Lyon & Co., Southern Pacific E. Co. v. 107 Miss. 689 777 1917D 171 243 A. J. White & Co., Dennis v. [1917] A. C. 479 1917E 325 249 Akers, Compton v. 96 Kan. 229 1918B 983 689 Akron v. MeElligott 166 Iowa, 297 1916E 692 1024 Alabama City, etc. B. Co. v. Gadsen 185 Ala. 263 1916C 573 326 Alabama Fuel, etc. Co., State v. 188 Ala. 487 1916E 752 973 Alabama Power Co. v. Key- stone Lime Co. 191 Ala. 58 1917C 878 565 Alachua County, Gainesville v. 69 Fla. 581 1917D 843 894 Albany Guardian Society, Al- bany Hospital v. 214 N. Y. 332 435 1916D 1195 Albany Hospital v. Albany 730 Guardian Society 214 N. Y. 435 Albert Pick & Co. v. Jordan 877 169 Gal. 1 Alderson v. Kahle 73 W. Va. 603 690 Alerton, Deeble v. 58 Colo. 166 863 Alexander's Estate, In re 246 Pa. St. 58 1005 Alexander, Barton v. 27 Idaho 236 1122 Alexander City Cotton Mills Co., Thompson v. 190 Ala. 518 184 1917A 721 (iii) CASES REPORTED. Alexandria v. Police Jury 139 La. 635 Alger Logging Co., Susznik v. 76 Ore. 189 Allen v. Almy 87 Conn. 517. Allen, Ball v. 216 Mass. 469 Allen, London County Council v. [1914] 3K. B. 642 Allen v. Wedgwood [1915] 1 Ch. 113 Allendale Farm, Adams Ex- press Co. v. 116 Va. 1 Allis-Chalmers Co. v. Atlan- tic 164 Iowa, 8 Allred's Will, In re 170 N. Car. 153 Almy, Allen v. 87 Conn. 517 Altman, Fields r. 193 Ala. 160 American Bauxite Co. v. Dunn 120 Ark. 1 American Board of Com'rs, First Baptist Church v. 66 Fla. 441 American Express Co. v. Beer 107 Miss. 528 American Express Co., Com- monwealth v. 167 Ky. 685. American Express Co. v. Fox 135 Tenn. 489 American Express Co., James Clark Distilling Co. v. 242 U. S. 311 American Express Co. v. Terry 126 Md. 254 American-Hawaiian Engineer- ing etc. Co. v. Butler 165 Cal. 497 American Ice Co. v. Fitzhugh 128 Md. 382 American Ins. Co., Dinneen v. 98 Neb. 97 American Lumber, etc. Co., W. G. Ward Lumber Co. v. 247 Pa. St. 267 American Motor Car Sales Co., Meixell v. 181 Ind. 153 American National Bank v. Dannellan 170 Cal. 9 American National Ins. Co., Scarborough v. 171 N. Car. 353 American Silk Spinning Co., Weber v. 38 R. I. 309 American Southern Nat. Bank v. Smith 170 Ky. 512 American Surety Co., Frost v. 217 Mass. 294 American Surety Co. v. Pang- burn 182 Ind. 116 American Surety Co.. State for Use of Mills v. 26 Idaho, 652 Amoss, National Bank v. 144 Ga. 425 Anderson, Chicago, etc. R. Co. v. 182 Ind. 140 PAGE 1918A 362 1917C 1917B 1917A 1916C 1917B 1916D 1916D 1916D 1917B 1918B 19170 1916D 1916D 1916E 1918B 1917B 19170 19160 1917D 1917B 1918A 1916D 19170 1917D 1917E 1918B 1917A 1916E 1916E 1918A 1917A 700 112 1248 932 924 894 910 788 112 189 625 404 127 875 1148 845 650 44 33 1246 451 375 744 1181 153 959 583 1126 209 74 182 PAGE Anderson, Eakin's Adminis- trator v. 169 Ky. 1 1917D 1003 Anderson v. Great Northern R. Co. 25 Idaho 433 1916O 191 Anderson v. International School District 32 N. Dak. 413 1918A 506 Anderson r. Knotts 181 Ind. 434 1916D 868 Anderson, Nashville, etc. Ry. v. 134 Tenn. 666 1917D 902 Anderson v. Royal League 130 Minn. 416 1917O 691 Anderson v. Shockley, 266 Mo. 543 1918B 500 Anderson, Tucker v. 172 Iowa 277 1918A 769 Andrejwski v. Wolverine Coal Co. 182 Mich. 298 1916D 724 Andrews v. South Haven 187 Mich. 294 1918B 100 Andrews r. Tuttle 45 Utah 98 1918A 475 Anheier v. De Long 164 Ky. 694 1917A 1239 Ann Arbor R. Co., Wells v. 184 Mich. 1 1917A 1093 Anthony v. Kiefner 96 Kan. 194 1916E 264 Appam, The 243 U. S. 124. .. 1917D 442 Applegate, Addis v. 171 Iowa 150 1917E 332 Application of State, etc., In re 40 Okla. 145 1916E 399 Archer T. McClure 166 N. Car.- 140 1916C 180 Archuleta v. Freeland 61 Colo. 485 1918A 23 Arkansas Cotton Oil Co., State ex rel. Atty. Gen. v. 116 Ark. 74 1917A 1178 Arkansas State Fair Assoc. v. Hodges 120 Ark. 131 1917C 829 Armbrust, St. Louis, etc., R. Co. v. 121 Ark. 351 1917D 537 Armour & Co. v. North Dakota 240 U. S. 510 1916D 548 Armstrong v. Philadelphia 249 Pa. St. 39 1917B 1082 Armstrong, State ex rel. Mc- Nerney v. 97 Neb. 343 1917A 554 Armstrong v. Walton 105 Miss. 337 1916E 137 Arnold v. Hussey 111 Me. 224 1916C 715 Arnold v. Krigbaum 169 Cal. 143 1916D 370 Arnold, Philadelphia Life Ins. Co. v. 97 S. Car. 418 1916C 706 Arthur, DCS Moines Savings Bank v. 163 Iowa 205 1916C 498 Arver v. United States 245 U. S. 366 1918B 856 Asbury, State v. 172 Iowa 606 1918A 856 Ashland, Coleman v. 117 Va. 692 1917D 1114 CASES REPORTED. PAGE Atcherley, Kapiolani Estate v. 238 U. S. 119 1916E 142 Atchison, etc. R. Co., Denver v. 96 Kan. 154 1917A 1007 Atchisou, etc. R. Co., v. Solor- zano 21 N. Mex. 503 1917E 950 Aten, Nozisky v. 35 S. Dak. 451 1916C 589 Atkinson, Mastellar v. 94 Kan. 279 1917B 502 Atkinson, State ex rel. Mis- souri, Pacific R. Co. v. 269 Mo. 634 1917E 987 Atlanta, Carey v. 143 Ga. 192 -. 1916E 1151 Atlanta, Cutsinger v. 142 Ga. 555 1916C 280 Atlantic, Allis-Chalmers Co. v. 164 Iowa 8 1916D 910 Atlantic, etc. Co., Rogers v. 213 N. Y. 246 1916C 877 Atlantic Coast Line R. Co., Bradley v. 99 S. Car. 78.. 1916E 1219 Atlantic Coast Line R. Co. v. Dawes 100 S. Car. 258 1917A 1272 Atlantic Coast Line R. Co., Greer Drug Co. v. 104 S. Car. 207 1917C 908 Atlantic Coast Line R. Co., Home v. 170 N. Car. 645. . 1918A 1171 Atlantic Transport Co., Finley v. 220 N. Y. 249 1917D 726 Attorney General ex rel. James r. National Cash Register Co. 182 Mich. 99. 1916D 638 Attorney General ex rel. Treasurer v. Clark 222 Mass. 291 1917B 119 Auburn v. Paul 113 Me. 207. 1917E 136 Au Sable Electric Co., Lane v. 181 Mich. ]6 1916C 1108 Austin v. Galloway 73 W. Va. 231 1916E 112 Auto Storage Co., Blackwood Tire, etc. Co. v. 133 Tenn. 515 1917O 1168 Axton Fisher Tobacco Co. v. Evening Post Co. 169 Ky. 64 1918B 560 Ayles, State v. 74 Ore. 153 . . 1916E 738 Babb v. State 18 Ariz. 505.. 1918B 925 Baber v. Caples 71 Ore. 212. . 1916C 1025 Bacon v. Reichelt 272 111. 90. 1918B 1 Baer, Insurance Co. v. 94 Kan. 777 1917B 491 Bagdon v. Philadelphia, etc. Coal, etc. Co. 217 N. Y. 432 1918A 389 - Bailey, In re 50 Mont. 365 . . 1917B 1198 'Bailey, Wiffen v. [1915] 1 K. B. 600 1916E 489 Bainbridge, O'Neal v. 94 Kan. 518 1917B 293 Baldauf v. Nathan Russell 88 N. J. Law 303 1917D 1191 Baldwin v. Chesaning 188 Mich. 17 Baldwin's Bank v. Smith 215 N. Y. 76 Ball v. Allen 216 Mass. 469. Ballard, S. Lowman & Co. v. 168 N. Car. 16 Baltimore, Brack v. 125 Md. 378 Baltimore v. J. L. Robinson Construction Co. 123 Md. 660 Baltimore Engine Co., Hodges v. 126 Md. 307 Bank of Corning v. Nimnich 122 Ark. 316 Bank of Dalles, Lamro Town- site Co. v. 35 S. Dak. 164. Bank of Holly Grove v. Sud- bury 121 Ark. 59 Bank of New Brunswick, Mackintosh v. 42 N. Bruns. 152 Banks, Phoenix Ins. Co. v. 114 Ark. 18 Barber, Camp v. 87 Vt. 235. . Barber v. Morgan, 89 Conn. 583 Barber v. Watch Hill Fire Dis- trict 36 R. I. 236 Barden, Groves v. 169 N. Car. 8 Barfield v. South Highlands Infirmary 191 Ala. 553 Barker v. State Fish Commis- sion 88 Wash. 73 Barnes v. Essex County Park Commission 86 N. J. Law 141 Barnes v. Kirkville 266 Mo. 270 Barnes v. Maxwell Motor Sales Corp. 172 Ky. 409... Barnes, Smith v. 51 Mont. 202 Barnes, State v. 29 N. Dak. 164 Barnes, Withers Y. 95 Kan. 798 Barney, Way v. 127 Minn. 346 Barnum v. Chamberlain Land, etc. Co. 34 S. Dak. 137 Barrett, Irvine v. 119 Va. 587 Barrett r. State 220 N. Y. 423 Bartholomew v. Springdale 91 Wash. 408 Bartlett v. New Boston 77 N. H. 476 Barton v. Alexander 27 Idaho 286 Barton v. School District 77 Ore. 30 Barton v. Thaw 246 Pa. St. 348 PAGE! 1918B 512 1917B 899 1916E 880 1916C 425 1917O 766 1917D 566 1917C 346 1917D 373 1916D 568 1916D 649 1917A 451 1916E 102 1916D 191 1917D 316 19160 1097 1917D 810 1916E 968 19170 1121 1917E 578 1917D 330 1917C 762 1917B 55 1916C 565 1917A 848 19170 62 1917D 807 1918B 432 1917B 777 1917D 729 1917A 252 1916D 570 CASES REPORTED. PAGE Bash, Borchert v. 97 Neb. 593 1917A 116 Bates, Colored Industrial School v. 90 Ohio St. 288. 1916C 1198 Bates v. German Commercial Accident Co. 87 Vt. 128... 1916C 447 Baumann v. Steingester 213 N. Y. 328 19160 1071 Baxter, State v. 89 Ohio St. 269 19160 60 Baxter Laundry Co., Whitte- more v. 181 Mich. 564 1916C 818 Seal, Horlock v. [1916] A. C. 486 1916D 670 Beard, Bright v. 132 Minn. 375 1918A 399 Beaston v. Portland Trust, etc. Bank 89 Wash. 627... 1917B 488 Bearer River Power Co. v. Blomquist 26 Idaho 222.. 1916E 282 Beck, Wick v. 171 Iowa 115 1917A 691 Becker, Careaga v. 169 Gal. 301 1916D 171 Becker v. Hopper 22 Wyo. 237 1916D 1041 Becker v. Hopper 23 Wyo. 209 1918B 33 Becker, Martin v. 169 Cal. 301 1916D 171 Becker, People v. 215 N. Y. 126 1917A 600 Bee Publishing Co., Howell v. 100 Neb. 39 1917D 655 Beer, American Express Co. v. 107 Miss. 528 1916D 127 Belcher v. Commonwealth 165 Ky. 649 1917B 238 Bell, Calhoun v. 136 La. 149 1916D 1165 Bell v. Davis 43 Okla. 221.. 1917C 1075 Bell, Berries v. 220 Mass. 243 1917A 423 Bell, Morrow Y. 170 Iowa 17 1917D 98 Bell v. Rossignoi 143 Ga. 150 1917C 576 Bellows Falls Power Co. v. Commonwealth, 221 Mass. 51 1916C 834 Bemerton, Harris v. 85 Wash. 64 1916C 160 Bender, Myers v. 46 Mont. 497 1916E 245 Benedict, Holstein Y. 22 Hawaii, 441 1918B 941 Bennett v. Kalamazoo Circuit Judge 183 Mich. 200 1916B 223 Bennett v. Laws 59 Colo. 290 1917A 240 Benson v. Nicholas 246 Pa. St. 229 1916D 1109 Berg v. British, etc. Naviga- tion Co., 243 U. S. 124 1917D 442 Berg v. Harrison 243 U. S. 124 1917D 442 Bergeron, In re 220 Mass. 472 .'. 1917A 549 Berner v. "Whittelsey Mercan- tile Co. 93 Kan. '769 1916D 350 PAGE Bernot v. Morrison 81 Wash. 538 1916D 290 Berry v. United Commercial Travelers 172 Iowa 429.. 1918A 706 Berryman v. Childs 98 Neb. 450 1918B 1029 Bertoli, First National Bank v. 87 Vt. 297 1917B 590 Best Park, etc. Co. v. Rol- lins 192 Ala. 534 1917D 929 Bethany Mutual Tel. Assoe., State Public Utilities Com. ex rel. Marcon Co. Tel. Co. v. 270 111. 183 1917B 495 Bickel, O'Doherty v. 166 Ky. 708 1917A 419 Bickford, State v. 28 N. Dak. 36 1916D 140 Big Bend Land Co., Murtha v. 27 N. Dak. 384 1917A 706 Bigelow, State v. 88 Vt. 464 1917A 702 Big Sandy, etc. R. Co., Music v. 163 Ky. 628 1916E 6S9 Bird v. State 142 Ga. 596... 1916C 205 Bird v. State 131 Tenn. 518 1917A 634 Birmingham, Borok v. 191 Ala. 75 19160 1061 Bishop y. Fischer 94 Kan. 105 1917B 450 Bishop v. State 72 Tex. Crim. 1 1916E 379 Black, Schwartz v. 131 Tenn. 360 19160 119.5 Black, Southern Ice Co. v. 136 Tenn. 391 1917E 695 Black v. Suydam 81 Wash. 279 1916D 1113 Blackden, Rollins v. 112 Me. 459 1917A 875 Blackwell v. Harrelson 99 S. Car. 264 19160 1263 Blackwell, Seaboard Air-Line Ry. v. 143 Ga. 237 1917A 967 Blackwell Lumber Co. v. Em- pire Mill Co. 28 Idaho 556 1918A 189 Blackwood Tire, etc. Co. v. Auto Storage Co. 133 Tenn. 515 19170 1168 Blair, Colorado, etc. B. Co. v. 214 N. Y. 497 1916D 1177 Blair v. Seitner Dry Goods Co. 184 Mich. 304 19160 882 Blake, Western Union Tel. Co. v. 113 Ark. 545 19160 521 Blake, Wilson v. 169 Cal. 449 1916D 205 Blake, etc. Co., Remillard v. 169 Cal. 277 1916D 4.'1 Blakeman v. Wichita 93 Kan. 444 1916D 188 Blalock v. Georgia R. etc. Co. 228 Fed. 296 1917A 679 Blnnchard, Palmer v. 113 Me. 380 1917A 809 Blancharrl. Rummell v. 216 X. Y. 3-13 1917D 109 CASES BEPOBTED. vii Blanton v. Wheeler, etc. Co. 91 Conn. 226 Blaylock, St. Louis, etc. R. Co. v. 117 Ark. 504 Bleakley v. Candler 169 N. Car. 16 Bleakly, Hawkins v. 243 U. 8. 210 Blease, Tucker v. 97 S. Car. 30C Blomquist, Beaver River Power Co. v. 26 Idaho 222 Blomquist. Idaho Power, etc. Co. v. 26 Idaho 222 Blum Bros. v. Girard National Bank 248 Pa. St. 148 Board of Assessors, Bex v. 41 N. B'runs. 564 Board of Childrens Guardians v. Juvenile Court 43 App. Cas. (D. C.) 599 Board of Commissioners, Moose v. 172 N. Car. 419. . Board of County Commission- ers, Perkins v. 271 111. 449 Board of Education, Neptune Fire Engine, etc. Co. v. 166 Ky. 1 Board of Education, Streich v. 34 S. Dak. 169 Board of License Commission- ers. Rice v. 36 B. I. 50 Board of Managers, Mason v. 181 Mich. 347 Board of Medical Examiners v. Freenor 47 Utah 430.. Board of State Canvassers, State ex rel. Husting v. 159 Wis. 216 Board of Supervisors, Com- mercial Nat. Bank v. 168 Iowa 501 Board of Trustees v. Waugh 105 Miss. 623 Board of Trustees of Philadel- phia Museums v. Trustees of University of Pennsyl vania 251 Pa. St. 125 Boger v. Cedar Cove Lumber Co. 165 N. Car. 557 Boland, Hill v. 125 Md. 113 Boiland v. United States 238 Fed. 529 Bolton T. Bolton 86 N. J. Law, 622 Bombolis. Minneapolis, etc. B. Co. v. 241 U. S. 211 Bondi v. Mackay 87 Yt. 271 Bopp v. Clark 165 Iowa 697 Borchert v. Bash 97 Neb. 593 Borok v. Birmingham 191 Ala. 75 Boscarino v. Carfagno & Drag- onette 220 N. Y. 323 PAGE 1918B 747 1917A 563 1917A 425 1917D 637 19160 796 1916E 282 1916E 282 1916D 609 1917B 721 1916E 1019 1917E 1183 1917A 27 1917C 789 1917A 760 19160 1189 19160 848 1917E 1156 1916D 159 19160 227 1916E 522 1917D 449 1917D 116 1917A 46 1918B 520 1916E 938 1916E 505 19160 130 1916E 417 1917A 11G 19160 1061 1918A 530 PAGE Boston, Welch T. 221 Mass. 155 1917D 946 Boston Elevated B. Co., Bo- mana v. 218 Mass. 76 1917A 893 Boston Wharf Co., Brown v. 220 Mass. 397 1917A 445 Boston Wharf Co., Hecht T. 220 Mass. 397 1917A 445 Boston Wharf Co., Williams v. 220 Mass. 397 1917A 445 Bounds v. Sovereign Camp 101 S. Car. 325 19170 589 Boutwell v. Champlain Realty Co. 89 Vt. 80 1918A 726 Bowden, Webb T. 124 Ark. 244 1918A 60 Bowen v. Daugherty 168 N. Car. 242 1917B 1161 Bowen, Littlefield v. 90 . Wash. 286 1918B 177 Bowen, Mason v. 122 Ark. 407 1917D 713 Bowen & Co., State T. 86 Wash. 23 1917B 625 Bower v. Moorman 27 Ida. 162 19170 99 Bower, White v. 56 Colo. 575 1917A 835 Bowie v. Trowbridge 175 Iowa 118 1917D 1067 Bowman, In re [1915] 2 Ch. 447 1917B 1017 Bowman, Secular Society v. [1915] 2 Ch. 447 1917B 1017 Bowman v. Secular Society [1917] A. C. 406 1917D 761 Boyce, Yancey v. 28 N. Dak. 187 1916E 258 Boyd v. Boyd 116 Va. 326 1916D 1173 Boyd, Commonwealth v. 246 Pa. St. 529 1916D 201 Boylan v. New Orleans B. etc. Co. 139 La. 185 1918A 287 Boyle T. Dinsdale 45 Utah 112 1917E 363 Braasch v. Worthington 191 Ala. 210 19170 903 Brace, etc. Mill Co. v. Bur- bank 87 Wash. 356 1917E 739 Brack v. Baltimore 125 Md. 378 1916E 880 Brackett v. Commonwealth 223 Mass. 119 1918B 863 Bradfield v. State 73 Tex. Grim. 353 1917C 696 Bradley v. Atlantic Coast Line E. Co. 99 S. Car. 78 1916E 1219 Bradley, Glover v. 233 Fed. 721 1917A 921 Bradstrcet Co., Pacific Pack- ing Co. v. 25 Idaho 696.. 1916D 761 Brady, Fergus v. 277 111. 272. 1918B 220 Brady v. New York, etc., B. Co. 218 N. Y. 140 1918B 588 Brady, People ex rel. First Nat. Bank v. 271 111. 100.. 19170 1093 viii CASES REPORTED. Braeuel v. Reuther 270 Mo. 603 Brainard, Rchling v. 38 Nev. 16 Brand, The 224 Fed. 391 Brandon, Perry v. 32 Ont. L. Rep. 94 Brantley, State ez rel. Howie v. 113 Miss. 786 Brazee v. Michigan 241 U. S. 340 Breitung, Kleist v. 232 Fed. 555 Bremer, Hunter v. 256 Pa. St. 257 Brewer v. Browning 115 Miss. 358 Briant, Josephs v. 115 Ark. 538 Bridgeport, Walsh T. 88 Conn. 528 Bridgewater Milling Corp. v. Fredericksburg Power Co. 116 Va. 333 Bright v. Beard 132 Minn. 375 Brinckwirth's Estate T. Troll 266 Mo. 473 Brindley v. State 193 Ala. 43 Brinker, Hubbard v. 169 Gal. 301 British, etc. Marine Ins. Co. v. Sanday [1916] A. C. 650. British, etc. Navigation Co., Berg v. 243 U. S. 124 British Columbia Elec. R. Co., Columbia Bithulitic v. 55 Can. Sup. Ct. 1 British Columbia Elec. R. Co. v. Loach [1916] A. C. 719. Britt, Henry v. 265 111. 131.. Bromberg, Cvitanovich v. 169 Iowa 736 Bronson v. Sy verson 88 Wash. 264 Brooken, State v. 19 N. Mex. 404 Brooklyn Heights R. Co. v. Steers 213 N. Y. 76 Brotherhood of American Yeo- man, Wising v. 132 Minn. 303 Broussard, Exp. 74 Tex. Crim. 333 Brown v. Aitken 88 Vt. 148 Brown v. Boston Wharf Co. 220 Mass. 397 Brown v. Caylor 144 Ga. 302 Brown v. Eckes 160 N. Y. Supp. 489 Brown v. Elm City Lumber Co. 167 N. Car. 9 Brown v. Erie R. Co. 87 N. J. Law 487 PAGE 1918B 533 1917C 656 1917B 996 1917E 948 1917E 723 19170 522 1917E 1014 1918A 152 1918B 1013 1916E 741 1917B 318 1917E 756 1917B 309 1917D 833 1916D 136 19160 791 1918A 621 1917E 919 1916D 1152 1917A 445 1916D 745 1917B 981 1916E 631 19170 493 Brown v. Farmers', etc. Na- tional' Bank 76 Ore. 113.. Brown, Gillies v. 53 Can. Sup. Ct. 557 Brown v. Golightly 106 S. Car. 519 Brown v. Harding 170 N. Car. 253 Brown v. Johnson 43 Utah 1 Brown r. Melloon 170 Iowa 49 Brown v. Mitchell 168 N. Car. 312 Brown, Perkins v. 132 Tenn. 294 Brown v. Smallwood 130 Minn. 492 Brown v. State 105 Miss. 367 Brown v. State 87 Wash. 44. Brown, Strong v. 26 Idaho 1 Brown, Thomas v. 116 Va. 233 Browne, Phillips v. 270 111. 450 Browning, Brewer v. 115 Miss. 358 Browning, Fisher v. 107 Miss. 729 Bruegger, Northern Trust Co. v. 35 N. Dak. 150 Bruguiere T. Bruguiere 172 Cal. 199 Brunette, State v. 28 N. Dak. 539 Brunson v. State 70 Fla. 387 Brunswick-Balke-Collender Co., Devine v. 270 111. 504 Brushaber Y. Union Pacific R. Co. 240 U. S. 1 Bryans, Dorsey v. 143 Ga. 186 Bryant v. Continental Cas- ualty Co. 107 Tex. 582 Bryant v. Freeman 134 Tenn. 169 Buchanan v. Warley 245 U. S. 60 Buchanan T. Warley 165 Ky. 559 Buck, Perine Machinery Co. v. 90 Wash. 344 Buckbee v. P. Hohenadel, Jr., Co. 224 Fed. 14 Buffalo General Electric Co., Carpenter v. 213 N. Y. 101 Buffom, People T. 214 N. Y. 53 Buhl, ' kuhn v'. 251 Pa. St. 348 Buick Motor Co., MacPherson V. 217 N. Y. 3S2 PAGE 1917B 1041 1917D 354 1918A 1185 19170 548 1916C 321 19170 1070 1917B 933 1917A 124 19170 474 191GB 307 1917D 604 1916E 482 1917A 128 1917B 637 1918B 1013 19170 466 1917E 447 1917E 122 1916E 340 1918A 312 1917B 887 1917B 713 1917A 172 1918A 517 1917E 111 1918A 1201 1917B 149 19170 341 1918B 88 1916C 754 1916D 962 1917D 415 1916C 440 CASES EEPOBTED. IX PAGE Builders' Lime, etc. Co. v. Weimer 170 Iowa 444 1917C 1174 Building Commission v. Kunin 181 Mich. 604 19160 959 Bunger T. Grimm 142 Ga. 448 19160 173 Bunn, City Sash, etc. Co. v. 90 Wash. 669 1918B 31 Bunting v. Oregon 243 U. S. 426 1918A 1043 Bunting, State v. 71 Ore. 259 1916O 1003 Burbank, Brace, etc. Mill Co. v. 87 Wash. 356 1917E 739 Burckhard, Peerless Pacific Co. T. 90 Wash. 221 1918B 247 Burgess, Williams v. 74 W. Va. 623 19170 1185 Burke v. Northern Pacific R. Co. 86 Wash. 37 1917B 919 Burke v. Prudential Ins. Co. 221 Mass. 253 1917E 641 Burkenrod Goldsmith Co. v. Illinois Central R. Co. 138 La. 81 19170 935 Burlington Traction Co., West- ern Union Tel. Co. v. 90 Vt. 506 1918B 841 Burnette, Trout v. 99 S. Car. 276 1916E 911 Burnight, Egan v. 34 S. Dak. 473 1917A 539 Burns, Great Southern Fire Ins. Co. v. 118 Ark. 22... 1917B 497 Burns v. New York 213 N. Y. 516 19160 1093 Burns, Seidler T. 8t5 Conn. 249 19160 266 Burroughs v. Commonwealth 224 Mass. 28 1917A 38 Bursow v. Doerr 96 Neb. 219 19160 248 Busby, Ruble v. 27 Idaho 486 1917D 665 Butchers' Slaughtering, etc. Co. v. Commonwealth 223 Mass. 119 1918B 863 Butler, American-Hawaiian Engineering, etc. Co. v. 165 Cal. 497 19160 Butler, Carter v. 264 Mo. 306 1917A Butler, Webb v. 192 Ala. 287 1916D Bvers v. Sun Savings Bank '41 Okla. 728 1916D Byrarn v. Illinois Central R. Co. 179 Iowa, 631 1918A Byrne, Phelps v. 36 S. Dak. 369 1918B Cadillac Motor Car Co. v. Johnson 221 Fed. 801 1917E Cahill v. New Orleans R., etc. Co. 139 La. 185 1918A Cain v. Garner 169 Ky. 633. . 1918B Cain v. Parfitt 48 Utah 81...1918B Caldwell, Greene v. 170 Ky. 571 1918B 44 483 815 222 1067 996 581 604 Caldwell, Ten Broek r. 95 Neb. 464 Caledonian R. Co., Greenock Corporation v. [1917] A. C 556 Calhoun v. Bell 136 La. 149 Calhoun County District Court, Dalton v. 164 Iowa 187 California Ins. Co., Therianlt Ins. Co. v. 27 Idaho 476.. Calligan, Viss v. 91 Wash. 673 Callison v. Peeples 102 S. Car. 256 Galloway, Austin v. 73 W. Va, 231 Camden National Bank, Mc- Andrews, etc. Co. v. 87 N. J. Law 231 Cameron v. Pacific Lime etc. Co. 73 Ore. 510 Caminetti v. United States 242 U. S. 470 Camp v. Barber 87 Vt. 235. . Campbell, Western Tie, etc. Co. v. 113 Ark. 570 Campbell, Wightman v. 217 N. Y. 479 Canadian General Elec. Co. v. Canadian Rubber Co. 52 Can. Sup. Ct. 349 Canadian Pacific Ry. v. Jack- son 52 Can. Sup. Ct. 281.. Canadian Rubber Co., Cana- dian General Elec. Co. v. 52 Can. Sup. Ct. 349 Canal-Louisiana Bank etc. Co., Commercial Nat. Bank v. 239 U. S. 520 Candler, Bleakley v. 169 N. Car. 16 Canning v. Canning 87 Vt. 492 Cannon, Liggett, etc. Tobacco Co. v. 132 Tenn. 419 Capital Securities Co. v. Gil- mer 190 Ala. 340 Capital Traction Co., Carmodv v. 43 App. Gas. (D. C.) 245 Caples, B'aber v. 71 Ore. 212 Careaga v. Becker 169 Cal. 301 Carey T. Atlanta 143 Ga. 192 Carfagno & Dragonette, Bos- carino v. 220 N. Y. 323. .. Carlisle v. Norris 215 N. Y. 400 Carlisle v. Ottley 143 Ga. 797 Carlton v. Seaboard Air-Line Ry. 143 Ga. 516 PAGE 1916D 613 1918A 1916D 1916D 1917D 1918A 1917E 191GE 19170 191GE 1917B 1917A 19160 1917E 1916D 19160 1103 1165 695 818 819 469 112 146 769 1168 451 943 673 488 912 1916D 488 1917E 1917A 19160 1917A 1917A 1916D 19160 1916D 1916E 1918A 1917A 1917A 1917A 25 425 344 179 888 706 1025 171 1151 530 429 5.73 497 CASES REPORTED. PAGE Carmody v. Capital Traction Co. 43 App. Cas. (D. C.) 245 1916D 706 Carnahan v. Hamilton 265 111. 508 1916C 21 Carnego v. Crescent Coal Co. 164 Iowa 552 1916D 794 Carolina Tel. etc. Co., Weeks v. 168 N. Car. 468 1917C 75 Carpenter v. Buffalo General Electric Co. 213 N. Y. 101. 1916C 754 Carpenter, Hermitage Na- tional Bank v. 131 Tenn. 136 1916D 730 Carroll v. Knickerbocker Ice Co. 218 N. Y. 435 1918B 540 Carroll v. Parry 43 App. Cas. (D. C.) 363 1916E 971 Carroll v. What Cheer Stables Co. 38 R. I. 421 1918B 346 Carstens and E'arles v. Seattle 84 Wash. 88 1917A 1070 Carter v. Butler 264 Mo. 306 1917A 483 Carter, Florida East Coast R. Co. v. 67 Fla. 335 1916E 1299 Carter, Louisville, etc. R. Co. v. 195 Ala. 382 1917E 292 Carter, Thurston v. 112 Me. 361 1917A 389 Cartwright-Caps Co. v. Fischel 113 Miss. 359 1917E 985 Cary Brick Co., Gascoigne v. 217 Mass. 302 19170 336 Casebolt, Hall v. 171 Ky. 477 19170 1012 Casement, Rex v. [1917] 1 K. B. 98 1917D 468 Cassidy, People v. 213 N. Y. 388 1916C 1009 Castle v. Mason 91 Ohio St. 296 1917A 164 Catholic, State v. 75 Ore. 367 1917B 913 Catholic Foreign Mission Soc. v. Oussani 215 N. Y. 1 1917A 479 Causey, Illinois Central R. Co. v. 106 Miss. 36 1917A 1281 Causey v. Seaboard Air Line R. Co. 166 N. Car. 5 19160 707 Cavender, Mollohan v. 75 W. Va. 36 1918A 499 Caylor, Brown v. 144 Ga. 302 1916D 745 Cayser, Thomsen v. 243 U. S. 66 1917D 322 Cayuga Investment Co., Ma- honev Land Co. v. 88 Wash. 529 1916C 1234 Cazeaux, Queensborough Land Co. v. 136 La. 724 1916D 1248 C. B. Barker Construction Co., Niehaus v. 135 Tenn. 382. 1918B 23 Cedar Cove Lumber Co., Boger v. 165 X. Car. 557. . 1917D 116 Cedar Rapids, Palmer v. 165 Iowa, 595 1916E 558 PAGE Cella, New York, etc. R. Co. v. 88 Conn. 515 1917D 590 Central Georgia Power Co. v. Cornwell 141 Ga. 843 1916D 1020 Central of Georgia R. Co. v. Southern Ferro Concrete Co. 193 Ala. 108 1916E 376 Cessna, State v. 170 Iowa, 726 1917D 289 Chace v. City Council 36 R. I. 331 19160 1257 Chagrin Falls, In re 91 Ohio St. 308 1916E 1004 Chalvet v . Huston 43 App. Cas. (D. C.) 77 19160 1180 Chamberlnin Land, etc. Co., Barnum v. 34 S. Dak. 137. 1917A 848 Chambers, Louisville, etc. R. Co. v. 165 Ky. 703 1917B 471 Chambers v. Preston 137 Tenn. 324 1918B 428 Champlain Realty Co., Bout- well v. 89 Vt. 80 1918A 726 Champlin, Douthwright v. 91 Conn. 524 1917E 512 Chandler, Maiden, etc. Gas- light Co. v. 220 Mass. 1. . . 1917A 145 Chappell, Pittsburgh, etc. R. Co. v. 183 Ind. 141 1918A 627 Charing Cross Electricity Sup- ply Co. v. Hydraulic Sup- ply Co. [1914] 3 K. B. 772 19160 1045 Charles Schweinler Press, People v. 214 N. Y. 395... 1916D 1059 Charleston, etc. R. Co. r. Varnville Furniture Co. 237 U. S. 597 1916D 333 Charlotte Electric R. Co., Nor- man v. 167 N. Car. 533... 1916E 508 Chavez, State v. 19 N. Mei. 325 1917B 127 Cherry, Face v. 117 Va. 41. . 1917E 418 Chesaning, Baldwin v. 188 Mich. 17 1918B 512 Chesapeake, etc. R. Co. v. Harmon's Adm'r 173 Ky. 1 1918B 41 Chesapeake, etc. Tel. Co. v. Goldsborough 125 Md. 666 1917A 1 Chester, Smith v. 272 111. 428 1917A 925 Chew v. Sheldon 214 N. Y. 344 1916D 1268 Chicago, Chicago, etc. R. Co. v. 264 111. 24 1917A 1146 Chicago, Parker-Washington Co. v. 267 111. 136 19160 337 Chicago, Thomas Cusack Co. v. 267 111. 344 19160 488 Chicago, Thomas Cusack Co. v. 242 U. S. 526 19170 594 Chicago, etc. R. Co. v. Ander- son 182 Ind. 140 1917A 182 Chicago, etc. R. Co. v. Chicago 264 111. 24, 1917A 1146 Chicago, etc. R. Co. v. Earl 121 Ark. 514 1917D 552 CASES REPORTED. XI PAGE Chicago, etc. R. Co. v. Gunn 112 Ark. 401 1916E 648 Chicago, etc. R. Co., Jacobson v. 132 Minn. 181 1918A 355 Chicago, etc. R. Co., Korab v. 165 Iowa 1 1916E 637 Chicago, etc. R. Co., Row- lands T. 149 Wis. 51 1916E 714 Chicago, etc. R. Co., State Public Utilities Com. ex rel. Mitchell T. 275 111. 555... 19170 50 Chicago, etc. R. Co., Vande- water v. 170 Iowa 687... 1917C 1132 Chicago, City R. Co., Wende v. 271 111. 437 1918A 222 Chicago Dry Kiln Co. v. In- dustrial Board 276 HI. 556 1918B 645 Chicago Great Western B. Co., Omaha Wool, etc. Co. v. 97 Neb. 50 1917A 358 Chicago R. Co., People ex rel. Dwight v. 270 111. 87 1917B 821 Childs, Berryman v. 98 Neb. 450 1918B 1029 Chilton v. Commonwealth 170 Ky. 491 1918B 851 Chreste v. Louisville R. Co. 167 Ky. 75 1917C 867 Christenson v. Madson 127 Minn. 225 1916C 584 Christenson, Madson v. 128 Minn. 17 1916D 1101 Christian, Gato v. 112 Me. 427 1917A 592 Christopherson v. Minneap- olis, etc. R. Co. 28 N. Dak. 128 1916E 683 Church, Northcut v. 135 Tenn. 541 1918B 545 Churchill, Gabriel v. [1914] 3 K. B. 1272 1916C 1087 Cincinnati, Louden v. 90 Ohio St. 144 19160 1171 Cincinnati v. Public Utilities Commission 91 Ohio St. 331 1916E 1081 Cincinnati, etc. R. Co. v. Cun- diff 166 Ky. 594 19160 513 Cincinnati, etc. R. Co., Curd's Administratrix v. 163 Ky. 104 1916E 614 Cincinnati, etc. R. Co. v. Mc- Cullom 183 Ind. 556 1917E 1165 Cincinnati, etc. R. Co., Sharp v. 133 Tenn. 1 19170 1212 Cincinnati, etc. R. Co., Thompson v. 165 Ky. 256. 1917A 1266 Circleville Light, etc. Co., Holden v. 216 Fed. 490... 1916D 443 Cisco, Soper v. 85 N. J. Eq. 165 1918B 452 Cissna Loan Co. v. Gawley 87 Wash. 438 1917D 722 Citizens' Bank Building v. L. & E. Wertheimer 126 Ark. 38.. 1917E 520 PAGE Citizens' National Bank Jamesson v. 130 Md. 75.. 1918A 1097 Citizens' Savings Bank, etc. Co. v. Northfield Trust Co. 89 Vt. 65 1918A 891 Citizens' Trust, etc. Co T. Glove, etc. Fire Ins. Co. 229 Fed. 326 1917C 416 City Bank, etc. Co., Springer v. 59 Colo. 376 1917A 520 City Council, Chace v. 36 R. I. 331 .". 1916C 1257 City o New York (Court House), Matter of 216 N. Y. 489 1917D 157 City Sash, etc. Co. v. Bunn 90 Wash. 669 1918B 31 C. Klinck Packing Co., People v. 214 N. Y. 121 1916D 1051 Clark, Attorney General ex rel. Treasurer v. 222 Mass. 291 119 Clark, Bopp v. 165 Iowa 697 1916E 417 Clark v. E. I. Du Pont De Ne- mours Powder Co. 94 Kan. 268 1917B 340 Clark v. Nickell 73 W. Va. 69 1917A 1285 Clark, People ex rel. Dyer v. 268 111. 156 j 1916D 785 Clark's Appeal 114 Me. 105. 1917A 837 Clarke v. Yukon Investment Co. 83 Wash. 485 1916E 625 Clayton v. Prince 129 Minn. 118 1916E 407 Clendenin, Ford v. 215 N. Y. 10 1917A 658 Clerk, Hutchings v. 255 Mass. 483 19170 979 Cleveland v. Cottrill 92 Ohio St. 493 1917D 1134 Cleveland v. Esper 92 Ohio St. 493 1917D 1134 Cleveland T. Lange 92 Ohio St. 493 1917D 1134 Cleveland v. Luttner 92 Ohio St. 493 1917D 1134 Cleveland v. Yoos 92 Ohio St. 493 1917D 1134 Cleveland, etc. R. Co. v. Mar- shall 182 Ind. 280 1917A 756 Clifford, State ex rel. Meyer v. 81 Wash. 324 1916D 329 Cobb v. Western Union Tele- graph Co. 90 Vt. 342 1918B 1156 Coca-Cola Bottling Co., Crig- ger v. 132 Tenn. 545 1917B 572 Coca Cola Co., United States v. 241 U. S. 265 19170 487 Coe v. Wormell 88 Wash. 119 19170 679 Coffey v. McGahey 181 Mich. 225 19160 923 Coffey v. Miller, 160 Ky. 415 19160 30 Cofran, Haney v. 94 Kan. 332 1917B 660 CASES REPORTED. PAGE Cohen, Nieberg v. 88 Vt. 281 19160 476 Cohen v. Philadelphia Rapid Transit Co. 250 Pa. St. 15 1917D 350 Cohen v. Tuff 4 Boyee (Del.) 188 1917C 596 Conn, Hinck v. 86 N. J. Law 615 1916D 200 Coker, Home Ins. Co. v. 43 Okla. 331 19170 950 Cole v. Sloss-Sheffield Steel, etc. Co. 186 Ala. 192 1916E 99 Cole v. State 73 W. Va. 410. 1916D 1256 Coleman v. Ashland 117 Va. 692 1917D 1114 Coleman v. Fisher 68 Fla. 56 1917A 1229 Colfax Consolidated Coal Co., Hunter v. 175 Iowa, 245.. 1917E 803 Colgate, Jacobus v. 217 N. Y. 235 . 1917E 369 Colley v. Summers Parrott Hardware Co. 119 Va, 439 1917D 375 Collins' Executor, Varble v. 168 Ky. 247 1916D 448 Collins' Executors v. Standard Accident Ins. Co. 170 Ky. 27 1917D 59 Colorado, etc. R. Co. v. Blair 214 N. Y. 497 1916D 1177 Colored Industrial School Y. Bates 90 Ohio St. 288 19160 1193 Columbia Bithulitic v. Brit- ish Columbia Electric R. Co. 55 Can. Sup. Ct. 1 1917E 756 Columbia County Lumber Co., Marks v. 77 Ore. 22 1917A 306 Columbia-Knickerbocker Trust Co. v. Miller 215 N. Y. 191 1917A 348 Comey v. United Surety Co. 217 N. Y. 268 1917E 424 Commanding Officer, Rex v. [1917] 1 K. B. 176 1917C 809 Commanding Officer, Rex v. [1917] 2 K. B. 129 1917E 480 Commercial Nat. Bank v. Board of Supervisors, 168 Iowa 501 19160 227 Commercial Nat. Bank v. Canal-Louisiana Bank, etc. Co. 239 U. S. 520 1917E 25 Commercial National Bank T. Eccles 43 Utah 91 1916C 368 Commercial Trust Co., Knoll v. 249 Pa. St. 197 19160 988 Commonwealth v. American Express Co. 167 Ky. 685.. 1916E 875 Commonwealth, Belcher v. 165 Ky. 649 1917B 238 Commonwealth, Bellows Falls Power Co. v. 222 Mass. 51. 19160 834 Commonwealth v. Boyd 246 Pa. St. 529 1916D 201 Commonwealth, Brackett v. 223 Mass. 119 1918B 863 Commonwealth. Burroughs v. 224 Mass. 28 1917A 38 PAGE Commonwealth, Butchers' Slaughtering, etc. Co. v. 223 Mass. 119 1918B 863 Commonwealth, Chilton v. 170 Ky. 491 1918B 851 Commonwealth v. Consoli- dated Dressed Beef Co., 245 Pa. St. 605 1917A 966 Commonwealth, Delk r. 166 Ky. 39 19170 884 Commonwealth v. First Chris- tian Church 169 Ky. 410. . 1918B 525 Commonwealth v. Karvonen 219 Mass. 30 1916D 846 Commonwealth, Marconi Wire- less Tel. Co. v. 218 Mass. 558 1916O 214 Commonwealth v. Raudenbush 249 Pa. St. 86 1917C 517 Commonwealth v. Silverman 220 Mass. 552 1917A 948 Commonwealth v. Starks 169 Ky. 410 1918B 525 Commonwealth v. Werth 116 Va. 604 1916D 1263 Commonwealth, Wooden v. 117 Va. 930 1917D 1032 Compton v. Akers 96 Kan. 229 1918B 983 Comstock's Administrator r. Jacobs 89 Vt. 133 1918A 465 Cona v. Henry Hudson Co. 86 N. J. Law 154 1916E 999 Connell v. Kaukauna 164 Wis. 471 1918A 247 Connellsville, etc. R. Co. v. Markleton Hotel Co. 247 Pa. St. 565 1916E 1213 Conner, Sawyer T. 114 Miss. 363 1918B 388 Conners, Cook v. 215 N. Y. 175 1917A 24S Conrad v. Ellison-Harvey Co. 120 Va. 458 1918B 1171 Conrad v. Roberts 95 Kan. 180 1917E 891 Consolidated Dressed Beef Co., Commonwealth v. 245 Pa. St. 605 1917A 966 Consolidated Lighting Co., George v. 87 Vt. 411 1916C 416 Continental Casualty Co., Bry- ant v. 107 Tex. 582 1918A 517 Continental Distributing Co. v. Hays 86 Wash. 300 1917B 708 Continental Tyre, etc. Co., Daimler Co. v. [1916] 2 A. C. 307 19170 170 Conzet v. Hibben 272 111. 508 1918A 1197 Cook v. Conners 215 N. Y. 175 1917A 243 Cook v. Highland Hospital 168 N. Car. 250 1917C 158 Cook v. Story 89 Wash. 109. . 19170 933 Cootey, Reams v. 171 Cal. 150* 1917A 1260 CASES EEPORTED. xiii Cooney-Eckstein Co., King v. 66 Fla. 246 Cooper v. Demby 122 Ark. 266 Cooper v. Hillsboro Garden Tracts 78 Ore. 74 Cooper, State v. 74 W. Va. 472 Coote & Ball, Lloyd v. [1915] 1 K. B. 242 Coplin v. Woodmen of the World 105 Miss. 115 Corcoran, State v. 82 Wash. 44 Cornwall, Central Georgia Power Co. v. 141 Ga. 843. Correll v. Williams, etc. Co. 173 Iowa 571 Corry v. Sylvia Y Cia 192 Ala. 550 Cortland v. Larson 273 111. 602 Cost v. Shinault 113 Ark. 19 Cottingham v. Maryland Mo- tor Car Ins. Co. 168 N. Car. 259 Cottondale State Bank v. Os- kamp Nolting Co. 64 Fla. 36 Cottrill, Cleveland v. 92 Ohio St. 493 Coultrap, Hall v. 242 U. S. 539 County Board of Education, Medlin v. 167 N. Car. 239. County Commissioners, Pettit v. 123 Md. 128 Covington, German National Bank Y. 164 Ky. 292 Cowing, McCracken v. 271 111. 270 Cox, McGhee v. 116 Va. 718 Cox v. Trollope [1916] 2 K. B. 682 Cox, Wallace v. 100 Neb. 601 Coyle T. United States Fidel- ity, etc. Co. 217 Mass. 268. Craft, State v. 168 N. Car. 208 Craftsbury, Waitsfield v. 87 Vt. 406 Craghead v. McCullough 58 Colo. 485 Craig v. Cramer 248 Pa. St. 308 Craig r. Wagner 88 Conn. 100 Craig, Wilson v. 86 Wash. 465 Cramer's Election Case 248 Pa. St. 208 Cramer, Craig v. 248 Pa. St. 308 Crandall v. Trowbridge 170 Iowa 155 PAGE PAGB Crane v. Johnson 242 IT. S. 19160 163 339 1917B 796 Cranford r. O'Shea 83 Wash. 1917D 580 508 1916 1081 Crawford v. McElhinney 171 IQITF 'jun Iowa 606 1917B 221 Crawford, State ex rel. Lan- ger v. 36 N. Dak. 385 1917E 955 1917D 453 Crealj Kentucky Highlands E. Co. v. 166 Ky. 469 1917C 1205 1916E 434 Creamer v. Harris 90 Ohio St. 160 1916C 1137 1916D 1295 Creditors' Claim, etc. Co. v. Northwest Loan, etc. Co. 1916E 531 81 Wash. 247 1916D 551 Cregan, Appeal of 215 N. Y. 1916D 1020 466 1917A 527 Creighton, Hoopes v. 100 1918A 117 Neb. 510 1917E 847 Crescent Coal Co., Carnego v. 1917E 1052 164 Iowa 552 1916D 794 Crigger v. Coca-Cola Bottling 1916E 775 Co. 132 Tenn. 545 1917B 572 Crismond's Adm'x. v. Jones 19160 483 117 Va. 34 19170 155 Crosby, Lamar r. 162 Ky. 320 1916E 1033 1917B 1237 Cross v. Fisher 132 Tenn. 31 1916E 1092 Crouch v. Southern Surety 1916D 564 Co. 131 Tenn. 260 19160 1220 Crowell v. Maryland Motor 1917D 1134 Car Ins. Co. 169 N. Car. 35.1917P 50 Growl v. Pennsylvania 242. 19170 643 U. S. 153 1917B 643 Crownfield v. Phillips 125 1916E 300 Md. 1 1916E 991 Crystal River Lumber Co. v. 1916O 35 Knight Turpentine Co. 69 Fla. 288 1917D 574 1917B 189 C. S. Wilson & Co., Tennants (Lancashire) T. [1917] A. 1917D 144 C. 495 1918A 1 Cue v. Port of London Au- 1916E 842 thority [1914] 3 K. B. 892 19160 887 1918B 637 Culpeper Construction Co., Tanner v. 117 Va. 154 1917E 794 1917D 699 Cummings, Standard Fashion Co. v. 187 Mich. 196 1916E 413 1917C 450 Cundiff, Cincinnati, etc. B. Co. v. 166 Ky. 594 1916O 513 1917B 1013 Cunningham v. Cunningham 187 Mich. 68 1918B 478 19160 337 Cunningham v. Mayor 222 Mass. 574 19170 1100 1916C 1075 Cunningham, O'Banion T. 168 Ky. 322 1917A 1017 1916E 914 Curd's Administratrix v. Cin- cinnati, etc., R. Co. 163 1917A 160 Ky. 104 1916E 614 Curran, Territory v. 23 Ha- 1917B 871 waii 421 1918A 234 Currier, Dibble v. 142 Ga. 191GE 914 855 .' 1916C 1 Curtis, People v. 217 N. Y. 1916E, 914 304 1917E 586 Cutsinger v. Atlanta 142 Ga. 1916C 608 555 19160 280 XIV CASES REPORTED. PAGE Cutting, Estate of 172 Cal. 191 1917D 1171 Cvitanovich v. Bromberg 169 Iowa 736 1917B 309 Daboll v. Moon 88 Conn. 387 1917B 164 Dacono Town Site Co., Fusha v. 60 Colo. 315 1917C 108 Dague, St. Louis, etc. R. Co. v. 118 Ark. 277 1917B 577 Dahl, Rosenberg v. 162 Ky. 92 1916E 1110 Dahlgren, Nordlnnd v. 130 Miiin. 462 1917B 941 Dailey v. Springfield 144 Ga. 395 1917D 943 Daimler Co. v. Continental Tyre. etc. Co. [1916] 2 A. C. 307 1917O 170 Dale v. Marvin 76 Ore. 528 19170 557 Dale T. Saunders 218 N. Y. 59 1918B 703 Dalton v. Calhoun County Dis- trict Court 164 Iowa 187. 1916D 695 Daniels v. Wagner 237 U. S. 547 1917A 40 Dannenberg, Hayden T. 42 Okla. 776 1916D 1191 Dart, Matter of 172 Cal. 47 1917D 1127 Daugherty, Bowen v. 168 N. Car. 242 1917B 1161 Davidson Bros. Co. v. Des Moines City B. Co. 170 Iowa 467 19170 1226 Davis, Bell v. 43 Okla. 221 19170 1075 Davis v. Hale 114 Ark. 426 1916D 701 Davis v. Hall 72 Ore. 220 1916D 922 Davis v. Mial 86 N. J. Law 167 1916E 1028 Davis, Peagler v. 143 Ga. 11 1917A 232 Davis v. Southern R. Co. 170 N. Car. 582 1918A 861 Davis, Williams v. 52 Mont. 192 1917E 126 Davis Laundry etc. Co. v. Whitmore 92 Ohio St. 44 1917C 983 Dawes, Atlantic Coast Line R. Co. v. 100 S. Car. 258 1917A 1272 Dawson v. National Life Ins. Co. 176 Iowa 362 1918B 230 Dayton v. Trustees of Speers Hospital 165 Ky. 56 1917B 27o Dayton Coal, etc. Co., Morgan v. 134 Tenn. 228 1917E 42 Deacon, Frolich v. 181 Mich. 255 1916C 722 Dechter v. National Council 130 Minn. 329 19170 142 Deeble v. Alerton 58 Colo. 166 19160 863 Delaney v. Plunkett 144 Ga. 547 1917E 685 Delano, Derine v. 272 HI. 166 De La Rama v. De La Rama 241 U. S. 154 Delaware, etc. R. Co., Shanks v. 214 N. Y. 413 Delaware Ins. Co., Dinneen. v. 98 Neb. 97 Delaware River Transp. Co., Miller v. 85 N. J. Law 700 Delk v. Commonwealth 166 Ky. 39 Dellaripa's Appeal 88 Conn. 565 De Long, Anheier v. 164 Ky. 694 Demby, Cooper v. 122 Ark. 266 Denmark, Sharpe v. 143 Ga. 156 Dennis v. A. J. White & Co. [1917] A. C. 479 Dennis, Schwartz v. 138 La. 848 Dennis T. Waterford Packing Co. 113 Me. 159 Denver r. Atchison, etc. R. Co. 96 Kan. 154 Denver v. Hobbs Estate 58 Colo. 220 Denver, Lord v. 58 Colo. 1 Denver, McPhail v. 59 Colo. 248 Denver, Thompson v. 61 Colo. 470 Denver, etc. R. Co., Lovejoy v. 59 Colo. 222 Denver, etc. R. Co. v. Mills 59 Colo. 198 Depue v. District of Colum- bia 45 App. Gas. (D. C.) 54 Deputy v. Kimmell 73 W. Va. 595 Des Moines, Hubbell v. 166 Iowa 581 Des Moines City R. Co., Da- vidson Bros. Co. v. 170 Iowa 467 Des Moines Mutual Hail, etc. Ins. Assoc., Schultz v. 35 S. Dak. 627 Des Moines Savings Bank v. Arthur 163 Iowa 205 Detroit v. Highland Park 186 Mich. 166 Detroit, Pastorino v. 182 Mich. 5 Detroit, etc. Ferry Co. T. 187 Mich. 177 Devine v. Brunswick-Balke- Collender Co. 270 111. 504. . Devine v. Delano 272 HI. 166 Devine, People v. 185 Mich. 50 . PAGE 1918A 689 1917C 411 1916E 467 1917B 1246 19160 165 19170 884 1917B 862 1917A 1239 1917D 580 1917B 617 1917E 325 1917D 94 1917D 788 1917A 1007 1916C 823 1916O 893 1916E 1143 1918B 915 1916E 1075 1916E 985 1917E 414 1916E 656 1916E 592 1917C 1226 1917D 78 1916C 498 1917E 297 1916D 76S 1918B 170 1917B 887 1918A 689 19170 1140 CASES EEPOETED. xv PAGE Devinney, State v. 174 Iowa 748 1917D 239 Dewey's Estate, In re 45 Utah, 98 1918A 475 Dexter Horton National Bank v. Seattle Homeseekera Co. 82 Wash. 480 1917A 685 Dibbert v. Metropolitan In- vestment Co. 158 Wis. 69.. 1916E 924 Dibble v. Currier 142 Ga. 855 19160 1 Dibble v. Eeliance Life Ins. Co. 170 Cal. 199 1917E 34 Dick v. Northern Pacific E. . Co. 86 Wash. 211 1917A 638 Dickason v. English 272 111. 368 1918A 1165 Dickerson, Hoskins v. 239 Fed. 275 1917C 776 Dickey v. Southwestern Surety Ins. Co. 119 Ark. 12 1917B 634 Dickie, Horton v. 217 N. Y. 363 1918A 611 Dickinson v. Edmondson 120 Ark. 80 19170 913 Dickinson, Mankin v. 76 W. Va. 128 1917D 120 Dickinson, Spradlin v. 120 Ark. 80 19170 913 Dickman, North Sterling Irri- gation District v. 59 Colo. 169 1916D 973 Didier, Gibbs v. 125 Md. 486 1916E 833 Diehl v. Totten 32 N. Dak. 131 1918A 884 Diggs v. United States 242 U. S. 470 1917B 1168 Dilkes, Miller v. 251 Pa. St. 44 1917D 555 Dillard, Security Life Ins. Co. v. 117 Va. 401 1917D 1187 Dillon v. Myers 58 Colo. 492 19160 1032 Dinneen v. American Ins. Co. 98 Neb. 97 1917B 1246 Dinneen v. Delaware Ins. Co. 98 Neb. 97 1917B 1246 Dinsdale, Boyle v. 45 Utah, 112 1917E 363 Dishmaker v. Heck 159 Wis. 572 1917A 400 District Court, Owen v. 43 Okla. 442 19170 1147 District Court, State ex rel. Duluth v. 134 Minn. 28 1918B 635 District Court, State ex rel. Marshall v. 50 Mont. 289.. 19170 164 District Court, State ex rel. Metcalf v. 52 Mont. 46 1918A 985 District Court, State ex rel. Northfield v. 131 Minn. 352 1917D 866 District Court, Union Savings etc. Co. v. 44 Utah, 397... 1917 A 821 District Court, Worthington v. 37 Nev. 212 1916E 1097 District of Columbia, Depue v 45 App. Cas. (D. C.) 54. 1917E 414 District School Board, Rich- ards v. 78 Ore. 621 Dittmer v. Prentiss 92 Ohio St. 101 Divide Canal, etc. Co. v. Ten- ney 57 Colo. 14 Dixon, Parker v. 132 Minn. 367 Dixon, People v. 188 Mich. 307 Doane T. Grew 220 Mass. 171 Doerr, Bursow v. 96 Neb. 219 Dolan, Stacy v. 88 Vt. 369. . Dolbear v. Wilkinson 172 Cal. 366 Dolese, Leach v. 186 Mich. 695 Dollar Steamship Co., Schar- renberg v. 229 Fed. 970 ... Dolliver v. Granite State Fire Ins. Co. Ill Me. 275 Dominion Fire Insurance Co. v. Nakata ^52 Can. Sup. Ct. 294 Dominion Trust Co. v. Na- tional Surety Co. 221 Fed. 618 Donaugh v. Garland 269 111. 565 Donnellan, American National Bank v. 170 Cal. 9 Donnelly, Stevenson v. 221 Mass. 161 -Donohue, Herlihy v. 52 Mont. 601 Donovan v. Excelsior Life Ins. Co. 53 Can. Sup. Ct. 539.. Dorflinger, Wilson v. 218 N. Y. 84 Dorsey v. Bryans 143 Ga. 186 Dotsan, Egan v. 36 S. Dak. 459 Dougherty, State v. 88 N. J. Law 209 Douglas County, Minneapolis, etc. R. Co. v. 159 Wis. 408. Douthwright v. Champlin 91 Conn. 524 Douville v. Pacific Coast Cas- ualty Co. 25 Idaho 396... Dowling, Steele v. [1914] 2 I. E. 432 Doyle, In re 235 Fed. 362... Doyle v. New Jersey Fidelity, etc., Ins. Co. 168 Ky. 789. . Drennen v. Williams 59 Colo. 301 Duffield v. Duffield 268 111. 29 Dulin v. Ohio Eiver E. Co. 73 W. Va. 166 Duluth, State ex rel. Zien v. 134 Minn. 355 Duluth Transfer E. Co., Nor- ton v. 129 Minn. 12G.'. PAGE 1917D 266 1918A 1161 1917D 346 1918A 540 1918B 385 1917A 338 19160 248 1917A 650 1917E 1001 1917A 1182 19170 258 19160 765 19160 1063 19170 447 1916E 1238 19170 744 1917E 932 19170 29 1917D 283 1917D 38 1917A 172 1917A 296 1917D 950 1916E 1199 1917E 512 1917A 112 1917B 480 1917A 274 1917D 851 1917A 664 1916D 859 1916D 1183 1918A 683 1916E 760 xvi CASES REPORTED. Dnncan, State ex inf. Barker v. 265 Mo. 26 Dunlap, Graves v. 87 Wash. 648 Dunlap v. Great Northern R. Co. 34 S. Dak. 320 Dunlap, State ex rel. Peterson v. 28 Idaho, 784 Dunn, American Bauxite Co. v. 120 Ark. 1 Duquesne Light Co. v. Pitts- burgh 251 Pa. St. 557 Durand v. Dyson 271 111. 382 Dusman, Jones v. 246 Pa. St. 513 Dutton v. State 123 Md. 373 Duvall v. National Ina. Co. 28 Idaho 356 Dwyer v. Libert 30 Idaho 576 Dyson, Durand v. 271 111. 382 Eakin's Administrator v. An- derson 169 Ky. 1 Earl, Chicago, etc. E. Co. v. 121 Ark. 514 Earwicker v. London Graving Dock Co. [1916] 1 K. B. 970 Eastern Electric Co., Guyton v. 91 Ohio St. 106 Eastern Pennsylvania Power Co. v. Lehigh Coal, etc. Co. 246 Pa. St. 72 Eastern Steamship Corp., Han- ley v. 221 Mass. 135 Eby, Harshberger v. 28 Idaho, 753 Eccles, Commercial National Bank v. 43 Utah, 91 Echols v. Speake 185 Ala. 149 Eckes, Brown v. 160 N. Y. Supp. 489 Edgar, In re Petition of 185 Mich. 24 Edgar v. Parsell 184 Mich. 522 Edinburgh, Evans v. [1916] 2 A. C. 45 Edmiston v. The Homestead- ers 93 Kan. 485 Edmondson, Dickinson v. 120 Ark. 80 Edmonton, Jamieson v. 54 Can. Sup. Ct. 443 Edwards v. Edwards 267 111. Ill Edwards, Myakka Co. v. 68 Fla. 372 Edwards, Peace v. 170 N. Car. 64 Egan v. Burnight 34 S. Dak. 473 Egan v. Dotson 36 S. Dak. 459 . PAGE PAGE Egidi v. Egidi 37 R. I. 481 . . 1918A 648 1916D 1 Ehrhart v. Industrial Accident Commission 172 Gal. 621.. 1917E 465 1917B 944 E. I. Du Pont De Nemours Powder Co., Clark v. 94 1916D 805 Kan. 268 1917B 340 Eisenbach v. Eisenbach 176 1918A 546 Mich. 354 1917A 1196 E. Jossman State Bank, State 1917C 625 Banking Com'r v. 185 Mich. 24 19170 1203 1917E 534 Elk Horn Bank, etc. Co., Stu- art v. 123 Ark. 285 1918A 268 1917D 84 Eller, Lawrence v. 169 N. Car. 211 1917D 546 1916D 472 Ellerd, Ex p. 71 Tex. Crim. 285 1916D 361 19160 89 Elliott, People v. 272 111. 592 1918B 391 1917E 1112 Elliott, Sibley, etc. R. Co. v. 136 La. 793 1916D 1228 1918B 973 Ellis, Record v. 97 Kan. 754. 19170 822 Ellison-Harvey Co., Conrad 1917D 84 v. 120 Va. 458 1918B 1171 Elm City Lumber Co., Brown v. 167 N. Car. 9 1916E 631 1917D 1003 Elsom, Hihn-Hammond Lum- ber Co. v. 171 Cal. 570 19170 798 1917D 552 Eltinge v. Santos 171 Cal. 278 1917A 1143 Elyria Savings, etc. Co. v. 1918B 665 Walker Bin Co. 92 Ohio St. 406 1917D 1055 1916D 944 Embry v. Adams 191 Ala. 291 19170 1024 Emerson, Sweetser v. 236 1916D 1000 Fed. 161 1917B 244 Empire Mill Co., Blackwell 1917D 1034 Lumber Co. v. 28 Idaho 556 1918A 189 19170 753 English, Dickason v. 272 111. 368 1918A 1165 19160 368 Eppley, Marion Shoe Co. v. 181 Ind. 219 1916D 220 19160 332 Equitable Life Assurance Soc., Schas v. 170 N. Car. 420.. 1918A 679 1917B 981 Erie R. Co., Brown v. 87 N. J. Law 487 1917C 496 19170 1203 Erie R. Co., Hamilton v. 219 N. Y. 343 1918A 928 1917A 1160 Erie R. Co. v. Steinberg 94 Ohio St. 189 1917E 661 1916E 455 Erie R. Co. v. Winfield 244 U. S. 170 1918B 662 1916D 588 Esper, Cleveland v. 92 Ohio St. 493 1917D 1134 1917C 913 Essex County Park Commis- sion, Barnes v. 86 N. J. 1918B 379 Law 141 1916E 968 E. Starr Jones, The 224 Fed. 1917A 64 391 1917B 996 Estate of Beckwith v. Spooner 1917B 201 183 Mich. 323 1916E 886 Estate of Cutting 172 Cal. 1918A 773 191 1917D 1171 Estate of Manchester 174 1917A 539 Cal. 417 1918B 227 Estate of Oldfield 175 Iowa 1917A 296 118 . 1917D 1067 CASES REPORTED. xvii Etzel, Frey v. 160 Wis. 311. Eugene, Pullen v. 77 Ore. 320 Eugene Dietzen Co. v. Indus- trial Board 279 111. 11 Eureka Pipe Line Co. v. Riggs 75 W. Va. 353 Evans v. Edinburgh [1916] 2 A. C. 45 Evening Post Co., Axton Fisher Tobacco Co. v. 169 Ky. 64 Everett, Sims v. 113 Ark. 198 Ewart v. Minneapolis, etc. R. Co. 128 Minn. 77 Ewbank v. Lyman 170 N. Car. 505 Excelsior Life Ins. Co., Dono- van v. 53 Can. Sup. Ct. 539 Excelsior Products Mfg. Co. v. Kansas City Southern R. Co. 263 Mo. 142 Face v. Cherry 117 Va. 41.. Fader, Oleson v. 160 Wis. 473 Faisan v. Adair 144 Ga. 797. Faison v. Middleton 171 N. Car. 170 Faivre, Wideman v. 100 Kan. 102 Falkovitch, People v. 280 111. 321 Farley, Matter of 213 N. Y. 15 Farmers', etc. Nat. Bank, Brown v. 76 Ore. 113 Farmers', etc. Nat. Bank, Holden v. 77 N. H. 535 ... Farmers' Loan, etc. Co. v. Planck 98 Neb. 225 Farmers' National Bank v. McCoy 42 Okla. 420 Farmers' State Bank, McKil- lip v. 29 X. Dak. 541 Farnam, State v. 82 Ore. 211 Farr, Neelley v. 61 Colo. 485 Farson, Flexner v. 268 111. 435 Faust, Pond v. 90 Wash. 117. Fayssoux, Houser v. 168 N. Car. 1 Fearon v. Fodera 169 Cal. 370 Fechheimer, Philadelphia Cas- ualty Co. v. 220 Fed. 401. Fensky v. Maryland Casualty Co. 264 Mo. 154 ". Fergus v. Brady 277 111. 272. Ferguson v. Majestic Amuse- ment Co. 171 N. Car. 663 . . Ferguson v. Martineau 115 Ark. 317 Ferris v. Sterling 214 N. Y. 249 PAGE PAGE 1917D 153 Fidelity, etc. Co., Shoop v. 124 M0o 1918B 913 Marshak v. Marshak 115 Ark. 51 1916E 206 Marshall, Cleveland, etc. R. Co. v. 182 Ind. 280 1917A 756 Marshall v. Gordon, 243 U. S. 521 1918B 371 Marth v. Kingfisher Com- mercial Club 14 Okla. 514. 1917E 235 Martin v. Becker 169 Cal. 301 1916D 171 Martineau, Ferguson v. 115 Ark. 317 1916E 421 Marvel v. Jonah 83 N. J. Eq. 295 1916O ISo Marvin, Dale v. 76 Ore. 528. 19170 557 Marx v. Hefner 46 Okla. 453 1917B 656 Maryland Casualty Co., Fen- sky v. 264 Mo. 154 1917D 963 Maryland Casualty Co. v. Price 231 Fed. 397 1917B 50 CASES REPORTED. PAGE Maryland Motor Car Ins. Co., Cottingham v. 163 N. Car. 259 1917B 1237 Maryland Motor Car Ins. Co., Crowell v. 169 N. Car. 35. . 1917D 50 Mason v. Board of Managers 181 Mich. 347 19160 848 Mason v. Bowen 122 Ark. 407 1917D 713 Mason, Castle v. 91 Ohio St. 296 1917A 164 Mason, Gard v. 169 N. Car. 507 1917D 281 Mason v. State 74 Tex. Crirn. 256 1917D 1094 Mason v. Western Union Tel. Co. 169 N. Car. 229 1917D 159 Massaletti v. Fitzroy 228 Mass. 487 1918B 1088 Masses Publishing Co. Y. Pat- ten 246 Fed. 24 1918B 999 Mastellar v. Atkinson 94 Kan. 279 1917B 502 Mastin v. May 127 Minn. 93. 1916C 493 Matter of Dart 172 Cal. 47.. 1917D 1127 Matter of City of New York (Court House) 216 N. Y. 489 1917D 157 Mattiessen, People ex rel. Carus v. 269 111. 499 1916E 1035 Mattson, Person v. 33 N. Dak. 49 1918A 747 Maupin, Sales v. 35 S. Dak. 176 1917O 1222 Maxwell, Jackson v. 113 Me. 366 1917O 966 Maxwell Motor Co., Weaver v. 186 Mich. 588 1917E 238 Maxwell Motor Sales Corp., Barnes v. 172 Ky. 409 1917E 578 May v. Levy 88 N. J. Law 351 1917C 619 May, Mastin v. 127 Minn. 93 1916C 493 Maydwell v. Maydwell 135 Tenn. 1 1918B 1043 Mayfield v. Wernickle Chem- ical Co. 65 Fla. 113 1917A 1193 Maynard v. Henderson 117 Ark. 24 ' 1917A 1157 Maynard r. Lange 71 Ore. 560 1916E 547 Mayor, Cunningham v. 222 Mass. 574 1917C 1100 Mayor, etc. German Evangel- ical, etc. Cong. v. 123 Md. 142 1916C 231 Mayor, etc. Y. Jordan 142 Ga. 409 19160 240 Mavor, etc. Saulman v. 131 Tenn. 427 19160 1254 McAlindcn v. St. Maries Hos- pital Assoc. 28 Idaho 657. 1918A 380 McAndrews, etc. Co. v. Cam- den National Bank 87 N. J. Law 231 19170 146 MeAnineh, State v. 172 Iowa 9G 1918A 559 PAGE McArthur, Fourth National Bank v. 168 N. Car. 48 1917B 1054 MeCabe v. Kain 250 Pa. St. 444 1917D 378 McCall, Heim v. 239 U. S. 175 1917B 287 McCall, People ex rel. New York, etc. Gas Co. v. 219 N. Y. 84 1916E 1042 McCall v. State 18 Ariz. 408. 1918A 168 McCarthy Improvement Co., Ottumwa v. 175 Iowa 233. 1917E 1077 McCarthy's Administrator Y. Northfield 89 Vt. 99 1918A 943 McCarver v. Griffin 194 Ala. 634 19170 1172 McCloskey, Weigel v. 113 Ark. 1 19160 503 McClure, Archer v. 166 N. Car. 140 19160 180 McColgan v. Walter Magee 172 Cal. 182 1917D 1050 McConnell v. Goodwin 189 Ala. 390 1917A 8S9 McCoy, Farmers' National Bank v. 42 Okla. 420 1916D 1243 McCoy v. Handlin 35 S. Dak. 487 1917A 1046 McCoy v. McCoy 74 W. Va. 64 1916C 367 McCracken Y. Cowing 271 111. 270 1917D 144 McCracken v. Joliet 271 111. 270 1917D 144 McCracken v. Missouri Valley Bridge etc. Co. 96 Kan. 353 1918B 689 McCullom, Cincinnati, etc. R. Co. v. 183 Ind. 556 1917E 1165 McCullough, Craghead v. 58 Colo. 485 19160 1075 McCurry v. Purgason 170 N. Car. 463 1918A 907 McDaniel, Ex p. 76 Tex. Grim. 184 1917B 335 McDermott v. Scully 91 Conn. 45 1917E 407 McDevitt, Tenement House Department v. 215 N. Y. 160 1917A 455 McDonald v. McLendon 173 N. Car. 172 1918A 1063 McDonald, Thysell v. 134 Minn. 400 1917C 1015 McDougal, Kiefer Oil, etc. Co. v. 229 Fed. 933 1916D 343 McDuffee, Smith v. 72 Ore. 276 1916D 947 McElhinney, Crawford v. 171 Iowa 606 1917E 221 McElligott, Akron v. 165 Iowa 297 1916E 692 McEwen v. Fletcher 164 Iowa 517 1916D 631 McGahey, Coffey v. 181 Mich. 225 19160 923 MVGarry v. Superior Portland Cement Co. 95 Wash. 412. 1918A 572 CASES REPORTED. XXXI PAGE McGhee v. Cox 116 Va. 718. 1916E 842 McGillis, Telford v. 130 Minn. 397 1916E 157 McGinnis v. Studebaker Cor- poration 75 Ore. 519 1917B 1190 McGraw v. Home Insurance Co. 93 Kan. 482 1916D 227 McGregor v. Great Northern R. Co. 31 N. Dak. 471 1917E 141 Mclntosh v. Wales 21 Wyo. 397 1916C 273 McKay, State v. 137 Tenn. 280 1917E 158 McKay, Yonkus v. 186 Mich. 203 1917E 458 McKee v. Hughes 133 Tenn. 455 1918A 459 McKeemie, Fisher v. 43 Okla. 577 1917C 1039 McKillip v. Farmers' State Bank 29 N. Dak. 541 1917C 993 McKinney T. Adams 68 Fla. 208 1917B 326 MeLaughlin v. Sovereign Camp-=-97 Neb. 71 1917A 79 MeLaughlin v. United Rail- roads 169 Cal. 494 1916D 337 McLearn, Gordon v. 123 Ark. 496 1918A 482 McLellan v. Fuller 220 Mass. 494 1917B 1 McLemore v. Raine's Estate 131 Tenn. 637 1916D 307 McLendon, McDonald v. 173 N. Car. 172 1918A 1063 McLeod, Thompson v. 112 Miss. 383 1918A 674 McMurray, Kennedy v. 169 Cal. 287 1916D 515 McNaughton T. Johnson 242 U. S. 344 1917B 801 McPhail v. Denver 59 Colo. 248 1916E 1143 McPhail, Howard v. 37 R. I. 21 1917A 186 McPherson v. Buick Motor Co. 217 N. Y. 382 19160 440 Meaher r. Mitchell, 112 Me. 416 1917A 688 Medlin y. County Board of Education 167 N. Car. 239. 1916E 300 Meehan v. Ingalls 91 Wash. 86 1918B 71 Meeker, Norman v. 91 Wash. 534 1917D 462 Meeker County Abstract, etc. Co., Hunt v. 128 Minn. 207 1916D 925 Megantz, Wolf v. 184 Mich. 452 1916D 1146 Meixell v. American Motor Car Sales Co. 181 Ind. 153. 1916D 375 Mellis, Pirie & Co.. Hawkins V. 127 Minn. 393 1916C 640 Melloon, Brown v. 170 Iowa 49 19170 1070 Memphis v. State ex rel. Ryals 133 Tenn. 83 1917C 1056 Memphis St. R. Co. r. Rapid Transit Co. 133 Tenn. 99.. Merchant's Administrator v. Shry 116 Va. 437 Merchants', etc. Bank, Loew- enherz v. 144 Ga. 556 Merchants', etc. Bank v. New First National Bank 116 Ark. 1 Merchants' Exchange, State ex rel. Barker v. 269 Mo. 346 Merchants' Union Ins. Co., Halsell v. 105 Miss. 268.. Merrill v. Hodson 88 Conn. 314 Merten's Patents, In re [1915] 1, K. B. 857 Merton v. Puffer 157 Wis. 576 Metropolitan Investment Co., Dibbert v. 158 Wis. 69... Metropolitan Life Ins. Co. v. Nelson 170 Ky. 674 Mettler v. Snow 90 Conn. 690 Mewhinney, State v. 43 Utah 135 Meyer v. Schulte 214 N. Y. 361 Meyers, Kutzner v. 182 Ind. 669 Mial, Davis v. 96 N. J. Law 167 Miami Copper Co. v. State 17 Ariz. 179 Michael, Finch v. 167 N. Car. 322 Michigan, Brazee v. 241 U. S. 340 Michigan Cent. R. Co. v. Michigan R. Com. 183 Mich. 6 Michigan R. Com., Michigan Cent. R. Co. v. 183 Mich. 6 Mid-Continent Development Co., Inscho v. 94 Kan. 370 Middlesboro Electric Co., Smith's Administratrix v. 164 Ky. 46 Middleton, Faison v. 171 N. Car. 170 Middleton r. Stone 163 Ky. 571 Middleton v. Whitridge 213 N. Y. 499 Milbourne T. Kelley 93 Kan. 753 Miller, Coffey v. 160 Ky. 415 Miller, Columbia-Knicker- bocker Trust Co. v. 215 N. Y. 191 Miller v. Delaware River Transp. Co. 85 N. ,T. Law 700 PA.GB 19170 1045 1916D 1203 1917E 877 1917A 944 1917E 871 1916E 229 1916D 917 19170 215 1916D 840 1916E 924 1918B 1182 19170 578 19160 537 1916E 384 1917A 872 1916E 1028 1916E 494 1916E 382 19170 522 1916E 695 1916E 695 1917B 546 1917A 1164 1917E 72 1917E 84 19160 856 1916D 389 1916C 30 1917A 348 19160 165 CASES REPORTED. Miller v. Dilkes 251 Pa. St. 44 Miller v. Gordon 93 Kan. 382 MiileV V. ' Miller 91 Kan. '!.'.' Miller, Strahl T. 97 Neb. 820 Miller Sawmill Co., Schwa- bacher Hardware Co. v. 90 Wash. 193 Miller, Steele, etc. Co. v. 92 Ohio St. 115 Mills, Denver, etc. R. Co. v. 59 Colo. 198 Milwaukee Board of Fire Un- derwriters, Sutter v. 161 Wis. 615 Milwaukee Electric R. etc. Co., Kuhn v. 158 Wis. 525. Milwaukee Mechanics' Ins. Co. v. Ramsey 76 Ore. 570. Minneapolis, Ackeret v. 129 Minn. 190 Minneapolis, etc. R. Co., In re 30 N. Dak. 221 Minneapolis, etc. R. Co. v. Bombolis 241 U. S. 211... Minneapolis, etc. R. Co., Chris- topherson v. 28 N. Dak. 128 Minneapolis, etc. R. Co. v. Douglas County 159 Wis. 408 Minneapolis, etc. R. Co., Ewart v. 128 Minn. 77 Minneapolis, etc. R. Co., Greenleaf v. 30 N. Dak. 112 Minneapolis, etc. R. Co. v. Winters 242 U. S. 353 Minnesota, etc. R. Co., Price v. 130 Minn. 229 Mississippi Railroad Commis- sion v. Mobile, etc. R. Co. 115 Miss. 101 Missouri Athletic Club, State ex inf. Harvey v. 261 Mo. 576 Missouri, etc. R. Co. v. Foote 46 Okla. 578 Missouri, etc. R. Co., Hollin- ger v. 94 Kan. 316 Missouri, etc. R. Co., State 'v. 262 Mo. 507 Missouri Pacific R. Co., State v. 96 Kan. 609 Missouri Valley Bridge, etc. Co., McCracken v. 96 Kan. 353 MitcheJl, Brown v. 168 N. Car. 312 Mitchell, Hitchman Coal, etc. Co. v. 245 U. S. 229 Mitchell v. Langley 143 Ga. 827 Mitchell, Meaher v. 112 Me. 416 Mitchell, St. Louis Southwest- ern R. Co. v. 115 Ark. 339. PAGE 1917D 555 1916D 502 1917A 918 1917A 141 1918A 940 19170 926 1916E 985 1917E 682 1916E 678 1917B 1132 1916E 897 1917B 1205 1916E 505 1916E 683 1916E 1199 1916D 1047 1917D 908 1918B 54 1916C 267 1918B 828 1916D 931 1917D 173 1916D 802 1916E 949 1917A 612 1918B 689 1917B 933 1918B 461 1917A 469 1917A 688 1916E 317 Mitchell, Spangler v. 35 S. Dak. 335 Mobile, etc. R. Co., Mississippi Railroad Commission v. 115 Miss. 101 Moffett, Hood v. 109 Miss. 757 Mollohan v. Cavender 75 W. Va. 36 Monarch Refrigerating Co., Hobbs v. 277 111. 326 Montgomery, Postal Tele- graph-Cable Co. v. 193 Ala. 234 Montpelier, etc. R. Co., Sayers v. 90 Vt. 201 Montreuil, Ontario Asphalt Block Co. v. 52 Can. Sup. Ct. 541 Montrose, Kimmons v. 59 Colo. 578 Moody v. Hagen 36 N. Dak 471 Moody v. Stubbs 94 Kan. 250 Mooers, Pattangall v. 113 Me. 412 Moon, Daboll v. 88 Conn. 387 Moore, In re 112 Me. 119... Moore v. Aetna Life Ins. Co. 75 Ore. 47 Moore v. Paving Improvement District 122 Ark. 326 Moore v. Rowlett 269 111. 88 Moore v. Saxton 90 Conn. 164 Moorman, Bower v. 27 Idaho 162 Moose v. Board of Commis- sioners 172 N. Car. 419... Mooy v. Gallagher 36 R. I. 405 M'oreau, Morin v. 112 Me. 471 Moreau Lumber Co. v. John- son 29 N. Dak. 113 Morehouse v. Shepard 183 Mich. 472 Morel's Administrator, Schau- berger v. 168 Ky. 368 Morgan, Barber v. 89 Conn. 583 Morgan v. Dayton Coal, etc. Co. 134 Tenn. 228 Morgan, State v. 44 Utah 224 Morin v. Moreau 112 Me. 471 Morris, Fidelity Mortgage Bond Co. v. 191 Ala. 318.. Morris, Heiskell v. 13.5 Tenn, 238 Morris v. Windsor Trust Co. 213 N. Y. 27 Morris, Young v. 47 Okla. 743 TAGE 1918A 373 1918B 1917E 1918A 1918A 1918B 1918B 1917B 1917A 1918A 1917C 1917D 1917B 1917A 1917B 1917D 1916E 1917C 1917C 1917E 1916D 1918A 1917C 1916E 1917C 1916E 1917E 1916D 1918A 1917C 1918B 1916C 1913B 828 410 499 743 554 1050 852 407 933 362 639 164 645 1005 599 718 534 99 1183 395 497 290 305 265 102 42 1279 497 952 1134 972 450 CASES REPORTED. xxxiii Morrison, Bemot v. 81 Wash. 538 Morrissey, Houlihan v. 270 111. 66 Morrow v. Bell 170 Iowa 17. Moseley, -Taylor v. 170 Ky. 592 Mossman, Gray v. 88 Conn. 247 Motion Picture Patents Co. v. Universal Film Mfg. Co. 243 U. S. 502 Mountain States Tel. etc. Co., Wolverton v. 58 Colo. 58.. Mountain Timber Co. v. Wash- ington 243 U. S. 219 Mount Vernon Tel. Co. v. Franklin Farmers' Co-opera- tive Tel. Co. 113 Me. 46.. Mullin Seaboard Air Line Ry. v. 70 Fla. 450 Munden, Owens v. 168 N. Car. 266 Munger, Matter of Estate of 168 Iowa 372 Munson, Marks v. 59 Colo. 440 Murphy v. Fort Edward 213 N. Y. 397 Murphy, Gallagher v. 221 Mass. 363 Murphy v. Hitchcock 22 Ha- waii 665 Murphy v. Skinner's Estate 160 Wis. 554 Murphy, Stewart v. 95 Kan. 421 Murray, Kaufman v. 182 Ind. 372 Murray v. State ex rel. Nestor 91 Ohio St. 220 Murray v. Waite 113 Me. 485 Murtha v. Big Bend Land .Co. 27 N. Dak. 384 Music v. Big Sandy, etc. R. Co. 163 Ky. 628 Mutual Benefit Life Ins. Co. v. Swett 222 Fed. 200 Mutual Film Corp. v. Indus- trial Commission 236 U. S. 230 Myakka Co. v. Edwards 68 Fla. 372 Myers v. Bender 46 Mont. 497 Myers, Dillon v. 58 C6lo. 492 Myers v. Saltry 163 Ky. 481 PAGE 1916D 290 1917A 364 1917D 98 1918B 1125 1917C 27 1918A 959 1916C 776 1917D 642 1917B 649 1918A 576 1917B 1117 1917B 213 1917A 766 1916C 1040 1917B 594 1917B 976 1917A 817 1917C 612 1917A 832 1916D 864 1918A 1128 1917A 706 1916E 689 1917B 298 1916C 296 1917B 201 1916E 245 1916C 1032 1916E 1134 Nakata. Dominion Fire Insur- ance Co. v. 52 Can. Sup. Ct. 294 1916C 1063 Nash, St. Louis v. 266 Mo. 523 1918B 134 Nashville. White v. 134 Tenn. 688 1917D 960 PAGE Nashville, etc. R. Co., Howard v. 133 Tenn. 19 1917A 844 Nashville, etc. Ry. v. Ander- son 134 Tenn. 666 1917] Nashville Intel-urban R. Co., Hogan v. 131 Tenn. 244... 1916< Nathen Russell, Baldauf v. 88 N. J. Law 303 1917] National Bank v. Amoss 144 Ga. 425 1918J National Cash Register Co., Attorney General ex rel. James v. 182 Mich. 99 1916D 638 National Council, Dechter v. 130 Minn. 329 1917C 142 National Council, Ledy v. 129 Minn. 137 1916E 486 National Ins. Co., Duvall v. 28 Idaho 356 1917E 1112 National Life Ins. Co., Daw- son v. 176 Iowa 362 1918B 230 National Life, etc. Ins. Co., Lanford v. 116 Ark. 527.. 1917A 1081 National Live Stock Ins. Co., Simmons v. 187 Mich. 551. 1917D 42 National Surety Co., Dominion Trust Co. v. 221 Fed. 618. 1917C 447 National Surety Co. v. Fletcher ' 186 Ala. 605 1916D 872 Neas v. Whitener-London Realty Co. 119 Ark. 301.. 1917B 780 Needham, St. Louis, etc. R. Co. v. 122 Ark. 584 1917D 486 Neelley v. Farr 61 Colo. 485. 1918 A 23 Nelson, Metropolitan Life Ins. Co. v. 170 Ky. 674 1918B 1182 Neptune Fire Engine, etc. Co. v. Board of Education 166 Ky. 1 1917C 789 Ness, United States v. 230 Fed. 950 1917C 41 Nevada Canal Co., Rogers v. 60 Colo. 59 1917C 669 Nevada County Bank v. Sulli- van 122 Ark. 235 1917D 736 Neven v. Neven 38 Nev. 541. 1918B 1083 New v. Smith 94 Kan. 6 1917B 362 New, Wilson v. 243 U. S. 332 1918A 1024 New Amsterdam Casualty Co., Rathman v. 186 Mich. 115. 1917C 459 Newark, Newark Natural Gas, etc. Co. v. 242 U. S. 405.. 1917B 1025 Newark Call Printing, etc. Co., Garrison v. 87 N. J. Law 217 1917C 33 Newark Natural Gas, etc. Co. v. Newark 242 U. S. 405. 1917B 1025 New Boston, Bartlett v. 77 N. H. 476 1917B 777 Newby v. Times-Mirror Co. 173 Cal. 387 1917E 186 Newcomer v. Jefferson Town- ship 181 Ind. 1 1916E 181 New Dells Lumber Co., Ven- nen v. 161 Wis. 370 1918B 293 Newell v. Reid 189 Mich. 174 1918B 224 CASES BEPORTED. PAGE New First National Bank, Merchants', etc. Bank v. 116 Ark. 1 1917A 944 New Haven Gas Light Co., Wetkopsky v. 88 Conn. 1 . . 1916D 968 New Jersey Fidelity, etc. Ins. Co., Doyle v. 168 Ky. 789. 1917D 851 New Orleans, Leitz v. 136 La. 483 1916D 1188 New Orleans v. Toca 141 La. 551 1918B 1032 New Orleans E., etc. Co., Boy- Ian v. 139 La. 185 1918A 287 New Orleans R., etc. Co. Ca- hill v. 139 La. 185 1918A 287 New Orleans R. etc. Co., Haile v. 135 La. 229 1916C 1233 Newport v. "Wagner 168 Ky. 641 1917A 962 New River, etc. R. Co. v. Hon- aker 119 Va. 641 19170 132 New South Farm, etc. Co., United States v. 241 U. S. 64 1917C 455 New Street, Matter of 215 N. Y. 109 1917A 119 New York, Matter of City of 215 N. Y. 109 1917A 119 New York, Burns v. 213 N. Y. 516 19160 1093 New York, Lalor v. 208 N. Y. 431 1916E 572 New York, Shepard v. 216 N. Y. 251 19170 1062 New York, etc. R. Co., Brady v. 218 N. Y. 140 1918B 588 New York, etc. R. Co. v. Cella 88 Conn. 515 1917D 590 New York, etc. R. Co., Flynn v. 218 N. Y. 140 1918B 588 New York Central, etc. R. Co., W. J. Armstrong Co. v. 129 Minn. 104 1916E 335 New York Central R. Co. v. White 243 U. S. 188 1917D 629 New York Central R. Co. v. Winfield 244 U. S. 147 1917D 1139 New York Life Ins. Co., Van Woert v. 30 N. Dak. 27... 1918A 203 Nichols, Benson v. 246 Pa. St. 229 1916D 1109 Nicholas v. Porter 181 Ind. 332 1916D 326 Nicholas v. Title, etc. Co. 79 Ore 226 1917A 1149 Nichols v. Houghton Circuit Judge 185 Mich. 654 1917D 100 Nicholson, Spadra-Clarksville Coal Co. v. 93 Kan. 638... 1916D 652 Nicholson Pub. Co., Flanagan v. 137 La. 588 1917B 402 Nickell, Clark v. 73 W. Va. 69 1917A 1286 Nicoll v. Sweet 163 Iowa 683 1916C 661 Niebalski v. Pennsylvania R. Co. 249 Pa. St. 530 1917C 632 Nieberg v. Cohen 88 Vt. 281 1916C 47G PAGE Niehaus v. C. B. Barker Con- struction Co. 135 Tenn. 382 1918B 23 Nier, Points v. 91 Wash. 20. 1918A 1046 Nimnich, Bank of Corning v. 122 Ark. 316 1917D 566 Nipper. State v. 166 N. Car. 272 1916C 126 Noble Mutual Tel. Co., State Public Utilities Com. v. 268 111. 411 1916D 897 Nolan v. Glynn 163 Iowa 146 . 1916C Nolen v. Henrj 190 Ala. 540 Nordlund v. Dahlgren 130 Minn. 462 ................ Norman v. Charlotte Electric R. Co. 167 N. Car. 533 ____ Norman v. Meeker 91 Wash. 534 ...................... Norris, Carlisle v. 215 N. Y. 400 ...................... North, Suburban Homes Co. v. 50 Mont. 108 .......... North American Accident Ins. Co., Hamilton v. 09 Neb. 579 .................. North Avenue Bldg., etc. Assoc. v. Huber 2-70 111. 75 ....................... Northcut v. Church 135 Tenn. 541 ................. North Dakota, Armour & Co. v. 240 U. S. 510 .......... Northern Brewery Co. v. Princess Hotel 78 Ore. 453 Northern Central R. Co. v. Laird 124 Md. 141 ........ Northern Coal, etc. Co., Tay- lor v. 161 Wis. 223 ....... Northern Pacific R. Co., Burke v. 86 Wash. 37 ..... Northern Pacific R. Co., Dick v. 86 Wash. 211 .......... Northern Pacific R. Co., Imler v. 89 Wash. 527 .......... Northern Pacific R. Co. v. Pierce County, 77 Wash. 315 ...................... Northern Pacific R. Co. v. Richland County 28 N. Dak. 172 .................. Northern Pacific R. Co. v. State 84 Wash. 510 ....... Northern Trust Co. v. Brueg- ger 35 N. Dak. '150 ....... Northfield, McCarthy's Ad- ministrator v. 89 Vt. 99.. Northfield Trust Co., Citizens' Savings Bank, etc. Co. v. 89 Vt. 65 ................. Northland Steamship Co., Shaughnessy v. 94 Wash. 325 ...................... Xorth Sterling Irrigation Dis- trict v. Dickman 59 Colo. 1917B 1917B 1916E 1917D 1917A 19170 559 792 941 508 462 429 81 19170 409 1917B 537 1918B 545 1916D 548 19170 621 1916D 1030 1916C 167 1917B 919 1917A 638 1917A 933 1916E 1194 1916E 1916E 1917E 1918A 1918A 1918B 191SD 574 1166 447 943 891 655 973 CASES REPORTED. XXXV PAGE Northwestern Fuel Co. v. In- dustrial Commission 161 Wis. 450 1918A 533 Northwestern Marble Works, Eodseth v. 129 Minn. 472. 1917A 257 Northwest Loan, etc. Co., Creditors Claim, etc. Co. v. 81 Wash. 247 1916D 551 Northwest Steel Co. v. School District 76 Ore. 321 1917B 1086 Norton v. Duluth Transfer R. Co. 129 Minn. 126 1916E 760 Norton, Hill v. 74 W. Va. 428 1917D 489 Norton v. Union Traction Co. 183 Ind. 666 1918A 156 Noyes, etc. Mfg. Co., Will- iams v. 112 Me. 408 1916D 1224 Noziska v. Aten 35 S. Dak. 451 1916C 589 Nugent, Beliance Auto Repair Co. v. 159 WSs. 488 1917B 307 Nye County, First National Bank v. 38 Nev. 123 1917C 1195 Nvgaard, Hilmen v. 31 N. Dak. 419 1917A 282 Nygaard, State ex rel. Wick- ham v. 159 Wis. 396 1917A 1065 Oak Creek United States Glue Co. v. 161 Wis. 211 1918A 421 Oakland v. Pacific Coast Lumber, etc. Co. 172- Cal. 332 1917E 259 Gates, Lee v. 171 N. Car. 717 1917A 514 O'Banion v. Cunningham 168 Ky. 322 1917A 1017 O'Brien, Louisville, etc. R. Co. v. 163 Ky. 538 1916E 1084 O'Brien, Louisville, etc. R. Co. v. 168 Ky. 403 1917D 922 Ocean Accident, etc. Corp., Adleman v. 130 Md. 572.. 1918B 730 Oceanic Steam Navigation Co. v. United States 232 Fed. 591 1917C 248 O'Doherty v. Bickel 166 Ky. 708 1917A 419 Ohio River R. Co., Dulin v. 73 W. Va. 166 1916D 1183 O. K. Bus, etc. Co., Rogers v. 46 OkJa. 289 1917B 581 Oklahoma City v. Tucker 11 Okla. Crim. 266 1917D 984 Oldfield, Estate of 175 Iowa 118 1917D 1067 Olds v. Little Horse Creek Cattle Co. 22 Wyo. 336... 19170 120 Oleson v. Fader 160 Wis. 473 1917D 314 Olson, Thornhill v. 31 N. Dak. 81 1917E 427 Olympia Oil, etc. Co., Produce Bankers Co. v. [1916} A. C. 314 1916D 351 Omaha Wool, etc. Co. v. Chicago Great Western R. Co. 97 Neb. 50 1917A 358 PAGE O'Neal v. Bainbridge 94 Kan. 518 1917B 293 Ontario Asphalt Block Co. v. Montreuil 52 Can. Sup. Ct. 541 1917B 852 Order of St. Benedict v. Steiuhauser 234 U. S. 640. 1917A 463 O'Rear v. Sartain 193 Ala. 275 1918B 593 Oregon, Bunting v. 243 U. S. 426 1918A 1043 Oregon Hassam Paving Co., Hyland v. 74 Ore. 1 1916E 941 Oregon-Washington R., etc. Co., Grice v. 78 Ore. 17... 1917E 645 Oregon-Washington R., etc. Co., Spain v. 78 Ore. 355 . . 1917E 1104 Orr v. Sutton 127 Minn. 37.. 1916C 527 Osborne v. Grand Trunk R. Co. 87 Vt. 104 19160 74 Osborne, State 'v. 171 Iowa 678 1917E 497 O'Shea, Cranford v. 83 Wash. 508 19160 1081 Oskamp Nolting Co., Cotton- dale State Bank v. 64 Fla. 36 1916D 564 Osteen v. Southern R. Co. 101 S. Car. 532 19170 505 Ottenheimer, Rugenstein v. 78 Ore. 371 1917E 953 Ottinger, Samuels v. 169 Cal. 209 1916E 830 Ottley, Carlisle v. 143 Ga. 797 1917A 573 Ottumwa v. McCarthy Im- provement Co. 175 Iowa 233 1917E 1077 Oussani, Catholic Foreign Mission Soc. v. 2^5 N. Y. 1 1917A 479 Owen v. District Court 13 Okla. 442 19170 1147 Owens v. Munden 168 N. Car. 266 1917B 1117 Owens v. State 68 Fla. 154. 1917B 252 Oxweld Acetylene Co. v. Hughes 126 Md. 437 1917C 837 Pacific Coast Casualty Co., Douville v. 25 Idaho 396. 1917A 112 Pacific Coast Lumber, etc. Co., Oakland v. 172 Cal. 332 1917E 259 Pacific Gas, etc. Co., People v. 168 Cal. 496 1917A 328 Pacific Lime, etc. Co., Cameron v. 73 Ore. 510 1916E 769 Pacific Packing Co. v. Brad- street Co. 25 Idaho 696... 1916D 761 Pacific Power, etc. Co. v. White 96 Wash. 18 1918B 12.5 Pailet, State v. 139 La. 697. 1918A 102 Palmer v. Blanchard 113 Me. 380 1917A 809 Palmer v. Cedar Rapids 165 Iowa 595 1916E 558 CASES REPORTED. PAGE Pan-American Match Co., Klotz v. 2ai Mass. 38 1917D 895 Pangburn American Surety Co. v. 182 Ind. 116 1916E 1126 Parfitt, Cain v. 48 Utah 81 . . 1918B 28 Parisi, People v. 217 N. Y. 24 1916C 111 Parker v. Dixon 132 Minn. 367 1918A 540 Parker-Washington Co. v. Chicago 267 111. 136 1916C 337 Parkison, Haney v. 72. Ore. 249 1916D 1035 Parry, Carroll v. 43 App. Cas. (D. C.) 363 1916E 971 Parsell's Estate, In re 184 Mich. 522 1917A 1160 Parsell, Edgar v. 184 Mich. 522 1917A 1160 Parsons v. Trowbridge 226 Fed. 15 1917 750 Partridge v. United States 39 App. Cas. (D. C.) 571... 1917D 622 Pastorino v. Detroit 182 Mich. 5 1916D 768 Pattangall v. Mooers 113 Me. 412 1917D 689 Patten, Masses Publishing Co. v. 246 Fed. 24 1918B 999 Patterson's Estate 247 Pa. St. 529 1917B 1243 Patterson v. State 191 Ala. 16 1916C 968 Paul, Auburn v. 113 Me. 207 1917E 136 Paul Jones & Co. v. Wilkins 135 Tenn. 146 1918B 977 Paving Improvement District, Moore v. 122 Ark. 326 1917D 599 Pay, State v. 45 Utah 411.. 1917E 173 P. Cassidy's Sons, Ziegler v. 220 N. Y. 98 1917E 248 Peace v. Edwards 170 N. Car. 64 1918A 778 Peagler v. Davis 43 Ga. 11 1917A 232 Peck, State v. 88 Conn. 447 1917B 227 Peeples, Callison v. 102 S. Car. 256 1917E 469 Peerless Pacific Co. v. Burck- hard 90 Wash. 221 ... 1918B 247 Pellett v. Industrial Commis- sion 162 Wis. 596 1917D 884 Pennsylvania, Crowl v. m U. S. 153 1917B 643 Pennsylvania R. Co., Hench v. 246 Pa. St. 1 1916B 230 Pennsylvania R. Co., Xio- balski v. 249 Pa. St. 530.. 1917C 632 Pennsylvania R. Co., Soriero v. 86 N. J. Law 642 1916E 1071 Pennsylvania R. Co. v. Titus 216 N. Y. 17 19170 862 Pennsylvania R. Co., Titus v. 87 N. J. Law 157 1917B 1251 Pennsylvania R. Co. v. Towers 126 Md. 59 1917B 1144 People v. Becker 215 X. Y. 126 1917A 600 People v. Buffom 214 N. Y. 53 People v. Cassidy 213 N. Y. 388 People v. Charles Schweinler Press 214 N. Y. 395 People v. C. Klinck Packing Co. 214 N. Y. 121 People v. Curtis 217 N. Y. 304 People v. Devine 185 Mich. 50 People v. Detroit, etc. Ferry Co. 187 Mich. 177 People v. Dixon 188 Mich. 307 People v. Elliott 272 111. 592 People v. Falkovitch 280 111. 321 People v. Gibbs 186 Mich. 127 People v. Gibson 218 N. Y. 70 People v. Kane 213 N. Y. 260 People v. Pacific Gas, etc. Co. 168 Cal. 496 People v. Parisi 217 N. Y. 24 People v. Risley 214 N. Y. 75 People v. Roach 215 N. Y. 592 People, Ryan v. 60 Colo. 425 People v. Steeplechase Park Co. 218 N. Y. 459 People v. Tomlins 213 N. Y. 240 People v. Watson 216 N. Y. 565 People v. Weiner 271 111. 74 People v. Zayas 217 N. Y. 78 People ex rel. Agnew v. Graham 267 111. 426 People ex rel. Carus v. Ma- tthiessen 269 111. 499 People ex rel. Dwight v. Chicago R. Co. 270 111. 87. People ex rel. Dyer v. Clark 268 111. 156 People ex rel. First Nat. Bank v. Brady 271 111. 100 People ex rel. Lawton v. Snell 216 N. Y. 527 People ex rel. Matthiessen v. Librae 269 111. 351 People ex rel. New York. etc. Gas Co. v. McCall 219 X. Y. 84 People ex rel. Stuckart v. Snow 279 111. 289 A Peoples, Wiebener v. 44 Okla. 32 People's Ice Co., State v. 127 Minn. 252 People's Trust Co. v. Smith 215 N. Y. 488 PAGE 1916D 962 1916C 1009 1916D 1059 1916D 1051 1917E 586 1917C 1140 1918B 170 1918B 385 1918B 391 1918B 1077 1917B 830 1918B 509 1916C 6S5 1917A 328 1916C 111 1916D 775 1917A 410 1917C 605 1918B 1099 1916C 916 1917D 272 1917C 1065 1917E 309 1916C 391 1916E 1035 1917B 821 1916D 785 19170 1093 1917D 222 1916E 959 1916E 1042 1917E 992 1916E 748 19160 61,3 1917A 560 CASES EEPORTED. ZXXVll PAGE Perdue v. Starkey's Heirs 117 Va. 806 19160 409 Ferine Machinery Co. v. Buck 1)0 \\ ash. 344 19170 341 Perkins v. Board of County Commissioners 271 111. 449 1917A 27 Perkins v. Brown 132 Tenn. 294 1917A 124 Perry v. Brandon 32 Ont. L. Rep. 94 1917E 948 Person v. Mattson 33 N. Dak. 49 1918A 747 Peters, Lindell v. 129 Minn. 288 1916B 1130 Peterson, In re 235 Fed. 878 1918A 1052 Pettit v. County Commission- ers 123 Md. 128 1916C 35 Pettit, Vasquez v. 74 Ore. 496 1917A 439 Peuser v. Marsh 218 N. Y. 505 1918B 913 Phelps v. Byrne 36 S. Dak. 369 ." 1918B 996 Philadelphia, Armstrong v. 249 Pa. St. 39 1917B 1082 Philadelphia, etc. Coal, etc. Co., Bagdon v. 217 N. Y. 432 1918A 389 Philadelphia, etc. R. Co. v. Gatta 4 Boyce (Del.) 38.. 1916E 1227 Philadelphia Casualty Co. v. Fechheimer 220 Fed. 401.. 1917D 64 Philadelphia Life Insurance Co. v. Arnold 97 S. Car. 418 19160 706 Philadelphia Life Ins. Co., Krebs v. 249 Pa. St. 330.. 1917D 1184 Philadelphia Rapid Transit Co., Cohen v. 250 Pa. St. 15 1917D 350 Philips, State ex rel. Clarkson v. 70 Fla. 340 1918A 138 Phillips v. Browne 270 111. 450 1917B 637 Phillips, Crownfield v. 125 Md. 1 1916E 991 Phillips v.- Phillips 186 Ala. 545 1916D 994 Philpot, Havis v. 115 Ark. 250 1916E 167 Philpott, Estate of 169 Iowa 555 1917B 839 Philpott, Le Clerc v. 169 Iowa 555 1917B 839 Phinney, Hiscock v. 81 Wash. 117 1916E 1044 Phoenix Ins. Co. v. Banks 114 Ark. 18 1916D 649 P. Hohenadel, Jr. Co., Buck- bee v. 224 Fed. 14 1918B 88 Pickrell, etc. Co. v. Wilson Wholesale Co. 169 N. Car. 381 1917C 344 Picture Theatres, Hurst v. [1915] 1 K. B. 1 1916D 457 Pierce County, Northern Pa- cific R. Co. v. 77 Wash. 315 1916E 1194 PAGE Pierson's Administratrix, Giv- ens v. 167 Ky. 574 1917G 956 Pillsbury, Western Metal Sup- ply Co. v. 172 Cal. 407 1917E 390 Pindel v. Holgate 221 Fed. 342 19160 983 Pinkston, West v. 44 Utah 123 1916D 1065 Pitt, State v. 166 N. Car. 268 19160 422 Pittsburgh, Duquesne Light Co. v. 251 Pa. St. 557 1917E 534 Pittsburgh, etc. R. Co. v. Chappell 183 Ind. 141 1918A 627 Pittsburgh, etc. R. Co. v. Home Ins. Co. 183 Ind. 355 1918A 828 Pittsburgh, etc. R. C. V. Kin- ney 95 Ohio St. 64 1918B 286 Pittsburgh Stock Exchange, Gartner v. 247 Pa. St. 482 1916E 878 Planck, Farmers Loan, etc. Co. v. 98 Neb. 225 1918B 598 Planters Fire Ins. Co. v. Steele 119 Ark. 597 1917B 667 Plankett, Delaney v. 144 Ga. 547 1917E 685 Points v. Nier 91 Wash. 20. 1918A 1046 Police Jury, Alexandria v. 139 La. 635 1918A 362 Pollica v. Twin State Gas, etc. Co. 88 Vt. 205 19170 1240 Pond v. Faust 90 Wash. 117. 1918A 736 Poole, Freeman v. 37 R. I. 489 1918A 841 Poole v. Poole 96 Kan. 84.. 1918B 929 Porter v. Freudenberg [1915} 1 K. B. 857 19170 215 Porter, Nicholas v. 181 Ind. 332 1916D 326 Porter v. Union Trust Co. 182 Ind. 637 1917D 427 Portland, Laughlin v. 111 Me. 486 19160 734 Portland Savings Bank, Walker v. 113 Me. 353 1917E 1 Portland Trust, etc. Bank, Beaston v. 89 Wash. 627.. 1917B 488 Port of London Authority, Cue v. [1914] 3 K. B. 892. 19160 887 Postal Telegraph-Cable Co. v. Montgomery 193 Ala. 234 1918B 554 Postal Telegraph-Cable Co., Vandalia v. 274 111. 173... 1917E 523 Postal Telegraph Co. v. For- ster 73 Ore. 122 . 1916E 979 * Poteet, Raleigh County Bank v. 74 W. Va. 511 1917D 359 Powell v. Powell 160 Wis. 504 1917D 113 Powell & Powell v. Wake Water Co. 171 N. Car. 290 1917A 1302 Powelson v. Tennessee East- ern Electric Co. 220 Mass. 380 1917A 102 Powers, In re 229 Fed. 370. . 1917B 1094 Pratt, State ex rel. Attorney General v. 192 Ala. 118.. 1917D 990 CASES REPORTED. Premier Oil. etc. Co., Robson v. [1915] 2 Ch. 124 ....... Plenties. Dittmer v. 92 Ohio St. 101 .................... Prest-O-Lite Co. v. Skeel 182 Ind. 593 .................. Preston, Chambers v. 137 Tenn. 324 ................. Price. Maryland Casualty Co. v. 231 Fed. 397 .......... Price v. Minnesota, etc. R. Co. 130 Minn. 229 ........ Price, Rudolph Hardware Co. v. 164 Iowa 353 .......... Prince, Clayton v. 129 Minn. 118 ____ . ................. Princess Hotel, Northern Brewing Co. v. 78 Ore. 453 Produce Brokers Co. v. Olympia Oil, etc. Co. ' [1916]. A. C. 314 .......... Provencher, State v. 135 Minn. 214 ................ Prudential Ins. Co., Burke v. 221 Mass. 253 ........... Public Opinion Pub. Co. T. Eansom 34 S. Dak. 381 ---- Public Service Commission, Hose v. 75 W. Va. 1 ...... Public Service Commission, State ex rel. Watts En- gineering Co. v. 269 Mo. 525 ...................... Public Service Commission, Woodburn v. 82 Ore. 114.. Public Service B. Co., Solomon v _87 N. J. Law 284 ...... Public Utilities Commission, Cincinnati v. 91 Ohio St. 331 ...................... Public Utilities Commission, Hocking Valley B. Co. T. 92 Ohio St. 9 .............. Puckett, Southern R. Co. v. 244 U. S. 571 ............ Puffer, Merton v. 157 Wis. 576 ...................... Pullen v. Eugene 77 Ore. 320 Pullman Co., Williams r. 129 Minn. 97 ................. Purdy, Hill v. 46 App. Cas. (D. C.) 495 ................ Purdy v. Sault Ste. Marie 188 Mich. 573 ............. Purdy v. Western Union Tel. . Co. 97 S. Car. 22 ......... Purgason, McCurry T. 170 N. Car. 463 ................. Quebec B. etc. Co., Vandry v. 53 Can. Sup. Ct. 72 ....... 19170 S43 Queen v. Queen 116 Ark. 370 1917A 1101 Queen City Fire Ins. Co., Salene v. 59 Ore. 297 ____ 1916D 1276 Quecnsborough Land Co. v. Cazeaux 136 La. 724 ...... 1916D 1248 Quellotte. Koonovsky v. 226 Mass. 474 . . 1918B 1146 19170 1918A 1917A 1918B 1917B 1916O 1916D 1916B 19170 1916D 1917E 1917E 1917A 1918A 1917B 1917E 1917O PACK 227 1161 474 428 50 267 850 407 621 351 598 641 1010 700 786 996 356 1916E 1081 1917B 1154 1918B 69 1916D 1917D 840 933 1916E 374 1918B 847 1917D 881 19160 726 1918A 907 PAGE Quincy, Malone v. 66 Fla. 52 1916D 208 Quinn r. Hall 37 B. I. 56 1917C 373 Radford, Selling v. 24.3 U. S. 46 1917D 569 Eae, Hill v. 52 Mont. 378... 1917E 210 Raich, Truax v. 239 U. S. 33 1917B 283 Railroad Commission, Mann Water, etc. Co. v. 171 Cal. 706 1917C 114 Raine's Estate, McLemore v. 131 Tenn. 637 1916D 307 Raleigh County Bank v. Poteet 74 W/Va. 511 1917D 359 Ramsey, Milwaukee Mechan- ics' Ins. Co. v. 76 Ore. 570. 1917B 1132 Randall, State v. 170 N. Car. 757 1918A 438 Ransom, Public Opinion Pub. Co. v. 34 S. Dak. 381 1917A 1010 Ransom, Van Ness v. 215 N. Y. 557 1917A 5SO Rapid Transit Co., Memphis St. R. Co. v. 133 Tenn. 99 19170 1045 Rast v. Van Deman, etc. Co. 240 U. S. 342 1917B 455 Ratcliffe v. Walker 117 Va. 569 1917E 1022 Rathman v. New Amsterdam Casualty Co. 186 Mich. 115 19170 459 Raudenbush, Commonwealth v. 249 Pa. St. 86 1917C 517 Ravenscroft v. Stull 280 HI. 406 1918B 1130 Rawlings' Will, In re 170 N. Car. 58 1918A 948 Ray v. Registrars, etc. 221 Mass. 223 1918A 1158 Ream, Luthy v. 270 111. 170. 1917B 368 Beams v. Cooley 171 Cal. 150 1917A 1260 Beck v. Whittlesberger 181 Mich. 463 1916C 771 Becord v. Ellis 97 Kan. 754. . 1917O 822 Bedington, Thompson v. 92 Ohio St. 101 1918A 1161 Redwine. "Redwine's Executor v. 160 Ky. 282 1917A 58 Bedwine's Executor v. Bed- wine 160 Ky. 282 1917A 58 Seed, State v.-^-53 Mont. 292. 1917E 783 Beod's Executor, Lewis v. 168 Ky. 559 1917D 1155 Reeves v. State 106 Miss. 885 1917A 1245 Registrars, etc., Bay v. 221 Mass. 223 1918A 1158 Rehling v. Brainard 38 Nev. 16 1917C 656 Beichelt, Bacon v. 272 HI. 90 1918B 1 Beichman, State ex rel. Thompson v. 135 Tenn. ' 653, 685 1918B 889 Reid, Newell T. 189 Mich. 174 1918B 224 CASES REPORTED. PAGE Eeirden v. Stephenson 87 Vt. 430 1916C 109 Beliance Auto Repair Co. v. Nugent 159 Wis. 488 1917B 307 Reliance Life Ins. Co., Dibble v. 170 Cal. 199 1917E 34 Remillard v. Blake, etc. Co. 169 Cal. 277 1916D 451 Remsnider v. Union Savings, etc. Co. 89 Wash. 87 1917D 40 Renfchler v. State ex rel. Hogan 90 Ohio St. 363 1916C 1014 Reuther, Braeuel v. 270 Mo. 603 1918B 533 Rex v. Board of Assessors 41 N. Bruns. 564 1917B 721 Rex v. Casement [1917] 1 K. B. 98 1917D 468 Rex v. Commanding Officer [1917] 1 K. B. 176 1917C 809 Rex v. Commanding Officer [1917] 2 K. B. 129 1917E 480 Rex, Gibb v. 52 Can. Sup. Ct. 402 1916D 709 Rex v. Halliday [1917] A. C. 260 1917D 389 Rex v. Robinson [1915] 2 K. B. 342 1917B 1229 Rex, Toronto R. Co. v. [1917] A. C. 630 1918A 991 Rex, Veronneau v. 54 Can. Sup. Ct. 7 1917E 612 Reynolds, Bate v. 163 Ky. 502 1917B 619 Rezac v. Zima 96 Kan. 752.. 1918B 1035 Rhode Island Co., Frey v. 37 R. I. 96 1918A 920 Rhode Island Co., Malakia v. 36 R. I. 149 1916C 1216 Rhodes, Shelby v. 105 Miss. 255 1916D 1306 Riavaaja Pub. Co., Finnish Temperance Soc. v. 219 Mass. 28 1916D 1087 Rice v. Board of License Com- missioners 36 R. I. 50 1916C 1189 Richards v. District School Board 78 Ore. 621 1917D 266 Richards, Rowe v. 35 S. Dak. 201 1918A 294 Richardson v. Flower 248 Pa. St. 35 1916E 1088 Richardson v. Greenhood 225 Mass. 608 1918A 515 Richardson, Harvey v. 91 Wash. 245 1918A 881 Richardson v. Sioux City 172 Iowa 260 1918A 618 Richardson, Williams v. 66 Fla. 234 1916D 245 Richclson v. Mariette 34 S. Dak. 573 1917A 883 Riehland County, Northern Pacific R. Co. v. 28 N. Dak. 172 1916E 574 Richmond, Hopkins v. 117 Va. 692 1917D 1114 PAGE Richmond Cedar Works, John L. Roper Lumber Co. v. 168 N. Car. 344 1917B 992 Ricks, State v. 108 Miss. 7.. 1917E 244 Ridenour, Stewart v. 97 Neb. 451 1917A 242 Riggins v. State 125 Md. 165 1916E 1117 Higgle v. Lens 71 Ore. 125. .. 1916O 108S Riggs, Eureka Pipe Line Co. v. 75 W. Va. 353 1918A 995 Riley v. Litchfield 168 Iowa 187 1917B 172 Rippetoe, Lillienkamp v. 133 Tenn. 57 19170 901 Risdale v. S. S. Kilmarnock [1915] 1 K. B. 503 1917C 757 Risley, People T. 214 N. Y. 75 1916D 775 Riverside Development Co. v. Hartford Fire Ins. Co. 105 Miss. 184 1916D 1274 Roach, People v. 215 N. Y. 592 1917A 410 Roberts, Conrad v. 95 Kan. 180 1917E 891 Roberts, Lake Tahoe R. etc. Co. v. 168 Cal. 551 1916E 1196 Roberts v. State 100 Neb. 199 1917E 1040 Robinson, Ex p. 113 Miss. 786 1917E 723 Robinson, First National Bank v. 93 Kan. 464 1916B 286 Robinson, Rex v. [1915] 2 K. B. 342 1917B 1229 Robinson, St. Paul v. 129 Minn. 383 1916E 845 Robinson v. State 69 Fla. 521 1917D 506 Robson v. Premier Oil, etc. Co. [1915] 2 Ch. 124 1917C 227 Rochester, Fifield's Adminis- tratrix v. 89 Vt. 329 1918A 1016 Rock Hill Fertilizer Co., Woods v. 102 S. Car. 442. . 1917D 1149 Rodgers, Ingram-Day Lumber Co. v. 105 Miss. 244 1916E 174 Rodseth v. Northwestern Mar- ble Works 129 Minn. 472. 1917A 257 Roess v. Malsby Co. 69 Fla. 15 1917C 1022 Rogers v. Atlantic, etc. Co. 213 N. Y. 246 19160 877 Rogers, Illinois Central R. Co. v. 162 Ky. 535 1916E 1201 Rogers v. Nevada Canal Co. 60 Colo. 59 1917O 669 Rogers v. O. K. Bus, etc. Co. 46 Okla. 289 1917B 581 Rohan v. Johnson 33 N. Dak. 179 1918A 794 Rollins. Best Park, etc. Co. v. 192 Ala. 534 1917D 929 Rollins v. Blaekden 112 Me. 459 1917A 875 Romana v. Boston Elevated R. Co. 218 Mass. 76 1917A 893 Root, Labere v. 87 Wash. 146 1917O 1037 Rose, Hall v. 242 U. S. 539 . . 1917C 643 Rose v. Public Service Com- mission 75 W. Va. 1 1918A 700 A.-.K3 REPORTED. PAGE Rosenberg v. Dahl 162 Ky. 92 1916E 1110 Bosenthal v. Insurance Co. 158 Wis. 550 1916E 395 Ross, Simmons v. 270 111. 372 1916E 125G Rossignol, Bell r. 143 Ga. 150 1917C 576 Rott v. Goehring 33 N. Dak. 413 1918A 643 Routh, Home Land, etc. Co. v. 123 Ark. 360 1917C 1142 Rowe v. Richards 35 S. Dak. 201 1918A 294 Rowlands v. Chicago, etc. R. Co. 149 Wis. 51 1916E 714 Rowlett, Moore v. 269 111. 88 1916E 718 Royal v. Southerland 168 N. Car. 405 1917B 623 Royal Ins. Co., Second Society v. 221 Mass. 518 1917E 491 Royal Ins. Co. v. Walker Lum- ber Co. 24 Wyo. 59 1917E 1174 Royal League, Anderson v. 130 Minn. 416 1917C 691 Royal Mineral Association, State v. 132 Minn. 232. ... 1918A 145 Ruble v. Busby 27 Idaho 4S6 1917D 665 Rudolph Hardware Co. v. Price 164 Iowa 353 1916D 850 Rugenstein v. Ottenheimer 78 Ore. 371 1917E 953 Rummell v. Blanchard 216 N. Y. 348 1917D 109 Rundle, In re 32 Ont. L. Rep. 312 1917A 139 Russell, Griffin v. 144 Ga. 275 1917D 994 Russel v. Jordan 58 Colo. 445 19160 760 Ruston. Union Ice, etc. Co. v. 135 La. 898 1916C 1274 Rutland R. Co., Ingram's Adm'x v. 89 Vt. 278 1918A 1191 Ryall v. Kidwell [1914] 3 K. B. 135 1916C 815 Ryan, Estate of 157 Wis. 576 1916D 840 Ryan v. People 60 Colo. 425. 1917C 605 Sackett, Tennis Coal Co. v. 172 Ky. 729 1917E 629 St. Helens, Harris v. 72 Ore. 377 1916D 1073 St. Louis v. Nash 266 Mo. 523 1918B 134 St. Louis v. St. Louis, etc. R. Co. 266 Mo. 694 1918B 881 St. Louis, etc. R. Co. v. Arm- brust 121 Ark. 351 1917D 537 St. Louis, etc. R. Co. v. Blay- lock 117 Ark. 504 1917A 563 St. Louis, etc. R. Co. v. Dague 118 Ark. 277 1917B 577 St. Louis, etc. R. Co. v. Need- ham 122 Ark. 584 1917D 486 St. Louis, etc. R. Co., St. Louis v. 266 Mo. 694 1918B 881 St. Louis, etc. R. Co. v. State 120 Ark. 182 19170 873 St. Louis, etc. R. Co., Weirling v. 115 Ark. 505 1916E 2.13 St. Louis Lodge, etc. v. Koeln 262 Mo. 444 1916E 784 PAGE St. Louis Southwestern R. Co. v. Mitchell 115 Ark. 339.. 1916E 317 St. Maries Hospital Assoc., McAlinden v. 28 Idaho 657 1918A 380 St. Paul v. Robinson 129 Minn. 383 1916E 845 St. Paul Fire, etc. Ins. Co., Gaffey v. 221 N. Y. 113... 1918B 1041 St. Paul Gaslight Co., Manning v. 129 Minn. 55 1916E 27>j Salem, Ideal Tea Co. v. 77 Ore. 182 1917D 6S4 Salene v. Queen City Fire Ins. Co. 59 Ore. 297.' 1916D 1276 Sales v. Maupin 35 S. Dak. 176 1917C 1222 Salisbury Ice, etc. Co., State v. 166 N. Car. 366 19160 456 Salisbury Ice, etc. Co., State v. 166 N. Car. 403 1916C 728 Salt Lake City, Gray v. 44 Utah 204. 1916D 1135 Salt Lake City v. Young 45 Utah 349 1917D 1085 Saltry, Myers v. 163 Ky. 481 1916E 1134 Samuel Fox & Co., Herbert v. [1916] A. C. 405 1916D 578 Samuels v. Ottinger 169 Cal. 209 1916E 830 Samuels v. United States 232 Fed. 536 1917A 71 1 Sanchez v. Sanchez 61 Colo. 485 1918A 23 Sanday, British, etc. Marine Ins. Co. v. [1916] A. C. 650 1916D S76 Sanders, State v. 136 La. 1059 1916E 105 Santa Barbara Consol. R. Co., Kelly v. 171 Cal. 415* 19170 67 Santos. Eltinge v. 171 Cal. 278 1917A 1143 Sartain, O'Rear v. 193 Ala. 275 1918B 593 Saulman v. Mayor, etc. 131 Tenn. 427 1916C 12.14 Saulsberry v. Saulsberry 162 Ky. 486 " 1916E 1223 Sault Ste. Marie, Purdy v. 188 Mich. 573 1917D 831 Saunders, Dale v. 218 N. Y. 59 1918D 703 Savings Investment, etc. Co. v. United Realty, etc. Co. 84 X. J. Eq. 472 1916D 1134 Sawyer v. Conner 114 Miss. 363 1918B 3,88 Sawyer, State v. 113 Me. 45S 1917D 650 Saxelby, Herbert Morris v. [1916] A. C. 688 1916D .337 Saxton, Moore v. 90 Conn. 164 19170 534 Savers v. Montpelier, etc. R. .90 Vt. 201 1918B 1050 Sayle. Kelly, Douglas & Co. v. 19 Brit. Col. 93 1916E 444 Scandinavian American Xa- tional Bank v. Kneeland 24 Manitoba L. R. 168 1917B 1177 CASES EEPOETED. xli PAGE Seanlan v. La Coste 59 Colo. 449 1917A 254 Scarborough v. American Na- tional Ins. Co. 171 N. Car. 353 1917D 1181 Schautz, Valentino v. 216 N. Y. 1 1917C 780 Scharrenberg v. Dollar Steam- ship Co. 229 Fed. 970 1917C 258 Schas v. Equitable Life Assur- ance Soc. 170 N. Car. 420. . 1918A 679 Sehauberger v. Morel's Admin- istrator 168 Ky. 368 1917C 265 Schcuerman v. Scheuerman 52 Can. Sup. Ct. 625 1917B 219 Schmidt v. Grenzow 162 Wis. 301 1917B 163 Schmidt v. Marconi Wireless Tel. Co. 86 N. J. Law 183 1918B 131 Schmidt v. State 159 Wis. 15 1916E 107 Schmitt v. Franke 160 Wis. 347 Schncpfe v. Schnepfe 124 Md. 330 School District, Barton v. 77 Ore. 30 School District, Northwest Steel Co. v. 76 Ore. 321... School Town of Windfall City v. Somerville 181 Ind. 463 Schulte, Meyer v. 214 N. Y. 361 Schultz v. Des Moines Mutual Hail, etc., Ins. Assoc. 35 S. Dak. 627 Schultze, Tax Lien Co. v. 213 N. Y. 9 Schuman, State v. 89 Wash. 9 Schurmann, Macauley v. 22 Hawaii 140 Schwabacher Hardware Co. v. Miller Sawmill Co. 90 Wash. 193 Schwartz v. Black 131 Tenn. 360 Schwartz v. Dennis 138 La. 848 Schworm v. Fraternal Bank- ers' Reserve Soc. 168 Iowa 579 Scofield v. Wilcox 33 N. Dak. 239 Scott, Yazoo, etc. B. Co. v. 108 Miss. 871 Scovcll v. Shadyside Co. 137 La. 918 Scully, McDermott v. 91 Conn. 45 Seaboard Air Line B. Co., Causey v. 166 N. Car. 5. . . Seaboard Air Line E. Co., Kenney v. 167 N. Car. 14. . Seaboard Air-Line Ey. v. Blackwell 143 Ga. 237 Seaboard Air-Line Ey., Carl- ton v. 143 Ga. 516 Seaboard Air Line Ey., Lorick Y 102 S. Car. 276 1917D 78 1916C 1918A 636 633 1916E 1206 1918A 1916C 1917D 1917B 1918A 1917E 1917B 1917E 1916C 1916E 1917A 1917A 1917D 940 1195 94 373 836 880 178 407 707 450 967 497 920 PAGE Seaboard Air Line Ey. v. Mul- lin 70 Fla. 450 1918A 576 Seaman, Matter of 218 N. Y. 77 1918B 1138 Seattle, Carstens and Earles v. 84 Wash. 88 1917A 1070 Seattle, Hanford v. 92 Wash. 257 1917B 195 Seattle, Wagner v. 84 Wash.. 275 1916E 720 Seattle Homeseekers Co., Dex- ter Horton National Bank v. 82 Wash. 480 1917A 685 Seay v. Georgia Life Ins. Co. 132 Tenn. 673 1916E 1157 Sebastian, Hadacheck v. 239 U. S. 394 1917B 927 Second Society v. Eoyal Ins. Co. 221 Mass. 518 191 7E 491 Secular Society v. Bowman [1915] 2 Ch. 447 1917B 1017 Secular Society, Bowman v. [1917] A. C. 406 1917D 761 Security Life Ins. Co. v. Dil- lard 117 Va. 401 1917D 1187 Seibold v. Wahl 164 Wis. 82. 19170 400 Seidler v. Burns 86 Conn. 249 1916C 266 Seitner Dry Goods Co., Blair v. -184 Mich. 304 Selective Draft Law Cases 245 U. S. 366 Selengut, State v. 38 E. I. 302 Selig v. Hamilton 234 U. S. 652 Selling T. Eadford 243 U. S. 46 Selwyn, Smith v. [1914] 3 K. B. 98 Senatobia Blank Book, etc. Co., State ex rel. Collins v. 115 Miss. 254 1918B 953 Serio v. Trainor 139 La. 51. 1917E 769 Servas, Estate of 169 Cal. 240 1916D 233 Settlemyer, Woodle v. 71 Ore. 25 19160 1222 Sexton, Mandan Mercantile Agency v. 29 N. Dak. 602 1917A 67 Sh'adyside Co., Scovell v. 137 La. 918 1917B 178 Shaft, State v. 166 N. Car. 407 1916C 627 Shanks v. Delaware, etc. E. Co. 214 N. Y. 413 1916E 467 Sharp v. Cincinnati, etc. E. Co. 133 Tenn. 1 1917C 1212 Sharp, 'Kanawha-Gauley Coal, etc. Co. v. 73 W. Va. 427. 1916E 786 Sharpe v. Denmark 143 Ga. 156 1917B 617 Sharrow v. Inland Lines 214 N. Y. 101 1916D 1236 Shaughnessy v. Northland Steamship Co. 94 Wash. 325 1918B 655 Shaw v. Lord 41 Okla. 347... 19160 1147 xlii CASES EEPOETED. PAGE Sheill, Leslie v. [1914] 3 K. B. 607 1916C 992 Shelby v. Bhodes 105 Miss. 255 1916D 130<5 Sheldon, Chew v. 214 N. Y. 344 1916D 1268 Sheldon, Spallholz v. 216 N. Y. 205 19170 1017 Shelly, Hewson v. [1914] 2 Ch. 13 1917B 1119 Shepard, Morehouse v. 183 Mich. 472 1916B 305 Shepard v. New York 216 N. Y. 251 19170 1062 Sherlock v. Thompson 167 Iowa 1 1917A 1216 Sherman v. Harris 36 S. Dak. 50 19170 675 Sherman v. Havens 94 Kan. 654 1917B 394 Sherod v. Aitchison 71 Ore. 446 19160 1151 Sherwood, Switzer v. 80 Wash. 19 1917A 216 Shinault, Cost v. 113 Ark. 19 19160 483 Shockley, Anderson v. 266 Mo. 543 1918B 500 Shoop v. Fidelity, etc. Co. 124 Md. 130 1916D 954 Shrader, Wilson v. 73 W. Va. 105 1916D 886 Shry, Merchant's Adminis- trator v. 116 Va. 437 1916D 1203 Sibley, etc. E. Co. v. Elliott 136 La. 793 1916D 1228 Sieg v. Greene 225 Fed. 955 1917C 1006 Siegel, In re 263 Mo. 375... 19170 684 Silver King Coalition Mine Co. T. Silver King Coneol. Min. Co. 204 Fed. 166 1918B 571 Silver King Consol. Min. Co., Silver King Coalition Mines Co. v. 204 Fed. 166 1918B 571 Silverman, Commonwealth v. 220 Mass. 552 1917A 948 Simmons, Freudeaberger Oil Co. T. 75 W. Va. 337 1918A 873 Simmons v. National Live Stock Ins. Co. 187 Mieh. 551 1917D 42 Simmons v. Eoss 270 111. 372 1916E 1256 Simonini, Vaughan's Seed Store v. 275 HI. 477 1918B 713 Sims v. Everett 113 Ark. 198 19160 629 Sinaloa Land, etc. Co., Tan- ner v. 43 Utah 14 1916C 100 Sinclair, Thorn v. [1917] A. C. 127 1917D 188 Sioux City, Eichardson v. 172 Iowa 260 1918A 618 Sivelyv. State 107 Miss. 118. 1917B 1075 Skarda T. State 118 Ark. 176 1916E 586 Skeel, Prest-o-lite v. 182 Ind. 593 *. 1917A 474 F10R Skinner's E'state, Murphy v. 160 Wis. 554 1917A 817 Sloss-Sheffield Steel, etc. Co., Cole v. 186 Ala. 192 1916E 99 S. Lowman & Co. v. Ballard 168 N. Car. 16 1917B 899 Smallwood, Brown v. 130 Minn. 492 19170 474 Smith, American Southern Nat. Bank v. 170 Ky. 512. 1918B 959 Smith, Baldwin's Bank v. 215 N. Y. 76 1917A 500 Smith v. Barnes 51 Mont. 202 1917D 330 Smith v. Chester 272 HI. 428 1917A 925 Smith v. Haire 133 Tenn. 343 1916D 529 Smith v. Johnson 219 Mass. 142 1916D 1234 Smith v. McDuffee 72 Ore. 276 1916D 947 Smith, New v. 94 Kan. 6... 1917B 362 Smith, People's Trust Co. v. 215 N. Y. 488 1917A 560 Smith v. Selwyn [1914] 3 K. B. 98 19160 844 Smith v. Smith 97 S. Car. 242 1916C 763 Smith, State T. 101 S. Car. 293 19170 149 Smith, Travelers Protective Assoc. v. 183 Ind. 59 1917E 1088 Smith's Administratrix v. Middlesboro Electric Co. 164 Ky. 46 1917A 1164 S. M. Smith Insurance Agency Williams .v. 75 W. Va. 494. 1917A 813 Snell, People ex rel. Lawton v. 216 N. Y. 527 1917D 222 Snow, Mettler v. 90 Conn. 690 1917C 578 Snow, People ex rel. Stuck- art v. 279 HI. 289 1917E 992 Snyder v. Kulesh 163 Iowa 748 19160 481 Soekland v. Storeh 123 Ark. 253 1918A 668 Solomon v. Public Service E. Co. 87 N. J. Law 284 1917C 356 Solomon, State v. 158 Wis. 146 1916B 309 Solomon v. Stewart 184 Mich. 506 1917A 942 Solorzano, Atchison, etc. R. Co. v. 21 N. Mex. 503 1917E 950 Solvay Process Co., Wiley v. 215 N. Y. 584 1917A 314 Somerville, School Town of Windfall City v. 181 Ind. 463 1916B 661 Soper v. Cisco 85 N. J. Eq. 165 1918B 452 Soriero v. Pennsylvania E. Co. 86 N. J. Law 642 1916E 1071 Sotham v. Macomber 180 Mich. 120 19160 694 CASES EEPORTED. zliii PAGE South Covington, etc. St. B. Co., Jonas v 162 Ky. 171 1916E 965 Southerland, Royal v. 168 N. Car. 405 1917B 623 Southern Ferro Concrete Co., Central of Georgia R. Co. v. 193 Ala. 108 1916E 376 Southern Ice Co. v. Black 136 Tenn. 391 1917E 695 Southern Pac. Co. v. Jensen 244 U. S. 205 1917B 900 Southern Pacific R. Co. v. A. J. Lyon & Co. 107 Miss. 777 1917D 171 Southern R. Co., Davis v. 170 N. Car. 582 1918A 861 Southern R. Co., Holloman v. 172 N. Car. 372 1917E 1069 Southern R. Co., Horton r. 170 N. Car. 383 1918A 824 Southern R. Co., Leavea v. 266 Mo. 151 1918B 97 Southern R. Co., Osteen v. 101 S. Car. 532 19170 505 Southern R. Co. v. Puckett 244 U. S. 571 1918B 69 Southern R. Co. v. Vessell 192 Ala. 440 1917D 892 Southern Surety Co., Crouch v. 131 Tenn. 260 1916C 1220 South Haven, Andrews T. 187 Mich. 294 1918B 100 South Highland* Infirmary, Barfield v. 191 Ala. 553... 1916C 1097 Southwestern Surety Ins. Co., Dickey v. 119 Ark. 12 1917B 634 Sovereign Camp, Bounds T. 101 S. Car. 325 1917C 589 Sovereign Camp, McLaughlin v. 97 Neb. 71 1917A 79 Spodra-Clarksville Coal Co. v. Nicholson 93 Kan. 638... 1916D 652 Spain v. Oregon-Washington R., etc. Co. 78 Ore. 355 ... 1917E 1104 Spallholz v. Sheldon 216 N. Y. 205 19170 1017 Spangler v. Mitchell 35 S. Dak. 335 1918A 373 Spartanburg, etc. R. Co., Hen- derson v. 98 S. Car. 206.. 1916D 585 Spartanburg, R. etc. Co., Tay- lor v. 98 S. Car. 206 1916D 585 Speake, Echols v. 185 Ala. 149 19160 332 Spellman, Gordon v. 145 Ga. 682 1918A 852 Spitler, Henry v. 67 Fla. 146 1916E 1267 Spokane v. Ladies' Benevolent Society 83 Wash. 382 1916E 367 Spooner, Estate of Beckwith v. 183 Mich. 323 1916E 886 Spradlin v. Dickinson 120 Ark. 80 19170 913 Springdale, Bartholomew v. 91 Wash. 408 1918B 432 Springer v. City Bank, etc. Co. 59 Colo. 376 1917A 520 PAGE 943 277 830 Springfield, Dailey T. 144 Ga. 395 1917D Spring Valley Water Co., Lukrawka v. 169 Gal. 318. 1916D Sprowls v. Sprowls 34 S. Dak. 140 1917A S. Samuel & RosenfeW, Kreg- linger v. [1915] 1 K. B. 857 19170 215 S. S. Kilmarnock, Risdale v. [1915] 1 K. B. 503 19170 757 Stacy v. Dolan 88 Vt. 369. . 1917A 650 Standard Accident Ins. Co., Collins' Executors v. 170 Ky. 27 1917D 59 Standard Fashion Co. v. Cum- mings 187 Mich. 196 1916E 413 Stanton, State v. 172 Iowa 477 1918A 813 Stapleton, Tyler Commercial College v. 33 Okla. 305... 1916E 837 Starkey, State v. 112 Me. 8 1917A 196 Starkey's Heirs, Perdue v. 117 Va. 806 1916C 409 Starks, Commonwealth v. 169 Ky. 410 1918B 525 State, Aarons v. 105 Miss. 402 1916E 263 State v. Alabama Fuel, etc. Co. 188 Ala. 487 1916E 752 State v. Asbury 172 Iowa 606 1918A 856 State v. Ayles, 74 Ore. 153. .. 1916D 738 State, Babb v. 18 Ariz. 505. 1918B 925 State v. Barnes 29 N. Dak. 164 19170 762 State, Barrett v. 220 N. Y. 423 1917D 807 State v. Baxter 89 Ohio St. 269 1916O 60 State v. Bickford 28 N.. Dak. 36 1916D 140 State v. Bigelow 88 Vt. 464. 1917A 702 State, Bird v. 142 Ga. 596.. 19160 205 State, Bird v. 131 Tenn. 518. 1917A 634 State, Bishop v. 72 Tex. Crim. 1 1916E 379 State v. Bowen & Co. 86 Wash. 23 1917B 625 State, Bradfield v. 73 Tex, Crim. 353 19170 696 State, Brindley v. 193 Ala. 43 1916E 117 State v. Brooken 19 N. Mex. 404 1916D 136 State, Brown v. 105 Miss. 367 1916E 307 State, Brown v. 87 Wash. 44 1917D 604 State v. Brunette 28 N. Dak. 539 1916E 340 State, Branson v. 70 Fla. 387 State v. Bunting 71 Ore. 259. State v. Catholic 75 Ore. 367 State v. 726 Cessna 170 Iowa 1918A 1916C 1917B 1917D 312 1003 913 289 xliv CASES REPORTED. PAGE State v. Chavez 19 N. Mex. 325 1917B 127 State, Cole v 73 W. Va. 410 1916D 1256 State v. Cooper 74 W. Va. 472 1917D 453 State v. Corcoran 82 Wash. 44 1916E 531 State v. Craft 168 N. Car. 208 ,1917B 1013 State v. Devinney 174 Iowa 748 1917D 239 State v. Dougherty 88 N. J. Law 209 1917D 950 State. Dutton v. 123 Md. 373 1916C 89 State v. Farnam 82 Ore. 211 1918A 318 State v. Flanagan 76 W. Va. 783 1917D 305 State v. Flavin 35 S. Dak. 530 1918A 713 State v. Foxton 166 Iowa 181 1916E 727 State v. . Gardner 174 Iowa 748 1917D 239 State. Gherna v. 16 Ariz. 344 1916D 94 State v. Gish 168 Iowa 70.. 1917B 135 State v. Giudice 170 Iowa 731 1917C 1160 State. Gordon v. 125 Ark. Ill 1918A 419 State v. Gordon 32- N. Dak. 31 1918A 442 State v. Gould 261 Mo. 694. 1916E 855 State, Graham v. 143 Ga. 440 1917A 595 State v. Great Northern R. Co. 130 Minn. 57 1917B 1201 State, Griffin v. 142 Ga. 636. 1916C 80 State v. Griffin 98 S. Car. 1Q5 1916D , 392 State v. Haffer 94 Wash. 136 1917E 229 State. Hamraett v. 42 Okla. 384 1916D 1148 State, Harris v. 23 Wyo. 487 1917A 1201 State, Hummelshime v. 125 Mo. 563 1917E 1072 State, Hunt v. 114 Ark. 239. 1916D 533 State v. Ilgenfritz 263 Mo. 615 1917C 366 State v. Inlow 44 Utah 485. 1917A 741 State, Jackson v. 213 N. Y. 34 1916C 779 State, James v. 193 Ala. 55. 1918B 119 State v. Keeler 54 Mont. 205 1917E 619 State, Kennedy v. 117 Ark. 113 1917A 1029 State, Kenner v. 121 Ark. 95 1917D 637 State v. Kenosha Home Tele- phone Co. 158 Wis. 371... 1916E 365 State v. Kilmer 31 X. Dak. 442 1917E 116 State v. Klassner 19 N. Mex. 474 State. Knowles v. 113 Ark. State v. Lapoint 87 Vt. 115. State v. Lasecki 90 Ohio St. 10 State v. Lawrence 108 Miss. 291 State, Lee v. 16 Ariz. 291 ... State, Lee v. 69 Fla. 255 State v. Lehman 131 Minn. 427 State, Levi v. 182 Ind. 188. . State v. Lewis, 173 Iowa 643. State, Lindsey v. 66 Fla. 341 State v. Lipkin 169 N. Car. 265 State v. Longino 109 Miss. 125 State, Longmire v. 75 Tex. Crim. 616 State, Mason v. 74 Tex. Crim. 256 State v. McAninch 172 Iowa 96 State, McCall v. 18 Ariz. 408 State v. McKay 137 Tenn. 280 State v. Mewhinney 43 Utah 135 State, Miami Copper Co. v. 17 Ariz. 179 State v. Missouri, etc. R. Co. 262 Mo. 507 State v. Missouri Pacific R. Co. 96 Kan. 609 State v. Morgan 44 Utah 224 State v. Nipper 166 N. Car. 272 State, Northern Pacific R. Co. v. 84 Wash. 510 State v. Osborne 171 Iowa 678 State, Owens v. 68 Fla. 154. State v. Pailet 139 La. 697. . State, Patterson v. 191 Ala. 16 State v. Pay 45 Utah 411... State v. Peck 88 Conn. 447. . State v. People's Ice Co. 127 Minn. 252 State v. Pitt 166 N. Car. 268 State v. Provencher 135 Minn. 214 state v. Randall 170 N. Car. 7" State v. Reed 53 Mont. 292. State. Reeves v. 106 Miss. 885 State v. Ricks 108 Miss. 7.. State. Riggins v. 125 Md. 165 State. Roberts v. 100 Neb. 199 PAGE 1917D 824 1916C 568 1916C 318 1916C 1182 1917E 322 1917B 131 1917D 236 1917D 615 1917A 654 1918A 403 1916C 1167 1917D 137 1916E 371 1917A 726 1917D 1094 1918A 559 1918A 168 1917E 158 1916C 537 1916E 494 1916E 949 1917A 612 1916D 1279 1916C 126 1916E 1166 1917E 497 1917B 252 1918A 102 1916C 968 1917E 17:5 1917B 227 1916C 613 1916C 422 1917E 598 1918A 438 1917E 783 1917 A 1245 1917E 244 1916E 1117 1917E 1040 CASES REPORTED. xlv PAGE State, Robinson v. 69 Fla. 521 1917D 506 State v. Royal Mineral Asso- ciation 132 Minn. 232 1918A 145 State, St. Louis, etc. R. Co. v. 120 Ark. 182 19170 873 State v. Salisbury Ice, etc. Co. 166 N. Car. 366 1916C 456 State v. Salisbury Ice, etc. Co. 166 N. Car. 403 1916C 728 State v. Sanders 136 La. 1059 1916E 105 State v. Sawyer 113 Me. 458 1917D 650 State, Schmidt v. 159 Wis. 15 1916E 107 State v. Schuman 89 Wash. 9 1918A 633 State v. Selengut 38 R. I. 302 1917D 303 State v. Shaft 166 N. Car. 407 1916C 627 State, Sively v. 107 Miss. 118 1917B 1075 State, Skarda v. 118 Ark. 176 1916E 586 State v. Smith 101 S. Car. 293 1917C 149 State v. Solomon 158 Wis. 146 1916E 309 State v. Stanton 172 Iowa 477 1918A 813 State v. Starkey 112 Me. 8. 1917A 196 State, Stokes v. 121 Ark. 95. 1917D 657 State v. Sutton 87 N. J. Law 192 19170 91 State v. Tetrault 78 N. H. 14 1918B 425 State, Tingue v. 90 Ohio St. 368 19160 1156 State v. Towers 37 Nev. 94. 1916D 269 State, Van Winkle v. 4 Boyce (Del.) 578 1916D 104 State v. Von Klein 71 Ore. 159 19160 1054 State v. Ward 170 Iowa 185 1917B 978 State v. Ward 127 Minn. 510 19160 674 State v. Wetzel 75 W. Va. 7 1918A 1074 State, Woods v. 123 Ark. Ill 1918A 348 State ex inf. Barker v. Dun- can 265 Mo. 26 1916D 1 State ex inf. Harvey v. Mis- souri Athletic Club 261 Mo. 576 1916D 931 State ex pel. Anderson v. Gen- eral Accident, etc. Assur. Corp. 134 Minn. 21 1918B 615 State ex rel. Atty. Gen. v. Arkansas Cotton Oil Co. 116 Ark. 74 1917A 1178 State ex rel. Atty. Gen. v. Knight 169 N. Car. 333... 1917D 517 State ex rel. Atty. Gen. v. Pratt 192 Ala. 118 1917D 990 PAGE State ex rel. Barker v. Mer- chants' Exchange 269 Mo. 346 1917E 871 State ex rel. Botsford Lumber Co. v. Taylor 34 S. Dak. 13 1916E 1285 State ex rel. Burdick v. Tyrell 158 Wis. 425 1916E 270 State ex rel. Burns v. Linn 49 Okla. 526 1918B 139 State ex rel. Caldwell, Stout v. 36 Okla. 744 1916E 858 State ex rel. Clarkson v. Philips 70 Fla. 340 1918A 138 State ex rel. Collins v. Sena- tobia Blank Book, etc. Co. 115 Miss. 254 1918B 953 State ex rel. Dawson v. Har- per 94 Kan. 478 1917B 464 State ex rel. De Burg v. Water Supply Co. 19 N. Mex. 36 1916E 1290 State ex rel. Duluth v. Dis- trict Court 134 Minn. 28 . . 1918B 635 State ex rel. Fishback v. Uni- versal Service Agency 87 Wash. 413 19160 1017 State ex rel. Gaes v. Gordon 266 Mo. 394 1918B 191 State ex rel. Hogan, Renschler v. 90 Ohio St. 363 19160 1014 State ex rel. Howie v. Brant- ley 113 Miss. 786 1917E 723 State ex rel. Huff, White v. 183 Ind. 649 1917B 527 State ex rel. Hunsting v. Board of State Canvassers 159 Wis. 216 1916D 159 State ex rel. Ilsley v. Leueh 156 Wis. 631 1917B 778 State ex rel. La Londe v. White 130 Minn. 336 19170 510 State ex rel. Langer v. Craw- ford 36 N. Dak. 385 1917E 955 State ex rel. Lanng v. Long 136 La. 1 1917B 240 State ex rel. Linde v. Taylor 33 N. Dak. 76 1918A 583 State ex rel. Marshall v. Dis- trict Court 50 Mont. 289.. 19170 164 State ex rel. Mayor, etc. v. Louisiana, etc. R. Co. 135 La. 14 19160 1170 State ex rel. McNerney v. Armstrong 97 Neb: 343... 1917A 554 State ex rel. Meek v. Kansas City 93 Kan. 420 1916E 1 State ex rel. Metcalf v. Dis- trict Court 52 Mont. 46 . . 1918A 985 State ex rel. Meyer v. Clifford 81 Wash. 324 1916D 329 State ex rel. Missouri Pacific R. Co. v. Atkinson 269 Mo. 634 State ex rel. Moose v. Frank 114 Ark. 47 State ex rel. Munding v. In- dustrial Commission 92 Ohio St. 434 1917D 1162 xlvi CASES REPORTED. PAGE State ex rel. Nestor, Murray v._9i Ohio St. 220 1916B 864 State ex rel. Northfield v. Dis- trict Court 131 Minn. 352. 1917D 866 State ex rel. Peterson v. Dun- lap 28 Idaho 784 1918A 546 State ex rel. Reynolds v. Joat 265 Mo. 51 1917D 1102 State ex rel. Ryals, Memphis v. 133 Tenn. 83 19170 1056 State ex rel. Shaver v. Iowa Telephone Co. 175 Iowa 607 1917E 539 State ex rel. Thatcher v. Keith 37 Nev. 452 ,. 1917A 1276 State ex rel. Thompson v. Reichman 135 Tenn. 653, 685 1918B 889 State ex rel. Timothy v. Howse 134 Tenn. 67 19170 1125 State ex rel. Watts Engineer- ing Co. v. Public Service Commission 269 Mo. 525.. 1917E 786 State ex rel. Wickham v. Nygaard 159 Wis. 396 .... 1917A 1065 State ex rel. Zien v. Duluth 134 Minn. 355 1918A 683 State, for use of Mills v. American Surety Co. 26 Idaho 652 1916B 209 State Banking Com'r v. E. Jossman State Bank 185 Mich. 24 19170 1203 State Board v. Terrill 48 Utak 647 1918B 1117 State Fish Commission, Bar- ker v. 88 Wash. 73 1917D 810 State Public Utilities Com. v. Noble Mutual Tel. Co. 268 111. 411 1916D 897 State Public Utilities Com. ex rel. Macon Co. Tel. Co. v. Bethany Mutual Tel. Assoc. 270 111. 183 1917B 495 State Public Utilities Com. ex rel. Mitchell v. Chicago, etc. R. Co. 275 111. 555 ... 19170 50 State Accident Ins. Co., Hut- ton v. 267 111. 267 19160 577 Steamship Amerika, Admir- alty Commissioners v. [1917] A. C. 38 1917B 877 Steamship Appam, The 243 U. S. 124 1917D 442 Steele v. Dowling [1914] 2 I. R. 432 1917B 480 Steele, Planters' Fire Ins. Co. v. 119 Ark. 597 1917B 667 Steele, etc. Co. v. Miller 92 Ohio St. 115 1917C 926 Steeplechase Park Co., People v. 218 N. Y. 459. 1918B 1099 Steers, Brooklyn Heights R. Co. v. 213 N. Y. 76 1916C 791 Steinberg, Erie R. Co. v. 94 Ohio St. 189 1317E 661 Steingester, Baumanm v. 213 N. Y. 328 Steinhauser, Order of St. Benedict v. 234 U. S. 640 Stenson v. H. S. Halverson Co. 28 N. Dak. 151 Stephan, Matter of 170 Cal. 48 Stephens, Stucky v. 115 Ark. 572 Stephenson, Reirden v. 87 Vt. 430 Sterling, Ferris v. 214 N. Y. 249 Stertz v. Industrial Ins. Com- mission 91 Wash. 588 Stetz v. F. Mayer Boot, etc. Co. 163 Wis. 151 Stevens v. Stevens 181 Mich. 438 Stevenson v. Donnelly 221 Mass. 161 Stewart v. Hagerty 251 Pa. St. 603 Stewart, Leno v. 89 Vt. 286 Stewart v. Murphy 95 Kan. 421 Stewart v. Ridenour 97 Neb. 451 Stewart, Solomon v. 184 Mich. 506 Stewart v. Talbot 58 Colo. 563 Stillwell, Vandalia R. Co. v. 181 Ind. 267 Stilz, Ketelsen v. 184 Ind. 702 Stockton Electric R. Co., Froeming v. 171 Cal. 401 Stoker v. Gowans 45 Utah 556 Stokes T. State 121 Ark. 95 Stollenwerck v. Marks 188 Ala. 587 Stone v. Fidelity, etc. Co. 133 Tenn. 672 Stone, Middleton v. 163 Ky. 571 Stonegap Colliery Co. v. Ham- ilton 119 Va. 271 Stonerook v. Wisner 171 Iowa 109 Storch, Soekland v. 123 Ark. 253 Story, Cook v. 89 Wash. 109 Stout v. State ex rel. Caldwell 36 Okla, 744 Stover, First National Bank v. 21 N. Mex. 453 Strahl v. Miller 97 Neb. 820 StTatton v. Wilson 170 Ky. 61 . PAGE 19160 1071 1917A 463 1916D 1289 1916E 617 1917A 133 19160 109 1916D 1161 1918B 354 1918B 675 1916E 1259 1917E 932 1917D 483 1917A 509 19170 612 1917A 242 1917A 942 19160 1116 1916D 258 1918A 965 1918B 408 1916E 1025 1917D 657 19170 981 1917A 86 1917E 84 1917E 60 1917E 252 1918A 668 19170 985 1916E 858 1918B 145 1917A 141 19183 917 CASES REPORTED. xlvii Straus T. Victor Talking Machine Co. 243 U. S. 490 Streeter, Agar v. 183 Mich. 600 Streich v. Board of Education 34 S. Dak. 169 Streit v. Wilkerson 186 Ala. 88 Streudle v. Leroy 122 Ark. 189 Stroehmann's Vienna Bakery, Voeckler v. 75 W. Va. 384 Strong v. Brown 26 Idaho 1. Stuart v. Elk Horn Bank, etc. Co. 123 Ark. 285 Stull, Ravenscroft v. 280 111. 406 Stubbs, Moody v. 94 Kan. 250 Stuckey v. Stephans 115 Ark. 572 Studebaker Corporation v. Hanson 24 Wyo. 222 Studebaker Corporation, Mc- Ginnis v. 75 Ore. 519 Suburban Homes Co. v. North 50 Mont. 108 Succession of Lefort 139 La. 51 Sudbury, Bank of Holly Grove v. 121 Ark. 59 Sullivan, Nevada County Bank v. 122 Ark. 235 Summers Parrott Hardware Co., Colley v. 119 Va. 439 Sun Pub. Co., Wilson v. 85 Wash. 503 Sun Savings Bank, Byers v. 41 Okla. 728 Superior Court, Larkin v. 171 Cal. 719 Superior Court, United Rail- roads v. 170 Cal. 755 Superior Portland Cement Co., McGarry v. 95 Wash. 412. Susznik v. Alger Logging Co. 76 Ore. 189 Sutter v. Milwaukee Board of Fire Underwriters 161 Wis. 615 Button, In re 50 Mont. 88 Button v. Findlay Cemetery Assoc. 270 HI. 11 Sutton v. Ford 144 Ga. 587. Sutton, Orr v. 127 Minn. 37. Sutton, State v. 87 N. J. Law 292 Suydam, Black v. 81 Wash. 279 Swaab, Vitagraph Co. v. 248 Pa. St. 478 Swank, Grant v. 74 W. Va. 93 Pvroot. Nieoll v. 163 Iowa 683 PAGE 1918A 955 1916B 518 1917A 760 1917E 378 1917D 618 1917A 350 1916E 482 1918A 268 1918B 1130 19170 362 1917A 133 1917E 557 1917B 1190 19170 81 1917E 769 1917D 373 1917D 736 1917D 375 1917B 442 1916D 222 1917D 670 1916E 199 1918A 572 1917C 700 1917E 682 1917A 1223 1917B 559 1918A 106 1916C 527 19170 91 1916D 1113 1916C 311 1917C 286 1916C 661 Sweetser v. Emerson 236 Fed. 161 Sweetser v. Fox 43 Utah 40 Swett, Mutual Benefit Life Ins. Co. v. 222 Fed. 200 ... Switzer T. Sherwood 80 Wash. 19 Sylvia Y Cia, Cony v. 192 Ala. 550 Syverson, Bronson v. 88 Wash. 264 Tacoma School District, How- ard v. 88 Wash. 167 Taggart T. Hunter 78 Ore. 139 Talbot, Stewart v. 58 Colo. 563 Tallahassee, Hadley v. 67 Fla. 436 Taminosian, In re 97 Neb. 514 Tanner, Adams v. 244 U. S. 590 A Tanner v. Culpeper Construc- tion Co. 117 Va. 154 Tanner, Huntworth T. 87 Wash. 670 Tanner v. Sinaloa Land, etc. Co. 43 Utah 14 /. Tanzmann, Louisiana State Board v. 140 La. 756 Tate, Hedgecock v. 168 N. Car. 660 Tatham's Estate 250 Pa. St. 269 Taulbee v. Hargis 173 Ky. 433 Tax Lien Co. v. Schultze 213 N. Y. 9 Taylor, Aetna Life Ins. Co. v. 128 Ark. 155 Taylor v. Moseley 170 Ky. 592 Taylor v. Northern Coal, etc. Co. 161 Wis. 223 Taylor v. Spartanburg R*., etc. Co. 98 S. Car. 206 Taylor, State ex rel. Botsford Lumber Co. v. 34 S. Dak. 13 Taylor, State ex rel. Linde v. 33 N. Dak. 76 Teat v. Land 135 La. 782... T. E. Hill Co. v. United States Fidelity, etc. Co. 265 HI. 534 Telf ord v. McGiilis ISO Minn. 397 Ten Broek v. Caldwell 95 Neb. 464 Tenement House Department v. McDevitt 215 N. Y. 160 Tennants (Lancashire) v. C. S. Wilson & Co. [1917] A. C. 495 Tennessee Eastern Electric Co.. Powolson v. 220 Mass. 380 PAGE 1917B 298 1917A 216 1917E 1052 1917D 833 1917D 792 1918A 128 19160 1116 1916O 71J> 1917A 435 1917D 973 1917E 794 1917D 676 19160 100 1917E 217 1916B 449 1917A 855 1918A 762 19160 636 1918B 1122 1918B 1125 19160 167 1916D 585 1916E 1285 1918A 583 1916C 1208 1917E 78 1916E 157 1916D 613 1917A 455 1918A 1 1917A 102 xlviii CASES REPORTED. Tennessee State Fair Assoc., Hartman v. 134 Tenn. 149 1917D Tenney, Divide Canal, etc. Co. v. 57 Colo. 14 1917D Tenney, Gurney v. 226 Mass. 277 Tennis Coal Co. v. Sackett 172 Ky. 729 Terminal Taxicab Co. v. Kutz 241 U. S. 252 Terrell, First Bank of Texola v. 44 Okla. 719 Terrill, State Board v. 48 Utah 647 Terrill v. Virginia Brewing Co. 130 Minn. 46 Territory v. Curran 23 Hawaii 421 Terry, American Express Co. v. 12G Md. 254 Terry, Webster v. [1914] 1 K. B. 51 Tetrault, State v. 78 N. H. 14 Tevie-v. Tevis 259 Mo. 19 Thaw, Barton v. 246 Pa. St. 348 The Brand 224 Fed. 391 The Duncan, Franklin v. 133 Tenn. 472 The E. Starr Jones 224 Fed. 391 Theriault v. California Ins. Co. 27 Idaho 476 Thesmar, Union Buffalo Mills Co. v. 98 S. Car. 1 The Steamship Appam 243 U. S. 124 Thorn v. Sinclair [1917] A. C. 127 Thomas v. Brown 116 Va. 233 Thomas v. Knights of Macca- bees 85 Wash. 665 Thomas Cusack Co. v. Chicago 267 111. 344 Thomas Cusack Co. v. Chicago 242 U. S. 526 Thompson, In re 164 Iowa 20 Thompson v. Alexander City Cotton Mills Co. 190 Ala. 184 Thompson v. Cincinnati, etc. R. Co. 165 Ky. 256 Thompson v. Denver 61 Colo. 470 Thompson v. Hamilton Motor Co. 170 Cal. 737 Thompson v. J. D. Thompson Carnation Co. 279 111. ^4.. Thompson v. McLeod 112 Miss. 383 Thompson v. Redington 92 Ohio St. 101 Thompson. Sherlock v. 167 Iowa 1 1918A 1917E 1916D 1917A 1918B 1917C 1918A 1917C 1917A 1918B 1917A 1916D 1917B 1917C 1917B 1917D 1916D 1917D 1917D 1917A 1917B 1916C 1917C 1916D 1917A 1917A 1918B 1917A 1917E 1918A 1918A 1917A PAGE 931 346 739 629 765 681 1117 453 234 650 226 425 , 865 570 996 1080 996 818 476 442 188 128 804 488 594 1210 721 1266 915 677 591 674 1161 1216 PAGE Thomsen v. Cayser 243 U. S. 66 1917D 322 Thorn, Lyman v. 24 Wyo. 326 1918A 368 Thornhill v. Olson 31 N. Dak. 81 1917E 427 Thorp v. Lund 227 Mass. 474 1918B 1204 Thurston v. Carter 112 Me. 361 1917A 389 Thysell v. McDonald 134 Minn. 400 19170 1015 Timberlake, Wessll v. 95 Ohio St. 21 1918B 402 Times-Mirror Co., Newby v. 173 Cal. 387 1917E 186 Tingue v. State 90 Ohio St. 368 19160 1156 Tipton v. Tipton 169 Iowa 182 1916C 360 Title, etc. Co., Nicholas v. 79 Ore. 226 1917A 1149 Titus v. Pennsylvania R. Co. 87 N. J. Law 157 1917B 1251 Titus, Pennsylvania R. Co. 216 N. Y. 17 19170 862 Toca, New Orleans v. 141 La. 551 1918B 1032 Tolbert, Greenwood Cotton Mill v. 105 S. Car. 273 19170 333 Toledo Scale Co. v. Gogo 186 Mich. 442 1917E 601 Tomlins, People v. 213 N. Y. 240 19160 916 Tomlinson, Holt County v. 98 Neb. 777 1917A 853 Tooley, Matter of Estate of 170 Cal. 164 1917B 516 Topfer, Malone v. 125 Md. 157 1916E 1272 Torbert, Van Boskerck v. 184 Fed. 419 1916E 171 Toronto R. Co. v. Rex [1917] A. C. 630 1918A 991 Totten, Diehl v. 32 N. Dak. 131 1918A 884 Towers, Pennsylvania R. Co. v. 126 Md. 59 1917B 1144 Towers, State v. 37 Nev. 94. 1916D 269 Townsley v. Hartsfield 113 Ark. 253 19160 643 Trainor, Serio v. 139 La. 51 1917E 769 Travelers' Protective Assoc. v. Smith 183 Ind. 59 1917E 1088 Travis v. Knox Terpenzone Co. 215 X. Y. 259 1917A 387 Travis v. Unkart 89 N. J. Law 571 19170 1031 Trenholm v. Klinker 108 Miss. 263 1917E 289 Trimble v. Wright 81 Wash. 279 1916D 1113 Troll, Brinckwirth's Estate v. 226 Mo. 473 1918B 1056 Trollope, Cox v. [1916] 2 K. B. 682 1918B 637 CASES REPORTED. xlix PAGE Trout v. Burnette 99 S. Car. 276 1916E 911 Trowbridge, Bowie v. 175 Iowa 118 1917D 1067 Trowbridge, Crandall v. 170 Iowa 155 19160 608 Trowbridge, Parsons v. 226 Fed. 15 19170 750 Truax v. Raich 239 U. S. 33 1917B 283 Trust Co., Herzog v. 67 Fla. 54 1917A 201 Trustees of Speers Hospital, Dayton v. 165 Ky. 56 1917B 275 Trustees of University of Pennsylvania, Board of Trustees of Philadelphia Museums v. 251 Pa. St. 125 1917B 449 Tucker v. Anderson 172 Iowa 277 1918A 769 Tucker v. Blease 97 S. Car. 303 19160 796 Tucker, Oklahoma City v. 11 Okla. Crim. 266 1917D 984 Tuff, Cohen v. 4 Boyce (Del.) 188 19170 596 Turley, Germania Fire Ins. Co. v. 167 Ky. 57 19170 931 Turner, In re 94 Kan. 115.. 1916E 1022 Tuttle, Andrews v. 45 Utah 98 1918A 475 Twentieth Street Bank v. Jacobs 74 W. Va. 525 1917D 695 Twin State Gas, etc. Co., Pol- lica v. 88 Vt. 205 1917C 1240 Tyler Commercial College v. Stapleton 33 Okla. 305... 1916E 837 Tyrrell, State ex rel. Burdick v. 158 Wis. 425 1916E 270 Underwood v. Fosha 96 Kan. 549 1917A 265 Union Buffalo Mills Co. v. Thesmar 98 S. Car. 1 191 6D 476 Union Ice, etc. Co. v. Ruston 135 La. 898 19160 1274 Union Pacific R. Co., Brush- aber v. 240 U. S. 1 1917B 713 Union Pacific R. Co., Kriss v. 100 Neb. 801 1918A 1122 Union Savings, etc. Co. v. Dis- trict Court 44 Utah 397.. 1917A 821 Union Savings, etc. Co., Griffin v. 86 Wash. 605 1917B 267 Union Savings, etc., Co., High- tower v. 88' Wash. 179 1918A 489 Union Savings, etc. Co., Rein- snider v. 89 Wash. 87 1917D 40 Union Traction Co., Norton v. 183 Ind. 666 1918A 156 Union Trust Co., Grosman v. 228 Fed. 610 1917B 613 Union Trust Co., Porter v. 182 Ind. 637 1917D 427 United Commercial Travelers, Berry v. 172 Iowa 429 1918A 706 United Railroad?, McLaughlin v. 169 Cal. 494 1916D 337 United Railroads v. Superior Court 170 Cal. 755 United Realty, etc. Co., Sav- ings Investment, etc. Co. v. 84 N. J. Eq. 472 United States, Ex p. 242 U. S. 27 United States, Arver v. 245 U. S. 366 United States, Bolland v. 238 Fed. 529 . United States, Caminetti v. 242 U. S. 470 United States v. Coca Cola Co. 241 U. S. 265 United States, Diggs v. 242 U. S. 470 United States, Grahl v. 245 U. S. 366 United States, Graubard v. 245 U. S. 366 United States, Hays v. 242 U. S. 470 United States, Independent Pub. Co. v. 240 Fed. 849.. United States v. Jin Fuey Moy 244 U. S. 394 United States, Joplin Mercan- tile Co. v. 213 Fed. 926... United States, Kaufman v. 212 Fed. 613 United States, Kramer v. 245 U. S. 366 United States v. Ness 230 Fed. 950 United States v. New South Farm, etc. Co. 241 U. S. 64 United States, Oceanic Steam Navigation Co. v. 232 Fed. 591 United States, Partridge v. 39 App. Cas. (D. C.) 571... United States, Samuels v. 232 Fed. 536 United States, Wangerin v. 245 U. S. 366 United States, Weeks v. 216 Fed. 292 United States Fidelity, etc. Co., Coyle v. 217 Mass. 268 United States Fidelity, etc. Co., T. E. Hill Co. v. 265 111. 534 United States Glue Co. v. Oak Creek 161 Wis. 211.. United Surety Co., Comey v. 217 N. Y. 268 Universal Film Mfg. Co., Mo- tion Picture Patents Co. v. 243 U. S. 502 Universal Service Agency, State ex rel. Fishback v. 87 Wash. 413 Unkart, Travis v. 89 N. J. Law 571 PAGE' 1916E 199 1916D 1134 1917B 355 1918B 856 1918B 520 1917B 1168 19170 487 1917B 1168 1918B 856 1918B 856 1917B 1168 19170 1084 1917D 854 19160 470 19160 466 1918B 856 19170 41 19170 455 19170 248 1917D 622 1917A 711 1918B 856 19170 524 19170 450 1917E 78 1918A 421 1917E 424 1918A 959 CASES REPORTED. Uphoff v. Industrial Board 271 111. 312 1917D Utah, etc. Lumber Co., Volker Lumber Co. v. 45 Utah PAGB 603 Valdez, Young v. 61 Colo. 485 Valentino v. Schantz 216 N. Y. 1 Van Boskerck v. Torbert 184 Fed. 419 Vandalia v. Postal Telegraph- Cable Co. 274 111. 173 Vandalia R. Co. v. Stillwell 181 Ind. 267 Van Deman, etc. Co., East v. 240 U. S. 342...... Vanderlip, Fish v. 218 N. Y. 29 Vandewater v. Chicago, etc. B. Co. 170 Iowa 687 Vandry v. Quebec B. etc. Co. 53 Can. Sup. Ct. 72 Van Guelpen's Estate, In re 87 ^"ash. 146 Van Metre, Guarenteed In- vestment Co. v. 158 Wis. 262 Van Ness v. Ransom 215 N. Y. 557 Van Winkle v. State 4 Boyce (Del.) 578 Van Woert v. New York Life Ins. Co. 30 N. Dak. 27 Varble v. Collins' Executor 168 Ky. 247 Varnville Furniture Co., Charleston, etc. B. Co. v. 237 U. S. 597 Vaquez v. Pettit 74 Ore. 496 Vaughan's Seed Store v. Simo- nini 275 111. 477 Vennen v. New Dells Lumber Co. 161 Wis. 370 Veronneau v. Bex 54 Can. Sup. Ct. 7 Vessell, Southern B. Co. v. 192 Ala. 440 Victor Chemical Works v. In- dustrial Board 274 HI. 11. Victoria Lumber Co. v. Wells 139 La. 500 Victor Talking Machine Co., Straus v. 243 U. S. 490... Vidmer v. Lloyd 193 Ala. 386 Viita v. Fleming 132 Minn. 128 Virginia Brewing Co., Terrill v. 130 Minn. 46 Virginia R., etc. Co. v. Gor- such 120 Va. 655 Viscoloid Campany, King v. 219 Mass. 420 Visa v. Calligan 91 Wash. 673 1917D 1158 1918A 23 1917C 780 1916E 171 1917E 523 1916D 258 1917B 455 1916E 150 1917O 1132 19170 843 1917C 1037 1916E 554 1917A 580 1916D 104 1918A 203 1916D 448 1916D 333 1917A 439 1918B 713 1918B 293 1917E 612 1917D 892 1918B 627 1917E 1083 1918A 935 1917A 576 1917E 678 1917C 453 1918B 833 1916D 1170 1918A 819 Vitagraph Co. v. Swaab 248 Pa. St. 478 Voeckler v. Stroehmann's Vi- enna Bakery 75 W. Va. 384 Volker Lumber Co. v. Utah, etc. Lumber Co. 45 Utah 603 Von Klein, State v. 71 Ore. 159 Wade v. Homer 115 Ark. 250 Wadsworth v. Manufacturer's Water Co. 256 Pa. St. 106. Wagner, Craig v. 88 Conn. 100 Wagner, Daniels v. 237 U. S. 547 Wagner, Newport v. 168 Ky. 641 Wagner Y. Seattle 84 Wash. 275 Wahl, Seibold v. 164 Wis. 82 Waite, Murray v. 113 Me. 485 Waitsfield v. Craftsbury 87 Vt. 406 Wake Water Co.. Powell & Powell v. 171 N. Car. 290. Wales, Mclntosh v. 21 Wyo. 397 Walker v. Portland Savings Bank 113 Me. 353 Walker, Ratcliffe v. 117 Va. 569 Walker Bin Co., Elyria Sav- ings, etc. Co. v. 92 Ohio St. 406 Walker Lumber Co., Royal Ins. Co. v. 24 Wyo. 59 Wall v. Focke 21 Hawaii 399 Wallace v. Cox 100 Neb. 601. Wallace, Jowett v. 112 Me. 389 Walnut Creek Oil Co.; Hays v. 75 W. Va. 263 Walsh v. Bridgeport 88 Conn. 528 Walter Magee, McColgan v. 172 Cal. 182 Walton, Armstrong v. 105 Miss. 337 Wangerin v. United States 245 U. S. 366 Ward, Adam v. [1917] A. C. 309 Ward v. J. Samuels & Brother 37 R. I. 438 Ward, State v. 170 Iowa 185 Ward, State v. 127 Minn. 510 Warley, Buchanan v. 165 Ky. 559 Warley, Buchanan v. 245 U. S. 60 '. PAGB 1916C 311 1917A 350 1917D 1158 1916C 1054 1916E 167 1917E 1099 1917A 160 1917A 40 1917A 962 1916E 720 19170 400 1918A 1128 1916O 387 1917A 1302 1916O 273 1917E 1 1917E 1022 1917D 1055 1917E 1174 19160 677 1917D 699 1917A 754 1918A 802 1917B 318 1917D 1050 1916E 137 1918B 856 1917D 249 1918A 783 1917B 978 19160 674 1917B 149 1918A 1201 CASES EEPOETED. Warren Mortgage Co. v. Win- ters 94 Kan. 615 Washington, Mountain Timber Co. v. 243 U. S. 219 Watch Hill Fire District, Bar- ber v. 36 B. I. 236 Waterford Packing , Co., Den- nis v. 113 Me. 159 Waterman, Age-Herald Pub- lishing Co. v. 188 Ala. 272. Water Supply Co., State ex rel. De Burg r. 19 N. Mex. 36 Watson v. Adams 187 Ala. 490 Watson v. Franklin 187 Ala. 490 Watson, People v. 216 N. Y. 565 Watters, Button v. 132 Tenn. 527 Waugh, Board of Trustees v. 105 Miss. 623 Way v. Barney 127 Minn. 346 Wayne County Commissioners, Manchester Township Su- pervisors v. 257 Pa. St. 442 Wear v. Kansas ex rel. Brew- ster 245 U. S. 154 Weaver, Kelly v. 77 Ore. 267 Weaver v. Maxwell Motor Co. 186 Mich. 588 Webb v. Bowden 124 Ark. 244 Webb v. Butler 192 Ala. 287 Weber,' 'EX p. [1916]' *A. ' C. 421 Weber v. American Silk Spin- ning Co. 38 B. I. 309 Weber v. Freed 239 U. S. 325 Weber v. Weber 113 Ark. 471 Webster v. Terry [1914] 1 K. B. 51 Webster, Western, etc. Ins. Co. v. 172 Ky. 444 Wedgwood, In re [1915] 1 Ch. 113 Wedgwood, Allen v. [1915] ] Ch. 113 Weeks v. Carolina Tel. etc. Co. 168 N. Car. 468 Weeks v. United States 216 Fed. 292 Weigel v. McCloskey 113 Ark. 1 Weilbacher v. J. W. Putts Co. 123 Md. 249 Weimer, Builders' Lime etc. Co. v. 170 Iowa 444 Weiner, People v. 271 111. 74 Weirling v. St. Louis, etc. B. Co. 115 Ark. 505 PAGE PAGE Welch v. Boston 221 Mass. 1916C 956 155 1917D 946 .Wells v. Ann Arbor B. Co. 1917D 642 184 Mich. 1 1917A 1093 iQir 101 Wells, Fire Association v. 84 N. J. Eq. 484 1917A 1296 1917D 788 Wells, Victoria Lumber Co. v. 139 La. 500 1917E 1083 1916E 900 Welsh, Glasgow Coal Co. v. [1916] 2 A. C. 1 1916E 161 Wende v. Chicago City B. Co. 1916E 1290 271 111. 437 1918A 222 Werner v. Fraternal Bankers' 1916E 565 Beserve Soc. 172 Iowa 504 1918A 1005 1916E 565 Wernicke Chemical Co., May- field v. 65 Fla. 113 1917A 1196 1917D 272 Werth, Commonwealth v. 116 Va. 604 1916D 1263 19160 433 Wessell v. Timberlake 95 Ohio St. 21 1918B 402 1916E 522 West v. Pinkston 44 Utah 123 1916D 1065 19160 565 Westchester Trust Co. v. Gib- son 217 N. Y. 454 1917E 853 Westcott v. Gilman 170 Cal. 562 1916E 437 1918B 278 Western, etc. Fire In. Co., Zimmerman v. 121 Ark. 1918B 586 408 1917D 513 Western etc. Ins. Co. v. Web- 1917D 611 ster 172 Ky. 444 19170 271 Western Maryland B. Co., 1917E 238 James Clark Distilling Co. v. 242 U. S. 311 1917B 845 1918A 60 Western Metal Supply Co. v. Pillsbury 172 Cal. 407 1917E 390 1916D 815 Western Tie, etc. Co. v. Camp- bell 113 Ark. 570 19160 943 1916D 304 Western Union Tel. Co. v. Blake 113 Ark. 545 19160 52-1 1917E 153 Western Union TeL Co. v. Burlington Traction Co. 90 19160 317 Vt. 506 1918B 841 Western Union Telegraph Co., 19160 743 Cobb v. 90 Vt. 342 1918B 1156 Western Union Tel. Co. v. 1917A 226 Franklin 114 Ark. 469 1916D 466 Western Union Telegraph Co., 1917C 271 Jones v. 101 S. Car. 181.. 19170 543 Western Union Tel. Co. v. 1917B 924 Louisville, etc. B. Co. 270 111. 399 1917B 670 1917B 924 Western Union Tel. Co. v. Louisville, etc. B. Co. 183 1917C 75 Ind. 258 1917B 705 Western Union Tel. Co., Louis- 19170 524 ville, etc. B. Co. v. 195 Ala. 124 1917B 696 19160 503 Western Union Tel. Co., Louis- ville, etc. B. Co. v. 184 Ind. 19160 115 531 19170 628 Western Union Tel. Co., Mason 19170 1174 v. 169 N. Car. 229 1917D 159 Western Union Tel. Co., Purdy 19170 1065 v. 97 S. Car. 22 19160 726 Westloigh Colliery Co., Hay- 1916E 253 ward v. [1915] A. C. 540. 1917D 877 iii CASES REPORTED. PAOI Wetkopsky v. New Haven Gas Light Co. 88 Conn. 1 1916D 968 Wetzel, State v. 75 W. Va. 7. 1918A 1074 W. G. Ward Lumber Co. v. American Lumber, etc. Co. 247 Pa. St. 267 1918A 451 What Cheer Stables Co., Car- roll v. 38 R. I. 421 1918B 346 Wheatland Industrial Co., Gil- lespie v. 22 Wyo. 331 1917A 287 Wheeler, etc. Co., Blanton v. 91 Conn. 226 1918B 747 Whilden, Johnson v. 166 N. Car. 104 1916C 783 White v. Bower 56 Colo. 575. 1917A 835 White v. Nashville 134 Tenn. 688 1917D 960 White, New York Central R. Co. v. 243 U. S. 188 1917D 629 White, Pacific Power, etc. Co. v. 96 Wash. 18 1918B 125 White v. State ex rel. Huff 183 Ind. 649 1917B 527 White, State ex rel. La Londe v. 130 Minn. 336 1917C 510 White v. Winchester 124 Md. 518 1916D 1156 Whitener-London Realty Co., Neas v. 119 Ark. 301 1917B 780 Whitmore, Davis Laundry, etc. Co. v 92 Ohio 44 1917C 988 Whitridge, Middleton v. 213 N. Y. 499 1916C 856 Whittelsey Mercantile Co., Berner v. 93 Kan. 769 1916D 350 Whittemore v. Baxter Laun- dry Co. 181 Mich. 564 1916C 818 Whittlesberger, Reck v. 181 Mich. 463 1916C 771 Wichita, Blakeman v. 93 Kan. 444 1916D 188 Wichita, Griswold v. 99 Kan. 502 1917D 31 Wick v. Beck 171 Iowa 115. . 1917A 691 Wideman v. Faivre 100 Kan. 102 1918B 1168 Wiebener v. Peoples 44 Okla. 32 1916B 748 VTiffen v. Bailey [1915] 1 K. B. 600 1916E 489 Wightman v. Campbell 217 N. Y. 479 1917E 673 Wilcox, Scofield v. 33 N. Dak. 239 1918A 836 Wiley v. Solvay Process Co. 215 N. Y. 584 1917A 314 Wilkerson, Streit v. 186 Ala. 88 1917E 378 Wilkins, Paul Jones & Co. v. 135 Tenn. 146 1918B 977 Wilkinson, Dolbear v. 172 Cal. 366 1917E 1001 Wilkinson, Grinnell v. 39 R. I. 447 1918B 618 Willard v. Higdon 123 Md. 447 1916C 339 Willett v. Janecke 85 Wash. 654 1917B 351 PAOI Williams' Estate, In re 52 Mont. 192 1917E 126 Williams v. Boston Wharf Co. 220 Mass. 397 1917A 445 Williams v. Burgess 74 W. Va. 623 1917C 1185 Williams v. Davis 52 Mont. 192 1917E 126 Williams, Drennen v. 59 Colo. 301 1917A 664 Williams v. Johnson 50 Mont. 7 1916D 595 Williams v. Kidd 170 Cal. 631 1916E 703 Williams, Krickau v. 36 R. I. 85 1916C 1145 Williams v. Llandudno Coach- ing, etc. Co. [1915] 2 K. B. 101 1918B 682 Williams v. Noyes, etc. Mfg. Co. 112 Me. 408 1916D 1224 Williams v. Pullman Co. 129 Minn. 97 1916E 374 Williams v. Richardson 66 Fla. 234 1916D 245 Williams v. S. M. Smith In- surance Agency 75 W. Va. 494 1917A 813 Williams v. Williams 112 Me. 21 1916D 928 Williams, etc. Co., Correll v. 173 Iowa 571 1918A 117 Wilson v. Blake 169 Cal. 449 1916D 205 Wilson v. Craig 86 Wash. 465 1917B 871 Wilson v. Dorflinger 218 N. Y. 84 1917D 38 Wilson v. First. National Bank 164 Iowa 402 1916D 481 Wilson v. Hotchkiss 171 Cal. 617 1917B 570 Wilson, Manders v. 235 Fed. 878 1918A 1052 Wilson v. New 243 U. S. 332 1918A 1024 Wilson v. Shrader 73 W. Va. 105 1916D 886 Wilson, Stratton v. 170 Ky. 61 1918B 917 Wilson v. Sun Pub. Co. 85 Wash. 503 1917B 442 Wilson Wholesale Co., Pick- rell, etc. Co. v. 169 N. Car. 381 1917C 344 Wilton Woolen Co. v. G. H. Bass & Co. 112 Me. 483... 1916D 1023 Wimbrough v. Wimbrough 125 Md. 619 1916E 920 Winchester, White v. 124 Md. 518 1916D 1156 Windsor Trust Co., Morris v. 213 N. Y. 27 1916C 972 Winfield. Erie R. Co. v. 244 U. S. 170 1918B 662 Winfield, New York Central R. Co. v. 244 U. S. 147 1917D 1139 Winnipeg, Winnipeg Electric R. Co. v. 35 West Law Rep. 9 1916E 181 CASES EEPORTED. liii PAGE Winnipeg Electric E. Co. v. Winnipeg- 35 West Law Rep. 9 1916E 181 Winslow v. Winslow 133 Tenn. 663 1917A 245 Winters, Minneapolis, etc. R. Co. v. 242 U. S. 353 1918B 54 Winters, Warren Mortgage Co. v. 94 Kan. 615 1916C 956 Wisconsin R. etc. Co., Koeller v. 130 Minn. 265 1917C 71 Wising v. Brotherhood of American Yoeman 132 Minn. 303 1918A 621 Wisner, Stonerook v. 171 Iowa 109 1917E 252 Withers v. Barnes 95 Kan. 798 1917B 55 Withers v. London, etc. R. Co. [1916] 2 K. B. 772 1918B 341 Witte v. Haben 131 Minn. 71 1917D 534 W. J. Armstrong Co. v. New York Central, etc. R. Co. 129 Minn. 104 1916E 335 Woburn, Woods v. 220 Mass. 416 1917A 492 Wolf v. Megantz 184 Mich. 452 1916D 1146 Woll v. Jensen 36 N. Dak. 250 1918B 982 Wolverine Coal Co., Andre- jwski v. 182 Mich. 298... 1916D 724 Wolverton v. Mountain States Tel. etc. Co. 58 Colo. 58. .. 1916C 776 Wood v. Gauld 53 Can. Sup. Ct. 51 1917C 939 Wood v. Logue 167 Iowa 436 Wood v. Wood 78 Ore. 181 . . Woodburn v. Public Service Commission 82 Ore. 114.. 1917E 996 Wooden v. Commonwealth 117 Va. 930 1917D 1032 Woodle v. Settlemyer 71 Ore. 25 1916C 1222 Woodmen of the World, Cop- lin v. 105 Miss. 115 1916D 1295 Woods, Hardy v. 33 S. Dak. 416 1916C 398 Woods v. Rock Hill Fertilizer Co. 102 S. Car. 442 1917D 1149 Woods v. State 123 Ark. 111. 1918A 348 Woods v. Woburn 220 Mass. 416 1917A 492 PAGE Wormell, Coe v. 88 Wash. 119 1917C 679 Worthington, Braash v. 191 Ala. 210 1917O 903 Worthington v. District Court 37 Nev. 212 1916E 1097 Wright, German American Bank v. 85 Wash. 460 1917D 381 Wright, Trimble v. 81 Wash. 279 1916D 1113 W. T. Smith Lumber Co. v. Jernigan 185 Ala. 125 1916O 654 Wulzen, In re 235 Fed. 362 . . 1917A 274 Wyandotte Coal, etc. Co. v. Wyandotte Paving, etc. Co. 97 Kan. 203 1917C 580 Wyandotte Paving, etc. Co., Wyandotte Coal, etc. Co. v. 97 Kan. 203 1917C 580 Wysor, Howell v. 74 W. Va. 589 1916O 519 Yancey v. Boyce 28 N. Dak. 187 1916E 258 Yazoo, etc. R. Co. v. Scott 108 Miss. 871 1917E 880 Yeaman v. Galveston City Co. 106 Tex. 389 1917E 191 Yellowstone Valley Land, etc. Co., Fussehnan v. 53 Mont. 254 1918B 420 Yonkus v. McKay 186 Mich. 203 1917E 458 Yoos, Cleveland v. 92 Ohio St. 493 1917D 1134 Youmans v. Hanna 35 N. Dak. 479 1917E 263 Young v. Morris 47 Okla. 743 1918B 450 Young, Salt Lake City v. 45 Utah 349 1917D 1085 Young v. Valdez 61 Colo. 485 1918A 23 Yukon Investment Co., Clarke v. 83 Wash. 485 1916E 625 Zamora, The [1916] 2 A. C. 77 1916E 233 Zayas, People v. 217 N. Y. 78 1917E 309 Ziegler v. P. Cassidy's Sons 220 N. Y. 98 1917E 248 Zima. Rezac v. 96 Kan. 752. 1918B 1035 Zimmerman v. Western, etc. Fire Ins. Co. 121 Ark. 408. 1917D 513 Zuccaro, Ex p. 106 Tex. 197. 1917B 121 DIGEST OF THE CASES REPORTED IN ANN. CAS. 1916C-1918B ABANDONMENT. Of easement, see Easements, 4-8. Abandonment of spouse as prerequisite for alienation suit, see Husband and Wife, 50. Of established grade, see Streets and Highways, 8. ABATEMENT. Death of officer, see Mandamus, 25. Pleas in abatement, see Pleading, 34-37. Of will contest, see Wills, 121, 140. ABATEMENT AND REVIVAL. Stay of civil action pending prosecution, see Actions and Proceedings, 14. Other action pending, see Actions and Proceedings, 14, 15. Abatement by death, see Actions and Proceedings, 16-18. Of judgments, see Judgments, 27-29. ABATEMENT OF NUISANCES. See Nuisances. ABBREVIATIONS. "Etc.," meaning, see Mechanics' Liens, 24. Effect of "Jr." after name, see Names, 1. ABDUCTION. 1. An indictment, drawn under section 1 of Act La. No. 134 of 1890, p. 175, which statute provides for the punishment of any person who entices, abducts, induces, decoys, hires, engages, employs, or takes (1) any woman of previous chaste character from her father's house, or from any other place where she may be, for the purpose of prostitution, or for any unlaw- ful sexual intercourse, at a house of ill fame, or at any other place of like char- acter, or elsewhere, and which charges a person with having taken such woman from her father's house "unto the public highway for the purpose of having un- lawful sexual intercourse with her, and did unlawfully have sexual intercourse with her," is sufficient. State v. Sanders (La.) 1916E-105. 2. The words "any unlawful sexual in- tercourse" means unlawful sexual inter- course "to any extent; in any degree; at all"; and they cover a single act of sexual intercourse. State v. Sanders (La.) 1916E-102. (Annotated.) ABORTION. 1. Nature and Elements, 1. 2. Parties to Offense, 2. 3. Evidence, 2. As element of damage, see Breach of Promise of Marriage, 15. Conviction of attempted abortion on in- dictment for first degree murder, see Homicide, 8, 13. Three years and one thousand dollars for administering drugs, sustained, see Sentence and Punishment, 17. 1. NATURE AND ELEMENTS. 1. Administering Harmless Drug. Under N. C. Revisal 1905, 3619, specifying the punishment for procuring a pregnant wo- man to take a drug with intent to procure DIGEST. 1916C 1918B. a miscarriage, where a drug is furnished for the purpose of producing a miscarriage, it is immaterial that it is not noxious or capable of producing the intended effect. State v. Shaft (N. Car.) 1916C-627. 2. As Including Assault. Procuring an unlawful abortion upon any woman al- ways involves an assault in law, even when it is done with her consent and con- nivance, because no one can consent to an unlawful act. State v. Farnam, (Ore.) 1918A-318. 2. PARTIES TO OFFENSE. 3. Victim as Accomplice. A pregnant woman, procured by defendant to take a drug with intent to procure a miscarriage, is not an accomplice in a legal sense. State v. Shaft (N. Car.) 1916C-627. (Annotated.) Note. Woman upon whom abortion is com- mitted as accomplice. 1916C-629. 3. EVIDENCE. 4. Evidence as to Intercourse. Where, on a trial for procuring a pregnant woman to take a drug with intent to pro- cure a miscarriage, the pregnancy of the woman is undisputed, evidence as to sexual intercourse on her part is immate- rial and its admission is harmless. State v. Shaft (N. Car.) 1916C-627. 5. Expert Evidence. On a trial for pro- curing a pregnant woman to take a drug with intent to procure a miscarriage, where there is evidence that a capsule, some of which was administered, con- tained aloes, experts are properly per- mitted to testify as to the effect of such drug on pregnancy, when administered in large doses. State v. Shaft (N. Car.) 1916C-627. ABSENCE. Tolling statute, see Limitation of Actions, 33-36. ABSOLUTE PRIVILEGE. Non-existent in U. S., see Libel and Slander, 38, 52. ABSTRACT ON APPEAL. See Appeal and Error, 53. ABUTTING OWNERS. See Adjoining Landowners. ACCELERATION. See Remainders and Reversions, 18. ACCEPTANCE. See Banks and Banking, 13-22; Public Contracts, 5; Sales, 2, 5, 6. As essential to dedication, see Dedication, 6-16. Of deeds, see Deeds, 17. As- essential to pardon, see Pardons, 1. Earnings of prostitute, see Prostitution, 16. Of legacy or devise, see Wills, 243-248. ACCEPTING DEPOSITS WHEN IN- SOLVENT. See Banks and Banking, 13-22. ACCESSION. 1. Fittings Added to Automobile, Where the purchaser of an automobile, title to which was retained by the seller, fitted the machine with tire casings, and the seller on nonpayment retook the ma- chine, title to the tire casings passes to the seller, the seller of the casings not having retained title, for such is the rule of "accession," which denotes the right of the. owner of corporeal property, real or personal, to any increase thereof from any cause, either actual or artificial. Black- wood Tire, etc. Co. v. Auto Storage Co. (Tenn.) 1917C-1168. (Annotated.) ACCIDENT. Meaning within Workmen's Compensation Act, see Master and Servant, 194-202. ACCIDENTAL MEANS. Meaning defined, see Accident Insurance,. 15, 16, 18. ACCIDENT INSURANCE. 1. The Contract in General, 2. 2. Statutory Regulations, 3. 3. Warranties and Representations, 4. 4. Cause of Injury, 4. 5. Extent of Injury, 5. 6. Notice and Proof of Injury, 5. 7. Waiver of Provisions, 5. 8. Action on Policy, 5. a. Evidence, 5. b. Instructions, 6. c. Questions for Jury, 6. d. Defenses, 6. THE CONTRACT IN GENERAL. 1. Construction Against Insurer. Where the language of an accident policy is am- biguous, it must be construed most favorably to the insured; the policy being drawn by defendant. Berry v. United Commercial Travelers (Iowa) 1918A-706. 2. "Immediate" Disability. An accident policy, providing for payment of death claim, declared that if death should result independently of all other causes within ninety days from the accident, though not necessarily causing immediate and con- tinuous disability, the death benefit should be paid, while if injuries should, independently of all other causes, imme- diately, continuously, and wholly disable and prevent insured from performing all ACCIDENT INSURANCE. duties pertaining to his occupation, the death benefit should be paid in case of death occurring within 200 weeks of the date of the accident. Insured, a dentist, injured his finger with a burr, contracting blood poisoning in the wound, though for several days before he was forced to re- tire, he was able to go to his office and perform part of his ordinary duties. Af- ter a month in bed, he returned to his office and for over three months performed all of his regular duties, dying suddenly at the end of that period. It is held that insured's disability was immediate and continuous during the time between the infliction of the wound and the develop- ment of infection, and so recovery cannot be defeated on the ground that there was no continuous disability. Doyle v. New Jersey Filedity, etc. Ins. Co. (Ky.) 1917D-851. (Annotated.) 3. "Burning of Dwelling." The word "dwelling" alone is not commonly used with exactly the same meaning as the words "dwelling house." As that word is used in a policy of accident insurance covering injuries caused by the burning of a dwelling, it is capable of being under- stood to mean, "home or place of habita- tion." If the insured did so understand, and the insurer had reason to suppose he so understood it, that meaning must pre- vail. Neb. Eev. St. 1913, 7909. Hamilton v. North American Accident Ins. Co. (Neb.) 1917C-409. (Annotated.) 4. Approval by Insurance Commis- sioner. Where a form of an accident pol- icy had been approved by the insurance commissioner, it will be presumed that policies issued by the insurer followed the approved form. Lundberg v. Inter- state Business Men's Ace. Assoc. (Wis.) 1916D-667. 5. Hernia Clause. Where an accident policy under the by-laws of the company insured against bodily injury through external, violent, and accidental means, which would prevent the insured from the prosecution of any business pertaining to his occupation, but excepted damage re- sulting from hernia and injuries not the proximate cause of the disability, the as- signee of the insured is entitled to recover for loss of time resulting from a fall which produced hernia, whereby he was confined in the hospital and was rendered unable to perform his usual work; hernia being a consequence, and not the prox- imate cause, of the injury. Berry v. United Commercial Travelers (Iowa) 1918A-706. (Annotated.) 6. Validity of Contract Limitation. A provision in a contract of insurance, to the effect that no action at law or suit in equity shall be commenced before three months, nor after six months, from the date on which affirmative proof of acci- dent must be furnished to the company, is repugnant to the provisions of section 3321, Idaho Rev. Codes, which provides that every stipulation or condition in a contract by which any party thereto is re- stricted from enforcing his rights under the contract by the usual proceedings and the ordinary tribunals, or which limits the time in which he may enforce his rights, is void. Douville v. Pacific Coast Casualty Co. (Idaho) 1917A-112. 7. Time to Sue. A provision in an ac- cident policy requiring suit to be brought, if at all, within one year from the date of the accident on which the suit is predi- cated is valid. Bates v. German Commer- cial Aec. Co. (Vt.) 1916C-447. 8. Reduction of Benefits. An accident policy provided that, in the event of dis- ability due wholly or in part to or result- ing directly or indirectly from hernia commencing or appearing after the policy had been in force for 60 days preceding, the limit of the company's liability should be one-third of the amount that would otherwise be payable under the policy. Held, that such clause, construed most strongly against the insurance company, provided no limitation in case hernia re- sulted within the 60-day period, in which case the company was liable for full in- demnity. Bates v. German Commercial Ace. Co. (Vt.) 1916C-447. Notes. Construction of hernia clause in acci- dent insurance policy. 1918A-710. Construction of sunstroke clause in accident insurance policy. 1918A-523. Construction of provision in accident insurance policy relating to injury "caused by burning of building" or simi- lar phrase. 1917C-410. Construction of clause in accident in- surance policy excepting death caused by disease. 1917C-463. 2. STATUTOBY REGULATIONS. 9. Standard Policy Law. St. Wis. 1913, 1960, subsec. 1, declares that no accident policy shall be issued until a copy thereof and the classification of risks and pre- mium rates shall have been filed with the commissioner of insurance and approved. Subsection 2 declares that in such policies any provision purporting to reduce any in- demnity shall be printed in bold-faced type with greater prominence than any other portion of the text of the policy, while subsection 9 declares that a policy issued in violation of the act shall be valid, but the rights of the beneficiary shall be governed by the act. An acci- dent policy, providing that there should be no recovery on account of bodily in- jury caused by the discharge of firearms unless the accidental character of the dis- DIGEST. 1916C 1918B. charge should be established by an eye- witness, was issued with the approval of the insurance commissioner. Held that, in view of the scope of the commissioner's authority, the provision could not be questioned on the ground that it was not in bold-faced type. Lundberg v. Inter- state Business Men's Ace. Assoc. (Wis.) 1916D-667. Note. Construction of statute requiring stand- ard health or accident insurance policy. 1916D-670. 3. WARRANTIES AND REPRESENTA- TIONS. 10. Representation as to Receipt of Previous Indemnity. Misrepresentation that the insured had never claimed or re- ceived indemnity for any accident cannot as a matter of law be held a material mis- representation, where the accident for which he received indemnity was in no way connected with the one causing his death. Rathman v. New Amsterdam Casualty Co. (Mich.) 1917C-459. 11. Representation as to Physical Con- dition. A representation in an applica- tion for an accident policy that insured was in sound condition and had not been disabled or received medical or surgical attention within the past five years is an affirmative warranty. Rathman v. New Amsterdam Casualty Co. (Mich.) 1917C- 459. 12. Occupation of Insured Notice to Company. A statement in the schedule of warranties in an accident policy that in- sured, a sales agent, had "supervising duties, not setting up or testing machin- ery," is sufficient to put the insurer on inquiry as to the nature of insured's supervision of the installation of gas en- gines sold by him, and having made no inquiry, it is precluded from claiming, after an accident, that his employment was extrahazardous. Shoop v. Fidelity, etc. Co. (Md.) 1916D-954. 4. CAUSE OF INJURY. 13. Illness of Insured as Proximate Cause. An accident policy declared that loss of life should be deemed to mean death from bodily injuries not intention- ally self-inflicted, which independently of all other causes are effected solely by ac- cidental means. The insured, who was suffering from nephritis and was delirious part of the time, either fell or jumped overboard from an ocean steamer upon which he was returning home. It ap- peared that he left his berth to which he had been confined, and that his wife dis- covered him outside of the railing, but her grasp was torn away before a steward could be called. It is held that, whether the death was intentional or the result of an accident, the illness which rendered insured less able to take care of himself must be construed as the proximate cause, and the insurer was not liable. Rathman v. New Amsterdam Casualty Co. (Mich.) 1917C-459. (Annotated.) 14. Result of Intentional Act. An in- jury is not produced by accidental means, within the terms of a policy, where it is the natural result of an act or acts in which the insured intentionally engages, and is caused by a voluntary, natural, ordinary movement, executed as was in- tended. Stone T. Fidelity, etc. Co. (Tenn.) 1917A-86. (Annotated.) 15. Complainant, who attended a foot- ball game on a cool day when the ground was damp, and contracted a cold, result- ing in lumbago, and who after medical treatment and the debility resulting from a purgative, and while lying in bed, had a paper brought, reached for it, and raised it suddenly above his head, when his strong blood pressure caused a rupture of the retina, destroying the sight of one eye, cannot recover on a policy insuring him against bodily injury through "acci- dental means," since, while the result was not foreseen, the cause producing the re- sult was not accidental, but an ordinary natural movement, executed as intended. Stone v. Fidelity, etc. Co. (Tenn.), 1917A-86. (Annotated.) 16. Injury Received While Fighting. Where an accident policy insures against an injury effected exclusively by acci- dental means, insured, who assaulted a third person, and was attacked and knocked down, breaking his leg, cannot recover under the policy, though insured intended by a single blow to render the third person unable to defend himself, for an effect which is the natural and probable consequence of an act or a course of action is not produced by "acci- dental means." Hutton v. State Acci- dent Ins. Co. (HI.) 1916C-577. (Annotated.) 17. Sunstroke as Accident. Where an accident policy insured against death or disability through external, violent, and purely accidental means, provided that, if sunstroke should result independently of all other causes in the death of in- sured, the insurer would pay the indem- nity, a sunstroke, while it may by medical experts be deemed a disease, is to be deemed a form of personal injury; it be- ing considered such in common parlance, and, if a disease, not being an appropriate matter for accident insurance. Bryant v. Continental Casualty Co. (Tex.) 1918A- 517. (Annotated.) 18. In such case, the term "means," in the phrase "due to accidental means," is used in the sense of "cause," and the in- ACCIDENT INSURANCE. surer is liable for the death of the in- sured, caused by exposure to sun and humid atmosphere on a hot day, while pursuing his usual vocation in an ordinary way. Bryant v. Continental Casualty Co. (Tex.) 1918A-517. (Annotated.) Notes. Bight to recovery under accident in- surance policy for injuries received while fighting. 1916C-579. Intentional exertion as "Accidental Means" of injury within accident insur- ance policy. 1917A-88. 5. EXTENT OF INJURY. 19. "Loss" of Hand. An accident pol- icy, which binds insurer to pay a specified sum on insured suffering accidental in- juries resulting in the "loss of a hand" by removal at or above the wrist, makes insurer liable where insured was acci- dentally shot in the hand, necessitating amputation of the hand, except a part apparently worthless; the amputation be- ginning at the wrist. Moore v. Aetna Life Ins. Co. (Ore.) 1917B-1005. (Annotated.) Note. What constitutes loss or severance of limb or member within meaning of acci- dent insurance policy. 1917B-1008. 6. NOTICE AND PROOF OF INJURY. 20. Waiver. In an action on an acci- dent policy, held, that the whole course of dealing by the defendant company shows that it recognizes a local agent as an agent in receiving oral notice and proof of the accident, and so acted upon such information as to waive a strict compliance with the giving of written notice of such accident. Douville v. Pacific Coast Casualty Co. (Utah) 1917A- 112. (Annotated.) 7. WAIVER OF PROVISIONS. 21. An accident policy was issued October 19, 1908, and two days thereafter plaintiff suffered accidental injuries which were the basis of the suit. He seasonably filed proofs of injury which were rejected, and nothing further was done until Octo- ber 26. 1911, when defendant, at the suggestion of the State Insurance Com- missioner, requested full information con- cerning the nature of the accident, stating that on receipt of the same the company would open the case. This request was complied with, and plaintiff continued from time to time to furnish other papers and proofs until on November 9, 1911, when defendant sent plaintiff a check for $25 in full settlement, which he promptly returned and brought suit. Held, that defendant's acts constituted a waiver of the policy provision requiring suit to be brought, if at all, within a year after the date of the accident on which the suit was predicated. Bates v. German Commercial Ace. Co. (Vt.) 1916C-447. (Annotated.) 22. Waiver of Limitation. A provision in an accident policy requiring suit to, be brought within a year, if at all, is matter for the benefit of the company and may be waived. Bates v. German Commercial Ace. Co. (Vt.) 1916C-447. (Annotated.) Notes. Waiver of provision -in accident insur- ance policy limiting time to bring suit thereon. 1916C-449. Waiver of provision in accident insur- ance policy requiring notice of injury or death to be given within certain time. 1917A-114. 8. ACTION ON POLICY, a. Evidence. 23. Parol Evidence. A warranty, in an application for accident insurance, that insured's connection with certain machin- ery was as "supervising" agent only is not so definite in its meaning as to ex- clude parol evidence to show what were the duties of a supervising agent. Shoop v. Fidelity, etc. Co. (Md.) 1916D-954. 24. Proof of Failure to Defend Action, Where an accident policy, conditioned to save a motorist harmless from action from injuries caused by her car, required the motorist to, in good faith, co-operate with the insurer in defending actions, a finding by the jury that the motorist failed to comply with such conditions, by failing to set up contributory negligence of a guest of the motorist, suing for injuries received in an action against the motorist, is held to be warranted by the evidence. Collins' Exec- utors v. Standard Accident Ins. Co. (Ky.) 1917D-59. (Annotated.) 25. Requirement of Proof by Eye Wit- ness. A witness, who saw deceased while rowing in a boat before the shot was fired, heard it and then found deceased dead and his rifle discharged, is not an "eye- witness" within an accident policy declar- ing that there should be no recovery for injuries caused by discharge of firearms unless the accidental discharge be estab- lished by an eyewitness, where she could not see deceased when the shot was fired. Lundberg v. Interstate Business Men's Ace. Assoc. (Wis.) 1916D-667. 26. Cause of Death Burden of Proof. It being shown in an action on a policy insuring against death from external, violent, and accidental means that death came from external and violent means, and this in connection with the presump- DIGEST. 1916O 1918B. tion against suicide, making a prima facie case, instructing that plaintiff did not have to prove death did not result from suicide is not error. Aetna L. Ins. Co. v. Taylor (Ark) 1918B-1122. (Annotated.) b. Instructions. 27. Quantum of Proof. In an action on an accident policy, a request by defend- ant for an instruction that the jury must be satisfied, "beyond a reasonable doubt," of enumerated facts before they could find for plaintiff is properly refused. Shoop v. Fidelity, etc. Co. (Md.) 1916D- 954. c. Questions for Jury. 28. As insured discharged all the duties of his profession as a dentist during the three months before he met his death, the accident cannot be held to have caused continuous and immediate disability up to the time of death, and therefore the ques- tion should not be submitted to the jury. Doyle v. New Jersey Fidelity, etc. Ins. Co. (Ky.) 1917I>-851. (Annotated.) d. Defenses. 29. Duty of Insured to Assert Defenses. That the owner of an automobile allowed a guest to give some directions to the chauffeur as to the place they should be carried did not make the chauffeur the agent of the guest instead of the owner, and the chauffeur's negligence was not im- putable to the guest, so, in an action by the owner on an accident policy, the guest having been injured and having recovered against her, it is no defense that the owner, though obliged to defend action, refused the requests of the insurer to make th<* defense of imputed negligence. Collins' Executors v. Standard Accident Ins. Co. (Ky.) 1917D-59. (Annotated.) ACCOMMODATION INDORSEES. Notice of dishonor to. see Bills and Notes, 34. ACCOMMODATION MAKER. See Bills and Notes, 41-45. ACCOMPLICE. Victim a party to abortion, see Abortion, 3. ACCORD AND SATISFACTION. 1. In General. 2. Part Payment. a. Effect of Receipt in Full. b. Conditioned to Operate as Pay- ment in Full. 1. IN GENERAL. 1. Evidence, in action to recover inter- est on city warrants, the principal and part of the interest on which had been paid, held insufficient to establish an ac- cord and satisfaction. Alabama City, etc. R. Co. v. Gadsden (Ala.) 1916C-573. 2. Failure to Perform in Full. Plaintiff having been injured in a railroad crossing accident, defendant's claim agent offered him a draft for $50 in settlement, agree- ing also to pay plaintiff's attorney. Plaintiff testified that he took the draft because the agent told him he would never get anything else, but had no in- tention to cash it and did not do so. The railroad company made no attempt to set- tle with plaintiff's attorney and sought to excuse itself by stating that, suit having been begun on the same day the settle- ment was effected, it concluded that no settlement with him could be made. Held, that such facts were insufficient to estab- lish an accord and satisfaction. St. Louis Southwestern R. Co. v. Mitchell (Ark.) 1916E-317. 2. PART PAYMENT, a. Effect of Receipt in Full. 3. Part Payment of Liquidated Claim With Receipt in FulL Va. Code 1904, 2859, provides that part performance of an obligation, either before or after breach, when expressly accepted by the creditor in satisfaction, and under an agreement for that purpose, though without any new consideration, shall extinguish the obligation, promise, or undertaking. Held, that where on completion of plain- tiff's contract to construct certain houses for defendant, there was no claim on his part that the entire balance of the contract price was not payable in full, but he re- fused to pay unless plaintiffs deducted $450.54 from their bill, which they were compelled to do because they were in financial straits and had to have the money, for which they executed a receipt in full, there was no acceptance of the lesser amount in satisfaction within the statute sufficient to preclude a recovery of the amount so deducted. Thomas v. Brown (Va.) 1917A-128. (Annotated.) b. Conditioned to Operate as Payment in Full. 4. Acceptance in Full Settlement. To constitute an accord and satisfaction the sum less than the amount actually due must have been accepted in full settle- ment of the disputed claim. Alabama City, etc. R. Co. v. Gadsden (Ala.) 1916C- 573. Note. Part payment with receipt in full as satisfaction of liquidated and undisputed debt. 1917A-130. ACCOUNTS AND ACCOUNTING ACTION PENDING. ACCOUNTS AND ACCOUNTING. See Costs, 5. Accounting for assets, see Bankruptcy, 9. Failure to account, see Embezzlement, 1. Book entries admissibility, see Evidence, 90. Of executors and administrators, see Executors and Administrators, 47-56. Of guardian, see Guardian and Ward, 20-28. Action of account, counterclaim for wrongful enhancement, see Monopo- lies, 23. Between partners, see Partnership, 13-15. By managers of Soldiers' Home for money improperly collected, see Pensions, 2, 3. Between cotenants, see Tenants in Com- mon, 9. Accounting by trustee, see Trusts and Trustees, 30-32. For proceeds of damaged goods, see Ware- houses, 5. 1. Sufficiency of Petition. The petition of an administratrix in an action on open account for goods sold to defendant, and charged to him by decedent in the usual course of business, also for advances and loans of money by decedent to defendant, which defendant agreed to repay, alleging that plaintiff could not furnish an item- ized account because the books, accounts, and memoranda of decedent had been de- stroyed by fire without decedent's fault, claiming a lump sum, states a cause of action. Givens v. Pierson's Administra- trix (Ky.) 19170-956. Note. Necessity that book of accounts offered in evidence be book of original entry. 19170-961. ACCRUAL OF CAUSE OF ACTION. See Limitation of Actions, 14-32. ACKNOWLEDGMENTS. 1. Who may Take Acknowledgment. 2. Sufficiency. 3. Evidence Requisite to Impeach. Of conveyance of homestead by wife, see Homestead, 11. Sufficiency to remove bar, see Limitation of Actions, 43. Stockholder as attesting notary for cor- porate mortgagee. See Mortgages and Deeds of Trust. 1. WHO MAY TAKE ACKNOWLEDG- MENT. 1. Officer of Corporate Mortgagee. Where a deed of trust is executed to secure an indebtedness to a corporation without fraud, coercion, or undue ad- vantage, its validity is not affected by the fact that the notary who takes the acknowledgment is a stockholder in the corporation. Davis v. Hale (Ark.) 1916D- 701. (Annotated.) Note. Stockholder or officer of corporation in- terested in instrument as disqualified to take acknowledgment tnereof. 1916D- 705. 2. SUFFICIENCY. 2. Signature of Notary. Kirby'a Ark. Big., 746, provides that every officer who shall take the acknowledgment of any con- veyance of real estate shall grant a certi- ficate thereof, to be indorsed on the deed, and that the certificate shall be signed by the officer and sealed, if he has a seal of office. Held that, where a certificate of a notary public attached to a deed of trust bore a seal with the notary's name thereon, but the certificate was not subscribed by the officer, it was void., Davis v. Hale (Ark.) 1916D-701. 3. Acknowledgment Presumption in Favor of Certificate. The certificate of acknowledgment to a deed is prima facie proof of its execution. Houlihan v. Mor- rissey (111.) 1917A-364. 3. EVIDENCE REQUISITE TO IM- PEACH. 4. While the certificate of acknowledg- ment to a deed, as between the parties, may be impeached for fraud, collusion, or imposition, yet to overcome it clear and satisfactory proof is required, more than the unsupported testimony of the grantor. Houlihan v. Morrissey (HI.) 1917A-364. (Annotated.) Note. Evidence requisite to impeach acknowl- edgment. 1917A-368. ACQUIESCENCE. Estoppel to object to nuisance, see Nui- sances, 17. ACROSS. Meaning, see Telegraphs and Telephones, 5. ACTIONABLE PER SB. Words, see Libel and Slander, 6, 16-21, 24-36. ACTIONABLE WORDS. See Libel and Slander, 6, 16-21, 24-36. ACTION PENDING. See Actions and Proceedings, 8. DIGEST. 1916C 1918B. ACTIONS AND PROCEEDINGS. 1. Definitions and Right of Action. 2. Nature and Form of Action. 3. Pendency of Action. 4. Joinder of Causes of Action. 5. Splitting Causes of Action. 6. Abatement and Revival. a. Criminal Prosecution Awaited. b. Death of Party. See Dismissal and Nonsuit; Limitation of Actions; Iiis Pendens; Parties to Ac- tions; Removal of Causes; Specific Performance, 7-11; Trespass, 4-12. For attorney's fees, see Attorneys, 33-35. Disbarment proceeding not civil action, see Attorneys, 50. To recover bank deposit, see Banks and Banking, 54, Nature of bastardy proceeding, see Bas- tardy, 1. For benefits, see Beneficial Associations, 28-33. Offer to marry no bar, see Breach of Promise of Marriage, 2, 3. Nature of action for causing death, see Death by Wrongful Act, 1-6. Inheritance of chose in action, see Descent and Distribution, 3. By executors and administrators, see Executors and Administrators, 71-85. For personal injury, survival, see Execu- tors and Administrators, 77-81. Against executors and administrators, see Executors and Administrators, 86-92. For deceit, see Fraud, 8-14. Nature of habeas corpus, see Habeas Cor- pus, 4. Proceedings in juvenile courts, see In- fants, 26-38. Restraining prosecution of action, see In- junctions, 24-26. Independent action for recovery of in- terest, see Interest, 1, 2. Proceedings under mulct law, see Intoxi- cating Liquors, 33. Action to fix appropriation rights, see Irrigation, 2-10. Special proceeding, termination, see Judg- ments, 1. Actions for rent, see Landlord and Ten- ant, 36-40. Statutory action, effect of bar, see Limi- tation of Actions, 1, 6. Action against railroad for violating ordi- nance, criminal, see Municipal Cor- porations, 102. Continuation of action by the others on death of firm member, see Partner- ship, 31. Suit by receiver in foreign jurisdiction, see Receivers, 9. Election of remedies, see Release and Dis- charge, 6. Against school districts, see Schools, 5-8. Against state, see States, 9. 10. Actions on relation, see States, 11. Effect of repeal of statute on pending ac- tion, see Statutes, 125. Proceedings for special assessment, see Taxation, 131-144. Taxpayer's actions, see Taxation, 201-203. By one co-tenant for injury to the com- mon property, see Tenants in Com- mon, 11-12. For incidental injury to third person, see Torts, 1. Transitory actions, see Venue, 1, 2. Actions by and against alien enemies, see War, 11. Proceedings under Workmen's Compensa- tion Act, 284-305. 1. DEFINITIONS AND RIGHT OF ACTION. 1. Action Definition. An action is "an ordinary proceeding in a court of jus- tice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." Greenleaf v. Minneapolis, etc. R. Co. (N. Dak.) 1917D-908. 2. Proceeding Definition. The terra "proceeding" includes the form and man- ner of considering judicial business before a court or judicial officer, and regular and ordinary proceedings in form of law, in- cluding all possible steps in an action from its institution to the execution of the judgment. Greenleaf v. Minneapolis, etc. R. Co. (N. Dak.) 1917D-908. 3. Effect of Statute. An existing com- mon-law right of action is not taken away by statute, unless by direct enactment or necessary implication. King v. Viscoloid Company (Mass.) 1916D-1170. 4. Novel Cause of Action. That the ac- tion is novel, and there is no precedent, does not lead to a conclusion that there is no remedy for the alleged wrong. Fin- ley v. Atlantic Transport Co. (N. Y.) 1917D-726. 5. Moot Question. A case in which a party asks to have determined an abstract question which does not arise on existing facts, or involve conflicting rights so far as he is concerned, presents a moot in- quiry, which will not be considered. Sherod v. Aitchison (Ore.) 1916C-1151. 2. NATURE AND FORM OF ACTION. 6. Legal or Equitable. A complaint presenting an action at law is not changed by the fact that equitable defenses have been interposed or equitable rights sug- gested. Smith v. Barnes (Mont.) 1917D- 330. 7. Moot Case What Constitutes. A moot case is one which seeks to determine an abstract question, not resting upon ex- isting facts or rights, and such case will ACTIONS AND PROCEEDINGS. not be determined by the court merely to determine who is liable for costs. Postal Telegraph-Cable Co. v. Montgomery (Ala.) 1918B-554. (Annotated.) Note. What constitutes moot case. 1918B-558. 3. PENDENCY OF ACTION. 8. When Deemed Pending. An action is deemed to be pending at common law so long as a judgment remains unsatisfied. Sweetser v. Fox (Utah) 1916C-620. 4. JOINDER OF CAUSES OF ACTION. 9. Several Torts. It is improper to join in one declaration counts alleging joint torts by two defendants with counts alleg- ing several torts by each of them. Tan- ner v. Culpeper Construction Co. (Va.) 19L7E-794. 10. Actions Requiring Different Places of Trial. Under N. Y. Code Civ. Proc., 484, providing that two causes of action may be joined if it appears that they arose out of the same transaction, and do not require different places of trial, where a complaint alleged the destruction of a milling plant and personal property in the building and on the premises, there is a misjoinder, although the separate causes of action are not well stated, as it does not appear that they do not require dif- ferent places of trial. Jacobus v. Colgate (N. Y.) 1917E-39. 11. Consolidation of Causes. The refusal to compel an election between causes of action for false imprisonment and for damages for unlawfully shackling a convict laborer is not prejudicial, in view of Acts Ark. 1905, p. 798, providing that the court may consolidate causes of like nature when it appears reasonable to do so. Weigel v. McCloskey (Ark.) 1916C-503. 12. Bights Arising from Same Transac- tions. Under Hem. & Bal. Wash. Code, 296, subd. 8, permitting plaintiff to unite several causes of action in the same com- plaint when they arise out of the same transaction, a complaint alleging a cause of action upon a breach of contract and upon defendants' wrong in rendering per- formance by another party impossible, so as to prevent the earning of a commis- sion, from that party, is not demurrable on the ground that two causes of action are improperly joined. Lattlefield v. Bowen (Wash.) 1918B-177. 5. SPLITTING CAUSES OF ACTION. 13. Separate Actions on Note and Mort- gage. Under the express terms of Iowa Code, 3428, an action may be brought on a note alone without regard to the mort- gage given as security, and so an action may be brought on the mortgage alone, un- less either is prevented by stipulation in the note or mortgage; but under the ex- press terms of section 4288 when separate actions are brought on the note and mort- gage in the same county, the plaintiff must elect between them, and the other will be discontinued. Des Moines Savings Banks v. Arthur (Iowa) 1916C-498. 6. ABATEMENT AND REVIVAL. a. Criminal Prosecution Awaited. 14. Civil Action for Crime. Proceed- ings in a civil action based on a felony will be stayed until the offender has been prosecuted criminally. Smith v. Selwyii (Eng.) 1916C-844. (Annotated.) 15. Action on Judgment Effect of Right to Appeal from Judgment. When the purpose of an action is merely to en- force a judgment, the plea of another ac- tion pending cannot be interposed in the action upon the judgment merely because the time to appeal has not passed; the only plea available being that the judg- ment has been suspended by supersedeas bond. Sweetser v. Fox (Utah) 1916C-620. Note. Merger or suspension of civil action predicated on commission of felony. 1916C-847. b. Death of Party. 16. Death of Defendant. Pub. Acts Conn. 1903, c. 193, provides that no civil action shall abate by the death of any party, but may be continued by or against the administrator and Gen. St. 1902, 343, provides that no suit shall be brought, ex- cept as stated, against the executor of an insolvent estate in the course of settlement, and that no execution shall issue on any judgment rendered against the executor before the estate was represented insol- vent, and, if judgment has not then been rendered, the suit shall abate. Held that, where an action was brought against de- fendant in his lifetime, it might be con- tinued by scire facias against his executor or administrator, though the estate is represented insolvent, unless the action is wholly excepted from the operation of the act. Craig v. Wagner (Conn.) 1917A-160. 17. Substitution of Personal Represen- tative. Where, on defendant's death, plaintiff moved to have defendant's execu- trix made a party within the next term after her appointment, when objection was made and erroneously sustained that plaintiff could not proceed with scire facias because of the insolvency of decedent's estate, the delay in moving for a scire facias cannot be charged to plaintiff so as to preclude him from continuing the ac- tion by scire facias against the exect'trix. Craig v. Wagner (Conn.) 1917A-160. 10 DIGEST. 1916C 1918B. 18. The time within which plaintiff is required to bring in defendant's executrix should not run from defendant's death, but from the appointment of the execu- trix. Craig v. Wagner (Conn.) 1917A- 160. ACT OF GOD. Effect on delay, see Carriers of Goods, 4. Action of tides as vis major, see Ware- houses, 3. ACTUAL. Meaning, see Eminent Domain, 13. ACTUAL WASTE. Denned, see Waste, 1. AD DAMNUM CLAUSE. See Pleading, 9, 10. ADDITIONAL SECURITY. Taking, as waiver of right to lien, see Mechanics' Liens, 31, 33, 34, 38. Taking by mortgagee, effect, see Mort- gages and Deeds of Trust, 34. ADDITIONS TO STOCK. See Chattel Mortgages, 19-24. 3. Acquiescence In Unauthorized Con- struction. If an owner without authority builds a party wall on the adjoining prem- ises and the adjoining owner allows the construction to proceed without protest, he estops himself to complain of the trespass. Fowler T. Koehler (D. C.) 1916E-1161. 4. Contribution Toward Cost. A land- owner making use of a party wall erected by the adjoining owner is bound to con- tribute to the cost thereof though the wall was not erected under an agreement to contribute. Fowler v. Koehler (D. C.) 1916E-1161. (Annotated.) 5. A person who builds a party wall and then conveys the premises reserving in his deed the right to use the party wall, reserves thereby the personal right to recover contribution from an adjoining owner thereafter using the wall. Fowler v. Koehler (D. C.) 1916E-1161. (Annotated.) 6. Party Walls Establishment. There are but two ways in which a party wall can be established, by contract or by the force of a statute. Fowler v. Koehler (D. C.) 1916E-1161. Note. Liability of adjoining landowner for use of party wall in absence of agreement to contribute. 1916E-1165. ADJOINING LANDOWNERS. 1. Right to Lateral Support. 2. Party Walls. 3. Line Trees. 4. Improvement on Adjoining Land. 5. Action for Injury. 6. Damages. See Easements. Division fence, duty to maintain, see Fences, 1, 2. Rights in subterranean waters, see Waters and Watercourses, 30. Rights as to surface waters, see Waters and Watercourses, 34. 1. RIGHT TO LATERAL SUPPORT. 1. Deprivation of Subjacent Support. One mining under such a reservation is liable for failure to leave sufficient sup- port to prevent the strata overlying the coal from breaking or falling and thereby causing drying up of springs on the land, since this is a "surface" right. Stonegap Colliery Co. v. Hamilton (Va.) 1917E-60. 2. PARTY WALLS. 2. The erection of a party wall by one of two adjoining owners is not a taking of property for private use but amounts only to the establishment of an easement. Fowler v. Koehler (D. C.) 1916E-1161. 3. LINE TREES. 7. Overhanging Tree Right to Cut to Line. When the base of a tree is wholly on the land of one owner, the whole tree is his without reference to its ramifica- tions, the word "trunk" meaning the body of the tree at and above the surface of the soil; but where a tree stands wholly on the ground of one any part overhang- ing the land of an adjoining owner may be cut off by the latter at the division line, if done without a trespass; but the rule is different where the tree stands on a division line and is one in which both the adjoining landowners have an interest. Cobb v. Western Union Tel. Co. (Vt.) 1918B-1156. (Annotated.) 8. Trees Near Boundary Ownership. Where a person has planted hedge trees on her own land and cultivated and cared for them, they are her property; and, although they are growing near the boundary line of a neighbor, such neigh- bor has no property in them, and unless the trees are doing him an injury, he may be enjoined from meddling with them. Wideman v. Faivre (Kan.) 1918B-1168. (Annotated.) Note. Rights of adjoining landowners with respect to tree on or overhanging bound- ary line. 1918B-1157. ADJUSTMENT OF LOSS ADMIRALTY. 11 4. IMPROVEMENT ON ADJOINING LAND. 9. Excavation. Where one in improv- ing his own property fails to exercise the ordinary care, prudence, and skill reason- ably dictated by the situation and circum- stances as due for the protection of a building standing on an adjoining lot, and thereby injures the same, he is liable for the injury, whether caused by affecting the lateral support of the soil of the ad- joining lot or otherwise. Voeckler v. Stroehmann's Vienna Bakery (W. Va.) 1917A-350. (Annotated.) 10. Duty of Adjoining Owner to Protect His Property. In such case, the owner is required to do whatever is reasonably necessary to protect his property from in- jury and cannot permit the injury and then claim full damages, when he might hare prevented it or lessened its effect by a reasonable expenditure. Louisville, etc. R. Co. v. Jackson (Ark.) 1918A-604. 11. Though one in improving his own property employs therefor a competent architect and a skilled contractor, if the work remains under his control and the architect and the contractor merely repre- sent him as to the means of doing the same, he is not by their employment ab- solved from liability for injury to adjoin- ing property caused by failure to exercise care for its protection. Voeckler v. Stroehmann's Vienna Bakery (W. Va.) 1917A-350. (Annotated.) Note. Liability of landowner excavating on his own premises for resulting injury to adjoining building. 1917A-352. 5. ACTION FOR INJURY. 12. Evidence. Evidence that in that region it would be impossible, although mining according to usage and custom, to mine any coal without more or less of the overlying strata falling in, tending to dry up surface springs, was irrelevant. Stone- gap Colliery Co. v. Hamilton (Va.) 1917E- 60. 13. Jury Question. In trespass action for injury to surface soil by withdrawing proper supports in mining thereunder, whether the evidence sustained plaintiff's contention that such mining dried up springs in his land is held to be for the jury. Stonegap Colliery Co. v. Hamilton (Va.) 1917E-60. 6. DAMAGES. 14. Right of Purchaser as to Previous Damage. No recovery could be had for drying up of a spring, prior to the time of plaintiff's purchase of the land. Stonegap Colliery Co. v. Hamilton (Va.) 1917E-60. 15. Proof of Damage. In such action it is error to admit evidence of a crack in adjoining surface, where there was no evi- dence that the crack extends into plain- tiff's land or could have causal connection with the alleged injury. Stonegap Col- liery Co. v. Hamilton (Va.) 1917E-60. 16. Speculative Damages. In such, ac- tion the owner could not recover damages for decrease in the value of his land for residence and other purposes, upon testi- mony that the land was close enough to town to be subdivided for lots; such dam- age being too remote and speculative for jury consideration. Stonegap Colliery Co. v. Hamilton (Va.) 1917E-60. 17. Remote Damages. In an action for injury to surface by mining the plaintiff, owner of the surface of two tracts of land formerly constituting one tract, is not entitled to damages to one tract caused by the drying up of a spring on the other by such mining, although the ownership of the tracts had been so reunited in him before the injury; the drying up of the spring on the latter tract being the only damage the evidence tended to prove. Stonegap Colliery Co. v. Hamilton (Va.) 1917E-60. ADJUSTMENT OF LOSS. Penalty for failure to adjust, see Carriers of Goods, 7. ADMINISTRATION. Of trusts, see Trusts and Trustees, 34-36. ADMINISTRATOR DE BONIS NON. Collection of assets by, see Executors and Administrators, ADMINISTRATORS. See Executors and Administrators. ADMINISTRATOR WITH WELL ANNEXED. See Executors and Administrators, 20. ADMIRALTY. 1. Exclusiveness of Federal Authority. State legislation changing, modifying, or affecting the general maritime law which contravenes the essential purpose ex- pressed by an act of Congress, or works material prejudice to the characteristic features of such general maritime law, or interferes with the proper harmony or uniformity of that law in its international and interstate relations, is invalid as be- ing repugnant to U. S. Const., art. 3, 2 (9 Fed. St. Ann. 74), extending the judi- cial power of the United States to all 12 DIGEST. 1916C 1918B. cases of admiralty and maritime jurisdic- tion, U. S. Const., art. 1, 8 (8 Fed. St. Ann. 674), giving Congress power to make all laws necessary and proper to carry into execution the powers vested in the fed- eral government, and U. S. Judicial Code, 24, 256 (4 Ted. St. Ann. (2d ed.) 838; 5 Id. 921), giving the federal district courts exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it. Southern Pacific Co. v. Jensen (U. S.) 1917E-900. 2. Jurisdiction, Restoration of Illegal Prize. The admiralty courts of the United States have jurisdiction to order restitu- tion io the private owners of a vessel and cargo brought into a port of the United States by a prize crew of a belligerent nation, for the purpose of laying her up there indefinitely, in violation of the rights of the United States as a neutral. The Steamship Appam (U. S.) 1917D-442. 3. Effect of Decision of Foreign Prize Court. The institution in a prize court of the captor nation of proceedings for the condemnation as a prize of a vessel brought into a port of the United States by a prize crew, for the purpose of lay- ing her up there indefinitely, cannot oust the jurisdiction of an admiralty court of the United States to order restitution of the vessel and cargo to the private owners for such a violation of the rights of the United States as a neutral. The Steam- ship Appam (U. S.) 1917D-442. ADMISSIBIMTY OF EVIDENCE. See Evidence, 20-36. ADMISSIONS AND DECLARATIONS. 1. Self-serving Declarations, 12. 2. Admissions and Declarations Against Interest, 12. 3. Person by Whom Made, 12. a. Agents or Corporate Officers, 12. b. Grantor, 13. c. Deceased Persons, 13. d. Defendant in Criminal Case, 13. e. Statements of Principal to Surety, 13. 4. Manner of Making, 13. a. Admissions in Pleading, 13. b. Ees Gestae, 13. c. Dying Declarations, 14. d. Exculpatory Statements, 14. 5. Explaining and Contradicting Declara- tions, 14. Declarations of agent as binding princi- pal, see Agency, 20-24. Erroneous exclusion of evidence cured by admissions, see Appeal and Error, 277. Declarations as to ownership of car, see Automobiles, 41. Admission no bar to discovery, see Discov- ery, 4. Admissions as affecting judicial notice, see Evidence, 2. Of deceased, see Homicide, 36, 37, Dying declarations, see Homicide, 39. Declarations of co-defendant, see Homi- cide, 42. Declarations of third persons, see Homi- cide, 43-47. Of testator as affecting testamentary capacity, see Wills, 72-74. 1. SELF-SERVING DECLARATIONS. 1. Conversations had by the defendants with third parties were not admissible, as they were self-serving declarations. Ham- mett v. State (Okla.) 1916D-1148. (Annotated.) Declarations made by a defendant in his own favor, unless a part of the res gestae, or of a confession offered by the prosecu- tion, are not admissible for the defense. State v. Klasner (N. Mex.) 1917D-824. 3. In an action against a surgeon for amputating plaintiffs leg without her con- sent, evidence as to declarations by plain- tiff to another doctor about the amputa- tion, and what was said between them relative thereto, and whether the witness knew that defendant sent such doctor to tell plaintiff about her condition is prop- erly excluded, as statements made or things done in the absence of defendant and not brought to his knowledge can have no bearing on his exercise of due care and skill. Barfield v. South High- lands Infirmary (Ala.) 1916C-1097. 2. ADMISSIONS AND DECLARATIONS AGAINST INTEREST. 4. In a suit by a father to compel the admission of his children, who were ex- cluded from the white school as mixed bloods, evidence of declarations by the father that he had married a negress is admissible only to impeach his testimony that the children were white; he not being such a party in interest that his declara- tions would be substantive evidence as admissions against interest. Medlin v. County Board of Education (N. Car.) 1916E-300. (Annotated.) 3. PERSON BY WHOM MADE. a. Agents or Corporate Officers. 5. Acts and Declarations of Agent. The fact of agency cannot be shown by the mere acts and declarations of the alleged agent. First National Bank v. Bertoli (Vt.) 1917B-590. 6. Evidence Telephone Conversation Necessity of Identifying Speaker. A ADMISSIONS AND DECLARATIONS. 13 telephone conversation with a person claiming to represent a party cannot be received against the party unless the iden- titv and authority of 'the speaker are shown. Carroll v. Parry (D. C.) 1916E- 971. (Annotated.) 7. Declaration by Servant Admission of Negligence. Evidence that declarant was a foreman in charge of laborers en- gaged in handling lumber and piling it in the yard and dock does not show author- ity on his part to admit liability of his master, and it was error to admit evidence that, several days after the accident, he stated that it was his fault in that he did not warn the man. Marks v. Columbia County Lumber Co. (Ore.) 1917A-306. b. Grantor. 8. Declarations of Grantor as to Deliv- ery. Declarations of a grantor, made af- ter he has parted with his title and in disparagement of it, are inadmissible when made in the absence of the grantee. Williams v. Kidd (Cal.) 1916E-703. (Annotated.) c. Deceased Persons. 9. Declarations of deceased, made in a perfectly natural manner, on the evening of the homicide, that she was about to meet accused are admissible to show that what she intended to do was probably done, and did not violate Ore. L. O. L., 705 or 727, subd. 4, as to declarations, or any other Code section. State v. Farnam (Ore.) 1918A-318. (Annotated.) 10. Declaration of Deceased as to In- tention to Meet Defendant. Admission of testimony of a girl friend of deceased that she (deceased) had told her that she would stay home because accused was coming to see her that evening is not prejudicial, where without objection there remained in the record, upon answer to cross-examination, a statement of a state's witness that deceased had told some girls that she had received a letter from ac- cused, and could not go out with them be- cause accused was coming to see her that evening. State v. Farnam (Ore.) 1918A- 318. (Annotated.) d. Defendant in Criminal Case. 11. Admissions of Accused. Declara- tions by defendant, both before and after the commission of the homicide with which he is charged, tending to connect him with it, are admissible as evidence against him. Brindley v. State (Ala.) 1916E-177. 12. Declaration of Co-conspirator. On a trial for a conspiracy by milk dealers to raise the price, the testimony of a witness that he had heard defendants say, after the agreement to raise the price was signed, that they sold milk thereafter at the higher price agreed on is admissible. State v. Craft (N. Car.) 1917B-1013. e. Statements of Principal to Surety. 13. In an action against a widow on a note executed by her to pay the balance of a debt which she had incurred as surety to plaintiff for her husband since de- ceased, statements made by him not in the presence of any of the officers of plaintiff bank by way of inducement to secure the witness' signature to the origi- nal note with his wife are hearsay and not admissible on the theory that the hus- band was the bank's agent to secure the note from his wife. First National Bank v. Bertoli (Vt.) 1917B-590. 4. MANNER OF MAKING. a. Admissions in Pleading. 14. In such suit where there is no denial of the averment that a reasonable attor- ney's fee was in excess of $75, the ques- tion of reasonableness is settled by the admission of the pleadings. Samuels v. Ottinger (Cal.) 1916E-830. b. Res Gestae. 15. Declaration in Answer to Question. Declarations of plaintiff's intestate, when living with defendant, prompted by in- quiries of the overseer of the poor, that she was boarding with defendant, are not admissible on the issue of whether she was living with him under a contract for board or a contract for support, in con- sideration of her property, on which de- pended title to the property, they being mere narrative, and not arising naturally and spontaneously from the act of living there, so as to be part thereof and derive credit therefrom. Comstock's Adminis- trators v. Jacobs (Vt.) 1918A-465. 16. Subsequent Declarations in Delirium. Statements of deceased while in hospital suffering from delirium tremens some hours after alleged accident as to nature of accident are not admissible as res gestae, but are narratives of past events. Carroll v. Knickerbocker Ice Co. (N. Y.) 191SB-540. 17. Scope of Res Gestae Generally. The doctrine of res gestae, as applied to ex- clamations, should have its limits deter- mined, not by the strict meaning of the word "contemporaneous," but rather by the causal, logical, or psychological rela- tion of such exclamations with the pri- mary facts in controversy. State v. Lasecki (Ohio) 1916C-1182. 18. This doctrine applies equally to par- ticipants, bystanders and persons incom- petent to be witnesses. State v. Laseeki (Ohio) 1916C-1182. DIGEST. 1916C 1918B. 19. Declaration of Street Railway Em- ployee. The self-serving explanation of a street-car conductor as to how an accident happened, made after it occurred, is not res gestae and is inadmissible in an action for the death of a passenger. Froeming v. Stockton Electric R. Co. (Cal.) 1918B- 408. 20. Declaration of Bystander at Acci- dent. After the explosion of the locomo- tive boiler in question the conductor came forward and found the engineer dead and pulled the fireman, then uncon- scious, from the place where he lay, and about five minutes thereafter came back to him, whereupon the fireman regained consciousness and quickly stated to the conductor that the water glass showed about half full when the explosion oc- curred, gave his home address, and asked to have his overclothes taken off, as they were burning him. He appeared to be suffering. Held, that under the circum- stances his statement as to the water glass was competent as part of the res gestae in an action by the administrator of the engineer against the railroad com- pany. Denver v. Atchison, etc. R. Co. (Kan.) 1917A-1007. (Annotated.) c. Dying Declarations. 21. Foundation, To make statements of deceased admissible as a dying declara- tion, preliminary questions to her as to anticipation of death should not be put in a perfunctory manner, as merely formal and unimportant, but so as to make sure that she understands them. People v. Kane (N. Y.) 1916C-685. 22. Admissibility Expectation of Death. A declaration made by deceased after his attending physician had told him that he could not recover is not admissible, where there is -nothing to show that deceased understood that he was then about to die. Reeves v. State (Miss.) 1917A-1245. 23. Declaration Showing Malice and Re- vengeful Spirit. Dying declarations by deceased are not admissible, where they clearly show that he was actuated by malice and desired accused to be pun- ished, but only on the theory that the near approach of death frees the declar- ant from the ordinary motives for falsi- fication. Reeves v. State (Miss.) 1917A- 1245. (Annotated.) 24. Hope of Recovery. The rule, as to dying declarations, that it must be shown they were not made in answer to inter- rogatories calculated to lead deceased to make a particular statement, applies to the statements in regard to hope of recovery. People v. Kane (N. Y.) 1916C-685. Note. Admissibility of dying declaration as af- fected by malice or desire for revenge on part of declarant. 1917A-1247. d. Exculpatory Statements. 25. Exculpatory Statements of Accused Admissibility for Prosecution. State- ments made by a defendant, charged with homicide, subsequent to the commission of the offense, that he was not in the city where the homicide was committed, are admissible on behalf of the state in a prosecution, where defendant's witnesses testified that he was in the city where the homicide was committed, but at a different place in that city, since exculpatory state- ments are not confessions and need not be shown to have been voluntarily made. Mason v. State (Tex.) 1917D-1094. (Annotated.) Note. Admissibility of prior exculpatory state- ment by accused to contradict evidence given by him or on his behalf at trial. 1917B-1101. 5. EXPLAINING AND CONTRADICT- ING DECLARATIONS. 26. Receipt of Telegram Failure to Notify of Nonreceipt. Where a witness had testified to sending a cablegram to de- fendant, followed by a letter stating that he had sent the message, his testimony that he was never notified that the mes- sage was not received is relevant as tend- ing to show an admission by defendant of its receipt. Corry v. Sylvia Y Cia (Ala.) 1917E-1052. 27. Ante Mortem Statement. An ante mortem statement of a witness purporting to give what the plaintiff in a suit for damages for a personal injury said to him as to how she was injured, tending to con- tradict her testimony on the stand in the trial, is not competent evidence. Florida East Coast R. Co. v. Carter (Fla.) 1916E- 1299. ADMISSIONS IN PLEADINGS. See Pleading, 11, 12. ADMISSION TO THE BAR. See Attorneys, 3, 5. ADOPTION OF CHILDREN. 1. Proceedings. 2. Rights of Inheritance. a. By Adopted Child. b. From Adopted Child. 1. PROCEEDINGS. 1. Validity of Parol Adoption. The adoption of a child cannot be affected by parol; th6 only method of adoption being by petition to and decree of the court of common pleas, pursuant to Act May 4, 1855 (Pa. P. L. 431) 7, as re-enacted by Act May 19, 1SS7 (P. L. 125) 1, or by ADOPTION OF CHILDREN. 15 deed duly executed and recorded pursuant to Act April 2, 1872 (P. L. 31) 1. Ben- son v. Nicholas (Pa.) 1916D-1109. (Annotated.) 2. The courts of Mississippi are not re- quired to recognize rights flowing from the status of adoption created in Kentucky, with reference to the inheritance of land in Mississippi by children adopted in Ken- tucky; the laws of which state on the sub- ject are inconsistent with those of Missis- sippi governing the same matter. Fisber v. Browning (Miss.) 1917C-466. 3. Enforcement of Contract. Where plaintiff prayed only for specific perform- ance of a contract for adoption and not for damages for its breach, and sought to be allowed to participate in an estate as a distributee, the jurisdiction to determine the merits of her claim was vested exclu- sively in the orphans' court. Benson, v. Nicholas (Pa.) 1916D-1109. Note. Validity of contract or proceeding of adoption not made in conformity with statute. 1916D-1110. 2. BIGHTS OF INHEEITANCE. a. By Adopted Child. 4. What Law Governs Adoption in For- eign State. Since the descent of lands in Mississippi is governed by the laws of that state, under which an adopted child may not inherit from foster parents unless so specified in the petition for adoption, where a child was legally adopted in Ken- tucky, where she could inherit real prop- erty from her foster parents, under a peti- tion which did not give her such right in Mississippi, where her foster parents re- sided, she has no interest in the land of her foster father in Mississippi, which on his death without natural children de- scends to his widow. Fisher v. Browning (Miss.) 1917C-466. 5. Bight to Inherit from Foster Parent. An adopted child cannot take property by descent from its adoptive parents, except under Miss. Code 1906, 542, providing that an adopted child shall be entitled to all the benefits proposed by the petitioner to be granted and conferred in the petition for adoption. Fisher v. Browning (Miss.) 1917C-466. 6. Inheritance "by Adopted Child What Law Governs. Where a child was adopted in Kentucky, under whose laws it inherits land from its foster parent, and upon its decease in infancy without issue the land so inherited reverts to the next of kin of such foster parent, such inheritance rules do not violate the constitution or public policy of Mississippi, and will be applied to lands there situated. Brewer v. Brown- ing (Mass.) 1918B-1013. (Annotated.) b. From Adopted Child. 7. Inheritance from Adopted Child. Colo. Rev. St. 1908, 526, provides that after a decree of adoption the person adopted shall be entitled to inherit as if he had been the petitioner's child born in holy wedlock. Section 529 declares that the adopted child shall be to all intents and purposes the child and legal heir of the person adopting him, while section 7042 also declares that adopted children shall be legalized and entitled to inherit as legitimate children. Held, that an adopted child and his adopters do not, ex- cept in so far as provided by statute, as- sume the relation of parent and child, and where, after the death of the adopters, the adopted child died leaving no issue, his relatives by blood take in preference to the children of the adopting parents. Eussel v. Jordan (Colo.) 1916C-760. (Annotated.) 8. Property Derived from Foster Parents. Property inherited by an adopted child from its foster parents goes to it in fee, and on its death descends according to the law of descent and distribution to its blood relatives to the exclusion of the parents. Fisher v. Browning (Miss.) 1917C-466. (Annotated.) 9. Inheritance from Adopted Child. Decedent was duly adopted by his mother's sister, after his father had abandoned Ms family, under Laws N. Y. 1873, c. 830, providing that the adopted child should sustain the legal relation of a child, and which as amended by Laws N. Y. 1887, c. 703, gave the right of inheritance, previ- ously denied, and declared his "next of kin" to be the same as if he was the "legitimate child" of the person adopting him. After the death of his foster mother, leaving a brother and two sisters, deced- ent, while in defendant's employ, was killed, dying intestate and unmarried. N. Y. Code Civ. Proc., 1902-1905, pro- vides a recovery for wrongful death for the benefit of decedent's "next of kin," defined by reference to include all those entitled under the law relating to the dis- tribution of personal property. Domestic Relations Law (Consol. Laws, c. 14) 114, provides that a foster parent and an adopted minor child sustain the legal rela- tion of parent and child, with rights of in- heritance from eaoh other, extending to the child's heirs and "next of kin," as if he were the "legitimate child" of the person adopting him. Decedent Estate Law (Consol. Laws, c. 13) 98, subd. 7, pro- vides that the father of an adopted child, dying intestate, unmarried, and without children, takes all the unbequeathed as- sets. Held, that the law in force at de- cedent's death controlled; that the right of inheritance which passed to decedent's next of kin was not. merely the right to inherit from hia foster parent; that the 16 DIGEST. 1916C 1918B. term "legitimate child," used in the estab- lished meaning of a child born in lawful wedlock, made decedent the next of kin, as though the adopted parent were his nat- ural parent; and hence that the brother and sisters of his deceased adopted mother, and not his natural father, were the "next of kin" entitled to substantial damages. Carpenter v. Buffalo General Electric Co. (N. Y.) 1916C-754. (Annotated.) Notes. Eight of inheritance from adopted child as between natural parents and adoptive parents or their descendants. 1916C-757. Succession to estate inherited from fos- ter parent by adopted child who dies without issue. 1916C-762. ADULTERATION. See Food, 4, 5. ADULTERY. 1. Nature of Offense. 2. Indictment. 3. Defenses. Appointment of decedent's mistress as executrix, see Executors and Adminis- trators, 6. One act insufficient for alienation, see Hus- band and Wife, 55. Gist of action for criminal conversation, see Husband and Wife, 68. 1. NATURE OF OFFENSE. 1. Persons Capable of Committing. Un- der Vt. P. S. 5881, making adultery pun- ishable, and not defining the offense, except by referring to it by name, con- strued with reference to the common-law offense, and with reference to section 5882 making it adultery for an unmarried woman to commit an act with a married man which, would be adultery if she were married, a single man who has unlawful intercourse with a married woman is guilty of adultery. State v. Bigelow (Vt.) 1917A-702. . (Annotated.) 2. Necessity of Joint Criminal Intent. One party to an illicit intercourse may be guilty of adultery and the other innocent thereof; it not being essential to the com- mission of such offense that there be a joint' criminal intent. State y. Ayles (Ore.) 1916E-738. Note. Persons capable of committing crime of adultery. 1917A-703. 2. INDICTMENT. 3. An indictment for adultery need not allege that the prosecution was insti- tuted by the injured spouse, as required by Ore. L. O. L., 2072. State v. Ayles (Ore.) 1916E-738. 3. DEFENSES. 4. Connivance of Injured Spouse. That the husband of the woman connived with and abetted defendant in the commission. of the act of adultery constitutes no de- fense. State v. Ayles (Ore.) 1916E-738. (Annotated.) Note. Connivance or procurement by other spouse as defense to prosecution for adul- tery. 1916E-741. AD VALOREM TAX. Power of state to levy, see Taxation. 22. ADVANCEMENTS. See Liens, 1. Eeimbursement for, see Executors and Ad- ministrators, 53. 1. Meaning of Term. An "advance- ment" as defined by N. Dak. Rev. Codes 1905, 5197, 5199, 5200, does not involve an indebtedness. Stenson v. H. S. Halvor- son Co. (N. Dak.) 1916D-1289. 2. Right to Charge Estate. An adminis- trator with the will annexed, who paid only $618 of probated demands and re- ceived in cash twice that amount, who built a family dwelling house on the land, and advanced to the widow and children large sums of money, so that the money expended exceeded that received by $2,038, is not entitled to a judgment and a lien against the realty; since such expenditures were neither debts of the decedent nor ex- penses of administration authorizing the probate court or any court to order a sale of the land. Stuckey v. Stephens (Ark.) 1917A-133. (Annotated.) ADVERSE POSSESSION. 1. Necessary Elements, 17. a. Actual Possession, 17. b. Hostile Possession, 17. c. Continuous Possession, 18. d. Tacking Possession, 18. e. In Mining Property, 18. 2. What Constitutes Color of Title, J8. 3. Extent of Possession, 18. 4. Who may Acquire Title by Adverse Pos- session, 19. 5. Against Whom Title may be Acquired, 19- 6. Evidence, 19. a. Admissibility, 19. b. Sufficiency, 19. c. Questions of Law and Fact. 20. 7. Nature of Title Acquired, 20. 8. Purchase of Outstanding Title, 20. By bailee, see Bailment, 6. Of grantor of minerals as to access thereto, see Mines and Minerals, 3. ADVERSE POSSESSION. 17 Adverse user of street, see Streets and Highways, 21. As between cotenants, see Tenants in Com- mon, 6, 7. 1. NECESSARY ELEMENTS, a. Actual Possession. 1. What Constitutes Actual Possession. Before oue can acquire an actual posses- sion to land to which he has no title and to which he has only a color of title, he must enter upon the land with the inten- tion of holding it, and, if without color of title, must claim it to well marked and defined boundaries. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. 2. One entering under a deed, patent, or other written instrument evidencing title, with the intention of possessing the land to the extent of the boundaries described in his deeds, etc., is in the actual posses- sion to the extent of his boundary, or to the extent his boundary is not in the actual possession of another, or unless the boundary described in his color of title em- braces.a lap upon a senior grant, in which instance he will not be in the actual , possession of the part embraced in the con- flict unless he actually enters thereon. Tennis Coal Co. v. Sackett (Ky.) 1917E- 629. 3. Necessity of Actual Possession. A possession, which if continued for the statutory period of fifteen years will ripen into title, must in the first instance be ,an actual possession. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. 4. Where a grantee enters land to a part of which the vendor's title was valid and to a part of which it was invalid and cov- ered by another's valid title and occupies the part to which he has a good title, he does not have adverse possession of the part to which he has not a good ^itle, un- less he actually enters and subje'cts it to such use as will be notice to the true owner; though a different rule applies where his title to all the land embraced in the deed is invalid. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. 5. One owning and residing upon a tract who acquires an inferior title to an adjoin- ing tract, in which another has a con- structive possession, does not acquire an actual possession of the tract to which he holds a color of title, and before he obtains adverse possession of it he must enter and take physical possession of it. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. 6. Without . actual possession of some part of a tract of land, there can be no constructive possession of any part by one without title or one having a mere color of title under a deed, patent, etc., which makes an inferior title. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. 7. Scope of Possession "by Owner. One having the title to land and the actual possession thereof, and who acquires the title to contiguous tracts with the inten- tion of holding possession to the extent of the boundaries of all the tracts, is in the actual possession of all, as, having already the constructive possession by reason of his title, the law waives the necessity of an entry upon each of the newly acquired tracts, and the actual possession of the tract contiguous to them is extended over all of them by operation of law. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. b. Hostile Possession. 8. What Constitutes Hostile Possession. One without color of title may create an actual possession in himself, by construc- tion, to parts of a tract of land, by enter- ing thereon and using and occupying a part and claiming it to a well marked and de- fined boundary, which either already exists or which he places there, and he is then in actual possession of the part which he in- closes and uses, and in actual possession by construction to the extent of his bound- ary, unless the land is in the actual or constructive possession, of another, in which case his actual possession only ex- tends to his incloaures. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. 9. Necessity of Hostility. While an ad- verse title may be acquired through pos- session by a tenant, whether the claimant acts in person or through a tenant, he must show a disseisin and unequivocal assertion cf title in himself, and hence adverse pos- session of a portion of a street occupied by a fruit stand operated by complainant under a lease from the owner of the ad- joining property was not established in the absence of proof of notice of the adverse claim to the city. Pastorino v. Detroit (Mich.) 1916D-768. 10. Permissive Use. When such right of way is only an easement, occupation by inclosure and cultivation of a part of it by the owner of the servient estate, until it is needed for the operation of the rail- road, is presumed to be permissive and not adverse, and the statute of limitations will begin to run only from the time the railroad company has notice of the occu- pier's hostile claim. Dulin v. Ohio River 1?. Co. (W. Va.) 1916D-1183. 11. Mental Intention. Possession to create title does not consist of mental in- tentions but must be based on the exist- ence of physical facts, such as making an improvement upon the land or the doing of other acts upon it which openly evince a purpose to hold dominion over it in hos- tility to the title of the real owner, and such as will give notice of such hostile intent, which adverse holding must con- tinue for the statutory period of fifteen 18 years. Tennis Coal Co. v. Sackett 1917E-629. DIGEST. 1916C 1918B. (Ky.) fails. e. Continuous Possession. 12. Sufficiency of Adverse Possession. Adverse possession must be based upon some physical acts done upon the land which will give the true owner notice that another is in possession of his land, and the acts necessarily must be such as to en- able the owner to maintain an action of ejectment or trespass against the intruder. Tennis Coal Co. v. Sackett (Ky.) 1917E- 629. 13. Notoriety of Claim. One having an easement over the land of another cannot change the character of his right to an ad- verse holding of the land itself, unless he either gives the true owner actual notice, or his acts and declarations of a hostile claim are so open and notorious as to leave no doubt in the mind of the true owner; and the fact that one having an easement of way inclosed it, occasionally locked the gate and would not permit others to use it, and often allowed his stock to pasture on the way, is not sufficient to apprise the owner of the land that the owner of the easement is asserting a hostile title to the land itself. O'Banion v. Cunningham (Ky.) 1917A-1017. Note. What constitutes notice to railroad com- pany of adverse possession of its property. 1917A-1274. cL Tacking Possession. 14. "vyTien the grantee of an adverse pos- sessor takes possession, he may unite his subsequent possession with his grantor's prior possession to make out adverse posses- sion for the seven-year period. Northcut v. Church (Tenn.) 1918B-545. 15. Where the grantee of mineral rights of an adverse possessor takes immediate and appropriate possession thereof, he may unite his subsequent possession with his grantor's prior possession to make out statutory title by adverse possession. Northcut v. Church (Tenn.) 1918B-545. e. In Mining Property. 16. Under Ky. St. 2366a, providing that, whenever the mineral rights appur- tenant to land shall pass from a claimant in possession 'of the surface the continuity of the possession of such mineral rights shall not be broken, a vendor in possession of surface when he sells the minerals, by thereafter remaining in possession for the statutory period, gives the purchaser of the minerals a valid title; but if, before the statutory period expires, the vendor abandons the possession or is evicted by paramount title, the title of the purchaser Tennis Coal Co. v. Sackett (Ky.) 1917E-629. (Annotated.) 17. Plaintiff claiming title under a pat- ent should have recovered a tract not embraced by any other patent, unless de- fendant had title by adverse possession, or it was in the adverse possession of defendant's vendors when the deed to plaintiff from the patentee's devisees was executed. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. 18. Acts of possession required for the surface and those for the minerals are dif- ferent; the latter requiring some form of mining or activities directly related there- to. Northcut T. Church (Tenn.) 1918B- 545. 2. WHAT CONSTITUTES TITLE. COLOB OF 19. Deed of Life Tenant. In a suit to quiet title, where it appeared that the one under whom defendant claimed was in possession under a quitclaim deed from a life tenant until the life estate fell in, in 1896, and that the remaindermen were barred by the ten-year statute of limita- tions, complainant from that date having been in the adverse possession under claim of ownership, there is no title in defend- ant's predecessor superior to that of the complainant. Vidmer v. Lloyd (Ala.) 1917A-576. 20. In an action to quiet title against defendant, claiming under actual prior possession of one B. under color of title, complainant, who while in possession of the property knew that B. only had a deed from one claiming a life estate and could not convey good title, and who entered into a contract with B.'s husband, while his wife was alive, whereby he was to acquire a clear title and convey it to com- plainant, and who paid the full purchase price prior to B.'s death and received a deed from the surviving husband, has a perfect equity under such contract of pur- chase, and his possession begins to run against B. in her lifetime. Vidmer v. Lloyd (Ala.) 1917A-576. 3. EXTENT OF POSSESSION. 21. One having color of title may have an actual possession, by construction, to parts of a tract by entering thereon with the intention to take and hold possession to the extent of the boundaries of hia deed, etc., and is then in actual possession of the part which he occupies and in actual possession, by construction, of the remainder, when not in the possession of another. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. 22. Adverse Possession Under Overlap- ping Grants. Where a junior grant laps upon a senior grant, and although the ADVERSE POSSESSION. 19 senior patentee has never entered upon, any part of hia patent, and has only the constructive possession of it, which the law vests in him, and the junior patentee enters upon his grant, but without the lap, with the intention, of holding to the extent of his boundaries, he is not in the pos- session of the lap either actually or con- structively, because his possession of it would only be constructive and would not displace the senior patentee's constructive possession. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. 23. Separate Tracts. Generally, 'where title is claimed by adverse possession as to two separate pieces of land against the same claimant, an adverse holding of each must be made out by circumstances relat- ing to possession of each respectively, and possession of one will not extend con- structively to the other. John L. Boper Lumber Co. v. Eichmond Cedar Works (N. Car.) 1917B-992. 24. Constructive Possession of Owner. One having no actual possession of the land embraced within his deed, by a fiction of law, is in the constructive possession of all the land embraced therein whi&h is not in the actual possession of another. Tennis Coal Co. v. Sackett (Ky.) 1917E- 629. 4. WHO MAY ACQUIRE TITLE BY ADVERSE POSSESSION. 25. Necessity of Surrender of Leasehold. One who enters into possession of land as a tenant cannot, while retaining posses- sion, assert against hia lessor an after- acquired title, which he deems superior to that of the lessor. Lawrence v. Eller (N. Car.) 1917D-546. (Annotated.) 26. Hunting Club. It is not sufficient basis to support a claim of title by adverse possession to a tract of 27,000 acres, that the grantees in a deed of the right to hunt and fish thereon, have a clubhouse there- on, and two or three acres fenced, have successfully maintained a suit in the fed- eral court enjoining nonmembers from hunting and fishing there, and have keep- ers and wardens for ejecting nonmembers, and fishing and hunting equipments, and houses for employees, and have posted notices forbidding trespassing. Stokes v. State (Ark.) 1917D-657. 27. Person Precluded by Judgment from Asserting Title. During the fifteen years necessary to hold land in order to create a title by adverse possession, after an adverse judgment, although possession might be sufficient under the statute of limitations, one estopped by the judgment to deny the title of the owner has no such adverse possession as will make a sale and conveyance by the owner void as against the champerty statute. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. 5. AGAINST WHOM TITLE MAY BE ACQUIRED. 28. Eailroad Eight of Way. The doc- trine of adversary possession is applicable to land acquired by a railroad company for its right of way. Dulin v. Ohio River R. Co. (W. Va.) 1916D-1183. (Annotated.) 29. Grantee not Entitled to Possession. Neither limitations nor prescription may run against a grantee invested with an es- tate in fee, but not entitled to possession before the grantor's death, until after grantor's death. (Phillips v. Phillips (Ala.) 1916D-994. 30. What Will Divest Owner's Construc- tive Possession. Parties having construc- tive possession of lands embraced within certain patents could not be divested of such possession, except by an actual pos- session in fact, or by such acts as vested in another an actual possession by con- struction. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. Note. Acquisition of title- to land within right of way of railroad by adverse pos- session or prescription. 1916D-1186. 6. EVIDENCE, a. Admissibility. 31. Notice to Agent. Where by the rules of a railroad company, its station agent was under no duty to report en- croachments by abutting owners upon its right of way in a suit by the road to re- cover possession of part of its right of way encroached upon by defendant, evi- dence is inadmissible contradicting the agent's denial that he had requested de- fendant to move her fence off the right of way, and that defendant denied it was misplaced. Atlantic Coast Line R. Co. v. Dawes (S. Car.) 1917A-1272. (Annotated.) 32. Adverse User Notice Admissibility of Evidence. In an action by a railroad company to recover possession of land con- demned by it in which defendant claimed that the company had abandoned its ease- ment, a letter written by the company by a person acting for the then owner of the property offering it for sale to the company is admissible in connection with the company's reply asking for a sketch of the property to show notice to the company that a third party was then claiming the property. New York, etc. R. Co. v. C'ella (Conn.) 1917D-591. b. Sufficiency. 33. Evidence Insufficient. In a suit to establish ownership of various tracts of land conveyed to plaintiff by the devisees 20 DIGEST. 1916C 1918B. under the will of the original patentee, and to the coal and minerals thereunder, the evidence is held to be insufficient to show adverse possession in the vendors of de- fendant coal company. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. (Annotated.) e. Questions of Law and Fact. 34. Question for Jury. In a suit to es- tablish the ownership of a tract of land embraced in a patent under which plain- tiff claimed, it is held that the questions of the adverse possession of the defend- ant's vendors, and of champerty, were for the jury. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. 35. Instruction Improper. The charge of the court in respect to prescriptive title was an inaccurate statement of the law. Bunger v. Grimm (Ga.) 1916C-173. 7. NATURE OF TITLE ACQUIRED. 36. Acquirement of Title. The actual possession of land sued for by one, claim- ing it as his own, for about forty years, without recognition of any claim, right, or title of another, operates as an absolute repose under the doctrine of prescription. Vidmer v. Lloyd (Ala.) 1917A-576. 8. PURCHASE OF OUTSTANDING TITLE. 37. Effect. One in possession of land under color of title may purchase an out- standing title without thereby breaking the adverse nature of his holding under the first title, though the period for per- fecting title under the first holding has not expired. John L. Roper Lumber Co. v. Richmond Cedar Works (N. Car.) 1917B-992. (Annotated.) 38. Where plaintiff has held adversely for six and one-half years under color of title constituted by a deed from a stran- ger, he does not abandon or relinquish such holding or the right to complete title there- under by the purchase of an outstanding interest which was contended to be the interest of a tenant in common of defend- ants, where there is no intention by plain- tiff to abandon the color of title. John L. Roper Lumber Co. v. Richmond Cedar Works (N. Car.) 1917B-99-2. (Annotated.) ADVERTISING. Misnomer in sheriff's advertisement, effect, see Judicial Sales, 1. Use of walls by tenant, see Landlord and Tenant, 11. Of city contracts, see Municipal Corpora- tions, 130. 1. Validity of Regulations. The erection of any billboard or signboard over twelve square feet in area in any block in which one-half of the buildings on both sides of the street are used exclusively for residence purposes, without first obtaining the writ- ten consent of the owners of a majority of the frontage on both sides of the street in such, block, may be prohibited in the exer- cise of the state's police power, and such prohibition works no denial to a corpora- tion engaged in outdoor advertising of either the due process of law or equal pro- tection of the laws guaranteed by the 14th Amendment to the Federal Constitution (9 Fed. Si. Ann* 416, 538). Thomas Cusack Co. v. Chicago (U. S.) 1917C-594. (Annotated.) 2. A municipal ordinance passed under authority delegated by the state legislature to regulate or control the construction and maintenance of billboards is a valid exer- cise of the police power unless it is clearly unreasonable and arbitrary. Thomas Cu- sack Co. v. Chicago (U. S.) 1917C-594. (Annotated.) 3. An ordinance requiring the consent of the majority of residence owners accord- ing to frontage to the erection of a bill- board in a residence block is not unrea- sonable because it requires the consent of a majority of the owners of property on both sides of the street where the bill- board is to be erected. Thomas Cusack Co. v. Chicago (111.) 1916C-488. . (Annotated.) 4. An ordinance requiring the consent of the majority of residence owners accord- ing to frontage to the erection of a bill- board in a residence block is not unreason- able in view of the liability of fire, the liability of a use by disorderly persons for unlawful and immoral purposes, and the difference between fire and police pro- tection in residence districts and other districts. Thomas Cusack Co. v. Chicago (111.) 1916C-488. (Annotated.) 5. An ordinance requiring the consent of residence owners to the erection of a bill- board in a residence block is not discrim- inatory in that there is no difference be- tween fences, buildings, and billboards. Thomas Cusack Co. v. Chicago (111.) 1916C- 488. . (Annotated.) 6. A city has power to enact an ordi- nance requiring the consent of a majority of the residence owners to the erection of a billboard in a residence block, under Kurd's 111. Civ. St. 1913, c. 24, 696, giving cities power to regulate the location of billboards, etc., upon vacant property and upon buildings. Thomas Cusack Co. v. Chicago (111.) 1916C-488. (Annotated.) 7. On a question of the reasonableness of a city ordinance requiring the consent of the majority of the residence owners in accordance with frontage, evidence tending to show that the erection of bill- boards is productive of fire, and that resi- dence districts are not so well protected ADVICE OF COUNSEL AGENCY. 21 as the business district, is admissible. Thomas Cusack Go. v. Chicago (111.) 1916C- 488. (Annotated.) 8. On the question of the reasonable- ness of a city ordinance requiring the con- sent of residence owners as a condition to the erection of a billboard in a resi- dence block, evidence that such boards offered a protection to disorderly and law- breaking persons, and that residence dis- tricts were not so well policed as other dis- tricts, is admissible. Thomas Cusack Co. v. Chicago (111.) 1916C-488. (Annotated.) Note. Municipal regulation, of billboards and signs. 1916C-491. ADVICE OF COUNSEL. As establishing probable cause, see Malicious Prosecution, 11-13. ADVISORY OPINIONS. See Courts, 3d. As precedents, see Stare Decisis, 11. AFFIDAVIT OF DEFENSE. See Pleading, 23. AFFIDAVITS. Bill of exceptions to include affidavits, see Appeal and Error, 63. Verification of indictment, see Indictments and Informations, 3, 7. Verification of juvenile court complaint, see Infants, 28. Of jurors to show misconduct, see Jury, 41, 42. Verification of removal petition, see Jus- tices of the Peace, 3. In notice of claim of lien, see Mechanics' Liens, 28. Sufficiency on motion for new trial, see New Trial, 20, 23, 31-34. Verification of pleadings, see Pleading, 107. On motion for change of venue, see Venue, 6. Of jurors to impeach verdict, see Verdicts, 13. 1. Under Ore. L. O. L., 829, requiring a witness in all affidavits to speak in the first person, an affidavit by V. charging that he has missed cattle, that S. has now beef in his or his family's possession, and that "I, V., believe his animals" have been butchered and the beef, etc., may be found on the premises of S. does not s'tate any offense known to the law. Smith v. McDuffee (Ore.) 1916D-947. AGE. Competency of witness to testify to, see Witnesses, 2. AGENCY. 1. Creation and Existence of Relation, 22. a. Evidence, 22. b. Termination of Relation, 22. 2. Rights and Liabilities Inter Se, 22. a. Principal to Agent, 22. (1) Damages for Breach of Con- tract, 22. (2) Reimbursement of Agent, 22. (3) Compensation of Agent, 22. b. Del Credere Agents, 22. c. Purchase of Property for Principal by Agent, 22. 3. Rights, Duties, and 'Liabilities as to Third Persons, 23. a. Authority of Agent in General, 23. (1) Duty to Ascertain Extent of Agent's Authority, 23. (2) Implied Authority, 23. (3) Authority to Employ Others, 23. (4) Estoppel to Deny Authority, 23. b. Evidence of Authority, 23. C. Liability of Principal for Unau- thorized or "Wrongful Acts of Agent, 24. d. Ratification of Act of Agent, 24. (1) By Accepting Benefits, 24. (2) Evidence, 24. (3) Question for Jury, 24. e. Undisclosed Agency, 24. f. Notice to Agent as Notice to Prin- cipal, 25. g. Limitations Known to Third Party 25. See Attorneys. Proof of agency, see Admissions and Dec- larations, 5-7. Authority of auctioneer, see Auctions and Auctioneers, 2. Liability for chauffeur's acts, see Automo- biles, 23, 32-35. Only principal liable for concealment of assets, see Bankruptcy, 32. Bank not agent of depositor, see Banks and Banking, 26. Authority to find buyer not authority to sell, see Brokers, 2. Depositary agent of both parties, see Escrow, 5. Authority to answer letter, presumed, see Evidence, 145%. Agent's right to insure his own property, see Fire Insurance, 2, 3. Authority to sell land, see Frauds. Statute of, 12. Insurance agents, see Insurance, 1-8. Withdrawal of joint principal after cre- ation of agency, see Joint Adventures, 5. Sufficiency of designation of agency, see Landlord and Tenant, 47. Tenant as agent of owner in making im- provements, see Mechanics' Liens, 3-8. 22 DIGEST. 1916C 1918B. 1. CREATION AND EXISTENCE OF . Note. EELATION. Illegal contracts as to compensation by a. Evidence. agents of vendor or vendee. 1917A-511. 1. Sufficiency. Agency and consequent liability for negligence may be found from the evidence as a whole and facts and cir- cumstances, notwithstanding the categor- ical answers to the contrary of the alleged principal and agent, the only witnesses on the issue. Eosenberg v. Dahl (Ky.) 1916E- 1110. 2. Ownership of Bank Deposit. In gar- nishment proceedings against a bank, the evidence is held to warrant a finding that the judgment debtor held the funds in the bank as agent of the intervener in the proceedings. Home Land, etc. Co. v. Kouth (Ark.) 1917C-1143. b. Termination of Eolation. 3. Death of Principal. Where, though a lease was signed by the lessor before her death, it was not delivered to nor signed by the lessee during the lessor's lifetime, being in the hands of her agent at her death for that purpose, it cannot be deliv- ered by the agent after her death, since her death revoked the agency. Streit v. Wilkerson (Ala.) 1917E-378. (Annotated.) Note. Eervocation of agency by death of prin- cipal. 1917E-380. 2. EIGHTS AND LIABILITIES INTER SE. a. Principal to Agent. (1) Damages for Breach of Contract. 4. Recovery for Loss of Profits. In an action for the breach of a contract, in which plaintiff acted as sales agent for defendant's automobiles on commission, but which gave no exclusive agency for a defi- nite period, the profits derived by the plaintiff from such sales were clearly con- templated by the parties; but where the only proof of damage was that defendant discharged plaintiff before he could con- summate Bales to his prospective custom- ers, and there was nothing to show that sales were made or could have been made to more than four customers, a verdict for plaintiff for commissions on the amount of sales to all the prospective customers is properly set aside by the trial court. Mc- Ginnis v. Studebaker Corporation (Ore.) 1917B-1190. (Annotated.) 5. Alleged loss of opportunity to sell to prospective purchasers listed by plaintiff is held to be the pith of his complaint for termination of his employment to sell de- fendant's automobiles on commission. Me- Ginnis v. Studebaker Corporation (Ore.) 1917B-1190. (Annotated.) (2) Eeimbursement of Agent. 6. That the traveling expenses of a salesman are incidental to the work for which he is employed does not bring the incurring of such expenses on the prin- cipal's credit within the scope of the sales- man's apparent authority. Oxweld Acety- lene Co. v. Hughes (Md.) 1917C-837. (Annotated.) 7. Evidence in an action against a com- pany, engaged in manufacturing and sell- ing lighting equipments, for the amount of bills contracted by its salesman, is held to be insufficient to show that the com- pany had recognized the salesman's right to impose on it any liability for his ex- penses. Oxweld Acetylene Co. v. Hughes (Md.) 1917C-837. (Annotated.) Note. Power of agent to bind principal for traveling expenses. 1917C-840. (3) Compensation of Agent. 8. Sale of Land by Person not Broker Measure of Compensation. Where one not engaged in the real estate business is em- ployed to procure a purchaser of real estate without any agreement as to the commis- sion to be paid, a recovery for procuring a purchaser must be limited to the fair value of the services, but in determining that fact the amount customarily charged by real estate agents in the neighborhood can be considered, but it cannot be made a governing factor. Morehouse v. Shepard (Mich.) 1916E-305. (Annotated.) Note. Amount of compensation of person other than real estate broker for effecting sale of land where contract fails to fix com- pensation. 1916E-306. b. Del Credere Agents. 9. Liability to Principal. A del credere agent, though he sells to an undisclosed buyer, is liable to his principal only as a guarantor for the buyer and is not subject to an action by the principal to litigate disputes arising on the contract of sale. Gabriel v. Churchill (Eng.) 1916C-1087. (Annotated.) Note. Nature and extent of liability of del credere agent to principal. 1916C-1091. c. Purchase of Property for Principal by Agent. 10. Proceeds of Property Charged With Trust. Where a party furnished the pur- AGENCY. 23 chase price of land to his agent, title being taken in such agent's name for convenience under agreement that when the land was sold the proceeds should belong to the principal, such proceeds, though deposited by the agent in bank in his own name, belong to the principal. Home Land, etc. Co. v. Kouth (Ark.) 1917C-1143. 3. RIGHTS, DUTIES, AND LIABIL- ITIES AS TO THIRD PERSONS. a. Authority of Agent in General. (1) Duty to Ascertain Extent of Agent's Authority. 11. Parties dealing with an agent assum- ing to have authority to sell land are put upon inquiry to ascertain the extent of his authority. Springer v. City Bank, etc. Co. (Colo.) 1917A-520. (2) Implied Authority. 12. Employing Physician for Injured Servant. As a general rule, the superin- tendent of a mercantile corporation has no implied authority to engage a physician to attend an employee of the corporation injured while at work. Ward v. ,T. Sam- uels & Bro. (R. I.) 1918A-783. (Annotated.) 13. Proof of Implied Authority. In a suit to determine an adverse interest in realty, evidence held sufficient to show that the owner of land knowingly permitted in- tending purchasers to believe that the printed plat thereof shown to them by his agent had been duly recorded, and also that he held out such agent as his general agent in negotiating sales. Nicholas v. Title, etc. Co. (Ore.) 1917A-1049. 14. Holding Out. The authority of an agent to bind his principal in contracts with a third party is measured, not only by the agent's express delegation of power, but also that which he is held out by the principal as possessing, provided the third party had reason to believe and did believe the agent was acting within his authority, and such party would sus- tain a loss if the contract were not bind- ing upon the principal. Nicholas v. Title, etc. Co. (Ore.) 1917A-1149. 15. Apparent Authority of Agent. The liability of a principal for debts incurred by his agent is determined, not merely by what was the apparent authority of the agent, but by what authority the per- son extending the credit was justified in the exercise of reasonable care and pru- dence, in believing that the principal had conferred on the agent. Oxweld Acety- lene Co. v. Hughes (Md.) 1917C-837. 16. Implied Power of Agent Binding Principal for Traveling Expenses. In an action against a company, engaged in the manufacture and sale of acetylene light- ing equipments, for meals, lodging, and automobile service furnished to the com- pany's salesman, plaintiffs testimony that the salesman had assured him that the company would pay such bills, and that another salesman of the company had told him that the company paid the traveling expenses of its agents, is inadmissible; it being essential that the liability of a prin- cipal for a debt contracted by a special agent beyond the scope of his authority be sustained, if at all, on the basis of the principal's conduct, and not merely on the agent's misrepresentations. Oxweld Acet- ylene Co. v. Hughes (Md.) 1917C-837. (Annotated.) Note. Implied authority of officers, agents, or servants to contract for medical, surgical, or other attendance or supplies for sick or injured persons. 1918A-791. (3) Authority to Employ Others. 17. Amusement Contracts Power of Theatrical Manager Making Written Contract. The act of reducing a contract of employment to writing is within the apparent authority of the general man- ager of a theatrical enterprise. Ferguson v. Majestic Amusement Co. (N. Car.) 1917C-389. (Annotated.) (4) Estoppel to Deny Authority. 18. Estoppel of Principal. Where a person by words or conduct represents or permits it to be represented that another person is his agent, he will be estopped to deny the agency as against third per- sons who have dealt, on the faith of such representation, with the person held out as an agent. Ferguson v. Majestic Amusement Co. (N. Car.) 1917C-389. b. Evidence of Authority. 19. Burden of Proof. A petition in the usual form by the indorsee of a negotiable note bearing the purported indorsement of the payee, "By J. D. M., Agt.," was answered by a verified de- nial that such note was not sold and delivered by the payee company or any one for it with authority so to do. Held, that the burden of proof was upon the plaintiff to establish authority in the agent to make the indorsement. First National Bank v. Robinson (Kan.) 1916D- 286. 20. Declarations of Agent Scope of Agency. Where by the rules of plaintiff railroad company, its roadmaster's duties were limited to ascertaining the boundary lines of the company's property and re- porting encroachments thereon, evidence that he had been asked by defendant's agent to fill a certain hole, and that he had replied that it was not on the rail- road's right of way, but on her own prop- erty, is inadmissible on behalf of defendant in a suit by the railroad to establish title to such part of the right of way, a prin- cipal not being bound by the declaration of the agent without authority in the premises. Atlantic Coast Line B. Co. T. Dawes (S. Car.) 1917A-1272. 21. Purchase by Agent from Principal. The mere, fact that a company selling auto- mobiles buys them of the producer does not prove that he is not the producer's sales agent. Studebaker Corp. v. Hanson (Wyo.) 1917E-557. (Annotated.) 22. Automobile Dealer as Agent of Manufacturer. Evidence in an action in- volving the question of liability for breach of warranty in the sale of an automobile to defendant is held to be sufficient to sus- tain a finding that the company which made the sale, instead of being a dealer in automobiles, and, as such, making the sale, was a sales agent of the producer, of which plaintiff was the successor, and, as such, made the sale. Studebaker Corpo- ration v. Hanson (Wyo.) 1917E-557. (Annotated.) 23. Proof of Agency Declarations of Alleged Agent. It is not an attempt to prove agency by declarations of the agents, where sufficient independent cir- cumstantial evidence is introduced for that purpose, and their declarations introduced are confined to admissions of a defective condition of an article. Studebaker Cor- poration v. Hanson (Wyo.) 1917E-557. 24. Admission of one's declaration of agency was harmless, there being sufficient independent proof thereof, and no attempt to disprove it. Studebaker Corporation v. Hanson (Wyo.) 1917E-557. Note. Nature and construction of automobile sales agency contracts. 1917E568. c. Liability of Principal for Unauthorized or Wrongful Acts of Agent. 25. Contract of Agent Responsibility of Principal. Where money is left by a prin- cipal with an agent to be loaned, and the agent takes usury, but without the knowl- edge of the principal or her receiving any fruits of the transaction, the principal is not chargeable with the effects of the agent's misconduct. Brown v. Johnson (Utah) 1916C-321. (Annotated.) 26. The rule that when a creditor accepts the obligation of an agent he cannot there- after pursue the principal rests on the assumption that credit has been given to the agent, and hence does not apply where no such credit was given and the principal used the agent's name to represent its own contract and evidence its own liability. Dexter Horton Nat. Bank v. Seattle Home- eeekers' Co. (Wash.) 1917A-685. (Annotated.) DIGEST. 1916C 1918B. Note. Act of agent in entering into usurious contract as binding principal. 191GC-327. d. Ratification of Act of Agent. (1) By Accepting Benefits. 27. A mercantile corporation, although its superintendent is without actual au- thority to engage a physician to attend an employee injured while at work, may have so represented such agent's authority, by payment for previous like services, so as to ha*ve estopped itself to disavow the act. Ward v. J. Samuels & Bro. (E. I.) 1918A-783. (2) Evidence. 28. In an action by a physician against a corporation for his attendance on an in- jured employee, the evidence is held to be sufficient to justify a finding that the act of the superintendent in engaging such physician had been ratified. Ward v. J. Samuels & Bro. (K. I.) 1918A-783. 29. In an action by a physician against a corporation for his services in attending an injured employee, the evidence is held to be sufficient to justify a finding that such employer was liable by estoppel to deny its superintendent's authority to hire. Ward v. J. Samuels & Bro. (E. I.) 1918A- 783. (3) Question for Jury. 30. Ratification or Estoppel. Whether the unauthorized act of the superintendent of a mercantile corporation in engaging a physician to attend an employee injured while at work has been ratified by the em- ployer, is a question of fact. Ward v. J. Samuels & Bro. (E. I.) 1918A-783. e. Undisclosed Agency. 31. Election. Where a person, without knowing it, deals with one who is in fact acting as agent for another, he may elect, upon a disclosure of the principal, to hold either him or the agent on the contract, but cannot hold both. Horton v. Southern B. Co. (N. Car.) 1918A-824. 32. An election, by one dealing with the agent of an undisclosed principal, to hold either the principal or agent, may appear, by any words or acts on his part tending to show a definite purpose or an unequivocal and final determination, to depend solely upon the liability of one and abandon his right to proceed against the other. Hor- ton v. Southern K. Co. (N. Car.) 1918A- 824. 33. Undisclosed Principal Right of Agent to Sue in .Own Name. Plain- tiff, who contracted for the benefit of a telephone company, agreed with defend- ant to purchase and furnish the necessary materials for the construction of sixteen sections of telephone. Plaintiff ordered AGREEMENTS AGRICULTURE. 25 the materials, and paid for them himself, not disclosing to defendant the fact of his agency. Held, that plaintiff, who had an interest in the contract besides his pay- ment for the materials, it appearing that he was to receive compensation for erect- ing the line, might maintain an action on the contract for defendant's breach in his own name, his principal being undisclosed, notwithstanding the general rule that only a principal may sue upon a contract. Camp v. Barber (Vt.) 1917A-451. (Annotated.) 34. Rights in Warranty to Agent. A warranty on which sale is made to one in fact acting as agent inures to the benefit of the undisclosed principal. Pacific Power, etc. Co. v. White (Wash.) 1918B- 125. (Annotated.) Note. Warranty to agent as inuring to benefit of undisclosed principal. 1918B-130. Eight of agent of undisclosed principal to sue on contract made in his own name. 1917A-454. f . Notice to Agent as Notice to Principal. 35. Agent Acting in Hostility to Prin- cipal. The knowledge of an agent is im- puted to his principal, in the absence of actual knowledge by the principal upon the presumption that the agent will divulge his knowledge to his principal; but, when the agent is engaged in a transaction where his interests are hostile to those of his princi- pal, or is trying to defraud the principal, it will not be presumed that he has communi- cated his knowledge to his principal, and hence the principal is not charged there- with. Taulbee v. Hargis (Ky.) 1918A-762. 36. Where the superintendent of a mer- cantile corporation knew that plaintiff physician was treating an injured em- ployee and intending to continue such treatment as long as required, and would regard the treatment as rendered on ac- count of the employer, and to be charged to it, such notice to the superintendent be- ing imputable to the employer, to escape liability for such medical services, it is necessary for the employer to notify the plaintiff it will not pay for complete treat- ment, and that its superintendent's author- ity has been limited to securing first aid to the injured. Ward v. J. Samuels & Bro. (K. I.) 1918A-783. 37. In an action by a physician against a corporation for attendance on an injured employee, where the superintendent of the defendant is empowered to attend em- ployees and to engage physicians for their treatment to a limited extent, at least, notice to such superintendent of the con- duct and claims of a physician employed by him is notice to the defendant. Ward v. J. Samuels & Bro. (E. I.) 1918A-783. 38. Knowledge of Agent Imputed to Principal. Where a widow had dower as- signed to her in certain land of her de- ceased husband, if the person who was the administrator upon the estate, was also the agent of the widow, and, while acting within the scope of his authority as such, he took advantage of his position as ad- ministrator to obtain fraudulently from the court of ordinary an order for the sale of land, including the land in which a dower had been granted, and as to which there was a reversionary interest in the heirs, without any necessity so to do in order to pay debts, but for the purpose of getting rid of the interest of the other heirs and vesting the entire title in the dowress, and carried this purpose into effect, the fact that the same person who was the agent of the dowress was also the administrator of the estate would not pre- vent application of the ordinary rule that a principal is bound by the knowledge of his agent while acting within the scope of his authority; nor would the fact that as administrator he gave a bond for the proper performance of his official duties have that result. (a) The charges complained of in the eighteenth, nineteenth, and twentieth grounds of the motion for a new trial were not absolutely accurate in expression. Sutton v. Ford (Ga.) 191SA-106. 39. Presumption. In an action for wrongful discharge of a company of actors without two weeks' notice provided for in the written contract of employment made by defendant's general manager, defendant is presumed by law to have knowledge of the contract under which the plaintiffs were playing at his theater. Ferguson v. Majestic Amusement Co. (N. Car.) 1917C- 389. 40. Agent Acting Contrary to Instruc- tions. Where an employee was acting solely in his own interest and contrary to the interests of plaintiff, for whom he was agent, as well as defendant, in whose ser- vice he was, defendant is not charged with knowledge of the employee's wrongful acts. Carlisle v. Norris (N. Y.) 1917A-429. g. Limitations Known to Third Party. 41. Act in Excess of Authority. One who deals with an agent assuming to act for his principal, and who knows the limitations of the agency, cannot bind the principal by any act in excess of such authority. Salene v. Queen City Fire Ins. Co. (Ore.) 1916D-1276. AGREEMENTS. See Contracts. AGRICULTURE. 1. In General, 26. 2. Farm Loan Act, 26. 3. Pure Seed Law, 27. Impracticability of labeling, judicial no- tice of, see Evidence, 19. 26 DIGEST. 1916C 1918B. 1. IN GENERAL. 1. Burns Ind. Ann. St. 1908, 5524, 5525, requiring railroads to remove noxious weeds on lands occupied by them, and pro- viding' that, on the refusal of any railroad BO to do, it shall be liable to a penalty of $25, prosecuted for in action of debt by any person feeling himself aggrieved, im- poses a penalty for a violation of a statu- tory duty, and a company is not deprived of its property without due process of law and without compensation, in violation of Const, art. 1, 21, and Const. U. S. Amend- 14, when the penalty is recovered by a pri- vate individual who has suffered no dam- ages. Chicago, etc. B. Co. v. Anderson (Ind.) 1917A-182. (Annotated.) 2. The proposition that, though all the orange groves in the state may, in the meanwhile, be destroyed by citrus canker, defendant should be allowed t maintain that disease in his grove, upon the chance that he may discover, and until he does discover, a remedy for it which may be less drastic than the burning of the trees, is untenable. The owners of the other groves are entitled to protection now be- fore the destruction emanating from de- fendant's place overtakes their groves. Louisiana State Board v. Tanzmann (La.) 1917E-217. (Annotated.) 3. Destruction of Diseased Fruit Trees. The destruction by legislative authority of orange trees affected by a disease for which no cure has been discovered and which is highly contagious and infectious is not a taking of private property for a public purpose without previous adequate compensation, nor a taking of such prop- erty without due process of law, but is a competent exercise of the police power of the state. Louisiana State Board v. Tanzmann (La.) 1917E-217. (Annotated.) 4. Noxious Weeds. A complaint for the statutory penalty for the failure of a rail- road to cut noxious weeds on its property, as required by Burns Ind. Ann. St. 1908, 5524, 5525, need not aver that any actual damages have been sustained by plaintiff. Chicago, etc. B. Co. v. Anderson (Ind.) 1917A-182. (Annotated.) Notes. Duty of owner to destroy noxious weeds on his land. 1917A-183. Validity of statute providing for de- struction of diseased fruit trees, fruit or vegetables. 1917E-220. 2. FARM LOAN ACT. 5. Attack on Statute. A citizen and taxpayer suing to enjoin the state treas- urer from issuing bonds under the Mont. Farm Loan Act (Laws 1915, c. 28) may not complain of references in the bonds to a guaranty fund, since such references can have no effect prejudicial to him, or of the invalid exemption of mortgages thereunder from the recording fee, when he cannot be affected thereby. Hill v. Bae (Mont.) 1917E-210. 6. Validity. Mont. Farm Loan Act (Laws 1915, c. 28), creating a department of farm loans to formulate and receive application for loans on farm property, to require and pass upon proof of title, to formulate all mortgages securing such loans, to issue and offer for sale the bonds intended as evi- dence of such loans, and to collect all loans and pay the bonds as they mature, prescribing the character of farm property and the form of the bond, and appropri- ating a sum for administrative purposes and for a guaranty of the bonds, though excluding farmers having only chattel security or no security from its provisions, is not unconstitutional as a denial of the equal protection of the laws. Hill v. Rae (Mont.) 1917E-210. (Annotated.) 7. Mont. Const, art. 12, 12, forbidding appropriations for a longer term than two years, operates as an automatic limit, so that an appropriation under the Mont. Farm Loan Act (Laws 1915, c. 28), if other- wise valid, and though not limited as to time, will expire at the end of two years, and is not void ab initio. Hill v. Rae (Mont.) 1917E-210. (Annotated.) 8. Mont. Farm Loan Act (Laws 1915, c. 28), creating a deparment of farm loans, and incidentally making an appropriation for administrative expenses and as a guar- anty of the bonds evidencing the loans, does not violate Const, art. 5, 33, pro- viding that appropriations other than for the ordinary expenses of the legislative and other departments, etc., shall be by separate bills each embracing but one sub- ject, since, while it applies when the ap- propriation constitutes the entire purpose, it does not apply if the appropriation is incidental to a larger, though single, sub- ject of legislation. Hill v. Eae (Mont.) 1917E-210. (Annotated.) 9. Mont. Farm Loan Act (Laws 1915, c. 28), which appropriated the sum of $25,000, $5,000 of which was to start the administration of the department of farm loans created by the act, and the remainder of which was to serve as a guaranty fund to assure lenders on mortgage security that the interest on the bonds evidencing the loans would be promptly met, whether the mortgagors had made their payment or not, as to such guaranty, is an appropriation and a credit assurance, which, though the purposes of the Farm Loan Act falls fairly within the term "industrial," violated Mont. Const, art. 5, 35, forbidding appro- priations for industrial purposes to any person not under the absolute control of the state, and art. 13, 1, declaring that the state shall not give or loan its credit, and the fact that the guaranty fund was to be AIDER AND ABETTOR ALIENS. 27 recouped as used did not save it, because, whether used or not, it stands as a guar- anty for the benefit of lenders under the act. Hill v. Rae (Mont.) 1917E-210. (Annotated.) 10. Loan of Public Funds. A citizen and taxpayer of a county may sue to en- join the state treasurer from issuing, nego- tiating, or selling bonds pursuant to Laws Mont. 1915, c. 28, commonly called the Mont. Farm Loan Act, on the ground of unconstitutionality and expenditure of state money. Hill v. Eae (Mont.) 1917E- 210. Note. Validity of Farm Loan Statute. 1917E- 216. 3. PUEE SEED LAW. 11. Validity. The courts cannot judici- ally know that no means or process exist for cleaning seeds so as to exclude weed seeds from being present therein in quan- tities not more than one in 10,000. State v. McKay (Tenn.) 1917E-158. (Annotated.) 12. The Tenn. Pure Seed Law is not a violation of the due process of law clause of Const. 17. S. Amend. 14, because section 11 of the law contains a proviso that no one shall be convicted under the act if he is able to show that weed seeds named in section 3 are present in quantities not more than one in 10,000, and that due diligence has been used to find and remove them; such provision not showing palpable capri- ciousness or mere arbitrary usurpation of power. State v. McKay (Tenn.) 1917E- 158. ' (Annotated.) 13. The Tenn. Pure Seed Law is not in- valid as arbitrary and unjust, because sec- tion 1 thereof requires labels on packages of agricultural seeds to set forth the local- ity where the seed was grown. State v. McKay (Tenn.) 1917E-158. (Annotated.) 14. The Tenn. Pure Seed Law (Acts 1909, c. 395) is not unconstitutional class legislation violating the equal protection clause of the Fourteenth Amendment be- cause of exemption from its operation, by subsection 5 of section 8 thereof of the farmer grower, in selling seeds, since such exemption is closely limited to seeds grown by the seller and sold and delivered by him on his own premises to a purchaser for seeding by the purchaser himself, and the differentiation of such sale from open market sales cannot be considered arbi- trary, in view of the greater opportunity for deception in selling in open market. State r. McKay (Tenn.) 1917E-158. (Annotated.) 15. Tenn. Pure Seed Law is not invalid as an unwarrantable burden on interstate commerce in violation of United States Const., its burden on such commerce by reason of the exemption in section 8, sub- section 5, of the farmer grower being in- considerable, remote, incidental, and not designed. State v. McKay (Tenn.) 1917E- 158. (Annotated.) Note. Validity of statute regulating sale of seed. 1917E-167. AIDER AND ABETTOR. Meaning, see Torts, 10. AIDING AND ABETTING. Of concealment of assets, no offense, see Bankruptcy, 32, 34. ALCOHOL. See Intoxicating Liquors. ALIBI. Sufficiency of proof, see Criminal Law, 74. ALIENATION OF AFFECTIONS. Action for by wife alone, see Husband and Wife, 14, 48-65. ALIEN ENEMY. See War, 7, 10-17. ALIENS. 1. Who are" Aliens, 27. 2. Privileges and Disabilities, 28. a. In General, 28. b. Inheritance of Land, 28. c. Employment on Public Work, 28. 3. Naturalization, 28. a. Proceedings, 28. b. Revocation, 29. 4. Expatriation of Citizen, 29. 5. Exclusion of Aliens, 29. Right to sue, see Death by Wrongful Act, 15. Exclusion from hunting rights, see Fish and Game, 3-8. Importation of contract labor, see Labor Laws, 2. Nonresident alien as beneficiary under Workmen's Compensation Act, see Master and Servant, 265. Internment of alien enemies, see War, 7. 1. WHO ARE ALIENS. 1. Presumption of Alienage. The facts that a man was an alien, that at the age of twenty he married, and through twelve succeeding years resided in Russia before he came to the United States two years before his death, that his family continued until his death to reside in Russia and re- ceive there their support from him, and were aliens, created a presumption that he 28 DIGEST. 1916C 1918B. was a citizen of Russia, since the relation is presumed to have continued until a change of citizenship is proved. Hamilton v. Erie K. Co. (N. Y.) 1918A-928. 2. Declaration of Alienage. A. person born in England of alien parents cannot on arriving at his majority make a declara- tion of alienage, where a state of war ex- ists with the nation of his father's birth, and he has during his minority been en- rolled in the British army. Rex v. Com- manding Officer (Eng.) 1917E-480. (Annotated.) 2. PRIVILEGES AND DISABILITIES, a. In General. 3. Classes of Aliens Excluded. Where a Chinese person, who lawfully entered the United States as the minor son of a mer- chant, thereafter became a laborer, such fact will not deprive him of his right to remain in the country. Lam Fung Yen v. Prick (Fed.) 1917C-232. (Annotated.) 4. Discriminations in Inheritance Tax. A citizen of a foreign country, residing there- in, has, in the absence of express treaty right, no reason to complain that his in- heritance is taxed more than that of a fellow alien who resides in the United States, but not in the state where the de- ceased resided or of the probate of the will. Moody v. Hagen (N. Dak.) 1918A-933. b. Inheritance of Land. 5. Statutes which change the common law and which allow aliens to take by will or to inherit are not to be looked upon in the light of a recognition or extension of any previously existing right belonging to such aliens, but rather as a fresh grant or a right or a statute of grace which the state chooses to confer. Moody v. Hagen (N. Dak.) 1918A-933. 6. Right to Take by Descent. The alien, in the absence of permissive legislation, has never been allowed, as against the sovereign state, to take by descent or even by will. Moody v. Hagen (N. Dak.) 1918A-933. 7. Article 6 of the treaty of amity and commerce between the United States and the kingdom of Norway (7 Fed. St. Ann. 828) is only applicable to the estates of decedents who were citizens of Norway leaving property in the United States and citizens of the United States, leaving prop- erty in Norway, and those inheriting from them, and is not applicable to the estates of decedents who were citizens of the United States. Moody v. Hagen (N. Dak.) 1918A-933. c. Employment on Public Work. 8. The freedom to contract secured by U. S. Const. 14th Amend. (9 Fed. St. Ann. 428) is not infringed by the provisions of N. Y. Consol. Laws, c. 31, 14, that only citizens of the United States may be employed in the construction of public works by or for the state or a municipality, and that in such employment citizens of New York state must be given preference. Heim v. McCall (U. S.) 1917B-287. (Annotated.) 9. Statute Prohibiting Employment on Public Works. Privileges and immunities of the citizens of the several states are not abridged, contrary to U. S. Const, art. 4, 2 (9 Fed. St. Ann. 158), by the provisions of N. Y. Consol. Laws, c. 31, 14, that only citizens of the United States may be employed in the construc- tion of public works by or for the state or a municipality, and that in such employ- ment citizens of New York state must be given preference. Heim v. MeCall (U. S.) 1917B-287. (Annotated.) 10. Validity. The discrimination against aliens lawfully resident in the state, which is produced by the provisions of Arizona Act of December 14, 1914, that every em- ployer of more than five workers at any one time, "regardless of kind or class of work or sex of workers shall employ not less than eighty per cent qualified electors or native-born citizens of the United States or some subdivision thereof," renders the statute invalid under U. S. Const. 14th Amend. (9 Fed. St. Ann. 538) as denying the equal protection of the laws, and such statute cannot be justi- fied as an exercise of the power of the state to make reasonable classifications in legislating to promote the health, safety, morals, and welfare of those within its jurisdiction. Truax v. Raich (U. S.) 1917B-283. (Annotated.) 3. NATURALIZATION, a. Proceedings. 11. Effect of Failure to File Certificate With Petition. Under act of June 29, 1906, c. 3592, 3, 34 Stat. 596 (Fed. St. Ann. 1909 Supp. p. 365), conferring juris- diction to naturalize aliens on state courts of record having jurisdiction in actions at law or equity in which the amount in controversy is unlimited, and section 4, requiring the applicant for citizenship to file a petition, and providing that at the time of filing the petition there shall be filed a certificate from the Department of Commerce and Labor stating the date, place, and manner of the petitioner's ar- rival in the United States, the absence of such a certificate does not deprive a state court of jurisdiction, as the court has jurisdiction to decide not only whether the petition and the petitioner's procedure are sufficient, but also to determine whether the absence of the certificate is fatal to the petitioner's right to be admitted as a citi- zen. United States v. Ness (Fed.) 1917C-41. ALIENS. 29 b. Revocation. 12. Revocation of Naturalization. Under Act of June 29, 1906, c. 3592, 15, 34 Stat. 601 (Fed. St. Ann. 1909 Supp. p. 373), re- quiring United States attorneys to insti- tute proceedings to set aside and cancel certificates of citizenship on the ground of fraud or on the ground that the certificate was illegally procured, such a proceeding is a suit in equity to be considered and decided in accordance with the rules and principles applicable to such suits, and the decision of the lower court must be pre- sumed to be correct unless some obvious error of law or some serious mistake of fact clearly appears. United States v. Ness (Fed.) 1917C-41. (Annotated.) 13. An alien who entered the United States from Canada did not know that any formalities were required and saw no per- son purporting to be an immigration com- missioner. When he applied for admission to citizenship, he was unable to procure and file the certificate from the Depart- ment of Commerce and Labor as to his arrival in the United States, required by Act of June 29, 1906, c. 3592, 4, 34 Stat. 596 (Fed. St. Ann. 1909 Supp. p. 366), but he possessed every essential qualifica- tion for admission and he proved every fact required to be stated in such certi- ficate. The question as to his right to admission without the certificate was raised and decided by the court in his favor. It is held that the certificate was not illegally procured so as to be subject to cancellation under section 15, even though the court made a mistake in fail- ing to require the certificate as a condi- tion of its decree, as "illegality" signifies that which is contrary to the established principles of the law. United States v. Ness (Fed.) 1917C-41. (Annotated.) 14. Notwithstanding the absence of such certificate, the court's decision admitting him to citizenship is just and right. United States v. Ness (Fed.) 1917C-41. (Annotated.) Note. Grounds for revocation of naturaliza- tion. 1917C-45. 4. EXPATRIATION OF CITIZEN. 15. Congress could validly enact the provisions of the Act of March 2, 1907 (34 Stat. at L. 1228, c. 2534, Fed. St. Ann. 1909 Supp. p. 69) under which an American-born woman who marries a for- eigner forfeits her citizenship, even though she remains within the jurisdiction of the United States. Mackenzie v. Hare (U. S.) 1916E-645. (Annotated.) 16. Marriage of Woman Citizen to Alien. No exception in favor of an American- born woman who marries a resident for- eigner and remains within the jurisdiction of the United States may be read into the provisions of the Act of March 2, 1907 (34 Stat, at L. 1228, c. 2534, Fed. St. Ann. 1909 Supp. p. 69) that "any Amer- ican woman who marries a foreigner shall take the nationality of her husband," but may resume her American citizenship at the termination of the marital relation, if within the United States, by her continu- ing to reside therein, and, if abroad, by returning to the United States, or by reg- istering as an American citizen. Macken- zie v. Hare (U. S.) 1916E-645. (Annotated.) 5. EXCLUSION OF ALIENS. 17. Immigration Act of Feb. 20, 1907, c. 1134, 3, 34 Stat. 899, provided that the importation of any alien female for immoral purposes is forbidden, and who- ever shall directly or indirectly import or attempt to import into the United States any alien woman for immoral purposes, or who shall hold or attempt to hold any alien woman for any such purpose, and whoever shall maintain any immoral resort frequented by any alien woman within three years after she shall have entered the United States, shall be deemed guilty of a felony, while the alien woman shall be deported. In 1910 (Act of March 26, 1910, c. 128, 2, 36 Stat. 264, 3 Fed. St. Ann. [2d ed.] 649) the section was amended, so as to declare that any alien who shall be found an inmate or .connected with the management of an immoral resort, or who shall share in, receive, or derive benefit from any of the earnings of any prosti- tute, shall be deemed to be unlawfully within the United States, and shall be de- ported. Section 20 (section 4269, 3 Fed. St. Ann. [2d ed.] 673) declares that any alien who shall enter the United States in violation of law and become a public charge, from causes existing prior to land- ing, shall be deported to the country whence he came at any time within three years after the date of his entry, and that the expense of deporting the alien from the port of deportation shall be borne by the owner or owners of the vessel or trans- portation line by which the alien came. It is held that, in view of the amendment to section 3, the three-year period fixed by section 20 must be disregarded, and a steamship company which brought an alien to the country is liable after the expira- tion of the three-year period for the ex- pense of his deportation, where he was guilty of sharing the earnings of a pros- titute. Oceanic Steam Navigation Co. v. United States (Fed.) 1917C-248. (Annotated.) 18. Immigration Act Feb. 20, 1907, c. 1134, 2, 34 Stat. 898 (3 Fed. St. Ann. [2d ed.] 640) excludes persons likely to become a public charge; section 20 (3 Fed. St. Ann. [2d ed.] 673) makes it the duty of the Secretary of Labor to cause to be 30 DIGEST. 1916C 1918B. deported at any time within three years after entry any alien who shall enter in violation of law, and as such become a public charge from causes existing prior to landing; while section 21 (3 Fed. St. Ann. [2d ed.] 681) makes it the duty of the secretary, when satisfied that an alien has been found in the United States in viola- tion of law, to deport him. It is held that the act is not limited to persons who shall from existing causes become a public charge within three years after entry, but warrants the deportation of one who is likely thereafter to become a public charge. Lam Fung Yen v. Frick (Fed.) 1917C-232. (Annotated.) 19. That petitioner, when he entered, was the son of a Chinese merchant, and as such liable to be supported by his father during minority, does not except him from the immigration act, excluding pe.sons likely to become a public charge, where it is clear that at the end of his minority he is likely to become such a charge. Lam Fung Yen v. Frick (Fed.) 1917C-232. (Annotated.). 20. "The immigration act, excluding per- sons likely to become a public charge," is not limited to paupers or those liable to become such, but includes those who will not undertake honest pursuits, or who are likely to become periodically the inmates of prisons, and so includes one who in- tends to make his living by gambling, in- stead of honest labor. Lam Fung Yen v. Prick (Fed.) 1917C-232. (Annotated.) 21. The immigration act applies to aliens born in China, and the minor son of a Chinese merchant cannot lawfully enter the United States, if at that time he be a person likely to become a public charge. Lam Fung Yen v. Frick (Fed.) 1917C-232. (Annotated.) 22. Where supported by competent evi- dence, a finding by the immigration au- thorities with regard to an alien is con- clusive on the courts. Lam Fung Yen v. Frick (Fed.) 1917C-232. (Annotated.) 23. On application by a Chinese person for writ of habeas corpus against the im- migration inspector, the evidence is held to warrant a finding by the inspector that such Chinese person was addicted to gam- bling when he left China, and that he en- tered the United States intending to make his living by gambling, and not by profit- able industry. Lam Fung Yen v. Frick (Fed.) 1917C-227. ' Annotated.) Notes. Immigrant prostitution or immorality. 1917C-250. Classes of aliens excluded by immigra- tion act. 1917C-235. ALIMONY AND SUIT MONEY. 1. Permanent Alimony. a. Nature of Allowance. b. Amount of Allowance. c. Modification of Decree. See Divorce; Husband and Wife. 1. PERMANENT ALIMONY. a. Nature of Allowance. 1. Amount of Allowance. Where a wife was granted a divorce and custody of minor children of the marriage, an award of $80 a month for the support of such children, four in number, while large, cannot be held excessive; the de- fendant husband having in the past paid the house rent and allowed the wife $30 a week for expenses. Heicke v. Heicke (Wis.) 1918B-497. 2. While the amount awarded a wife on divorce should not exceed from one-third to one-half of the husband's property, it is not improper, where the husband is prac- tically the owner of an apothecary shop, to award the wife an insurance policy on which the husband had paid fourteen premiums averaging $100, and to require him to continue payment of the premiums, and also to pay the wife three separate sums of money amounting to $1,200; the stock of drugs and some other property being awarded the husband. Heicke v. Heicke (Wis.) 1918B-497. 3. Allowance of Gross Sum, Under Shannon's Tenn. Code, 4222, providing that the court may decree to the wife such part of the husband's real and personal estate as it may think proper, where an absolute divorce was awarded a wife for abandonment against her husband, worth some $170,000, the husband having been the more to blame in their difficulties, an award to the wife of $200 a month ali- mony cannot stand, and she will be de- creed $50,000 in solido. Winslow v. Win- slow (Tenn.) 1917A-245. (Annotated.) Notes. Life of decree for permanent alimony. 1917A-582. Allowance of alimony in gross sum. 1917A-248. b. Amount of Allowance. 4. The evidence is held to sustain chan- cellor's allowance to wife of large amount of property, of value but little in excess of what she had invested personally, in view of respective physical condition of the parties. Klekamp v. Klekamp (111.) 1918A-663. c. Modification of Decree. 5. A decree for future alimony payable in instalments, and which the court may ALL CONTRACTS ALTERATION OF INSTRUMENTS. 31 subsequently annul, vary, or modify upon due notice to all parties interested, confers a vested right in the beneficiary to all in- stalments that have become due, which cannot be annulled, varied, or modified, as to them. Bolton v. Bolton (N. J.) 1916E- 938. (Annotated.) 6. The statute of the state of New York authorizing the court to make directions concerning the allowance of alimony, with power at any time after final judgment to annul, vary, or modify such judgments, confers no retroactive power to alter the judgment as to past-due instalments, and the annulment, variation, or modification can only affect instalments which have not fallen due, and such decree as to past-due instalments is a final decree, entitled to the benefit of the full faith and credit clause of the Federal Constitution. Bolton v. Bolton (N. J.) 1916E-938. (Annotated.) 7. Life of Decree. Where the marriage status is dissolved by a divorce and the judgment provides for annual alimony, the right to collect alimony due and unpaid at the time of the wife's death may be en- forced by her personal representatives; alimony not being a personal claim like a cause of action for slander. Van Ness v. Eansom (N. Y.) 1917A-580. (Annotated.) 8. Power to Modify Decree. The decree made by a court of a sister state, adjudg- ing alimony to a wife payable in future instalments, is a final judgment entitled to the protection of the full faith and credit clause of the Federal Constitution as to all past-due instalments, unless the right to the alimony is so within the discretion of the court rendering the decree that it does not vest in the beneficiary, even in the absence of the exercise of any discre- tionary power which the court may have to annul, vary, or modify the decree. Bolton v. Bolton (N. J.) 1916E-938. (Annotated.) ALL CONTRACTS. Meaning, see Life Insurance, 30. ALL DAMAGES AND COSTS. Meaning, see Bankruptcy, 29. ALL MUNICIPAL POWER. Meaning, see Intoxicating Liquors, 3. ALL THE REST, RESIDUE AND REMAINDER. Meaning, see Wills, 202. ALTERATION OF INSTRUMENTS. 1. What Constitutes, 31. 2. Materiality, 31. 3. Effect, 32. 4. Estoppel, 32. 5. Ratification, 32. 6. Evidence, 33. 7. Pleading, 33. Evidence of alteration, sufficiency, tee Bills and Notes, 73. 1. WHAT CONSTITUTES. 1. Distinction Between "Alteration" and "Spoliation." An "alteration" occurs when a written contract is intentionally changed in a material respect after execution by or at the instance of one of the parties and without the consent of the other, while a "spoliation" is the unauthorized change of a written contract by a stranger. Smith v. Barnes (Mont.) 1917D-330. 2. Filling Blanks. Where the makers of a note, other than the person for whose accommodation it was made, give it to him to negotiate, with, place for the payee's name blank; and the date "July ," they give him implied authority, not merely to fill in the name of whoever may become the payee, but the date of the actual delivery to the payee, so long as it is done in a reasonable time, so that filling in such date, at his direction, is not an alteration. Holman v. Higgins (Tenn.) 1917E-515. (Annotated.) 3. Detaching Instrument from Note. Where a conditional sales contract for a set of scales has as a part thereof an in- stalment note, the detaching of the note, thereby making it a negotiable note, is a material alteration of the contract avoid- ing the entire contract. Toledo Scale Co. v. Gogo (Mich.) 1917E-601. (Annotated.) Note. Effect of detaching from promissory note contract or memorandum attached thereto. 1917E-603. 2. MATERIALITY. 4. Substitution of "Bearer" for "Order" in Note. Under Iowa Code Supp. 1907, 3060al25, providing that an alteration which changes the effect of the instru- ment in any respect is a "material altera- tion," a change in a note payable to order, made by striking out the words "order of," and inserting after the name of the payee the words "or bearer," is a material altera- tion which avoids the instrument, if made after delivery, or, if made by the maker or the payee before delivery, discharges a surety. Builders' Lime, etc. Co. v. Weimer (Iowa) 1917C-1174. (Annotated.) 32 DIGEST. 1916C 1918B. 5. Materiality of Alteration. The alter- ation of a note by adding the signature, as maker, of the firm of which the original maker was a member defeats recovery on the note by the payee. Palmer v. Blanch- ard (Me.) 1917A-809. Note. Addition of words "or bearer" or words "or order" or substitution of one expression for other as material alteration of instru- ment. 1917C-1177. 3. EFFECT. 6. Liability to Payee. The joint maker in such a case is not liable to the payee on the altered note since he has never agreed to the terms of the instrument which the payee took. Builders' Lime, etc. Co. v. Weimer (Iowa) 1917C-1174. 7. Liability of Maker to Innocent Pur- chaser. A joint maker of a note, who in- dorsed it with a comaker, by whom it was materially altered before delivery, is lia- ble thereon after it passes into the hands of a holder in due course, on the theory that, where' one of two innocent parties must suffer by the acts of a third, he whose acts enabled the third party to cause the loss must bear it. Builders' Lime, etc. Co. v. Weimer (Iowa) 1917C-1174. 8. Effect of Alteration. In an action for breach of contract, plaintiff has the burden of establishing the contract substantially as alleged; and where the declaration was upon a contract without regard to altera- tions, and a vitiating alteration is alleged and proved by defendant, the action fails. Smith v. Barnes (Mont.) 1917D-330. 9. Eight of Party Affected to Enforce Original Contract. Under Mont. Rev. Codes, 5069, declaring that the material alteration of a written contract by a party entitled to any benefit thereunder extin- guishes all executory obligations of the contract in his favor against parties who do not consent, the party procuring an alteration of a written contract canuot maintain any action upon the contract in either its original or altered form, but the nonconsenting party loses no right, and is not required to rescind or repudiate the contract as it was actually made, and may hold the other party to the terms of the original contract; and the effect of a spoliation is that the contract stands as originally made, without regard to the change. Smith v. Barnes (Mont.) 1917D- 330. 4. ESTOPPEL. 10. Plaintiff, in May, 1902, quitclaimed to defendant's assignor all plaintiff's in- terest in a right of way for the C. ditch, with all rights to the appropriation of water and any and all interests therein. Thereafter plaintiff executed a written contract by which it assigned unto the D. Ditch Company the entire one-third in- terest in and to all the rights, privileges and franchises pertaining to and secured , for the appropriation of water from Sand and Deadman creeks in Larimer county (and also all of the rights, privileges, and franchises pertaining to and secured by the appropriation of water from the C. creek in such county). By the same con- tract the ditch company agreed to deliver to plaintiff sufficient water to irrigate his lands and to pay plaintiff for one-third of the water carried by the C. and the D. ditches, except that furnished plaintiff. Before delivery of the contract, the por- tion in parentheses was erased by the presi- dent of the ditch company for the reason that it "was never in the agreement." Plaintiff recorded the contract and the let- ter accompanying it, and for four years thereafter made no claim to any interest in the water flowing in the C. Ditch, dur- ing which time the ditch company's pro- ject was continued to completion. It is held that plaintiff was thereafter estopped to object to the alteration of the contract. Divide Canal, etc. Co. v. Tenney (Colo.) 1917D-346. (Annotated.) 11. Where a written contract has been altered, the nonconsenting party, entitled to stand upon the contract as made and not required to avoid it, may retain -the first payment, permit the other party to perform the contract, and forfeit the "p a y- ment if the other party fails to perform, and cannot be estopped by any action or inaction amounting to only less than an acceptance of the change. Smith v. Barnes (Mont.) 1917D-330. (Annotated.) 12. Presumption from Apparent Altera- tion. The fact that one of the figures in the date of a note showed that it was writ- ten over an erasure does not create a pre- sumption that the change was made after the execution, so as to be a material altera- tion which avoids the note. Palmer v. Blanchard (Me.) 1917A-809. 5. RATIFICATION. 13. A material alteration in a written instrument may be expressly or impliedly ratified after it has been executed and de- livered, and, if so ratified, will bind the parties. Divide Canal, etc. Co. v. Tenney (Colo.) 1917D-346. (Annotated.) 14. Waiver or Ratification of Alteration. Ratification and waiver of alteration of contract are in the nature of estoppel, and, to be available, must be pleaded when an opportunity to make such plea is pre- sented. Smith v. Barnes (Mont.) 1917D- 330. (Annotated.) Note. Ratification or waiver of alteration of instrument. 1917D-335. AMBASSADORS AND CONSULS AMBIGUITY. 33 6. EVIDENCE. 15. Evidence of Alteration Sufficient. Evidence, in an action for breach of a con- tract for the sale and purchase of stock with provision that upon payment of the respective instalments of money a propor- tionate amount . of the stock should be delivered to the purchaser, is held to sus- tain a finding that the parties did not so contract, but that their contract was changed to the terms pleaded, after exe- cution, and without defendant's knowledge or consent. Smith v. Barnes (Mont.) 1917D-330. 16. Evidence of Alteration. In an ac- tion at law for breach of a contract for the sale and purchase of the stock of a milling company, wherein defendant al- leges that plaintiff materially altered the contract after its execution, evidence of the change of the contract after its execu- tion is admissible. Smith v. Barnes (Mont.) 1917D-330. 7. PLEADING. 17. Effect of Spoliation. In the case of a spoliation of a contract, the plaintiff must declare upon the contract as origi- nally made, and it is fatal if the contract pleaded is not. by reason of spoliation, the agreement of the parties. Smith v. Barnes (Mont.) 1917D-330. AMBASSADORS AND CONSULS. Eight of consul to letters, see Executors and Administrators, 3, 4. 1. Power of Consular Officers. Interna- tional law regards consuls and consular officials as mercantile agents of the gov- ernment appointing them, authorized to protect the commercial interests of its citi- zens or subjects in the country to which they are accredited, and clothed only with authority for commercial purposes. Hamil- ton v. Erie B. Co. (N. Y.) 1918A-928. 2. To conserve and guard the property within their territorial jurisdiction of their countrymen dying therein, is an im- portant right and duty of consuls and con- sular officials. Hamilton v. Erie R. Co. (N. Y.) 1918A-928. 3. Source of Rights. The rights of con- suls and consular officials rest on interna- tional law as well as on treaty stipulations. Hamilton v. Erie B. Co. (N. Y.) 1918A- 928. 4. Power as to Decedent's Estate. The 1909 treaty between the United States and Russia contained the most favored nation clause. The then existing treaty with Spain provided that consular officials should have the right of representing the absent, unknown, or minor heirs, "next of kin," or legal representatives of citizens or ' 3 subjects of their country who should die within their consular jurisdiction, and of appearing in their behalf in all proceedings relating to the settlement of their estates, and to perform all the duties prescribed by the laws of their country for the safe- guarding of their property and the settle- ment of the estate of their deceased coun- trymen. It is held that the consular officials of Russia were authorized thereby to act for the heirs, next of kin, or legal representatives of their countrymen, of the description set forth, in participating in their behalf in legal or other proceedings for the proper administration, conserving and guarding of the estates of such coun- trymen. Hamilton v. E'rie R. Co. (N. Y.) 1918A-928. (Annotated.) 5. Release of Claim for Death. The gen- eral law of nations does not sustain as valid the settlement by a consul general with a railroad for its negligent killing within his consular jurisdiction of a countryman of the consul. Hamilton v. Erie R. Co. (N. Y.) 1918A-928. (Annotated.) 6. Release of Claim for Damages for Death. Under the 1909 treaty between the United States and Russia, containing the most favored nation clause, the powers of the Russian consul and vice consul in the matter of settling with, and releasing a railroad for damages arising from the death of a Russian subject killed by it, are equal to those given to consular represen- tatives of any other nation by treaty. Hamilton v. Erie R. Co. (N. Y.) 1918A-928. (Annotated.) 7. Under these treaties, a Russian consul does not have the right without judicial proceedings to settle with and release a railroad company from a cause of action for death by negligence within his con- sular jurisdiction of a Russian whose wife and children resided in Russia, notwith- standing the fact that the treaties give him right to represent the "next of kin" and that N. Y. Code Civ. Proe., 1902- 1905, giving such right of action, declares that the damages recovered are exclusively for the benefit of decedent's husband or wife and "next of kin," since the denom- ination "next of kin" in the statute is merely a convenient means of designating comprehensively and definitely, the distrib- utees of the damages recovered, which they take, not through the laws of intes- tacy or as a part of the estate of the intestate, but through their original right thereto created by the statute. Hamilton v. Erie R. Co. (N. Y.) 1918A-928. (Annotated.) AMBIGUITY. In writing, parol proof to explain, see Evi- dence, 120. DIGEST. 1916C 1918B. AMENDMENTS. See Pleading, 67-87. Refusal of leave to amend, harmless, see Appeal and Error, 220. Of attachment bond, see Attachment, 6. v By-laws of benefit association, see Benefi- cial Associations, 14-16. Of constitution, see Constitutional Law, 183-190. Of pleadings, see Equity, 17-19. Of indictment, see Indictments and Infor- mations, 6, 18-20. Of judgments, see Judgments, 51, 52. Of pleading, effect of limitations, see Limi- tation of Actions, 38-41. Of city charter, see Municipal Corpora- tion, 6-9. Amending motion for new trial, see New Trial, 35. Of statutes, see Statutes, 116-121, J24. Trial amendments, see Trial, 59. AMPUTATION. As covering "loss" of hand, see Accident Insurance, 19. ANIMAL INSURANCE. See Insurance, 44. ANIMALS. 1. Domestic Animals, 34. 2. Trespass by Animals, 34. 3. Injury by Animals, 34. a. Vicious or Mischievous Animals, 34. b. Evidence, 34. 4. Herd Law, 35. 5. Licenses, 35. 6. Wild Animals, 35. See Carriers of Live Stock. Keeping sheep on shares, see Bailment, 1, 4-6. Gift for benefit of animals, see Charities, 5. Increase of, see Chattel Mortgages, 21-23. Conversion of dog, see Conversion, 1-4. Catcher's right to caught fish, see Fish and Game, 1. Liability of feed vender for poisoning, see Food, 21. Regulation of diseased animals, see Health, 2-4. Liability of prospector for cattle falling into open shaft, see Mines and Min- erals, 10. City regulation, see Municipal Corpora- tions, 79. 1. DOMESTIC ANIMALS. 1. Legal Status of Cat. A cat is a "domestic animal" within Me. Pub. Laws 1909, c. 222, 17, providing that any per- son may lawfully kill a dog found worry- ing, wounding, or killing any domestic animal when the dog is outside of the in- closure or immediate care of its owner or keeper, as there is nothing to indicate that the term "domestic" is used in other than its ordinary and popular meaning, and the term in its popular meaning is a broad one, meaning inhabiting, belonging or relating to the house or household or household affairs, domesticated, tame as distinguished from wild, living in or near the habita'tions of man or by habit or spe- cial training in association with man. Thurston v. Carter (Me.) 1917A-389. (Annotated.) 2. While cats are not enumerated by name as subjects of taxation in the stat- utes, the general language of the statutes is sufficient to include them, even though the owner has but a qualified property. Thurston v. Carter (Me.) 1917A-389. (Annotated.) Note. Legal status of the cat. 1917A-391. 2. TRESPASS BY ANIMALS. 3. Liability of Owner of Uninclosed Land. An owner of uninclosed land is not liable for the death of trespassing cattle which strayed on his property and fell into an open ditch, for, while the owner of the cattle is not liable for their trespass be- cause the land was uninclosed, that does not make the entry of the cattle rightful, nor cast on the landowner the duty of ex- ercising care for their safety. Gillespie v. Wheatland Industrial Co. (Wyo.) 1917A- 287. (Annotated.) Note. Liability as for negligence of owner of uninclosed land for injury to domestic ani- mal straying thereon. 1917A-288. 3. INJURY BY ANTMALS. a. Vicious or Mischievous Animals. 4. Liability for Injury to Property. If statutes protecting beaver and prohibiting the destruction of their dams and houses had been unconstitutional, the state would not have been liable to persons whose tim- ber was injured by beaver, since, the stat- ute being void, no one need obey it. Bar- rett v. State (X. Y.) 1917D-807. (Annotated.) b. Evidence. 5. The habits, characteristics, and dispo- sition of the horse are matters of such common knowledge that it does not require expert testimony to determine whether a horse was safe for certain work. Marks v. Columbia County Lumber Co. (Ore.) 1917A-308. 6. Opinion Evidence as to Viciousness of Animal. In an action by a servant for injuries from the alleged viciousncss of a horse given him to drive, opinion evidence that the horse was not a safe one for the ANIMALS. 35 work is wrongfully admitted; that being a question for the jury. Marks v. Columbia County Lumber Co. (Ore.) 1917A-306. 7. Proof of Viciousness Subsequent Acts. In an action by a servant for in- juries alleged to result from the vicious- ness of a horse given him to drive, evi- dence of conduct of the horse subsequent to the accident is admissible to show its disposition. (Marks v. Columbia County Lumber Co. (Ore.) 1917A-306. (Annotated.) Note. Liability of owner for injuries caused by runaway horse. 1916E-1114. 4. HERD LAW. 8. Validity. The Legislature, under the police power, may provide reasonable regu- lations for the use and enjoyment of prop- erty, where the same are necessary for the common good and the protection of others. Held, that a statute which prevents the holding under herd, or in any inclosure, un- accompanied by their mothers, of any calves of neat cattle under seven months of age is not violative of any constitu- tional provision, and is sustainable under the police power, where such regulation appears reasonably necessary to prevent the larceny of young animals. State v. Brooken (N. Mex.) 1916D-136. 9. Indictment for Violation. An indict- ment, charging a violation of section 1, c. 23, S. L. N. Mex. 1901, which, after al- leging that defendant held, under herd in a certain pasturej calves unaccompanied by their mothers, proceeds: "The said calves being then and there under the age of seven months," is not subject to attack, on the ground that the calves are not directly and positively alleged to be under seven months of age. State v. Brooken (N. Mex.) 1916D-136. 5. LICENSES. 10. Power of Municipality. Municipal Code of City and County of Denver, c. 16, art. 2, 747*et seq., prescribing license fees for the keeping of dogs and penalties for failure to pay. are constitutional, since the regulation of the keeping of dogs is within the police power of the state, and may be delegated to cities and towns. McPhail v. Denver (Colo.) 1916E-1143. 6. WILD ANIMALS. 11. If the act of reducing to possession wild animals, such as bees, is done by a trespasser, he gets no title, which vests in the owner of the soil, and the wrong- doer is liable to the owner for the tres- pass and for conversion. Brown v. Eckes (N. Y.) 1917B-981. (Annotated.) 12. Where a swarm of bees leaves the owner's premises, his title to them is not destroyed by their alighting on another's land. Brown v. Eckes (N. Y.) 1917B-981. (Annotated.) 13. Bees. Bees are "ferae naturae." Brown v. Eckes (N. Y.) 1917B-981. (Annotated.) 14. Liability of State for Injury to Prop- erty. The state has a general right to pro- tect wild animals, their preservation being a matter of public interest, and no one can complain of the incidental injuries that may result from such protection. Barrett v. .State (N. Y.) 1917D-807. (Annotated.) 15. Protection of Wild Animals. Laws N. Y. 1900, c. 20, prohibiting the killing of beaver, and Laws 1904, c. 674, 1, pro- viding that no person shall molest or dis- turb any wild beaver, nor the dams, houses, homes, or abiding places of the same are not unconstitutional; th prohibition of the destruction of dams and houses being an apt means to the desired end of pro- tecting the beav.er. Barrett Y. State (N. Y.) 1917D-807. 16. Validity of Act Protecting Beaver. The state may provide for the increase of beaver by removing colonies to a more favorable locality, or by replacing those destroyed by fresh importations, as well as by prohibiting the destruction of ani- mals already in the state. Barrett v. State (N. Y.) 1917D-807. 17. Liability of Keeper of Wild Animals. One who keeps wild animals in captivity must see to it at his peril that they do no damage to others. Barrett v. State (N. Y.) 1917D-807. (Annotated.) 18. The state is not liable for damage to timber of private individuals committed by beavers purchased and freed in the Adiron- dacks by the forest, fish, and game com- mission under Laws N. Y. 1904, c. 674. Barrett v. State (N. Y.) 1917D-807. (Annotated.) 19. The qualified property of an owner of a swarm of bees, which flies from the hive, continues so long as he in person or by agent can keep them in sight and possesses the power to pursue them. Brown v. Eckes (N. Y.) 1917B-981. (Annotated.) 20. Where plaintiff in an action to estab- lish hia property rights in certain swans, wood ducks, pheasants, etc., which he had cared for as domestic fowl, or kept in in- closed runways in his poultry yard, as against interference by the game warden and the prosecuting attorney, a decree giv- ing him the ownership and right to dispose of them in such manner as he saw fit was too broad, since thereunder he would have the right to kill and sell them during the 36 DIGEST. 1916C 1918B. closed season, and so interfere with the enforcement of the game laws of the state, and since the state, for the protection ot game birds, has the right to prohibit the killing and disposing of reclaimed game daring the closed season. Graves v. Dun- lap (Wash.) 1917B-944. (Annotated.) 21. Plaintiff, having a property right in the deer which he kept in an inclosure, if necessary in the care and management of the herd, might kill one of them without offending the law. Graves v. Dunlap (Wash.) 1917B-944. (Annotated.) 22. Bight to Kill. One charged with killing deer in violation of .Iowa Code Supp. 1913, 2551a, 2551b, making it un- lawful for any person other than, the owner or person authorized by the owner to kill any deer, except when distrained as provided by law, may show in justification that the deer, when killed, was on his premises, destroying his property. State v. Ward (Iowa) 1917B-978. (Annotated.) 23. Bight of Property. Wash. Game Code (Laws 1913, c. 120), 21, providing that no person shall acquire any property in, or subject to his control, any of the game birds or animals mentioned in the act, but that they shall always remain the property of the state, and section 33, pro- viding that no person shall have in posses- sion or under control at any time any deer, fawn, etc., if retroactive in operation as against one who had reclaimed certain deer kept on an inclosed area on his farm, and certain swans cared for as domestic fowls, and wood ducks, pheasants, etc., kept in inclosed runways in his poultry yard, vio- lated Coast. Wash. art. 1, 3, and Const. IT. S. Amend. 14 (9 Fed. St. Ann. 416), since he had such a property right in them that it could not be taken away without due process of law. Graves v. Dunlap (Wash.) 1917B-944. (Annotated.) 24. Animals ferae naturae, if reclaimed and kept in inclosed grounds, are prop- erty, which will pass to the executors and administrators of the one who reclaimed them. Graves v. Dunlap (Wash.) 1917B- 944. (Annotated.) 25. Bight of Property. While animals ferae naturae belong to the state, yet, when they are reclaimed by the art and power of man, they are the subject of a qualified right of property, defeasible if they return to their wild state. Graves v. Dunlap (Wash.) 1917B-944. (Annotated.) 26. "Game." Animals ferae naturae, such as deer, ducks, pheasants, and swans, are denominated "game." Graves v. Dun- lap (Wash.) 1917B-944. Notes. Law of bees. 1917B-983. Bight of property in wild animal. 1917B-949. ANNEXATION. See Municipal Corporations, 21, 22. ANNULMENT OF MARBIAQE. See Marriage, 12-15. ANONYMOUS LETTERS. Sending, as criminal libel, see Libel and Slander, 165. ANSWER. See Pleading, 16-33. ANTENUPTIAL CONTRACTS, See Husband and Wife, 15-25. ANTICIPATOBY BREACH. See Contracts, 47-48. ANTI-NEPOTISM LAW. See Public Officers, 11-22. ANTI-TBUST ACT. Construction, see Monopolies, 12. ANY. Meaning, see Abduction, 2; Mines and Minerals. Defined, see Municipal Corporations, 21. ANY COBPOBATION. Meaning, see Joint Adventures, 7. ANY OTHEB ESTATE OB INTEREST THEREIN. Meaning, see Deeds, 70. ANY PERSON. Does not include men, see Prostitution, 2. APOTHECARIES. See Drugs and Druggists. APPEAL A>iD ERROR. 37 APPEAL AND ERROR. 1. Eight of Appeal, 38. a. In General, 38. b. In Actions for Penalty, 39. c. Waiver of Right, 39. d. Bight to Second Appeal, 39. 2. Jurisdiction and Powers of Appellate Court, 39. a. In General, 39. b. Amount in Controversy, 40. c. Federal Courts, 40. d. Intermediate Appellate Courts, 40. e. Constitutional Questions, 41. 3. Appealable Judgments and Orders, 41. a. In General, 41. b. In Administration or Probate Pro- ceedings, 42. c. In Contempt Proceedings, 42. d. In Partition Suits, 42. e. Granting or Eefusing New Trial, 42-. f. In Attachment Proceedings, 42. g. In Criminal Cases, 42. h. In Habeas Corpus Proceedings, 42. 4. Parties to Appellate Proceedings, 42. 5. Form of Appeal, 42. 6. Notice of Appeal, 42. a. Form and Contents, 42. b. On Whom Served, 42. 7. Perfection of Appeal, 43. 8. Time of Appeal, 43. a. In General, 43. b. When Time Begins to Eun, 43. 9. Eecord on Appeal, 43. a. What Constitutes Eecord, 43. b. Transcript and Abstract, 43. c. Settlement and Certification, 43. d. Amendment of Eecord, 44. e. Conclusivenesg of Eecord, 44. 10. Bill of Exceptions, 44. a. In General, 44. b. Inclusion of All the Evidence, 44. c. Correction, 44. d. Inclusion of Matter by Reference, 44. 11. Assignments of Error, 45. a. In General, 45. b. Sufficiency, 45. c. Cross-assignments, 45. 12. Dismissal of Appeal, 45. a. Time for Motion, 45. b. Grounds for Dismissal, 45. c. Questions Considered, 46. d. Eeinstatement of Appeal, 46. 13. Hearing of Appeal, 46. 14. Examination of Case on Appeal, 46. a. What is Brought Up on Appeal, 46. (1) Matters, not in Eecord, 46. (2) Eulings on Evidence, 46. (3) Eulings on Instructions, 47. (4) Attachment Proceedings, 47. b. Second Appeal, 47. c. Examination of Questions of Fact, 47. (1) In General, 47. (2) Power of Appellate Court to Weigh Evidence, 48. (3) Verdict or Finding of Jury, 48. (a) In General, 48. (b) Verdict in Criminal Case, 49. (4) Findings of Court, 50. (5) Findings of Master, 50. (6) Direction of Verdict or Non- suit, 51. (7) Judgment of Intermediate Appellate Court, 51. (8) Adherence to Theory of Trial Court, 51. (9) Ocinpetency of Witnesses, 51. d. Waiver of Error, 52. (1) In General, 52. (2) Omission from Brief or Argument, 52. (3) Pleading Over After Order to Make More Specific, 52. (4) Introduction of Evidence After Eefusal to Direct Ver- dict or Give Judgment, 52. (5) By Stipulation or Agree- ment, 52. (6) Introduction of Evidence After Adverse Euling on Pleading, 53. (7) By Eequesting Instruction, 53. 15. Eeview of Exercise of Discretionary Power, 53. 16. Presumptions on Appeal, 53. a. In General, 53. b. As to Motions, 53. c. As to Eulings on Pleadings, 53. d. As to Evidence, 53. e. As to Instructions, 54. f. As to Verdict, 54. g. As to Judgment, 54. 17. Eeversible Error, 54. a. In General, 54. b. Error must be Clearly Shown, 54. c. Error must be Material, 54. d. Error must be Prejudicial, 55. (1) In General, 55. (2) Error in Eulings on Plead- ings, 55. (3) Errors in Admission of EVi- dence, 56. (a) In General, 56. (b) Instructions to Cure Error, 57. (e) Evidence as to Ad- mitted or Proven Facts, 58. (d) Irrelevant Evidence, 58. (4) Exclusion of Evidence, 59. (a) In General, 59. (b) Evidence Previously or Subsequently Ad- mitted, 59. (c) Facts Otherwise Proved, 59. (d) Error Cured by Ver- dict, 59. (e) Immaterial Evidence, 59. (f ) Error Cured by Admis- sion of Counsel, 60. (5) Other Errors in Eelation to Evidence, 60. (6) Errors in Instructions, 60. (a) In General, 60. (b) Errors Cured by Other Instructions, 61. 38 DIGEST. 1916C 1918B. (c) Error Cured by Ver- 18. Decision or Judgment of Appellate diet 62 Court, 73. (d) Error' Cured by Be- a. Rendition of Final Judgment on ducine Judgment. 62. Appeal, 73. b. Granting New Trial, 74. c. Remand for Additional Findings, 74. (e) Error Cured by Want of Evidence, 62. (f) Error Cured by Evi- dence, 62. (g) Error as to Immate- rial or Abstract Matters, 63. (7) Rulings as to Witnesses, 63. (8) Findings, 63. (9) Submitting Equity Case to Jury, 64. (10) Striking Out Parties, 64. (11) Misconduct and Argument of Counsel, 64. (12) Refusal of Continuance, 64. (13) Transfer of Cause, 64. e. Errors must Appear from Record, 64. (1) In General, 64. (2) Error in Ruling on Evi- dence, 65. (3) Error in Instructions, 65. (4) Error in Argument, 65. (5) Error in Rulings on Plead- ings, 66. f. Errors not Available, 66. (1) Questions not Raised Below, 66. (a) In General, 66. (b) Sufficiency of Plead- ings, 66. (c) Reception and Rejec- tion of Evidence, 67. (d) Errors in Instructions, 67. (e) Errors in Findings or Verdict, 68. (f) Rulings on Motion for New Trial, 68. (g) Conduct of Court or Counsel, 69. (h) Denial of Continu- ance, 69. (2) Sufficiency of Objection or Exception, 69. (a) Ruling on Evidence, 69. (b) Rulings on Instruc- tions, 69. (c) Time of Making Ob- jection, 71. (d) Sufficiency of Plead- ings, 71. (e) Verdict or Findings, 71. (f) Rulings on Motion for New Trial, 72. (g) Sufficiency of Decree, 72. (3) Inconsistent Attitude on Appeal, 72. (4) Error Caused by Appellant, 72. (5) Errors Favorable tq Appel- lant, 72. (6) Wrong Reason for Correct Decision, 73. (7) Nonsuit Instead of Directed Vordict. 73. (8) Error Cured by Verdict, 73. d. Remand for Proper Judgment, 75. e. Modification of Judgment, 75. f. Modification of Judgment of Appellate Court, 75. g. Jurisdiction of Appellate Court After Remand, 75. h. Amendment of Pleadings on Re- mand, 75. 19. Effect of Appeal, 75. 20. Supersedeas and Bond, 75. a. In General, 75. b. Release of Sureties, 75. c. Actions on Appeal Bonds, 76. 21. Costs, 76. 22. Rehearing, 76. See Bastardy, 7; Certiorari; Habeas Cor- pus, 16-20; Libel and Slander, 163, 164; Mandamus, 31; Public Service Commissions, 5-17, 31; Stare Decisis, 4. Right to appeal from disbarment, see Attorneys, 68. Review of allowance of claims, see Bank- ruptcy, 21. In contempt proceedings, see Contempt, 18-19. Review of condemnation proceedings, see Eminent Domain, 103-117. Suspension of appointment by appeal, see Executors and Administrators, 7. Not triable by jury, see Jury, 10. Costs on appeal in foreclosure of mechan- ics' liens, see Mechanics' Liens, 63, 64. Appeal by city in prosecution under ordi- nance, see Municipal Corporations, 103, 104. Review of proceedings on motion for new trial, see New Trial, 40. Inadequacy of remedy, see Prohibition, 2. Review of proceedings before Railroad Commission, see Railroads, 30, 37-47. Receivership pending bankruptcy appeal, see Receivers, 5. Order of removal, appealability, see Re- moval of Causes. 4. Remand for resentence, see Sentence and Punishment, 21. In proceedings special assessment, see Taxation, 142, 143. In actions for delay of telegram, see Tele- graphs and Telephones, 36. Computation of time for perfecting ap- peal, see Time, 1, 2. From order denying change of venue, see Venue, 8. In proceedings to contest will, see Wills, 133-137. 1. RIGHT OF APPEAL. a. In General. 1. Bight Purely Statutory. The right of appeal in all cases is a right created by statute, and, in the absence of a statute conferring the right, an appeal will not lie. Commonwealth v. American Express Co. (Ky.) 1916E-S7.J. APPEAL AND ERROR. 39 2. Persons Entitled to Appeal. An appeal by third persons from a judgment annulling an election on the prohibition question will be dismissed where appel- lants do not allege and prove a direct pecuniary interest in the suit. A future, contingent, and speculative interest con- fers no right of action or of appeal. Alex- andria v. Police Jury (La.) 19.18A-362. (Annotated.) 3. Interest in Abstract Question. A city which was made a defendant in mort- gage foreclosure proceedings, and whose lien for special assessments on the land was held superior to that of the mort- gage, cannot, because of its interest in the abstract question of law, appeal from that part of the decree holding that the lien of another special assessment which the city had sold to another defendant, was inferior to the mortgage. Carstens & E'arles v. Seattle (Wash.) 1917A-1070. Note. Right of citizens or taxpayers to appeal as such from judgment in proceeding to which they are not parties. 1918A-365. b. In Actions for Penalty. 4. Ky. St. 2569b, subsec. 2, makes the transportation of intoxicating liquors into prohibition territory a misdemeanor, pun- ishable by fine and imprisonment. Cr. Code Prac. 347, gives the court of ap- peals jurisdiction of appeals in penal ac- tions, and in prosecutions for misdemean- ors, if the judgment be or might have been for a fine exceeding $50. Section 352 declares that a judgment on a verdict of acquittal of an offense punishable by imprisonment shall not be reversed, but that an appeal may be taken by the com- monwealth as provided in section 337, when important to the correct and uni- form administration of the criminal law. Section 337 prescribes the commonwealth's appeal in felony cases before a final judg- ment that the law may be determined by the court of appeals before a final trial. Section 355 declares that, if the prosecu- tion be by penal action, the appeal shall be similar in all respects to appeals in civil actions. Section 11 provides that proceedings in penal actions shall be regu- lated by the c-ode of practice in civil ac- tions. Held that, as an appeal does not lie in a civil action except from a final judgment or order therein which either terminates the action itself or operates to divest a right so that the court after term hag no power to put the parties in their original condition, the commonwealth's penal action against an express company for violation of the liquor statute to re- cover fines of $200, in which there was a verdict of guilty in the amount of $100, and in which the judgment was set aside and a new trial granted, was never ter- minated, so that both the commonwealth's appeal and the company's cross-appeal would be dismissed. Commonwealth v. American Express Co. (Ky.) 1916E-875. (Annotated.) c. Waiver of Eight. 5. Plaintiff, by replying to a new plea supported by affidavit and certificate un- der the Baltimore City Practice Act, and by proceeding to trial, waives her right of appeal from the action of the court in permitting the withdrawal of the former pleas. Shoop v. Fidelity, etc. Co. (Md.) 1916D-954. 6. Effect of Paying Fine. The defend- ant, a foreign corporation, indicted for a violation of the statute prohibiting an unlawful combination in restraint of trade, sought an opportunity to change its plea of not guilty to guilty and receive sen- tence. The sentence immediately imposed was a fine, which was at once paid. Six months thereafter, lacking a few days, this appeal was taken. Upon the state's motion to dismiss the appeal it is made to appear that appellant paid the fine volun- tarily with the intention to abide by and comply with the sentence of the court, and hence the appeal should be dismissed. State v. People's Ice Co. (Minn.) 1916C- 618. (Annotated.) Note. Payment of fine in criminal case as waiver of right to appeal. 1916C-619. d. Eight to Second Appeal. 7. Failure to Perfect Appeal. Under Eem. & B'al. Wash. Code, 1735, providing that no withdrawal of an appeal and no dismissal not on the merits shall preclude any party from taking another appeal within the time limited, the failure of an appellant to perfect an appeal by giving bond within the time limited after the fil- ing of his notice does not prevent him from thereafter serving a new notice and perfecting his appeal thereunder. Car- stens & Earles v. Seattle (Wash.) 1917 A- 1070. 2. JURISDICTION AND POWETtS OF APPELLATE COUET. a. In General. 8. New Trial, Motion in Appellate Court. A petition in a criminal case to rehear or grant a new trial for newly discovered evidence cannot be entertained in the Supreme Court. State v. Salisbury Ice, etc. Co. (N. Car.) 1916C-728. 9. Jurisdiction Matters Precluding Ju- risdiction not Actually Involved. In a suit against a city for salary due a mar- shal, where none of the objections to Laws Mo. 1913, p. 517, under which the DIGEST. 1916C 1918B. city claimed to have Temoved him, in- volved a disiueorporation of defendant municipality or its right to exist as a city of the third class, the supreme court was not precluded from considering such ob- jections by the rule that the corporate existence of a municipal corporation can only be attacked by the state, through its proper officers. Barnes v. Kirksville (Mo.) 1917C-1121. 10. Jurisdiction of Supreme Court Rev- enue Act. Since an action by a township against a city for road and bridge funds levied and collected in the township and wrongfully paid over by the township officers to the city treasurer is an action involving a construction of the revenue laws, the Supreme oourt has jurisdiction thereof on appeal. Lamar Township v. Lamar (Mo.) 1916D-740. b. Amount in Controversy. 11. Under Burns Ind. 1914, 1389, 1391, providing that no appeal shall be taken to the Supreme Court where the amount in controversy does not exceed $50, unless a constitutional question is in- volved, in which case an appeal may be taken to the supreme court "for the pur- pose of presenting such question only," the supreme court, on appeal from a judg- ment for $25, can only determine the con- stitutional question raised, and cannot consider whether a proper judgment has been rendered on determining that the statute involved is constitutional. Chicago, etc. R. Co. v. Anderson (Ind.) 1917A-182. 12. Effect of Counterclaim. Under Iowa Code, 4547, declaring that no appeal to the district court from the final judgment of a justice shall be allowed when the amount in controversy does not exceed $25, a suit in which the petition claimed $20, which was denied by answer counter- claiming for $6.50, which was denied by plaintiff, does not involve more than $25, so that the justice's judgment for $20 against defendant is not appealable to the district court. Morrow v. Bell (Iowa) 1917D-98. (Annotated.) 13. Proceeding for Violation of Ordi- nance. Cal. Const, art. 6, 4, provide that the supreme court shall have juris- diction on appeal from the superior courts in all criminal cases, where judgment of death has been rendered, and that the dis- trict courts of appeal shall have jurisdic- tion in criminal cases prosecuted by in- dictment and information in a court of record, except in criminal cases, where judgment of death has been rendered. Held, that where defendant electric com- pany was prosecuted for violating a city ordinance requiring the sprinking of tracks, and was fined $400, an appeal lay to the district court of appeal and not to the supreme court. People v. Pacific Gas, etc. Co. (Cal.) 1917A-S23. c. Federal Courts. 14. Mode of Review Divorce Decree in Philippine Islands. Appeal, not writ of error, is the proper mode of reviewing in the Federal Supreme Court a decree of the supreme court of the Philippine Islands in a 'suit by a wife for divorce, alimony pendente lite, and a division of the con- jugal property. De La Rama v. De La Rama (U. S.) 1917C-111. d. Intermediate Appellate Courts. 15. As under N. Y. Code Civ. Proc. S 1346, as amended by Laws 1914, c. 351, providing that an appeal may be taken to the Appellate Division on question of law or on the facts or on both, from a judgment on a verdict, as from a judg- ment on a trial by referee or court with- out a jury, the appeal brings up the facts, as well as the exceptions, in all eases, a reversal by the Appellate Division, silent as to its grounds, will in a jury case, as in others, import that the finding's of fact, by whomsoever made, were ap- proved by the Appellate Division, so that its reversal will be reviewable by the Court of Appeals on that assumption. Middleton v. Whitridge (N. Y.) 1916C- 856. 16. Power of Appellate Court to Make New Findings. The power of the Appel- late Division, under N. Y. Code Civ. Proc. 1317, as amended by Laws 1912, c. 380, to make new findings of fact and a final adjudication on the merits in a case tri- able of right by a jury, is limited by Const, art. 1, 2, providing, "The trial by jury in all cases in which it has been here- tofore used shall remain inviolate forever, but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law," so that in such a case the ultimate decision of all disputed questions of fact must be by a jury, in tho absence of consent to a decision of them by the court. Middleton v. Whitridge, (N. Y.) 1916C-856. 17. A judgment of reversal by the Appellate Division in a jury case, grant- ing a final judgment dismissing the com- plaint rendered before amendment of X. Y. Code Civ. Proc. 1346, by Laws 1914, c. 351, is reviewable at least to the extent of determining whether it hail power to dismiss the complaint. Middle- ton v. Whitridge (N. Y.) 1916C-856. 18. A judgment of reversal in a jury case by the Appellate Division, granting a new trial, rendered before amendment of N. Y. Code Civ. Proc. 1346, by Laws 1914, c. 351, would not be reviewable, un- less it affirmatively appeared that the find- ings of the jury had been affirmed. Mid- dleton v. Whitridge (N. Y.) 1916C-856. 19. That a judgment of the Appellate Division is entered on its unanimous de- APPEAL AND ERROR. 41 o.ision that there is evidence supporting or tending to sustan a findng of fact or a verdict not directed by the court does not, under Const, art. 6, 9, and N. Y. Code Civ. Proc. 191, subd. 4, deprive the Court of Appeals of jurisdiction to review it, but that specific question of law alone is not reviewable. Middleton v. Whit- ridge (N. Y.) 1916C-856. 20. An original finding or decision by the Appellate Division, under the author- ity of Code N. Y. Civ. Proc. 1317, as amended by Laws 1912, c. 380, is not a decision that there is evidence to sustain a finding of the trial court or a verdict, which, being unanimous, is, under Const, art. 6, 9 and Code Civ. Proc. 191, subd. 4. not reviewable by the Court of Appeals. Middleton v. Whitridge (N. Y.) 1916C- 856. 21. The decision of the Appellate Divi- sion that there was no evidence to sustain the verdict is not one that there was "evi- dence supporting or tending to sustain a finding of fact or a verdict not directed by the court," which, if unanimous, is un- der Const, art. 6, 9, and N. Y. Code Civ. Proc. 191, subd. 4, not reviewable by the Court of Appeals. Middleton v. Whit- ridge (N. Y.) 1916C-856. 22. The judgment of the Appellate Divi- sion, though unanimous, being one of re- versal, appeal lies to the Court of Appeals without allowance of it, pursuant to N. Y. Code Civ. Proc. 191, subd. 2. Middleton v. Whitridge (N. Y.) 1916C-856. 23. Action Involving Freehold. Where a vendee assigned his contract as security for payments to be made thereon by the assignee, who thereafter completed the payments and took a deed from the ven- dor, a suit by the vendee to enforce spe- cific performance against the assignee's heirs does not involve a freehold; and hence an appeal in such suit should be taken to the appellate court. Henry v. Britt (111.) 1917C-977. 24. Orders Appealable. An order of the Appellate Division which annuls an order of the Public Service Commission without granting a rehearing is appealable to the Court of Appeals. People v. McCall (N. Y.) 1916E-1042. e. Constitutional Questions. 25. Constitutional Question Unneces- sarily Raised. The Supreme Court on appeal has jurisdiction and will determine the constitutionality of a law, although the cause can be decided upon other grounds, where the constitutional question is made in good faith and relied on in the case, since by Tenn. Acts of 1907, c. 82, establishing and defining the powers of the Court of Civil Appeals, jurisdiction of that court is defeated by the presence of a constitutional question. Memphis St. R. Co. v. Rapid Transit Co. (Tenn.) 1917C-1045. 3. APPEALABLE JUDGMENTS AND ORDERS. a. In General. 26. Overruling of Demurrer. An order overruling a demurrer to the complaint on the ground that it failed to state a cause of action is appealable. Woods v. Rock Hill Fertilizer Co. (S. Car.) 1917D-1149. 27. Nonsuit. The rulings and orders on motions for nonsuit and for the direction of a verdict are not ordinarily appealable until after final judgment. Woods v. Rock Hill Fertilizer Co. (S. Car.) 1917D-1149. 28. On appeal from the overruling of motions for a nonsuit and for the direc- tion of a verdict, not ordinarily appeal- able until after final judgment, and from an appealable order overruling a demurrer, the matters involved will be determined, in view of the fact that the reason of the rule against appeals from orders before final judgment is to prevent unnecessary delay in the trial of causes. Woods v. Rock Hill Fertilizer Co. (S. Car.) 1917D- 1149. 29. Prosecution for Nuisance. A pro- ceeding by indictment for maintaining a nuisance under the Canadian statute (R. S. c. 146, 222, 223) providing that a person convicted thereunder, though liable to fine or imprisonment, "shall not be deemed to have committed a criminal offense," is a civil and not a criminal case. Accordingly the Privy Council may enter- tain an appeal in such a proceeding with- out determining whether the Canadian statutes (R. S. c. 146, 1025) prohibiting appeals from the judgment of the Domin- ion courts in criminal cases is an infringe- ment on the royal prerogative to hear appeals in council. Toronto R. Co. v. Rex (Eng.) 1918A-991. 30. Correction of Record. The action of the lower court, on an application for cor- rection of the record and in reference to the changes requested, is final and not reviewable on appeal. Dutton v. State (Md.) 1916C-89. 31. Order Revoking License. The power of the district court under Laws Utah 1911, c. 106, 10, to revoke liquor licenses in cities of the first and second classes, as is its power under section 3, to order their issuance therein, is administrative, so that, in the absence of provision in the statute therefor, appeal does not lie from its order, ruling, or judgment revoking a license. In re Grant (Utah) 1917A-1019. (Annotated.) Note. Right to and effect of judicial review of revocation of liquor license. 1917A- 1024. 42 DIGEST. 1916C 1918B. b. In Administration or Probate Pro- ceedings. 32. Revocation of Letters. Where the public administrator has no superior right to appointment as administrator with the will annexed, no appeal will be allowed from the discretionary order revoking his letters. Brinckwirth v. Troll (Mo.) 1918B- 1056. (Annotated.) c. In Contempt Proceedings. 33. Questions of Fact. The decision of the trial tribunal on the facts in a pro- ceeding for contempt is not reviewable on a writ of error. In re Independent Pub. Co. (Fed.) 1917C-1084. d. In Partition Suits. 34. In an action for partition, a judg- ment against appellants' claim of an in- terest in the land is final as" to them and appealable, though interlocutory as to par- ties adjudged to have an interest. Albany Hospital v. Albany Guardian Society (N. Y.) 1916I>-1195. e. Granting or Refusing New Trial. 35. A motion for a new trial being ad- dressed to the court's discretion, a writ of error will not lie to review the court's de- cision on it, in the absence of an abuse of discretion. Philadelphia, etc. R. Co. v. Gatta (Del.) 1916E-1227. 36. Denial of New Trial. The action of the lower court in overruling a motion for a new trial is not reviewable by the Court of Appeals. Dutton v. State (Md.) 1916C- 89. f. In Attachment Proceedings. 37. Dissolution of Attachment. Mass. Kev. Jjaws, c. 167, 110, as amended by St. 1909, c. 190, providing a summary hearing for relief against excessive or unreasonable attachment, prescribes a pro- ceeding incidental to the action in which the attachment is made, and though the writ had not been entered in court when the petition for relief was filed, the action was pending, so that the superior court's order, dissolving the attachment, is an in- terlocutory order in that action, from which no appeal can be entered in the supreme judicial court. Richardson v. Greenhood (Mass.) 1918A-515. g. In Criminal Cases. 38. Denial of Motion to Strike Out Judgment. The action of the lower court on a motion to strike out the judgment and sentence is reviewable by the Court of Appeals. Dutton v. State (Md.) 1916C- 89. h. In Habeas Corpus Proceedings. 39. The question of the jurisdiction of a court-martial is open to inquiry on habeas corpus issued from a court having authority to issue that writ; and the ac- tion of such court in the premises may be reviewed by this court in the exercise of the jurisdiction conferred by article 94 of the constitution. State v. Long (La.) 1917B-240. 4. PARTIES TO APPELLATE PRO- CEEDINGS. 40. Administrator With Will Annexed, bpon appeal from a judgment of the dis- trict court refusing to admit a will to probate, the administrator with the will annexed is entitled to bring a writ of error and is the only necessary party plaintiff in error. Bell v. Davis (Okla.; .1917C-1075. (Annotated.) 5. FORM OF APPEAL. 41. Omission of Prayer for Relief. Though Conn. Gen. St. 1902, 79S, pro- vides a form of appeal with which every appeal shall be substantially in accord- ance, which contains a prayer for relief, an appeal otherwise sufficient is not fatally defective through omission of prayer for relief. Douthwright v. Champ- lin (Conn.) 1917E-512. 6. NOTICE OF APPEAL, a. Form and Contents. 42. Surplusage. On appeal from an order of the Appellate Division, modify- ing and affirming an order of the Special Term, the mere fact that the notice of appeal stated that an interlocutory order of the Special Term was also to be re- viewed is a harmless irregularity, for the right to review that order followed from the right to review the order of the Appel- late Division affirming it. Matter of Hein- sheimer (N. Y.) 1916E-384. b. On Whom Served. 43. Under Cal. Code Civ. Proc. 578, 579, providing that judgment may be for or against one or more of several defend- ants, one of several joint tort-feasors, against all of whom judgment has been rendered, may be granted a new trial without it being granted to the others, so that some of them, moving for new trial, need not serve on the others notice there- of, or, appealing from the denial thereof, notice of the appeal. Fearon v. Fodera (Cal.) 1916D-312. 44. Defendants appealing from a judg- ment quieting title in plaintiff and award- ing him certain damages against each defendant need not give notice of their appeal to a defendant against whom judg- ment was rendered by default, as he can- not be affected by reversal of the judgment against them. Fearon Y. Fodera (Cal.) 1916D-312. APPEAL AND ERROR. 43 45. Defendants as to whom the judg- ment is silent, but who by their answers have disclaimed any interest in the land in suit, cannot be affected by reversal of judgment against other defendants, and therefore need not be served as adverse parties with notice of their appeal. Fearon v. Fodera (Cal.) 1916D-312. 7. PERFECTION OF APPEAL. 46. Time When Appeal is Perfected. An appeal is perfected at the time the transcript and assignment of errors are filed. Cincinnati, etc. R. Co. v. McCul- lom (Ind.) 1917E-1165. 8. TIME OF APPEAL. a. In General. 47. Burns' Indiana Annotated St. 1914, 286, providing that, whoever has a claim for personal injuries obtains a judgment, and who dies pending the appeal or before a new trial after re- versal, his claim may be prosecuted by his personal representatives, must be con- strued to mean that the action survives to the personal representative of a judgment piaintiff, dying while awaiting an appeal or during the continuance of the appeal, for the words "pending such appeal" must mean during the time before appeal, and while an appeal is impending, and the word "pending" means during the time intervening before, awaiting, until, and the statute, so construed, is not unconsti- tutional as class legislation. Cincinnati, etc. E. Co. v. McCullom (Ind.) 1917E- 1165. 48. Under Wash. Bern. & Bal. Code, 1720, providing that no party can appeal from any judgment already appealed from, more than ten days after service of the notice of the former appeal upon him, the perfecting of an appeal by a party who had no interest in the controversy entitling it to appeal, and whose appeal was thereafter dismissed on that ground, does not prevent an interested party from appealing more than ten days after the notice of the former appeal. Carstens & Earles v. Seattle (Wash.) 1917A-1070. 49. Under Cal. Code Civ. Proc. 941b, providing that, as an alternative method of appeal, the appellant may file with the rlerk of the court below a notice stating that he appeals, identifying the judgment with reasonable certainty, and requiring notice of appeal to be filed within 60 days from notice of entry of judgment, and where no notice of entry is given, within 6 months after entry of judgment, a notice filed with the clerk 31 days after judg- ment is sufficient. Martin v. Becker (CaJ.) 1916D-171. 50. Premature Appeal. Tft'here all par- ties to a suit enter into an agreement, which is entered upon the minutes of the court, to the effect that the judge may decide the case in chambers, during the vacation of the court, "and shall grant an order of appeal, both suspensive and devolutive, to either party, fixing the re- turn day and bond for either appeal, to have the same effect as if done in open court," and the judgment is rendered, the order of appeal granted, and the appeal lodged in this court in accordance there- with, such appeal will not be dismissed on the ground that it was taken prema- turely and before the expiration of the delay within which, ordinarily, a motion for new trial may be filed, the terms of the agreement authorizing the presumption that the right to file such motion wag in- tended to be waived. Succession of Lefort (La.) 1917E-769. b. When Time Begins to Bun. 51. The time allowed for appeal is com- puted from the entry of the decree, and, though service of the notice of appeal was not acknowledged until more than six months after the judge had filed an opin- ion, the appeal will not be .dismissed where less than six months had elapsed after the entry of the decree. Des Moines Sav- ings Bank v. Arthur (Iowa) 1916C-498. 9. BECOBD ON APPEAL. a. What Constitutes Becord. 52. Exceptions. Under Wash. Bern. & Bal. Code, 395, providing what shall be part of the record, exceptions shown by the record to have been in time allowed by an order of the court, made a part of the transcript, and certified therein by the clerk, cannot be stricken. Perine Machin- ery Co. v. Buck (Wash.) 1917C-341. b. Transcript and Abstract. 53. Supplying Deficiency in Abstract. The transcript of the reporter's notes will rot be ordered to be certified to the appel- late court to supply evidence omitted from the abstract, as the ofilce of the transcript is to settle disputes as to whether the record is as contained in the abstracts of the appellant or the appellee. Ottumwa v. McCarthy Improvement Co. (Iowa) 1917E-1077. c. Settlement and Certification. 54. Manner of Supplementing Becord. If there is any doubt or obscurity as to the reason for the court's ruling in refusing to permit the witness to be recalled, the proper method is to make the matter clear by a certiorari .or remand, so that the trial judge may state whether he merely exer- cised his discretion or decided as he did for want of power to rule otherwise. Me- 44 Donald v. McLendon (N. Car.) 1918A- 1063. d. Amendment of Record. 55. Issue as to Occurrence at Trial. W'here an issue of fact is raised as to what occurred on the trial, the proper procedure is to ask for a correction of the appeal in the Supreme Court of Errors, under Conn. Gen. St. 1902, 801, and what the facts were must be proved on an issue of fact raised, as provided in the statute. Barber v. Morgan (Conn.) 1916E-102. 56. After Decision. After the case has been submitted and an opinion filed, the appellant, who has lost on an imperfect appeal, will not be permitted to file a rec- ord which was not a part of the record when the case was disposed of; though a different rule prevails when a motion is made by appellee to file an additional rec- ord after an opinion has been handed down, and before the petition for rehearing has been disposed of. Myers v. Saltry (Ky.) 1916E-1134. e. Collusiveness of Record. 57. Conflict Between Case Made and Record. When the record and case con- flict, the former controls. McDonald v. McLendon (N. Car.) 1918A-1063. 58. Effect of Omission in Record. On a question of notice to a contractor of a city as to duty to make repairs, where the abstract does not contain all the evidence, it will be presumed that the omitted evi- dence sustained a ruling of the trial court that there was notice. Ottuinwa v. Mc- Carthy Improvement Co. (Iowa) 1917E- 1077. 10. BILL OF EXCEPTIONS, a. In General. 59. Necessity of Bill of Exceptions. Facts which occur in the trial of a case can only be brought to this court for review by a bill of exceptions certified by the trial judge. Florida East Coast R. Co. v. Car- ter (Fla.) 1916E-1299. 60. Conclusiveness. One convicted of crime, who accepts a bill of exceptions as qualified by the trial court, is bound by the qualification. Mason v. State (Tex.) 1917D-1094. 61. Establishment After Death of Judge. Where a murder case was tried August 25, 1914, and the bill of exceptions was in- dorsed "Presented" on November 21, 1914, by the presiding judge, vfho died January 3, 1915, without signing the same as a bill of exceptions, and it was stipulated that the bill presented truly stated the points for decision, together with the facts in the case, it will be established on motion. Brindley v. State (Ala.) 1916E-177. DIGEST. 1916C 1918B. 62. Refusal to Approve. The court did not abuse his discretion in refusing to approve the exceptions to the conclusions of fact filed by the defendants in error, upon which error is assigned in the cross- bill of exceptions. National Bank v. Amoss (Ga.) 1918A-74. b. Inclusion of All the Evidence. 63. Affidavits. Affidavits purporting to show misconduct of counsel, to be avail- able on appeal, must be included in the bill of exceptions. Bursow v. Doerr (Neb.) 1916C-248. 64. Remarks of Prosecuting Attorney. Improper remarks by the prosecutor can- not be considered on appeal, when not preserved by bill of exceptions. Ryan v. People (Colo.) 1917C-605. c. Correction. 65. Evidence held sufficient to justify the amendment of the bill of exception to con- form with the reporter's stenographic notes. Harris v. State (Wyo.) 1917A- 1201. 66. Use of Stenographer's Notes. Under "Wyo. Comp. St. 1910, 942, requiring the court reporter to attend court, take full stenographic notes of cases on trial, testi- mony, admissions, objections, rulings, and exceptions, and to preserve his notes, sec- tion 945, making the court reporter the judge's stenographer, and section 944, making his transcripts, when certified to by the clerk, prima facie evidence of the matters therein, his notes are such a part of the record that they may be received in evidence to correct the bill of exceptions. Harris v. State (Wyo.) 1917A-1201. d. Inclusion of Matter by Reference. 67. Incorporation of Transcript by Ref- erence. That the transcript was "referred to and made a part of a particular excep- tion" is not sufficient to give the transcript standing as part of the bill of exceptions so as to entitle the contents thereof to supersede the statement made in the bill. First National Bank v. Bertoli (Vt.) 1917B-590. 68. Reference to Record for Facts. A bill of exceptions, stating that plaintiff seasonably objected to the admission of certain testimony and when it was ad- mitted noted his exceptions, that he offered certain testimony which the presiding jus- tice excluded, and duly excepted, and that he requested the presiding justice to give certain instructions which were refused, and duly excepted, with no other state- ment of what the admitted or excluded evidence was and nothing to show the relevancy, materiality, or competency thereof or the appropriateness of the in- APPEAL AND ERROR. 45 stmctions, did not present separately each issue of law in the clear, distinct, sum- mary manner required by Me. Rev. St.. c. 79, 55, which provides that a party aggrieved by any of the opinions, direc- tions, or judgments of the presiding jus- tice may present written exceptions in a summary manner, which if found true shall be allowed and signed by the justice, though the record of the evidence was made a part of the bill of exceptions, since, while this is not improper,' the reference to the evidence or the Incorporation of the evidence as a part of the bill cannot take the place of a succinct and summary statement of the specific grounds of excep- tion in the body of the bill itself. Dennis v Waterford Packing Co. (Me.) 1917D- 788. 69. Incorporating Instructions by Refer- ence. A bill of exceptions referring to .purported instructions by number only, where no numbered instructions appeared in the record, did not sufficiently identify the instructions sought to be reviewed. Harris v. Bremerton (Wash.) 19160-160. 70. Identification of Evidence. To make the evidence in an action at law part of the record, it is only necessary to use such means of identification in the bills of ex- ception and orders as make the adoption thereof reasonablv certain. Wilson v. Shrader (W. Va.) 1916D-886. 11. ASSIGNMENTS OF ERROR. a. In General. 71. Denial of New Trial, Error cannot be assigned on the overruling of a motion for new trial. Parsons v. Trowbridge (Fed.) 1917C-750. b. Sufficiency. 72. Erroneous Assumption. Where the allegations of a complaint and the findings of fact were materially different in sev- eral particulars, assignments of error as- suming that the record showed that the allegations of the complaint had been found proven are improper. Walsh v. Bridgeport (Conn.) 1917B-318. 73. Assignments of Error Insufficient. Assignments of error held not available upon well-established rules of practice. State v. Chavez (N. Mex.) 1917B-127. 74. Definiteness. An assignment that the trial court erred in sustaining objec- tions to questions to a witness concerning a certain person is too general to raise any question for review. State v. Von Klein (Ore.) 1916C-1054. 75. General Assignment. An assignment of error that "the court erred in entering judgment for the plaintiffs, to which the defendant then and there excepted," is in- sufficient to raise any question for review by the appellate court. Philadelphia Casu- alty Co. v. Fechheimer (Fed.) 1917D-64. 76. Particularity. An assignment of error complaining that the court erred in not holding a statute unconstitutional, but not pointing out any grounds, is too gen- eral for consideration. State v. Howse (Tenn.) 1917C-1125. 77. Form Joinder of Several Assign- ments Omission of References to Record. An omnibus exception or assignment of error covering numerous items or points, for an understanding of which the court must search through the abstract or tran- script, will not be considered. Davidson Bros. Co. v. Des Moines City R. Co. (Iowa) 1917C-1226. 78. Consideration ^Together. Where an instruction is considered in connection with other instructions upon the same sub- ject, or the entire charge, and is found to be free from the defects complained of ir the assignment of error, the assignment will fail. Eobinson v. State (Fla.) 1917D- 506. c. Cross-assignments. 79. Cross-errors. A defendant in error, who did not himself institute proceedings in error, cannot in the appellate court go beyond supporting the judgment and op- posing the assignments of error by the adverse party. Philadelphia Casualty Co. v. Fechheimer (Fed.) 1917D-64. 80. Errors Assigned by Appellee, On an appeal by plaintiff, errors assigned by de- fendant's counsel cannot be considered. Niebalski v. Pennsylvania R. Co. (Pa.) 1917C-632. 81. Necessity of Cross-assignments of Error. A defendant who does not appeal and who does not by cross-assignment in his brief ask for a modification of the judgment, as authorized by Mont. Rev. Codes, 7118, cannot on the appeal of plaintiff complain of the judgment. Will- iams v. Johnson (Mont.) 1916D-595. 12. DISMISSAL OF APPEAL, a. Time for Motion. 82. Notice of Motion. Under Rem. & Bal. Wash. Code, 1733, providing that motion to dismiss an appeal shall be made at such time as shall be fixed by the rules of court and under supreme court rules 18, 19 (132 Pac. xiii, xiv), a motion to strike the transcript and dismiss the ap- peal, on the ground that no statement of facts had been brought up and no excep- tions taken below, cannot be considered, where not made on ten days' notice. City Sash, etc. Co. v. Bunn (Wash.) 191SB-31. b. Grounds for Dismissal. 83. Unauthorized Appeal. An appeal which is not authorized by law will, upon 46 DIGEST. 1916C 1918B. proper motion, be dismissed by this court. Oklahoma City v. Tucker (Okla.) 1917D- 984. 84. Timeliness of Proceedings. Where judgment in an election contest appealed from was rendered April 18th, and April 28th the transcript was filed with the clerk of the court of appeals, and April 19th a regular supersedeas bond was executed be- fore the clerk of the circuit court, the obligee being the appellee, but, after dis- covery of the fact that the bond was not properly executed to the clerk of the cir- cuit court, and on the same day the record was filed in the court of appeals, another bond was executed in which the clerk of the circuit court was named as obligee, the supersedeas bond wijl not be discharged and the appeal dismissed because the bond was not executed as provided by Ky. St. 1596a, subsec. 12, providing that either' party to an election contest may appeal from the judgment of the circuit court to the court of appeals by giving bond to the clerk of the circuit court with good surety, conditioned for the payment of all costs and damages, etc., and by filing the record in the clerk's office of the court of appeals within thirty days after final judgment in the circuit court. Johnson v. Little (Ky.) 1918A-70. 85. Entitling Papers. Iowa Code, 4108, providing that on appeal the cause shall be docketed as in the court below, being rem- edial, is simply directory, and the fact that the abstract designated all parties except plaintiff as defendants or appellees, where- as, some were defendants in cross-petitions and not in the main action, is not ground for dismissal, where the relation of the par- ties to the case was disclosed. Des Moines Savings Bank v. Arthur (Iowa) 1916C-498. 86. Mandate of Court Below Executed. A writ of error from the Federal Supreme Court to review a judgment of reversal with instructions to dismiss the complaint which a circuit court of appeals had en- tered on rehearing after it had recalled its mandate, previously issued, ordering a nw trial, and had set aside the judgment of the court below, need not be dismissed, either because the trial court had thereto- fore entered judgment on the original man- date, and had adjourned for the term with- out any application made to recall such judgment, or any writ of error to review such judgment sought, or because the de- fendants in error in the circuit court of appeals, on whose petition the rehearing was granted, had waived therein any right to a new trial, and consented that the case be disposed of one way or the other. Thorn- sen v. Cayser (U. S.) 1917D-322. c. Questions Considered. 87. Motion to Dismiss Merits not Con- sidered. Whether an order of the court of chancery, disbarring a solicitor in chancery from practicing as solicitor and counselor in the court of chancery, is sustainable as an order suspending him from practicing in the court of chancery until the supreme court has acted under the statute, will not be considered on a motion to dismiss an appeal from the order, but the question can be dealt with only on the appeal itself in determining whether the order shall be affirmed, reversed, or modified. In re Hahn (N. J.) 1918B-830. See 2, e, supra, as to right to second ap- peal after dismissal of first for failure to perfect. d. Reinstatement of Appeal. 88. Necessity of Showing Merits. Upon a motion to reinstate an appeal, upon the ground that the order of dismissal was en- tered against appellant through his mis- take, inadvertence, surprise, or excusable neglect, appellant must show apparent merit in the appeal. Hilmen v. Nygaard (N. Dak.) 1917A-282. 13. HEARING OP APPEAL. 89. Preference on Docket Public Inter- est Involved. The appeal of citizens and taxpayers of a parish from judgment an- nulling, at suit of a city, an election vot- ing prohibition in the parish, involves a public interest, entitling it to be trans- ferred to the preference docket. Alexan- dria v. Police Jury (La.) 1918A-362. 14. EXAMINATION OF CASE ON AP- PEAL. a. What is Brought Up on Appeal. (1) Matters not in Record. 90. Evidence not in Record. Where the record is without a transcript of the evi- dence, the only question on appeal is whether the pleadings support the judg- ment. Myers v. Saltry (Ky.) 1916E-1134. 91. Evidence not in Record. A verdict cannot be reviewed in the absence of the evidence. State v. Haffer (Wash.) 1917E- 229. 92. Question not Raised at Trial. In a prosecution for conspiracy, where the de- fense that defendants had been entrapped by a detective into the commission of the alleged conspiracy was not raised or ruled upon at the trial, it cannot be considered on appeal. Hummelshime v. State (Md.) 1917E-1072. (2) Rulings on Evidence. 93. Necessity of Offer of Proof. In an action for the death of plaintiff's intestate while employed in handling switches at de- fendant's electric lighting station, where a witness testified on direct examination APPEAL AND ERROR. 47 that the station and the apparatus therein were safe if used with reasonable care, and where plaintiff makes no offer to prove that the association, of which the witness was a member had taken any position as to the safety of a method of wiring by which the blade's of the switches would be alive when down, the exclusion of cross-examination as to the association's position thereon will not be reveiwed. McCarthy's Admr. v. Northfield (Vt.) 1918A-943. (3) Rulings on Instructions. 94. Construction as Whole. Instructions must be construed as a whole, and the ap- pellate court may not construe away the plain meaning of t a charge viewed as a whole by any process of dissection, dis- memtbering it and leaving only separate parts. McCurry v. Purgason (N. Car.) 1918A-907. (4) Attachment Proceedings. 95. Dissolution of Attachment. If any question of law could ever be open upon a petition under Mass. Rev. Laws, c. 167, 110, as amended by St. 1909, c. 190, for the dissolution of an attachment, the pro- cedure, in the absence of a report by a presiding judge, is to file a bill of excep- tions, which, if allowed, will await the stage of final disposition of the case when it may be brought to the supreme judicial court. Richardson v. Greenhood (Mass.) 1918A-515. (Annotated.) Note. Appeal in principal action as bringing attachment or garnishment proceeding up for review. 191SA-516. b. Second Appeal. 96. Law of Case Subsequent Appeal. Decisions of appellate courts of this state, upon all questions of law involved in any case, are binding, not only on the lower court, but on the appellate court as well, in case of a subsequent appeal. In re Ap plication of State, etc. (Okla.) 1916E-399. 97. Decision in Former Appeal. *A. de- cision of the supreme court, on a former appeal in an action for an employee's death, that loose boards lying near the place of the accident did not show negligence was not res judicata of the admissibility of evi- dence of such loose boards in a subsequent action; the former decision being on the weight of the evidence and not to its ad- missibility. Korab v. Chicago, etc. R. Co. (Iowa) 1916E-637. 98. Question of Law or Fact. Where the industrial commission's finding that de- cedent left a widow is based on its deter- mination that common-law marriages are valid, a question of law is raised which survives the appellate division's unanimous affirmance of the commission's finding. Ziegler v. P. Cassidy's Sons (N. Y.) 1917E- 248. 99. Decision on Former Appeal Law of Case. The law as declared in a former ap- peal, where there is no material difference in the evidence or questions presented, is the "law of the case" during the subse- quent trial or appeal. The refusal of an instruction embracing the law as declared in such former appeal constitutes reversible error. Marth v. Kingfisher Commercial Club (Okla.) 1917E-235. 100. Decision as Law of Case. A hold- ing on appeal that a locomotive fireman, who was on his way back to his engine after a visit to a lunch room when he was killed, was not a trespasser in the yards, so far as relates to the defendant's duty of care, is the law of the case on a subsequent appeal where the facts are not materially different. Ingram's Admr. v. Rutland R. Co. (Vt.) 1918A-1191. 101. Law of the Case. A proposition de- cided upon a former appeal becomes the law of the case and should not be re-ex- amined in a subsequent appeal in the same action. Orr v. Sutton (Minn.) 1916C-527. 102. Review of Previous Holding. While the supreme court will not ordinarily re- view its previous holding on a subsequent appeal, yet the so-called "law of the case" ii not binding when clearly erroneous and leading to unjust results, especially where no rights have accrued in reliance upon the former decision. Brewer v. Browning (Mass.) 1918B-1013. c. Examination of Questions of Fact. (1) In General. 103. Questions of Fact Combination in Restraint of Trade. The facts are not still in controversy on a writ of error from the Federal Supreme Court to a circuit court of appeals to review a judgment which re- versed, with instructions to enter an order dismissing the complaint, a judgment in favor of plaintiffs in an action to recover treble damages for the injuries sustained as the result of a combination alleged to restrain foreign trade, contrary to the Act of July 2, 1890 (26 Stat. L. 209, c. 647, 7 Fed. St. Ann. 336), where the cas was de- cided in the circuit court of appeals upon the proposition of law that the combination charged was not an unreasonable restraint of trade, and that such character was neces- sary to make it illegal under that statute, both trial and appellate courts concurring as to the fact of combination and restraint and the means employed, and their conclu- sion not being clearly erroneous. Thqmsea v. Cayser (U. S.) 1917D-322. 104. Auditor's Report. An auditor's find- ing for plaintiff is evidence sufficient to warrant a verdict for him, unless the facta 48 DIGEST. 1916C 1918B. stated in the report are insufficient to sup- port the conclusion or so inconsistent as to neutralize themselves. Heeht v. Boston Wharf Co. (Mass.) 1917A-445. 105. Evidence Chiefly by Deposition. Upon the question of recognition, and es- pecially upon the affirmative of that ques- tion, almost all of the evidence was by deposition. It is held that on appeal such evidence will be reviewed. Record v. Ellis (Kan.) 1917C-822. 106. Review of Facts. The general ver- dict and findings being supported by com- petent evidence and approved by the trial court will, under the settled rule, be up- held. Denver v. Atchison, etc. E. Co. (Kan.) 1917A-1007. 107. In reviewing evidence on appeal from denial of a motion for new trial, the appellate court can consider only the evidence most favorable to the appellee. Western Union Tel. Co. v. Louisville, etc. K. Co. (Ind.) 1917B-705. (2) Power of Appellate Court to Weigh Evidence. 108. Sufficiency of Evidence. The trial court should not set aside a verdict as against the evidence where there was some evidence to sustain it, but should not re- fuse to set it aside where the manifest in- justice of the verdict is so plain as to denote mistake, prejudice, corruption, or partiality. Seidler v. Burns (Conn.) 1916C-266. 109. Weight of Testimony. The su- preme court, in passing on a motion to take a case from the jury, either at the close of plaintiff's evidence or of all the evidence, can only consider whether there is any evidence in the record fairly tend- ing to support plaintiff's cause of action, and it is never a question of the weight ot the testimony; all controverted ques- tions of fact being settled by the verdict and the judgment of the appellate court. Mahlstedt v. Ideal Lighting Co. (111.) 1917D-209. 110. Sufficiency of Evidence. Where there is a substantial conflict in the evi- dence, the general rule is that an appel- late court will not review it with a view to determine its sufficiency to support the findings of the trial court, but there is an exception where the finding ig the result of bias or prejudice, mistake or misappre- hension, or misconception of the legal effect of the evidence, or where there is none; nor can a judgment but slightly sup- ported by the evidence and manifestly against its weight be permitted to stand. Neelley v. Farr (Colo.) 1918A-23. 111. Weight of Evidence. Under Ore. Const., art. 7, 3 T as amended in 1910 (see Laws 1911. p. 7), providing that no fact tried by a jury shall be otherwise re-exain- ined in any court of the state, unless the court can affirmatively say there is no evidence to support the verdict, where the supreme court cannot say that there was no competent evidence to support a verdict, it cannot hold error in overruling a mo- tion for a nonsuit or a directed verdict. Taggart v. Hunter (Ore.) 1918A-128. 112. Questions of Fact. Where the trial judge passed upon the evidence in passing upon the motion for new trial, exercising his judicial discretion therein, and permit- ting the facts produced by plaintiff to sus- tain verdict in her favor, the supreme court cannot interfere, on the ground that the evidence is improbable, contradictory, and opposed to every instinct of human nature, in the absence of such error as ac- tually or presumptively prevented a fair trial to defendant. Jensen v. Lawrence (Wash.) 1917E-133. 113. It is not the province of the su- preme court to weigh the evidence as it appears in the transcript, but only to de- termine whether there is any evidence from which the trial court might draw its con- clusion; and a conclusion, in a suit to can- cel a conveyance because procured by de- fendants' fraud, that one defendant had such knowledge of the transaction between the other defendant and plaintiff, whereby plaintiff conveyed realty to him, as would deprive him of the rights of an innocent purchaser, in view of the opportunities of the trial court for testing the veracity of the witnesses, will not be disturbed. "Gil- christ v. Hatch (Ind.) 1917E-1030. 114. Weight of Evidence. It is not the purpose of Kan. Code Cr. Proc., 528, au- thorizing a reversal in case of the death penalty if the verdict is against the weight of evidence or against law, to substitute the conclusions of fact which may be drawn by the appellate judges for the con- clusions of fact which have been drawn from the evidence bv the jury. People v. Becker (Kan.) 1917A-600. (3) Verdict or Finding of Jury. (a) In General. 115. Review of Question of Fact. Where there is any credible evidence to support the verdict, is cannot be disturbed. Gist v. Johnson-Carey Co. (Wis.) 1916E-460. 116. Verdict on Conflicting Evidence. A verdict in an action for libel, supported by substantial evidence that the published charges were untrue, concludes the ques- tion on appeal. Wilson v. Sun Pub. Co. (Wash.) 1917B-442. 11 7. Verdict on Conflicting Evidence. A verdict based upon substantial, though con- flicting, evidence, will not be disturbed on appeal. Smith v. Barnes (Mont.) 1917D- 320. APPEAL AND ERROR. 49 118. Conflicting Evidence. Where a con- troverted question of fact as to the exist- ence of an escrow agreement and as -to its conditions was presented, the verdict of the jury thereon is conclusive. Northern Trust Co. v. Bruegger (N. Dak.) 1917E- 447. 119. Sufficiency of Evidence. A verdict of the jury will be upheld on appeal if there is any substantial evidence to sup- port it. Mason v. Bowen (Ark.) 1917D- 713. 120. Scope of Review Sufficiency of Evidence. A verdict approved by the trial court will be accorded great deference on appeal. Frey v. Bhode Island (R. I.) 1918A-920. 121. The evidence is not so conclusively against the verdict as to justify a reversal of the order appealed from. Wising v. Brotherhood of American Yeomen (Minn.) 1918A-621. 12.2. A jury's finding on substantial con- flicting evidence cannot be questioned on appeal. Spain v. Oregon-Washington R. etc. Co. (Ore.) 1917E-1104. 123. A verdict on conflicting evidence and sustained by evidence, if believed, will not be disturbed on appeal. Switzer v. Sherwood (Wash.) 1917A-216. ^ 124. The court, in testing the legal suffi- ciency of the evidence of plaintiff to sus- tain a verdict in her favor, must give that evidence the highest probative value. Weber v. Weber (Ark.) 1916C-743. 125. A verdict on substantially conflict- ing proof will not be set aside, where it is supported by sufficient competent evi- dence. Bursow r. Doerr (Neb.) 1916C- 248. 126. Where there is a substantial con- flict in the evidence, the findings of the court will not be disturbed. Bower v. Moorman (Idaho) 1917C-99. 127. Questions Reviewed Amount of Damages. A finding by the jury as to the amount of compensatory damages due a patient who had been imprisoned in a private sanatorium in a room next to a lunatic, approved by the trial court, can- not be reviewed on appeal. Cook v. High- land Hospital (N. Car.) 1917C-158. 128. Verdict on Conflicting Evidence. A verdict on conflicting evidence will not be set aside on appeal. Seidler v. Burns (Conn.) 1916C-266. 129. Where the evidence is conflicting as to the facts on which the opinions of expert witnesses are based, and where the opinions of such witnesses, on a given state of facts in the case, materially differ, it is for the 4 jury to determine, and their finding is con- clusive. McAlinden v. St. Maries Hospital Assoe. (Idaho) 1918A-380. 130. Where an ultimate material fact is to be inferred from other facts, it is for the trier of the facts to draw the infer- ence, and, when the facts upon which the inference is based are such that reason- able minds may draw opposite inferences therefrom, the appellate court cannot say that the fact found, as a result of the in- i'erence drawn, is not sustained by evi- dence, unless the facts are undisputed, and the verdict or finding is opposed to the only reasonable inference therefrom. West- ern Union Tel. Co. v. Louisville, etc. B. Co. (Ind.) 1917B-705. 131. Testimony to Facts Physically Im- possible. While the scintilla rule prevails as to the quantity of evidence necessary to carry a case to the jury, a verdict of the jury based on evidence contrary to the physical facts will be reversed, for the evidence to support a verdict must be such as is fit to induce conviction. Louisville, etc. R. Co. v. Chambers (Ky.) 1917B-471; (Annotated.) 132. In the case afc bar, while it may be true that the jury were not in a position to say beyond the possibility of a doubt that any one single fact in evidence or the absence of any one condition established conclusively the negligence of appellant's physician and surgeon in placing the cast upon the injured limb of respondent at the time and in the manner in which it was done, and in his failure to split the cast and thus permit free and uninterrupted veinous circulation, yet if from all the tes- timony and circumstances of the case there is evidence sufficient to establish a prima facie case, the conclusion reached by the jury based upon the evidence will not be disturbed on appeal. McAlinden v. St. Maries Hospital Assoc. (Idaho) 1918A- 380. (b) Verdict in Criminal Case. 133. General Verdict on Several Counts. A general verdict of guilty on an informa- tion in four counts, the first count only being sustained by evidence, will not be set aside on appeal where no attempt was made at trial to have unsupported counts withdrawn from jury. State v. Reed (Mont.) 1917E-783. 134. Weight of Evidence. A verdict will not be set aside as against the evidence where there is evidence to support it, and where it does not appear that the jury were not governed by the evidence. Rob- inson v. State (Ma.) 1917D-506. 135. Grounds for Reversal of Conviction Insufficiency of Evidence. In criminal cases the jury determines both the law and fact, and, in the absence of reversible 50 DIGEST. 1916C 1918B. error in the rulings of the trial court, the appellate court may not disturb the ver- dict on the sufficiency of the evidence. Hummelshime v. State (Md.) 1917E-1072. (4) Findings of Court. 136. Review of Finding. A finding by the district court, on appeal from a finding of the board of supervisors, that a state- ment of consent to the sale of intoxicating liquors is insufficient, will not be disturbed on appeal where there is room for reason- able minds to differ as to the facts. Riley v. Litchfield (Iowa) 1917B-172. 137. Decisions of Land Department Judicial Review. Courts have no power to review findings of fact by the Land De- partment which were within its province and duty to make. Daniels v. Wagner (U. S.) 1917A-40. 138. Presumption. Findings are pre- sumed correct, unless against the clear preponderance of the evidence. Heicke v. Heicke (Wis.) 1918B-497. 139. Review of Finding. Where decision of appellate division affirming award of the compensation commission was not unanimous, the court of appeals may con- sider whether there was any evidence to sustain the finding. Carroll v. Knicker- bocker Ice Co. (N. Y.) 1918B-540. 140. Review of Facts Conflicting Evi- dence. Where a court has considered con- flicting evidence, and made a finding or decree, it is presumptively correct, and un- less some obvious error of law has inter- vened, or some serious mistake of fact has been made, the finding or decree must be permitted to stand. Silver King Coal- ition Mines Co. v. Silver King Consol. Min. Co. (Fed.) 1918B-571. 141. Misconduct of Jury. A finding by the trial judge, denying defendant's mo- tion to set aside the verdict for misconduct of the jury, where based upon the evi- dence, is not reviewable. Cook v. High- land Hospital (N. Car.) 1917C-158. 142. Review of Facts. In determining whether a decision is supported by any evidence, the appellate court will consider only the evidence most favorable to the successful party. Anderson v. Knotts (Ind.) 1916D-868. ' 143. Finding on Conflicting Evidence. Findings based on conflicting evidence will not be disturbed on appeal. Jorgenson v. Gessell Pressed Brick Co. (Utah) 1917C- 309. 144. Evidence to Sustain Finding of Chancellor. A finding of the chancellor with reference to a state of accounts be- tween the parties, not against the pre- ponderance of the evidence, must be upheld and his decree affirmed. Streudle v. Leroy (Ark.) 1917D-618. 145. Review of Facts. A finding not contrary to the preponderance of the evi- dence will not be disturbed on appeal. Cost v. Shinault (Ark.) 1916C-483. 146. Sufficiency of Evidence. Where the record contains a fair quantum of admis- sible evidence to support the conclusions of the trial court, and there is nothing to show that it was not governed by proper rules of law, the supreme court accepts its findings of fact. Kogers v. Nevada Canal Co. (Colo.) 1917C-669. 147. Agreed Findings. Where counsel for appellant or plaintiff in error in the appellate court admit that the findings of fact made by the trial court are sustained by the evidence, such findings will be treated as in effect an agreed statement of facts. Philadelphia Casualty Co. v. Fech- heirner (Fed.) 1917D-64. 148. Finding on Conflicting Evidence. A finding of the chancellor in conformity to a verdict in an equity case will not be disturbed on appeal, where the evidence is sharply conflicting. Anheier v. De Long (Ky.) 1917A-1239. 349. Th conclusions of the trial court as to matters of fact will not be disturbed on appeal. Brace, etc. Mill Co. v. Burbank, (Wash.) 1917E-739. 150. Immaterial Question. The objec- tion that a finding was immaterial, and that it was not necessary to submit the question to the jury, will not be passed upon on appeal, where the finding is sup- ported by the evidence. Gist v. Johnson- Carey Co. (Wis.) 1916E-460. 151. Evidence to Support Finding of Chancellor. The chancellor's findings on issues of fact, as to which the evidence was conflicting, not against the preponder- ance of the evidence, will not be disturbed. Nevada County Bank v. Sullivan (Ark.) 1917D-736. 152. Adoption of Findings by Court. "When special findings of fact made by a referee are adopted by the court in such manner as to show an intention to make those findings its own, that intention will be given effect by the appellate court, and the findings will be treated as having been made by the trial court. Philadelphia Casualty Co. v. Fechheimer (Fed.) 1917D- 64. 153. Scope of Review Questions of Fact. Rule followed that where questions of fact have been determined by the trial court upon substantial and competent evi- dence, such determination is conclusive on appeal. Wideman v. Faivre (Kan.) 1918B- 1168. (5) Findings of Master. 154. Where findings and conclusions as to facts, made by a master in chancery, APPEAL AND ERROR. 51 are sustained by the chancellor, and are not manifestly against the weight of the evidence, the decree will not be disturbed by the supreme court. Klekamp v. Kle- kamp (111.) 1918A-663. (6) Direction of Verdict or Nonsuit. 155. Request by Both Parties for Direc- tion of Verdict Effect. Where both par- ties requested peremptory instructions and the court directed verdict in favor of de- fendants, the case stands on appeal as if the jury, upon correct instructions, had re- turned a verdict in defendants' favor, and the sole question is that of the legal suffi- ciency of the evidence. Sims v. Everett (Ark.) 1916C-629. 156. Denial of Nonsuit. In the consider- ation of a motion for a nonsuit, where the record contains all the evidence produced upon the trial, the supreme court must con- sider the entire evidence. Taggart v. Hunter (Ore.) 1918A-128. (7) Judgment of Intermediate Appellate Court. 157. Errors in Trial Court. Where one convicted of crime in the county court, upon appealing to the circuit court, asked that the appeal be dismissed and the case remanded to the county court for error in the judge's having determined the fine, and not the jury, on appeal from the circuit court's affirmance of the conviction, its refusal to dismiss and remand is not re- viewable, since, under Ky. Cr. Code Prac., 366, providing that upon appeal to the circuit courts the case shall be tried anew as if no judgment had been rendered, the trial in the circuit court was de novo, not involving a review of the county court's action, and the appeal from the circuit court's judgment was concerned only with its errors, not those below. Delk v. Com- monwealth (Ky.) 1917C-SS4. 158. Review of Dismissal for Insuffi- ciency of Evidence. The court of appeals, in reviewing a judgment of the appellate division reversing a judgment dismissing the complaint at the close of plaintiff's evidence, will give plaintiff the advantage of all the facts properly presented and every favorable inference deducible there- from. Lalor v. New York (N. Y.) 1916E- 572. (8) Adherence to Theory of Trial Court. 159. Where a cause was tried in the circuit court as one involving title as in ejectment, the court on appeal must adopt the same theory. Phillips v. Phillips (Ala.) 1916D-994. 160. Theory of Case on Trial. Where an action by a creditor of a corporation against a stockholder was founded origi- nally on the liability imposed by Conn. Gen. St. 1887, 1954, and the court tried the case on that theory, but during the trial plaintiff asked for an amendment seeking a recovery on the theory that the property which the stockholder received might be charged with an equitable lien for the payment of plaintiffs debt, but the amendment was withdrawn on it appear- ing that a postponement of the case would result by reason of its allowance, and plaintiff's counsel remarked that the trial could proceed to determine the statutory liability, the court cannot correct the find- ings of the superior court that the case was tried on the theory of statutory liability. Barber v. Morgan (Conn.) 1916E-102. 161. Under Mo. Eev. Stat. 1909, 9999, providing, relative to negotiable instru- ments, that absence or failure of consid- eration is a matter of defense as against any person not a holder in due course, and that partial failure of consideration is a defense pro tanto, where an action on a note given for mining property was tried by defendants on the theory that the consideration had failed in that there was a breach of the warranty of title to the mining property, no evidence was given as to the value or relative value of the land as to which the title was defective, there was no data to guide the jury in an at- tempt to find such value, and the instruc- tions requested by defendant were on the theory that there was a total failure of consideration, and no instruction on the question of partial failure of consideration was requested, they cannot have a retrial on the theory that there was a partial failure of consideration. Carter v. Butler (Mo.) 1917A-483. 162. The case is treated on this appeal as it was tried below, and treated by the parties on the appeal, viz., a review of errors at law in a law action, and not a trial de novo. Thornhill v. Olson (N. Dak.) 1917E-427. 163. A case will not be reviewed on a theory different from that on which it was tried below, nor will questions argued for the first time on appeal be considered. Armstrong r. Philadelphia (Pa.) 1917B- 1082. 164. The supreme court will review a case upon the theory on which it was tried in the court below. Smith v. Barnes (Mont.) 1917D-330. 165. Where the complaint was not at- tacked by demurrer or motion of any kind, resort may be had to the subsequent pro- ceedings to ascertain on what theory the cause was tried in the court below. Smith v. Barnes (Mont.) 1917D-330. ^ (9) Competency of Witnesses. 166. Children. Whether witnesses, re- spectively 11 and 12 years old, were of 52 DIGEST. 1916C 1918B. sufficient age and capacity to testify is to be determined by the trial court, and such determination is not reviewable on appeal. State v. Pitt (N. Car.) 1916C-422. (Annotated.) 167. Mental Capacity. The trial court's conclusion that a witness was of sufficient capacity to testify, based upon evidence warranting the finding, is not reviewable by the supreme court. State T. Tetrault (N. H.) 1918B-425. d. Waiver of Error. (1) In General. 168. Questions Reviewable Failure to Ask Peremptory Instruction. On a direct appeal to the supreme court, the failure to ask a peremptory instruction in the trial court does not preclude the contention that the verdict is against the weight of the evidence. Carnahan v. Hamilton (111.) 1916C-21. (2) Omission from Brief or Argument. 169. Failure to Argue Question as Waiver. Where the part of appellant's brief devoted to propositions and authori- ties made no specific reference to any in- struction given or refused or to any testi- mony admitted, such causes for new trial are waived under Rule 22, el. 5 (55 N. E. vi), providing that the brief of appellant shall fully present every error and excep- tion relied on. White v. State (Ind.) 1917B-527. 170. Waiver of Points not Argued. No point being made in the brief as to length of time for which the carrier should be allowed for storage, any error in this re- spect is waived. Holloman v. Southern E. Co. (N. Car.) 1917E-1069. 171. Question not Discussed. Questions not discussed in appellant's brief are waived. Cincinnati etc. R. Co. v. McCul- lom (Ind.) 1917E-1165. 172. An exception not mentioned in the brief is abandoned under the rule of the supreme court. McCurry v. Purgason (N. Car.) 1918A-907. 173. Questions not Argued. Only those assignments of error set out in the brief will be considered. In re Rawling's Will '(N. Car.) 1918A-948. 174. An exception is waived by failure to brief it. Comstock's Administrator v. Jacobs (Vt.) 1918A-465. 175. Necessity of Preserving Evidence in Record. Where the evidence was not embodied in thd brief pursuant toCal. Code Civ. Proc., 953c, the question of its suffi- ciency cannot be reviewed on appeal. Thompson v. Hamilton Motor Co. (Cal.) 1917A, 677. 176. Exceptions not Argued. Exceptions not argued on appeal will not be consid- ered. Egan T. Dotson (S. Dak.) 1917A- 296. (3) Pleading Over After Order to Make More Specific. 177. Appeal from Order on Demurrer. Where, in an action on an agent's contract, a motion to make the complaint more spe- cific by setting forth the agreement in writing constituting the agent's author- ity was granted and plaintiff thereupon amended the complaint by setting out such agreement and a demurrer to the amended complaint was sustained, the suf- ficiency of the amended pleading is the only question on appeal, and whether the court erred in granting such motion is im- material. Springer v. City Bank, etc. Co. (Colo.) 1917A-520. (4) Introduction of Evidence After Re- fusal to Direct Verdict or Give Judg- ment. 178. That a motion for a directed ver- dict operates as a request that the court find the facts, and is conclusive upon the parties upon appeal, does not prevent consideration of the inadmissibility of re- jected evidence, nor waive exceptions to the rulings of law thereon. Buckbee v. P. Hohenadel, Jr., Co. (Fed.) 1918B-88. 179. Motion for Judgment Waiver by Introduction of Evidence. An exception to the overruling of a motion for judgment at the close of plaintiff's evidence on the trial of an action to the court is waived by the introduction of evidence in defense. Philadelphia Casualty Co. v. Fechheimer (Fed.) 1917D-64. 180. Motion for Directed Verdict. Where, at the conclusion of the state's evidence, the defendant moved to direct a verdict in his favor, but upon its being overruled proceeded with his evidence and failed to renew his motion, he waived the motion, which cannot be reviewed. State v. Asbury (Iowa) 1918A-856. (5) By Stipulation or Agreement. 181. Effect of Agreement of Counsel. Where counsel for respective parties agree that, should the conclusion of the court be adverse to the contention of appellant upon one question, the remaining objec- tions assigned become immaterial, and when it appears from the record that a consideration of said questions is not necessary to a final determination of the cause under consideration, the same will not be decided by the court. Jennings v. Idaho R., etc. Co". (Idaho) 1916E-359. 182. Admissions in Open Court Effect. Admissions and agreements made in open APPEAL AND ERROR. 53 court by the parties to the cause and acted upon by the court are binding and a decree founded therein will not be reversed. McCoy v. McCoy (W. Va.) 1916C-367. (6) Introduction of Evidence After Ad- verse Ruling on Pleading. 183. Where, after the court ruled, over objection, that the third count of the amended declaration was still in the case, and plaintiff offered evidence to sustain it, defendant does not waive his objection to the decision by offering evidence to contradict it. Wende v. Chicago City R. Co. (111.) 1918A-222. (7) By Requesting Instruction. 184. Where, in an action on a promissory note, parol evidence tending to vary and contradict its terms is improperly admitted, over objection, the mere fact that plain- tiff's counsel requests an instruction in order to limit, as far as possible, the pre- judicial effect of such evidence, does not, Where such instruction is refused by the trial court, estop the latter from asserting on appeal that the admission of such evi- dence was error. First State Bank v. Kelly (N. Dak.) 1917D-1044. 15. REVIEW OF EXERCISE OF DIS- CRETIONARY POWER. 185. Order of Proof Review of Discre- tion. The discretion of the court in the exclusion of evidence offered in rebuttal, bnt which was, in fact, a part of the plain- tiff's case in chief, will not be reviewed, where no abuse of discretion is shown. Hightower v. Union Savings, etc. Co. (Wash.) 1918A-489. 186. Admission of Evidence. The ques- tion whether the admission of testimony given at a former trial is necessary to pre- vent the miscarriage of justice is addressed to the sound discretion of the court and is reviewable only for abuse of such discre- tion. Levi v. State (Ind.) 1917A-654. (Annotated.) 187. Trial Limiting Number of Wit- nesses. It is within the discretion of the trial court to limit the number of witnesses a defendant charged with criminal offense may introduce on a single point in issue, and unless it appears clearly that there has been an abuse of discretion, which was prejudicial to defendant, an appellate court will not consider it cause for re- versal. Samuels v. United States (Fed.) 1917A-711. 188. Stay Pending Appeal. The supreme court has no power to review the refusal of the lower court to annul the effect of an appeal from an order refusing to grant a preliminary injunction; such being a matter expressly left to the discretion of the court in which the proceedings are pending. Crownfield r. Phillips (Md.) 1916E-991. 189. Dissolution of Attachment. In such case, and on the assumption in favor of the appealing party that the writ in the original action had never been entered in the court so that the order might be re- garded as a final judgment, the attachment waa dissolved in the exercise of judicial discretion, and no error was apparent where there was nothing to indicate that such discretion was not wisely exercised. Richardson v. Greenhood (Mass.), 1918A- 515. 16. PRESUMPTIONS ON APPEAL, a. In General. 190. Hearing in Open Court. In such case, where the law required that the pro- ceedings be heard in open court, it will be presumed, notwithstanding a consent that the decree should be made at cham- bers, that it was made in open court. Glover v. Bradley (Fed.) 1917A-921. 191. Presumptions Duty to Show Error. It is the duty of a party resorting to an appellate court to make the errors com- plained of clearly to appear, if they in truth exist, every presumption being in favor of the correctness of the respective rulings of the trial court. Henry v. Spit- ler (Fla.) 1916E-1267. b. As to Motions. 192. Denial by Substitute Judge. Where the motion for a new trial was heard and denied by a judge called in, his order can- not be aided by those presumptions in- dulged in favor of a like order made by the trial judge. Smith v. Barnes (Mont.) 1917D-330. e. As to Rulings on Pleadings. 193. Ruling on Demurrer. Where rec- ord shows appellant filed a demurrer but does not show that any ruling was made thereon, it is presumed the demurrer was overruled. Stonegap Colliery Co. v. Ham- ilton (Va.) 1917E-60. 194. An appellate tribunal is disposed to adhere to the construction of the complaint adopted by the trial court, and where that court has placed a reasonable construction upon a complaint open to two construc- tions, and has proceeded to a determina- tion of the cause upon such an understand- ing of its scope, the supreme court will not be forward to adopt a different con- struction and reverse the case. Gilchrist v Hatch (Ind.) 1917E-1030. d. As to Evidence. 195. Presumptions to Support Judgment. Where the petition in an action on a con- tract did not allege whether the contract DIGEST. 1916C 1918B. was in writing or oral, the court on appeal from a judgment granting relief under the contract will presume, in the absence of the evidence, that the contract was written if a writing is necessary to support the judgment. Myers v. Saltry (Ky.) 1916E- 1134. 196. In the absence of a transcript, the court on appeal may presume that proof of a written contract sued on was intro- duced without objection and that plaintiff without objection proved an express prom- ise to pay the debt demanded, such as would take it out of the statute of limita- tions. Myers v. Saltry (Ky.) 1916E-1134. e. As to Instructions. 197. Issues submitted to the jury in in- structions not brought to the supreme court for review will be presumed to have been properly submitted. Schas v. Equi- table Life Assurance Soe. (N. Car.) 1918A- 679. 198. An instruction will be presumed correct, where the evidence on which it is based is not set out in the abstract. Ot- tumwa v. McCarthy Improvement Co. (Iowa) 1917E-1077. f. As to Verdict. 199. Finding on Issue not Submitted. If all the material issues were not submitted to the jury which found for plaintiff, and no question was requested by defendant to cure the omissions, it will be presumed on appeal by defendant that the court found in plaintiff's favor on any material issue not submitted. Rowlands v. Chicago, etc. R. Co. (Wis.) 1916E-714. 200. Verdict on Proven Acts. It will not be assumed that the verdict was rested on any act of which there was no evidence. Borok v. Birmingham (Ala.) 1916C-1061. g. As to Judgment. 201. Where the record is without a tran- script of the evidence, the court on ap- peal will presume that the omitted parts of the record will support the judgment. Myers v. Saltry (Ky.) 1916E-1134. 202. All intendments favor the judg- ment of the court below. Hihn-Hammond Lumber Co. v. Elsom (Cal.) 1917C-798. 17. REVERSIBLE ERROR, a. In General. 203. It appears from the theory had of the case on trial and on appeal that no title can ever be shown to have been in plaintiffs, and that they can never recover on the basis of title having passed to them, and are therefore without possibility of relief in this action; and the same is ac- cordinglv ordered dismissed. Thornhill v. Olsen (N. Dak.) 1917E-427. 204. Misconduct of Counsel Bringing Inadmissible Matter Before Jury. The action of the attorney for plaintiff suing for a personal injury in stating on the ex- amination of jurors on their voir dire that the damages recoverable would be paid by an insurance company, and in compel- ling defendant on cross-examination to state that sums paid by him to plaintiff for a release had been repaid by an insurance company, is reversible error as rendering the jury careless as to the amount of the verdict on the theory that defendant was protected from liability. Vasquez v. Pet- tit (Ore.) 1917A-439. (Annotated.) 205. Misconduct of Judge Reference to Failure to Call Witness. Where, in an action on certain notes, the alleged signa- tures of indorsers are claimed to be for- geries, a question by the trial judge to plaintiff's counsel as to why he did not call the maker to testify as to the genuineness of the indorser's signatures is prejudicial error. Fourth National Bank v. McArthur (N. Car.) 1917B-1054. b. Error must be Clearly Shown. 206. A verdict approved by the trial court will not be disturbed unless in case of clear error. Marinette v. Goodrich Transit Co. (Wis.) 1917B-935. 207. Burden of Showing Error. An ap- pellant attacking a judgment on special findings has the burden of showing that there is no finding which will support the judgment. In re Williams' Estate (Mont.) 1917E-126. 208. Newspaper Publication. The ap- pellate court will not set aside a verdict of conviction on account of the fact that newspaper articles were published which may have influenced the jurymen, where there is no showing that an impartial panel or impartial talesmen could not have been obtained or that defendant was de- nied his privilege of examining the jury- men on the voir dire, and of thus show- ing their prejudice and protecting his rights. State v. Gordon (N. Dak.) 1918A- 442. c. Error must be Material. 209. A judgment will not be reversed because of a ruling which is not material and prejudicial to appellant. Schas v. Equitable Life Assur. Soc. (N. Car.) 1918A-679. 210. Interrogation of Accused Before Sentence. It is not reversible error, even in a capital case, not to ask the prisoner if he has any reason why sentence should not be passed, unless it appears that he was or may have been injured by the omission, but the practice of inquiring any reason why sentence should not be passed is recommended in all cases in which either the death penalty or confinement in the APPEAL AND ERROR. 55 penitentiary can be imposed. Button T. State (Mel.) 1916C-89. (Annotated.) 211. Bight of Accused to Sit "by Counsel. Refusal to permit the defendant to sit by his counsel during the trial was harmless, where it resulted merely in slight incon- venience to such counsel, and no defense on the merits was made, and the uncontra- dicted evidence for the commonwealth showed defendant's guilt. Commonwealth v. Boyd (Pa.) 1916D-201. (Annotated.^ d. Error must be Prejudicial. (1) In General. 212. Voluntary Remittitur by Plaintiff. Where a verdict was not excessive and there is nothing to indicate that the jury were influenced by passion or prejudice, defendant is not prejudiced by the volun- tary filing by plaintiff of a remittitur of a part of the recovery, and cannot complain thereof on the ground that the error could be cured only by granting a new trial and not by the filing of a remittitur. Crag- head v. McCullough (Colo.) 1916C-1075. 213. Injury Essential. Errors will not cause reversal unless some real injury re- sulted. Am. Ex. Co. v. Terry (Md.) 1917C- 650. 214. A judgment will not be reversed and a new trial granted when the action of the trial judge, even if erroneous, could by no possibilitv have injured the appellant. E'wbank v. Lyman (N. Car.) 1917A-2-72. 215. Submission of Exemplary Damages as Harmless Error. Where the jury awarded only $150 for a physician's breach of his contract to attend a woman during her confinement, the submission of the question of punitive damages is harmless. Hood v. Moffett (Miss.) 1917E-410. 216. Criminal Law Harmless Error Rule. A mistrial should not be ordered in a cause simply because some error has in- tervened. The error' must prejudicially affect the merits of the case and the sub- stantial rights of one or both of the par- ties, and this is as true of the temporary absence of the judge as any other de- parture from due process of law during the trial of a cause. Tingue v. State (Ohio) 1916C-1156. (2) Error in Ruling on Pleadings. 217. Refusal of Accused to Plead Fail- ure to Enter Plea. Though the statute provides that, where accused refuses to plead, a plea of not guilty shall be entered, the failure to enter a plea of not guilty is harmless, if erroneous, where the trial proceeds as if accused had so pleaded. State v. Gould (Mo.) 1916E-855. 218. Nonjoinder as Harmless Error Suit by Insurer to Enforce Subrogation. Where, after the owner of property de- stroyed by fire communicated by a locomo- tive collected the insurance, the railroad company paid the balance of the loss above the insurance, the fact that, in a suit by the insurer against. the railroad company, the owner was not made a party, is harm- less, if erroneous. Pittsburgh, etc. B. Co. v. Home Ins. Co. (Ind.) 1918A-828. 219. Where, in an action for rent, the defendant had judgment because it ap- peared that he had rightfully attorned and paid to the mortgagee, such judgment will not be reversed merely because in his pleading the defendant described the per- son to whom payment was made as "the owner of the reversion," when it appeared from the pleadings that such person was also the mortgagee. Hinck v. Cohn (N. J.) 1916D-200. (Annotated.) 220. Refusal of Leave to Amend Harm- less. Where plaintiff did not recover, the denial of leave to file an amended peti- tion, claiming greater damages, is not pre- judicial. Smith's Admx. v. Middlesboro Electric Co. (Ky.) 1917A-1164. 221. Permitting Withdrawal of Plea. Error of the court in permitting defendant to withdraw its pleas and file a new plea supported by affidavit and certificate is harmless, where the case has proceeded to trial, and verdict has been rendered in favor of plaintiff for the full amount claimed by her. Shoop v. Fidelity, etc Co. (Md.) 1916D-954. 222. Striking Out Unfounded Plea. Where the relation between plaintiff, su- ing for a personal injury, and defendant, was that of passenger and carrier, the striking out of defendant's plea of the Workmen's Compensation Act is not preju- dicial. Susznik v. Alger Logging Co. (Ore.) 1917C-700. 223. Overruling Demurrer to Declara- tion. An erroneous ruling upon a demur- rer to each of two counts in a declaration, one of which is insufficient, is not alone ground for reversal, if plaintiff's evidence was admissible under the good count and was sufficient to sustain the cause of action therein averred. Hill v. Norton (W. Va.) 1917D-489. 224. Overruling Demurrer to Plea. Where defendant's plea was improperly held bad on demurrer, but the evidence showed that the plea could not have been established, the error is harmless. McCar- ver v. Griffin (Ala.) 1917C-1172. 225. Sustaining Demurrer to Part of Pleading. Where every material allega- tion embodied in an affirmative defense was contained in other parts of the an- swer, the sustaining of a demurrer thereto in no wise prejudiced the defendant. Rogers v. Nevada Canal Co. (Colo.) 1917C-669. 56 DIGEST. 1916C 1918B. 226. Refusal to Compel Amendment. Where a case was tried on the issues of negligence of defendant and of contribu- tory negligence of plaintiff, and defendant was permitted to show contributory negli- gence as if the complaint had contained matters defendant contended it should con- tain, the error in refusing to compel plaintiff to amend the complaint is not prejudicial to defendant. Switzer v. Sherwood (Wash.) 1917A-216. 226$. Where the petition in an action for the death of a street-car passenger in setting forth the appointment of a guard- ian ad litem was defective, but tke facts as to the appointment were fully shown, the error in overruling a demurrer to the petition is harmless. Froeming v. Stock- ton Electric E. Co. (Cal.) 1918B-408. 227. Overruling of Demurrer. Where the issues on a cross-complaint are ten- dered by the affirmative allegations of the answer of defendant, and the evidence re- lating thereto is fully presented, and the findings embrace them all, overruling of demurrers to the answers to the cross-com- plaint is not prejudicial error. American- Hawaiian Eng., etc. Co. v. Butler (Cal.) 1916C-44. 228. Statutory Offense Tried as Common- law Crime. That the trial judge and solicitor considered that an indictment charged a common-law conspiracy is not prejudicial to defendants merely because of the failure of the judge and solicitor to consider Laws N. Car. 1913, c. 41, pun- ishing combinations in restraint of trade. State v. Craft (X. Car.) 1917B-1013. 229. Deficiency of Pleading Supplied by Proof. Under Ala. Practice Eule No. 45 (61 South, ix), a judgment cannot be re- versed because of omitted allegations in the complaint, where the instructions specifically required proof thereof. Best Park, etc. Co. v. Rollins (Ala.) 1917D-929. 230. Refusal to Make Pleading More Certain. Under Bern. & Bal. Wash. Code, 307, 15J72, requiring the disregarding of immaterial errors and the consideration of the case on the merits, the erroneous denial of a motion to make a complaint in a mal- practice suit more definite and certain as to the usual test for discovering preg- nancy, which it was alleged defendant did not use, is harmless, where defendant was not surprised, or precluded from introduc- ing any appropriate testimony. Just v. Littlefield (Wash.) 1917D-703. 231. Defect in Pleading. Under Bern. & Bal. Wash. Code, 1752, requiring the su- preme court to decide the case on its merits, the refusal to grant a nonsuit, in an action for libel, on the ground that, when the motion was made, the complaint contained no allegation that the offending publication was untrue, is not error, where the complaint negatived the truth of the published charges by the assertion of the opposite, and where the answer averred their truth. Wilson v. Sun Pub. Co. (Wash.) 1917B-442. (3) -Errors in Admission of Evidence, (a) In General. 232. Although in a prosecution for lar- ceny of estate moneys by the executor the papers on which his letters were revoked should not have been received over his objection, the error is harmless, when the judge rules that they shall not be read to the jury without defendant's consent. People v. Gibson (N. Y.) 1918B-509. 233. Errors in admission of evidence, if technical and not affecting defendant's substantial rights, must be disregarded, under N. Y. Code Cr. Proc., 542, requir- ing judgment on appeal without regard to such errors. People v. Gibson (N. Y.) 1918B-509. 234. Harmless Error Admission of Evi- dence Out of Order. The action of the court in admitting evidence as a part of plaintiffs' main case, which was but im- peaching evidence, and which could be made proper by plaintiffs' adoption of a different order of proof, is not prejudicial. Williams v. Kidd (Cal.) 1916E-703. 235. Proper Answer to Improper Ques- tion. In an action against a surgeon for amputating plaintiff's leg without her con- sent, where she testified that she was ignorant that it had been amputated for several days after the operation, if a ques- tion asked a nurse as to whether plaintiff knew her leg had been amputated is im- proper as calling for the witness' cognition of the state or operation of plaintiff's mind, it is rendered harmless by her an- swer that plaintiff would lie there and watch the leg being dressed every time it was dressed, as she stated only cognizable facts. Barfield v. South Highlands In- firmary (Ala.) 1916C-1097. 236. Admission of Trivial Evidence. In an action against a surgeon for amputat- ing plaintiff's leg without her consent, where plaintiff intimated that from the time she went to the hospital where she was operated on and was put in defend- ant's charge she was kept in ignorance of the danger of her condition and deceived as to the measures that would be resorted to for her cure, the admission of testimony for defendant, apparently in answer to this contention, that on the morning she was removed to the hospital defendant told plaintiff's mother, who was making the arrangement for plaintiff, that he "would not guarantee her," but that he would do all he could for plaintiff, relates to a mat- ter of so little significance as not to re- quire a reversal, especially as it is proba- APPEAL AND ERROR. 57 bly competent to rebut the contention that defendant made an agreement or promise to restore plaintiff to health or to save her leg. Barfield v. South Highlands Infirm- ary (Ala.) 1916C-1097. 237. Irresponsive Answer by Witness. Motion to exclude an answer merely be- cause not responsive can only be availed of by the interrogator. Borok v. Birming- ham (Ala.) 191GC-1061. 238. Admission of Evidence Trial Without Jury. The admissibility of evi- dence for the plaintiff in a cause tried without a jury will not be considered upon objection by the defendant, where, irre- spective of such evidence, sufficient is found in the record to support the judg- ment. Rogers v. Nevada Canal Co. (Colo.) 1917C-669. (Annotated.) 239. Evidence not Prejudicial Conceal- ment of Accused by Officers After Arrest. The admission of the testimony of the sheriff of a county in which a murder was committed, that he moved accused from one place to another, and subsequently moved him again because the newspaper reporters had located him, is not preju- dicial to accused on the theory that it was necessary for the sheriff to conceal him to protect him and thereby inflaming the minds of the jury against him. State v. Giudice (Iowa) 1917C-1160. 240. Admission of Evidence as to Dam- ages. There being other independent evi- dence of negligence, any error in admission of evidence thereof, which, would in all probability go only to the quantum of damages, is not sufficiently prejudicial to require reversal; affirmance being, because of excessive damages, conditional on re- mission of part of recovery. Cranford v. O'Shea (Wash.) 19160-1081. 241. The prejudicial effect of the admis- sion of such evidence is not cured by the action of the prosecuting attorney in de- sisting from that line of proof after the court intimated that the evidence of the daughter's illness must be limited to the question of her symptoms, where the evi- dence is never stricken from the record and the whole subject of the daughter's illness and death is subsequently opened in rebuttal. People v. Buffom (N/Y.) 1916D- 962. (b) Instruction to Cure Error. 242. Where, in an action for a railroad brakeman's death by catching his foot in the unblocked space between the main and guard rails, the court submitted, as the only ground of negligence, the failure to block such space, the admission of evi- dence of loose boards lying near the place of accident could not have prejudiced de- fendant. Korab v. Chicago, etc. E. Co. (Iowa) 1916E-637. 243. Evidence Stricken Out. The erro- neous admission of evidence is not preju- dicial, where it was stricken from the record, and the jury admonished to dis- regard it. State v. Inlow (Utah) 1917A- 741. 244. Issue not Submitted to Jury. In an action on a policy on a stallion, where the plaintiff was allowed to testify that, in signing an application which the com- pany's agent had filled out falsely, he had no intention of committing fraud, and where the court, in submitting the question of fraud, instructed that if the insured truthfully states the facts to the agent who fills out the answers in the applica- tion, and the party securing the insurance does not read over the application, and does not have it read over to him, and has no reason to suspect disparity between the application and his answers, he may re- cover, and is not guilty of fraud, although the agent has placed in the application different answers than those given him by insured, any error in the admission of the testimony is harmless, since the question of intent was not submitted to the jury. Simmons v. National Live Stock Ins. Co., 1917D-42. 245. Evidence and Instructions on Imma- terial Issue. The evidence being conclu- sive that plaintiff was a proper beneficiary when the member died, the issue of de- pendency became immaterial, and errors assigned upon the reception of testimony and the instructions of the court upon such issue, even if well founded, are with- out prejudice. Anderson v. Koyal League (Minn.) 1917C-691. 246. Error not Cured General Remark by Court. Prejudicial error in the admis- sion of evidence that counsel appearing for defendant represented an indemnity insurance company is not cured by plain- tiff's counsel stating, at the close of the evidence, that he wanted defendant's tes- timony (on cross-examination) that cer- tain counsel appearing for him represented an indemnity insurance company, ex- cluded, upon which the court said, "That will not be before you for consideration,"" as the exclusion attempted was too gen- eral and indefinite, the difficulty of eradi- cating the unfavorable and erroneous impression naturally caused thereby de- manding a more definite and comprehen- sive pointing out of the matter to be ex- cluded, and the court's statement was not sufficient in direct, positive, and un- equivocaj instruction to eradicate such impression, which should have been elim- inated by an affirmative instruction to entirely disregard the whole matter for all purposes, especially in view of the fact that the attempted exclusion was made some time after the admission of the evi- dence, during which time an impression might have been made on the jury, which 58 DIGEST. 1916C 1918B. the court's statement failed to condemn and remove. Watson v. Adams (Ala.) 1916E-565. 247. Care and caution is to be exercised in the delicate, difficult, and important matter of removing the prejudicial effect of evidence improperly admitted, the bur- den of which rests upon the party causing its admission, and no duty rests upon the other party in that connection after sea- sonably and properly reserving his excep- tion to its admission. Watson v. Adams (Ala.) 1916E-565. 248. In a prosecution of a wife for the murder of her husband, who died of ar- senical poisoning, the prejudicial effect of admitting evidence concerning the illness and death of their daughter, apparently from poisoning, long after the death of the husband, is not cured by an instruction tending to limit the effect of such evidence to illustrate the symptoms caused by arsenical .poisoning. People v. Buffom (N. Y.) 1916D-962. (c) Evidence as to Admitted or Proven Facts. 249. Admission of hearsay evidence is not prejudicial, where the same fact is established by other proof in the record. Taylor v. Moseley (Ky.) 1918B-1125. 250. Harmless Error. In a proceeding under the Mich. Wbrkmen's Compensation Act (Pub. Acts [Ex. Sess.] 1912, No. 10), the determination of the Industrial Acci- dent Board will not be reversed because of the admission of hearsay evidence, where competent evidence making a prima facie case is uncontradicted. Keck v. Whittles- berger (Mich.) 1916C-771. 251. Admission of Cumulative Testi- mony. In an action against a railroad for death of a switchman in service, where "the conductor of the switching crew testi- fied as to the exact earnings of switchmen, the admission of testimony of the fireman of the crew as to the average earnings of switchmen per month is not prejudicial to 'defendant, as the evidence is only cumu- lative. Devine v. Delano (111.) 1918A-689. 252. Evidence of Fact Otherwise Proved. Any error in admitting copies of letters was harmless, their only effect being to ex- plain the purpose of later correspondence, and such purpose being made evident by subsequent letters in evidence, and their effect as proof of a certain matter being merely cumulative, so that they might be excluded without materially lessening the effect or weight of the correspondence as evidence for the purpose for which it was offered. Studebaker Corporation v. Han- eon (Wyo.) 1917E-557. 253. Trial Without Jury. In a cause tried by the court without a jury, the ad- mission of incompetent evidence cannot be assigned as error on appeal, unless some proposition essential to sustain the judg- ment has no other evidence to support it. Hannah v. Knuth (Wis.) 1917C-681. (Annotated.) 254. Trial Without Jury. In an equity case tried de novo in the supreme court, the admission of incompetent, irrelevant, or immaterial evidence is not reversible error, if there is sufficient competent and relevant evidence to sustain the findings and judgment; the incompetent evidence being disregarded in considering the case. Coe v. Wormell (Wash.) 1917C-679. (Annotated.) 255. Trial Without Jury. An admission of evidence is harmless, the trial having been without a jury, and there having been other competent evidence sufficient to sustain the findings. Sherman v. Harris (S. Dak.) 1917C-675. (Annotated.) 256. Where incompetent evidence is ad- mitted in a trial without a jury, a reversal is warranted only when the record shows that the competent evidence was insuffi- cient to support the findings, or that the improper evidence affected the result. Eehling v. Brainard (Nev.) 1917C-656. (Annotated.) 257. Proof of Conceded Facts Harmless. The admission of evidence that a witness for the state discharged his counsel, who was also counsel for the defendant on trial, and told the prosecuting attorney that he was an accomplice to the murder, is not prejudicial to defendant, where it is conceded that he was an accomplice, and defendant's lawyer admits the fact that he had previously represented the accomplice. People v. Becker (Kan.) 1917A-608. 258. In such action error in the admis- sion of opinion evidence as to decedent's knowledge of voltage and connections is harmless, where the facts as to voltage and connections on which the opinion was based are detailed to the jury, so that the witness's opinion is fairly obvious from the facts detailed, which necessarily led to the same opinion. McCarthy's Admr v. Xorthfield (Vt.) 1918A-943. (Annotated.) 259. Hypothetical Questions Basis Facts Subsequently Supplied. While it is better to defer hypothetical questions asked expert witnesses until evidence of all the facts hypothesized has been offered, where evidence of such facts is subse- quently offered and the error is substan- tially cured, it does not require a reversal. Barfield v. South Highlands Infirmary (Ala.) 1916C-1097. (d) Irrelevant Evidence. 260. Where in a prosecution for murder the theory of the state was that defend- APPEAL AND ERPtOR. 59 ant, a police lieutenant, instigated the crime because deceased, a professional gambler, angry because defendant raided his place, threatened to disclose defend- ant's connection with gamblers, admission of evidence of conversations between a police commissioner and the captain of a precinct relative to keeping a policeman in the place raided is not prejudicial to de- fendant. People v. Becker (Kan.) 1917A- 600. 261. Cross-examination on. Immaterial Matter Harmless Error. Permitting de- fendant in a homicide case to be asked on cross-examination whether he had previ- ously carried a revolver, which question was immaterial to the issues involved, if error, is harmless, where he answered in the negative, especially where he had offered in evidence proof tending to show his previous good character as a quiet and peaceable citizen. >tate v. Cooper (W. Va.) 1917D-453. (4) Exclusion of Evidence, (a) In General. 262. In an action for wrongful death, the erroneous exclusion of evidence that deceased could not obtain life insurance is harmless. Nicoll v. Sweet (Iowa) 1916C-661. 263. The court's exclusion of a pre- liminary question, on an issue as to a mother's damage by the wrongful death of her son asking if her husband did not make good wages in order to minimize her pecuniary loss by the death of her son, is not prejudicial to defendant. Brown v. Erie R. Co. (N. J.) 1917C-496. (b) Evidence Previously or Subsequently Admitted. 264. Exclusion of Cumulative Evidence. It is not prejudicial error to refuse to al- low cumulative evidence of an undisputed fact. Mason v. Bowen (Ark.) 1917D-713. 265. Harmless Error Question An- swered Though Objection Sustained There- to. Error cannot be predicated on sustain- ing objection to question asked witness, where the witness answered the question. Thompson v. Alexander City Cotton Mills Co. (Ala.) 1917A-721. 266. Subsequently Admitted. The erro- neous exclusion in a criminal prosecution of evidence of accused's reputation as an honest and good citizen is harmless where the witness was subsequently allowed to answer the question. State v. Sehuman (Wash.) 1918A-633. 267. Error in excluding evidence is harm- less, where it is subsequently admitted. Streit v. Wilkerson (Ala.) 1917E-378. (c) Pacts Otherwise Proved. 268. The exclusion of testimony where the facts to be established thereby wero brought out by other evidence in the ., record, is not prejudicial. Taylor v. Mose- ley (Ky.) 1918B-1125. 269. Where the transcript of the testi- mony of a witness on a former trial is in- troduced in evidence, any error in ruling on questions to the witness as to his former testimony is harmless. People v. Becker (Kan.) 1917A-600. 270. Error in the exclusion of such statements, in view of the witness" cross- examination and other evidence leaving no doubt as to his interest in securing a con- viction, is a technical error not affecting the defendant's substantial rights which N. Y. Code Cr. Proc., 542, expressly re- quires the appellate court to disregard. People v. Roach (N. Y.) 1917A-410. 271. In an action for the death of a hackman, claimed to have been caused by negligent construction of a street, where evidence of criminal charges against him was introduced to show that his mind would have been diverted from his legiti- mate business, and that he would have been required to spend money in defend- ing them, the exclusion of the indictments themselves, the substance of the charges having been stated, is not error. Richard- son v. Sioux City (Iowa) 1918A-618. 272. Death by Wrongful Act Evidence Habits and Character of Deceased. Re- jection of evidence, in an action for death of a white man, that the negro woman who was accompanying him was a strum- pet, is harmless; other evidence admitted tending . as fully to show his dissolute character and depraved disposition. Chi- cago, etc. R. Co. v. Gunn (Ark.) 1916E- 648. (Annotated.) (d) Error Cured by Verdict. 273. In an action by the grantee of leased premises against the tenant to re- cover the value of a growing crop deliv- ered by the tenant to the grantor, defended on the ground that the crop was orally reserved by the grantor, where the jury finds for defendant, the exclusion of a question asked the grantee as to what steps he took to protect himself against the delivery of the crop is harmless. Wil- lard v. Higdon (Md.) 1916C-339. (e) Immaterial Evidence. 274. Questions to and answers by a wit- ness are not prejudicial to the defendant, where they in no wise tend to connect de- fendant with the murder charged. Brind- ley v. State (Ala.) 1916E-177. 275. Error in the exclusion of such evi- dence was harmless, where it appeared that such defendant, prior to and subsequent to such time, had opened the headgate of its ditches, contrary to the orders of the water officers. Rogers v. Nevada Canal Co. (Colo.) 1917C-669. 60 DIGEST. 1916C 1918B. 276. In an action for the conversion of electrical machinery, sold with reserved title, to be placed by the buyer in an elec- tric plant constructed for defendant city, any error in excluding evidence by the mayor and council as to whether they would have consented to having the machinery placed in the plant, had they known of the reserved title, is not reversi- ble, being merely as to purpose and not a fact. Allis-Chalmers Co. v. Atlantic (Iowa) 1916D-910. (f) Error Cured by Admission of Counsel. 277. "Where the trial court excluded tes- timony offered by defendant but later changed his ruling after the witness had gone home, and the prosecuting attorney admitted the facts which defendant offered to prove by that witness, the de- fendant is not thereby prejudiced. Mason v. State (Tex.) 1917D-1094. (5) Other Errors in Eelation to Evidence. 278. Exclusion of Opinion Evidence. The exclusion of such opinion, if error, is harmless, where it appears that the witness had seen a man fall from a different kind of scaffold, which fact would not have aided the jury in determining whether there was any reason for defendant to anticipate injury from the falling of a man from a staging such as was used in the present case. Weilbacher v. J. W. Putts Co. (Md.) 1916C-115. 279. Sufficiency of Evidence. This court will not grant a new trial, where the evi- dence is voluminous and conflicting, unless palpably insufficient to sustain the verdict, or the amount clearly evinces partiality, prejudice, or passion on the part of the jury, or that they were misled by some mistaken view of the merits of the case. Hill v. Norton (W. Va.) 1917D-489. 280. Sufficiency of Evidence. The judg- ment in a case tried without a jury will not be disturbed on appeal, though the evi- dence is conflicting, where it is supported by any substantial evidence. Rehling v. Brainard (Nev.) 1917C-656. 281. Exclusion of Evidence. Error in excluding evidence which would not have affected the verdict sustained by evidence is not prejudicial. Murphy v. Skinner's Estate (Wifl.) 1917A-817. Note. Effect of admission of incompetent evi- dence in trial before court without jury. 1917C-660. (6) Errors in Instructions, (a) In General. 282. Errors Held Harmless. While some of the grounds of the motion for a new trial may have presented inaccuracies in the charge or rulings, none of them show error requiring a reversal. Mitchell v. Langley (Ga.) 1917A-469. 283. Instructions and Rulings Approved. Xo reversible errors appear in the charge or rulings. Thysell v. McDonald (Minn.) 1917C-1015. 284. Instruction on Contributory Negli- gence Prejudicial. Under Cal. Const., art. (5, 4$, and Cal. Code Civ. Proc., 475, directing courts to disregard any instruc- tion on appeal which, in the opinion of the court, does not affect the substantial rights of the parties, in an action against a street railroad by a passenger injured while riding on the step of a car, a charge that, as matter of law, plaintiff was not guilty of contributory negligence in so rid- ing is prejudicial error, as vitally affecting the railroad's substantial rights. Kelly v. Santa Barbara Consol. E. Co. (Cal.) 1917C- 67. 285. Duty to State Ground for Refusal. It is not reversible error or ground for new trial for the trial court to fail to call the attention of counsel to typographical errors or misprisions in requested charges, when they are refused on that ground alone. Thompson v. Alexander City Cot- ton Mills Co. (Ala.) 1917A-721. 286. Errors Held Ground for Reversal. In this action [against] a railroad com- pany to recover damages for personal in- juries, the evidence tends to show that the plaintiff was guilty of contributory negli- gence, and there is no evidence of money paid out or of indebtedness incurred in endeavoring to have the injured party cured, and no evidence of the extent and value of the loss of service or time, and the amount of the verdict indicates harm- ful error in the charge that the jury "are entitled to take into consideration any money paid out by the plaintiff in en- deavoring to have the plaintiff, Dartha Carter, healed or cured; and loss of time," therefore the judgment should be reversed. Florida East Coast R. Co. v. Carter (Fla.) 1916E-1299. 287. Instructions as to Form of Verdict. In a prosecution for assault with intent to kill with malice, an instruction that, if ac- cused wilfully and of his malice afore- thought did shoot at another with intent to kill, he should be found guilty of assault with intent to kill, is erroneous, because failing to require the jury to specify in the verdict whether the act was done with malice is harmless to accused. State v. Gould (Mo.) 1916E-855. 288. Instruction on Immaterial Issue. Any error in instructions, which were ex- pressly confined to other issues than the one involved on appeal, is harmless. In re Eawlings' Will (N. Car.) 1938A-948. APPEAL AND ERROR. 61 289. Technical Error. Plaintiff whose ac- tion for malicious prosecution was dis- missed because of the evidence of probable cause, cannot complain of unfavorable in- structions, though technically incorrect. Hightower v. Union Savings, etc. Co. (Wash.) 1918A-489. 290. Failure to Submit Issue. In an ac- tion on open account, where defendant set up a counterclaim asserting unpaid salary, the issue being simple and the evidence concerning it so brief that the jury could not have failed to distinctly understand the dispute between the parties in respect, to salary, verdict being returned that de- fendant was not entitled to the salary claimed, any error in the instructions, by not fairly presenting the issue of the counterclaim to the jury, is harmless. Givens v. Pierson's Administratrix (Ky.) 1917C-956. 291. Failure to Submit Contention. Fail- ure, in submitting the issues, in a malpractice case for not seasonably dis- covering and setting a fracture of the femur just above the knee, to state defend- ant's contention that he knew of the fracture, but could not heal it, because of synovitis of the knee joint and fractures just above the angle, is harmless; every feature of the defense, as well as plain- tiff's case, having been prominently and skillfully brought out during a long trial. Crawford v. O'Shea (Wash.) 1916C-1081. 292. Joint Assignment of Error Ruling Correct as to One. Where, in an action against several defendants for malicious prosecution, all of them join in an assign- ment of error, authorizing an allowance of punitive damages, and it appears that actual malice warranting a recovery of punitive damages have been proved as against one of the defendants, the assign- ment is unsustainable. Mclntosh v. Wales (Wyo.) 1916C-273. 293. Misjoinder Effect. Under Va. Code 1904, 3258a, providing that when- ever a misjoinder of parties shall appear in any action, the court may order the ac- tion and suit to abate as to any party im- properly joined, and to proceed against the others, where there was a misjoinder of parties defendant in a husband's action against his wife's parents, brothers, and sister for conspiracy to alienate, a reversal cannot be had because of the refusal of a requested charge that unless the plaintiff proved a conspiracy by all of the defend- ants there could be no recovery; since no real difficulties from misjoinder of the defendants could arise in view of the stat- ute. Eatcliffe v. Walker (Va.) 1917E- 1022. 294. Expert Evidence Instructions Ap- proved. The instructions of the trial court upon the question of expert opinion evi- dence held not prejudicial to the rights of defendant. Jacobson v. Chicago, etc. R. Co. (Minn.) 1918A-355 295. Instruction After Retirement. Where the action of the court in instructing the jury in writing, after their retirement, on a material point, in the absence of counsel, was in no manner prejudicial, reversal will not be ordered. Kimmins v. Montrose . (Colo.) 1917A-407. (Annotated.) 296. Instructions Approved. Instruc- tions requested and refused, and those given and challenged as error and argued in the brief, examined and held to submit fairly the issues of fact and to be non- prejudicial. Northern Trust Co. v. Brueg- ger (N. Dak.) 1917E-447. 297. In a prosecution for involuntary manslaughter committed by reckless driv- ing of an automobile, although the people's third instruction was erroneous in stating that a speed greater than that mentioned in the statute would be proof of negli- gence, when by statute they were only made prima facie evidence of negligence, defendant is not prejudiced, where other instructions charged that proof of negli- gence is not sufficient to warrant convie- tion, and that defendant's violation of law- would not, of itself, justify a conviction. People v. Falkovitch (111.) 1918B-1077. (b) Error Cured by Other Instructions. 297J. Charge Construed as Whole. Error cannot be predicated upon an isolated in- struction; but all charges must be con- strued together, and if any erroneous ten- dencies in a specific portion are cured by other charges, there is no error. Crawford v. McElhinney (Iowa) 1917E-221. 298. The error in such instruction, is harmless where the only evidence of threats is a threat to accuse the other of grand larceny, especially where the court, after reading subdivision 2 of the section, states that that is the one under which the prosecution is brought. Lee v. State (Ariz.) 1917B-131. 299. Refusal of Instruction Given in Substance. Where a requested instruction that the jury might disregard testimony of a witness if they found from the evidence that he had made contradictory state- ' ments as to material facts in the case is refused, but others substantially embody- ing it are given, any error in the refusal is not prejudicial. Patterson v. State (Ala.) 1916C-96S. 300. Instructing Orally Harmless. Where the court gives two instructions, one orally over objection and one in writ- ing, substantially identical and both cor- rect, the party objecting is not prejudiced by the giving of the instruction orally. Josephs v. Briant (Ark.) 1916E-741. 301. Proof of Existence of Debts Mo- tion for New Trial Raising Question. The 62 DIGEST. 1916C 1918B. evidence did not authorize the court to submit to the jury the question of whether there were no unpaid debts of the estate at all. (a) The ground of the motion for a new trial on this subject did not include an entire sentence; and the same is true in regard to one or two other grounds of the motion for a new trial. If there were no ^ other error, such exceptions would not be considered favorably as causes for re- versal; especially in view of the general charge. Sutton v. Ford (Ga.) 1918A-106. 302. Instructions Given in Substance. The refusal of requested instructions is not prejudicial error, where the subject thereof is sufficiently covered by the gen- eral charge. Taylor v. Northern Coal, etc. Co. (Wis.) 1916C-167. (c) Error Cured by Verdict. 303. Allowing Less Than Statutory Pen- alty. Where, in an action by a city against an auctioneer to recover the statu- tory penalty for carrying on his business without a license, an instruction stated that the fine might be less than the statute prescribed, followed by verdict and judg- ment for less, such instruction and judg- ment are harmless error as to defendant. Kimmins v. Montrose (Colo.) 1917A-407. 304. Instruction Cured by Verdict. Where one not engaged in the real estate business sued for the usual commissions for procuring a purchaser of real estate pursuant to a contract not fixing the com- pensation, defendant did not offer any evidence of the reasonable value of the services, and the jury rendered a verdict for $200 less than the customary commis- sion, the error in an instruction authoriz- ing a recovery of the usual commission is not reversible. Morehouse v. Shephard (Mich.) 1916E-305. (Annotated.) 305. Instruction as to Degree not Found by Jury. An instruction which was proper in defining an assault in the third degree, but which was given as defining an assault in the second degree, was without preju- dice, even if erroneous in respect to the second degree, where defendant was found not guilty in the second degree, but guilty in the third degree. State v. Lehman (Minn.) 1917D-615. (d) Error Cured by Reducing Judgment. 306. Cure of Error by Remittitur. Where a judgment is excessive, but capable of correction by computation merely, it will not be reversed by an appellate court if the defendant in error files a remittitur of the excess. Van Boskerck v. Torbert (Fed.) 1916E-171. (e) Error Cured by Want of Evidence. 307. Refusal of Instructions Party not Entitled to Recover. In an action for libel and slander, the refusal to give instruc- tions offered by plaintiff, is held not to be prejudicial error, where the plaintiff had no case in any event because the language used was not libelous per se, and the spe- cial damages avowed were too remote and speculative to authorize a recovery. Tay- lor v. Moseley (Ky.) 1918B-1125. 308. As to Exceptions in Statute No Evidence to Show Exception. Where it appears that accused either killed a girl outright or in an attempt to procure an abortion, but there is no evidence that an operation was necessary to preserve the life of the mother or child, any error in failing to point out the statutory excep- tions or justification for such an operation is harmless. State v. Farnam (Ore.) 1918A-318. 309. Permitting Conviction as Accessory Error Harmless. In a prosecution for receiving the earnings of a common pros- titute, the evidence showed that accused, a police officer, directed her to make pay- ments to his codefendant, who ran a cigar store, and that such payments were made for protection. Accused, and his code- fendant, who received the payments, were prosecuted and granted separate trials. The court's charge, that to convict the state must prove that the woman was a common prostitute, that either accused himself accepted from her money without any consideration or advised and aided his codefendant to obtain money without law- ful consideration, and it was earned in prostitution, is harmless, though erroneous in authorizing accused's conviction as an accessory where the information charged him as a principal, the evidence clearly showing either that accused received the money himself or directed its payment to his codefendant, who did not necessarily know that money was in the envelopes left with the codefendant for accused. State v. Schuman (Wash.) 1918A-633. 310. Harmless Error Instruction. Such statement of the court is not ground for reversal, even though counsel had not agreed that there was no evidence that the accident happened in any other way, where in fact there was no such evidence. Dishmaker v. Heck (Wis.) 1917A-400. (f) Error Cured by Evidence. 311. Assumption of Facts Harmless Error. In an action for personal injuries, though an instruction that in determining the measure of damages the jury might consider the mental and physical pain and suffering endured by plaintiff in conse- quence of the injury, the character and extent of the injury, if permanent, to- gether with his loss of time and service, and find for him in such sum as would be reasonable compensation for the injury, assuming that he sustained injury and suf- APPEAL AND ERROR. 63 fered pain and loss of time, this is unim- portant where these facts were not dis- puted. Hall v. Manufacturers' Coal, etc. Co. (Mo.) 1916C-375. 312. Eefusal of Instruction Harmless. In a civil action for rape, where, if the jury 'believed all the testimony relative to plaintiff's indiscreet conduct to which a requested instruction applied, they could Btill have reasonably determined from the other evidence that defendant forcibly and unlawfully raped plaintiff against her eon- sent, the refusal of the instruction is harm- less. Jensen v. Lawrence (Wash.) 1917E- 133. (g) Error as to Immaterial or Abstract Matters. 313. Instructions Approved. None of the other grounds of the motion for a new trial, singly or together, show error author- izing the grant of a new trial. There was no error in the rulings in regard to evi- dence, which were complained of. If there were any slight verbal inaccuracies in ex- pression in one or two of the charges, they were of minor importance, and would fur- nish no cause for reversal. Sutton v. Ford (Ga.) 1918A-106. 314. Abstract Instruction. In an action against a carrier for damages to shipments of tobacco, an instruction that it was the duty of the defendant and its connecting carriers, after the tobacco had been dam- aged by flood at an intermediate point, and as soon as conditions there would per- mit, to promptly carry it to destination, and that defendant and its connecting car- riers failed to perform such duty by reason of which the tobacco was further damaged, in so far as bearing on the question of promptness, merely prefatory and abstract, and not submitting the question itself, is not prejudicial to defendant. Louisville, etc. R. Co. v. O'Brien (Ky.) 1917D-922. 315. Irrelevant Instruction Harmless Error. In an action against a street rail- way company for damages from a collision with plaintiff's team, where the court cor- rectly states the rule as to the operation of street cars, the fact that he also in- structs that the rules for the operation of steam cars differ from those for the operation of street cars is not prejudicial. Pollica v. Twin State Gas, etc. Co. (Vt.) 1917C-1240. 316. In such action an instruction that, if defendant's employees knew, or ought to have known, that decedent was in a place of danger, it was their duty to have given warning, is not prejudicial error. Taylor v. Northern Coal, etc. Co. (Wis.) 1916C-167. 317. Eefusal of Instruction Harmless. In an action for the death of plaintiff's decedent, a licensee, while repairing a coal-laden steamer at defendant's discharg- ing dock, from coal dropping from the dis- charging buckets, where the questions whether decedent was warned not to be on the dock between the hoisting rig and the boat while the hoisting apparatus was in operation were immaterial, and, if elim- inated, would have left findings sufficient to support the verdict, a charge putting the burden of proof upon the defendant on the issues made on such questions is not reversible error. Taylor v. Northern Coal, etc. Co. (Wis.) 1916C-167. (7) Rulings as to Witnesses. 318. Leading Questions. This court will not reverse a case on the ground that lead- ing questions were asked, unless it is shown that there was a flagrant abuse of judicial discretion. Hammett v. State (Okla.) 1916D-1148. 319. Improper Cross-examination No Material Fact Elicited. In an action for injuries to plaintiff's delivery wagon in a collision with defendant's street ear, where defendant's witnesses stated on cross- examination that they could not remember whether the bell on the car was rung or how far the car step projected into the street, their testimony is not prejudicial to defendant, even though not proper cross- examination. Davidson Bros. Co. v. Des Moines City R. Co. (Iowa) 1917C-1226. (8) Findings. 320. Other Findings Sufficient. Where findings as to fraud in the procuring of a guaranty are clear, full, and explicit, and are themselves sufficient to support the judgment, uncertainty in other findings will be disregarded. American National Bank v. Donnellan (Cal.) 1917C-744. 321. Inconsistency of Findings. It is only when a judgment rests on some par- ticular finding for its validity and support that the lack of sufficient evidence to sup- port such finding or the contradictoriness between two findings treating of the same essential matter will necessitate a re- versal. American National Bank v. Don- nellan (Cal.) 1917C-744. 322. Finding by Referee. A referee's findings of fact, when sustained by the fourt, cannot be disturbed on appeal, in the absence of manifest error. Miller v. Dilkes (Pa.) 1917D-555. 323. Error in Unnecessary Finding. A finding on one issue being sustained by the evidence and justifying the judgment, any errors as to other issues are imma- terial. In re Rawlings' Mill (N. Car.) 1918A-948. 324. Immaterial Finding not Supported. That some of the special findings are not supported by the evidence will not war- 64 rant the overturning of the judgment where there are other special findings sup- ported by evidence which warrant the judgment. In re Williams' Estate (Mont.) H917E-126. (9) Submitting Equity Case to Jury. 325. Directing Jury Trial of Equitable Issue. The error in directing a trial by jury of the i?sne, in a suit to restrain a nuisance, is immaterial, where the jury failed to agree, and the court, at .the re- quest of both sides, set aside the order for submission and disposed of the contro- versy on the evidence in the case, includ- ing that taken before the jury. Face v. Cherry (Va.) 1917E-418. (10) Striking Out Parties. 326. A judgment will not be reversed for technical error in striking out the names of certain plaintiffs where no prejudice re- sults to defendant therefrom. Sweetser v. Fox (Utah) 1916C-620. (11) Misconduct and Argument of Coun sel. 327. Remarks of Counsel Prejudice. Where counsel on a murder trial was given every opportunity to bring all the facts before the jury, and the court in sustain- ing an objection to a statement by the prosecuting attorney that, of the articles coming into the possession of the chief of police, a cap was the most important, re- marked that the assumption implied some- thing that was not of record and not evi- dence in the case, error, if any, in such remark is not prejudicial. State v. Mewhinney (Utah) 1916C-537. 328. Instruction to Disregard. Remarks of counsel in argument, which, when ob- jected to, the court instructs the jury to disregard, are not cause for reversal of a judgment on a verdict otherwise free from error. State v. Cooper (W. Va.) 1917D- 453. 329. Misconduct Harmless. Improper argument of counsel, the only injurious effect of which would be to enhance dam- ages, will be deemed harmless; the verdict not being complained of as excessive. Chicago, etc. R. Co. v. Gunn (Ark.) 1916E- 648. 330. Curing Misconduct. The prosecut- ing attorney in his closing argument, read to the jury certain testimony which had been stricken by the court. Upon objec- tion, the prosecutor insisted that he was reading from the record of the official stenographer, and that the evidence was not stricken, and the court overruled the objec- tion. The court also refused an instruc- tion that the evidence had been stricken, and that the jury should not consider it or the remarks by the prosecutor, and, in- DIGEST. 1916C 1918B. stead, charged that it appeared from the record that the evidence had been stricken out and they should therefore disregard it, adding that the reference by the counsel for the defendant to the fact that the evi- dence was not furnished by the state was also withdrawn from the jury. Held, that the instruction given was too vague and uncertain, that the defendant was entitled to an emphatic instruction that the jury should disregard the evidence, and the remark by the counsel thereon and the court's action in the matter constituted reversible error. Levi v. State (Ind.) 1917A-654. 331. Misconduct of Counsel Harmless. Misconduct was harmless where the court admonished the jury that their verdict must be based upon the evidence and not upon statements of counsel, for the jury must have understood that the evidence referred to was immaterial and irrelevant. State v. Inlow (Utah) 1917A-741. 332. A judgment should never be re- versed by reason of misconduct of counsel at the trial, unless the appellate court is of the opinion such misconduct had pre- vailing influence upon the jury, to the detriment of appellant. Theriault v. Cali- fornia Ins. Co. (Idaho) 1917D-818. Note. Kestricting argument of counsel in crim- inal action as constituting reversible error. 1917A-718. (12) Refusal of Continuance. 333. Denial Held Harmless Facts Proved Without Absent Witness. Sections 2986 and 2987, N. Mex. Comp. Laws 1897, require a continuance of a cause for ab- sence of a witness only in case the appli- cant has "no other witness by whom such facts can be fully proved." Where, after the overruling of a motion for continuance, the desired fact is fully proved by other witnesses, the ruling of the court in deny- ing the continuance, even if technically erroneous when made, is rendered harmless. State v. Chavez (K Mex.) 1917B-127. (13) Transfer of Cause. 334. Effect of Giving Effect to Affidavit Filed Too Late. Even if the affidavit of prejudice against the judge before whom a case is pending for trial is not seasonably', filed, any error in his sending it for trial to a judge presiding over another branch of the circuit court for the county is not jurisdictional or prejudicial. Dibbert v. Metropolitan Investment Co. (\Vis.) 1916E-924. e. Errors must Appear from Eecord. (1) In General. 335. Prejudice of Judge Absence of Unfair Kuling. Prejudice or fear on the APPEAL AND ERROR. 65 part of the trial judge on account of the publication of a newspaper article cannot be presumed where the record shows that the rulings of such judge were eminently fair. State v. Gordon (N. Dak.) 1918A- 442. 336. Only errors of law apparent on the record are reviewable on error. Facts which do not appear in the record may not be brought to the attention of the supreme court by means of exhibits attached to briefs of counsel. Holstein v. Benedict (Hawaii) 1918B-941. 337. Error must be affirmatively shown, and is not shown with respect to the sup- pression of a deposition on a motion on the ground, among others, that notice of the time and place of taking the deposi- tion was not given, where the evidence on the motion, if any was taken, is not before the Supreme Court and it did not appear that the deposition was not suppressed for lack of compliance with the statute. Bar- field v. South Highlands Infirmary (Ala.) 19160-1097. (2) Errors in Euling on Evidence. 338. Matters not Shown "by Record. Al- leged errors in rulings on evidence may be disregarded; the rulings and objections not being shown by the abstract. People v. Elliott (111.) 1918B-391. 339. Grounds of Motion. Wihere the ab- stract does not state the grounds assigned for a motion to withdraw testimony from the jury, the exception will be overruled. Davidson Bros. Co. v. De Moines City K. Co. (Iowa) 1917C-1226. 340. Question Reviewed Evidence not in Record. Where on appeal from a judg- ment sustaining a lien of attorneys for fees against papers in their possession the certificate of evidence as to their lien was not in the record, the judgment cannot be reviewed on the question of the character of their possession of the papers. Me- Cracken v. Joliet (111.) 1917D-144. 341. Sufficiency of Record Showing as to Excluded Testimony. The exclusion of the testimony of a competent witness which should have been admitted is not error, where the record does not show that his testimony would have been favorable to the appellant. Hightower v. Union Savings, etc, Co. (Wash.) 191SA-489. 342. Omission from Record. Though a telegram was erroneously admitted in evi- dence, no inference of prejudice can be in- dulged in where the telegram is not set out in the abstract. Ottumwa v. Mc- Carthy Improvement Co. (Iowa) 1917E- 1077. 343. Sufficiency of Record Showing as to Excluded Testimony. Error cannot be predicated on the exclusion of questions 5 where the expected answers are not shown by the record on appeal. Schas v. Equi- table Life Assurance Soc. (N. Car.) 1918A- 679. 344. Exclusion of Evidence. That plain- tiff may complain of exclusion of his evi- dence, offered to meet defendant's evidence of C's declarations, the record should show that defendant was permitted to prove C's declarations. Comstock's Administrator v. Jacobs (Vt.) 1918A-465. 345. Admission of Evidence. Where the record does not show w*hat a paper was or its relation to the case, error in per- mitting a witness to testify that a request was made for a paper which was delivered to a deputy sheriff who said he wanted to read over the statement, is not preju- dicial. State v. Giudice (Iowa) 1917C-1160. 346. Record not Showing Importance of Testimony. Where the record- does not show what an exhibit referred to by a witness was, and by whom signed, accused is not prejudiced by the testimony of an officer who was at the jail when the ex- hibit was signed and who heard the talk between the county attorney and accused prior to the making thereof, that no prom- ise was made, though the officer should have been required to give the conversa- tion instead of his conclusion. State v. Giudice (Iowa) 1917C-1160. ' 347. Ruling on Unidentified Exhibit. Where the record does not disclose what an exhibit was, the court on appeal cannot say that the trial court erred in refusing to permit an identification of the exhibit. State v. Giudice (Iowa) 1917C-1160. 348. Documents Excluded at Trial. Doc- umentary evidence excluded below cannot be considered on appeal, though incorpo- rated in the abstract. Schworm v. Fra- ternal Bankers Reserve Soc. (Iowa) 1917B- 373. (3) Error in Instructions. 349. Questions Presented by Record. The general rule applied,' that on excep- tions to instructions given or requests therefor refused, the charge given to the jury should be in the record. Holstein v. Benedict (Hawaii) 1918B-941. 350. Necessity of Showing Exceptions. Where no exception to instructions, given or refused, appears in the statement of facts, they will not be reviewed. Harris v. Bremerton (Wash.) 191GC-160. (4) Error in Argument. 351. A'bsent the transcript, or an agree- ment dispensing with it, exceptions to ar- gument of counsel cannot be considered, the bill of exceptions referring to the transcript on this question, and so making it controlling, and there being in the bill of exceptions, not the precise language of 66 DIGEST. 1916C- the argument, but only a meager, state- ment of it. Comstock's Administrator v. Jacobs (Vt.) 1918A-465. (5) Error in Rulings on Pleadings. 352. As the object of the rule requiring an assignment of errors is to enable the court and the opposing counsel to know on what points the counsel for plaintiff in error intends to ask a reversal and to limit the discussion to these points, it is a com- mendable practice to assign only such rul- ings as are complained of as reversible error, and where plaintiff in error .relied on the overruling of a demurrer to the petition for a reversal and assigned such ruling as error, the writ of error would not be dismissed, because of his failure to assign as error the rendition of the judgment adverse to him, especially in view of rule 11 (150 Fed. xxvii, 79 C. C. A. xxvii) which provides that the court at it? option may notice a plain error not assigned. Blalock v. Georgia E. etc. Co. (Fed.) 1917A-679. f. Errors not Available. (1) Questions not Raised Below. (a) In General. 353. Capital Case. In a capital case, where justice requires it, the court of ap- peals may review errors, though no excep- tion was taken. People v. Watson (N. Y.) 1917D-272. 354. Argument of Counsel. The general rule is that counsel cannot remain quiet and seemingly acquiesce in remarks of op- posing counsel in his argument to the jury, and after verdict obtain a reversal because of matters not objected to at the time. Kriss v. Union Pacific R. Co. (Neb.) 1918A-1122. (Annotated.) 355. Agreement Dispensing With Timely Objection. Where it was agreed that to avoid interruption accused might have an exception to everything that was said by the prosecuting attorney in his argument, and misconduct of the prosecuting attorney was made one of the grounds of a motion for new trial, the state cannot insist that objection to improper argument should have been made. State v. Giudice (Iowa) 1917C-1160. 356. Questions not Raised Below. Where the jurisdiction of a court of another state in probate proceedings is attacked in the surrogate's court on the sole ground that notice was not served upon the parties, the objection cannot be raised on appeal that the court was without jurisdiction because the testator did not have his domi- cile in the state where the proceedings were held. Matter of Horton (N. Y.) 1&1SA-611. -1918B. 357. Scope of Review Test Case. Where the mutually professed object of an appeal is to test the validity of a statute, assignments which cannot aid in the de- cision of that question w.ill not be consid- ered. Hunter v. Colfax Consolidated CoaN Co. (Iowa) 1917E-803. 358. Separation of Conjugal Property. Taking the date of a divorce decree as the date for liquidating the wife's claim for a division of the conjugal property can- not be held erroneous on appeal to the Federal Supreme Court from a decree of the supreme court of the Philippine Islands, on the grounds that there was no formal decree of separation of the prop- erty, and no such inventory as was re- quired by law, where there is nothing in the record sufficient to control the opinion of the latter court that the method ad' by the judge of first instance "in liqui- dating the assets of the conjugal partner- ship was substantially in accord with the method prescribed in the code." De La Kama v. De La Rama (U. S.) 1917C-411. 359. The Federal Supreme Court will not reverse a decree of the supreme court of the Philippine Islands on objections that a division of the conjugal property could not be asked in a divorce suit in the Phil- ippine courts, but must proceed on the footing of a decree already made, and that the judge of first instance who decided t~he cause was illegally designated, where such objections were not presented to the court below, nor assigned as error on the appeal. De La Rama v. De La Rama (U. S.) 1917C- 411. 360. Saving Questions for Review Mis- conduct of Counsel. A claim of miscon- duct of counsel cannot be urged as ground for reversal, unless it is made a ground of the motion for a new trial in the court below. Price v. Minnesota, etc. R. Co. (Minn.) 1916C-267. 361. Contention not Made Below. In an action to recover payments under a con- tract for the purchase of land which the purchaser had attempted to rescind, where ro claim was made in the trial court that there was a rescission by mutual agree- ment, no such claim can be made in the Sii-reme Court. Brown v. Aitken (Vt.) 1916D-1152. (b) Sufficiency of Pleadings. 362. Order Sustaining Demurrer. An order sustaining a demurrer to the answer being made upon the matter in writing and on file in the court, no exception is neces- sary under Ore. L. O. L., 172, to obtain review on appeal. Pullen v. Eugene (Ore.) 1917D-933. 363. Questions Presented by Record Admission of Evidence. An assignment of APPEAL AND ERROR. 67 error upon the admission of testimony, \vkere the evidence objected to is neither literally nor substantially set out, cannot be considered. Gordon v. Spellman (Ga.) 1918A-S52. 364. Objection not Ruled on Below. Where there was no ruling by the court below upon the complainant's objection to the defendant's answer, it will be passed on appeal without further notice. Vidmer v. Lloyd (Ala.) 1917A-576. 365. Validity of Count not Considered Below. Where an affidavit filed in re- corder's court for violation of an ordinance was treated on appeal to the criminal court as importing the charge tried, and under it guilt was determined, whether the other count of the affidavit, or the statement filed in the criminal court, both attempting to charge a like offense, were sufficient or not, is immaterial on a further appeal. Borok v. Birmingham (Ala.) 1916C-1061. 366. Objection not Made Below. An objection that causes of action set out in a petition are inconsistent, not called to the attention of the trial court, will not be considered when presented for the first time in this' court. Stewart v. Murphy (Kan.) 1917C-612. 367. Criminal Law Necessity of Excep- tion Ruling on Plea in Abatement. A plea in abatement filed in a case is a part of the record, and it is not necessary to except to the action of the court in sus- taining a demurrer thereto in order to claim the benefit of error alleged to have been committed in sustaining the demurrer. State v. Wetzel (W. Va.) 1918A-1074. 368. Review Necessity of Objection Be- low Variance. On rehearing, it having been called to the attention of the court that no motion was made for an instructed verdict on the ground of a variance be- tween the indictment and proof, or such variance in any manner called to the at- tention of the trial court, the judgment of reversal is set aside, as it is a well-estab- lished rule of this court that the question of variance, between the allegations in the indictment and the proof, unless raised in the court below, cannot be reviewed here. State v. Klasner. (N. Mex.) 1917D-824. (c) Reception and Rejection of Evidence. 369. Where defendant did not object to testimony offered at the trial, the question of the competency of any part of it cannot be made for the first time on appeal. iBrindley v. State (Ala.) 1916E-177. 370. A wrong judgment, whereby a plaintiff corporation was defeated in the trial court, will not be upheld in this court on the sole ground that the corporate ex- istence of the plaintiff was not proved, when that corporate existence was not treated as one of the issues on trial, and such failure of proof is presented and is called to the attention of the unsuccessful party for the first time in this court. In- surance Co. v. Baer (Kan.) 1917B-491. 371. Ruling not Availed of. Error in overruling defendant's objection to a ques- tion asked plaintiff's witness is harmless where the question was never answered. Corry v. Sylvia Ylia (Ala.) 1917E-1052. 372. The fact that the attorney was per- mitted to testify before the referee in violation of a code provision could not be considered on appeal, where no objec- tion was made to such testimony. Matter of Howell (N, Y.) 1917A-527. 373. It not having been claimed at the trial that the official character of witness affected the admissibility of a declaration made to him, such question cannot be con- sidered on review of exclusion of the dec- laration. Comstock's Administrator v. Jacobs (Vt.) 1918A-465. 374. Reception of Evidence. In an ac- tion for malicious prosecution, where de- fendants offered the testimony of a deputy prosecuting attorney as a part of their case, which testimony was consented to by the plaintiff, and he was called solely to identify a certain exhibit, any error in his cross-examination as to the facts actu- ating his office in prosecuting the plaintiff is cured by its admission without objec- tion. Hightower v. Union Savings, etc. Co. (Wash.) 1918A-489. 375. An objection to the admission of evidence cannot be considered on appeal when not made below. Myers v. Bender (Mont.) 1916E-245. 376. Necessity of Objection Below. An alleged error in admitting in evidence tho contents of a letter, the loss of which it was claimed was not sufficiently proved, cannot be reviewed where the finding did not disclose that any claim was made in the trial court as to the insufficiency of the proof of loss, since, had such claim been made, other evidence would undoubt- edly have been required. New York, etc. R. Co. v. Cella (Conn.) 1917D-591. (d) Errors in Instruction. 377. Striking Out Unnecessary Matters. "Where no objections are interposed to the oral charge, and no exceptions are reserved to it as a whole, or to any part thereof, and it is, as a whole, incorporated into the bill of exceptions by the party taking the plea, it is not error for the trial judge to strike it out of the bill signing it. Thomp- son v. Alexander City Cotton Mills Co. (Ala.) 1917A-721. 378. Objections to instructions cannot be raised on appeal, where they were not ex- cepted to, and were not questioned, either 68 DIGEST. 1916C 1918B. in the motion for new trial or for judg- ment non obstante veredicto. Gust v. Lit- tlefield (Wash.) 1917D-705. 379. Necessity of Exception. Where no exception is saved to an instruction, it cannot be considered on appeal, under Iowa Code Supp. 1913, 2705a, providing that all objections or exceptions to instruc- tions must be made before they are read to the jury and must point out the grounds thereof with reasonable exactness. State v. Stanton (Iowa) 1918A-813. 380. Necessity of Decision Below. The Supreme Court reviews only questions con- sidered and determined by the court be- low, and therefore will not review the cor- rectness of the submission of a case, where it has been submitted from the standpoint in which both parties manifestly tried it. Richardson v. Flower (Pa.) 1916E-1088. 381. Error in Instructions. Under Ore. Const, art. 7, 3, as amended, providing that, if the Supreme Court shall be ot opinion that the judgment appealed should have been rendered, such judgment shall be affirmed notwithstanding any error at the trial, a judgment on a verdict for de- fendants in an action for an unlawful search will be affirmed where the court in- structed that, if the officer in executing the warrant unnecessarily offended those pres- ent, the search warrant could be of no protection to him, and that otherwise would constitute a defense as to both de- fendants, even though the search warrant was issued without probable cause and maliciously by the defendant justice of the peace, to which language no exception was taken, though the court erroneously in- structed that the process under which de- fendants justified was regular on its face and justified the obedience to its com- mands. Smith v. McDuffee (Ore.) 1916D- 947. 382. Where no exceptions are taken to instructions given by the court of its own motion, error cannot be assigned on such instructions. State v. Klasner (N. Hex.) 1917D-824. 383. Criminal Law Eeview Necessity of Exception. N. Y. Code Cr. Proe. 528, declares that, in case of a death sentence, the Court of Appeals may order a new trial, if justice requires it, though no ex- ception was taken. No exception was re- served to an instruction charging that ac- cused, whose assailant attacked him in his dwelling house, should have retreated. Accused claimed self-defense, and admit- ted, on cross-examination, that if he had fled from his house he would have been safe. Held, that a conviction of murder in the first degree must be reversed, though no exception was reserved to the instruc- tion, for it deprived accused of all benefits of his plea of self-defense. People v. Tom- lins (N. Y.) 1916C-91G. (e) Errors in Findings or Verdict. 384. Necessity of Objection Failure to Make Finding. Failure to raise, in the trial court, the question that the master's report made no finding whether plaintiff was guilty of adultery, waives such ques- tion. Klekamp v. Klekamp (HI.) 1918A- 663. 385. Where the correctness of a finding was not challenged, appellant cannot make it the basis of an appeal. Weber v. Amer- ican Silk Spinning Company (E. I.) 1917E- 153. 386. Necessity of Exception Direction of Verdict. Error in directing a verdict for defendant is not reviewable by the supreme court, unless excepted to. Bar- num v. Chamberlain Land, etc. Co. (S. Dak.) 1917A-848. (Annotated.) 387. Findings by Master Necessity of Exception, Objections to a decree, based upon a master's findings not excepted to before confirmation, and not apparently erroneous, are ineffectual as grounds for reversal in an appellate court. Williams v. S. M. Smith Ins. Agency (W. Va.) 117A-813. 388. Necessity of Exceptions. On ap- peal from a decree in equity, assignments of error in the admission of evidence and in findings of the trial court are defective where no exceptions are shown to have been taken to the action of the court and it does not appear that any action was taken by the court in bane with reference to the findings. Duquesne Light Co. v. Pittsburgh (Pa.) 1917E-534. Note. Necessity of exception to direction of verdict. 1917A-849. (f) Eulings on Motion for New Trial. 389. Necessity for Exceptions Denial of New Trial. An assignment based upon the denial of the motion for a new trial cannot be considered by an appellate court, in the absence of an exception to such ruling. Henry v. Spitler (Fla.) 1916E- 1267. 390. Necessity of Exception. In the ab- sence of an exception to the denial of a new trial, such denial could not be re- viewed, to determine whether it was an abuse of discretion. Philadelphia, etc. Bfc Co. v. Gatta (Del.) 1916E-1227. 391. The technical error, in the order granting defendants in ejectment a new trial, that the costs be paid "to the clerk," whereas the provision of St. Wis. 1913, 3092, that they "be paid" means paid to plaintiffs, not having been objected to be- low, will not avail on appeal. Guaranteed Investment Co. v. Van Metre (Wis.) 1916E-554. (Annotated.) APPEAL AND ERROR. 69 392. Necessity of Exception Decision on Stipulated Facts. Where the facts were all stipulated, no exception to the court's decision need be taken under Ore. L. O. L. 172, declaring that no excep- tion need be taken to any decision upon a matter of law; the judgment being merely an application of the law to the facts. Grice v Oregon-Washington, R., etc. Co. (Ore.) 1917E-645. (g) Conduct of Court or Counsel. 393. Remarks of Counsel. The question a? to the alleged prejudicial remarks of the state's attorney being raised for the first time in the trial court on motion for new trial will not be reviewed. People v. Falkovitch (111.) 1918B-1077. 394. Remarks Addressed to Jury in An- other Case Prejudice. In a prosecution for conspiracy, where the state's attorney was excused at his request for a few min- utes, an interval of which the court availed itself to sentence one convicted of murder in the second degree, taking occasion, in the presence of the jury in the conspiracy case, to express at some length its views as to the insufficiency of a defense in the murder case, where no exception was taken by the conspiracy defendants to the ex- pressions of the court, and no suggestion irade at the time that they might have a prejudicial influence, such action presents no question for review. Hummelshime v. State (Md.) 1917E-1072. (h) Denial of Continuance. 395. Where the record fails to show that appellant, when he applied to the trial court for a continuance, brought to the attention of the court, by his affidavit or otherwise, the fact that he had been cited to appear in another court on the day of the trial, the action of the court in deny- ing the continuance will not be disturbed. Neven v. Neven (Nev.) 1918B-1083. (2) Sufficiency of Objection or Exception, (a) Rulings on Evidence. 396. Sufficiency of Evidence. Though accused, by proceeding with his defense, when his motion to direct a verdict at the close of the case for the state was denied, and failing to renew it later, waived the right to claim on appeal that there was no case for the jury, yet his motion for new trial on the ground that the evidence was insufficient to support the verdict, and the denial thereof, will preserve for review the question whether the jury should have found it sufficient. State v. Asbury (Iowa) 1918A-856. 397. Review of Exclusion of Question Necessity of Offer of Proof. In a trial for murder, there is no error in sustain- ing an objection to defendant's question to a witness, "What did you all say!" since the question is too general, and does not disclose that the answer sought to be elicited would be material, and since the defendant did not inform the court what was proposed to be proved, so that the court might see whether the evidence sought was proper. Brindley v. State (Ala.) 1916E-177. 398. Motion to Strike. Where objection was made to one question propounded a witness, and sustained without motion made to strike from his answer, though there may have remained in the answer something not responsive, it cannot be made the basis of error on appeal. Visa v. Calligan (Wash.) 1918A-819. 399. Ground of Objection Below. The question of evidence being incompetent as hearsay cannot be considered on appeal, the overruled objection below being that it was irrelevant and immaterial. Sherman v. Harris (S. Dak.) 1917iC-675. 400. Questions Reviewed Specific Ob- jection. Unless brought to its attention by special bills of exception, or upon a motion for a new trial, specifically stat- ing, as grounds therefor, the admission or rejection of evidence, this court will not consider the rulings of the trial court thereon. Hill v. Norton (W. Va.) 1917D- 489. 401. Withdrawal of Evidence Necessity of Request. Where a witness called by the state testified contrary to her testi- mony at the preliminary hearing, and the prosecutor interrogated her as to that tes- timony, accused cannot on appeal complain that the witness' former statements were not wholly withdrawn from the jury, where his own request on that point was sub- stantially given. State v. Unlow (Utah) 1917A-741. 402. Instructions As to Weight of Evi- dence Necessity of Specific Objection. In view of court rule 27 (164 N. C. 548, 81 S. E. xi), providing that it shall not be ground for exception that the court failed to charge the jury as to the effect to 'be given testimony admitted in cor- roboration or contradiction, unless such charges are specially requested, the giving of a charge which informed the jury that testimony was to be considered solely in impeachment of a witness, even if error, is harmless. Medlin v. County Board of Education (N. Car.) 1916E-300. 403. Sufficiency of General Objection. A general objection to evidence is no ground of reversal. Garrison v. Newark Call Printing, etc. Co. (N. J.) 1917C-33. (b) Rulings on Instructions. 404. Specific Objection Necessary. If an instruction for plaintiff, correct as far as 70 DIGEST. 1916C 1918B. it went, fails to state a certain qualifica- tion which all other instructions given for plaintiff did contain, objection to the omis- sion should be made the subject of specific objection before it can be reversible error. Josephs v. Briant (Ark.) 1916E-741. 405. Refusal to Direct Verdict Neces- sity of Motion for New Trial. The refusal of the trial court to direct verdict by per- emptory instruction cannot be made the basis for an independent assignment of error on appeal; such action must be pre- sented to the trial court as cause for new trial, and the court's* refusal to grant it assigned as error. White v. State (Ind.) 1917B-527. 406. Necessity of Motion for New Trial. Before the supreme court can reverse a judgment on account of the exclusion of evidence, that evidence must be presented to the trial court when the motion for a new trial is heard. O'Neal v. Bainbridge (Kan.) 1917B-293. 407. Failure to Object or Except. A de- fendant requesting a directed verdict in his favor, may not have the accuracy of statements in the charge of the trial court and the legal effect adjudicated by the supreme judicial court, in the absence of failure to direct the attention of the trial court specifically to the complaint, and to allege exceptions. McLellan v. Fuller (Mass.) 1917B-1. 408. Appeal from Magistrate. Objection to the sufficiency of a complaint for vio- lation of an ordinance cannot be made for the first time in the circuit court on ap- peal. Borok v. Birmingham (Ala.) 1916C- 1061. 409. Instructions Necessity of Request. Where a party makes no special request or charge, and does not specially except to the charge given, the appellate court will not reverse for a mere inadequacy in the charge. Hunter v. Bremer (Pa.) 1918A-152. 410. Instruction as to Indictment. A motion in arrest of judgment and for new' trial on the ground of error in the refusal of instructions does not present the ques- tion of the sufficiency of the indictment, though one of the requested instructions was that the indictment did not state an offense, since such instruction was prop- erly refused in any event. State v. Gard- ner (Iowa) 1917D-239. 411. Exceptions to Refusal Sufficiency of Single Exception. A single exception to three refused instructions will not avail, where one of the instructions is argumenta- tive and the others covered by the general charge. Lee v. State (Fla.) 1917B-236. 412. In an action against the indorser of a note which contains a complete waiver of notice of presentment and dishonor, though the notice of motion for judgment should allege such waiver, the defect in the notice is harmless, as, in view of the undisputed written waiver, an amendment at bar would be proper. Colley v. Sum- mers Parrott Hardware Co. (Va.) 1917D- 375. 413. Applicable to One Cause of Action Harmless Error. Though the petition in one count, alleging breach of promise of. marriage, seduction, pregnancy, and abor- tion at the instance of defendant, might well be treated as one for breach of prom- ise alone, with the other matters pleaded in aggravation of damages, yet plaintiff having, under Iowa Code, 3470, also a cause of action for seduction, with right, under section 3545, to prosecute 'both causes of action in one action, and the court, in receiving evidence and giving in- structions, having seemed to rule that both causes of action were alleged, and objec- tion not having been raised to each not being stated in a separate count, as they should, an instruction authorizing recov ery of an element of damages recoverable only in an action for seduction is not re- versible error; defendant not being preju- diced thereby. Nolan v. Glyhn (Iowa) 1916C-559. 414. In order to object on appeal to the giving of a requested instruction in lan- guage different from the request, an ob- jection should be taken to the request as charged and to the refusal to charge as requested. Miller v. Delaware Biver Trans. Co. (N. J.) 1916C-165. 415. Objection to Refusal of Instruction. Notwithstanding the new practice act, the appellate court will not review error in refusing requested instructions, unless ap- pellant, at the time of presentation, ob- jected to the refusal to charge each specific request. Miler v. Delaware River Trans. Co. (N. J.) 1916-16o. 416. Necessity of Specific Objection Harmless Error. Instructions declaring sound propositions of law, though not wholly applicable to the issues, are not reversible error, unless the court's atten- tion was directed thereto at the time and prejudice resulted to the party complain- ing. Osteen v. Southern R. Co. (S. Car.) 1917C-505. 417. Duty to Instruct Necessity of Re- quest. When the trial court gives a gen- eral instruction upon a matter involved in the issues, and a more specific instruc- tion is requested, such request should fairly present the matter as it affects all parties to the litigation. If it fails to do so, to refuse the request will not be preju- dicial error requiring a reversal, unless it appears from the entire record that the jury probably misunderstood the real issue for want of a more specific instruction. Kriss v. Union Pacific R. Co. (Xeb.) 1918A-1122. APPEAL AND ERROR. 71 418. Necessity of Specific Objection. Where counsel wishes to take advantage of alleged errors in the court's charge, he should point out the portion of the charge which is subject to criticism, and wherein the defects, if any, consist. State v. Bru- nette (N. Dak.) 1916E-340. 419. An exception to an instruction which fails to point out clearly the ground of the objection and the particular por- tion of the instruction to which it is di- rected is insufficient. Carmody v. Capital Traction Co. (D. C.) 1916D-706. (c) Time of Making Objection. 420. Misconduct of Juror. Where de- fendant and his attorney knew at the trial that the juror had a conversation with one of the witnesses, 'but did not call the at- tention of the trial court thereto until after the motion for a new trial was made, such matter will not be reviewed, especi- ally where the affidavits presented war- ranted the court in finding that the con- versation had no reference to the trial. People v. Falkovitch (111.) 1918B-1077. 421. Denial of Motion to Dismiss in In- termediate Court. Under Ky. Civ. Code Prac. 334, providing that the party ob- jecting must except when the decision is made, where defendant in a prosecution for breach of the peace did not except at the time to the circuit court's overruling of his motion to dismiss and remand the case to the county court, he cannot assign such ruling as error. Delk v. Commonwealth (Ky.) 1917C-884. 422. Amendment of Pleading. Where objection to the allowance of an amend- ment is not made before the trial, and where it does not appear that the party complaining is prejudiced, the courts will not favorably consider it. Drennen v. Williams (Colo.) 1917A-664. 423. Time for Objecting. Objections to evidence must be made at the right time or they cannot be considered on appeal. State v. Von Klein (Ore.) 1916C-1054. 424. Necessity of Objection Examina- tion of "Witness by Court. Where on the trial of a case the court propounded cer- tain questions to a witness, which examina- tion, it is insisted, was so conducted as to prejudice the rights of the plaintiff in error and- elicited certain hearsay testi- mony, this action on the part of the court will not cause a reversal in the absence of any objection having been raised thereto at the time. Brown v. Caylor (Ga.) 1916D-745. (d) Sufficiency of Pleadings. 425. Necessity of Demurrer or Motion. Under Iowa Code, 5328, authorizing de- murrer to the indictment for insufficiency to state facts constituting an offense, au- thorizing motion in arrest of judgment on the same ground, the supreme court will not review the sufficiency of the indictment in the absence of either of these proceed- ings, in passing on a requested instruction that it states no offense. State v. Gard- ner (Iowa) 1917D-239. 426. Matters Provable Under Other Counts. Error in sustaining demurrers to special pleas is harmless, where all the matters specially pleaded were available to defendant under his plea of the general issue. Corry v. Sylvia Y Cia (Ala.) 1917E-1052. 427. Specification of Errors Limitation on Appeal. Under Ind. Acts 1911, c. 157 (Burns' Ann. St. 1914, 344), one who de- murred to a complaint for want of facts to state a cause of action, cannot, on ap- peal, assign objections not stated in the memorandum filed with the demurrer. Pittsburgh, etc. B. Co. v. Home Ins. Co. (Ind.) 1918A-828. (e) Verdict or Findings. 428. No exception is necessary in a fed- eral court to raise the question whether, when a jury has been duly waived, the special findings of fact by the court are sufficient to support the judgment ren- dered thereon. Philadelphia Casualty Co. v. Fechheimer (Fed.) 1917D-64. 429. To Overruling of Objections to Re- port of Referee. Where an action at law in a federal court is tried to the court by stipulation, pursuant to Eev. St. 649 (4 Fed. St. Ann. 393), and by consent the cause is referred to a referee to take the evidence and report his findings of fact and conclusions of law, a general exception to the action of the court in overruling in a mass the exceptions taken to the report of the referee is too indefinite to present any question for review by the appellate court, and also, if any one of the rulings of the referee excepted to was correct, the exception is not good. Philadelphia Casu- alty Co. v. Fechheimer (Fed.) 1917D-64. 430. Where the court, in addition to special findings, made a general finding and holding in favor of the contestees and against the contestants, the general assign- ment in the contestants' motion for new trial, that the verdict is contrary to the law and the evidence, is sufficient to chal- lenge the correctness of the finding and judgment of the court. Webb v. Bowden '(Ark.) 1918A-60. 431. Failure to Request Submission of Issue Presumption. Under the express provision of Wis. St. 1913, 2858m, an issue of settlement in an action for the balance due upon a contract for grading, as to which defendant requested no sub- mission, will be deemed, after judgment 72 DIGEST. 1916C 1918B. for plaintiff, to have been found 'by the court against defendant, where there was ample evidence to support such finding. Gist v. Johnson-Carey Co. (Wis.) 1916E- 460. (f) Rulings on Motion for New Trial. 432. Where no notice of intention to move for a new trial was given, and the notice of the motion stated that it would be made on the iniuutes of the court, but even that notice did not contain the speci- fications which are required in the notice of intentions by 8. Dak. Code Civ. Proe. 303, no errors predicated upon the motion for new trial can be considered on appeal. Kichelson v. Mariette (S. Dak.) 1917A- 883. (g) Sufficiency of Decree. 433. Sufficiency. Exceptions challenging a decree, in that it did not do equity and was contrary to the evidence, are suffi- cient to erititle defendants, seeking the same, to a hearing de novo on the merits on appeal. Tevis v. Tevis (Mo.) 1917A- 865. (3) Inconsistent Attitude on Appeal. 434. Admissions By Counsel at Trial Estoppel to Repudiate. Appellant is es- topped to claim admissions were not made by his counsel, or were inadvertently made, the trial court having recapitulated what he conceived to have been admitted, stating that he intended to make those admissions the 'basis of his decree, and having appealed to counsel to say whether there was any dispute as to the facts so recited, and counsel having admitted they were true. Black v. Suydam (Wash.), 1916D-1113. (4) Error Caused 'by Appellant. 435. Charge Given at Request of Party. Plaintiff, having requested it, may not com- plain of the giving of an instruction not within the issues. Newby v. Times-Mirror Company (Cal.) 1917E-186. 436. Though plaintiff, having requested it, may not complain of the giving of an instruction not within the issues, he may make the point that the implied findings thereunder are not supported by the evi- dence. Newby v. Times-Mirror 'Company (Cal.) 1917E-186. 437. Estoppel to Allege Error Refusal of Motion of Appellant to Dismiss Appeal. Where defendant, in a prosecution for breach of the peace before the county court, appealed from conviction to the cir- cuit court, he cannot, on appeal from that court's affirmance, assign as error its re- fusal to dismiss the appeal from the county court and remand thf case to it. Delk v. Commonwealth (Ky.) 1917C-884. 438. Where the court, ordering the jury to be kept together during the trial, indi- cated that the order was made at the re- quest of accused, but the order was subse- quently withdrawn and the jury never confined thereunder, accused was not preju- diced. State v. Giudice (Iowa) 1917C- 1160. 439. Any error of the court in refusing, in a mortgage foreclosure suit, to try out the question of priority of title between defendants W. and T., as to nine acres of the mortgaged land, which W. claimed by contract of sale made by the mortgagor before he conveyed the entire tract to T., was invited by T., and so cannot be com- plained of by him, he having objected to trial therof. Black v. Suydam (Wash.) 1916D-1113. 440. Requesting Instruction. A 'party who has requested an erroneous instruction waives the error of the court in giving it at the instance of the opposite party. St. Louis, etc. R. Co. v. Blaylock (Ark.) 1917A-563. 441. Rulings as to Pleadings. The elim- ination by plaintiff of counts of a com- plaint rendered harmless any errors com- mitted in rulings as to such counts. Age- Herald Publishing Co. v. Waterman (Ala.) 1916E-900. 442. Joint Request for Submission of Is- sues. Where appellant has joined with ap- pellee in having certain issues submitted to the jury, he cannot complain of the rulings of the court in submitting them. St. Louis, etc. R. Co. v. Blaylock (Ark.) 1917A-563. (5) Errors Favorable to Appellant. 443. Harmless Error Exclusion of Evi- dence Favoring Adverse Party. In a pros- ecution for conspiracy, where a detective had been engaged to ascertain if there was corruption in a city council, and, posing as one to whom the city owed money, had had an interview with the son of a coun- cilman respecting his supposed claim, the refusal of the court to permit such coun- cilman to repeat a statement made by his son to him after the interview, as to which the detective's testimony for the state sub- stantially agreed, is not prejudicial. Hummelshime v. State (Md.) 1917E-1072. 444. On appeal from a judgment against a sheriff and his surety for selling prop- erty levied under two executions, under the junior execution, defendants could not complain that the trial judge ordered the proceeds of the sale to be paid to plaintiff in* reduction of defendant's liability, as it was beneficial to them. Continental Dis- tributing Co. v. Hays (Wash.) 1917B-708. (Annotated.) 445. For "Plaintiff" in Action by Two. In an action by two plaintiffs, where only APPEAL AND ERROR. 73 one was' entitled to recover, a judgment for "the plaintiff," without specifying which one, is not prejudicial to defendant, and will not be reversed, where the plain- tiff entitled to recover makes no com- plaint. Gish Banking Co. v. Leachman'8 Admr. (Ky.) 1916D-525. 446. Conviction of Included Offense. Accused, convicted of assault with intent to do great bodily harm, cannot complain that the evidence showed that he should have been convicted of assault with intent to kill. State v. Cessna (Iowa) 1917D- 289. 447. Error Favorable to Appellant. A party who appeals from an order granting a new trial after verdict in his favor can- not assail the order on the ground that the trial court committed errors against him on the trial. Herman & Ben Marks v. Haas (Iowa) 1917IX-543. 448. Evidence Beneficial to Party Com- plaining of Admission. A party cannot complain on appeal of the admission of incompetent evidence which inures to his benefit. Eehling v. Brainard (Nev.) 1917C-656. 449. Whether demurrer to a plea of lim- itations to a count was properly overruled cannot be considered by a reviewing court, defendant alone bringing error, and plain- tiff assigning no cross-errors. Wende v. Chicago City R. Co. (HI.) 1918A-222. 450. Instruction Too Favorable to Ap- pellant. Where a physician broke his con- tract to attend plaintiff, a charge that it was his duty to either have sent another doctor, or notified plaintiff that he could not attend her, being more favorable to the physician than is the law, is harmless. Hood v. Moffet (Miss.) 1917E-410. 451. An instruction that "if one of the parties to the illicit intercourse is guilty, then both are guilty of adultery," being a statement unduly favorable to the defend- ant convicted, is harmless. State v. Ayles (Ore.) 1916E-738. 452. On plaintiff's appeal, error in over- ruling a demurrer to the complaint will not be considered. Thompson v. Alexan- der City Cotton Mills Co. (Ala.) 1917A- 721. (6) Wrong Eeason for Correct Decision. 453. Punishment Imposed, Appropriate to Valid Portion of Verdict. Where defend- ant was convicted, under Ore. L. O. L. 5293, 5298, regulating fishing in the waters of the state, of two offenses, first, in having fished without a license, and second as having fished without being a resident of the state, and where the pun- ishment in each case was the same, al- though the defendant should have been convicted under the charge of fishing with- out a license alone, his conviction can be upheld under Const, art. 7, 3, as amended, providing that if the supreme court shall be of opinion that the judgment of the court appealed from was such as should have been rendered, it shall be affirmed, notwithstanding any error committed dur- ing the trial. State v. Catholic (Ore.) 1917B-913. 454. Grant of Nonsuit. A nonsuit granted on one of several grounds may be sustained if any of the other grounds spe- cified authorize it. Solomon v. Public Ser- vice B. Co. (N. J.) 1917C-356. (7) Nonsuit Instead of Directed Verdict. 455. Nonsuit Instead of Directed Ver- dict. The irregularity, if any, in entering a compulsory nonsuit in accordance with the state practice, instead of directing a verdict for defendant, is one of form only. Dominion Trust Co. v. National Surety Co. (Fed.) 1917C-447. (8) Error Cured by Verdict. 456. Errors committed against a party are cured by a verdict in his favor. Her- man & Ben Marks v. Haas (Iowa) 1917D- 543. 18. DECISION OE JUDGMENT OF APPELLATE COUET. a. Eendition of Final Judgment on Ap : peal. 457. Final Judgment on Reversal. The question of the sufficiency of the evidence to present a question of fact must be de- termined on appeal, as regards the right to finally dispose of the case by dismissal of the complaint, by the evidence actually admitted, including opinion evidence, given over proper objection that the hy- pothetical questions did not include all the facts which should have been put before the witnesses. Middleton v. Whitridge (N. Y.) 1916C-856. 458. Final Judgment on Appeal as De- nial of Jury Trial. N. Y. Const, art. 1, 2, merely guaranteeing the substantial right of trial by jury, and not preserving ancient common-law forms and rules of procedure, is not. contravened, where, as matter of law, dismissal of the complaint or direction of a verdict being proper, or disputed questions of fact being by con- sent submitted to the court for decision, as where both sides move for a direction of a verdict, without asking to go to the jury, the trial court determines the cause without taking a verdict of the jury, and so is not contravened, where, in such a case, the trial court having erred in sub- mitting it to the jury, or in deciding a question of fact submitted to it for deci- sion, the appellate division makes such final disposition of the case as the trial court should have made. Middleton v. Whitridge (N. Y.) 1916C-S56. 74 DIGEST. 1916C 1918B. 459. The final judgment of reversal and dismissal which the appellate division is empowered by N. Y. Code Civ. Proc. 1317, as amended by Laws 1912, c. 380, to ren- der in a jury case, being required to bo "on special findings of the jury or the gen- eral verdict, or on a motion to dismiss the complaint or to direct a verdict," is such only as the, trial court should have rendered on such a verdict or motion; the error thus corrected being that of the court and not of the jury, and the province of the jury not being invaded. Middleton v. Whitridge (N. Y.) 1916C-856. 460. Even if it is indispensable in cap- ital cases to ask the prisoner if he has anything to say before sentence, error in omitting the inquiry affects yonly the sen- tence and not the verdict; and in view of Md. Code Pub. Gen. Laws 1904, art. 5, 81, providing that if the court of ap- peals reverses for error in the judgment or sentence itself, it shall remit the record to the court below that it may pronounce the proper judgment, and especially where a motion for a new trial and to strike out a judgment and sentence have been over- ruled, the court of appeals is not required to reverse the judgment and remit that the court below may first ask the prisoner if he has anything to say and then to re- sentence him. Dutton v. State (Md.) 1916C-89. (Annotated.) 461. Eendering Final Judgment on Re- versal. A judgment for plaintiff cannot be reversed, and judgment rendered by the appellate division for defendant, unless there was no evidence presenting a ques- tion of fact in favor of plaintiff, and de- fendants were entitled to an order of non- suit of a directed verdict. Carlisle v. Norm (N. Y.) 1917A-429. b. Granting New Trial. 462. On appeal from a judgment of the appellate division, rendered before amend- ment, by Laws 1914, c. 351, of N. Y. Code Civ. Proc. 1346, reversing the judgment for plaintiff and dismissing the complaint, there being evidence from which the jury could draw inferences for plaintiff, and the record disclosing exceptions requiring a new trial, instead of remitting the case to the appellate division to consider it on the facts, a new trial will be granted. Middleton v. Whitridge (N. Y.) 1916C- 856. 463. Limiting Issues on Retrial. That Miss. Code 1906, 4944, 4945, by the rule of "expressio unius est exclusio alterius," prohibits the supreme court from granting a new trial on the issue of damages only, does not affect such right if it exists by some other statute. Yazoo, etc. K. Co. v. Scott (Miss.) 1917E-S80. (Annotated.) 464. At common law in a civil action, the supreme court has the power to award a new trial on the issue of damages only. Yazoo, etc. R. Co. v. Scott (Miss.) 1917E- 880. (Annotated.) 465. Questions not Likely to Arise on Retrial. The case being remanded for a new trial upon another ground, it is un- necessary to determine or decide questions made by assignments of error upon rulings of the court ref-using to declare a mistrial based upon certain incidents occurring during the trial, as those incidents will probably not occur at the next hearing. Loewenherz v. Merchants', etc. Bank (Ga.) 1917E-S77. 466. Scope of Remand New Trial on Single Issue. A reviewing court may, in its discretion, qualify the order of remaml so as to restrict the scope of the new trial ordered. Perkins v. Brown (Tenn.) 1917A-124. 467. Where the only question at issue was the measure of damages, the appellate court, on reversal of a judgment for plain- tiff, will qualify the order of remand so as to determine only the matter of damages. Perkins v. Brown (Tenn.) 1917A-124. 468. Issues Effect of Agreement. Where opposing counsel in such case agree that there is no question of assumption of risk in the case, and the trial judge agrees to disregard such question in his charge, and where, after verdict for plaintiff, the court, in considering defendant's motion for judgment non obstante veredieto, treats such question as controlling, the judgment should be vacated on appeal and a new trial awarded. Richardson v. Flower (Pa.) 1916E-1088. 469. General Rule. The supreme court cannot grant a new trial merely for exces- sive damages for personal injury, unless they appear to have been given under the influence of passion or prejudice; that is, so excessive as to be entirely out of pro- portion to the injury. Rosenberg v. Dahl (Ky.) 1916E-1110. Note. Right of appellate court, upon granting new trial, to limit issues to be tried by jury. 1917E-888. c. Remand for Additional Findings. 470. Remand for Further Proof Elec- tion Contest. Where there is a discrep- ancy between the printed list of taxpayers and those who had voted at the election in a township, but the evidence is not fully developed, so that it is possible that the contestees may show that the election returns are correct, the case will be re- manded to give the contestees an oppor- tunity to prove the correctness of the elec- tion returns. Webb v. Bowden (Ark.) 1918A-60. APPEAL AND ERROR. 75 d. Remand for Proper Judgment. 471. Disposition of Cause Demurrer Properly Overruled. Where the trial court erred in overruling the demurrer to the amended declaration on the ground of mis- joinder of causes of action, the supreme court will not sustain the demurrer and enter judgment for defendant, but will re- mand, with instructions to give plaintiff leave to withdraw his joinder in the de- murrer and amend his declaration. Tan- ner v. Culpeper Construction Co. (Va.) 1917E-794. e. Modification of Judgment. 472. Cure of Error by Remittitur. Where, in an action against a city for personal injuries, the court erroneously permitted an amendment of the claim filed, with the city to include $65 expended in the employment of a nurse, the error can be remedied on appeal without a reversal, if plaintiff will file a remittitur of $65. Wagner v. Seattle (Wash.) 1916E-720. f. Modification of Judgment of Appellate Court. 473. Recall of Remittitur. The supreme court may at any time recall a remittitur which through mistake of the clerk incor- rectly states the judgment rendered. Oak- land v. Pacific Coast Lumber, etc. Co. (Cal.) 1917E-259. 474. Where the judgment of the supreme court is not objected to or modified within 30 days after its rendition, it becomes ab- solutely final, and cannot thereafter be modified. Oakland v. Pacific Coast Lum- ber, etc. Co. (Cal.) 1917E-259. g. Jurisdiction of Appellate Court After Remand. 475. Where an appeal has been dis- missed, and the remittitur transmitted to and filed in the trial court, the appellate court has lost jurisdiction of the case, and cannot recall the remittitur, or review its decision, unless the order was based on fraud or mistake of fact, or the remittitur was sent down through inadvertence or mistake. Hilmen v. Nygaard (N. Dak.) 1917A-282. (Annotated.) Note. Jurisdiction of appellate court after re- mand. 1917A-284. h. Amendment of Pleadings on Remand. 476. Eight to Amend Pleading. Where after a jury trial a case is appealed and reversed for new trial, amendments to the pleadings are not a matter of right, but mav be allowed in the discretion of the coiirt. Estate of Oldfield (Iowa) 1917D- 1067. 477. Where a plaintiff elects to stand upon his amended complaint when a de- murrer was sustained to it, on reversal no further amendment can be permitted. Dick v. Northern Pacific R. Co. (Wash.) 1917A-638. 19. EFFECT OF APPEAL. 478. Law of the Case. A decision on the facts certified that defendant's incom- petency as a witness was waived becomes the law of the case for subsequent trials, as such record can be corrected only on a rehearing, and not falsified on a subse- quent trial, by showing the facts were otherwise than certified. Comstock's Ad- ministrator v. Jacobs (Vt.) 1918A-465. 479. Decision as Law of Case. The law as enunciated by the court on appeal as applicable to a given case remains the law of that case for all future proceedings. Rugenstein v. Ottenheimer (Ore.) 1917E- 953. 480. Liability of Guardian for False Claim Effect of Allowance of Claim. The right of a minor ward upon coming of age to obtain relief in equity under the Hawaiian laws, against his guardian, who had, in fraud of the ward, presented a claim and obtained in his own name an award by the Hawaiian board of land commissioners of a title in fee simple to the ward's land, was not foreclosed by an affirmance in the Federal Supreme Court of a decree of the Hawaiian Supreme Court adjudging that the award in ques- tion could only be attacked by a direct appeal by a party who had presented his claims to the board, where the vitally im- portant fact of guardianship was not included in the findings of fact certified to the federal supreme court. Kapiolani Es- tate v. Atcherly (U. S.) 1916E-142. Note. Force and effect of advisory opinion by appellate judges. 1917A-495. 20. SUPERSEDEAS AND BOND. a. In General. 481. Appeal Bond Failure to Indorse Filing. Where a justice accepted an ap- peal bond, his failure to mark it filed is not a jurisdictional defect. Brown v. Mellon (Iowa) 1917C-1070. 482. Eevocation of License Appeal. A judgment revoking a liquor license being self-executing, an appeal therefrom does not suspend it, or stay its force, at least where a supersedeas bond is not given under Utah Comp. Laws 1907, 3314. In re Grant (Utah) 1917A-1019. (Annotated.) b. Release of Sureties. 4S3. Abandonment of Appeal. An under- taking on appeal from a justice of the 76 DIGEST. 1916C 1918B. peace is to be construed strictly in favor of the surety, and, where it is conditioned that the appellant will pay all costs and disbursements that may be awarded against him on the appeal, and satisfy any judgment that may be given against him in the appellate court, and the appeal is abandoned and no judgment is rendered in the appellate court, the surety is not lia- ble. Woodle v. Settlemyer (Ore.) 1916C- 1222. (Annotated.) Note. Effect of abandonment or dismissal of appeal on liability of sureties on appeal bond. 1916C-1226. c. Actions on Appeal Bonds. 484. Effect on Original Judgment. If, upon appeal to this court, such judgment is affirmed, and the property is returned to the defendant pursuant to such judg- ment, in an action upon the appeal bond the plaintiff cannot recover damages oc- curring prior to the original judgment. Wallace v. Cox (Neb.) 1917D-699. (Annotated.) 21. COSTS. 485. Cost of Transcript. A refusal of the clerk to order either the defendant or the clerk of the court to furnish a copy of the stenographer's minutes, and its order that the plaintiff furnish such copy for the purposes of his appeal from the court's action in setting aside a verdict in his favor, is proper in view of Conn. Gen. St. 1902, | 805, providing that, on appeal from the denial of a motion for new trial based on the verdict being against the evi- dence, the expense of printing evidence shall be governed by the provisions of sec- tion 796, which provides that the expense of printing any evidence made part of the record on appeal shall be paid by the party taking the exceptions to which it relates. Gray v. Mossman (Conn.) 1917C-27. 486. Printing Unnecessary Record. Where appellant prevails, and the record is not abbreviated in compliance with the rules of the supreme court codified as Md. Code Pub. Gen. Laws, art. 5, 10, 34, 35, but contains a large amount of testimony, which could have been omitted without prejudice to any question involved, the cost of the record will be divided. Ox- weld Acetylene Co. v. Hughes (Md.) 1917C-837. 22. REHEARING. 487. Raising Constitutional Question. A constitutional objection to a criminal stat- ute may be raised on a petition for a re- hearing, even though it has not been raised either upon the trial or upon the original appeal. State v. Bickford (N. Dak.) 1916D-140. APPEARANCES. Effect of appointment of guardian ad litem, see Infants, 19. 1. The filing of a petition and bond for a removal to the federal court is not an appearance in the state court, under the provisions of the Revised Codes of Idaho. State v. American Surety Co. (Idaho) 1916E-209. 2. Objection to Jurisdiction Effect. Under the federal practice, an appearance to object to the jurisdiction of the court does not bind the parties appearing to submit to the jurisdiction on the overrul- ing of the objection. Hitchman Coal, etc. Co. v. Mitchell (U. S.) 1918B-461. 3. Waiver of -Special Appearance. In an action of replevin, where the defendant enters a special appearance "for the pur- pose of moving to quash the return to the writ of replevin," and files his motion to that effect, which is denied, and the de- fendant then proceeds to defend the action on the merits, he will be considered to have waived any defect which may exist in the service of the writ. Henry v. Spit- ler (Fla.) 1916E-1267. (Annotated.) 4. A defendant, in an action at law, who has appeared specially for the purpose of contesting the validity of the service of the summons upon him, and such matter has been determined adversely to him, in order to preserve his status as not having been properly served with summons, so as to give the court jurisdiction over his per- son, must refrain from taking any subse- quent steps to defend the action upon the merits. In the event he proceeds to a trial upon the merits, he cannot thereafter in an appellate court be permitted to raise such question of jurisdiction, but will be held to have entered a general appear- ance. Henry v. Spitler (Fla.) 1916E- 1267. (Annotated.) 5. Writ of Error as General Appearance. A writ of error to what purports to be a final judgment of a circuit court operates as a general appearance in the case of the party taking such writ. Henry v. Spitler (Fla.) 1916E-1267. 6. Motion to Set Aside Order for Want of Jurisdiction, The contents of the plaintiffs' motion to set aside the order considered and held not to constitute a general appearance in the receivership suit. Bishop v. Fisher (Kan.) 1917B-450. (Annotated.) Notes. Waiver of special appearance by plead- ing to merits. 1916E-1270. Motion to set aside order in cause for want of jurisdiction as general or special appearance. 1917B-454. ARGUMENT AND CONDUCT OF COUNSEL. 77 APPLICATION OP PAYMENTS. See Payment, 2-6. APPLICATIONS FOE MEMBERSHIP. See Beneficial Associations, 6-7. APPRAISEMENT. Of decedents' estates, see Executors and Administrators, 15. APPROPRIATION OF WATER. See Irrigation, 2-10. Priority of right in subterranean waters, Bee Waters and Watercourses, 12. APPROPRIATIONS. See States, 5, 6. Of city funds, see Municipal Corporations, 106-108. Publication of appropriation ordinance, see Trees and Timber, 2-4. APPURTENANCES. Included though not named, see Deeds, 71. ARBITRATION AND AWARD. See Fire Insurance, 21, 30-36, 42-44. 1. Power of Arbitrators. Arbitrators empowered to decide "all disputes . . . arising out of" a contract may determine the existence of a usage affecting the inter- pretation and effect of the contract. Pro- duce Brokers Co. v. Olympia Oil, etc. Co. (Eng.) 1916D-351. (Annotated.) 2. Failure to Give Notice of Hearing. An award of arbitrators under Me. Kev. St. c. 21, 6, authorizing an assessment by arbitration if any person is dissatisfied, is a nullity if made without notice of hear- ing, in the absence of waiver of notice by the party claiming to be aggrieved. Au- burn v. Paul (Me.) 1917E-136. Note. Power of arbitrators to determine exist- ence of usage or custom. 1916D-360. ARCHITECT'S CERTIFICATE. See Contracts, 86-91. AREA. Meaning, see Streets and Highways, 31. AREAWAY. Meaning, see Streets and Highways, 30. ARGUMENT AND CONDUCT OF COUN- SEL. 1. In General, 77. 2. Arguments, 78. a. Legitimate Deductions from Evi- dence, 78. b. Comment Unsupported by Evi- dence, 78. , c. Failure to Produce Evidence or Testify, 78. d. Expression of Opinion as to Guilt, 79. e. Reference to Defendant's Wealth, 79. f. .Erroneous Statement of Law, 79. g. Appeal to Race Prejudice, 79. h. Appeal to Sympathy of Jurors, 79. i. Eetaliatory Statements, 79. j. Reference to Expense of Imprison- ment, 80. k. Reading Law, 80. 1. Comment on Change of Venue, 80. m. Comment on Rejected Testimony, 80. n. Abusive Language, 80. o. Reply to Improper Argument, 80. p. Stating Penalty for Crime, 80. Waiver of error by omission, see Appeal and Error, 169-176. Reversible error, see Appeal and Error, 204. Harmless error in argument, see Appeal and Error, 327-332. Record must show error, see Appeal and Error, 351. Waiver of error, see Appeal and Error, 354, 355, 360. Necessity of exception, see Appeal and Error, 393, 394. Advising jury to disregard argument, see Instructions, 63. Exclusion of jury during argument, see Jury, 32. Improper argument as ground for new trial, see New Trial, 15, 16. On will contest, see Wills, 137. 1. IN GENERAL. 1. Determining Right to Open and Close Pleadings Construed. In determining which party has the affirmative of the is- sue, and hence is entitled to open and close, regard is had to the substance and effect of the pleadings, rather than to their form. Shoop v. Fidelity, etc., Co. (Md.) 1916D-954. 2. Demand for Incriminating Documents. Since the defendant in a criminal case can- not be compelled to produce incriminating documents, counsel should not demand such production. People v. Gibson (N. Y.) 1918B-509. (Annotated.) 3. Right to Open and Close Right to Recover Admitted. In an action on an accident policy, in which defendant by its plea did not expressly deny plaintiff's right to recover, but alleged that the accident occurred while insured was engaged in an 78 DIGEST. 1916C 1918B. extrahazardous occupation, so that by the terms of the policy plaintiff was entitled to recover only six-elevenths of the amount of the policy, defendant is not entitled to open and close, not having admitted the plaintiff's prima facie right of recov- ery, but in effect denying it as to five- elevenths of the face of the policy. Shoop v. Fidelity, etc. Co. (Md.) 1916D-954. (Annotated.) 4. In an action for libel, an opening statement by plaintiffs, as attorney for himself, that defendants falsely charged him with theft and rape, and that such charges caused his friends to withdraw their support from his candidacy for gov- ernor, is prejudicial; the statement being a direct statement of fact, and not as to matters plaintiff expected to prove. Egan v. Dotson (S. Dak.) 1917A-296. Note. Bight to open and close where only issue is amount plaintiff is entitled to recover. 1916D-958. 2. ARGUMENTS. a. Legitimate Deductions from Evidence. 5. Sufficiency of Evidence to Warrant. In an action for the death of plaintiff's intestate, who vas burned in a fire in de- fendant's establishment, where the negli- gence relied on was defendant's failure to furnish adequate fire escapes and per- mitting the only fire escape to be ob- structed, evidence that other employees jumped from windows to buildings below, after they had made an effort to reach the fire escape, having been received without objection, argument that the escape was obstructed, based on such evidence, is per- missible. Lichtenstein v. L. Fish Furni- ture Co. (111.) 1918A-1087. b. Comment Unsupported by Evidence. 6. Going Outside Record. The action of the prosecuting attorney in assailing ac- cused in his closing argument for an offense of which there was no proof and properly could be none, is prejudicial. State v. Giudice (Iowa) 1917C-1160. 7. The profession of law being for the administration of justice, counsel should not in their argument to the jury appeal to the passions of the jury or go outside the record. Egan v. Dotson (S. Dak.) 1917A-296. 8. Where defendant sought to recover for libelous charges published against him while he was a candidate for governor, argument that rival candidate had induced the publication of the charges which was not supported by any evidence is improper. Egan v. Dotson (S. Dak.) 1917A-296. 9. Opening Statement. Under S. Dak. Code Civ. Proc. 255, declaring that, when the jury has been sworn, the plaintiff, after stating the issues in his case, must produce the evidence on his part, and the defendant may then open his defense and offer his evidence, plaintiff, who was at- torney for himself, cannot in his opening statement give unsworn testimony making statements not as matters which he ex- pected to prove, but as actual facts. Egan v. Dotson (S. Dak.) 1917A-296. 10. Where counsel for defendant in his closing argument makes a statement: "This is M., I could say more. I couldn't say less. He is an absolutely unreliable man and an absolutely unreliable police magistrate" and there is no evidence in the record which tends in any way to ques- tion the general reliability of the witness, nor any which casts discredit upon his career as a police magistrate, it is not error for the court to say: "I think you will have to be a little careful, Mr. H., in the use of your words. You have a certain latitude, but beyond that, please don't go. . . . Getting so close to the line, it was dangerous." State v. Brunette (N. Dak.) 1916E-340. c. Failure to Produce Evidence or Testify. 11. Failure to Call Attorney as Witness. In a will contest, it is error for contest- ant's attorney in argument to the jury to ask why the executor's attorney, who had helped draw up the will, did not testify as to testator's mental capacity. Bavens- croft v. Stull (111.) 1918B-1130. (Annotated.) 12. Comment on Failure of Incompetent Witness to Testify. Where a witness was known to an attorney to be incompetent, and he had in fact objected to her when offered, it is error for him to comment pn her failure to testify. Eavenscroft v. Stull (111.) 1918B-1130. 13. Failure of Defendant to Testify. Under N. Y. Code Cr. Proc. 393, de- claring that the neglect or refusal of a defendant to testify does not create any presumption against him, statements by the prosecutor in argument, reflecting on defendant's failure to take the stand, by pointing out that the testimony of the only eyewitness was absolutely uncontra- dicted, and that it would have been contra- dicted, if possible, are improper. People v. Watson (N. Y.) 1917D-272. (Annotated.) 14. In a Libel Case. Argument by plain- tiff, who acted as counsel for himself, that he by force stopped the taking of one deposition, and, if present, he would have prevented the taking of another, is im- proper. Egan v. Dotson (S. Dak.) 1917A- 296. 15. Where accused did not testify in his own behalf, but introduced testimony ARGUMENT AND CONDUCT OF COUNSEL. 79 tending to show that between two certain hours on the evening of the homicide he was not at the place where it was com- mitted, comment by the state's attorney that the testimony did not show where accused was prior to those two hours is not erroneous as a comment on defend- ant's failure to testify. Mason v. State (Tex.) 1917D-1094. 16. Under N. Y. Code Cr. Proc. 524, declaring that the court must give judg- ment without regard to technical errors, improper comment by the prosecutor on accused's failure to take the stand, which the jury was by the trial court directed to disregard, is no ground for reversal; accused's guilt being abundantly shown. People v. Watson (N. Y.) 1917D-272. (Annotated.) 17. Reference to Failure to Produce Im- material Witness. Where the state claimed that accused killed deceased to prevent the latter from testifying against him in a prosecution for burglary, it is improper for the state's attorney to refer to ac- cused's failure to introduce witnesses in support of his defense to the charge of burglary, as such evidence would have been immaterial and irrelevant. State V. Inlow (Utah) 1917A-741. Note. Comment by prosecutor on failure of accused to testify. 1917I>-277. d. Expression of Opinion as to Guilt. 18. It is not improper for the state's attorney in his argument to state that he believes defendant to be responsible for the condition of prosecuting witness prior to the time she testified to intercourse with him, and that he bases his belief upon a card sent by defendant to the prosecuting witness, and which has been introduced in evidence. Riggins v. State (Md.) 1916E-1117. e. Reference to Defendant's Wealth. 19. Where, in an action under Iowa Code, 2423, to recover money paid for liquor illegally sold by defendant to plaintiff, defendant on cross-examination stated that he had made good money in real estate, and further questions on cross-examination insinuated that he had become wealthy out of illegal sales of liquor, the argument of plaintiff's coun- sel, that deiendant became" rich collecting money on liquor which he sold, is preju- dicial, and the misconduct is not cured by the court stating that it made no differ- ence whether defendant was rich or not. Cvitanovich v. Bromberg (Iowa) 1917B- 309. (Annotated.) Note. Propriety of argument of counsel refer- ring to poverty or wealth of party to ac- tion. 1917B-312. f. Erroneous Statement of Law. 21. Opening statement of plaintiff, in an action for personal injury on defendant's track, calling attention to the legal propo- sition that the public might use an ap- proach to a station, that when plaintiff went through a gate in its right of way which had been used as an approach she became a passenger, entitled to care and protection as such, and the proximate cause of the injury, as he understood it, was defendant's violation of its duty to stop to take her up, was erroneous as an argument on the law of the case. Wells v. Ann Arbor K. Co. (Mich.) 1917A-1093. g. Appeal to Race Prejudice. 22. In replevin by a mortgagee for two cows mortgaged to plaintiff by defendant to secure the price of a horse, where coun- sel repeatedly referred to plaintiff in argument as a Jew in such a manner as to arouse race prejudice on the part of the jury, and when cautioned by the court persisted in arguing with the court to get more of the matter before the jury, such conduct is prejudicial misconduct. Solo- mon v. Stewart (Mich.) 1917A-942. (Annotated.) h. Appeal to Sympathy of Jurors. 23. Asking Jury Wliat They Would Take for Similar Injury. Plaintiff's clos- ing argument, asking the jury which one of them would accept the injury plaintiff was alleged to have suffered for a stated sum of money, and what each juryman would think it worth if plaintiff was his wife, was reversible error. Wells v. Ann Arbor R. Co. (Mich.) 1917A-1093. (Annotated.) 24. In a libel case, argument by plain- tiff, who was an attorney, and who ap- peared for himself, that he was the at- torney for the oppressed, is improper, be- ing immaterial. Egan v. Dotson (S. Dak.) 1917A-296. Note. Propriety of argument of counsel in personal injury case asking jury what they would take for similar injury. 1917A-1099. i. Retaliatory Statements. 25. Where plaintiff, who was seeking to recover for libel, was an attorney wno had been disbarred by the supreme court, it is improper in his argument to the jury to mention his disbarment and cast asper- 80 DIGEST. 1916C 1918B. sions on the members of the supreme court, particularly where his plea for re- instatement contained an admission of the court's integrity. Egan v. Dotson (S. Dak.) 1917A-296. j. Reference to Expense of Imprisonment. 26. Plea for Death Penalty. Argument Dy the prosecutor, urging the jury not to burden the state with the expense of maintaining accused, if he is guilty of murder in the first degree, is improper. People v. Watson (N. Y.) 1917D-272. k. Reading Law. 27. Discretion of Court. In a will con- test case, where on objections to a ques- tion to a witness contestant's counsel read in the presence of the jury an opin- ion of another court in another case, pro- ponent cannot complain, for the question whether the jury should be excused dur- ing the reading rests in the trial court. In re . Williams' Estate (Mont.) 1917E- 126. 1. Comment on Change of Venue. 28. Where a criminal case wag trans- ferred from one county to another, the action of the county attorney in his open- ing argument in stating that he believed that the former county owed to the citi- zens of the latter county and to the jurors an apology and an explanation of why the jurors were present, and that it was through no solicitation of the prosecuting attorney, is improper, for it was no con- cern of the jury how the case came to be there. State v. Giudiee (Iowa) 1917C- 1160. m. Comment on Rejected Testimony. 29. In a libel case, statements by plain- tiff's counsel in argument that depositions of two Catholic priests taken by plaintiff were suppressed on motion of defendant because the order was not served in time is improper. Egan v. Dotson (S. Dak.) 1917A-296. n. Abusive Language. 30. A prosecuting officer under no cir- cumstances should resort to vituperative and abusive language in arguing a case to the jury. Bishop v. State (Tex.) 1916E- 379. o. Reply to Improper Argument. 31. Comment Justified by Acts of Oppo- sing Counsel. Where the attorney for ac- cused on the cross-examination of a wit- ness propounded questions which he must have known were improper and sought to inject evidence in the case that had no place there, the remark of state's counsel that accused's attorney was "shooting hot air" into the case and "insisting on stick- ing in that prejudicial stuff that he knows is not true," is not misconduct. State v. Giudiee (Iowa) 1917C-1160. p. Stating Penalty for Crime. 32. In a prosecution for statutory rape, the refusal to allow defendant's counssl to state to the jury the penalty nrcscribed for the offense, on the ground that more evidence would be required to convict of a serious crime than of a trivial one, is proper. State v. Tetrault (N. H.) 1918B- 425. ARMY AND NAVY. Courts-martial, see Courts, 1, 19, 20. Alight to vote, see Elections, 3. Public report of army council, privilege, see Libel and Slander, 64. Calling militia into U. S. service, see Mili- tia, 12. Soldiers' Home, see Pensions, 1, 2. Veterans' Preference Acts, see Public Officers, 10. Liberal construction of law, see Statutes, 58. 1. The Powers of Congress. Respectiri the militia under Const, art. 1, 8(8 Fele her to reimburse herself in part from the principal of the trust fund for ex- penses incurred in the litigation, including attorney's fees, and not as allowed as an extra and additional compensation to the attorney. Matter of Howell (N. Y.) 1917A-527. 20. Third Person Benefited by Services. Holders of stock in an insolvent bank em- ployed a trust company as their agent to make sale of the stock. The stock was sold to a bank on a contract providing for a certain absolute payment per share, and for additional payments upon certain con- tingencies. The purchasing bank, however, refused to make such additional payments, and certain shareholders sued on the con- tract, employing plaintiffs as their attor- neys, and, it appearing that a suit might terminate successfully, other shareholders intervened, but were represented by other attorneys, although they had an oppor- tunity to employ plaintiffs. A settlement was made between the claimants and pur- chasing bank, and part of the fund depos- ited in court. Plaintiffs, whose contract with their clients provided for a contin- gent fee of one-third of the amount recov- ered, demanded compensation at the same rate from the other stockholders. Held that, there being no contractual relations with other stockholders, they were not en- titled to compensation, although their ser- vices had -been of benefit to the other stockholders. O'Doherty v. Bickel (Ky.) 1917A-419. (Annotated.) 21. Allowance of Fee. Under section 247 of the Kan. code, the allowance by the court of $25 attorney's fee for the plaintiff was proper. Sherman v. Havens (Kan.) 1917B-394. 22. Solicitation of Business by Attorney. A contract between an attorney and his client obtained by solicitation of the client by the attorney's agent, and pro- viding for a contingent fee, is not unen- forceable as against public policy merely because it was obtained by solicitation. Chreste v. Louisville R. Co. (Ky.) 1917C 867. (Annotated.) 23. Contract for Division of Fees With Layman. Generally a contract between an attorney and a layman by which the latter agrees to solicit business for the former in consideration of a share of the fees is void as against public policy. Chreste v. Louisville R. Co. (Ky.) 1917C-867. 24. Contract After Formation of Rela- tion. A contract for compensation made by an attorney with his client after the relation has arisen will be closely scrut- inized, and may be avoided when a similar contract between parties not sustaining the relation of attorney and client would be upheld. Chreste v. Louisville R. Co. (Ky.) 1917C-867. 25. Necessity of Showing Fairness. A contract made between an attorney and a prospective client with reference to com- pensation may be enforced without the showing on the part of the attorney that the contract is just, fair, and reasonable, since, when it was entered into, no confi- dential relations existed. Chreste v. Louis- ville R. Co. (Ky.) 1917C-867. 26. Eights on Compromise by Client. Under Ky. St. 107, giving an attorney's lien for fees, where a client, after a judg- ment in his favor, settled with the adverse party for an amount less than that awarded him by the judgment, the attor- ney, having a contingent contract for one- hajf of the recovery, is entitled to one- half 'the amount of the judgment, instead of one-half the amount of the compromise. Chreste v. Louisville R. Co. (Ky.) 1917C- 867. 27. Reasonableness of Fee. Where an at- torney retained to represent the defendant in a divorce suit for a fee of $250, which he had received, procured a contract for an additional fee of $1,000, under which con- tract a satisfactory settlement reached by one day's efforts would have been full per- formance, the amount of such additional fee is unreasonable, regardless of the ser- vices actually performed by the attorney thereafter; the reasonableness of a fee being determined not alone by the value of the services which might become necessary, but also by the value of the services that might, in the contemplation of the parties, have constituted a full performance. E'gan v. Burnight (S. Dak.) 1917A-539. (Annotated.) 28. Contingent Fee for Recovery of Land. The attorney's compensation became due when the compromise agreement was signed; and hence the 12 1 /a per cent is based on the value of the land at such time, though the patent from the govern- ment was not obtained until a later date. Myers v. Bender (Mont.) 1916E-245. 29. Under such clause the attorney is entitled to recover the 12% per cent in money and not in land, though the pre- ceding clause provided that plaintiff should receive "12^ per cent of all land and money recovered." Myers T. Bender (Mont.) 1916E-245. ATTORNEYS. 30. Contract for Contingent Fee. Under a clause of a contract between an attorney and client, providing that the attorney should receive 12% per cent of the value of all the land and money recovered by compromise or in any manner whatsoever ia an action pending against a railroad company over the title to certain land, the attorney is entitled to 12% per cent of the value of all lands to which his client se- cured title by a compromise agreement, though such title was "obtained through a relinquishment by the railroad company to the government, in order that the client might obtain title directly from the gov- ernment. Myers v. Bender (Mont.) 1916E-245. 31. Interest on Attorneys' Fees. Failure of a client to pay an attorney his fee when it became due under the contract between them is "a breach of an obligation arising from contract," within Rev. Mont. Codes, 6048, providing that the measure of dam- ages for such a breach, unless otherwise expressly provided, is the amount which will compensate the aggrieved party for the detriment approximately caused there- by, or likely to result therefrom; and hence the measure of damages for such breach was the principal amount due, together with interest at the legal rate up to the time of trial, allowing credit for payments made at their respective dates. Myers v. Bender (Mont.) 1&16E-245. (Annotated.) Notes. Solicitation of business by attorney as forfeiture of right to compensation there- for. 1917C-871. Eight of attorney to recover for ser- vices 'beneficial to person not employing him. 1917A-423. Interest on attorney's fees. 1916E-249. Validity of contract for compensation of attorney made after fiduciary relation is established. 1917A-531. 32. Allowance of Fees. An attorney's fee of $1,000 allowed plaintiff recovering $8.000 on an accident policy is reasonable. Aetna L. Ins. Co. v. Taylor (Ark.) 1918B- 1122. b. Actions for Compensation. 33. In an attorney's action on a contract for additional compensation, procured after his retention in a case, the burden is on plaintiff to prove that he advised his client fully in relation to her rights and duties, and that his advice was as free of all personal consideration on his part as would have been the advice of any dis- interested attorney. Egan v. Burnight (S. Dak.) 1917A-539. (Annotated.) 34. Contingent Fee Contract. In an at- torney's action for compensation under a contract entitling him to a certain per cent of the value of land recovered, estimated at the time of the signing of a compro- mise agreement, evidence of the value of the land at a time subsequent to such agreement is improper. Myers v. Bender (Mont.) 1916E-245. 35. Acknowledged by Client. An ac- knowledgment by a client of a debt to his attorney which is barred by the statute of limitations is within the rule that an at- torney is not permitted to receive any benefit from a client unless the latter has had independent advice in the matter. Lloyd v. Coote & Ball (Eng.) 1916E-4a4. (Annotated.) Note. Validity of acknowledgment by client of debt to attorney barred by limitations. 1916E-436. 4. LIEN OF ATTORNEYS, a. Right to Lien. 36. Retaining Lien. Where the court reporter refused to surrender the certifi- cate of evidence in an action until pay- ment of his fees, but loaned it to plain- tiff's attorneys to prepare their abstracts and briefs for appeal, they are entitled to a lien on the certificate for their com- pensation; the character of their possession cot being adverse to their lien. Me- Cracken v. Joliet (111.) 1917D-144. (Annotated.) 37. Extent of Lien on Judgment. Under the common-law rule, giving an attorney a retaining lien on all papers, securities, or money belonging to his client which come into his possession in the course of his professional employment, and a charging lien against a judgment recovered through the attorney's efforts, and under Judiciary Law (N. Y. Consol. Laws, c. 30) 475, giv- ing an attorney a lien on his client's cause of action which attaches to a verdict, judgment, or final order in his client's favor, and the proceeds thereof, an attor- ney, employed as general counsel at an annual salary, payable semiannually, has no lien for unpaid salary on the proceeds of a judgment procured by him after ter- mination of the general employment, un- der an agreement to pay him reasonable value of services in the trial of the action. Matter of Heinsheimer (N. Y.) 1916E- 384. (Annotated.) 38. Lien on Cause of Action. The at- torney's lien given by section 6293, N. Dak. Rev. Codes 1905 (section 6875, Comp. Laws 1913), when sought to 'be asserted in an action or proceeding for the recovery of d&mages for personal injuries, attaches t-o that into which the right of action is merged. If a judgment is recovered the lien attaches to it, if a compromise agree- ment is made, the lien attaches to it, and DIGEST. 1916C 1918B. in either case the attorney's lien is such that it cannot be defeated or satisfied by a voluntary payment to his client without his consent. Greenleaf v. Minneapolis, etc. R. Co. (N. Dak.).1917D-908. 39. On Cause of Action for Tort. Sec- tion 6293, Rev. N. Dak. Codes 1905, being section 6875, Comp. Laws 1913, and which provides for an attorney's lien on "money due his client in the hands of the adverse party, or attorney of such party, in an action or proceeding in which the attorney claiming the lien was employed from the time of giving no'tice in writing," applies to tort actions for personal injuries as well as to actions which are founded upon con- tract, and this although such actions do not survive the death of the plaintiff. Greenleaf v. Minneapolis, etc. R. Co. (N. Dak.) 1917D-908. (Annotated.) 40. The words "action" and "proceed- ing" as used in section 6293, Rev. N. Dak. Codes 1905 (section 6875, Comp. Laws 1913), include actions and proceedings for the recovery of damages for personal in- juries. Greenleaf v. Minneapolis, etc. R. Co. (N. Dak.) 1917D-908. (Annotated.) 41. Where a lien is claimed under sec- t:on 6293, Rev. N. Dak. Codes 1905 (sec- tion 6875, Comp. Laws 1913), in an action for personal injuries, and due notice there- of is given to the defendant and a settle- ment or compromise is made with the plaintiff with or without the consent of the attorney, such lien will attach merely to the proceeds of the settlement, and if the contract or lien is for a percentage of the claim or recovery, it will merely be for such percentage of the amount for which such claim is settled or compro- mised. (Greenleaf v. Minneapolis, etc. R. Co. (N. Dak.) 1917D-908. (Annotated.) 42. Joining Attorney as Party. A firm of attorneys had a contract with their client for a fee contingent upon recovery for personal injuries, and began suit there- under. The client dismissed the suit and commenced another one of the same cause of action in a different circuit. Acts 1909, p. 892, Kirby's Ark. Dig. 4458, 4462, provide for an attorney's lien on the pro- ceeds of a judgment for their client. Held, that the attorneys were not proper parties to the second action, the act not giving them any interest in the cause of action itself. St. Louis, etc. R. Co. v. Blaylock (Ark.) 1917A-563. Notes. Lien of attorney as extending to action for tort. 1917D-917. Extent of attorney's lien on judgment. 1916E-387. Lien of attorney on papers in his posses- sion connected with litigation. 1917D- 147. t>. Loss of Lien. 43. Settlement by Client. Under Acts 1909, p. 892, Kirby's Ark. Dig. 4458, 4462, providing for an attorney's lien on the proceeds of a judgment for his client, an attorney has a lien for his fee which cannot be defeated by any settlement of the parties litigant before or after judg- ment or final order. St. Louis, etc. R. Co. v. Blaylock (Ark.) 1917A-563. 5. DISBARMENT, a. Jurisdiction and Power. 44. Eight of State's Attorney to Insti- tute. Conn. Acts 1907, c. 120, authorizing the appointment of a grievance committee in each county whose duty it shall be to inquire into and present to the court offenses involving the character, pro- fessional standing, etc.. of members of the bar, does not provide an exclusive mode of instituting such inquiries, and does not restrict the inherent power of the court to inquire into the conduct of its own officers on its own motion or on the complaint of any party, and hence the state's attorney can present a complaint against an attor- ney as authorized 'by section 10 of the rules of court. State v. Peck (Conn.) 1917B-227. 45. Inherent Power of Court. Courts having power to admit attorneys to the bar possess an inherent power to disbar them for unworthy behavior, unprofessional con- duct, or moral turpitude, independent of any statutory authority. In re Hilton (Utah) 1918A-271. 46. Findings in Disbarment Proceeding Facts Outside of Charges. It is imma- terial in a disbarment proceeding that the court found facts outside of the charges contained in the complaint, where its judg- ment was not based upon such findings, but upon matters alleged in the complaint and unquestionably sufficient to support the judgment. State v. Peck (Conn.) 1917B-227. 47. The state's attorney is not disquali- fied to present a complaint of professional misconduct against an attorney by reason of his bitter enmity to the accused attor- ney or his prejudice against him, since he does not appear as a prosecuting officer and has no power to control the proceed- ing, and his only duty is to call the atten- tion of the court to the alleged miscon- duct; the duty thereafter resting upon the court to see that the interests of justice are preserved and the rights of the ac- cused attorney protected. State v. Peck (Conn.) 1917B-227. 48. Determining Fitness of Accused to Practice. The question for determination in a disbarment proceeding is whether the defendant by reason of his past conduct ATTORNEYS. 95 evidencing his qualities of character and uprightness was a fit person to exercise longer the functions of an attorney, and in determining this question a large meas- ure of judicial discretion was to be exer- cised reasonably, fairly, and dispassion- ately. State v. Peck (Conn.) 1917B-227. 49. Court of Chancery. Under 2 Comp. N. J. St. 1910, p. 2278, fixing a fee for the governor for a license to an attorney and solicitor, to appear and practice in all cc'iirts, and page 2281, providing for fees for the judges of the supreme court for license to an attorney and solicitor, and page" 4054, 5, providing that any coun- selor, solicitor, or attorney who shall be guilty of malpractice in any of the courts shall be put out of the roll and not there- after permitted to practice, unless he shall obtain a new license and be again enrolled in due form of law, which is section 5 of the Practice Act of 1903 regulating "the practice of courts of law," and the con- stitution, protecting the jurisdiction of the court of chancery as existing at the time of the adoption of the constitution, the court of chancery has no jurisdiction to make an order adjudging a solicitor guilty of malpractice and debarring him from practice as solicitor and counsel in the court of chancery. In re Hahn (N. J.) 191SB-830. b. Nature of Proceedings. 50. A disbarment proceeding is not a criminal prosecution, nor is it a civil ac- tion, though section 11 of the Conn, rules regulating the admission, suspension, and displacement of attorneys requires com- plaints for misconduct to be proceeded with as civil actions, and the complaint need not have the same technical precision of statement or conformity to recognized formalities required in criminal prosecu- tion or civil actions; it being sufficient .if it is sufficiently intelligible and informing to advise the court of the matter com- plained of in order that it may determine whether it shall institute an inquiry and properly conduct it if instituted, and to advise the attorney of the accusation in order that he may be prepared to meet the charges. State v. Peck (Conn.) 1917B- 227. 51. Sufficiency of Complaint. The suffi- ciency of the complaint in a proceeding to disbar an attorney must be determined upon an examination of the complaint as a whole. State v. Peck (Conn.) 1917B- 227. 52. Eights of Accused. An attorney accused of professional misconduct is enti- tled to notice of the charge against him, an opportunity to be heard, a fair and dis- passionate investigation,, and a reasonable exercise of the judicial discretion. State v. Peck (Conn.) 1917B-227. 53. An order of the court of chancery disbarring a solicitor in chancery from practicing as solicitor and counselor in the court of chancery, entered in proceedings not purporting to be proceedings to punish for contempt, is not sustainable as a pun- ishment for contempt. In re Hahn (N. J.) 1918B-830. c. Grounds of Disbarment. 54. Loss of Character. The loss by a member of the bar of the supreme court of the United States of his fair private and professional character by wrongful personal and professional conduct, no mat- ter where committed, furnishes adequate reason for taking away his right to con- tinue to be a member of such bar in good standing. Selling v. Radford (U. S.) 190.7D-569. 55. Misconduct as Judge. Where an at- torney who was judge of the probate court procured the payment of $750 to him from the assets oi an estate as compensation for pretended services as an attorney on be- half of the estate which were never ren- dered, and exerted his authority as such judge to secure such payment, resorted to deception and concealment in his efforts to secure such payment, and made use in his official position of threats calculated to produce the end desired, for the purpose of coercing payment, he is properly sus- pended indefinitely from practicing law. State v. Peck (Conn.) 1917B-227. (Annotated.) 5-6. That an attorney sought to be dis- barred is judge of the probate court does not prevent his disbarment, since the judge of the pro-bate court need not be an attorney, and his disbarment can have no effect upon his official status. State v. Peck (Conn.) 1917B-227. (Annotated.) 57. Misconduct of an attorney, who was judge of the probate court, in the course of the settlement of an estate of a deceased person in such court, justifies his disbar- ment, since it directly involves a misuse of his professional privilege and is misconduct as a member of the bar, and moreover any misconduct, professional or nonprofes- sional, disclosing a moral unfitness for the enjoyment of the professional privi- lege, justifies disbarment. State v. Peck (Conn.) 1917B-227. (Annotated.) 58. Attack on Court. Where an attor- ney, delivering an oration over the body of a murderer, venomously attacked the su- preme court which affirmed the conviction, accusing the court of being improperly in- fluenced by a powerful religious body in the state, charging the court with prejudice and unfairness and garbling the accounts of the trial and of proceedings before the pardon board, the attorney is guilty of professional misconduct which warrants 96 DIGEST. 1916C 1918B. his disbarment under Utah Comp. Laws 1907, 113, 120, respectively, declaring that it is the duty of an attorney to sup- port the Constitution and laws of the United States, to maintain the respect due courts, and employ for the purpose of maintaining causes confided to him only such means as are consistent with the truth, and that an attorney may be dis- barred for any violation of hia duties or for moral turpitude, for an attorney who so misrepresented the court, attempting to bring the higk judicial office into disre- spect, is guilty of moral turpitude. In re Hilton (Utah) 1918A-271. (Annotated.) 59. An attorney guilty of slandering or defaming a court or judge is subject to discipline and disbarment. In re Hilton (Utah) 1918A-271. (Annotated.) 60. Criticism of Decision of Conrt. An attorney may publicly or privately crit- icize the decision of the cou/t, pointing out wherein he deems it defective, and may state that it should not be final. In ro Hilton (Utah) 1918A-271. (Annotated.) 61. Loss of Moral Character. Where the statute makes a good moral character a condition precedent to admission to the bar, the court may disbar an attorney when he forfeits his claim to such char- acter by misconduct of a nature rendering him unfit to be continued in office. In re Hilton (Utah) 1918A-271. 62. Effect of Pardon on Disbarment Pro- ceeding. \\Tiere an attorney was convicted of forgery and a certified copy of the judg- ment filed in the supreme court, its effect as furnishing conclusive ground for dis- barment is not nullified by a conditional pardon granted to the attorney by the gov- ernor. In re Sutton (Mont.) 1917A-1223. (Annotated.) 63. Crime Involving Moral Turpitude. Forgery is an offense involving moral tur- pitude, within Eev. Mont. Codes, 6393, providing for the disbarment of attorneys on conviction of a felony or of a misde- meanor involving moral turpitude. In re Sutton (Mont.) 1917A-1223. Notes. Criticism of decision of court as ground of disbarment. 1918A-283. Pardon as affecting right to disbar at- torney for criminal misconduct. 1917A- 1226. Misconduct in official or fiduciary ca- pacity other than that of attorney as ground for suspension or disbarment. 1917B-232. d. The Hearing. 64. Record Conclusive. By Rev. Mont. Codes, 6393, a certified copy of the record of conviction of an attorney for a felony or for misconduct involving moral turpi- tude is conclusive evidence of his unfit- ness to be a member of the bar, and the supreme court must disbar him under sec- tion 6410 without notice by citation or other process. In re Sutton (Mont.) 1&17A-1223. e. Effect of Disbarment. 65. An order of the court of chancery debarring a solicitor in chancery from practicing as solicitor and counselor in the court of chancery cannot be sustained un- der the practice act, requiring the solicitor to act under the direction of the court, which refers only to causes in which the solicitor is acting, and not to his own dis- qualification for practicing. In re Hahn (N. J.) 1918B-830. 66. Standing in Other Courts. The want of fair private and professional character in a member of the bar of the supreme court of the United States, inherently arising as the result of the act of the highest court of a state, disbarring him from practicing in the courts of that state, for personal and professional misconduct amounting to moral wrong, should be rec- ognized by the federal supreme court on motion to disbar unless, from an intrinsic consideration of the record of the state court, it appears (1) that the state pro- cedure, from want of notice or opportunity to be heard, was wanting in due process, or (2) that there was such an infirmity of proof as to give rise to a clear conviction that the conclusion as to the want of fair private and professional character should not be accepted as final, or (3) that some other grave reason exists, impelling the conviction that to allow the natural con- sequences of the judgment to have their effect would conflict with the duty not to disbar unless constrained to do so by prin- ciples of right and justice. Selling v. Ead- ford (U. S.) 1917D-569. (Annotated.) 67. An opportunity should be afforded to a member of the bar of the supreme court of the United States, where his disbarment is sought on the ground of a previous dis- barment by a state court, to file the record of the state court, and by printed brief, considering the record intrinsically, to point out any ground within the limitations prescribed by the federal supreme court which should prevent that court from giv- ing effect to the finding of the state court establishing the want of fair private and professional character. Selling v. Badford (U. S.) 1917I>-569. (Annotated.) Note. Disbarment in one court as affecting status of attorney in another court. 1917D-572. ATTRACTIVE NUISANCES AUCTIONS AND AUCTIONEERS. 97 f. Eight of Appeal. 68. Bight of Appeal. One deprived by order of the court of chancery of his office of solicitor and of the right of exercising to the full extent, the office of counselor is aggrieved thereby within 1 Comp. N. J. St. 1910, p. 450, 111, authorizing persons aggrieved by any order of the court of chancery to appeal from the same. In re Halm (N. J.) 1918B-830. (Annotated.) Note. Right of attorney to review of disbar- ment proceedings. 1918B-836. 6. PERSONAL LIABILITY OF ATTOR- NEY. 69. Personal Liability for Incidental Ex- penses. An attorney at law is personally liable for the cost of printing briefs where it appears that in previous similar dealings with the same printers he has habitually paid for the printing on bills rendered to him personally. Judd and Detweiler v. Gittings (D. C.) 1917B-518. (Annotated.) 70. Negligence in Trying Case. Where, in an action against an attorney for negli- gence in the trial of an action for plaintiff, suing his employer for a personal injury, the jury could find that the superintendent of the employer was negligent the defense of negligence of a fellow-servant, or that without the concurring fault of a fellow- servant the accident complained of would not have occurred, is not available to de- feat the action. McLellan v. Fuller (Mass.) 1917B-1. (Annotated.) 71. An instruction in an action against an attorney for negligent conduct in the trial of an action brought by him for plaintiff against a third person, as to the attorney's neglect to anticipate and pro- vide against the death of a third person, is properly refused, where the attorney, though without fault in that regard, might have been lacking in due care in other respects. McLellan v. Fuller (Mass.) 1917B-1. (Annotated.) 72. Failure to Produce Available Wit- ness. Where, in tort for damages against an attorney for negligent conduct in the trial of an action brought by plaintiff, through the attorney, against his employer, the jury could find that there were avail- able witnesses who would testify to facts to justify a finding that plaintiff was in the exercise of due care, and that the em- ployer was negligent, and that the attor- ney failed to use the witnesses, the right to recover is for the jury, and a charge that there is not sufficient evidence to jus- tify a verdict for plaintiff is properly re- fused. McLellan v. Fuller (Mass.) 1917B- 1. (Annotated.) 7 73. In a suit against an attorney for negligence, the test of the sufficiency of the declaration is whether its allegations, if proved, would make out a case, and, if proof of the facts alleged as to the negli- gence and resulting loss would establish a cause of action, the declaration is not demurrable. Maryland Casualty Company y. Price (Fed.) 1917B-50. (Annotate^.) 74. Liability for Negligence. In a suit against an attorney for negligence, plain- tiff must prove the attorney's employ- ment, his neglect of a reasonable duty, and that such negligence resulted in and was the proximate cause of loss to the client. Maryland Casualty Company v. Price (Fed.) 1917B-50. (Annotated.) Notes. Liability of attorney for negligence or breach of duty. 1917B-3. Personal liability of attorney for inci- dental expenses of action. 1917B-520. ATTRACTIVE NUISANCES. See Negligence, 23-28. AUCTIONS AND AUCTIONEERS. 1. In General, 97. 2. Authority of Auctioneer, 97. 3. Conduct of Sale, 98. 1. IN GENERAL. 1. Validity of Regulations. An ordi- nance of the city of Detroit prohibited the holding of public auctions except between the hours of 8 A. M. and 6 P. M., and also prohibited the use of musical instru- ments or criers to attract the attention of the public thereto. Defendant, being con- victed of a violation of such ordinance, brought certiorari to determine its consti- tutionality. It is held that the prohibition in the ordinance being neither necessary nor proper for the public welfare or pro- tection of society, it was a discrimination in restraint of trade and an unreasonable regulation. People v. Gibbs (Mich.) 1&17B-830. 2. AUTHORITY OF AUCTIONEER. 2. Acting as Employee of Another. Where an auctioneer did not bona fide be- come the employee of another to conduct auction sales, but the arrangement was merely a subterfuge between the auc- tioneer and such other to evade payment of the auctioneer's license tax as such, the arrangement is no defense, in a city's ac- tion to recover the statutory penalty for carrying on the business without a license. Kimmins v. Montrose (Colo.) 1917A-407. 98 DIGEST. 1916C 1918B. 3. Doing Business Without License. la a city's action against an auctioneer to recover a penalty for conducting his busi- ness without a license, the defense that the business was another's, who had a license, for whom defendant acted as agent, was a plea in the nature of confes- sion and avoidance, which the burden on him to establish by a preponderance of the evidence. Kimmins v. Montrose (Colo.) 1917A-407. 3. CONDUCT OF SALE. 4. By-bidding Effect on Sale. Where an owner does not, at a sale by auction, announce his intention to bid, by-bidding is illegal, and he cannot hold a purchaser where the price has been run up by means thereof, and this rule is adopted by Sale of Goods Act (Gen. Laws R. I. 1909, c. 262), 5. Freeman v. Poole (R. I.) 1918A-841. 5. Bights of Highest Bona Fide Bidder. A bid at auction for the sale of real es- tate, without notice of reservation, is but an offer to purchase and not an acceptance of an offer, and where a bid is not ac- cepted, there is no contract, and the knock- ing down of the property on a higher bid made by an agent of the owner must at least be given the effect of a withdrawal of the property from sale. Freeman v. Poole (R. I.) 1918A-841. (Annotated.) Note. Right of action by highest bidder at auction sale for refusal of auctioneer to knock down property to him. 1918A-850. AUDITOR'S REPORT. Review, see Appeal and Error, 104. AUTOMOBILE INSURANCE, See Insurance, 45-49. AUTOMOBILES. 1. Regulation of Motor Vehicles, 98. a. In General, 98. b. Licenses, 99. 2. Mutual Rights and Duties on Highways, 100. a. In General, ]00. b. Care Required of Operator, 100. c. Care Required of Pedestrians. 100. d. Responsibility of Owner for Driver's Acts, 101. e. Effect of Non-registration, 101. f. Liability to Guests, 101. g. Imputed Negligence, 102. h. Actions. 102. (1) Pleading. 102. (2) Evidence, 102. (3) Questions for .Tury, 103. (4) Instructions, 103. 3. Injuries to Motor Vehicles or Occupants, 104. 4. Liability of Manufacturer for Injuries. 104. 5. Crimes Incidental to Operation, 105. Title to fittings, see Accession, 1. Indemnity insurance, see Accident Insur- ance, 24. 29. Proof of sales agency, see Agency, 21, 24. Ford automobile a "motor vehicle," see Homicide, 5. Involuntary manslaughter, accident, see Homicide, 5-7. Automobile insurance, see Insurance, 45- 49. Action against owner for driver's negli- gence, see Master and Servant, 369. Unusual accident as evidence of negli- gence, see Negligence, 40. Running to catch runaway truck as negli- gence, see Negligence, 54. Jitneys as nuisances, see Nuisances, 13. Garage as a nuisance, see Nuisances, 17. Speed laws, see Streets and Highways, 16. Law of the road, see Streets and High- ways, 17, 18. 1. REGULATION OF MOTOR VEHI- CLES. a. In General. 1. Municipal Regulation of Speed. Ore. I* O. L., 3206 et seq., being a general law for the organization of cities and towns, establishing the procedure therefor and in- vesting enumerated civil and criminal powers in such municipalities, and Laws 1913, p. 541, amendatory thereof, does not affect the applicability of the Motor Vehicle Law (Laws 1911, pp. 265-278) to .the city of Portland, which at the enact- ment of the latter act was acting under a special charter. Kalich v. Knapp (Ore.) 1916E-1051. (Annotated.) 2. Portland City Charter (Sp. Laws Ore. 1903, pp. 3-172), 72, 73, gives the council all legislative powers and author- ity of the city of Portland, and gives power to exercise within the limits of the city the powers commonly known as police powers to the same extent as the state could exercise that power, to regulate and control the use of the streets for vehicles of all descriptions, and to control and limit traffic on the streets, avenues, and elsewhere. Pursuant thereto, the city adopted ordinances in 1904 and 1906, regu- lating the speed of automobiles on streets of the city. The Motor Vehicle Law (Laws 1911, pp. 265-278) regulates the use of motor vehicles throughout the state. Const, art. 11, 2, provides that corpora- tions may be formed under general laws, but shall not be created by the legislative assembly by special laws, and that the legislative assembly shall not enact, amend, or repeal any charter or act of in- corporation for any municipality. Held, that the Motor Vehicle Law is unconstitu- tional in so far as it attempts to regulate the speed of automobiles in Portland; such regulation being an amendment of the city charter. Kalich v. Kuapp (Ore.) 1916E- 1051. (Annotated.) AUTOMOBILES. 99 3. Ore. Const., art. 11, 2, as amended, declaring that corporations may be formed under general laws, and that the legisla- ture shall not enact, amend, or repeal any charter of any municipality, but that the legal voters of every city and town are granted power to enact and amend their municipal charter subject to the constitu- tion and criminal laws of the state, and article 4, la, reserving the initiative and referendum powers to the legal voters of every municipality as to all local, special, and municipal legislation, insure to each municipality a full measure of home rule, and place beyond the power of the legisla- ture to make any change in local, special, and municipal legislation and the legisla- ture may not amend any municipal charter directly or indirectly where the amend- ment is the subject of municipal concern and regulation, and Motor Vehicle Law (Laws 1911, p. 365), regulating the use of motor vehicles throughout the state, is un- constitutional in so far as it attempts to regulate the speed of automobiles in municipalities, though the act contains a criminal provision, which is not a crim- inal law of the state within the constitu- tion. Kalich v. Knapp (Ore.) 1916E-1031. (Annotated.) 4. Motorcycles. A regulation of the lights on "motor cars," excepting from its provisions bicycles and tricycles, is appli- cable to motorcycles. Webster v. Terry (Eng.) 1917A-226. (Annotated.) 5. Applicability to Sled. A sled is not a "motor vehicle," as that term is used in the statute referred to. Terrill v. Virginia Brewing Co. (Minn.) 1917C-453. Notes. Municipal regulation of automobiles with respect to equipment, use of streets, or the like. 1916E-1047. Motorcycles. 1917A-218. Constitutionality of statutes and ordi- nances regulating speed of vehicles in streets and highways. 1916E-1067. b. Licenses. 6. Violation of License Law. Where defendant, a resident of Hamilton county, while driving his automobile in Hardin county, was arrested for operating the same without having number plates for the current year displayed, and it did not appear that he had ever operated the machine in Hardin county pritfr to that date, the fact that he may have operated it in Hamilton county while he was in de- fault will not justify his conviction in Hardin county, under an information charging the commission of the offense in that county. State v. Gish (Iowa) 1917B- 135. 7. Validity. A reasonable fee may be imposed by statute as an incident to the exercise of the state's police power to regulate the use of highways by motor vehicles. State v. Gish (Iowa) 1917B- 135. 8. Official Delay in Furnishing Plates. Iowa Acts 34th Gen. Assem., e. 72, regulat- ing automobiles, by section 3 requires the owner to register his machine with the secretary of state; and section 6 declares that on the filing of an application, and the payment of the fee, the secretary shall assign a number and without expense to the applicant issue and deliver, or forward by mail or express to such owner, a certifi- cate of registration, and two number plates. Section 12 declares that no person shall operate a motor vehicle on the high- ways of the state after July 4, 1911, unless the vehicle shall have a distinctive num- ber assigned to it by the secretary of state, and two number plates with numbers cor- responding to those of the certificate of registration, conspicuously displayed, front and rear, section 22 declaring that a viola- tion of sections 3-15, inclusive, of the act shall constitute a misdemeanor punishable by a fine. Held, that the gist of the offense was not the operation of a motor vehicle, but rather the failure to attach and dis- play the number plates while so operating; and hence, where defendant had properly re-registered his machine for the year 1913, with the secretary of state, been assigned a number, and had paid the necessary license fee. but because of inability of the secretary to furnish plates, none had been received by defendant, his operation of his automobile with the plates for the pre- vious year attached, by which it was properly identifiable until those for the year 1913 could be obtained, did not con- stitute a violation of the statute. State v. Gish (Iowa) 1917B-135. (Annotated.) 9. Necessity of Uniformity. Miss. Laws 1914, c. 120, 2, imposing a tax for the privilege of driving motor vehicles and motorcycles, is a pure privilege tax, and hence is not bad because there is a lack of uniformity and equality according to the value of the vehicles; the provisions for equality and uniformity applying only to ad valorem taxes. State v. Lawrence (Miss.) 1917E-322. 10. Effect of Excepting Nonresidents. That a nonresident, who has complied with the laws of his state as to registration, may drive a motor vehicle within the state for sixty days without paying the license tax or registration fee, does not render Laws Miss. 1914, e. 120, 2, impos- ing upon those driving motor vehicles and motorcycles a tax for the privilege of using the road, invalid as discriminatory legislation. State v. Lawrence (Miss.) 1917E-322. (Annotated.) 11. Tax for Using Roads. Miss. Laws 1914, c. 120, 2, imposing upon motor 100 DIGEST. 1916C 1918B. vehicles and motorcycles a tax for the privilege of using the public roads, is not bad as adopting an unreasonable classifica- tion; the classification being a natural one. State v. Lawrence (Miss.) 1917E-322-. 12. Validity. The legislature, having full power over public roads, can provide means by which they are to be improved, and Laws Miss. 1914, c. 120, 2, imposing a privilege tax upon motor vehicles and motorcycles for the use of public roads, and directing payment thereof into the road fund, is valid. State v. Lawrence (Miss.) 1917E-322. 13. Motorcycles. One who rides a motor- cycle without first obtaining the license re- quired by Rem. & Bal. Wash. Code, 5562-5566, is not guilty of negligence preventing a recovery for injuries sus- tained in a collision with an automobile negligently operated; there being no causal relation between the failure to ob- tain a license and the accident. Switzer v. Sherwood (Wash.) 1917A-216. (Annotated.) 14. Motorcycles. Chapter 179, Laws Idaho 1913, p. 558, is a law intended, among other things, to require those who operate motorcycles upon the public highways to cause such vehicles to be registered and to pay therefor a license or registration fee, which is in excess of the amount necessary to be raised for the purpose of policing such vehicles upon the public highways, and as such is valid. Matter of Kessler (Idaho) 1917A-228. (Annotated.) Note. Validity of inclusion or exclusion of nonresidents in statute regulating use of vehicles. 1917E-324. 2. MUTUAL RIGHTS AND DUTIES ON HIGHWAYS. a. In General. 15. Keeping to Eight Side of Street. Where a municipal ordinance provided that vehicles, except when passing other vehicles ahead, should be kept as near the right-hand curb as possible, an automo- bilist should keep his machine on the right- hand side of the street, and, where he uses the left-hand side, his rights are in- ferior to those of travelers proceeding in the opposite direction. Hiscock v. Phin- ney (Wash.) 1916E-1044. (Annotated.) Note. Rights and duties of persons driving automobiles in highways. 1916E 661. b. Care Required of Operator. 16. Where a wagon or other vehicle ob- scures or obstructs his view of a street crossing, when the presence thereon of others may reasonably be anticipated, ex- tra vigilance and caution are required of the auto operator, in order to prevent in- jury to persons on such crossing. Deputy v. Kimmell (W. Va.) 1916E-656. (Annotated.) 17. The vigilance and care required of the operator of an automobile vary in re- spect of persons of different ages or physi- cal conditions. He must increase his exer- tions in order to avoid danger to children, whom he may see, or, by the exercise of reasonable care, should see, on or near the highway. More than ordinary carp is re- quired in such cases. Deputy v. Kimmell (W. Va.) 1916E-656. (Annotated.) 18. Because of the character of the vehicle and the unusual dangers incident to its use, a greater degree of care is re- quired of the operator of an automobile, while on the public highway, and espe- cially at street crossings, than is required of persons using the ordinary or less dan- gerous instruments of travel. He should exercise such care in respect to speed, warnings of approach and the management of the car as will enable him to anticipate and avoid collisions which the nature of the machine and the locality may reason- ably suggest likely to occur in the absence of such precautions. Deputy v. Kimmell (W. Va.) 1916E-656. (Annotated.) 19. A person using an automobile on a public highway owes the double duty to avoid danger to himself by another having an equal right to such use, and the inflic- tion of injury upon such other person. Both must exercise that degree of care which a reasonably prudent man would exercise under the same circumstances. Deputy v. Kimmell (W. Va.) 1916E-656. (Annotated.) 20. Leaving Motor Truck Unattended in Street. Automobiles and motor trucks, being lawful means of conveyance, may be used on the public streets and highways, and it is not negligence per se to leave a motor truck unattended in a public street, although it is the duty of the driver to exercise the care of a person of ordinary prudence under the circumstances. Ameri- can Express Co. v. Terry (Md.) 1917C-650. 21. Duty in Approaching Crossing. Where one approaches a crowded crossing in an automobile, if it is imprudent or dangerous to use the crossing at the time, ordinary care requires the stopping of the car or seeking another crossing. Crawford V. McElhinney (Iowa) 1917E-221. c. Care Required of Pedestrians. 22. Bights and Duties as to Pedestrian. The rights of pedestrians and drivers of automobiles, when using streets or other public highways, are mutual, equal and co- AUTOMOBILES. 101 ordinate, except as varied by the nature of the appliance or mode of travel em- ployed; and as long as each observes the reciprocal rights of the other neither will be liable for any injury his use may cause. Deputy v. Kimmell (W. Va.) 1916E-656. (Annotated.) d. Responsibility of Owner for Driver's Acts. 23. Chauffeur Using Car Without Au- thority. Where a chauffeur was directed by the owner of an automobile to take it from the garage at a stated time and call at a house, but he started nearly an hour earlier, and in making a detour on an er- rand of his own an accident occurred at a point twice as far from, and beyond, the place to which he was directed to go as to the garage, having made a side trip of several blocks from the main trip of less (than one block, he was not in his master's at the time of the accident, and master was not liable; since while a ere disregard of instructions or deviation ^from the line of his duty by servant does -^jot relieve his master of responsibility, if *he servant for purposes of his own departs \o far from the line of his duty that for 3he time being his acts constitute an aban- donment of his service, the master is not 'liable. Eakins Administrator v. Anderson VKy.) 1917D-1003. (Annotated.) 24. Liability of Owner for Negligence of Husband. Where an automobile owned by Imsband and wife as a community and used for the community was negligently Operated by their daughter while the hus- band was riding therein, a judgment is 'Jproperly rendered against husband and >svife for the damages awarded, though the >wife was not present at the accident. v. Sherwood (Wash.) 1917A-216. } 25. Car Driven by Wife. Under Iowa Code, 3156, providing that, for civil in- juries committed by a married woman, damages may be recovered from her alone, and her husband shall not be liable there- for, except where he would be jointly lia- ble with her if the marriage did not exist, where defendant's wife, driving his auto- mobile, which was her invariable custom, he never having driven it, upon a pleas- ure trip to which he had invited two guests, struck and killed a child, defend- ant husband is liable for his wife's negli- gence; she being engaged as his servant in a common enterprise with him. Crawford v. McElhinney (Iowa) 1917E-221. (Annotated.) 26. Imputed Negligence. Although the negligence of the driver of an automobile cannot be imputed to one merely riding with him, yet where the driver is in an enterprise of any kind for the benefit of the party riding with him, is his employee or under his control, or where the auto- mobile is under his control and direction and owned by him, and he has a right to control and direct it, whether he assu'mes such right or not, he is held for th6 neglr-. gence of the driver. Crawford v. Mc- Elhinney (Iowa) 1917E-221. Notes. Liability of owner of automobile for act of driver other than his servant or child. 1917E-228. . . Liability of owner of automobile for acts of his chauffeur or agent. 1917D- 1001. e. E'ffect of Non-registration. 27. Where an automobile ig on the high- way unregistered by defendant, its owner, or a dealer, as required by Mass. St. 1909, e. 534, the owner as a wrongdoer and creator of a nuisance is liable for all direct injury resulting from his unlawful act, though the resulting injury could not have been contemplated as the probable result of the act done, and so is not the result of an act of negligence. Koonovsky v. Quellette (Mass.) 1918B-1146. (Annotated.) 28. Injury by Unregistered Automobile. If an automobile is unregistered by the owner or dealer, as required by Mass. St. 1909, c. 534, its presence on the highway is unlawful, and against the right of all other persons lawfully using the highway; it is outside the pale of travelers, and an outlaw. Koonovsky v. Quellette (Mass.) 1918B-1146. (Annotated.) f. Liability to Guests. 29. Since to charge a gratuitous bailee gross negligence must be shown, and since the measure of liability of one who under- takes to carry another gratis is the same as that of a gratuitous bailee, where a per- son invites another to ride in his auto- mobile, in doing which the guest is injured, she cannot recover, in the absence 01 showing of gross negligence. Massaletti v. Fitzroy (Mass.) 1918B-1088. (Annotated.) 30. Injury to Guest. Where a person in- vites another to ride gratis in his auto- mobile, there is a gratuitous undertaking, not governed by rules as to liability of licensors. Massaletti v. Fitzroy (Mass.) 191SB-1088. (Annotated.) 31. The rule that to charge a person, who invites another to ride in his auto- mobile, in doing which the guest is in- jured, with Jiability, gross negligence must be shown, does not mean that the same negligence must appear in every case as would charge a gratuitous bailee with lia- bility for loss of the goods, but each ease must be determined upon its own facts. Massaletti v. Fitzroy (Mass.) 1918B-10S8. (Annotated.) ' 102 DIGEST. 1916C 1918B. g. Imputed Negligence. 32. Imputation of Driver's Negligence. That the wife owned an automobile which she sent to another city for her husband to use, and on her casual visit to the city, while riding with him in the automobile, it was struck by a street car, at a crossing, while she was engaged in conversation with another passenger and exercising no control over its operation, does not render negligence of the husband, if any, imputa- ble to her, since the husband was in effect her bailee. Virginia E., etc. Co. v. Gor- sueh (Va.) 1918B-838. (Annotated.) 33. The mere fact that the mother, who was sitting by the side of her eon and as his guest, did not protest against his ac- tion when he drove his automobile at an excessive rate of speed for the distance of a little more than a city block, at the end of which an injury was inflicted, cannot be held as culpable negligence on her part which would make her liable for his negli- gence and the resulting injury. Anthony V. Kiefner (Kan.) 1916E-264. (Annotated.) 84. If the journey had been undertaken as a joint enterprise to accomplish a com- mon purpose for the benefit of both, one of them might have been regarded as the agent of the other, and she might have been responsible for injuries inflicted by the negligent operation of the automobile, but it is held that, her mere request of her son that some time during the ride he should call at a certain house and obtain a cake that a friend had promised to make for her did not make the trip a joint enter- prise nor make her responsible for the negligence of her son nor for injuries to which she did not personally contribute. Anthony v. Kiefner (Kan.) 1916E-264. (Annotated.) 35. Imputation to Occupant. A mother accepted the invitation of her son to ride in his automobile merely as his guest and as she had no control and took no part in the management of the automobile she is .not responsible for injuries inflicted upon another by the negligence of her son in driving the automobile. Anthony v. Kiefner (Kan.) 1916E-264. (Annotated.) Note. Negligence of driver as imputable to occupant of automobile. 1916E-268. h. Actions. (1) Pleading. 36. Liability of Owner for Negligence of Son. A petition alleged, in brief, as fol- lows: A woman owned an automobile, and had a minor son. She allowed her son to run and operate the car. On a day named the minor son was the chauffeur in charge of the car, operating it for his mother, the owner, and running it on the public road with the knowledge and consent of his mother. The boy, "who was the agent of the said [owner], as hereinbefore al- leged, driving said car," negligently caused it to collide with a buggy in which the plaintiff was riding, causing injury to him and to the buggy and harness. The injury was caused by the carelessness and negli- gence and by acts and omissions to act on the part of the mother and on the part of the son, "her agent and chauffeur in charge of said car." By amendment the plaintiff added the following: "Defendant kept said automobile for the comfort and pleas- ure of her family, including Jim Russell [the son], a member of said family. He was driving said automobile at the time "of the injury herein complained of, and was driving the same for the comfort and pleasure of himself and friends, who were riding with him, by and with the consent of the owner of said car, the defendant." It is held that such petition was not sub- ject to general demurrer. Griffin v. Russell (Ga.) 1917D-994. (Annotated.) (2) Evidence. 37. Registration Use by Dealer. In an action for injuries when struck by an auto- mobile, the evidence is held to be sufficient to justify a finding that the, person, who, according to defendant's evidence, had charge of the machine at the time of the accident, was a dealer in automobiles. Koonovsky v. Quellette (Mass.) 1918B- 1146. 38. In an action for injuries when struck by an automobile, the evidence is hel-1 to be sufficient to justify a finding that u dealer, a third person, was in control of the automobile for the purpose of sale, for renting, or for use. Koonovsky v. Quel- lette (Mass.) 1918B-1146. 39. Sufficiency of Evidence. In an ac- tion for the death of a motorcyclist, caused by a collision with an automobile operated by defendant's son, evidence examined and held to be sufficient to support a finding by the jury that the car was owned by defendant and that the son at that time was engaged in the father's business, so as to authorize a recoverv under the in- structions given. Ferris v. Sterling (N. Y.) 1916D-1161. 40. License Number as Evidence of Ownership. The prima facie case that de- fendant owned an automobile, and that his son, who was driving it when he col- lided with a motorcyclist, was engaged in defendant's service, which arises from proof that the license was in defendant's name, is not as a matter of law rebutted by testimony of defendant and his son that the car was licensed in the name of de- fendant instead of that of his son, the AUTOMOBILES. 103 true owner, by mistake, since the credi- bility of that testimony is for the jury. Ferris v. Sterling (N. Y.) 1916D-1161. (Annotated.) 41. Declarations as to Ownership. Where defendant claimed that an auto- mobile which killed plaintiff's intestate be- longed to his son, who was in charge thereof at the time of the accident, and that the licensing of the car in defend- ant's name was a mistake, and plaintiff claimed that the son's ownership of the car was a recent fabrication to avoid lia- bility by defendant, it was error to exclude letters written before the accident by the son to the secretary of state and by the secretary to the son, relating to the mis- take in the license, and other declarations showing ownership by the son, since they were admissible both to refute the claim of recent fabrication and as explanation of defendant's acts apparently inconsistent with his position at the trial. Ferris v. Sterling (N. Y.) 1916D-1161. 42. Speed of Automobile. In an action for the wrongful death of plaintiff's son, killed in a collision with defendant's auto- mobile, a nonexpert witness who had ob- served the speed of automobiles, but had not owned or operated one, may testify as to his opinion of the speed of defendant's machine. Hiscock v. Phinney (Wash.) 1916E-1044. 43. Opinion Evidence. While, under Ore. L. O. L., 729, subd. 8, declaring that judicial notice is taken of the laws of nature, the court may reject testimony irreconcilable with physical facts, con- clusively established, or instruct that it be disregarded, it cannot do so as to reason- able testimony, and so where there is a question for the jury whether or not wit- ness' means of observation were such as to entitle his testimony, as to what was the speed of an automobile, seen at some distance and for a comparatively short space, the testimony is admissible. Kelly v. Weaver (Ore.) 1917D-611. (Annotated.) Notes. Opinion evidence as to speed of auto- mobile. 1917D-613. License number on motor vehicle as evi- dence of ownership thereof. 1916D-1163. (3) Questions for Jury. 44. In an action by one hurt in attempt- ing to change the course of a motor truck, which had started from the side of the street where it had been left unattended, evidence of defendant's negligence is held to be for the jury. American Express Co. v. Terry (Md.) 1917C-650. 45. Negligence of Driver. In an action for death of a child, struck by defend- ants' automobile, the question of the negli- gence of the driver of the car is held .to be for the jury on the evidence. Crawford v. McElhinney (Iowa) 1917E-221. 46. Collision "With Automobiles Negli- gence for Jury. In an action for the wrongful death of plaintiffs son, killed in a collision with defendant's automobile, the question of the manner of the collision held, under the evidence, for the jury. Hiscock v. Phinney (Wash.) 1916E-1044. (4) Instructions. 47. Negligence in Operation, l n an ac- tion for the death of a person struck by an automobile truck, an instruction that if, as the driver of the truck approached the place where deceased was injured, there was no apparent necessity appearing for him to stop or slacken the speed of the truck in order to prevent injury to de- ceased, then the law did not require him to stop or slacken its speed is erroneous, as the question was not whether there was an apparent necessity for stopping or slacking the speed of the truck, but whether or not the driver was operating the truck with that degree of care and skill which an ordinarily prudent and skil- ful driver would have exercised, having due regard to the location, circumstances, and surroundings. Devine v. Brunswick- Balke-Collender Co. (111.) 1917B-887. 48. In an action for the wrongful death of plaintiff's son, killed in a collision with defendant's automobile, which was either in the center or on the left-hand side of the street, the giving of an instruction that the rights of defendant and the son, who was riding a bicycle in the opposite direc- tion, were the same is prejudicial, where an ordinance required travelers to keep as near the right-hand curb as possible, and the jury, after receiving the instructions, returned, requesting further instructions as to whether the defendant had the right to the center of the street. Hiscoek v. Phin- ney (Wash.) 1916E-1044. (Annotated.) 49. Husband's Liability for Wife's Tort. In an action for death of a child, when struck by an automobile owned by defendant husband and driven by defend- ant wife, where the court instructed that the husband was liable for his wife's act if at the time of the matters complained of they were "engaged in a common enter- prise," the charge was not improper be- cause the quoted expression is broad and ordinarily applies to a business transac- tion, or because of a like use of the words "common purpose." Crawford v. McEl- hinney (Iowa) 1917E-221. 50. Negligence of Driver. Where de- fendant, in approaching a crowded cross- ing in an automobile, observes the position of a child looking away from the car, she is not justified in attempting to drive the 104 DIGEST. 1916C 19183. car across, unless a prudent person would have done so under the same circum- stances, and a requested instruction is properly modified to include that feature of the care required. Crawford v. McEl- hinney (Iowa) 1917E-221. 51. Automobiles Negligence Duty at Crossing. In an action for death of a child, struck by an automobile at a crowded city crossing, where the court charged that the rights of travelers upon streets were mutual and co-ordinate, and that an automobile driver could rightfully pass over the crossing with his automobile, although it was crowded, provided he exer- cised due care in the management of his car, and that defendant was not obliged to seek another street, if by due care he might use the crossing without injury to others, but that, if it was imprudent or dangerous to use the crossing at the time, ordinary care required defendant to stop his car or seek another crossing, the last clause of the charge is proper, as stating the reverse side of a matter previously touched upon in a manner somewhat par- tial to defendant. Crawford v. McElhin- ney (Iowa) 1917E-221. 3. INJURIES TO MOTOR VEHICLES OR OCCUPANTS. 52. Where a motor car was injured through defendant's fault, the owner can- not, as damages for loss of use, recover the rental from week to week for a car, but should recover only the aggregate rental of a machine for a similar time. Perkins v. Brown (Tenn.) 1917A-124. (Annotated.) 53. The owner of a motor car, held for pleasure driving and used only a small portion of each day, cannot, where the car was injured through the fault of defend- ant, recover as damages for the loss of the use of the machine the full daily rental value of machines in that vicinity. Per- kins v. Brown (Tenn.) 1917A-124. (Annotated.) 54. That the owner of a pleasure motor car did not hire another car while it was being repaired after a tortious injury by defendant does not prevent him from re- covering damages for loss of use thereof. Perkins v. Brown (Tenn.) 1917A-124. (Annotated.) 55. Compensation for injury being the rule, the owner of an automobile used for pleasure may recover substantial damages for loss of use while it is being repaired after a tortious injury by defendant. Perkini v. Brown (Tenn.) 1917A-124. (Annotated.) 56. Value of Use of Damaged Property. The owner of a vehicle held for use may recover for his loss of use by reason of a tortious injury while being repaired, in addition to the cost of repairs. Perkins v. Brown (Tenn.) 1917A-124. (Annotated.) 56. The owner of a vehicle held for use may recover for his loss of use by reason of a tortious injury while being repaired, in addition to the cost of repairs. Perkins v. Brown (Tenn.) 1917A-124. (Annotated.) 57. Pleading. A complaint, in an ac- tion for injuries in a collision on a street, which alleges that defendants neg- ligently lost control of the automobile, and drove recklessly over a part of the street which was several feet from the usual traveled way, without warning of their approach and without slackening their speed, and negligently permitted the automobile to collide with plaintiff, and that the injury sustained by him was due solely to the negligence of defendants, pleads the ultimate and issuable facts as against a motion requiring plaintiff to spe- cify the particulars of the negligence and in what respect defendants lost control of the automobile or were careless in operat- ing it. Switzer T. Sherwood (Wash.) 1917A-216. Note. Liability of automobile owner to chauf- feur for personal injuries. 1916E-1090. 4. LIABILITY OF MANUFACTURER FOR INJURIES. 58. In such action defendant should be allowed to show what inquiries it made as to the S. Co. before contracting with it for wheels, what answers it received, what reputation that company had as manufac- turers, that their wheels were as high priced, if not higher priced than any in the market, and that no prior accident had ever been heard of. Cadillac Motor Car Co. v. Johnson (Fed.) 1917E-581. (Annotated.) 59. In an action against an automobile manufacturer, which purchased the wheels of its automobiles from the S. Co., for in- juries sustained by a purchaser from a dealer, due to a defect in one of the wheels, it is error to exclude evidence as to the practice of manufacturers of auto- mobiles and of the trade concerning the examination of wheels, even on the theory, on which the case was tried, that the manufacturer was liable if it knew or ought to have discovered that the wheel was weak and insufficient. Cadillac Motor Car Co. v. Johnson (Fed.) 1917E-581. (Annotated.) 60. Even though an automobile manu- facturer's prospectus represented that it manufactured the wheels of its automo- biles, when in fact it purchased them from AVENUE AVOIDANCE. 105 a manufacturer of wheels, such representa- tion is not available to a purchaser from a dealer in automobiles, who had no con- tractual relation with the automobile manufacturer, in an action by him for in- juries. Cadillac Motor Car Co. v. John- son (Fed.) 1917E-581. (Annotated.) . 61. Defect in Construction. A manu- facturer of automobiles, which purchased the wheels used on its automobiles, is not liable to an injured person,, who purchased an automobile manufactured by it from a dealer, and who had no contractual rela- tions with it, for its negligent failure to discover that one of the wheels was de- fective, since, while one who manufactures articles inherently dangerous is liable to third parties injured by such articles, un- less he exercises reasonable care, one who manufactures articles dangerous only if defectively made is not liable to third parties for injuries, except in case of wil- ful injury or fraud. Cadillac Motor Car Co. v. Johnson (Fed.) 1917E-581. (Annotated.) 62. Liability of Manufacturer to Pur- chaser Defective Automobile. The manu- facturer of an automobile is liable to a purchaser thereof from a dealer for in- juries caused by a defective wheel, the defects in which could have been discov- ered by reasonable inspection, though the wheel was purchased by the automobile manufacturer from the maker thereof. MacPherson v. Buick Motor Car Co. (N. Y.) 1916C-440. (Annotated.) Note. Liability of maker of automobile to third persons for defective construction thereof. 1917E-584. 5. CRIMES INCIDENTAL TO OPERA- TION. 63. Liability of Automobile Driver for Negligent Homicide. In a prosecution for involuntary * manslaughter committed by reckless driving of an automobile, the evi- dence is held sufficient to show clearly the guilt of the defendant. People v. Falko- Titch (111.) 1918B-1077. (Annotated.) 64. Identification of Defendant. On the trial of an indictment for a violation of the N. Y. Highway Law, 290, subd. 3, testimony of a witness that he had seen an automobile near the time and place of the accident running at a high rate of speed, without being able to identify it or state any fact warranting an inference that it was the defendant's, is inadmis- sible. People^v. Curtis (N. Y.) 1917E-586. 65. Admissibility of Evidence. Upon the trial of an indictment for a violation of the X. Y. Highway Law, 290, subd. 3, while evidence may properly be given showing how much a person was injured in an automobile collision as bearing upon the seriousness of the accident and tend- ing to show that it should not escape th notice of the defendant, subsequent suf- fering of the injured person or the length of time he remained in the hospital and the details of the medical or surgical treatment which he received can have no legitimate bearing upon any of the issues arising on the trial of an indictment and are inadmissible. People v. Curtis (N Y ) 1917E-586. . 66. Necessity of Knowledge of Injury. It is essential to a conviction under N. Y. Highway Law, 290, subd. 3, that the jury shall be satisfied beyond a reasonable doubt not only that an injury had been caused, but that the defendant knew that such injury had been caused, and, notwith- standing such knowledge, left the scene of the accident without complying with the law. People v. Curtis (N. Y.) 1917E-586. (Annotated.) 67. Failure to Give Name and Address to Person Injured. An irdictment charging a violation of the Highway Law (N. Y. Consol. Laws, c. 25), 290, subd. 3, added by Laws 1910, c. 374, providing that any person operating a motor vehicle who, knowing that an injury has been caused to a person or property due to his culpability, or to accident, leaves without giving his name, residence, and operator's license number to the injured party or a police officer, or reporting the same to the nearest police station or judicial officer, shall be guilty of a felony, need not allege that the accident occurred on a public highway. People v. Curtis (N. Y.) 1917E-586. Note. Construction of statute requiring person operating automobile to give name and ad- dress to person injured. 1917E 588. AUTREFOIS ACQUIT. See Former Jeopardy. AVENUE. Avenue a public highway, see Streets and Highways, 1. AVERAGE ANNUAL EABNINGS. Under Workmen's Compensation Act, se Master and Servant, 274, 275, 282. AVERAGE WEEKLY EARNINGS. Under Workmen's Compensation Act, see Master and Servant, 271, 273, 274, 276, 277, 281. AVOIDANCE. Of preferences, see Bankruptcy, 18-20. Of benefit contract, see Beneficial Associa- tions, 15. Of stock subscription, see Corporations, 64-70. 106 DIGEST. 1916C 1918B. Of release, see Release and Discharge, 2-5. Suit to rescind, see Rescission, Cancella- tion and Reformation. For fraud, see Sales, 48. AWARD. See Arbitration and Award. BAIL. 1. Interest on Penalty. Interest should not be allowed on the amount of the pen- alty of a bail bond from the date of the forfeiture of the bond. People v. Parisi (N. Y.) 1916C-111. (Annotated.) 2. Enforcement of Forfeiture. A surety on a forfeited bail bond cannot urge as a defense that he should have had notice of the time and place at which the principal was required to appear, as that should have been presented by a motion to relieve from the forfeiture. People v. Parisi (N. Y.) 1916C-111. 3. Necessity of Notice to Surety to Pro- duce Principal. Though a person bound over before a magistrate may be indicted and tried either in the county court or the supreme court, a surety on his bail bond is not entitled to a notice of the time and place at which the principal must ap- pear as a condition precedent to a for- feiture of the bond. People v. Parisi (N. Y.) 1916C-111. Note. Allowance of interest on forfeited bail bond. 1916C-114. BAELIFP. Disqnalification as custodian of jurv, see Jury, 29, 30. BAILMENT. 1. In General. 2. Liability of Bailee for Loss. 3. Limitation of Action by Bailee for Loss. See Escrow; Warehouses. Care required of bailee, see Automobiles, 29. Special deposit, see Banks and Banking. 38-42. Computation of time of rental period, see Time, 4. 1. IN GENERAL. 1. What Constitutes. An agreement, which recites that a party thereto has re- ceived from the adverse party sheep to keep, for rental annually of half the, wool and increase, for three years, creates a bailment and imposes on the party the im- plied obligation to return the same sheep. In re Parsell's Estate (Mich.) 1917A-1160. 2. Termination of Bailment. Where a bailee for a definite term, does not, at the expiration of the term, return the prop- erty, the bailment does not necessarily end as to him, and the bailor can resume the property or consider the bailment as con- tinued or renewed; for possession retained without objection after the period origin- ally fixed had expired, in connection with other circumstances, might raise a question of fact as to whether the bailment was terminated or continued and renewed. In re Parsell's Estate (Mich.) 1917A-1160. 3. Revocation, The delivery of a dog into defendant's possession by plaintiff, with consent of his wife, the owner thereof, created at most a bailment at will, revocable without demand or notice, at the pleasure of the bailor. Herrics v. Bell (Mass.) 1917A-423. Note. Acquisition by adverse possession of title to property in hands of bailee. 1917A-1163. 2. LIABILITY OF BAILEE FOR LOSS. 4. Death of Animal Bailed. A party re- ceiving sheep of another to keep, for the rental annually of half the wool and in- crease) for three years, must exercise aver- age diligence in caring for the sheep, and he is not an insurer, nor liable to replace any perishing from natural causes, by disease or accident, without his fault. In re Parcell's Estate (Mich.) 1917A-1160. 3. LIMITATION OF ACTION BY BAILEE FOR LOSS. 5. A party received sheep of the adverse party to keep, for the rental annually of half the wool and increase, for three years. The party continued to keep the sheep at the end of the three years. An indorse- ment on the written agreement showed that sheep were paid back five years after the party received the sheep. The sheep returned were lambs. Many years later the party admitted that he had the sheep and was indebted on that account. Held, that the question of a continuance or renewal of the bailment so as to prevent the run- ning of limitations in favor of the party was for the jury. In Re Parsell's Estate (Mich.) 1917A-1160. (Annotated.) 6. Adverse Possession by Bailee. Mere retention of possession of property by a bailee, however long continued, does not work a change of ownership, and limita- tions do not run in his favor until he asserts an adverse claim. In re Parsell's Estate (Mich.) 1917A-1160. (Annotated.) BAILMENT AT WILL. See Bailment, 3. BALLOTS. See Elections, 12-14, 26-28, 37-73. BANANA PEEL BANKRUPTCY. 107 BANANA PEEL. Liability for passenger's fall, see Carriers of Passengers, 34. BANKRUPTCY. 1. Assets of Bankrupt, 107. 2. Title and Powers of Trustee, 108. 3. Liens, Fraudulent and Other Voidable Transfers, 108. 4. Claims Against Estate, 109. 5. Administration of Estate, 109. 6. Discharge, 110. 7. Rights, Duties and Liabilities of Peti- tioning Creditors, 110. 8. Crimes Against Bankruptcy Law, 111. Stockholders' liability, effect of discharge of corporation, see Corporations, 133. Effect on creditor's bill, see Creditors' Bills, 5. Liability for instituting proceedings, see Malicious Prosecution, 4. Priority of mechanic's lien, see Mechanics' Liens, 15. Appointment of receiver, see Receivers, 3, 5. 1. ASSETS OF BANKRUPT. 1. Creditor Enforcing Lien. A mortgagee of a stock of goods not exceeding $500 in value, on condition that the mortgagor should keep the stock to such value, who took from the mortgagor's trustee in bank- ruptcy goods valued at more than $1,000 and disposed of them, was liable to account to the trustee for the excess in his hands over $500. Williams v. Noyes, etc. Mfg. Co. (Me.) 1916D-1224. 2. Chattel Mortgage on Goods. In such case the mortgagee, whose right, if any, to follow the property was suspended by the appointment of the trustee in bank- ruptcy, against whom he had no right of possession, had the burden of showing title to the goods claimed by him under the mortgage (that is, those in existence at the mortgage and those, if any, substituted for articles sold by purchase from the pro- ceeds) ; and where the mortgagor's busi- ness during the intervening three, years amounted to about $5.000 a year, and much of his stock was purchased on credit from others than the mortgagee, and some was paid for in cash, and where one-third of the stock on hand upon his bankruptcy was received from defendant and two- thirds from other sources, there was a necessary inference that no part of the original stock was left at the date of the mortgagor's bankruptcy. Williams v. Noyes, etc. Mfg. Co. (Me.) 1916D-1224. 3. Salary of Public Officer. The annual allowance made by way of compensation to members of the House of Commons is a "salary or income" a portion of which may, under the Bankruptcy (Ireland) Amendment Act of 1872, 51, be appro- priated by an order of court to the pay- ment of the creditors of a bankrupt mem- ber. Hollinshead v. Hazleton (Eng.) 1916D-615. (Annotated.)- 4. Counterclaim. Bankruptcy Act July 1, 1898, c. 541, 1, (11) 30 Stat. 544 (1 Fed. St. Ann. 527; Fed. St. Ann. 1912 Supp. p. 464), declaring that Ifee term "debt" shall include any debt, demand, or claim provable in bankruptcy, does not increase rights of counterclaim against the bankrupt's estate. Morris v. Windsor Trust Co. (N. Y.) 1916C- 972. (Annotated.) 5. Neither under U. S. Bankruptcy Act, 68, providing for the set-off of mutual debts, nor under general principles of equity, can a party sued for conversion of a pledge set off as a counterclaim rights based on contracts unconnected with the conversion and growing out of the indorse- ment of notes by the bankrupt to whose estate plaintiff had succeeded. Morris v. Windsor Trust Co. (N. Y.) 1916C-972. (Annotated.) 6. Right of Set-off. Bankruptcy Act July 1, 1898, c. 541, 68, 30 Stat. 565 (1 Fed. St. Ann. 696; Fed. St. Ann. 1912 Supp. p. 805), declaring that in all cases of mutual debts or credits the account between the parties shall be stated and one debt set off against the other, was not intended to enlarge the doctrine of set-off, and does not give a party rights which he did not enjoy under previous statutes or general equitable principles. Morris v. Windsor Trust Co. (N. Y.) 1916C-972. (Annotated.) 7. Right to Set Off Unliquidated Claim. In a bankruptcy proceeding, a claim for unliquidated damages for a tort could not be set off against a claim upon a judg- ment, whether the matter was controlled by Rev. Codes Idaho, 4184, providing that a counterclaim must be a cause of action arising out of the transaction set forth in the complaint as the foundation of plain- tiff's claim or connected with the subject of the action, or, in an action arising upon contract, any other cause of action also arising upon contract, or by Bankr. Act, 63 (1 Fed. St. Ann. 679; Fed. St. Ann. 1912 Supp. p. 753), specifying in subdivi- sion "a" the claims which may be proved, and providing in subdivision "b" that un- liquidated claims may be liquidated in such manner as the court shall direct, and may thereafter be proved and allowed against the estate, and section 68 (1 Fed. St. Ann. 696; Fed. St. Ann. 1912 Supp. p. 805) providing for a set-off of mutual debts and credits, and providing that a sel- off or, counterclaim shall not be allowed which is not provable against the estate, as section 63b does not enlarge the scope of subdivision "a," and unliquidated claims arising out of torts not covered by subdivi- sion "a." Pindel v. Holgate (Fed.) 1916C- 983. (Annotated.) 108 DIGEST. 1916C 1918B. , 8. Set-off in Bankruptcy Laches of Bankrupt. Where, at the time a bankrupt sought to set up a claim for damages from an attachment as a counterclaim against the judgment obtained in the action in which the attachment was issued, an ac- tion by the judgment creditor against the sheriff for his nagligeace in caring for the attached property, was barred by Rev. Codes Idaho, 4055, subd. 1, requiring ac- tions against sheriffs upon a liability in- curred by the doing of an act in their offi- cial capacity, and by virtue of their office, or lay the omission of an official duty, to be brought within two years, and an action against the judgment creditor would have been barred by section 4054, subds. 2, 3, requiring actions for trespass upon real property and for taking or injuring per- sonal property to be brought within three years, the bankrupt is barred by his laches from setting up such claim. Pindel v. Hoi- gate (Fed.) 1916E-983. (Annotated.) 9. Accounting for Assets. On a Satur- day about two weeks before bankruptcy, the members of a partnership received a cheek for $2,000, and instead of depositing it they dr"ew it out in bills from the bank upon which the check was drawn. On re- turn.ing to their place of business about 12:30 they dismissed their bookkeeper for the. . day, and, as they claimed, put the money in their safe. Though they were at the stpre nearly all the afternoon, and though the- store was locked when they left, and though there was nothing to show that, the store or the safe was broken open, or that anything unusual happened, they claimed the money was not there the fol- lowing Monday. They told the book- keeper on Monday to charge the $2,000 to expenses, but later directed her to change the entry and charge it to materials, and one of them testified that he did this be- cause he thought it would look better to creditors. It is held that, while the trustee, seeking to compel the turning over of this money to him, had the burden of proving that the money was in the bank- rupt's possession by evidence which was clear and convincing, he did this, and the burden was shifted to the bankrupts to show what became of the money. In re Graning (Fed.) 1917B-1094. (Annotated.) 10. What Property Passes. As the holder of a life insurance policy, reserving to him the right to change the beneficiary, and which by its terms was assignable, had a transferable interest in the policy, if. not- withstanding an assignment thereof by him, an interest in the policy still re- mained in him, such interest passed to his trustee in bankruptcy as of the date of the adjudication, and a purchaser of his right, title, and interest acquired a right superior to that of the beneficiary. Mutual Benefit Life Ins. Co. v. Swett (Fed.) 1917B-29S. 11. Estoppel of Bankrupt. A voluntary bankrupt in his schedules listed the claim of a bank based upon a judgment with- out mentioning any offset, and stated that he held no unliquidated claims or choses in action of any kind against any person, and in a proceeding to sell land in which he had a homestead interest, in which the necessity for making the sale rested upon the assumption that the claim of the bank was valid, resisted a sale on other grounds. An order of sale was affirmed on appeal, and a sale had. On application for an order confirming the sale, the bank- rupt, more than four years after the peti- tion was filed, for the first time set up an offset or counterclaim for wrongful attach- ment in the action in which the bank's judgment was obtained. It is held that he was estopped by the representations in the schedules and the order of sale from setting up such counterclaim, as a judg- ment is an adjudication, not only of all defenses actually interposed, but of all which might have been interposed. Pin- del v. Holgate (Fed.) 1916C-983. (Annotated.) 12. Avoidance in Bankruptcy Property Including Homestead. A conveyance of land in which a bankrupt had a homestead interest is voidable as to the excess of the land over the homestead right, where the deed was not recorded until within four months before bankruptcy. Sieg v. Greene (Fed.) 1917C-1006. (Annotated.) Notes. Set-off under American bankruptcy acts. 1916C-975. Salary or pension of public officer or em- ployee as affected by his bankruptcy. 1916D-629. 2. TITLE AND POWERS OF TRUSTEE. 13. Title of Trustee. The trustee's title to the bankrupt's estate relates back to the date of the adjudication. Williams v. Noyes, etc. Mfg. Co. (Me.) 1916D-1224. 14. Custody of Trustee. Where a trustee in bankruptcy has taken possession, the property is in the custody of the law and cannot be removed therefrom by any pri- vate person or by any process out of any court, except one having a supervisory con- trol or superior jurisdiction in the prem- ises. Williams v. Noyes, etc. Mfg. Co. (Me.) 1916D-1224. 3 LIEN'S. FRAUDULENT AND OTHER VOIDABLE TRANSFERS. 15. Effect of Bankruptcy of Property Owner. Plaintiff sold defendant building material used in construction of buildings upon an unproven government homestead. Within 90 days after furnishing said mate- rial, defendant filed his petition in volun- tary bankruptcy in the federal court, and BANKRUPTCY. 109 was adjudged a bankrupt. The amount owing for such building materials was scheduled among his debts. Thereafter, and 93 days after furnishing the last item of materials, plaintiff filed its mechanic's lien on the buildings. Subsequently de- fendant was discharged in bankruptcy. He pleads it as his only defense. Held, the filing of the petition and adjudication of bankruptcy did not defeat the right of plaintiff to, subsequently and after the ex- piration of the 90-day period, perfect its inchoate mechanic's lien by the filing of a lien statement. Moreau Lumber Co. T. Johnson (N. Dak.) 1917C-290. . (Annotated.) 16. Liens and Incumbrances on Estate. A trustee in bankruptcy takes the property of the estate subject to all equities, liens, end incumbrances existing against it in the hands of the bankrupt. Williams v. Noyes, etc. Mfg. Co. (Me.) 1916D-1224. 17. Under Bankruptcy Act July 1, 1898, c. 541, 6, 30 Stat. 548 (1 Fed. St. Ann. [2d ed.] 592) providing that that act 'shall not affect the allowance to bankrupts of exemptions prescribed by the state laws, state statutes and decisions control in de- termining whether a conveyance by a bankrupt of land in which he had a home- stead interest was fraudulent as to credi- tors. Sieg v. Greene (Fed.) 1917C-1006. (Annotated.) 18. What Constitutes Preference. A partnership manufacturing brick, being in- solvent, applied for assistance to continue operations to S, who was formerly a part- ner, owned an undivided half interest in the brick plant, and had theretofore pur- chased the other half interest. S, knowing of the firm's condition, advanced it money under an agreement made in good faith that the firm would manufacture brick for him to the value of the amount ad- vanced, to be taken by him in the yard as soon as they were burned. The laborers in the yard were paid with S's money, and they understood the bricks were being made for him. More than 30 days, but within 4 months, prior to bankruptcy, S took possession of the plant and the brick already manufactured. It is held that the transaction was not a voidable preference, within Bankruptcy Act July 1, 1898, c. 541, 60a, 30 Stat. 562 (1 Fed. Ann. [2d ed.] 1004), making transfers by an insolvent within 4 months before bankruptcy, en- abling a creditor to obtain a greater per- centage of his debt than other creditors, preferential, and section 60b (p. 1026), making such preferences voidable if the transferee had reasonable cause to believe that the transfer would effect a preference, since S took possession in virtue of his right, created by the contract at the time it was made, and in satisfaction of an equitable lien. Sieg v. Greene (Fed.) 1917C-1006. 19. Avoidance of Preferential Transfer Grantee. Where one to whom a brick plant was transferred by a bankrupt within' four months before bankruptcy made large expenditures in putting in new machinery and otherwise improving ;the plant, any property thus added is no part of the estate in bankruptcy. Sieg v. Greene (Fed.) 1917C-1006. 20. Voidable Transfer. While, in the absence of fraud, a bank having a bank- rupt's funds on deposit may set off a debt owing it by the bankrupt against the trustee's claim for the deposit and may prove any balance against the estate, yet where a bank holding a depositor's notes accepts payment thereof by check against the deposit, within four months of the bankruptcy of the depositor and with full knowledge of his insolvent condition, it receives an "unlawful preference," within the meaning of Bankr. Act July 1, 1898, c. 541, 60 (a) (b) 30 Stat. 562 (1 Fed. St. Ann. 672, 674; Fed. St. Ann. 1912 Supp. p. 729, 739), and its right to set off the notes is thereby forfeited, and it becomes liable to the trustee for the amount of the check. Knoll v. Commercial Trust Co. (Pa.) 1916C-988. (Annotated.) Notes. Set-off by bank of deposit against debt due bank by depositor as voidable transfer under bankruptcy law. 1916C-990. Effect of bankruptcy of owner of prop- erty on right to mechanic's lien. 19170- 292. 4. CLAIMS AGAINST ESTATE. 21. Review of Allowance of Claim, Under Bankr. Act July 1, 1898, c. 541, 25 (3), 30 Stat. 553 (1 Fed. St. Ann. 602; Fed. St. Ann. 1912 Supp. p. 634), authoriz- ing appeals as in equity eases from a judg- ment allowing or rejecting a debt or claim of $500 or over, an order allowing such a claim is not reviewable by a petition to revise, as each method of procedure for the review of orders in bankruptcy is ex- clusive of the other. Pindel v. Holgate (Fed.) 1916C-983. 22. Review of Allowance of Claim in Conjunction With Another Order. Though an order allowing a claim is not, standing alone, reviewable on a petition to revise, where there was only one other small claim, and the necessity for a sale of land in which the bankrupt had a homestead interest depended mainly upon the validity of the claim in question, the allowance of such claim will be reviewed on a petition to revise the order confirming a sale of the homestead. Pindel v. Holgate (Fed.) 1916C-983. 5. ADMINISTRATION OF ESTATE. 23. Review of Confirmation of Sale. Under Bankr. Act, 24b (1 Fed. .St. Ann. 110 DIGEST. 1916C 1918B. 595; Fed. St. Ann. 1912 Supp. p. 611), pro- viding that the several circuit courts of appeal shall have jurisdiction to superin- tend and revise in matters of law the pro- ceedings of the several inferior courts of bankruptcy within their jurisdiction, an order confirming the sale of the land of a bankrupt in which he had a homestead in- terest is properly reviewable in matters of law by a petition to revise. Pindel v. Hoi- gate (Fed.) 19160-983. 6. DISCHARGE. 24. Burden of Proof. A judgment credi- tor has the burden of showing that his claim is not barred by discharge in bank- ruptcy; and where the nature of the claim appeared only from the creditor's declara- tion, that instrument should be given the construction most favorable to the bank- rupt. In re Grout (Vt.) 1917A-210. 25. Liability for Wilful and Malicious Injury. A, default judgment was recovered under a declaration in trespass which al- leged that the bankrupt assaulted another, charging that, while she was walking on the street with due care, he recklessly, carelessly, and negligently ran into her. Judgment was also recovered in another action for the same cause, under a declara- tion in case similar to the one in contro- versy, except that the averments of assault were omitted. Held, that the judgments were barred by defendant's discharge in bankruptcy, neither declaration showing that the wrong was intentional or mali- cious; the charge of assault and reckless- ness not denoting anything more than neg- ligent violence. In re Grout (Vt.) 1917A- 210. (Annotated.) Note. Effect of discharge in bankruptcy upon judgment for wilful and malicious injuries to person or property. 1917A-212. 7. RIGHTS, DUTIES AND LIABILITIES OF PETITIONING CREDITORS. 26. Liability of Applicant for Costs. Under Bankr. Act, 3e (1 Fed. St. Ann. 2d ed. 565), providing that when a peti- tion is filed to have a person adjudged a bankrupt, and an application is made to take charge of and hold the property of the alleged bankrupt prior to the adjudi- cation and pending a hearing on the peti- tidn, the appellant shall file a bond with sureties conditioned for the payment, in case the petition is dismissed, of all costs and expenses and damages occasioned by the seizure, taking, and detention of the property, and that if such petition be dis- missed or withdrawn the respondent shall be allowed all costs, counsel fees, expenses, and damages occasioned by such seizure, taking, or detention, if no bond is given, or if a bond be given and it proves to be inadequate, the applicant for the appoint- ment of the receiver is liable, and inde- pendent of the bond can be compelled to pay the costs and expenses of the receiver- ship. T. E. Hill Co. v. United States Fidelity, etc. o. (111.) 1917E-78. 27. Requiring Additional Bond. If at any time it becomes apparent that a bond given upon the application for the appoint- ment of a receiver in a bankruptcy pro- ceeding under Bankr. Act, 3c (1 Fed. St. Ann. 2d ed. 565), is insufficient to indem- nify the alleged bankrupt for all damages growing out of the seizure and detention of the property, he has the right to apply to the court to require the creditor who secured the appointment of the receiver to give an additional and sufficient bond. T. E. Hill Co. v. United States Fidelity, etc. Co. (111.) 1917E-78. 28. Indemnity to Bankrupt. Upon the appointment of a receiver on the applica- tion of a creditor of an alleged bankrupt under Bankr. Act, 2, cl. 3 (1 Fed. St. Ann. 2d ed. 552), the alleged bankrupt can be indemnified only by the provisions of sec- tion 3e, and the bond there required to be given is the only bond he can look to to recover his damages and expenses upon the discharge of the receiver. T. E. Hill Co. v. United States Fidelity, etc. Co. (111.) 1917E-78. 29. Words and Phrases "All Damages." In a bankruptcy proceeding, one of the pe- titioning creditors applied for and pro- cured the appointment of a receiver. On February 10th the bankruptcy petition was dismissed. On February 13th an ap- peal was allowed upon the petitioners giving bond in the sum of $5,000; the bond reciting that if the petitioning credi- tors prosecuted their appeal with effect and answered "all damages and costs" the obli- gation was to be void. On February 14th an assignee under the voluntary assign- ment act applied to the bankruptcy court for a rule on the receiver to. turn over the property of the alleged bankrupt to him. This application was denied, by an order which recited the fact that an appeal had been allowed from the order dismissing the petition, without prejudice to a renewal of the application if the appeal should not be prosecuted with effect. It is held that, the bond on appeal did not operate as a super- sedeas bond, and the surety was not liable for the bankrupt's damages from the re- ceivership, as there was nothing to indi- cate that it was intended that the appeil bond should cover the expenses and dam- ages occasioned by the continuation of the receivership, there was no occasion for a supersedeas, as, the receiver not having been discharged, there was nothing to be superseded, the penalty of the bond did not in itself indicate that the bond covered mere than the ordinary costs and expenses of the appeal, especially as the penalty was fixed before the application for the dis- charge of the receiver was made and de- BANKS AND BANKING. Ill nied, and the expression in the bond, "all damages and costs," evidently meant such damages and costs as were incidental to the appeal. T. E. Hill Co. v. United States Fidelity, etc. Co. (111.) 1917E-78. (Annotated.) Note. Improbable testimony by bankrupt. 1917B-1096. 8. CRIMES AGAINST BANKRUPTCY LAW. 30. Concealing Assets. Bankr. Act July 1, 1898, c. 541, 29b, 30 Stat. 554 (Fed. St. Ann. 1912 Supp. p. 646), provides that a person shall be punished by imprison- ment for not to exceed two years on con- viction of having knowingly and fraudu- lently concealed while a bankrupt, or after his discharge, from his trustee any of the property belonging to his estate in bank- ruptcy. Cr. Code section 332 (Act March 4, 1909, c. 321, 35 Stat. 1152 [Fed. St. Ann. 1909 Supp. p. 495]), declares that whoever commits any act constituting an offense de- fined in any law of the United States, or aids, abets, counsels, demands, induces, or procures its commission, is a principal, and section 335 provides that all offenses which may be punished by death or imprison- ment for a term exceeding one year shall be deemed felonies. It is held that an in- dictment charging the president and man- ager of a bankrupt corporation with know- ingly and fraudulently aiding and abetting the concealment of its assets charged a fel- ony. Kaufman v. United States (Fed.) 19I6C-466. 31. Where an alleged concealment of assets of a bankrupt corporation begins before the appointment of a trustee and continues after such appointment, it con- stitutes a concealment from him, within Bankr. Act July 1, 1898, c. 541, 29b, 30 Stat. 554 (Fed. St. Ann. 1912 Supp. p. 646), making such concealment a felony. Kauf- man v. United States (Fed.) 1916C-466. 32. Concealment of Assets. Bankr. Act July 1, 1898, c. 541, 29b, 30 Stat. 554 (Fed. St. Ann. 1912 Supp. p. 646), provid- ing that a person shall be punished, etc. on conviction of the offense of having know- ingly and fraudulently concealed, while a bankrupt, or after his discharge, from his trustee any of the property belonging to his estate in bankruptcy, applies only to one who has been adjudicated a bankrupt, and not to one guilty of aiding and abet- ting the bankrupt in knowingly and fraud- ulently concealing its assets. Kaufman v. United States (Fed.) 1916C^66. 33. In a prosecution of the president and manager of a bankrupt corporation for aiding and abetting the concealment of its assets from its trustees, evidence held to sustain a conviction. Kaufman v. United States (Fed.) 1916C-466. 34. Abetting Concealment of Assets. In a prosecution of the president and man- ager of a bankrupt corporation for aiding and abetting the concealment of its assets from its trustee, the fact that there is no evidence that defendant was holding the moneys under an agreement with the bankrupt to do with them what it requested does not impair the govern- ment's case. Kaufman v. United States (Fed.) 1916C-466. 35. Burden of Proof. While the burden of proving the concealment of assets by a bankrupt is upon the trustee, he is not re- quired to produce positive proof of an agreement to conceal, followed by proof that the property was actually abstracted, and such proof is usually established by presumptions drawn from the facts. In re Graning (Fed.) 1917B-1094. 36. The bankrupts utterly failed to give any satisfactory or reasonable explanation as to what became of the money, and the court erred in refusing to adjudge them in contempt for failing to restore it to the estate. In re Graning (Fed.) 1917B-1094. (Annotated.) BANKS AND BANKING. 1. Banking Business in General, 111. 2. Regulation and Control, 112. 3. Officers and Agents, 113. a. In General, 113. b. Criminal Liability, 113. 4. Stock and Stockholders, 113. 5. Deposits, 114. a. In General, 114. b. Joint Deposit and Right of Sur- vivorship, 114. c. Special Deposit, 115. d. Withdrawal, 115. e. Set-off of Deposits Against Debt, 115. f. Action to Recover Deposit, 116. g. Recovery of Payments, 116. 6. Loans. 116. 7. Collections, 117. 8. Insolvency, 117. 9. Savings Banks, 118. 10. National Banks. 118. See Escrow, 2-8. Garnishment of debtor's deposit of an- other's money, see Garnishment, 1, 5. Deposit in name of donee, see Gifts, 10. Evidence to show payment of draft, see Payment, 8-10. Personal liability of commissioner. See Public Officers, 61. Personal liability of State Banking Board, see Public Officers, 62. National Banking Act, controls as to usury, see Usury. 4. 1. BANKING BUSINESS IN GENEHAL. 1. Power to Guarantee. There is no provision in either our state banking laws or in the federal banking laws that either 112 expressly or by implication empowers such banks to guarantee the payment of a debt of a third party, solely for his benefit, and any such agreement when attempted by them is ultra vires, and void, and is not binding upon such bank when made by its cashier, since such cashier is not au- thorized to bind such bank by an agree.- ment that is ultra vires as to such bank. Cottondale State Bank v. Oskamp Nolting Co. (Fla.) 1916D-564. (Annotated.) 2. Ultra Vires Guaranty Estoppel. A customer of defendant bank, having se- cured a contract to install electric fixtures in a federal building, purchased the fix- tures from plaintiffs assignor on the rep- resentation that defendant bank could guarantee payment. Defendant sent plain- tiff's assignor a telegram, agreeing to guarantee the contractor's bill to the ex- tent of $2,000, and, on receiving a letter in which plaintiffs assignor expressed doubts as to the legality of the bank's guaranty, replied that it had taken secur- ity and was in a position to make the guaranty; that its ordinary telegraphic guaranty was the usual order of business; was accepted by defendant's New York correspondent and other banks; that the doubt of plaintiffs assignor as to its legal- ity was "too full a statement"; and that the telegram was a guaranty in fact. Plaintiffs assignor thereupon furnished the fixtures and obtained a judgment against the contractor for $1,724, which it was unable to collect. Held, that, there being nothing in the statutes granting power to banks to make guaranties of that char- acter or prohibiting them from doing so, plaintiffs assignor having acted thereon to his injury, the bank was estopped to deny liability on the ground that the guaranty was ultra vires. Creditor's Claim, etc. Co. v. Northwest Loan, etc. Co. (Wash.) 1916D-551. (Annotated.) 3. Validity of Contract of Guaranty. A guaranty made by a bank, without con- sideration, of an account in which it has no interest is not binding. Mackintosh v. Bank of New Brunswick (N. Bruns.) 1916D-566. (Annotated.) Note. Liability of bank on contract of guar- anty. 19i6D-554. 2. REGULATION AND CONTROL. 4. State Supervision. It is the duty of a state banking board to require a bank to remove objectionable securities where, in its opinion, the safety of the depositors requires it. Youmans v. Hanna (N. Dak.) 1917E-263. 5. Review of Order of Board. If a banker feels aggrieved at the action of the state banking board in requiring him to remove objectionable securities, he should applv to the courts to have such order set DIGEST. 1916C 1918B. aside under the provisions of paragraph 3, { 5145, Comp. Laws N. Dak. 1913. Unless this is done, such order will remain in force and be effective. Youmans v. Hanna ' (N. Dak.) 1917E-263. 6. Ordering Removal of Objectionable Securities. An order of the state banking board requiring the Savings Deposit Bank, of Minot, to remove objectionable securi- ties, and closing the bank on account of the failure so to do, held to have been lawful and valid. Youmans v. Haiina (N. Dak.) 1917E-263. 7. Powers of State Officers. The legisla- ture, in enacting section 3001, Rev. Codes Idaho, making it the duty of the bank com- missioner to make an examination of state banks, imposed such duty for the benefit and protection of the depositors as well as the public. State v. American Surety Co. (Idaho) 1916E-209. (Annotated.) 8. Arbitrary power is not unconstitution- ally conferred upon the state superintend- ent of banks and banking, contrary to U. S. Const. 14th Amend, by the provi- sions of Ohio Gen. Code, 6373-1 to 6373-24, which require that official, as a condition of granting the license that such statute makes a condition precedent to dealing in corporate or quasi corporate securities, to be satisfied of the good re- pute in business of the applicant and its selling agents, and empower him to re- voke the license or to refuse to renew it upon ascertaining that the licensee "is of bad business repute, has violated any pro- vision of the act, or -has engaged, or is about to engage, under favor of such li- cense, in illegitimate business or fraudu- lent transactions," since there is a pre- sumption against wanton action on his part, and the statute also affords judicial review of his action in cases where there may be a dispute of fact. Hall v. Geiger- Jones Co. (U. S.) 1917C-643. (Annotated.) 9. Banking Commissioner Status and Powers. Under Laws Ky. 1912, c. 4, 2, providing for a banking commissioner and prescribing his powers and duties, the com- missioner is not a "receiver" nor an "as- signee for the benefit of creditors," the powers of a receiver being limited by the appointing court, and of the assignee by the powers and rights of his assignor, but those of the commissioner are limited only by the statute. American Southern Nat. Bank v. Smith (Ky.) 1918B-959. 10. Power to Regulate. Banks are proper subjects of regulation by the po- lice power, since they are the chief re- positories of the money of the country, and their solvency should be- safeguarded. American Southern Nat. Bank v. Smith (Ky.) 1918B-959. Not. Bank examiners, 1916E-219. BANKS AND BANKING. 113 3. OFFICERS AND AGENTS. a. In General. 11. A bank is held not to be bound by a contract signed by its manager as such. Griffin v. Union Savings, etc. Co. (Wash.) 1917B-267. 12. Unauthorized Act of Agent Notice to Third Person. A person who knows that the manager of a branch bank is per- sonally interested in a transaction where- in he attempts to bind the bank by a con- tract of guaranty is put on inquiry as to the extent of his powers. Mackintosh v. Bank of New Brunswick (N. Bruns.) 1916D-566. b. Criminal Liability. 13. Evidence of Insolvency. In the prosecution of a bank cashier for accept- ing deposits knowing the bank was in- solvent, evidence by the receiver as to whether certain overdrafts were collec- tive is erroneously excluded. Skarda v. State (Ark.) 1916E-586. 14. Receiving Deposit When Insolvent. A cashier who, pending a decision of the board of directors to liquidate the bank because of its financial condition ; receives all deposits offered, but with intent to secure their return to the depositors keeps the same separate rom the funds of the bank by pinning the money received from each depositor to the deposit slip and placing the same in a box, does not re- ceive any deposit in violation of the stat- ute, where, after the appointment of a receiver, the identical money is returned to each depositor with a single exception, and where the failure of that depositor to call for and receive his deposit results from his failure to receive a notice to call at the bank and receive the de- posits. Sively v. State (Miss.) 1917B- 1075. ' (Annotated.) 15. Variance as to Deposit. That an indictment of a bank cashier for accept- ing deposits, knowing the bank was in- solvent, alleged the deposit of money, while the proof showed a deposit of a check, constitutes no variance. Skarda v. State (Ark.) 1916E-586. 16. An indictment against a bank cash- ier for accepting deposits, knowing the bank was insolvent, alleging a deposit of money, sufficiently describes the deposit of a check drawn upon the bank by a de- positor. Skarda v. State (Ark.) 1916E- 586. 17. When Bank is Insolvent. Under Kirby's Ark. Dig. 1814, forbidding an insolvent bank to receive deposits, a bank is insolvent if, under ordinary circum- stances, it is unable to raise the money to pay its debts or deposits as they become due and are presented for payment in the 8 ordinary course of business. Skarda v. State (Ark.) 1916E-586. 18. Description of Deposit. An indict- ment against a .bank cashier for ac- cepting deposits knowing the bank was insolvent, alleging a deposit of $55 of gold ; silver, and paper money, but not stating that it circulated as money or was of value, charges an offense under Kirby's Ark. Dig. 1814, forbidding an insolvent bank to receive on deposit any money, bank bills, or notes or United States treasury notes, gold, or silver cer- tificates or currency or other notes, bills, or drafts circulating as money or cur rency. Skarda v. State (Ark.) 1916E- 586. 19. Proof of Authority of Bank Officer. In the prosecution of a bank cashier for accepting deposits, knowing the bank was insolvent, an allegation that he was cash- ier when the deposit was made is sus- tained by proof that he had been elected cashier and remained in the bank osten- sibly as such, notwithstanding that his assistant was actually in charge. Skarda v. State (Ark.) 1916E-568. 20. An indictment against a bank cash- ier for accepting deposits, knowing the bank was insolvent, need not, in terms, allege that defendant received the money as cashier, when it otherwise appeared from the indictment. Skarda v. State (Ark.) 1916E-586. 21. Proof of Insolvency of Bank. To sustain the conviction of a bank cashier for accepting deposits, knowing the bank was insolvent, the state must show the insolvency, and that the officer had knowl- edge thereof, and it is proper to show the nature of the bank's assets and liabilities, although such proof tends to show the commission of the offense by the receipt of other deposits. Skarda v. State (Ark.) 1916E-586. 22. In the prosecution of a bank cashier for accepting deposits knowing the bank was insolvent, a complaint for the ap- pointment of a receiver, introduced to show insolvency, is inadmissible as hear- say. Skarda v. State (Ark.) 1916E-586. Notes. Intent as element of offense of receiv- ing deposit in insolvent bank. 1917B 1081. Criminal liability of officer of insol- vent bank for receiving deposit tnerein consisting of check on same bank. 1916E- 592. 4. STOCK AND STOCKHOLDERS. 23. Sale of Assets of Bank Transac- tion Sustained. The purchase of the con- trolling stock in the said bank by certain of the defendants after it has been closed 114 DIGEST. 1916C 1918B. held to have been a valid and legal trans- action. Youmans v. Hanna (N. Dak.) 1917^263. 5. DEPOSITS, a. In General. 24. What Constitutes Deposit. Where the holder of a check drawn on a bank by a depositor presented it to the bank and demanded and was paid a part there- of in cash, receiving a deposit slip show- ing a deposit to his credit for the balance, the transaction constitutes a receipt of the deposit within Kirby's Ark. Dig. 1814, forbidding an insolvent bank to receive deposits. Skarda v. State (Ark.) 1916.&-586. . (Annotated.) 25. Interest on Deposits Effect of In- solvency. A receiver of an insolvent bank who obtains judgment on a demand note given by a depositor cannot complain because the court disallowed interest on the check balance of the .deposit and charged interest on the savings balance, a though the deposit agreement therefor remained in force; for, if it remained in force, the allowance was proper, while, it the agreement was broken by the insol- vency, the allowance of the legal rate of interest, which was in excess of the con- tract rate, should have been made. Will- iams v. Johnson (Mont.) 1916D-595. 26. Payment of Depositor's Note. Since the relation of debtor and creditor exists between a bank and its depositor, that a depositor makes a note payable at a bank in which he has funds does not constitute the bank his agent, to pay it. Baldwin's Bank v. Smith (N. Y.) 1917A-500. 27. Money deposited becomes part of the bank's general funds, and the bank impliedly contracts to pay its depositors' checks, acceptances, notes made payable at the bank, and the like to the amount of his credit, but the payment is made out of the funds of the bank, not of the depositor. Baldwin's Bank v. Smith (N. Y.) 1917A-500. 28. Relation of Bank Deposit as Trus- tee. Where one makes a deposit in his name as trustee, that designation does not change his true relation to the fund, which may be established. State B'ank- ine Com'r. v. E. Jossman State Bank (Mich.) 1917C-1203. b. Joint Deposit and Right of Survivor- ship. 29. A joint ownership, with the incident of survivorship attaching as a matter of law, may be created in a bank deposit by agreement between donor and donoe. Kennedv v. MeMurray (Cal.) 1916D-515. (Annotated.) 30. Notwithstanding Acts TVnn. 1899, e. 94, 8, subd. 5, declaring that a promis sory note may be made payable to one or some of several payees, a certificate of deposit payable to a husband or wife, naming them, must, in view of the fact that the husband used the word "or" as synonymous with "and," be construed as payable to the husband and wife. Smith Y. Haire (Tenn.) 1916B-529. (Annotated.) 31. A general finding that one of the alleged owners of a bank deposit was sole owner at his death was controlled by spe- cial hndings as to the execution of an agreement between the parties constitu- ting them joint owners of the deposit, with the incident of survivorship attach- ing as a matter of law. Kennedy v. M Murray (Cal.) 1916D-515. (Annotated.) 32. Evidence held to show that a father, in executing an instrument prepared by his savings bank, intended to create a joint tenancy in the ueposit with his daughter to which the right of survivor- ship should attach. Kennedy v. M. -Mur- ray (Cal.) 1916D-515. (Annotated.) 33. In view of the fact that joint sav- ings accounts are largely opened by near relatives so that the survivor shall take the fund, where such an account was opened by father and daughter, an agree- ment as to the nature of their interests, executed by them on a form provided by the bank for its own protection, is pre- sumed a valid agreement between the parties furnished by the bank at their re- quest, creating a joint ownership to which the legal incident of survivorship at- tached. Kennedy v. McMurray (Cal.) 1916-515. (Annotated.) 34. The mere fact that a bank deposit is made by one person in the name of him- self and another is not conclusive as to his intention thereby to create such a joint ownership in the fund that the inci- dent of survivorship will attach thereto as a matter of law, the absence of a declara- tion of intention leaving the matter for judicial determination. Kennedy v. Mc- Murray (Cal.) 1916D-515. (Annotated.) 35. Where deceased deposited funds in bank under an instrument signed by him- self and defendant, his daughter, declar- ing that such funds and those thereafter to be deposited were and should be joint between the parties as to time, title, and possessio^ that they were the separate property of neither, and were payable to either, and that the receipt of either therefor should be an acquittance of the bank as to the other, on deceased's death, defendant is entitled to the fund on de- posit as against his personal representa- tive; such a written instrument being con- clusive of deceased's intention to create a joint ownership, the right of survivorship BANKS AND BANKING. 115 following as a legal incident, and so not needing to be expressed. Kennedy v. McMurray (Gal.) 1916D-515. (Annotated.) 36. That a husband who had a certifi- cate of deposit made payable to himselH and wife retained it in his possession does not show a reduction to possession de- stroying the wife's rights of survivorship. Smith v. Haire (Tenn.) 1916D-529. (Annotated.) 37. Where a husband who had a certifi- cate of deposit made payable to himself and wife made a will carrying with it dis- position of such certificate, the execution of the will, which instrument was am- bulatory and did not speak until the hus- band's death, did not amount to a reduc- tion of the chose in action to possession, destroying the wife's right of survivor- ship. Smith v. Haire (Tenn.) 1916D-529. (Annotated.) Note. flights of parties to joint deposit in bank. 1916D-519. c. Special Deposit. 38. What Constitutes. Where owner of savings account informed cashier that draft deposited was for purpose of pay- ing contractor for building house and re- fused to let it be credited to her account, whereupon the cashier gave her a special receipt bearing the words, "Sp. Dept.," the deposit is a special deposit, and the money was charged with a trust in favor of the contractor, and the bank does not take title to the proceeds of the draft. Sawyer v. Conner (Miss.) 1918B-388. (Annotated.) 39. Eights as to Special Deposit Prior- ity. In such case, the depositor is en- titled to a preference against the receiver of the bank for the special deposit. Sawyer v. Conner (Miss.) 1918B-388. 40. A deposit in a bank is not a special deposit, where the banker is allowed to loan out or to use the money deposited. A special deposit involves safe-keeping merely, and the return of the identical money or articles deposited. State v. Bicklord (N. Dak.) 1916D-140. 41. What Constitutes Special Deposit. A special deposit is, a bailment of certain specified property, which can be and is to be identified and returned. State v. Bick- ford (N. Dak.) 1916D-140. 42. A special deposit as used in para- graph 14 of section 111, Rev. Codes N. Dak., 1905, implies the placing of money in a bank for safe-keeping, so that the banker is a bailee, and must keep the identical money without mingling it with the other funds of the bank, to be re- turned in kind to the state treasurer or such person or. persons as he mav direct. State v. Bickford (N. Dak.; 1916D-140. d. Withdrawal. 43. Partnership Deposit Power of One Partner to Draw. Funds deposited in a bank to the credit of a partnership may be paid out on checks signed with the partnership name by one of the partners, since each of the partners is the agent for the partnership. Gish Banking Co. v. Leachman's Adm'r (Ky.) 1916D-525. 44. Joint Deposit How Withdrawn. Where funds are deposited in a bank .to the joint account of a husband and wife, the bank cannot, without special author- ity? P a J them out on checks signed by the wife alone. Gish Banking Co. v. Leach- man's Adm'r (Ky.) 1916D-525. (Annotated.) 45. Deposit in Eepresentatlve Capacity Notice of Want of Power. Where per- sons, as executors, make a deposit in a bank, thd representation contained in such act that they are executors does not merely charge it with knowledge that the money belongs to the estate, and put it on inquiry as to the depositors being exe- cutors, but may, till it receives notice of its falsity, be relied on by it in paying out the funds on their orders as executors. Holden v. Farmers, etc. Nat. Bank (N. H.) 1917E-23. 46. A bank in which executors, as such, deposit money, is not liable to the estate for the part thereof with which they as executors pay off a mortgage held by it on the property ' of one of them, where, for all it knew, this was a legitimate pay- ment by them; it not being bound to over- see the execution by them of their trust. Holden v. Farmers etc. Nat. Bank (N. H.) 1917E-23. 47. Diligence Eequired. A bank which pays out money on the order of others than the depositor, on their false repre- sentation that they are his executors, does so at its risk. Holden v. Farmers, etc. Nat. Bank (N. H.) '1917E-23. e. Set-off of Deposits Against Debt. 48. Set-off of Deposit Against Debt to Insolvent Bank. In an action by a re- ceiver, upon a note due an insolvent bank the maker has a right to set off against the note money on deposit in the bank to his credit at the time the receiver was appointed, notwithstanding the note was not then due, and notwithstanding the bank had pledged it to secure the pay- ment of a debt which it owed, and which was paid out of proceeds of other securi- ties pledged at the same time, and the note returned to the receiver. Williams v. Burgess (W. Va.) 1917C-1185. (Annotated.) 49. A depositor who is indebted to a bank on a demand note in excess of his deposit, is entitled to his discharge on 116 payment of the difference, notwithstand- ing the insolvency of the bank, and this does not give him a "preference" over any other creditor. Williams v. Johnson (Mont.) 1916D-595. 50. Deposits of one in an insolvent bank and his notes to the bank may be set off against each other against notes in the hands of the bank which are not yet due. Hence depositors who were indebted to the bank in excess of the deposits cannot claim dividends. State Banking Com'r v. E. Jossman State Bank (Mich.) 1917C- 1203. (Annotated.) 51. When the debt of an insolvent bank, thus secured, has been paid out of the proceeds of a portion of the securi- ties, the remaining ones become assets of the bank to be administered by the re- ceiver, and they are subject to the right of set-off in favor of the obligors thereon against the bank, existing at the date of the receiver's appointment. Williams v. Burgess (W. Va.) 1917C-1185. (Annotated.) 52. That the proceeds of a note, thus deposited as security, would have been consumed in payment of the debt, if the pledges had collected and applied the securities as they became due, does not affect the right of set-off, after payment of the debt and return of the note to the receiver of the pledger. Williams v. Bur- gess (W. Va.) 1917C-1185. (Annotated.) 53. Necessity of Demand. No demand is necessary for a deposit in an insolvent bank in order to set it off against a note of the depositor in the hands of the receiver. First National Bank v. Nye County (Nev.) 1917C-1195. (Annotated.) Notes. Lien or set-off of insolvent bank against deposit for debt of depositor not yet due. 1917C-1205. Right of depositor in insolvent bank to set off deposit against debt to bank. 1917C-1187. f. Action to Recover Deposit. 54. Equitable Lien on Deposit. In an action against banks to recover deposits held by them in satisfaction of notes given by an insolvent depositor, a claim of certain defendants to an equitable lien created on the deposits by an oral agree- ment that the depositor should maintain in its deposit account a balance equal to at least 20 per cent of its discounted notes is properly disallowed, where it was not agreed that the banks should have an option to appropriate the deposits to pay- ment of discounted notes, or that they had attempted to make such an appropriation before the appointment of receivers for the insolvent, or that it had been agreed that DIGEST. 1916C 1918B. they should have a right to hold such de- posits as collateral for discounted notes, or that any penalty was to be paid for failure of the corporation to keep such 20 per cent on deposit. Blum Bros. v. Girard National Bank (Pa.) 1916I>-609. 55. Money Wrongfully Paid Out. One to whom a bank is liable on a deposit may maintain suit therefor without demand; it having paid it out on the order of others, and claiming that they are pro- tected thereby. Holden v. Farmers, etc. Nat. Bank (N. H.) 1917E-23. g. Recovery of Payments. 56. Joint Deposit Unauthorized Pay- ment by Bank Liability. Where funds which were deposited to the joint account of the husband and wife, but which were the sole property of the husband, were paid out on the checks signed by the wife alone, the husband could recover the en- tire amount of such payments from the bank, except those of which he had re- ceived the benefit. Gish Banking Co. v. Leachman's Adm'r (Ky.) 1916-525. (Annotated.) 6. LOANS. 57. A bank is authorized to lend its money, but not its credit. Cottondale State Bank v. Oskamp Nolting Co. (Fla.) 1916D-564. (Annotated.) 58. The rule, upholding the liability ol a bank which loaned money to another bank in excess of the borrower's charter powers and accepted a pledge of assets in security, to return such assets, without re- turn of the money loaned, is the same regardless of how the creditor bank comes into court. American Southern Nat. Bank v. Smith (Ky.) 1918B-959. (Annotated.) 59. A bank which lends money to an- other bank in excess of the borrower's charter powers cannot claim the right to be placed in statu quo, though it had no actual notice of the charter limitation, since the doctrine of constructive notice of such limitations applies. American Southern Nat. Bank v. Smith (Ky.) 1918B-959. (Annotated.) 60. Exceeding Debt Limit Effect. A bank which lends money to another bank in excess of the borrower's charter powers cannot defeat recovery by the banking commissioner of assets" pledged to secure such loan, on the ground that the contract is whollv void, and neither party can ob- tain relief under it, since the contract was merely in excess of charter powers, and not outside of the corporation purposes. American Southern Nat. Bank v. Smith (Ky.) 1918B-959. (Annotated.) Note. Construction of debt limit provision in charter of private corporation. 1918B- 9G6. BANKS AND BANKING. 117 7. COLLECTIONS. 61. Consideration for Agreement to Col- lect. Where a bank takes notes for col- lection in the usual course of business without making any charge therefor, the general benefit from such business is suffi- cient consideration for its agreement to collect. Citizens Sav. Bank, etc. Co. v. Northfield Trust Co. (Vt.) 1918A-891. 62. The rule that a bank to which a note was sent for collection must pro- test it and give notice of dishonor is a rule of the law merchant, and not a cus- tom, and need not be stated in the agreed statement of facts; but the sender of the note can rely thereon, unless the bank shows a particular custom of collecting, which was known to the sender. Citi- zens Sav. Bank, etc. Co. v. Northfield Trust Co. (Vt.) 1918A-891. (Annotated.) 63. Where an action against a bank for failing to protest and give notice of dis- honor of a note sent to it for collection is tried on an agreed statement of facts, it is for the defendant to show any special instructions as to the collection. Citizens Sav. Bank etc. Co. v. Northfield Trust Co. (Vt.) 1918A-891. (Annotated.) 64. Protest and Notice of Dishonor. Where a note was sent to a bank for col- lection without 'any instructions as to the means of collection, the bank must use all ordinary legal means for collecting irom any parties liable thereon, which in- clude protest and giving notice of dis- honor. Citizens Sav. Bank, etc. Co. v. Northfield Trust Co. (Vt.) 1918A-891. (Annotated.) 65. Application of Deposit. Sending a note to a bank where made payable and in which the maker has funds is, in effect, an order or draft on the banker in favor of the holder for the amount of the note, and the maker need not direct that it be charged to his account. Baldwin's Bank v. Smith (N. Y.) 1917A-500. 66. Relation of Bank to Holder. The' holder of a note, by sending it to the uank, where it is made payable, for col- lection and remittance, constitutes the bank its agent to collect the note and re- mit the proceeds. Baldwin's Bank v. Smith (N. Y.) 1917A-500. Note. Duty of bank receiving paper for col- lection to protest same and give notice thereof in absence of express instruction. 1918A-892. 8. INSOLVENCY. 67. When Bank is "Insolvent." Within the meaning of Ga. Penal Code (1910) 204, the insolvency of a bank is that condition in which its entire property and assets are insufficient to pay all of its debts. (a) If the entire property and assets of a bank are sufficient to discharge its liabilities, it is not insolvent, within the meaning of Penal Code (1910) 204, al- tnough it may not be able to pay its debts immediately as they become due, or to pay its depositors on demand. (b) Ga. Civil Code (1910) 2306, which provides for the winding up of a bank by the state bank examiner under certain cir- cumstances therein declared, does not fur- nish a definition of insolvency to be ap- plied in construing Penal Code (1910) 204. Griffin v. State (Ga.)~19l6C-80. (Annotated.) 68. In determining whether a bank is insolvent under Kirby's Ark. Dig, 1814, forbidding insolvent banks to accept de- posits, the capital stock and surplus must be considered as resources and not as lia- bilities. Skarda v. State (Ark.) 1916E- 586. 69. "May" as Meaning "Must." Th e word "may," as used in Idaho Rev. Codes, 3005, providing that, when the bank commissioner has reasonable cause to con- sider a bank insolvent, he may immedi- ately apply for a receiver, must be con- strued to mean "must," where to construe it otherwise would give the bank commis- sioner such an absolute power that he would be incapable of an abuse of dis- cretion. State v. American Surety Co. (Idaho) 1916E-209. 70. Presumption of Fraud. Properly construed, Ga. Penal Code (1910) 204, which provides for raising a presumption of fraud against the president and direc- tors of an insolvent bank chartered in this ' state, is not violative of the Fourteenth Amendment of the Constitution of the United States, on the ground that it abridges the privileges and immunities of citizens of the United States, or deprives the president and directors of an insol- vent bank of the equal protection of the laws, or deprives them of life, liberty, or property without due orocess of law, on the ground that similar provisions have not been made in regard to the president and directors of other corporations than banks. That section is not violative of the Four- teenth Amendment of the Constitution of the Uniced States for any of the reasons set out in the first question by the court of appeals. Griffin v. State (Ga.) 1916C- 80. 71. Interest on Deposits. Since the effect of the insolvency of a bank is to make deposits, whether subject to check or in savings account for which a pass book is issued, due and actionable, a de- positor indebted to the bank on a demand note in excess of the deposits of both 118 DIGEST. 1916C 1918B. classes is entitled, under Mont. Rev. Codes, 6043, to interest on the deposits from the aate of the suspension and declared insol- vency to the date of the judgment on the note, less the amount of the deposits allowed as a set-off. Williams v. Johnson (Mont.) 1916D-595. 72. Powers of Commissioner. The re- ceiver, or the banking commissioner who has taken charge of an insolvent bank, may disaffirm a contract under which the bank borrowed money in excess of its char- ter powers and pledged certain assets, and sue to recover the assets without return- ing the money borrowed, since he repre- sents the creditors of the bank. American Southern Nat. Bank v. Smith (Ky.) 191SB-959. (Annotated.) 73. The right of the banking commis- sioner in charge of an insolvent bank tc disaffirm an ultra vires contract by which the bank borrowed money in excess of its powers and pledged assets, and to sue to recover the assets, cannot be defeated on the ground that the bank received full value when the loan was made, so that its assets were not impaired and creditors could not complain. American Southern Nat. Bank v. Smith (Ky.) 1918B-959. (Annotated.) 74. Under Ky. Laws 1912, c. 4, 2, creating the office of banking commis- sioner and prescribing his duties and powers, the commissioner, on taking charge of an insolvent bank, may sue to re- cover its assets, the purpose of the act being to properly administer the affairs of insolvent banks, in doing which collec- tion of assets is necessary. American Southern Nat. Bank v. Smith (Ky.) 1918B-959. Note. When bank is "insolvent." 1916C-85. 9. SAVINGS BANKS. 75. What Constitutes Savings Bank. A bank organized under Mont. Rev. Codes, 3923-3944, with a capital stock repre- sented by shares transferable on the books, and governed by directors, and au- thorized to engage in various kinds of business, not including the business of a savings 'institution, except that deposits may be received and held by it for accu- mulation at a rate of interest agreed on, with the right to divide the profits among the stockholders, who are liable for the debts incurred by the bank to the extent of the value of the shares held by them, is a commercial bank, and not a "savings bank," within sections 3945-3958, though it includes in its name the words "sav- ings bank." Williams v, Johnson (Mont.) 1916D-595. 76. Nature of Institution. A "savings bank" has no capital stock, and its incor- porators have no property interest in the funds deposited, but their sole office is to manage and invest the same as trustees for the depositors, who alone are inter- ested, and entitled to the profits of the business, and it is treated as a quasi chari- table and benevolent institution. Will- iams v. Johnson (Mont.) 1916D-595. 10. NATIONAL BANKS. 77. Banks Federal Reserve Act Valid- ity. Federal Reserve Act December 23, 1913, c. 6, Ilk, 38 Stat. 262 (Fed. St. Ann. 1914 Supp. p. 272), providing that the federal reserve board may grant to national banks applying therefor, wnere not in contravention of state or local law, the right to act as trustee, executor, ad- ministrator, or registrar of stocks and bonds, under such rules and regulations as the board may prescribe, is not invalid as an attempted delegation of legislative power, in violation of Const. U. S. art. 1, 1 (8 Fed. St. Ann. 290), declaring that all legislative power shall be vested in the Congress of the United States, since it was only left to the federal reserve board as a purely administrative matter to apply .the provisions of the act to the banks which upon application are entitled to its provisions, and the legislation grant- ing the power remained that of Congress. People v. Brady (111.) 1917C-1093. (Annotated.) 78. Exclusiveness of Federal Control. National banks are instrumentalities of the feaeral government in carrying out its governmental powers, and in the con- duct of their affairs are not subject to the regulation or control of the state, in conflict with the laws of the United States; but (Jongress is the judge of the extent of powers to be conferred upon national banks, and has the sole author- ity to regulate and control their opera- tions. People v. Brady (111.) 1917C-1093. 79. Federal Reserve Act December 23, 1913, Ilk, providing that the Federal Reserve Board may grant to national banks applying therefor, "when not in contravention of state or local law," the right to act as trustee, executor, adminis- trator, or registrar of stocks and bonds under such rules as the board may pre- scribe, in view of the board's rules re- quiring the trust department of a bank, granted permission to execute trusts, to be a separate department, under the man- agement of officers whose duties shall be prescribed by the officers of the bank, that the funds, investments, etc., shall be held separate from the funds and securi- ties of the bank, that examiners appointed by the comptroller of the currency or des- ignated by the board shall make audits of BAR EXAMINATIONS BASTARDY. the cash, securities, accounts, and invest- ments of the trust department, when ex- amination is made of the banking depart- ment, reserving to the board the right to revoke permits where, in its opinion, a bank has wilfully violated its regulations or tfle laws of the state, conflicts with state laws as to state banks and trustees, and with the state's control over private property and its acquisition and disposi- tion, and hence is within the exception, "when not in contravention of state or local law," and unauthorized. People v. Brady (111.) 1917C-1093. (Annotated.) 80. Federal Reserve Act. Federal Re- serve Act December 23, 1913, Ilk, pro- viding that the federal reserve board may grant to national banks applying therefor, when not in contravention of state or local law, the right 'to act as trus- tee, executor, administrator, or registrar, etc., under such rules as the board may prescribe, is not within the power of Con- gress, as such functions belong exclusively to the states, and as the possession of such powers by national banks is not necessary to their continued existence or to their performance of governmental agencies. People v. Brady (HI.) 1917C- 1093. (Annotated.) Note. Validity and effect of Federal Eeserve Act. 1917C-1099. BAB EXAMINATIONS. ' See Attorneys, 3, 5. BARRING DOWER. See Dower, 2-11. BARRING ENTAIL. See Estates. BASTARDS. Inheritance by, see Descent and Distribu- tion, 5-7. Inheritance through, see Descent and Dis- tribution, 8. BASTARDY. Invalidity of order, relief, see Habeas Corpus, 7. Wife as witness, see Witnesses, 7. 1. Nature of Proceeding as Civil or Criminal. A bastardy proceeding which is brought under the provisions of chap- ter 5, N. Dak. Rev. Codes. 1905, although quasi criminal in its nature, is governed, in so far as its trial is concerned, by the law regulating civil actions. State v. Brunette (N. Dak.) 1916E-340. 2. Mode of Ascertaining Facts. Sec- tion 9655, N. Dak. Rev. Codes 1905, which provides that in a bastardy .proceeding and in cases of a verdict of guilty, the court "shall render such judgment as may seem necessary to secure, with the assist- ance of the mother, tne maintenance and education of such child until such time as the child is likely to be able to support itself. . . . The court may at any time upon the motion of either party upon ten days' notice to the other party, vacate or modify such judgment as junstice may re- quire" presupposes that the court shall reasonably acquaint himself with the necessities of the case. It nowhere, how- ever, provides for the method of how the information shall be obtained. The tak- ing of testimony, therefore, upon such questions and before the rendition 01 judgment is not necessary, where the sta- tion in life, age, and occupations of all of the parties interested have been fully exposed upon the trial, and especially where tne defendant takes no exception to the methods pursued by the trial court until after the rendition of the judgment. State v. Brunette (N. Dak.) 1916E-340. 3. Cross-examination of Complainant. It is not error in a bastardy proceeding to refuse to allow the complainant to tes- tiry on cross-examination as to whether she had, outside of 'the period of gesta- tion, asked the defendant to go with her to a house of prostitution. State v. Bru- nette (N. Dak.) 1916E-340. 4. Necessity of Corroboration of Com- plainant. It is not necessary to a convic- tion unaer chapter 5 of the Criminal Code of North Dakota (Rev. Codes 1905) that the testimony of the complainant should be corroborated by other evidence. State v. Brunette (N. Dak.) 1916E-340. 5. Reputation of Defendant. In a bas- tardy proceeding which is brought under the provisions of chapter 5, N. Dak. Rev. Codes 1905, evidence as to the reputation of the defendant for chastity is not ad- missible. State v. Brunette (N. Dak.) 1916E-340. 6. Proof of Promise of Marriage. It is not error in a bastardy proceeding to per- mit the complaining witness to testify that the defendant, before the acts of intercourse complained of, led her to be- lieve that they were to be married, as such e'vidence tends to show the relation- ship of the parties and is corroborative in its nature. State v. Brunette (N. Dak.) 1916E-340. 7. N. Y. Code Cr. Proc. 684, provides that neither a departure from the form or mode prescribed by the Code in respect to any pleadings or proceedings, nor any error or mistake therein, renders it in- valid unless it actually prejudices defend- ant or tends to his prejudice in respect to a substantial right. Section 861 pro- vides, relative to bastardy proceedings, tnat a person deeming himself aggrieved may appeal to the county eourt, except 120 DIGEST. 1916C 1918B. that a person executing an undertaking to obey an order of filiation and indem- nify the public as provided in section 851 cannot appeal from any other part of the order than that which fixes the weekly or other allowance to be paid. It is held that the defendant in such a proceeding arrested in a county other than that in which the warrant was issued was preju- diced in a substantial right, where he was taken before the magistrate issuing the warrant without being first taken before the magistrate of the county in which he was arrested, who indorsed the warrant, as he was thereby deprived of the right to give an undertaking in the county or his residence and secure his discharge, and was subjected to the provisions of sections 851 and 852, which would not iave been applicable if he had given an undertaking, and was denied the right to a full rehearing on an appeal to the county court. People v. Snell (N. Y.) 1917U-222. 8. Jurisdiction of Proceedings. An or- der of filiation in a bastardy proceeding is void unless all the material require- ments of the statute are substantially complied with, since the power of a judi- cial tribunal to try or inquire and ad- judge in a proceeding purely statutory is limited and confined by the statute, arifl the invalidity of the determination or ad- judication will result from action in dis- obedience to, or contraventon of, the statutory requirements, as well as from a lack of jurisdiction of the subject-matter, or of the person. People v. Snell (N. Y.) 1917D-222. 9. Liability of Father for Support. The common law did not make the father ot a bastard liable for the support of the child or its mother, and the father's lia- bility exists solely by virtue of the stat- utes. People v. Snell (N. Y.) 1917D-222. 10. Procedure tq Fix Liability Neces- sity of Compliance With Statute. The proceedings by which the liability of the father of a bastard is determined and fixed are defined and controlled exclu- sively by statute, which must be in their substance strictly and fully complied with. People v. Soell (N. Y.) 1917D-222. 11. Child Born in Wedlock. A child born in wedlock is presumed legitimate, but the presumption is not conclusive. Kennedy v. State (Ark.) 1917A-1029. 12. Testimony Insufficient to Overcome Presumption. In bastardy proceedings testimony of the mother that defendant had intercourse with her and was the father of the child, and that she had a husband living, without more, is insuffi- cient to overcome the presumption of legitimacy, and insufficient to sustain a verdict against defendant. Kennedy V. State (Ark.') 1917A-1029. 13. Necessity of Corroboration. In bas- tardy proceedings it is not necessary that the testimony of the mother be corrobo- rated. Kennedy v. State (Ark.) 1917A- 1029. 14. Jurisdiction Person Illegally Brought Within Jurisdiction. N. Y. Code Cr. Proc. 843, provides, relative to bastardy pro- ceedings, that, if the defendant reside in a county other than that in which the warrant is issued, the magistrate issuing it must direct the sum in which defend- ant shall give security, and the officer must present it to a magistrate in the city or town in which defendant resides, who must indorse a direction thereon that it be served in that county. Section 844 provides that, when the defendant is ar- rested in another county, he must be tak^n before the magistrate indorsing the warrant, or another magistrate of the same city or county, who may take from him an undertaking that he will indem- nify the county and the town or city, and every other county, town, or city against any expense, and pay the costs, or that the sureties will pay the sum indorsed on the warrant, or that he will appear and answer the charge at the next county court of the county where the warrant was issued. Section 845 provides that, when either of such undertakings is given, defendant must be discharged, and the warrant with the undertaking must be re- turned, to the magistrate granting the warrant. Section 846 provides that if defendant does not give security he must be taken before the magistrate issuing the warrant. Section 848 provides for a hear- ing by such magistrate, and section 850 for an order of filiation, and section 851 provides that defendant must pay the costs and enter into an undertaking for the child's support, and to indemnity the county and the town or city, etc., or that he will appear at the next term of the county court to answer the charge, or that the sureties will pay full indemnity. Section 852 provides for the commitment of the defendant to jail if section 851 if not complied with. Sections 854 and 855 provide for a hearing and an order of filiation when security is taken out of the county. It is held that, where de- fendant was arrested in another county and taken before the magistrate issuing the warrant without being taken before the magistrate indorsing it, the magis- trate had no power to commit defendant to jail for noncompliance with section 851, as the statute is imperative and manda- tory, and it is only when defendant has been taken before the magistrate indors- ing the warrant, and fails to give the required undertaking, that the magistrate issuing the warrant has jurisdiction to commit. People v. Snell (N. Y.) 1917D- 222. (Annotated.) BATHING RESORTS BENEFICIAL ASSOCIATIONS. 121 15. Relation of Complainant With Others Necessity of Specific Questions. It is not error to refuse to permit the complain- ing witness to testify as to presents given her by other men, when the questions asked are general and are not confined to the times in issue. State v. Brunette (N. Dak.) 1916E-340. BATHING RESORTS. Duty to keep life lines, see Negligence, 22. See Assault. BATTERY. BAWDY HOUSES. See Disorderly Houses; Prostitution. BEAVERS. Injuries by, see Animals, 4. Statute protecting beavers, see Animals, 16. BEDDING. Regulation of bedding materials, see Health, 5-8. BEER. See Intoxicating Liquors. BEES. As wild animals, see Animals, 11-13, 19. BENEFICIAL ASSOCIATIONS. 1. Validity and Construction of Contract Generally, 121. 2. The Application, 122. 3. Constitution and By-laws, 122. a. Construction, 122. b. Operation, 122. c. Amendments, 123. 4. Assessments, 123. 5. Rights of Suspended Member, 124. 6. Beneficiaries, 124. 7. Action to Recover Benefits, 124. Eights under certificate, see Conflict of Laws, 7. Suit to enjoin assessment, see Costs, 7. By-laws in conflict with insurance statute, see Insurance, 19. Action on certificate, see Limitation of Actions, 12. 1. VALIDITY AND CONSTRUCTION OF CONTRACT GENERALLY. 1. Provision Against Use of Intoxicants. Defendant's contract provided that if any holder of a benefit certificate should "be- come addicted to the excessive or intem- perate use of intoxicants" the defendant should not be liable thereon. Held, fol- lowing O'Connor v. Modern Woodmen of America, 110 Minn. 18, 124 N. W. 454, that "the excessive or intemperate use of in- toxicants," as used in this contract, means "that the conduct of a member in this respect was of such a nature, and the habit so intemperately followed, as to impair his health, mental faculties, or otherwise ren- der the insurance risk on his life more hazardous." Wising v. Brotherhood of American Yeomen (Minn.) 1918A-621. (Annotated.) 2. Insurance Contracts Effect of Sui- cide Application of Statute. Under Rev. St. Mo. 1909, 7109 et seq., providing for the organization of fraternal beneficiary associations, and Rev. St. 1899, 1408, de- claring such associations exempt from the provision of the general insurance laws of the state, and that no law thereafter passed should apply to them unless ex- pressly designated therein, Rev. St. 1909, 6945, providing that in suits on policies of insurance on life issued in that state to a citizen of that state it shall be no de- fense that the insured committed suicide, unless he contemplated such act when he applied for the policy, and that any stipu- lation in the policy to the contrary shall be void, as construed by the Missouri courts, does not apply to fraternal bene- ficiary associations. Travelers' Protective Assoc. v. Smith (Ind.) 1917E-1088. 3. Contract Limitation of Time. Where the contract of the parties prescribes a limitation of time in which to bring action, which is shorter than the statutory period, such provision, if reasonable, is valid. Such provisions are, however, in deroga- tion of law and are not especially favored, and should be construed strictly against the party invoking them. If the limitation applies only under certain conditions, such conditions must exist or it will not bar an action. Dechter v. National Council (Minn.) 1917C-142. 4. Restriction on Residence of Insured. The constitution of a fraternal society by which a member agreed in his application to be bound provided that no benefit certi- ficate should be granted to any one resid- ing outside that part of the North American continent between the northern boundary of Mexico and the fifty-fifth parallel of north latitude, and that, if a member should remove from such territory, he .should forfeit all right to any disability or death benefit. A member who had long resided in Memphis, where his wife and children continuously resided, was in Panama from October to December, 1908. and again from February to June, 1910, returning to his home in Memphis at the expiration of each of such periods. Held that, construing the constitution strictly against the insurer, and construing the provisions with regard to residence in, and 122 DIGEST. 1916C 1918B. removal from, the specified territory in pari materia, the policy was not forfeited by the member's temporary sojourn in Panama; as the word "residing" referred to the member's domicil, and implied a legal residence, and not a mere transitory existence in the prohibited territory, and the prohibited removal referred, not to a mere removal of the member's person, but to a removal of his residence. Lane v. Grand Fraternity (Tenn.) 1917A-376. (Annotated.) 5. What Constitutes Membership. Under Iowa Code 1897, 1822, defining a "frater- nal beneficiary association" as a corpora- tion, society, or voluntary association, formed for the sole benefit of its mem- bers and their beneficiaries, and having a lodge system with ritualistic form of work and a representative form of government, a fraternal association need not require members to be initiated in order to entitle them to recover on their certificates. Schworm v. Fraternal Bankers Reserve Soe. (Iowa) 1913B-373. (Annotated.) Notes. What constitutes membership in bene- ficial association. 1917B-380. Construction of restriction in contract of life or benefit insurance as to travel by or residence of insured. 1917A-381. Construction of restriction in contract of benefit insurance as to use of intoxicants by insured. 1918A-623. 2. THE APPLICATION. 6. Misstatement in Application. A bene- fit insurance certificate was not avoided by misrepresentations in the application as to the number of the applicant's brothers and sisters and the number who were dead, where the examining physician, who prepared the application, was informed and stated in the application that the ap- plicant had been absent from home for years and knew little about his family history, and where there was no purpose or attempt on the part of the applicant to deceive the company. Coplin v. Woodmen of the World (Miss.) 1916D-1295. 7. Misstatement of Name of Applicant. Where, because of the illiteracy of an ap- plicant for insurance, his parents, and other members of his family, the family name was spelled in different ways, and the applicant was known by different given or Christian names, a misstatement of his name in the application did not avoid the benefit certificate. Coplin T. Woodmen of the World (Miss.) 1916D- 1295. ' (Annotated.) 3. CONSTITUTION AND BY-LAWS, a. Construction. 8. Law Governing Insurance Contract. Where the constitution of a fraternal bene- ficiary association provides that each ap- plication for membership must be for- warded to the national secretary at the home office in Missouri, who shall refer it to the national directors, and that, if ap- proved, a certificate shall be issued by the national secretary upon which all benefits were payable there, the policy is a Mis- souri contract. Travelers' Protective Assoc. v. Smith (Ind.) 1917E-1088. 9. A Missouri association, which by its declaration, purposes, and plans was unf debt defense to pledged note, see Pledge, 2. Reformation, see Rescission, Cancellation and Reformation, 2. Effect of usury on renewal note, see Usury, 12-18. 1. CONSTRUCTION OF NEGOTIABLE INSTRUMENTS ACT. 1. Signature in Blank on Back. Under the Negotiable Instruments Law (Va. Code 1904, 2841a, subsec. 63), the pres- ence of a name on the back of a note without indication by appropriate words of an intention to be bound in some other capacity classes such signer as an in- dorser. Colley v. Summers Parrott Hard- ware Co. (Va.") 1917D-375. 2. Stipulation for Attorney's Fees. Un- der the Negotiable Instruments Law (Va. Code 1904, 2841a), and in view of the fact that at its enactment the validity of the provision of a note for attorney's fees was unsettled in this state, and in view of the purpose and policy of the Negotiable Instruments Law and of the course of de- cision prevailing in a majority of the states having substantially the same law and of the importance of the uniformity of interpretation, a provision in a promis- sory note governed by the laws of the state for a ten per cent attorney's fee if suit should be brought thereon is valid. Collev v. Summers Parrott Hardware Co. (Va.) 1917D-375. (Annotated.) 3. Chapter 81 of the Acts of 1907. chap- ter 98 A (sees. 4172-4368) of the W. Va. Code, known as the Negotiable Instru- ments Law, does not legalize contracts ex- pressly condemned and declared void by the statutes of this stat<\ nor those for- bidden by the policy of its laws. Kalcigh County Bank v. Poteet (W. Va.) 1917D- 359. (Annotated.) 4. Stipulation for Attorney's Fees. Pro- vision in a note for an attorney's fee, if it be not paid without suit, by prior de- cisions held invalid as against public policy, but not rendering uncertain the sum payable nor affecting negotiability, is not validated by the Negotiable Instru- ments Law (Ark. Acts 1913, p. 260), which by section 2 declares that provision in a note for payment of an attorney's fee shall not prevent the sum payable being a "sum certain," necessary for negotiability, and by section 5, after declaring non- negotiable an instrument whi&h contains an order or promise to do an act in addi- tion to the payment of money, and mak- ing certain exceptions thereto, provides: "But nothing in this section shall vali- date any provision or stipulation other- wise illegal." Bank of Holly Grove v. Sudbury (Ark.) 1917D-373. (Annotated.) 5. Time of Taking Effect. Negotiable Instruments Law (Vt. Acts 1912, No. 99) by the provisions of section 185 does not apply to negotiable instruments made and delivered prior to June 1, 1913. First National Bank v. Bertoli (Vt.) 1917B- 590. 6. Gaming Consideration. Chapter 81, Acts of 1907 (chapter 98a [sees. 4172- 4368], of the W. Va. Code), known as the Negotiable Instrumente Law, does not by implication or otherwise repeal, limit, or qualify, in any degree or respect, section 1 of chapter 97 (sec. 4168) of the Code, declaring void what are commonly known as gambling contracts. Twentieth Street Bank v. Jacobs (W. Va.) 1917D-695. 7. Transfer Who is "Holder" Nego- tiable Instruments Law. Rev. Stat. Mo. 1909, 10001, providing that an instru- ment is negotiated when it is transferred from one person to another in such man- ner as to constitute the transferee the holder thereof and, if payable to bearer, by the indorsement of the holder com- pleted by delivery, and section 10004, providing that a special indorsement specifies the person to whom or to whose order the instrument is to be made pay- able, and that the indorsement of such indorsee is necessary to the further nego- tiation of the instrument, do not prescribe an exclusive method by which negotiable instruments may be transferred, but only prescribe the manner in which their ucgo- BILLS AND NOTES. 127 tiability or independence of equities ex- isting against the transferor may be preserved, and in other respects the law in force prior to the passage of the Negotiable Instruments Law, of which such sections are a part, remain un- touched, except in so far as the rights of the transferee are enlarged by the terms of that section, especially in view of section 10019, providing that, when the holder of an instrument transfers it for value without indorsing it, the transfer vests in the transferee the title of the transferor, and in addition the right to the indorsement of the transferor, if omitted by accident or mistake, since "negotiated," as used in the Negotiable Instruments Law, is not equivalent to "assigned" or "transferred," in their broadest sense, nor is "holder" synony- mous with "owner" or "party in interest"; the word "negotiate" being derived from "negotiable" and, when used in connection with tfie same subject, partaking of the same meaning, and the word "holder" re- ferring to such a title as constitutes a party a holder in due course. Carter v. Butler (Mo.) 1917A-483. 2. FORM AND CONSTRUCTION. 8. A note of a corporation was signed by the corporation per secretary and treasurer, and then followed the signature of eight persons, each of whose signature was followed by the word, "director." It is held that, as the name of the corpora- tion was attested by the secretary and treasurer, it cannot be assumed that those who signed as directors did so for the purpose of attesting the signature of the corporation, and it must be assumed that they were individually liable as makers, the word "director" being mere descrip- tion. Bank of Corning v. Nimnich (Ark.) 1917D-566. (Annotated.) 9. Person Signing as Officer of Corpora- tion. Where a note is signed with the name of a corporation, followed by the names of officers, giving their official title, indicating that they are signing in their official capacity, the corporation alone 5s tion. Bank of Corning v. Nimnich (Ark.) 1917D-566. (Annotated.) 10. Note Secured by Mortgage Con- struction Together. In construing a note, a mortgage executed at the same time and as a part of the same transaction is to be considered along with the note, but that does not mean that the provisions of the mortgage become part of the note. Des Moines Savings Bank v. Arthur (Iowa) 1916C-498. 11. Construction Necessity of Consent of Holder. A promissory note, containing the provision that "all parties hereto . . . agree that this note may be extended from time to time by any one or more of us without the knowledge or consent of any of the others of us, and after such exten- sion, the liability of all parties shall re- main as if no such extension had been made," grants no power to the maker or other parties to the note to extend the time of payment without the consent of the payee or holder. First National Bank v. Stover (N. Mex.) 1918B-145. (Annotated.) Notes. Construction of extension of or agree- ment to extend time of payment of note. 1918B-157. Liability of person signing negotiable paper as officer of corporation. 1917D- 568. 3. CONSIDERATION. 12. Discharge of Other Notes. Where a promissory note is given to discharge two other notes which are surrendered to the indorser of the note given, the note is supported by consideration. Travis V. Unkart (N. J.) 1917C-1031. 13. Inadequacy of Consideration. In- adequacy of consideration is no defense to an action on a promissory note, unless there was fraud also on the part of t>he promisee. Caldwell v. Ruddy, 2 Idaho (Hasb.) 1, 1 Pac. 339, cited and followed. Harshbarger v. Eby (Idaho) 1917C-753. 14. Pre-existing Debt. A pre-existing debt is a sufficient, consideration for a note. Colley v. Summers Parrott Hard- ware Co. (Va.) 1917D-375. 15. Failure of Consideration. Where a note is not included within the conditional terms of a contract of sale of a business, but is given as the equivalent of cash for a preliminary payment, its consideration does not fail by reason of the recaption of the property by the vendor upon the vendee's default, and the vendor may still enforce it. Norman v. Meeker (Wash.) 1917D-462. (Annotated.) 16. Presumption of Consideration. Where the note sued on recites "value re- ceived," it is prima facie evidence of con- sideration, sufficient, if not rebutted, to maintain plaintiff's case. Palmer v. Blanchard (Me.) 1917A-809. 4. EXECUTION AND DELIVERY. 17. Delivery of Note. Findings by the trial court that after a joint maker signed the note it was left in the possession of Ms comaker, by whom it was altered so as to be payable to bearer, and that there- after it was delivered to and accepted by plaintiff in payment of a debt, show that the note was delivered by the first maker to the plaintiff and that he held it as payee, not as indorser. Builders Lime, etc. Co. v. Weimer (Iowa) 1917C-1174. 128 DIGEST. 1916C 1918B. 18. Conditional Delivery. A promissory note delivered by a person who has exe- cuted the same upon the express condition that such note shall not be deemed the note of the party so executing it, or as de- livered, unless it is also executed by an- other person as a comaker, cannot be en- forced by the payee against the person so executing it, unless also executed by the other person so named in the condition as a comaker. First State Bank v. Kelly (N. Dak.) 1917D-1044. 19. Delivery. As a general rule, a ne- gotiable promissory note, like any other written instrument, has no legal or opera- tive existence as such until it has been delivered in accordance with the purpose and intention of the parties. First State Bank v. Kelly (N. Dak.) 1917D-1044. 5. NEGOTIABILITY AND TEANSFER. a. Effect of Various Provisions upon Negotiability. 20. Uncertainty aa to Amount. Pro- visions of a mortgage given as security for a note executed at the same time and as a part of the same transaction, making the mortgage security for the payment of taxes and insurance by the mortgagor, but not containing any promise to pay the same, do not render the note non-negotiablo lor uncertainty in the amount payable, as such provisions in no way affect the obli- gation of the note. Des Moines Savings Bank v. Arthur (Iowa) 1916C-498. (Annotated.) 21. Provision for Discount. A promis- sory note is not rendered non-negotiable by the insertion of the following provision: "A discount of six per cent will be al- lowed, if paid in full within fifteen days from date." Farmers Loan, etc. Co. v. Planck (Neb.) 1918B-598. (Annotated.) 22. Provision for Extension of Time. A provision in a note for extending time does not render the note non-negotiable under the law merchant or the provisions of the Negotiable Instruments Law (Law N. Mex. 1907, c. 83). First National Bank v. Stover (N. Mex.) 1918B-145. 23. What Constitutes Uncertainty as to Amount. A provision in a mortgage that the mortgagor would pay the taxes on the mortgage on a certain contingency did not render the note secured non-negotiable for uncertainty in the amount payable, since it did not entitle the mortgagee to recover such taxes as a part of the indebtedness, but only made the mortgage a lien there- for. Des Moines Savings Bank v. Arthur (Iowa) 1916C-498. (Annotated.) 24. A stipulation in a note that the payee may recover any taxes on the prem- ises mortgaged as security therefor which the payee shall pay renders it non-nego- tiable for uncertainty as to the amount payable, since no one can tell what future tax levies will be. Des Moines Savings Bank v. Arthur (Iowa) 1916C-498. (Annotated.) 25. Uncertainty as to Date of Maturity. Under the Negotiable Instruments Act (Iowa Code Supp. 1907, 3060al), providing that an instrument to be negotiable "must be payable on demand or at a fixed or determinable future time," a clause in the mortgage given as security that the mort- gagee might declare the debt due for de- fault of the mortgagor did not render the note non-negotiable for uncertainty as to the time of payment. Des Moines Savings Bank v. Arthur (Iowa) 1916C-498. (Annotated.) 26. A mortgage, giving the mortgagee the right to declare the debt due without regard to whether the mortgagor is in de- fault, renders the note for whigh it is security non-negotiable for uncertainty as te the time of payment. Des Moinos Sav- ings Bank v. Arthur (Iowa) 1916C-498. (Annotated.) 27. Negotiability. A promissory note does not necessarily possess the quality of negotiability. Colley v. Summers Parrott Hardware Co. (Va.) 1917D-375. Note. Negotiability of note containing pro- vision allowing discount if paid within certain time. 1918B-600. to. Indorsement. 28. Under Iowa Code Supp. 1907, 30&0a- 191, defining a "holder" as the payee or indorsee of a bill or note who is in pos- session of it, section 3060a52, par. 4, de- fining a holder in due course and providing that at the time it was negotiated to su -h holder he must have had no notice of an infirmity, and section 3060a30, providing that an instrument is "negotiated" when it is transferred from one person to an- other in such manner as to constitute the transferee the holder thereon and that if payable to bearer it is negotiable by de- livery, while if payable to order it is nego- tiated by the indorsement of the hoMer completed by delivery, it is held that only one to whom a note has been negotiated after completion and delivery thereof is a "holder in due course," not one to whom a note payable to holder was delivered by the maker. Builders Lime, etc. Co. v. Weimer (Iowa) 1917C-1174. 29. Who is Indorsee. The fact that the first maker and two others indorsed the note before it was delivered to plaintiff did not make plaintiff an indorsee as to the other makers, even if it had been issued to the others and by them returned BILLS AND NOTES. 129 to the first maker, since in such a case the redelivery to plaintiff would have the same effect as if it was an original issue. Build- ors Lime, etc. Co. v. Weimer (Iowa) 1917C 1174. 30. The "signature," which, under Colo. Eev. St. 1908, 4494, 4526, constitutes indorsement of a note, is not the mere written name, but includes genuineness. Marks T. Munson (Colo.) 1917A-766. (Annotated.) Note. When note payable on demand is over- due as between maker and indorser. 1917B-&42. 6. PEESENTMENT AND DEMAND. 31. Acceptance Payable When Funds are Available. Where a bill of exchange was "accepted payable out of proceeds of Northwestern Fisheries Company contract when same becomes available," the appli- cation by the acceptor of a remittance constituting part of such proceeds to the amount due on the drawer's indebtedness to the acceptor, owing before fhe accept- ance, is a violation of the acceptance; "available" meaning merely "at one's dis- posal," in the absence of proof of a trade definition, while the holder of a condi- tional acceptance gets what the acceptance says he gets, even if exceeding the rights of the drawer. Schwabacher Hardware Co. v. Miller Sawmill Co. (Wash.) 1918A- 940. (Annotated.) 32. Failure to Present for Payment. The failure to make demand at the time and place of payment agreed upon does not exonerate the debtor, whose readiness to pay at the specified time and place is merely equivalent to a tender. Baldwin's Bank v. Smith (N. Y.) 1917A-500. Note. Construction of acceptance of bill of ex- change conditioned on possession or avail- ability of funds. 1918A-941. 7. PARTIES ENTITLED TO NOTICE OF DISHONOR. 33. Notice to Directors Indorsing Note of Corporation. .That accommodation in- dorsers of a note are directors of the cor- poration, which is the maker, and consti- tute a majority of the board of directors, does not deprive them of right to notice of dishonor. Houser v. Fayssoux (N. Car.) 1917B-835. (Annotated.) 34. Accommodation. Accommodation in- dorsers of a note are entitled to notice of dishonor. Houser v. Fayssoux (N. Car.) 1917B-835. Note. Right to notice of dishonor of stock- holder or officer indorsing corporate paper. 1917B-836. 9 8. DISCHARGE AND PAYMENT. 35. What Constitutes Payment. Where the holder of a note sends it to the bank where made payable for "collection and remittance," and on the date of maturity the bank is directed by the maker to charge the note to his account, he at all times having had sufficient funds therein to pay the note, the loss caused by the failure of the bank to remit and its in- solvency seven days after maturity of the note must fall on the holder, the bank being his agent, in view of Negotiable In- struments Law (N. Y. Consol. Laws, c. 38) 147, providing that when an instru- ment is made payable at a bank, it in equivalent to an order to the bank to pay the same for the account of the principal debtor therein. Baldwin's Bank v. Smith (N. Y.) 1917A-500. (Annotated.) 36. Where the person to whom payment of the principal of a negotiable instrument is made is not in possession of the instru- ment, the burden is upon the party making the payment to show the agent's authority by clear and satisfactory evidence. Con- nell v. Kaukauna (Wis.) 1918A-247. 37. Payment of Negotiable Instrument. Payment of a negotiable instrument must be made to the party having possession of it, or duly authorized by the payee to accept payment. Connell v. Kaukauna (Wis.) 1918A-247. Note. What constitutes payment of note at bank where it is made payable. 1917A- 508. i 9. RIGHTS AND LIABILITIES OF PARTIES. a. In General. 38. Effect of Renewal After Disability Removed. Where a married woman exe- cuted a note to a bank which was several times renewed, the fact of such renewals, and that the last note was executed by her when sold for a remaining balance of the debt, does not preclude her from urging any defense against it that she might have made against the original note. First National Bank v. Bertoli (Vt.) 1917B-590. 39. What Constitutes Fictitious Payee. Plaintiff, whose real name was John Storch, but who had assumed the name of M. Krause, and who loaned defendant money on a note payable to the order of M. Krause, suing in his real name after its resumption, can recover, as, it being the intention of plaintiff that the note should be payable to himself, he is not a "fictitious payee," which means a fictitious person who, though named in the note, has no right to it or to its proceeds, because it was not so intended when the note was 130 DIGEST. 1916C 1918B. executed, and depends on the knowledge or intention of the party against whom it is attempted to assert the rule, and not upon the actual existence or nonexistence of a payee of the same name as that ap- pearing in the instrument, so that a real person may be a fictitious payee and a non- existing person mav be real within the rule. Soekland v. Storch" (Ark.) 1918 A- 668. (Annotated.) Note. Fictitious payee of promissory note or bill. 1918A-669. b. Indorsers. 40. Renewal. A payment by the maker on a note before the bar of the statute does not operate as a renewal of the note as to mere accommodation indorsers, though it does as to sureties, as well as the maker. Houser T. Fayssoux (N. Oar.) 1917B-835. c. Accommodation Makers. 41. Signer as Maker or Surety. The mere fact that the consideration for a note passed to the maker who first signed it does not show that the other signers were liable as sureties, and, if nothing more appears, they will be treated as makers. Builders Lime, etc. Co. v. Weimer (Iowa) 1917C-1174. 42. To Bona Fide Holder. In such case, aotwithstanding plaintiff was not a holder in due course as defined by Md. Code Pub. Civ. Laws, art. 13, 71, yet as section 14 declares that the term "holder" means the payee or indorsee of a bill or note who is in possession of it, or the bearer thereof, the Negotiable Instruments Act is applic- able, though the suit was between the original parties, plaintiff, the payee of the note, being a holder within the act, as sec- tions 43 and 45 declare that every negoti- able instrument is deemed prima facie to have been issued for a valuable considera- tion, and any person whose signature ap- pears thereto to have been a party for value, and that where value has at any time been given, the holder is deemed a holder for value, and section 48 provides that an accommodation party is liable to a holder for value notwithstanding such holder knew him to be only an accommo- dation party. Jamesson v. Citizens Na- tional Bank (Md.) 191&A-1097. 43. Nature of Liability. Negotiable In- struments Act (Md. Code Pub. Civ. Laws, art. 13), 15, declares that the person pri- marily liable on an instrument is the per- son who, by the terms of the instrument, is absolutely required to pay the same, and that all other parties are secondarily liable. Section 138 declares that a negotiable in- strument is discharged by payment in due course by or on behalf of the principal debtor; by payment in due course by the party accommodated; by the intentional cancellation thereof by the holder; by any other act which will discharge a simple contract for the payment of money, and where the principal debtor becomes the holder of the instrument at or after ma- turity in his own right. Section 139 pro- vides the methods by which a person sec- ondarily liable on the instrument is dis- charged. Defendant as maker signed a joint and several note, although he was only a surety of the real principal. Upon bankruptcy of the principal debtor, de- fendant tendered to plaintiff the amount of the note, which tender was refused. There- after defendant tendered to the circuit court of the county in which suit on the ncte was pending the amount thereof, but before payment could be made, plaintiff dismissed the suit, thereafter proving the note as a claim in the bankruptcy proceed- ing. It is held that as plaintiff was one primarily liable, he was not discharged by reason of his tender. Jamesson v. Citi- zens National Bank (Md.) 1918A-1097. (Annotated.) 44. Renunciation of Rights against Ac- commodation Maker. Defendant, one of the makers of a note who was actually only a surety, tendered payment to plain- tiff upon the bankruptcy of the principal debtor, but such tender was declined. Ne- gotiable Instruments Act (Md. Code, art. 13), 141, declares that the holder may ex- pressly renounce his rights against any party to the instrument, before, at, or after its maturity, and that an absolute renun- ciation of his rights against the principal debtor discharges the instrument, but a renunciation must be in writing, unless the instrument is delivered up to the person primarily liable thereon. It is held that a refusal of the tender was not a renuncia- tion of the holder's rights against defend- ant. Jamesson v. Citizens National Bank (Md.) 1918A-1097. 45. Acceptance of Accommodation Maker as Surety. The payee of a note does not accept one of the makers as a surety nferely, because he knows that he is not actually the principal debtor, the Md. Ne- gotiable Instruments Aat, 48, declaring that an accommodation party is liable to a holder for value notwithstanding the holder at the time of taking the instru- ment knew him to be only an accommoda- tion party. Jameason v. Citizens National Bank (Md.) 1918A-1097. d. Bona Fide Purchasers. (1) Who are. (a) In General. 46. Note Containing Blank. Iowa Code Supp. 1907, 3060a52, defines a holder in due course as one who, in good faith and BILLS AND NOTES. 131 for Talue, has taken a note regular on its face, before it was overdue, and without notice of dishonor or of any infirmity or defect in the title of the party negotiating. A note recited that it was payable in "four ." Section 3060a6 declares that the validity of a note shall not be affected be- cause it is undated. It is held that the holder of the note was not a "holder in due course," for it was not complete and regular on its face; the omission not falling within the exception. Estate of Philpott (Iowa) 1917B-839. 47. Under Iowa Code Supp. 1907, 3060al4, providing that the person in possession has prima facie authority to complete a note by filling up blanks, and that if any such instrument after comple- tion is negotiated to a holder in due course, it shall be effectual in his hands as if the blanks had been filled in in accord- ance with the authority given, the indorsee of a note payable in "four " is not a holder in due course; the blanks not hav- ing been filled. Estate of Philpott (Iowa) 1917B-839. 48. Bona Fide Purchase Pleading Suffi- cient. Where, in an action against the joint makers of a note, defendant pleaded that his signature was procured by fraud of the payee, a replication gtating that the note was indorsed by the payee before ma- turity to a bank to secure a loan made by the bank without notice of any defense, and that the bank, after due notice to the payee and pursuant to an agreement with him, sold the note to plaintiff after the payee's default, and applied the proceeds on the loan, brings plaintiff within the pro- tection of Ala. Code 1907, 5012-5014, re- lating to the rights of holders of commer- cial paper acquired in due course, and is therefore not demurrable. Jackson v. Georgia Fire Ins. Co. (Ala.) 1917A-807. 49. Circumstances Putting One on In- quiry. The general principles, running throughout the whole law, that notice of facts which should put one upon inquiry and which, if followed up with diligence and understanding, would lead to the truth, have no application to the question of good faith in the taking of negotiable in- struments. The question in such cases is, Did the holder have actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith? Sus- picious circumstances, negligence, or wilful ignorance may be evidence of bad faith from which the jury may find the fact. The holder, however, will be protected unless, at the time he took the paper, he had reason to believe, and did believe, there was some defect or infirmity in the paper. The facts in this case examined and held not to authorize a finding that the appellant bank did not take the note iu good faith; there being no substantial evidence to support any such finding. First National Bank v. Stover (N. Mex.) 1918B- 145. (b) Transfer as Security for Pre-existing Debt. 50. Consideration for Transfer. Under Kern. & Bal. Code Wash., 3416, 3418, sections of the Negotiable Instruments Act, providing that "value" is any considera- tion sufficient to support a single contract, that a pre-existing debt constitutes value, and that, where the holder has a lien on the instrument, he is a holder for value to the extent of his lien; where plaintiff bank, suing the maker and indorser of a check, holds as collateral in part to an antecedent debt, it is a holder for value to the extent of such debt. German Am- erican Bank v. Wright (Wash.) 1917D- 381. (Annotated.) Note. Transfer of negotiable note as security for antecedent debt. 1917D-386. (2) What Defenses Available Againet. 51. Rights of Bona Fide Holder Note Declared Void by Statute. While a merely illegal consideration in a negotiable in- strument does not invalidate it in the hands of a holder in due course, a paper negotiable in form, but declared void by a statute, is not enforceable at the instance of anybody. Twentieth Street Bank v. Jacobs (W. Va.) 1917D-695. (Annotated.) 52. Note for Illegal Consideration. Ne- gotiable paper, the consideration whereof is money lost or bet in gaming, is void in the hands of the holder, even though he took it for value and without notice of the character of the consideration. Twentieth Street Bank v. Jacobs (W. Va.) 1917D- 695. (Annotated.) Note. Validity in hands of bona fide holder of negotiable contract void by statute be- tween original parties. 1917D-696. e. Forged Instruments. 53. Estoppel to Urge. Where one whose name was indorsed on a note promptly de- clined to pay it when first requested so to do, and persistently declined to pay, but did not lead the holder to believe that he would not rely on any legitimate de- fense, including the defense of forgery of the indorsement, the defense of forgery is available to his estate when the holder seeks to enforce the note against it. Mur- phy v. Skinner's Estate (Wis.) 1917A- 817. 54. One who knowingly pays notes to which his name is forged does not thereby undertake to pay otiier forged notes, where 132 DIGEST. 1916C 1918B. the holders thereof were not deceived by the prior payments because they had no knowledge of the other forgeries. Mur- phy v. Skinner's Estate (Wis.) 1917A- 817. f. Non-negotiable Instruments. 55. Set-off Against Holder. By express provision of Nev. Civ. Prac. Act, 46, action on a non-negotiable note by its as- signee is subject to any set-off or defense existing at the time of or "before notice of" the assignment. First National Bank v. Nye County (Nev.) 1917C-1195. 10. ACTIONS. a. Who may Sue. 56. Bights of Indorsee for Collection, Where the payees of a note indorsed it to a bank to enable the bank to collect it, and the bank for the same purpose in- dorsed ifrto another bank, neither indorse- ment gave the indorsee any interest in the note, and the indorsees are mere naked trustees to collect, and the payees remain the holders of the note with the right to sue for its collection. Carter v. Butler (Mo.) 1917A-483. 57. Nominal Holder. Under Mo. Eev. St. 1909, 1730, providing that a trustee of an express trust may sue in his own name, the payees of a note having posses- sion thereof through their agent have the right to contract orally or in writing with the cashier of a bank to whom the note had been delivered for collection that he should sue for their benefit and the benefit of others to whom they desired to ap- point the proceeds. Carter v. Butler (Mo.) 1917A^8'3. (Annotated.) 58. Presumptiom from Possession of Note. In an action on a note by a per- son authorized to sue thereon by a con- tract with the payees, having possession of the note, it is not necessary to prove that the payees were the holders of the note, as the law raises a prima facie pre- sumption to that effect from their posses- sion. Carter T. Butler (Mo.) 1917A-483. 59. In an action on a note by a person suing as trustee of the G. Company, and of W. and L., a petition alleging the giv- ing of the note to W. and L., that W. and L. entered into an agreement in writ- ing transferring and assigning an interest therein to the G. Company, that such note was placed in plaintiff's hands, and that by such agreement he was authorized and directed to collect the note and out of the proceeds pay to the G. Company the amount of its interest, sufficiently pre- sents the facts upon which plaintiff claims such a title to the note as to enable him to maintain the action, where the objec- tion to the sufficiency of the petition is not raised by motion or answer. Carter v. Butler (Mo.) 1917A-483. 60. Eight of Assignee to Sue. Where there is a valid written assignment of a note, the assignee is authorized to sue, and the makers and sureties cannot question the consideration for the assignment. Sims v. Everett (Ark.) 1916C-G29. 61. Necessary Parties. In an action against a county on its note, given a bank, by the assignee thereof, neither the re- ceiver of the bank nor its preferred cred- itors are necessary parties; any questions of preference being for the receiver- ship matter First National Bank v. Nye County (Nev.) 1917C-1195. Note. Eight of action thereon of nominal holder of promissory note. 1917A 190. b. Joinder of Defendants. 62. Joint Makers or Indorsers. Under Va. Code 1904, 2853, prescribing against whom an action may be brought, the holder of a note may sue defendant alone with- out joining other joint makers, whether de- fendant is a joint maker or an indorser. Colley v. Summers Pairott Hardware Co. (Va.) 1917D-375. e. Issues. 63. Proving Signature of Maker. Th common-law rule requiring proof of the signature of the maker to recover on a note is in force in West Virginia except as it is affected by the statute (Code c. 125, 40 [4794]) dispensing with such proof in case a specific averment of execution is not expressly denied. Williams v. S. M. Smith Ins. Agency (W. Va.) 1917A-813. (Annotated.) 64. Making for Accommodation Neces- sity of Plea. The party for whose accom- modation a promissory note was executed is not entitled to recover from the accom- modation party thereon, but such defense, in order to avail, 7 must be specially pleaded. First State Bank v. Kelly (N. Dak.) 1917D-1044. 65. Actions Necessity of Proving Sig- nature. Plaintiff's cause of action to can- cel a tax deed as a cloud on title depend- ing on his being the owner and holder, as alleged in the complaint, of the note, made payable to another, secured by trust deed on the property, the general denial raises the question, putting plaintiff on proof, of the facts alleged, including the transfer of the note to him. Marks v. Munson (Colo.) 1917A-766. (Annotated.) 66. Variance. In an action against an indorser, the defendant cannot prove a BILLS AND NOTES. 133 failure of consideration contradictory to his verified plea in the cause averring that he was an original joint contractor with the makers. Colley y. Summers Parrott Hardware Co. (Va.) 1917D-375. 67. Equitable Defense. As a plea on equitable grounds is unavailing as a de- fense in an action at law, unless it sets up facts which would entitle the defend- ant to relief in equity as against a judg- ment at law, as provided in Md. Code Pub. Civ. Laws, art. 75, 86, one who signed a note as maker cannot defend an action thereon upon the equitable ground that he was only a surety, though one of the parties primarily liable under the Nego- tiable Instruments Act, and that under the law prior to that act's taking effect he would have been discharged by the payee's extension of time to the principal debtor. Jamesson v. Citizens' National Bank (Md.) 1918A-1097. d. Evidence. 68. Evidence Held Properly Excluded. It is held that the court did not err in denying appellants' offer of certain proof. Harshbarger v. Eby (Idaho) 1917C-753.' 69. Evidence Insufficient. In an action on a note, a special verdict, finding that the note was altered after delivery by a change in the date, held to be against the weight of the evidence. Palmer v. Blanchard (Me.) 1917A-809. 70. Proof of Bona Fides Sufficiency. Sections 646, 649, 653, N. Mex. Code 1915, applied, and held that the plaintiff bank, under the circumstances, took the note in question charged with the burden of proof that it took the same in the course. Held further, that under the proof, that burden had been successfully met. Held further, that where the evidence was all one way, and the witness stands unimpeached in any way, his evidence is to be taken by this court as true in determining whether there is any substantial evidence to sup- port the verdict. First National Bank v. Stover (N. Mex.) 1918B-145. 71. In an action on a note given for min- ing property, the testimony of one of the defendants, in answer to a question as to whether they had held the property ever since they received it from defendants, that he supposed that would be it, is suffi- cient evidence that possession was deliv- ered, assuming that the burden of showing such delivery rests on plaintiff. Carter v. Butler (Mo.) 1917A-483. 72. Evidence of Notice. Evidence that a bank, which in due course of business took a note as security for a loan made to the payee, knew that the payee then was or had been in trouble with an insurance company concerning the application of funds received from insurance notes, is irrelevant, where the insurance company makes no claim to the notes sued on. Jackson v. Georgia Fire Ins. Co. (Ala.) 1917A-807. 73. Evidence Insufficient. In an action on a note, evidence held not sufficient to sustain a special verdict that the note was altered after delivery, by adding the signature of another maker. Palmer v. Blanchard (Me.) 1917A-809. 74. In an action on a note, evidence of want of consideration held not sufficient to overcome the recital of consideration con- tained in the note. Palmer v. Blanchard (Me.) 1917A-809. 75. Necessity of Proving Signature. Wis. St. 1913, 4193, providing that, in actions on notes by indorsee, the posses- sion of the note shall be presumptive evi- dence that the same was indorsed by the persons to whom it purports to be indorsed, permits the holder of a note showing his possession thereof to make a prima facie case against indorsers; but, where the de- fense is that the indorsements were for- geries, the holder has the burden of prov- ing the genuineness of the indorsements by a preponderance of the evidence. Mur- phy v. Skinner's Estate (Wis.) 1917A- 817. (Annotated.) 76. Degree of Proof Requisite. To es- tablish a defense that a note sued on after the death of the maker, so that neither party could testify regarding it, was a forgery, the testimony must be clear and convincing, because of the presumption against the . commission of a felony. Palmer v. Blanchard (Me.) 1917A-809. 77. Evidence of Forgery Insufficient. In an action on two notes against the maker's administrator, a special verdict that the signature of the maker to the notes was a forgery held against the, weight of evi- dence. Palmer v. Blanchard (Me.) 1917A- 809. 78. Necessity of Proving Signature. In an action on a promissory note defended on the ground of forgery the burden is on the plaintiff to prove the genuineness of the signature. Palmer v. Blanchard (Me.) 1917A-809. (Annotated.) 79. Parol Evidence of Signature for Ac- commodation. One who signs a promis- sory note for the accommodation of an- other may show that fact by parol, in an action against him by the party accom- modated. First State Bank v. Kelly (N. Dak.) 1917D-1044. 80. Parol Evidence as to Consideration. In an action by the original payee of a negotiable instrument, or by one having notice, the question of the consideration may be inquired into, and parol evidence is admissible to show the real considera- tion for the instrument. First State Bank v. Kelly (N. Dak.) 1917D-1044. 134 81. Parol Evidenc cry of Note. Evidence tending to prove the condition upon which notes were exe- cuted and delivered to the payee, and that such condition had never been complied with, is competent, and does not come within the rule that parol evidence is in- admissible to contradict or vary the terms of a written instrument. First State Bank v. Kelly (N. Dak.) 1917D-1044. (Annotated.) 82. Evidence of Genuineness Admissi- bility. Where an action against an in- dorser of a note is defended on the ground that the indorsement was a forgery, evi- dence of payments by the indorser of other notes bearing his indorsements and found in his possession is admissible as an admis- sion that the indorsements of the other notes were genuine as bearing on the issue of the genuineness of the indorsement on the note sued on. Murphy v. Skinner's Estate (Wis.) 1917A-817. 83. Parol Evidence of Agreement to Re- lease. Parol evidence is inadmissible to show that prior to, or contemporaneous with, the execution of a note, the payee agreed to release the maker upon the hap- pening of a certain contingency, and take a note of another person in lieu thereof. First State Bank v. Kelly (N. Dak.) 1917D-1044. 84. Evidence Insufficient. In action on a note negotiated in breach of faith, evi- dence is held not to show conclusively that the plaintiff was a holder in due course. Estate of Philpott (Iowa) 1917B-839. 85. Burden of Proof as to Taking in Due Course. Iowa Code Supp. 1907, 3060a55, declares that the title of one who negoti- ates a note in breach of faith is defective. Section 3060a59 declares that every holder is deemed prixna facie a holder in due course, but when it is shown that the title of one of the persons who negotiated the instrument was defective, the holder has the burden of proving that he or some one under whom he claimed had acquired title in due course. It is held that on proof that a note was indorsed in breach of an agreement that it should be returned for cancellation, plaintiff has the burden of proving that he was a holder in due course. Estate of Philpott (Iowa) 1917B- 839. 86. Where execution and indorsement of a note, on ownership of which by transfer depends plaintiff's cause of action, are put in issue by the answer, the note is not admissible without proof of the signa- tures. Marks v. Munson (Colo.) 1917A- 766. (Annotated.) 87. Proof Sufficient. Where the presi- dent of a bank to which a note was given as security testified that the transaction v.-as with him and he had no notice of auv DIGEST. 1916C 1918B. Conditional Deliv- defense thereto, the evidence was suffi- cient to justify a finding of want of notice to the bank, though the other officers did not testify, and though the burden of proof was on the bank under Iowa Code Supp. 1907, 3060a55, 3060a59, because the payee negotiated the note in bad faith. Des Moines Savings Bank v. Arthur (Iowa) 1916C-498. Notes. Necessity of proving, in action on prom- issory note, signatures of maker and in- dorser. 1917A-770. Parol evidence of conditional delivery of bill or note. 1917D-1049. e. Instructions. 88. Necessity of Proving Sigmature of Maker. Where, in an action against the joint makers of a note, one defendant filed a plea of non est factum as to which plain- tiff offered no proof, it is proper to give affirmative instructions for such defendant. Jackson v. Georgia Fire Ins. Co. (Ala.) 1917A-807. (Annotated.) 89. Reasonable Time for Transfer. Whether a demand note negotiated six months after date was 'negotiated an un- reasonable length of time after issue, so that, under Iowa Code Supp. 1907, 3060a- 53, the holder was not a holder in due course, is held to be for the jury, in view of section 3060al93, requiring the facts of the particular case to be considered in de- termining what is a reasonable time. Estate of Philpott (Iowa) 1917B-839. (Annotated.) f. Damages. 90. Liability of Indorser. An indorser of a note, stipulating for payment of at- torney's fees in case of suit, though he be an accommodation indorser, is liable for such fees, especially where he waives demand, protest, and notice. Franklin v. The Duncan (Tenn.) 1917C-1080. (Annotated.) 91. Liability of Guarantor. The liabil- ity of a guarantor of the payment of a note, stipulating for payment of attorney's fees in case of suit, includes the liability of the maker for payment of the fees, especially where the contract of guaranty specified that the guarantor accepted all the provisions of the note. Franklin v. The Duncan (Tenn.) 1917C-1080. 92. Necessity of Suit on Note. The holder of a mortgage note, providing for payment of attorney's fees if the note was placed "in the hands of an attorney for collection, has to be sued upon, or if liti- gation arises in the course of its collec- tion," is entitled to have the fees allowed, over objection that its suit was needless, since foreclosure out of court was provided BINDING SLIP BONDS. 135 for in the mortgage, where a general cred- itors' bill was filed against the maker of the note and an injunction granted there- in, which operated to enjoin the holder of the note from foreclosing the mortgage except in that cause, and, on the holder's intervening to set up its claim by cross- bill, the complainant answered, denying the validity of the mortgage. Franklin T. The Duncan (Tenn.) 1917C-1080. 93. Liability of Third Person. Where a note secured by chattel mortgage provided for attorneys' fees in case of suit for col- lection, an attorney's fee allowed the holder cannot be recovered from one liable because having obtained property subject to the chattel mortgage. Northern Brew- ery Co. v. Princess Hotel (Ore.) 1917C- 621. 94. Stipulation for Attorney's Fees. A stipulation in a negotiable promissory note for the payment of "five per cent collec- tion fees" on the principal thereof, and in addition thereto "$10 attorney fee in addition to the attorney's fees taxed or allowed by law," is forbidden by the pol- icy of the law and void and unenforce- able. Raleigh County Bank v. Poteet (W. Va.) 1917D-359. (Annotated.) Notes. Validity of stipulation for attorney's fee in promissory note. 1917D-365. Provision in note for payment of attor- ney's fees as binding indorser. 1917C 1082. g. Directing Verdict. 95. In this case, the amended answer being insufficient as a denial of the alle- gations in the complaint, and the court having instructed the jury to find for re- spondent, it is held that the instruction was right, as no evidence was required on the part of respondent to establish appel- lants' indebtedness on the note, and there was sufficient evidence to establish the at- torney's fee. Harshbarger v. Eby (Idaho) 1917C-753. h. Judgment. 96. Action on Joint Note Judgment Against One Maker. In an action against the joint makers of a promissory note, judgment may be rendered against one maker and in favor of the others. Jack- son v. Georgia Fire Ins. Co. (Ala.) 1917A- 807. BINDING SLIP. See Fire Insurance, 4. BLACKLISTING. See Labor Combinations, 4, 6-8. BLANKS. See Alteration of Instruments, 2; Bills and Notes, 46, 47. BLASTING. Injury by concussion, see Explosions and Explosives, 4, 5. BLIND MAN'S WILL. How attested, see Wills, 28, 101. BLIND TIGER. Defined, see Disorderly Houses, 1. Defined, see Intoxicating Liquors, 110. BLOOD STAINS. Admissibility, see Homicide, 21, 26, 28, 29. BLOOD TEST. Faiure to make before operation, see Phy- sicians and Surgeons, 22. BLUE SKY LAW. See Licenses, 33, 34. BOARDING CAR. Person boarding not a passenger, se Carriers of Passengers, 12. BOARD OF HEALTH. See Health, 1. BOARD OF UNDERWRITERS. Liability for torts of employees, see Mas- ter and Servant, 365. Not a municipal corporation, see Munici- pal Corporations, 5. BOAT. Defined, see Master and Servant, 59. BOATABLE STREAM. Meaning, see Evidence, 18. BONA FIDE CITIZENS. Meaning, see Corporations, 1. BONA FIDE. PURCHASER. See Bills and Notes, 46-55; Sales, 57-80. Of altered note, see Alteration of Instru- ments, 7. Of land, see Vendor and Purchaser, 21. BONA FIDES. Criterion of official conduct, see Sheriffs and Constables, 14. BONDS. See Public Contracts, 5, 6; Suretyship. Appeal bonds, see Appeal and Error, 481- 484. 136 DIGEST. 19160 1918B. Undertaking on attachment, see Attach- ment, 6, 7. Bail bond, see Bail. Bond to indemnify bankrupt, see Bank- ruptcy, 27-29. Contractor's bond in building contract, see Contracts, 84, 85. Corporate mortgages and bonds, see Cor- porations, 149-159. County bonds, see Counties, 11, 12. Of defaulting cashier, enforcement, see Equity, 2. Of executors and administrators, see Ex- ecutors and Administrators, 12. Failure to give, effect on guardian's sale, see Guardian and Ward, 11, 12. Injunction bond, see Injunctions, 41. Liquor dealer's bond, see Intoxicating Liquors, 76-77. Contractor's bond as waiving right to lien, see Mechanics' Liens, 29. Municipal bonds, see Municipal Corpora- tions, 109-119. Action on detinue bond, see Replevin, 3. Reformation, changing name of obligee, see Rescission, Cancellation and Reformation, 9. Sheriffs bond, liability of sureties, see Sheriffs and Constables, 10, 11. Taxation of bonds, see Taxation, 45-47. Bond issue for forest preservation, see Trees and Timber, 2-12. 1. Recovery by Beneficial Obligee. Where plaintiff sues as beneficial obligee on a bond of indemnity, he must prove that he had an interest in the perform- ance of the duty and that the duty was imposed either for his sole benefit or jointly for the benefit of himself and others. Clark v. Nickell (W. Va.) 1917A-1286. 2. Pleading Delivery. Allegations of the execution of a surety bond sued on implied a delivery thereof. American Surety Co. v. Pangburn (Ind.) 1916E- 1126. BOULEVARDS. Exclusion of business vehicles, see Streets and Highways, 24. BOUNDARIES. Overhanging trees, cutting to line, see Adjoining Landowners, 7, 8. Establishment by estoppel, see Estop- pel, 1. River as state boundary, see States, 3, 4. Of land bordering on navigable stream, see Waters and Watercourses, 4. 1. Establishment by ParoL A dis- puted boundary line between coterminous proprietors may be established by oral agreement, if the agreement be accom- panied by actual possession to the agreed line, or is otherwise duly executed. Bunger v. Grimm (Ga.) 1916C-173. 2. Before the doctrine of estoppel can be invoked to settle a boundary line or the ownership of a fence as a boundary line, it must first be established that the parties hare recognized the boundary line, or recognized the fence aa the divi- sion line, and when the facts are resolved to the contrary, the doctrine of estoppel cannot operate. Wideman v. Faivre (Kan.) 1918B-1168. BOYCOTTS. See Labor Combinations, 4. BRANDS. See Trademarks and Tradenames. BREACH OF PEACE. Arrest without warrant, see Arrest, 3. Jurisdiction of military authorities, see Militia, 15-18. Duty of sheriff to suppress, see Sheriffs and Constables, 7, 16. 1. What Constitutes Vulgar Language in Public Place. Where a clergyman in a sermon used the language: "Some men will stand around the depot, stores, the post office, and street corners, and watch the women pass, and size them up, the foot, ankle, and form, and they would . . . give five dollars for the fork," such language constitutes a "breach of the peace," which is a generic offense, in- cluding all violations of the public peace or order, or acts tending to the disturbance thereof, possibly consisting of public tur- bulence or indecorum, in violation of the common peace and quiet, of an invasion of the security and protection which the law affords every citizen, or acts which tend to excite violent resentment, actual personal violence not being an element in the offense, but where the incitement of terror or fear of personal violence' is a necessary element, the conduct or lan- guage of the wrongdoer must be of a char- acter to induce such condition in a per- son of ordinary firmness, and for the public utterance of such expressions defendant was liable to punishment under Ky. St. 1268, providing that, if any person shall be guilty of a breach of the peace, he shall be fined or imprisoned; the prosecu- tion not being under Ky. St. 1267, de- nouncing fine or imprisonment against any person who shall wilfully interrupt a congregation assembled for worship. Delk v. Commonwealth (Ky.) 1917C-884. (Annotated.) 2. Violence not Essential. It is not necessary that an act have in itself any element of violence in order to constitute a breach of the peace. State v. Reich- man (Tenn.) 1918B-889. 3. What Constitutes. The word "peace," La the phrase "breach of the peace," BREACH OF PROMISE OP MARRIAGE. 137 means the tranquillity enjoyed by the citi- zens of a municipality or community where good order reigns among its mem- bers; that invisible sense of security which every man feels necessary to his comfort, and for which all governments are instituted. State v. Beichman (Tenn.) 1918B-889. 4. "Breach of the peace," in view of the generally accepted definition, and of constitutional provision that all indict- ments shall conclude, "against the peace and dignity of the state," includes any violation of any law enacted to preserve peace and good order. State v. Beich- man (Tenn.) 1918B-889. 5. Illegal Sale of Intoxicants as Breach of Peace. Shannon's Tenn. Code, 993, subsec. 2, requiring every applicant for a liquor license to give bond to keep peaceable and orderly house, is a legisla- tive declaration that the liquor law is in- tended to preserve the peace, so that any violation thereof is a breach of the peace. State v. Eeichman (Tenn.) 1918B-889. 6. Engaging in the sale of intoxicating liquors, declared by Tenn. Acts 1913 (2d Ex. Sess.), c. 21, to be a nuisance always among that class of nuisances always treated by the court as tending to dis- turb the peace and good order of the community. State v. Beichman (Tenn.) 1918B-889. 7. Unlawful Sale of Intoxicants. "Breach of the peace" being a generic term including all violations of public peace or order, includes unlawful sale, actual or threatened, of intoxicating liquors, and the sheriff may arrest with- out warrant therefor. State v. Beich- man (Tenn.) 1918B-889. 8. While mere possession of intoxicating liquors in any quantity is not unlawful, it is a breach of the peace for one having liquors to prepare for sale thereof, that being a threat to violate the law against sales. State v. Beichman (Tenn.) 1918B- 889. 9. Powers of Notary. The authority of notaries public, as well as of justices, as conservators of the peace, not being other- wise prescribed by statute, is limited to the powers possessed by conservators of the peace at common law, prior to the enactment of W. Va. St. 1 Ed. iii, c. 16, authorizing the appointment of justices of the peace. Those duties were to prevent and arrest for breaches of the peace, in their presence, but not to arraign and try the offender. Howell v. Wysor (W. Va.) 1916C-519. Note. Language constituting disorderly con- duct or breach of peace. 1917C-889. BREACH OF PROMISE OF MABEIAQE. 1. Actions, 137. a. Defenses, 137. b. Admissibility of Evidence, 138. c. Sufficiency of Evidence, 138. d. Instructions, 138. e. Damages, 138. 1. ACTIONS. a. Defenses. 1. Disease. An instruction, in an action for breach of marriage promise by de- fendant's intestate, that if he had per- nicious anemia it would not excuse his breach, but if he believed it would be fatal after a year or so, or it would be reasonably certain to bring death in a few months, this could be considered in mitigation of damages, is sufficiently fav- orable to plaintiff. Parsons v. Trowbridge (Fed.) 1917C-750. 2. Offer to Marry. An offer to marry after a breach of promise to marry is no bar to an action for the breach. Stacy v. Dolan (Vt.) 1917A-650. (Annotated.) 3. Subsequent Offer to Marry. Offers of marriage, made by defendant in good faith after the breach and after the bringing of the suit, but while his char- acter, condition, and circumstances re- mained unchanged, are admissible in evi- dence in mitigation of damages so far as the jury might think they should go in mitigation, and are improperly excluded. Stacy v. Dolan (Vt.) 1917A-650. (Annotated.) 4. Death. Where performance of a con- tract to marry is rendered impossible by death of one of the parties, no cause of action arises for the breach of the con- tract, since there is an implied condition to the contract of marriage that the par- ties will be alive at the time appointed for performance. Estate of Oldfield (Iowa) 1917D-1067. 5. To justify a repudiation of the con- tract, however, upon such ground, the dan- ger to life and health which will be caused by the consummation of the marriage must be reasonably certain, as the inevi- table consequence of the marriage rela- tion, and not a mere problematical or pos- sible contingency. Estate of Oldfield (Iowa) 1917D-1067. (Annotated.) 6. Disease as Defense. Where a man engaged to marry becomes afflicted with disease whereby the performance of mar- riage duties would aggravate his disease and hasten his death, either party to the contract may repudiate without being subjected to liability therefor, since the consideration for an agreement to marry is the giving and receiving by marriage all that is implied in the relationship, en- 138 DIGEST. 1916C 1918B. tailing mutual obligations of giving and receiving, for the failure of which by the act of God either party is entitled to re- fuse the performance. Estate of Oldfield (Iowa) 1917D-1067. (Annotated.) 7. One becoming afflicted with a loath- some disease, contracted subsequently to the making of the contract, which upon consummation of the marriage may be communicated to the spouse and offspring, may repudiate an agreement to marry. Estate of Oldfield (Iowa) 1917D-1067. (Annotated.) 8. Where one, after contracting to marry, contracts a malady which will cause death within a few months, he may repudiate the contract, and his estate upon his death will not be liable in damages as for a breach. Estate of Oldfield (Iowa) 1917D-1067. (Annotated.) Notes. Disease as defense to action for breach of promise of marriage. 1917D-1084. Effect of offer by defendant to marry plaintiff on action for breach of promise of marriage. 1917A-652. b. Admissibility of Evidence. 9. In an action for breach of promise of marriage, where it was not claimed and there was nothing in plaintiff's reply to a letter from defendant's sister written after the action was commenced and con- taining an offer of marriage, from which it could be claimed that she accepted the proposal, a question asked her as to whether she meant by expressions in the letter to refuse the offer is properly ex- cluded. Stacy v. Dolan (Vt.) 1917A-650. 10. In an action for breach of promise of marriage, it appeared that before mail- ing her reply to an offer of marriage from defendant, made after the action was com- menced, plaintiff submitted the reply to her counsel, and she was asked why she did so. She replied that defendant had so often promised to marry her and broken his word that she thought it best to have his statement in writing. Held, that her at- titude and feelings in the matter, whether calculated to enhance or diminish damages, were material, and hence, though the an- swer was not exactly responsive, it was properly permitted to stand. Stacy v. Dolan (Vt.) 1917A-650. 11. Testimony that it was the under- standing of the members of the family of plaintiff, in an action for breach of mar- riage promise, that she was to marry de- fendant is objectionable as an opinion or conclusion of the witness. Nolan v. Glynn (Iowa) 1916C-559. (Annotated.) 12. Explanation of Subsequent Offer to Marry. Where offers of marriage by de- fendant after the commencement of the suit are admitted in mitigation of dam- ages, defendant's testimony that they were made in good faith is not admissible to rebut the inference that such offers were an admission of a previous engage- ment, as the good faith of the offer could not rebut any inferences proper to be drawn therefrom. Stacy v. Dolan (Vt.) 1917A-650. Note. Understanding of family or friends of party as evidence of agreement to marry. 1916C-564. c. Sufficiency of Evidence. 13. Understanding of Family. Proof of the understanding by members of the family of one of the parties that they were to marry may not, in an action for breach of marriage promise, be considered as evi- dence of an agreement to marry. Nolan v. Glynn (Iowa) 1916C-559. (Annotated.) d. Instructions. 14. As to Good Faith of Parties. Where the court gave defendant's requested in- struction to find for defendant if when plaintiff requested defendant to marry her she was not willing to marry him, but made the request for an ulterior purpose, but added statements as to the willingness of either party to marry within a reason- able time after the original promise was made, to which no exception was taken, defendant cannot complain of what the court said in addition to the requested in- struction. Stacy v. Dolan (Vt.) 1917A- 650. e. Damages. 15. Abortion. While in an action for damages from breach of marriage promise alone seduction, accomplished through th promise, and pregnancy, resulting from the seduction, may be shown, on the ground of the mental anguish and humiliation from the breach of being intensified thereby, abortion, though at the instance of defendant, may not be shown; this be- ing an element of damages only in an action for seduction. Nolan v. Glynn (Iowa) 1916C-559. 16. Effect of Death of Defendant. Though one breaking a contract to marry dies before action therefor, plaintiff is not as matter of law entitled to recover one- third of the value of his estate. Parsons v. Trowbridge (Fed.) 1917C-750. 17. Nature of Action. Though an action for breach of promise of marriage is in assumpsit, the damages are determined on principles not applying in ordinary cases of as?umpsit. Stacy v. Dolan (Vt.) 1917A-C50. BREACH -OF WARRANTY BROKERS. 139 BREACH OF WARRANTY. See Sales. BREAKING. Defined, see Burglary, 1. BRIBERY. 1. Offer tb Serve for Less than Legal Salary. A promise by a candidate for office that if elected he will turn back a certain portion of the salary into the pub- lie treasury constitutes bribery of electors within the meaning of a corrupt practice act, irrespective of the existence of a cor- rupt motive. Diehl v. Totten (N. Dak.) 1918A-S84. (Annotated.) 2. Purpose in Offering Bribe. An infor- mation based upon section 3476 of the General Statutes of Florida, charging the defendant with an attempt to bribe a dep- uty sheriff of Dade county to permit the defendant "to sell liquors unlawfully in Dade county, Florida, without interference from" such officer, is fatally defective in that it fails to allege that the defendant had attempted to bribe an official to per- mit the deiendant to sell "spirituous, vin- ous, or malt liquors in any county or pre- cinct which has voted against the sale of such liquors, under the provisions of arti- cle XIX of the constitution of the state of Florida," without interference from such officer. Brunson v. State (Fla.) 1918A-312. 3. Allegation of Value of Thing Offered. An indictment or information for bribery or attempted bribery must allege that something of value was given, promised, or received, though it is not necessary to in- sert a description of the thing offered, all that is essential being an allegation that it was of value. An allegation that "a certain gift or gratuity, to wit, money," was offered, without alleging that the money was of value, is insufficient. Brun- son T. State (Fla.) 1918A-312. (Annotated.) Notes. Promise to do certain things after elec- tion as bribery of electors. 1918A-888. Sufficiency of indictment or information for bribery with respect to allegation of value of thing offered or received as bribe. 1918A-314. BRICK KILN. As a nuisance, see Nuisances, 8, 9. BRICKS. City regulation of manufacture, see Muni- cipal Corporations, 82, 83. Warranty of color, see Sales, 18. BRIDGE COMMISSIONERS. Status, see Public Officers, 8. BRIDGE. Compensation for injury to land, see Emi- nent Domain, 30. Right of township to bridge tax, see Towns, 1, 2. 1. Injury by Vessel. In an action by a city for damages to a bridge caused by a steamer running into it, evidence exam- ined and held to be sufficient to sustain a finding that the absence of such lights on the bridge as were required by the light- house board did not contribute to the col- lision. Marinette v. Goodrich Transit Co. (Wis.) 1917BU935. (Annotated.) 2. In an action for damages to a bridge caused by a steamer running into it, cer- tain negative evidence examined and held to be sufficient to sustain a finding that the whistles required of the steamer to signal for the opening of the bridge were not blown. Marinette v. Goodrich Tran- sit Co. (Wis.) 1917B-935. (Annotated.) 3. Injury by Vessel Liability. Where a collision occurs between a steamer and a bridge, the absence of such lights on the bridge as are required by the rules of the lighthouse board, made under author- ity of act of Congress, throws the burden on the party in default to show that the absence of such lights not only did not but could not have caused the injury. Marinette v. Goodrich Transit Co. (Wis.) 1917B-935. (Annotated.) 4. Injury by Vessel Liability. In an action by a city for damages to a bridge caused by a steamer running into it, the question whether the absence of lights on the bridge, as required by the lighthouse board was the cause of the injury, is held to be, under the evidence, for the jury, both on a motion for nonsuit and on mo- tion to direct a verdict. Marinette v. Goodrich Transit Co. (Wis.) 1917B-935. (Annotated.) Note. Liability for injury to bridge caused by vessel. 1917B-938. BRIEFS. Waiver of error by omission from brief, see Appeal and Error, 171-175. In disbarment proceeding, see Attorneys, 67. Attorney liable for printing, see Attor- neys, 69. BROKERS. 1. Eeal Estate Brokers, 140. a. Contract of Employment, 140. b. Authority, 140. c. Eight to Compensation, 140. d. Actions for Compensation, 140. e. Liability to Principal, 141. 2. Stock Brokers, 141. a. Eight to Pledge Stock, 141. 3. Loan Brokers, 141. 140 DIGEST. 1916C I918B. See Pawnbrokers. Regulation of commission merchants, e Constitutional Law, 43. Insurance brokers, see Insurance, 1-8. Blue sky law, see Licenses, 33, 34. 1. REAL ESTATE BROKERS, a. Contract of Employment. 1. Contract Strictly Construed. A con- tract of agency giving power to sell land is to be strictly construed, and if there is any doubt whether acts of the agent thereunder are within his delegated powers, they should be resolved against the agent and against any third party dealing with him. Springer v. City Bank, etc. Co. (Colo.) 1917A-520. b. Authority. 2. Power to Make Contract of Sale. An agreement between G. and S. provided that S. was to be at the expense of ob- taining title to certain land from the gov- ernment and of finding a purchaser, and as compensation was to receive one-half of the proceeds after paying G. $4 an acre, the title to remain in G., and the land not to be sold for less than $3 an acre, and that should the land not be sold within one year the title should be fully vested in G. Held, that such contract merely authorized S. to find a purchaser and did not authorize him to make a con- tract binding G. to sell, since where real estate is placed in the hands of an agent to find a purchaser or with instructions in general terms "to sell," the agent is not authorized to enter into a contract of sale binding upon the principal. Springer T. City Bank, etc. Co. (Colo.) 1917A-520. (Annotated.) Note. Power of real estate broker to make contract of sale. 1917A-522. c. Right to Compensation. 3. Contract for Commissions from Both Parties Sale Prevented by One Party. A complaint, in a broker's action for com- mission, alleging that defendants and cer- tain other owners entered into a written contract to exchange certain properties at stipulated values and that each of the parties was to pay plaintiff a commission upon the execution of the instrument effecting the exchange, that the other con- tracting parties had been ready, able, and willing to execute their instruments of conveyance, but that defendants refused to perform their contract, and rendered performance by the other parties impos- sible, states a cause of action against the defendants for the agreed compensation to be paid by both parties. Littlefield v. Bowen (Wash.) 1918B-177. (Annotated.) 4. Contract for Commission from Both Parties Sale Prevented by One Party. A real estate broker, who, as agent for all of the parties, procured a contract be- tween himself, defendants, and other par- ties for an exchange of their properties, entitling him to a commission from each, payable on the execution of the instru- ments effecting the exchange, may, upon defendants' failure to carry out their con- tract, maintain an action against them for the loss of the commissions agreed to be paid by the other party. Littlefield v. Bowen (Wash.) 1918B-177. (Annotated.) 5. Goods Rejected for Defects. A packer of corn wrote a broker of corn-packing products offering "10,000 cases fancy," at $1 per dozen cases. The broker procured a purchaser subject to approval of a sample case, but upon receipt of the sample case the purchaser refused to ac- cept the corn as not being of fancy qual- ity. The evidence showed that "fancy" corn was of a higher grade than standard corn and consisted of the very best part of a good pack, packed from tender creamy corn with good consistency, and was sweet, tender, of extra flavor, not hard nor wet, and taken when the corn was "right in the milk," and that the corn in question was not fancy corn as re- garded in the trade. It is held that the broker, having produced a customer ready and willing to buy on the packer's terms and able to buy, had earned his commis- sions. Dennis v. Waterford Packing Co. (Me.) 1917D-788. 6. Commissions from Both Sides. A real estate broker cannot recover an agreed commission from both sides in the absence of a showing of consent of both principals to the double commission; dual agency without such consent being against public policy, as prejudicial to the interest of the principals, since the law requires the utmost good faith and loyalty from agents. Leno v. Stewart (Vt.) 1917A-509*. (Annotated.) Note. Liability on contract of buyer and seller to pay broker's commission jointly. 1918B-180. d. Actions for Compensation. 7. Performance by Broker Refusal of Principal to Accept Trade Necessity of Tender. In a broker's action for commis- sion under a contract for the exchange of properties, the fact that the transfer by the other parties to the plaintiff was re- fused made it immaterial whether such other partiejs made any tender of a deed or not. Littlefield v. Bowen (Wash.) 1918B-177. 8. In a broker's action against defend- ants for a commission due under their contract with plaintiff and with other par- BUILDING AND LOAN ASSOCIATIONS. 141 ties for an exchange of properties, where it is only incumbent upon plaintiff to make a prima facie case, showing that the other parties were willing and able to comply with the contract, and that de- fendants refused to perform, the other party's ownership is provable by parol. Littlefield v. Bowen (Wash.) 1918B-177. 9. Refusal by Principal to Convey Sufficiency of Evidence. The evidence, in an action for a commission, payable under a contract for the exchange of properties whereby each of the exchanging parties was to pay plaintiff a commission, to re- cover a commission directly payable by defendants, and the commission due from the other party lost by defendants' breach, is held to support a finding that defend- ants refused to perform the contract, and rendered it impossible for the other party to perform, though ready and able to do BO. Littlefield v. Bowen (Wash.) 1918B- 177. 10. Compensation from Both Parties. Where the plaintiff, a broker employed to sell or exchange, seeks to recover on an agreement for half commissions with de- fendant, another broker employed by one who also wished to exchange, after re- ceiving his commissions from his own em- ployer, consent of the principals to the double commission is required, and the burden is on the plaintiff to show their consent. Leno v. Stewart (V) 1917A- 509. (Annotated.) 11. Ability of Purchaser. A person em- ployed to arrange for, advertise, and con- duct an auction sale of lands, whether called a sales manager, with a salary and, expenses and a right to one-half the net profits or a broker, cannot recover, unless there is a sale or the production of some one able and willing to purchase accord- ing to the terms previously agreed upon between him and the owners or on terms agreeable to the owners; and hence, in an action for compensation, evidence as to the pecuniary responsibility of one to whom the property was struck off, but who was never in a position to buy the land, is properly received. Sotham v. Macomber (Mich.) 1916C-694. e. Liability to Principal 12. Recording of Contract by Broker. The fact that plaintiff, a real estate broker, who had caused defendants to en- ter into a written contract to exchange certain properties with other parties, re- corded such contract, which record did not colorably establish any right, claim, or lien in the broker, does not render him liable to damages for the recording of the contract. Littlefield v. Bowen (Wash.) 1&18B-177. 2. STOCK BROKERS, a. Right to Pledge Stock. 13. Duty to Account for Pledged Stock. When stock is pledged by a customer with a broker, it is sufficient if the broker h'as in his possession or under his control an amount of stock equal to that hypothe- cated, which upon settlement he returns to the customer. Carlisle v. Norris (N. Y.) 1917A-429. (Annotated.) 3. LOAN BROKERS. 14. Chattel Loans Validity of Regula- tion. Chattel loans on mortgage security or otherwise, the rate of interest on such loans, and the ways and means of assign- ing wages, are proper subjects for the exercise of the police power by the gen- eral assembly of the state. Wessell v. Timberlake (Ohio) 1918B-402. (Annotated.) Note. Validity of state or municipal regula- tion of commission merchants. 1917B- 631. BUILDING AND LOAN ASSOCIATIONS. 1. Statutory Regulations, 141. 2. Loans, 142. 3. Insolvency and Dissolution, 142. 1. STATUTORY REGULATIONS. 1. Exemption from Usury Laws. Lawa Miss. 1912, c. 167, is "An act providing for organization of domestic and foreign building and loan associations, or other corporations whose business is loaning money on real estate to be paid in monthly instalments." Section 2 provides that the term "building and loan asso- ciation" shall include all corporations and associations organized to enable members, "or borrowers who are not members," to acquire, make improvements on, or to re- move incumbrances from realty, or to loan money on real estate, to be paid in monthly instalments on a loan for not less than two years, or for the "accumulation of the fund to be returned to its members who did not obtain advances thereon." Section 9 provides that all associations may contract for loans to members, or to borrowers who are not members, at the rate of interest not exceeding 10 per cent. It is held, that the business of such asso- ciations differentiates them from other lenders of money, so that the permission to charge interest at 10 per cent does not violate Const. 1890, 90, prohibiting spe- cial law regulating the rate of interest on money. Halsell v. Merchants' Union Ins. Co. (Miss.) 1916E-229. (Annotated.) 2. Supervision. In view of the purpose of building and loan associations to en- 142 able a large number of persons who are without ready means to build homes which are paid for in small instalments, and the benefit of the community derived from such associations, the state may, un- der its police power, exercise rights of supervision and inspection over such asso- ciations greater than over ordinary busi- ness associations. Union Savings, etc. Co. v. District Court (Utah) 1917A-821. Note. Constitutionality of statutes exempting building aJid loan associations from usury laws. 1916E-232. 3. Loan to Nonmember. Where a build- ing and loan association is authorized to lend only to its stockholders to the amount of stock held, and, after a loan to a stranger by a third party, attempts to purchase the note and mortgage there- for, its act is ultra vires, since it cannot do indirectly that which it could not do directly. North Avenue Bldg., etc. Assoc. T. Huber (111.) 1917B-587. (Annotated.) 2. LOANS. 4. When a building and loan associa- tion purchases a note and mortgage of one not a stockholder when it is authorized only to lend to its stockholders, it cannot foreclose a mortgage, its act in purchasing it being ultra vires; nor can its assignor be held a trustee and the mortgage be foreclosed by him for the association. North Avenue Bldg., etc. Assoc. T. Huber, (HI.) 1917B-587. (Annotated.) Note. To whom building and loan association may loan money. 1917B-590. 3. INSOLVENCY AND DISSOLUTION. 5. Effect of Insolvency. Whenever a building and loan association is declared insolvent, its right to collect the instal- ments payable by its members ceases, and the mortgages of borrowing members at once become due and payable, and may be foreclosed. Union Savings, etc. Co. v. District Court (Utah) 1917A-821. 6. Power to Appoint Receiver. The remedy given .by Utah Comp. Laws 1907, 400, which provides that when a domes- tic building and loan association is, in the opinion of the secretary of state, con- ducting its affairs illegally, or is unsafe, he shall notify the directors, and if the objections be not immediately remedied, shall advise the attorney general, who shall take the necessary steps to wind up its affairs, is exclusive, and the courts cannot appoint a receiver to wind up the affairs of the association at the request of one or more of the shareholders. Union Savings, etc. Co. v. District Court (Utah) 1917A-S21. (Annotated.) DIGEST. 1916C 1918B. 7. Utah Const, art. 1, 11, requiring the courts to be open to all alike, does not prevent the state from reserving to itself the sole right to bring actions for the dis- solution of building and loan associations, since that section is a limitation, not a grant of power, prohibiting any restric- tions upon the common-law right of access to the court, but not enlarging that right. Union Savings, etc. Co. v. District Court (Utah) 1917A-821. (Annotated.) 8. Receivers Complaint Presumption. Where a complaint for the appointment of a receiver for a building and loan asso- ciation did not allege that the officers of the association or the secretary of state Had failed to perform the duties imposed upon them by Cornp. Laws Utah 1907, 392-402, regulating such associations, it must be presumed that the officers htive performed their statutory duties. Union Savings, etc. Co. v. District Court (Utah) 1917A-821. 9. Right to Appoint Receiver. An ac- tion by a shareholder to secure the ap- pointment of a receiver to wxnd up the business of a building and loan associa- tion, while not technically an action to dissolve the association, has practically that effect, and cannot be entertained by the courts. Union Savings, etc. Co. v. District Court (Utah) 1917A-S21. (Annotated.) 10. The danger that a shareholder in a building and loan association may suffer irreparable injury through the failure of the attorney general to wind up the affairs of the association, as required by Comp. Laws Utah 1907, 400, does not au- thorize an action for that purpose by the shareholder, since it is presumed that every officer will do his duty, and if the duty is clear the attorney general may be required by the courts to perform it. Union Savings, etc. Co. v. District Court (Utah) 1917A-821. (Annotated.) 11. Action by Public Officer. Before an action for the dissolution of a building and loan association is brought under Comp. Laws Utah 1907, 400, the associa- tion should be given an opportunity to correct any abuses in its management, un- less its affairs are such that, in the opin- ion of the secretary of state or attorney general, they cannot be corrected. Union Savings, etc. Co. v. District Court (Utah) 1917A-821. 12. Duty to Bring Proceeding. Under Comp. Laws Utah 1907, 400, providing that if the secretary of state is of the opinion that a building and loan associa- tion is violating the law or is unsafe, he shall advise the attorney general, who must bring an action to dissolve the asso- ciation, if the secretary of state refuses to perform his duty; it nevertheless is the duty of the attorney general to bring the action, if it is made to appear to him by BUILDING OR WORKING CONTRACTS BUILDINGS. 143 any shareholder that the association In not complying with the law. Union Sav- ings, etc. Co. T. District Court (Utah) 1917A-821. Note. Appointment of receiver for building and loan association. 1917A-827. BUILDING OR WORKING CONTRACTS. See Contractors, 78-99. BUILDING RESTRICTIONS. See Landlord and Tenant, 13; Vendor and Purchaser, 22-26. BUILDINGS. 1. Definition, 143. 2. Validity and Construction of Regula- tions, 143. 3. Enforcement of Regulations, 143. a. Who may Sue, 143. b. Defenses. 144. Damage by excavation, see Adjoining Landowners, 9-11. Fire escapes, see Fires, 1-5. Sale of building, see Frauds, Statute of, 5. Action for collapse, see Negligence, 76. School buildings, see Schools, 9-12. 1. DEFINITION. 1. Meaning of "Tent." An ordinance of the city of St. Louis defined a "build- ing" as any structure for the support, shelter, or inclosure of persons, and de- nned buildings of the fourth class as any building not of the first three classes, and provided that no fourth-class building should be -built within the fire limits. Defendant constructed a moving picture theater, ninety-seven feet long, fifty-eight feet wide, with a height along the center of thirty feet, using telegraph poles joined by a wire cable and guy cables to sup- port and attach a canvas covering and at the rear built a stage of wood, with wings composed partly of wood and partly of canvas, made a floor of boards nailed to cross-pieces sunk in the ground, equipped the stage and the whole structure with electric lights, the front with doors of wood and glass, and a ticket booth of wood, and furnished it with stoves for heating and with benches to seat 640 per- sons, which, if a building, was a building of the fourth class. Rev. St. Mo. 1909, 8057, declares that words in statutes are to be regarded as used in their plain, usual, and everyday meaning. It is held that the structure was not a "tent," de- fined as a pavilion or portable lodge con- sisting of canvas, etc., supported and sus- tained by poles used for sheltering per- sons from the weather, especially soldiers in amp, in that it lacked the element of portability and was constructed of other materials than those ordinarily used in tents, but was a "building" within the in- tent of the ordinance. St. Louis v. Nash (Mo.) 1918B-134. (Annotated.) Note. Legal meaning of "tent." 1918B-138. 2. VALIDITY AND CO1S STRUCTION OF REGULATIONS. 2. Force and Effect. The building reg- ulations of the District of Columbia as to party walls are neither statutes nor ordinances, but are mere rules for the en- forcement of existing rights, and have no force outside the limits of the city of Washington as they existed at the time the regulations were promulgated. Fowler v. Koehler (D. C.) 1916E-1161. 3. Construction of Building Ordinance. A provision in a building ordinance that in the rear of every tenement subse- quently erected there shall be a yard not lass than 15 feet in death, measured in the clear from the porches to the rear line and the provision that no tenement shall cover more than 80 per cent of a lot bounded by two or more intersecting streets must be construed together and in harmony with each other, and a pro- posed tenement may not violate either provision. Building Commission v. Kunin (Mich.) 1916C-959. 4. Reasonableness of Building Ordi- nance. A provision in a building ordi- nance of a city that in the rear of every tenement subsequently erected there shall be a yard across the entire width of the lot open from the ground to the sky, un- obstructed except by fire escapes, or un- inclosed outside stairs and porches, and the depth of the lot measured in the clear from the porches to the rear line of the lot shall not be less than 15 feet in any part is reasonable, and the court cannot adjudge it invalid under its power to ad- judge ordinances invalid when clearly un- reasonable or oppressive. Building Com- mission v. Kunin (Mich.) 1916C-959. 5. Burden of Showing Invalidity of Ordinance. One asserting the invalidity of a municipal ordinance has the duty of establishing the invalidity, and the court must, if it can consistently do so, give to the ordinance such a reasonable con- struction as will sustain it, but it may not invade legislative power. Building Commission v. Kunin (Mich.) 1916C-959. 3. ENFORCEMENT OF REGULATIONS, a. Who may Sue. 6. Injunction Against Violation of Ordi- nance. A building ordinance which au- thorizes the department of buildings to stop the construction or removal of any building constructed in violation of the ordinance, and, if the order be not obeyed, to apply to any court to restrain any per- 144 DIGEST. 1916O 1918B. son from disobeying the order, empowers the department of buildings to sue to en- join a threatened violation of the ordi- nance by the erection of a building. Building Commission v. Kunin (Mich.) 1916C-959. (Annotated.) 7. Estoppel to Enforce Ordinance. The granting by the building department of a city of a buiding permit under a mis- conception of the building ordinance not requiring a permit does not thereby estop the department from suing in equity to enjoin the construction of the building in violation of the ordinance. Building Com- mission v. Kunin (Mich.) 1916C-959. b. Defenses. 8. Where one constructing a building disregarded provisions of the building ordinance, and had early notice thereof, but continued the construction, he could not rely on an equitable estoppel to pre- vent the building department of the city, consenting by mistake of law to the erec- tion of the building, from maintaining a suit to enjoin the construction because violative of the ordinance. Building Com- mission v. Kunin (Mich.) 1916C-959. 9. Owners of Premises Liability for Collapse of Building Violation of Build- ing Ordinance. Where, when a permit to erect a two-story building was applied for, the plans and specifications submitted to the city building inspector provided that the building should be so constructed that a third story might be added at some future time, no causal relation appears between the failure to obtain a permit for the erection of a third story which it was subsequently decided to add ; as required by a city ordinance, and an injury result- ing from the collapse of such building, as, if any inference might be drawn, it would be that the permit would have been granted, had application been made. Prest-o-lite Co. v. Skeel (Ind.) 1917A-474. (Annotated.) BULK SALES LAW. See Fraudulent Sales and Conveyances, 15-20; Sales, 66-70. BURDEN OF PBOOF. See Evidence, 146-148. BURIAL INSURANCE. See Insurance, 59. BURSTING WATER PIPE. Liability irrespective of negligence, see Waterworks and Water Companies, 11. BURYING GROUNDS. See Cemeteries. BUSINESS. Meaning, see Master and Servant, 41. BY-BIDDING. Effect on sale, see Auctions and Auction- eers, 4. BY-LAWS. See Beneficial Associations, 11-16; Corpo- rations, 9-11. Of cities, see Municipal Corporations, 48- 108. BYSTANDERS. Effect of on privilege, see Libel and Slander, 56, 57. BURGLARY. 1. Opening Partly Opened Door. One who finds the door of a freight car partly open and pushes it further open in order to effect an entry for the purpose of com- mitting larceny therein commits a "break- ing" which is sufficient to support a charge of burglary, since the breaking is the re- moval of an obstruction which, if left as found, would prevent an entrance, and the fact that a portion of the space needed for the entrance is already open will not relieve the defendant from the penalty. State v. Lapoint (Vt.) 1916C-318. (Annotated.) 2. Unauthorized Entry by Employee. Where an employee of a harness company was given a key to the building so that he might open up in the morning, but was not given permission to enter the build- ing before or after hours, his entry out of hours by means of the key constitutes a breaking, and when it is accompanied by larceny of goods in the building, the em- ployee is guity of burglary. State v. Cor- coran (Wash.) 1916E-531. (Annotated.) 3. Proof of Other Offenses. In a prose- cution for a burglary by an employee of a harness company, who was given a key to the building, evidence that on prior trips he carried away other articles, that he padded an inventory of the stock, and that articles secreted around his work bench were removed, is admissible to show a general scheme, notwithstanding the rule that evidence of other distinct crimi- nal acts cannot be introduced to prove ac- cused guilty of an independent crime. State v. Corcoran (Wash.) 1916E-531. Notes. Burglary by opening, sufficiently to gain entrance, door or window partly open. 1916C-320. Unauthorized entry of premises by em- ployee of owner as burglarious entry. 1916E-534. CALL MEN CARRIERS. 145 CALL MEN. In city fire department, lee Municipal Corporations, 165, 166. CANALS. See Water and Watercourses; Irrigation. Liability for drowning of trespassing child, see Negligence, 93. 1. Grant of Water Power Construction. Complainant, the owner of all the water power of a river near a certain point, con- tracted to sell all his rights to defendants, who thereafter organized a power com- pany, erected a dam above complainant's old dam and power plant, after which complainant executed a deed to the power company conveying all his rights except a reservation of a certain amount of water for his mill; the deed closing with: "[Com- plainant] his heirs and assigns shall be entitled to receive his portion of any water which at any time hereafter, passing the dam of said company, may be caught by the aforesaid dam [old dam,]" etc. Held, in view of the situation of the parties, the subject-matter, and the object which the parties had in view, that the quoted clause was not a reservation of a right to the overflow from the dam with reference to the height of the dam (18 feet)/ when the deed was executed so as to prevent the power company from thereafter increasing its height so as to meet the growing de- mands of its business; the quoted clause not controlling nor limiting the height of the dam nor the power company's use of the water, but itself being controlled and limited by the use which the company may make of the water power for its purposes. Bridgewater Milling Corp. v. Fredericks- burg Power Co. (Va.) 1916D-1027. (Annotated.) 2. By a deed executed in 1874 defendant power company agreed to furnish com- plainant milling company 50 cubic feet of water per second for its mill; the power company agreeing to repair and put in order the canal to complainant's mill, and to raise the embankment, and complainant agreeing "to keep in good order, at their costs and charges, the said race from and after the time when it shall have been put in order as hereinbefore prescribed." Held, in view of the clear language of the quoted clause and the interpretation placed thereon by the parties as shown by their actions, that it was unquestion- ably complainant's duty, after defendants had put the canal in order, to keep it in repair, at its own cost. Bridgewater Mill- ing Corp. v. Fredericksburg Power. Co. (Va.) 1916D-1027. (Annotated.) 3. Grant of Water Power Construction. In a lease involving the right to draw water from a canal, the use of the term "horse power" to designate the standard 10 by which the water so drawn was to be measured shows that the contracting par- ties intended that the water should be used solely for producing power, not for con- sumption. Eastern Pa. Power Co. v. Le- high Coal, etc. Co. (Pa.) 1916D-1000. (Annotated.) CANCELLATION. See Rescission, Cancellation, and Reforma- tion, 11-35. Of lease by act of parties, see Landlord and Tenant, 44. CANDIDATE FOR OFFICE. Criticism of, see Libel and Slander, 10 14, 33, 37, 45-47, 146, 156. CANDIDATES. See Elections. CANVASS. Of votes, see Elections, 29-81. CAPITAL PUNISHMENT. Effect on incontestable clause, see Life Insurance, 27. CAPPERS. Solicitation by, see Attorney*, 22. CARE. Degrees of care defined, see Negligence, 4,5. CARPENTER. As within Federal Employers' Liability Act, see Master and Servant, 53. CAR REPAIRER. As within Federal Employers' Liability Act, see Master and Servant, 51. CARRIERS. 1. Regulation and Control of Common Carriers, 145. a. In General, 145. b. Regulation of Rates, 147. 2. Contracts Limiting Liability, 147. See Carriers of Goods; Carriers of Live Stock; Carriers of Passengers; Inter- state Commerce; Public Service Com- missions; Railroads; Street Railways. Combination of ocean carriers to restrain competition, see Monopolies, 16, 17. 1. REGULATION" AND CONTROL OF COMMON CARRIERS. a. In General. 1. Validity of Discriminatory Regula- tions of Carriers. Mo. Const, art. 12, 14, 146 DIGEST. 1916C 1918B. and Mo. Rev. St. 1909, 3232, forbidding discrimination, is binding upon the state, notwithstanding that by the Constitution railroads are declared to be public high- ways. State v. Missouri, etc. R. Co. (Mo.) 1916E-949. 2. Penalty for Failure to Pay Claim. Congress has so far taken over the sub- ject of a carrier's liability for loss or dam- age to interstate shipments by the act of Congress of June 18, 1910 (36 Stat. at L. 539, c. 309 (Fed. St. Ann. 1912 Supp. p. 112), and the act of June 29, 1906 (34 Stat. at L. 584, c. 3591 (Fed. St. Ann. 1909 Supp. p. 271), amending respectively 1 and 20 of the act of February 4, 1887 (24 Stat. at L. 386, c. 104), aa to invali- date the provisions of S. C. Civ. Code 1912, 2573, in so far as they may subject a terminal carrier to the prescribed pen- alty of $50 for failure to pay promptly a claim for damages to an interstate ship- ment, no matter where the loss occurred, unless the carrier proves that the shipment never came into its possession, or succeeds within the forty days allowed in shifting the loss by giving notice as to when, where, and by which carrier the property was damaged, or by showing that it used due diligence, but was unable to discover where the damage occurred; nor is the statute saved by calling it an exercise of the police power, nor by the proviso in the act of June 29, 1906, saving the rights of holders of bills of lading under existing law. Charleston, etc. E. Co. v. Varnville Furniture Co. (U. S.) 1916D-333. (Annotated.) 3. Bringing into the state property to be used in violation of its laws is a legitimate subject of punitive legislation akin to that of bringing in stolen property. State v. Missouri Pacific E. Co. (Kan.) 1917A-612. (Annotated.) 4. Regulation by Public Service Commis- sion Requiring Particular Class of Ser- vice. A provision, whether made by stat- ute or order of a commission, which fixes rates for the carriage of passengers or freight by a railroad company is to be dis- tinguished from an order which requires it to furnish a particular facility or per- form a duty imposed by reason of the exercise of rights and franchises which it has acquired from the state; the fact that some loss would result from compliance with the latter does not in and of itself conclusively establish the unreasonableness of the order, but is an important element to be considered with all the other facts bearing on that question. Hocking Valley E. Co. v. Public Utilities Commission (Ohio) 1917B-1154. (Annotated.) 5. Where a railroad sought to restrain the enforcement of an order of the public service commission fixing the maximum charge for commutation tickets, and the evidence as to whether such rate was un- reasonable and confiscatory was unsatis- factory and inconclusive, the rate should be allowed to go into effect to determine by actual experience its character, subject to the right of the road at any future time to seek its abrogation by judicial action for cause shown. Pennsylvania E Co. v. Towers (Md.) 1917B-1144. 6. In a suit by a railroad to enjoin en- forcement of an order of the public service commission fixing the maximum charge for commutation tickets, evidence is held to te insufficient to show that such rate was unreasonable and confiscatory. Pennsyl- vania E. Co. v. Towers (Md.) 1917B-1144. 7. In fixing railroad charges for any specific class of service, the point of in- justice is reached before that of confisca- tion, and to give the constitutional pro- hibition against confiscation any beneficial effect, it must be read to prohibit the fix- ing of rates at a point at which the rail road property will return to its owners enough to pay operating expenses and a fair profit on the investment. Pennsyl- vania E. Co. v. Towers (Md.) 1917B-1144. (Annotated.) 8. The mere fact that the rate fixed by the public service commission for com- mutation tickets is discriminatory, is not conclusive of its invalidity. Pennsylvania E. Co. v. Towers (Md.) 1917B-1144. (Annotated.) 9. In determining whether the action of the public service commission in fixing a railroad commutation rate was reasonable, the entire net revenue of the road, from whatever character of service derived, is not to be looked to, since the specific ser- vice regulated must have its charges so fixed as to return the road a normal profit on such specific branch of the service by itself, to avoid confiscatory action, which would ultimately defeat the end the regu- lation was intended to accomplish, the pro- motion of the public good and convenience. Pennsylvania E. Co. v. Towers (Md.) 1917B-1144. (Annotated.) 10. The action, of the state in establish- ing, through the public service commission. a single fare rate does not exhaust its power to regulate transportation charges, and, after establishing a single fare rate, it may thereafter make any reasonable regulation affecting mileage or commuta- tion rates t , leaving them so as to bring a proper return to the railroad for the spe- cific service, independent of the return to it from other services. Pennsylvania R. Co. y. Towers (Md.) 1917B-1144. (Annotated.) 11. Regulation by Public Service Com- mission Commutation Rates. Although the public service commission has no power to make auj order except so far as author- CARRIERS OF GOODS. 147 ity is conferred by the legislature, under Md. Code Pub. Civ. Laws, art. 23, 435, creating the commission, as amended by Acts 1912, c. 162, the commission has full power, so far as the legislature could grant it, to supervise all railroad tariffs and transportation charges within the state, including commutation rates. Penn- sylvania R. Co. v. Towers (Md.) 1917B- 1144. (Annotated.) 12. Excessive Rates Invalidity. A rate that is confiscatory or insufficient to pay the cost of transportation and other neces- sary outlays, as well as to return the car- rier a reasonable profit on the investment, is invalid as depriving the carrier of its property without due process of law. State Public Utilities Com. v. Chicago, etc. R. Co. (111.) 1917C-50. 13. Apportionment of Joint Rates. Where joint rates charged by interurban and street railroad companies are con- fiscatory as to one and excessive as to the other, the public utilities commission may adjust and apportion the joint rates so as to make them just and reasonable and suffi- cient to be reasonably remunerative to both companies. State Public Utilities Com. v. Chicago, etc. R. Co. (111.) 1917C- 50. 14. Power to Fix Rates Prior to Public Utilities Act. After passage of the public utilities act, but before it went into effect, street railway and interurban railway companies might without consent of the public utilities commission increase their rates, provided the rates established were reasonable and just. State Public Utili- ties Com. v. Chicago, etc. R. Co. (111.) 19J7C-50. Notes. Validity of statute imposing penalty on carrier of goods or live stock for failure to pay claim within certain time. 1916D- 335. Power of public service commission to compel carrier to furnish particular class of service. 1917B-1160. Validity of order by public service commission regulating commutation rates. 1917B-1153. b. Regulation of Rates. 15. If the difference in railroad rates is based upon a reasonable and fair differ- ence in conditions which equitably and logically justify a different rate, it is not an unjust discrimination. State v. Mis- souri, etc. R. Co. (Mo.) 1916E-949. 16. It needs neither a statute nor a con- stitutional provision to make an unjust discrimination in railroad rates unlawful, for such discrimination is forbidden by common law. State v. Missouri, etc. R. Co. (Mo.) 1916E-949. 17. Under Mo. Const, art. 12, 14, for- bidding unjust discrimination in railroad rates, it does not follow that because a discrimination is apparent it is an unjust discrimination. State v. Missouri, etc. R. Co. (Mo.) 1916E-949. 2. CONTRACTS LIMITING LIABILITY. 18. Power to Limit Liability. A com- mon carrier cannot relieve itself from the liability imposed by section 8994 1, Ohio General Code, by any rule or regulation contained in the schedule filed by it with the state public utilities commission. Erie R. Co. T. Steinberg (Ohio) 1917E-661. (Annotated.) CARRIERS OF GOODS. 1. Delivery to Consignee, 147. 2. Loss of or Injury to Goods, 147. a. In General, 147. b. Loss by Floods, 148. c. Penalty for Failure to Adjust Loss, 148. 3. Liability as Warehousemen, 148. 4. Limitation of Liability, 148. a. In General, 148. b. Consent to Limitation, 149. 5. Waiver of Liability, 149. 6. Charges, 149. 7. Connecting Carriers, 150. 8. Actions Against Carriers, 151. a. Actions for Loss, Injury or Delay, 151. (1) In General, 151. (2) Evidence, 151. (3) Instructions, 152. (4) Damages, 152. See Carriers; Carriers of Live Stock; Car- riers of Passengers; Interstate Com- merce. Recovery of undercharge in rate, see In- terstate Commerce, 11. 12. 1. DELIVERY TO CONSIGNEE. 1. Right to Inspection. Every consignee is entitled to an inspection of goods shipped in carload lots before he is bound to accept or reject the shipment. Burk- enroad Goldsmith Co. v. Illinois Central R. Co. (La.) 1917C-935. 2. LOSS OF OR INJURY TO GOODS, a. In General. 2. Carriers of Goods Duty of Consignee to Receive Damaged Goods. From the time that a carrier refuses to pay for dam- age to a shipment of goods, it is the con- signee's duty to take them, they not hav- ing become worthless by the carrier's act, with right to sue for damages; so that not taking them he is liable for storage charges. Holoman v. Southern R. Co. (N. Car.) 1917E-1069. 3. Right to Assume Common-law Liabil- ity. The U. S. Interstate Commerce Law 143 DIGEST. 1916C 1918B. (Act Feb. 4, 1887, e. 104, 24 Stat. 379). which was designed to prevent preferences, does not prohibit a carrier from assuming the common-law liability in carrying goods from one state to another. Grice v. Ore- gon-Washington B. etc. Co. (Ore.) 1917E- 645. Note. Liability of carrier for damages caused by act of God co-operating with its own negligence. 1918A-581. b. Loss by Floods. 4. Delay by Carrier Co-operating With Act of God. Whether a common carrier is liable for injury to goods, where, after being negligently delayed in transit, the goods, while still in transit, are injured by an act of God, such as an unprecedented flood, depends upon whether the negligent delay of the carrier has a proximate causal relation or a mere remote or casual rela- tion to the subsequent injury. Seaboard Air Line Ey. v. Mullin (Fla.) 1918A-576. (Annotated.) 5. A merely negligent delay in transport- ing goods, which delay causes the goods to be at a point in transit where they are in- jured or destroyed by an unprecedented flood that could not have been foreseen at the time of the delay, does not render the carrier liable for the direct consequences cf the flood upon the goods, if there was no malconduct by the carrier, and negli- gence of the carrier in providing reason- ably safe and adequate facilities for and attention to the safety of the goods does not directly contribute to the injury, even though the goods would not have been at the point where they were injured, and would hare escaped the flood but for the negligent delay of the carrier at a time when the flood could not have been fore- teen. Such an injury is not an ordinary natural sequence of the delay. Seaboard Air Line By. v. Mullin (Fla.) 1918A-576. (Annotated.) 6. Act of God. Where in the course of transportation goods are injured by an un- precedented flood and there is no negli- gence on the part of the common carrier in taking care of the goods or otherwise, the loss is attributable to the flood as an act of God and the carrier is not liable. Seaboard Air Line By. v. Mullin (Fla.) 1918A-576. c. Penalty for Failure to Adjust Loss. 7. Bights of Undisclosed Principal as Against Carrier. Under X. C. Bevisal 1905, 2634, as amended by Bevisal Supp. 1913, 2634, providing, relative to claims for loss of or damage to property while in the possession of a car- rier, that failure to adjust and pay such claims within the periods therein de- scribed shall subject the carrier to a pen- alty of $50, to be recovered by "any con- signee aggrieved" or the consignor, when he was the owner of the property at the time of shipment and at the time of suit, and is therefore the party aggrieved, but that unless such consignee or consignor re- cover the full amount claimed no penalty shall be recovered, where the nominal con- signee was acting for his wife, who was the real party in interest, and the owner of the goods, she could recover the pre- scribed penalty, though she was not dU- closed as principal, as the right to recover the penalty is incidental to the right to recover for the loss or damage, and there is no real danger of the carrier being sub- jected to a double liability, since, if the agent sues and recovers before the prin- cipal is disclosed, the principal is bound by his act. Horton v. Southern B. Co. (N. Car.) 1918A-824. (Annotated.) 3. LIABILITY AS WABEHOUSEMEN. 8. Duty of Carrier After Arrival at Des- tination. Though a carrier is authorized by S. Dak. Civ. Code, 1557, to retain the goods until the bill of lading is surrendered or indemnity furnished, it is not relieved from its duty to properly protect and care for the property in the meantime. Dun- lap v. Great Northern B. Co. (S. Dak.) 1916D-805. 9. Befrigeration of Fruit. Where a car- rier refused to deliver a car of apples to plaintiff on arrival at destination because of plaintiffs inability to surrender the bill of lading, due to its loss, and continued to hold the apples in the car, for which demurrage was charged, and during the time the apples were so held the car was not properly ventilated or iced, the car- rier's liability is not changed to that of a mere warehouseman after tender of de- livery on production of the bill of lading. Dunlap v. Great Northern B. Co. (S. Dak.) 1916D-805. 10. Where apples were shipped in a re- frigerator car requiring icing and ventila- tion, failure to properly ice and ventilate the car while the terminal carrier was holding the goods, because of its refusal to deliver without a surrender of the bill of lading which had been lost, did not con- stitute ordinary care, and hence it is liable for the injury sustained, though regarded as a warehouseman under S. Dak. Civ. Code, 1377, requiring a depositary for hire to use at least ordinary care for the pres- ervation of the thing deposited. Dunlap v. Great NorthernJR. Co. (S. Dak.) 1916D- 805. 4. LIMITATION OF LIABILITY, a. In General. 11. Burden of Proof. A carrier, seeking to reduce its liability for goods lost in CARRIERS OF GOODS. 149 transit, must allege and prove facts en- titling it to the reduction. Grice v. Oregon-Washington R., etc. Co. (Ore.) 1917E-645. b. Consent to Limitation. 12. Authority to Consent to LimitatioB. A transfer company, authorized to deliver household goods to a particular railroad company for shipment, has no authority to consent to a reduction of the carrier's common-law liability, and the agreement reducing the liability is not binding on the shipper. Grice v. Oregon-Washington R., etc. Co. (Ore.), 1917E-645. (Annotated.) 5. WAIVER OF LIABILITY. 13. Authority to Consent to Limitation of Liability. For a waiver of liability made by a drayman to an express com- pany to become binding on a shipper by ratification, the company must show that the shipper was fully advised regarding the waiver soon enough to have rejected it. Grice v. Oregon-Washington R., etc. Co. (Ore.) 1917E-645. (Annotated.) 14. Custody of goods at the moment of shipping is not such indicia of authority that agency to waive liability on the part of an express company by which he is ship- ping them will be presumed\ Grice v. Oregon- Washington R., etc. Co. (Ore.)' 1917E-645. (Annotated.) Note. Rights as against carrier of undisclosed principal of person shipping goods or live stock. 1918A-826. 6. CHARGES. 15. Implied Liability of Consignee. Where peaches were consigned to defend- ant to be sold on commission, defendant to remit the proceeds to his principal, less commission and freight charges, and the plaintiff railroad company, without knowl- edge of defendant's agency, charged de- fendant by mistake less freight than was called for by the rate filed with the Inter- state Commerce Commission, the fact that the mistake was not discovered and the additional freight demanded until after settlement between the defendant and his principal does not affect plaintiff's right to recover, since under such circumstances the plaintiff has the right to treat defend- ant as the owner of the goods, and the defendant, in allowing plaintiff to act on that assumption and delivc r the goods, impliedly agreed to pay the transportation charges. Pennsylvania R. Co. v. Titus (N. Y.) 1917C-862. (Annotated.) 16. Duty to Collect Lawful Charge. Un- der the U. S. Interstate Commerce Act the freight rate on an interstate shipment is the lawful rate existing at the time of the shipment, which rate the carrier is re- quired to collect. Central of Ga. R. Co. v. Southern Ferro Concrete Co. (Ala.) 1916E-376. 17. Liability for Undercharge. Liability for the fixed freight charges is not affected by the carrier's waiver or loss of its lien on the goods by delivery without collect- ing the lawful rate, and conference ruling No. 314 of the Interstate Commerce Com- mission of May 1, 1911, governing a car- rier's rights to collect freight under- charges, properly left it to the courts hav- ing jurisdiction to declare in each case whether the consignor or consignee is legally liable for the undercharges. Cen- tral of Ga. R. Co. v. Southern Ferro Con- crete Co. (Ala.) 1916E-376. (Annotated.) 18. Liability of Consignee for Under- charge. The consignee's acceptance and removal of the goods sold to it f. o. b. its station with knowledge that the carrier was giving up a lien thereon for freight undercharges does not create an obliga- tion on its part to pay the freight charges at the request and for the convenience of the consignor beyond the amount stated. Central of Ga. R. Co. v. Southern Ferro Concrete Co. (Ala.) 1916E-376. (Annotated.) 19. Reasonableness. A state commission having adopted demurrage rules under au- thority conferred by Pub. Acts 1911, No. 173, 1, amending Pub. Acts 1909, No. 300, 3, 8, such rules though applicable to in- terstate commerce, are valid and applicable to intrastate shipments, in the absence of evidence presented by an objecting carrier to show their unreasonableness, under Pub. Acts 1909, No. 300, 26, providing that, in all actions under such section to avoid orders of the Commission, the burden of proof shall be on the complainant to show, by clear and satisfactory evidence, that the order is unlawful or unreasonable. Michigan Central R. Co. v. Michigan R. R. Com. (Mich.) 1916E-695. (Annotated.) 20. Demurrage, Power of State to Regu- late. By Act of Cong. June 20, 1906, c. 3591, 34 Stat. 584 (Fed. St. Ann. 1900 Supp. p. 255) the Interstate Commerce Commission Act was amended by section 1 so as to define the term "transportation" to include cars, vehicles, and all instru- mentalities and facilities for the carriage of goods and all services in connection with the receipt, delivery, elevation, and trans- fer in transit, etc., requiring that the car- rier shall provide such transportation on reasonable request and establish just and reasonable rates applicable thereto. Sec- tion 6 declares that the schedules printed and filed by the carrier shall contain a classification of freight in force, and shall state separately all terminal, storage, icing charges, or the value of service rendered 150 DIGEST. 19160 1918B. to the passenger, shipper, or consignee. Held, that terminal and storage charges in- clude demurrage, and, the Interstate Com- merce Commission having tentatively ap- proved the revised car demurrage rules adopted by the American Railroad Asso- ciation, the state legislature has no juris- diction to pass Pub. Acts 1911, No. 173, 1, amending Pub. Acts 1909, No. 300, 3, 8, so far as they attempted to confer on the State Railroad Commissions power to adopt and enforce different demurrage rules applicable to interstate commerce. Michigan Central R. Co. v. Michigan R. R. Com. (Mich.) 1916E-695. (Annotated.) 21. Where a rate or charge, based upon the ralue of the articles transported, is provided in the schedule filed with the public utilities commission of the state, it is the duty of the transporting company to require the shipper to declare the value and to demand, collect, and receive from him the rate fixed in its schedule filed with the state commission. Erie R. Co. v. Stein- berg (Ohio) 1917E-661. 22. Where a copy of such schedule is printed and filed as provided by sections 505 and 506, Ohio General Code, shippers and travelers are charged with notice of the tariffs named in this schedule and must abide thereby, unless the same be found unreasonable by the public utilities com- mission of the state. Erie R. Co. v. Stein- berg (Ohio) 1917E-661. 23. Necessity of Adhering to Published Schedule. Where a railroad has filed a schedule under the provisions of sections 505 and 506, Ohio General Code, showing all rates, fares, and charges for trans- portation of passengers and property, and any service in connection therewith, such rates, fares, and charges named in the schedule become the legal rate for the ser- vice rendered, and must be charged by it and paid by the shipper or passenger with- out deviation therefrom. Erie R. Co. v. Steinberg (Ohio) 1917E-661. Notes. Implied agreement by consignee of goods to pay freight charges. 1917C-864. Validity of statute, ordinance or rule pro- viding for reciprocal demurrage. 1916E- 701. Liability as between consignor and con- signee for payment of freight undercharges on interstate shipment. 1916E-378. 7. CONNECTING CARRIERS. 24. Injury to Goods. Where freight has been delivered in good order to a common carrier for transportation, its then existing condition is presumed to continue to exist until the contrary is shown, and where it has been transported by successive con- necting carriers, and delivered to the con- iignee in a damaged condition, it will be presumed that the injury has been received while in the possession of the last carrier, and the burden is on it to show the con- trary. Dunlap T. Great Northern R. Co. (S. Dak.) 1916D-805. 25. Whera plaintiff shipped certain ap- ples to M., and without delivery directed that the shipment be continued to F. over defendant's line, transportation should not be regarded as involving two separate and distinct shipments, but a continuous ship- ment from starting point to final destina- tion, within the rule that where property is delivered to an initial carrier for trans- portation in good condition, and is deliv- ered in bad condition by the terminal car- rier, it will be presumed that the injury occurred on the line of the terminal car- rier. Dunlap v. Great Northern R. Co. (S. Dak.) 1916D-805. 26. Duty of Carrier as to Refrigeration. Where apples were shipped in a refrigera- tor car over lines of connecting carriers, defendant terminal carrier is charged with knowledge that the contents of the car re- quired cooling and ventilation, and, by accepting the car at the junction point without opening or examining its contents, defendant assumes the risk as against the consignee of its having been kept prop- erly cooled and ventilated up to that time, and, by undertaking to continue the trans- portation to destination, defendant as- sumes the obligation of keeping it cooled and ventilated until it was delivered. Dunlap v. Great Northern R. Co. (S. Dak.) 1916D-805. 27. Liability of Initial Carrier. Under the Carmack amendment to the U. S. in- terstate commerce act (Act Feb. 4, 1887, c, 104, 20, 24 Stat. 386 [3 Fed. St. Ann. 850] as amended by Act June 29, 1906, c. 3591, 7, 34 Stat. 593 [Fed. St. Ann. 1909 Supp. p. 273], the initial carrier, as principal, is liable not only for its own negligence, but that of any agency which it may use, and is considered to have adopted its connecting carrier as its agent. Burkenroad Goldsmith Co. v. Illinois Cen- tral R. Co. (La.) 1917C-935. (Annotated.) 28. Where a carload of feed was water- damaged in transit, and the sealed car was delivered at the point of destination to a branch railroad for delivery to the con- signee, and was by him rejected on ac- count of said damage, and the loaded car was thereupon returned to the delivering carrier, and the feed suffered further de- preciation, before it was sold by said car- rier, held, that the initial carrier is liable for the damages to the feed not only from water, but from the failure of its agent, the delivering carrier, to promptly dispose of the feed to the best advantage. Bur- kenroad Goldsmith Co. v. Illinois Central R. Co. (La.) 1917C-935. (Annotated.) CARRIERS OF GOODS. 151 29. Liability of Initial Carrier. If in- trastate freight, addressed to a place be- yond the usual route of a common carrier who first received it, is lost or injured, or if the shipper is damaged by the unneces- sary and unreasonable delay in said ship- ment, it must, within a reasonable time after demand, give satisfactory proof to the consignor that the loss, injury, or dam- age did not occur while it was in its charge, or because of unnecessary and un- reasonable delay caused by it, or it will be liable therefor. The demand for such proof must be direct and specific, and a imple request or demand for payment of the loss or damage does not bring the ship- per within the requirements of the statute, which provides for a demand for proof that the damage or injury was not caused bv the initial carrier. Missouri, etc. E. Co. v. Foote (Okla.) 1917D-173. 30. The only liability assumed by an initial common carrier of intrastate com- merce in this state, unless it contracts for a greater responsibility, is that it will de- liver the shipment to the end of its route, in the proper direction of its destination, to some other competent carrier, carrying to the place of address, or connected with those who thus carry, and when it has done that its responsibility ceases, subject, of course, to a proper response to the demand of the shipper for proofs that the loss, injury, or unnecessary delay did not occur on its line. Missouri, etc. B. Co. v. Foote (Okla.) 1917D-173. 31. Liability of Initial Carrier. The Carmack Amendment to the Hepburn Act of Cong., approved June 29, 1906 (34 Stat. 593 [Fed. St. Ann. 1909, Supp. p. 273]), c. 3591, 7, pars. 11, 12, declaring that every railroad company receiving property for transportation from one state to an- other shall issue a receipt therefor, and shall be liable for any loss caused to it by any carrier to which the property may be delivered or over whose lines it may pass, makes an initial carrier liable for delay by a connecting carrier, though the bill of lading otherwise provided. South- ern Pacific B. Co. v. A. J. Lyon & Co. (Miss.) 1917D-171 8. ACTIONS AGAINST CAEBIEES. a. Actions for Loss, Injury, or Delay. (1) In General. 32. Remedies of Shipper. Where goods have been delivered to a common carrier for transportation and the common carrier converts the property to its own use, tho shipper may maintain an action for dam- ages for breach of contract of carriage or may sue for conversion . Erie B. Co. v. Steinberg (Ohio) 1917E-661. 33. Where neither the shipper nor the carrier had any reason to believe that the shipment of beans would spoil after four or five days in a closed car, and the beans spoiled in conseqeunce of negligent failure to transport them within a reasonable time, the carrier cannot relieve itself from liability on the ground that it had no no- tice that the beans were in an abnormal condition. Lyons v. Grand Trunk B. Co. (Mich.) 1917D-162. (Annotated.) (2) Evidence. 34. Authenticity of Reply Letter. In an action for damages to shipments of to- bacco, where it appeared that the shipper wrote a letter to the agent of the terminal carrier in the state advising him of the damage, the consignee's or agent's refusal to accept it, and presenting a claim for a certain amount, and that he later received a typewritten letter on a letterhead of the terminal carrier, office of its freight claim adjuster, and signed by such adjuster, ad- dressed to the shipper and relating to its claim, and denying responsibility because the damage was due to a flood, stating its sale for shipper's account and balance to his order, such letter is prima facie genuine and admissible in evidence without proof of the handwriting or other proof of its authenticity. Louisvile, etc. B. Co. v. O'Brien (Ky.) 1917D-922. (Annotated.) 35. Agreed Valuation of Goods. A bill of lading provided that the amount of any loss or damage for which the carrier was liable should be computed upon the basis of the value of the property, being the bona fide invoice price, unless a lower value had been represented in writing by the shipper, or agreed upon, or is deter- mined by the classification or tariff upon which the rate was based. A carrier lost goods delivered under such a bill. Neither the bill of lading nor the statement of facts on which the cause was tried. showed the valuation of the property. The state- ment of facts failed to show that a value lower than the invoice price had been rep- resented by the shipper, or that a lower value had been agreed upon, or the value as determined by the classification or tariff upon which the rate was based. It is held that, as none of these matters were dis- closed by the pleadings or statement of facts, the carrier was liable for the actual value of the goods under the common-law rule. Grice v. Oregon-Washington B., etc. Co. (Ore.) 1917E-645. 36. Proof of Value. Where, in an ac- tion against a carrier for injuries to apples in transportation, it appeared that the apples in their damaged condition had no market value, and plaintiff's agent was only able to get one offer of $2.75 a barrel from one who intended to peddle the apples in the country, to whom he sold them at such price, the fact of such sale, assuming that it w?.s fairly made, is admissible to 152 DIGEST. 1916C 1918B. show prima facie that such was the actual value of the apples in their injured con- dition. Dunlap v. Great Northern B. Co. (S. Dak.) 1916D-805. (Annotated.) 37. Presumption from Injury to Part of Goods. Where apples shipped in a car were in first-class condition when placed in the car, and all of which were subjected to exactly the same conditions from that time until the car was opened at destination, when a few of the barrels were opened, the contents examined, and all uniformly found to have been seriously damaged, it will be presumed that all of the apples in the car were similarly damaged, and the car- rier cannot successfully claim that there was no proof of damage except as to the barrels examined. Dunlap v. Great North- ern B. Co. (S. Dak.) 1916D-805. (3) Instructions. 38. In auch case, where the evidence showed that the longer tobacco was per- mitted to remain wet the greater the dam- age, and there was no evidence to the con- trary, the court did not err in assuming that the tobacco was further damaged by the delay, and in leaving the extent of the damage to the jury. Louisville, etc. B. Co. v. O'Brien (Ky.) 1917D-922. 39. Where tobacco in transit was dam- aged and delayed by flood, and it appeared that even after the shipment was started from that point to destination the tracks were in bad condition, though it did not ap- pear that such condition was the cause of the delay, that there was a through train to destination, and that the usual shipping time between the place of origin and de- livery was about five days, and that there was a delay of twenty days from the inter- mediate point, the court did not err in as- suming that the delay was unreasonable. Louisville, etc. E. Co. v. O'Brien (Ky.) 1&17D-922. 40. Where, in an action for damages to a shipment of beans, due to negligent delay in transportation, it appears that defend- ant retained the money for which the beans were sold, and the contract price is the only evidence of the market price at the place of delivery, it is proper to in- struct that plaintiff, if entitled to recover, should recover the contract price at the place of delivery at the time the shipment should have been delivered. Lyons v. Grand Trunk E. Co. (Mich.) 1917D-162. (Annotated.) (4) Damages. 41. In an action for damages occasioned by unnecessary and unreasonable delay in the shipment of freight, only such damages may be recovered as were contemplated, or might reasonably be supposed to have en- tered into the contemplation of the parties to the contract of carriage, and if the shipper expects to charge the carrier with any special damages, he must communi- cate to the carrier, at or prior to the time of shipment, all the facts and circum- stances of the case which do not ordinarily attend the carriage of such freight, or the peculiar character and value of the prop- erty carried; otherwise, such peculiar cir- cumstances cannot be contemplated by the carrier. Missouri, etc. E. Co. v. Foote (Okla.) 1917D-173. (Annotated.) 42. Delay in Transportation Damages. In an action for damages to shipments of tobacco, limited by the trial court to the damages resulting from an unreasonable delay between an intermediate point and destination, and to the difference between the market value of the damaged shipment when delivered and its market value when it should have been delivered, the evidence is held to sustain a verdict for plaintiff for $1,000. Louisville, etc. E. Co. v. O'Brien (Ky.) 1917D-922. 43. Delay In Transportation, Where goods were sold at a stipulated price if they arrived on schedule time, but the carrier was not informed of that arrange- ment, the measure of damages is the dif- ference between the market price of the goods at the time when they should have arrived and when they did. Southern Pa- cific E. Co. v. A. J. Lyon & Co. (Miss.) 1917D-171. (Annotated.) 44. Delay in Transportation, The meas- ure of damages for delay in transporting goods to market is the difference between the market value at the time and place at which delivery should have been made and the same value when delivery was actually made, whether the difference was the result of a decline in the market or of an injury suffered by the goods in con- sequence of the delayed delivery. Lyons v. Grand Trunk B. Co. (Mich.) 1917D- 162. (Annotated.) 45. Delay In Transportation Damages. Under section 2869, Okla. Eev. Stat. 1910 Ann. the detriment caused by a carrier's delay in the delivery of freight is deemed to be the depreciation in the intrinsic value of the freight during the delay, and also the depreciation, if any, in the market value thereof, otherwise than by reason of a depreciation in its intrinsic value, at the place where it ought to have been deliv- ered, and between the day at which it ought to have been delivered and the day of its actual delivery. Missouri, etc. E. Co. v. Foote (Okla.) 1917D-173. (Annotated.) Note. Measure of damages for carrier's delay in transporting goods resulting in deprecia- tion in value. 1917D-164. CARRIERS OF LIVE STOCK CARRIERS OF PASSENGERS. 153 CARRIERS OF LIVE STOCK. 1. Loss or Injury to Live Stock. 2. Limitation of Liability. 3. Actions. 1. LOSS OR INJURY TO LIVE STOCK. 1. Improper Loading by Shipper. Where a carrier furnishes a car to a shipper for the purpose of shipping live stock, and the shipper loads the live gtock himself and in doing so overcrowds the animals or places in one compartment animals of dif- ferent kinds, the risk of loss or injury is upon the shipper, though the manner of loading is discoverable if it is not actually discovered, by the carrier. Illinois Central R. Co. v. Rogers (Ky.) 1916E-1201. (Annotated.) 2. Injury Due to Propensity of Animals. A carrier of live stock may stipulate for exemption from liability for injuries due to the natural propensities of the animals. Adams Express Co. v. Allendale Farm (Va.) 1916D-894. (Annotated.) Note. Liability of carrier of live stock for in- jury to stock where shipper loads stock improperly. 1916E-1203. 2. LIMITATION OF LIABILITY. 3. A express company may stipulate, in a contract for the carriage of live stock, for . exemption from liability for delay, injuries to, or loss of, the animals, unless caused by the negligence of its age'nts or employees. Adams Express Co. v. Allen- dale Farm (Va.) 1916D-894. 3. ACTIONS. 4. Evidence of Negligence Insufficient. Evidence, in an action for injuries to live stock en route, held not to show, as against a demurrer thereto, any injury in transit to which the alleged paralysis of the animal could be reasonably attributed. Adams Express Co. v. Allendale Farm (Va.) 1916D-894. 5. Burden of Showing Negligence. The mere fact that a cow shipped by express was found to be sick after being unloaded at an intermediate point in apparently good condition, was not such proof in in- jury to the cow as to shift the burden upon the express company of proving its freedom from fault under Va. Code 1904, 12941, making the fact of damage or loss prima facie evidence of negligence by the carrier, even if the statute is applicable to an interstate shipment. Adams Ex- press Co. v. Allendale Farm (Va.) 1916D- 894. 6. One suing for damages to cattle shipped must show some injury to the ani- mal which did not result from its inherent nature or defects, in order to require the carrier to show that the injury was not through its fault. Adams Express Co. v. Allendale Farm (Va.) 1916D-894. CARRIERS OF PASSENGERS. 1. Duty to Receive for Carriage, 154. 2. Construction and Validity of Statu- tory Regulation, 154. 3. Tickets and Fares, 154. a. Rate of Fare, 154. 4. Who are Passengers, 155. a. Persons Intending to Ride, 155. b. Person Attending Live Stock, 155. c. Person Alighting, 155. 5. Duty in Carriage of Passengers, 155. a. Duties and Liabilities in General, 155. b. To Provide Safe Cars and Prem- ises Generally, 155. C. To Protect Passengers, 158. (1) From Carrier's Servants, 156. (2) From Arrest, 156. d. To Sick Passenger, 156. e. To Announce Station, 157. f. To Stop at Passenger's Destina- tion, 157. g. To Passenger Boarding or Alight- ing, 157. (1) In General, 157. (2) Assisting Passenger, 157. h. Passenger's Assumption of Risk, 158. i. Duty Respecting Appliances, 158. j. Duty to Provide Safe Place for Baggage Delivery, 158. 6. Right to Make Rules, 159. 7. Ejection for Invalidity of Ticket, 159. 8. Contributory Negligence, 159. a. In General, 159. b. Riding on Steps or Platform, 159. 9. Actions for Injuries, 159. a. Pleading, 159. b. Presumption of Negligence, 160. c. Burden of Proof, 160. d. Admissibility of Evidence, 160. e. Sufficiency of Evidence, 160. f. Quseions for Jury, 161. g. Instructions, 161. 10. Jitneys and Taxis, 162. See Carriers; Carriers of Goods; Carriers of Live Stock; Ferries; Public Ser- vice Commissions. Evidence, res gestae, see Admission and Declarations, 19. Deportation of undesirables, see Aliens, 17. Liability for unnecessary burial at sea, see Dead Body, 3. Elevator as carrier, see Elevators, 2. Prevention of jitneys from infringing street railway franchise, see Injunc- tions, 3. Regulations of carriers as governing street railways, see Street Railways, 4, "Ocean Wave" amusement device as car- rier, see Theaters and Amusements, 8. 154 DIGEST. 19160 1918B. Scenic railway as carrier, see Theaters and Amusements, 7. 1. DUTY TO RECEIVE FOR CAR- RIAGE. 1. Refusal to Carry Disabled Person. Any person is entitled to be received as a passenger on payment of fare, notwith- standing a seeming incapacity on his part to take care of himself, if, in fact, he is competent to travel alone without requir- ing other care than that which the law requires a carrier to bestow on all persons alike. The disability which will disentitle a person to transportation may be mental or physical, and in respect to physical disability the carrier is under no obliga- tion to receive as a passenger one who, without an attendant, is unable because of extreme age or tender years to care for himself, and the same test applies as to other physical disabilities. Hogan v. Nashville Interurban R. Co. (Tenn.) 1916C-1162. (Annotated.) 2. A man about 26 years of age, who has always had to walk with two crutches, but who for 10 years has continuously traveled alone and unattended in trains, street cars, etc., and who only requires ordinary care, cannot be excluded from a passenger train on the ground of his physical disabilities. Hogan v. Nashville Interurban R. Co. (Tenn.) 1916C-1162. (Annotated.) 3. Statute Requiring Free Transporta- tion of Police Officers. The N. J. Act of May 26, 1912 (Pamph. L. p. 235), in so far as it requires street railway companies to grant free transportation to police officers when in uniform or on duty, is a constitutional exercise by the legislature of its police power. State v. Sutton (N. J.) 1917C-91. (Annotated.) 2. CONSTRUCTION AND VALIDITY OF STATUTORY REGULATION. 4. Acts 1875, c. 139 (Shannon's Tenn. Code, 3046), abrogating the common-law rule as to rights of action for exclusion from public conveyances, and declaring that no carrier of passengers need carry or admit any person whom it chose not to, was abrogated by Acts 1897, c. 10, 14, declaring all corporations, etc., operating railroads to be "common carriers," which term depends upon whether the carrier may determine who he will carry or whether he is bound to carry all alike, and which, under Acts 1907, c. 433, declaring that any incorporated interurban railroad company shall have the same powers and privileges as railroad companies, subject to the same duties and obligations, in- cludes an interurban street railway com- pany. Hogan v. Nashville Interurban R. Co. (Tenn.) 1916C-1162. (Annotated.) 5. Power to Regulate Rates Validity of Grant. Public utilities act, providing for the regulation of the rates of street railway companies, does not violate 111. Const., art. 11, 4, declaring that no law shall be passed by the general assembly granting a right to construct and operate a street railroad within a city without requiring the consent of the local authori- ties, for the prohibition does not deprive the general assembly of the right to regu- late the rates. State Public Utilities Com. v. Chicago, etc. R. Co. (HI.) 1917C-50. (Annotated/) 6. Burden of Showing Reasonableness. Where rates of a public utility as a street railroad are attacked as unjust, it has the burden of showing that the rates are reasonable and not excessive. State Pub- lic Utilities Com. v. Chicago, etc. R Co (HI.) 1917C-50. 7. The public utilities act, providing for the regulation of the rates of street car companies, is not affected by 111. Const., art. 4, 34, authorizing the passage of any law, local, special, or general, provid- ing a scheme or charter for the territory embraced within the limits of the city of Chicago; the section expressly except- ing article 11, 4, giving the legislature rate-making powers, from its operation. State Public Utilities Com. v. Chicago, etc. R. Co. (HI.) 1917C-50. (Annotated.) 3. TICKETS AND FARES, a. Rate of Fare. 8. Reduced Fare for Militia. The one- cent militia fare law (Mo. Rev. St. 1909, 8396) providing that railroads shall carry between points in the state the National Guard when ordered in military duty by the Governor at one cent a mile for each officer and enlisted man, with not to exceed 100 pounds of baggage or camp equipage, constitutes unjust discrimina- tion under Mo. Const., art. 12, 14, provid- ing that the general assembly shall pass laws to prevent unjust discrimination in passenger rates, in view of Rev. St. 1909, 3232, fixing the maximum fare for adult passengers at two cents a mile and for children under 12 at one cent a mile, as such rate is prima facie a reasonable rate, and there is nothing to show that the cost of transporting the National Guard would be cheaper than carrying any other pas- senger. State v. Missouri, etc. R. Co. (Mo.) 1916E-949. (Annotated.) 9. Reduced Fare for Militia. The one- cent militia fare law (Mo. Rev. St. 1909, 8396) is not in violation of Mo. Const., art. 12, 23, forbidding discrimination be- tween or in favor of transportation com- panies and individuals, as it is a case of discrimination in favor of the state or the CARRIERS OF PASSENGERS. 155 United States if it should be found that the latter recoups the state for the outlay. State v. Missouri, etc. R. Co. (Mo.) 1916C- 949. (Annotated.) 10. The one-cent militia fare law (Mo. Rev. St. 1909, 8396) violates Mo. Const., art. 12, 14, providing that the general assembly shall pass laws to prevent un- just discrimination in passenger tariffs, etc., conceding that a one-cent fare is un- just discrimination, as the legislature may not fail to carry out the command of the Constitution and do the diametrically con- trary thing. State v. Missouri, etc. R. Co. (Mo.) 1916E-949. (Annotated.) 4. WHO ARE PASSENGERS, a. Persons Intending to Ride. 11. When Intending Passenger Becomes Such. One who attempts to board a mov- ing train is not a "passenger," though he may have purchased a ticket entitling him to passage thereon. Kentucky Highlands R. Co. v. Creal (Ky.) 1917C-1205. (Annotated.) 12. Person Attempting to Board Moving Car. Where plaintiff left a street car, when it stopped at a point where passen- gers were received and discharged, and after it was in motion attempted to board the car again, he was not then a passen- ger, and the conductor was under no duty to render him assistance, though bound, if he saw him in danger, to use ordinary care to prevent injury. Jonas v. South Covington, etc. St. R. Co. (Ky.) 1916E- 965. Note. When intending passenger actually be- comes such. 1917C-1206. b. Person Attending Live Stock. 13. A person in charge of live stock, riding under a contract which evidences his right of transportation on the train transporting the stock shipment, and con- templates his carriage to care for the stock, is a "passenger for hire." Mc- Gregor v. Great Northern R. Co. (N. Dak.) 1917E-141. (Annotated.) c. Person Alighting. 14. A passenger alighting from a street car is still a "passenger" until he has had a reasonable opportunity to reach a place of safety. Louisville R. Co. T. Kennedy (Ky.) 1916E-996. 5. DUTY IN CARRIAGE OF PASSEN- GERS. a. Duties and Liabilities in General. 15. Duty to Anticipate Unusual Peril. A carrier of passengers need not antici- pate unusual and unexpected perils to its passengers. Louisville, etc. R. Co. v. O'Brien (Ky.) 1916E-1084. 16. Violation of Rule not Enforced. By failing to enforce a rule, a railroad com- pany may allow it to become a dead let- ter, and in effect waive, abandon or abro- bate it. Florida East Coast R. Co. v. Car- ter (Fla.) 1916E-1299. (Annotated.) 17. Degree of Care Required. To pro- vide for the safety of passengers, a car- rier must exercise the highest degree of care reasonably to be expected from human vigilance and foresight, in view of the character of the conveyance adopted, and consistent with the practical opera- tion of the business. Dibbert v. Metro- politan Investment Co. (WEs.) 1916E- 924. Note. Operating car or train with insufficient number of employees as negligence on part of carrier of passengers. 1917C-73. b. To Provide Safe Cars and Premises Generally. 18. A person so traveling will be deemed to have assumed all risks reason- ably incident to the mode of transporta- tion utilized, but not those risks and dan- gers produced by unnecessary and unusual occurrences not incident to the proper handling of a train of that kind. Mc- Gregor v. Great Northern R. Co. (N. Dak.) 1917E-141. (Annotated.) 19. A railway company is not relieved from its obligation to exercise great care for the safety of such passenger. Mc- Gregor v. Great Northern R. Co. (N. Dak.) 1917E-141. (Annotated.) 2. A carrier, though required to in- spect its trains for the safety of its pas- sengers, need not keep up a continuous inspection and is not chargeable with knowledge at each moment of the con- dition of every part of its train. Louis- ville, etc. R. Co. T. O'Brien (Ky.) 1916E- 1084. 21. From the mere fact that the regula- tions of the United States required de- fendant, as the operator of a steamship carrying passengers to place lifeboats so that they could be launched safely in less than two minutes, it cannot be ruled, as a matter of law, that an easily removable chain bridging the unguarded space in the rail, through which a lifeboat passed when launched, is the only practicable protec- tion, since that is a question of fact; it being possible that the jury may find tkat passengers should have been excluded from the neighborhood. Hanley v. East- ern Steamship Corporation (Mass.) 1917D-1034. (Annotated.) 156 DIGEST. 1916O 1918B. 22. Where the steamship on which de- ceased traveled carried several hundred passengers, in view of the high responsi- bility resting. on the defendant steamship company as a common carrier, negligence may be found in ita failure to inspect the vessel, by which a gap in the rail, to al- low the launching of a lifeboat, was left unguarded by the usual chain for several hours. Hanley v. Eastern Steamship Cor- poration (Mass.) 1917D-1034. (Annotated.) 23. Liability to Person in Charge of Live Stock. It is held that, under the terms of the contract and the circum- stances of the case, a caretaker of a ship- ment of horses who at the time of the accident was riding in the stock car, in- stead of in the caboose, was not guilty of contributory negligence as a matter of law. McGregor v. Great Northern R. Co. (N. Dak.) 1917E-141. (Annotated.) 24. Injury to Passenger Negligence- Duty as to Passenger on Step. Where a street-car passenger rode on the step thereof and was injured by the street railroad's bringing the car into collision with another standing still, in broad day- light, without obstruction to view, the railroad is guilty of negligence, since, if a passenger, on account of the crowded con- dition of a street car, takes up his posi- tion on a side step or platform, he volun- tarily assumes the natural, obvious risks attending his position, but the company, in accepting his fare with knowledge of the increased danger of his position, is under greater obligation to use greater precaution in the operation of the car for his protection. Kelly v. Santa Barbara Consol. B. Co. (Cal.) 1917C-67. Notes. Liability of carrier by water for injury to or death of passenger falling over- board. 1917D-1038. Liability of carrier to person riding on drover's pass or in charge of stock. 1917E-149. Act of carrier in permitting cars to be overcrowded as constituting nuisance. 191SA-994. c. To Protect Passengers. (1) From Carrier's Servants. 25. Insulting Language to Passenger. Objectionable remarks, addressed by a street-car conductor to a patron of the road, referring to her personal appear- ance, while on the car ; which mortify and humiliate her, are actionable, and the car company will be held in damages there- for Haile v. New Orleans B., etc. Co. (La.) 1916C-1233. (Annotated.) 26. The only negligence for which a passenger steamship company is responsi- ble, in an action for conscious suffering of a passenger, drowned when flung over- board by the lurching of the ship, is that of the company's servants or agents. Hanley v. Eastern Steamship Corporation (Mass.) 1917D-1034. (Annotated.) 27. The act of the motorman in invit- ing a boy nine years old to ride on the car is within the scope of his employment, and the street railway company is liable for his negligent operation of the car causing injury to the child. Solomon v. Public Service B. Co. (N. J.) 1917C-356. (Annotated.) (2) From Arrest. 28. Liability Arrest of Passenger by Conductor. Under Ore. Laws 1911, c. 13S, providing that to be intoxicated or to drink intoxicating liquor in an ordinary passenger car is a punishable crime, and L. 0. L., 6959, declaring that the con- ductor of a railroad train, while actually engaged as such, shall have the power of a sheriff, in each county through which the train passes, to protect the public peace and arrest violators thereof on 01 near the train, where defendant railroad's conductor arrested a sober passenger on the pretext that he was drunk, the rail- road cannot escape liability for the tort on the ground that the conductor was act- ing as sheriff and had laid aside his char- acter as defendant's servant. Spain v. Oregon-Washington B., etc. Co. (Ore.) 1917E-1104. d. To Sick Passenger. 29. Duty to Passenger Taken Sick in Transit. Where a passenger becomes sick and unable to care for himself, and the carrier's servants know, or have notice of facts requiring them, in the exercise of reasonable prudence, to know, that he is sick and needs attention, it is their duty to give him such reasonable attention as the circumstances and their obligations to other passengers permit; and if they know, or should know, he is too ill to re- main on the car, it is their duty, if prac- ticable, to remove him and put him in the custody of an officer or some one who can look after him. Middleton v. Whitridge (N. Y.) 1916C-856. (Annotated.) Where the evidence is only that de- ceased's life could have been saved if he had received proper care within an hour or two after his first attack of apoplexy, while on defendant's car, defendant is entitled to an instruction that any omis- sion of duty of its servants to him after that time cannot be made the basis CARRIERS OF PASSENGERS. 157 of a finding of actionable negligence. Middleton v. Whitridge (N. Y.) 1916C- 856. (Annotated.) 31. Duty to Insane Passenger. A rail- road company must bestow upon a pas- senger any special care and attention be- yond that given to the ordinary passenger which reasonable prudence and foresight demands for his safety, considering any manner of conduct or disposition of mind manifested by the passenger and known to the company, or that might have been reasonably anticipated from one in his mental and physical condition, tending to increase the danger to be apprehended and avoided, and if the employees of a railroad company, after discovering the condition of a passenger who became in- sane while on the train, failed to use such care when they could have reasonably done so, and thereby prevented her from jumping from the car window, the com- pany is liable in damages for her death, caused by injuries thereby sustained. Weirling v. St. Louis, etc. B. Co. (Ark.) 1916E-253. (Annotated.) Notes. Duty and liability of carrier to pas- senger taken gick during transit. 1916C- 862. Duty and liability of carrier with re- gpect to insane passenger. 1916E-256. e. To Announce Station. 32. Cars. An adult passenger, appar- ently of ordinary intelligence, and in full possession of her senses, is bound to take notice of her route and make the neces- sary change of cars, and the carrier is not required to give her special notice of the necessity therefor, so that, if it announces the arrival at a junction where it is neces- sary to change for points on the line of the connecting carrier, it is not liable for carrying the passenger beyond the junc- tion. St. Louis, etc. B. Co. v. Needham (Ark.) 1917D-486. (Annotated.) Note. Duty of carrier to give passenger no- tice of and time to make change of cars. 1917D-488. f. To Stop at Passenger's Destination. 33. Duty to Stop at Passenger's Destina- tion Contract. Where plaintiff boarded a through train which did not stop at his destination, under an alleged special con- tract made with defendant's ticket agent that the train would stop there to set plaintiff down, plaintiff is not entitled to have the carrier's breach of such alleged contract submitted to the jury as a basis for a recovery, in the absence of any evi- dence that the agent's statement was re- lied on and that plaintiff suffered damage as the proximate result thereof. Brad- ley v. Atlantic Coast Line B. Co. (S. Car.) 1916E-1219. (Annotated.) Note. Duty of railroad to put passenger off at destination not stopping station. 1916E- 1220. g. To Passenger Boarding or Alighting. (1) In General. 34. Liability for Injury Banana Peel on Car Step. A carrier is not liable for injuries to a passenger slipping on a banana peel on a car step while alighting, unless the trainmen knew of its presence on the step, or it had been there such a length of time before the accident as would impute notice to them. Louisville, etc. B. Co. v. O'Brien (Ky.) 1916E-1084. (Annotated.) 35. Degree of Care. Carriers are held to the highest degree of care for the safety of passengers, and passengers should use ordinary care to protect them- selves in getting on or off trains, when safe and suitable means of boarding or alighting from trains are provided. They must take the responsibility of the ordi- nary incidents of travel, including the stoppage of cars required by statute at railway junctions, and must govern them- selves accordingly. Florida East Coast B. Co. v. Carter (Fla.) 1916E-1299. 36. As to one attempting to board a moving train a carrier owes no duty ex- cept that which it owes to a trespasser, and upon discovery of his peril must exer- cise ordinary care to avoid injury to him; and hence, where there is no failure on the part of the engineer to do all that can be done to prevent injury after discovery of plaintiff's peril, there is no actionable negligence. Kentucky Highlands B. Co. v. Creal (Ky.) 1917C-1205. (Annotated.) Note. Liability of carrier for injury to pas- senger caused by slipping on banana peel or the like. 1916E-1087. (2) Assisting Passenger. 37. Negligence of Conductor Seizing Person Attempting to Board Car. Where the conductor of a street car, in attempt- ing to assist plaintiff to board it while it was in motion, seized plaintiff by the arm and dragged him along, the conductor was guilty of negligence, and the company was liable for injuries received by plaintiff from a fall resulting when the conductor loosed his hold. Jonas v. South Coving- ton, etc. St. B. Co. (Ky.) 1916E-965. 38. Alighting at Place not Regular Sta- tion, Where passengers habitually get off 158 DIGEST. 1916C 1918B. the trains at a point where they are not invited to get off, and no effectual means are attempted to be used to prevent them from doing so, there is a duty on the com- pany to see that they have a safe oppor- tunity to alight. Florida East Coast R. Co. v. Carter (Fla.) 1916E-1299. h. Passenger's Assumption of Risk. 39. From the mere fact that a space on the deck of defendant's vessel between a raft and a lifeboat was unguarded by any rail, it cannot be said as matter of law that a passenger, flung through such open- ing when the ship lurched, had assumed the risk. Hanley v. Eastern Steamship Corporation (Mass.) 1917D-1034. (Annotated.) 40. Boarding Moving Car. Where a person was injured while attempting to board a moving trolley car, and the fact that the car was in motion was the sole producing cause of the accident, the risk of its occurrence was one which the per- son assumed. Solomon v. Public Service R. Co. (N. J.) 1917C-356. i. Duty Respecting Appliances. 41. A carrier must use every precau- tion for the safety of its passengers that human skill and foresight could suggest; and, if there are known and satisfactory tests by which latent defects may be dis- cerned in those appliances on the sound- ness and strength of which safety of pas- sengers depends, they must be used. Dibbert v. Metropolitan Investment Co. (Wis.) 1916E-924. Note. Liability of carrier of passengers with respect to appliances purchased from manufacturer. 1916E-929. j. Duty to Provide Safe Place for Baggage Delivery. 42. In an action for injuries to a pas- senger alighting from a railroad com- pany's train at his destination in the de- pot of an independent terminal company sustained by the falling of a trunk from a pile on the trunk platform, while the passenger was engaged in identifying his baggage for delivery, a plea that the ter- minal company "is a separate and inde- pendent corporation, engaged in receiving and delivering baggage to passengers" at the terminal depot over whose employees and over which corporation the defendant railroad company has no control, and is Tiot engaged in any way in its management, and that the terminal company, its agents and servants are not the agents and ser- vants of the defendant railroad company except for the purpose of storing and deliv- ering baggage discharged from defendant's trains, does not state a defense to the ac- tion, since the duty of the defendant rail- road company to provide a safe place for the delivery of baggage to passengers at their destination on the defendant's line cannot be delegated to another Johnson v. Florida East Coast R. Co. (Fla.) 1916C- 1210. (Annotated.) 43. A primary duty of a railroad com- mon carrier imposed by law is to maintain a suitable and safe place for the delivery of baggage to passengers at their destina- tion on the carrier's line; and, in so far as it affects the safety of passengers in the delivery of their baggage, this duty cannot be delegated to another, whether it be a separate and independent corpora- tion or a mere employee, so as to relieve the carrier of its legal liability for an injury to the passenger caused by the negligence of those engaged in delivering baggage to a passenger on the premises used by the carrier for that purpose. Johnson v. Florida East Coast R. Co. (Fla.) 1916C-1210. (Annotated.) 44. Whatever may be the rule of lia- bility where injury is caused by the negli- gence of the employees of an independent contractor in other instances and circum- stances, it does not operate to relieve common carriers from their primary duty to maintain safe accommodations for their passengers in the delivery to them of their baggage at the point of destination; nor does the rule exempt such carriers from the legal consequences of the negli- gence of those engaged in the delivery of baggage to passengers, whether those em- ployed in such delivery be the employees of the carrier or other independent cor- porations using and directing their own employees in the delivery of baggage to passengers at their destination on the depot premises used by the carrier. John- son v. Florida East Coast R. Co. (Fla.) 1916C-1210. (Annotated.) 45. The duty of the carrier to maintain a suitable and safe place for the delivery of baggage to passengers at their destina- tion on the carrier's line is not changed when the carrier uses the premises, em- ployees and facilities of another independ- ent corporation as its agency for suen delivery of baggage to passengers. John- son v. Florida East Coast R. Co. (Fla.) 1916C-1210. (Annotated.) 46. Whether the carrier owns or con- trols the premises or not, and whether the carrier exercises any authority or direc- tion over the employees so engaged or not, the carrier is not relieved of the legal consequences of the negligence of the employees resulting in injury to a pas- senger of the carrier while properly en- gaged with the employees in receiving his baggage on the depot premises at his CARRIERS OF PASSENGERS. 159 destination. Johnson v. Florida East Coast R. Co. (Fla.) 1916C-1210. (Annotated.) Note. Duty of carrier to provide safe place for delivery of baggage to passenger. 1916C-1213. 6. RIGHT TO MAKE EULES. 47. Power to Make Rules. Railroad companies have the power to make rea- sonable regulations for the management of their trains, and one who buys a ticket is bound to inform himself of the rules and regulations of the company governing the transit and conduct of the trains upon which he proposes to travel. He should inform himself when about to take pas- sage on a railroad train when, where and how he can go, or stop, according to the regulations of the railroad company. Florida East Coast R. Co. v. Carter (Fla.) 1916E-1299. 48. A street railroad company has a right to make and enforce reasonable rules. Taylor v. Spartanburg R., etc. Co. (S. Car.) 1916D-585. 49. Rule as to Use of Transfers. A rule of a street-car company requiring a per- son holding a transfer ticket to take the next succeeding car at the ,point desig- nated on the transfer is reasonable, as a protection against imposition and fraud. Taylor v. Spartanburg R., etc. Co. (S. Car.) 1916D-585. (Annotated.) Note. Validity of rule of street railway with respect to use of transfer. 1916D-586. 7. EJECTION FOR INVALIDITY OF TICKET. 50. A street-car company whose regula- tions require persons holding transfers to take the next succeeding car at the point designated is justified in refusing trans- fers of passengers boarding the car at about 200 yards from such point, and in demanding fare from them, and, on their refusal to pay, is not liable for their ejec- tion. Taylor v. Spartanburg R., etc. Co. (S. Car.) T916D-585. (Annotated.) 8. CONTRIBUTORY NEGLIGENCE. ' a. In General. 51. Extending Arm Outside Car. Plain- tiff, while riding on an interurban car, to flick the ashes from his cigar thrust his hand over the guard rail a sufficient dis- tance beyond the side line of the car to bring it in contact with the trunk of a tree standing beside the track; the force of the blow breaking his wrist. Held, that he was guilty of contributory negli- gence as a matter of law. Malakia v. Rhode Island Co. (R. I.) 1916C-1216. (Annotated.) 52. Where a railroad company fails to enforce one of its rules and a passenger is injured in neglecting to observe it, un- der our statutes the mere contributory negligence of the passenger is not an absolute bar to recovery. Florida East Coast R. Co. T. Carter (Fla.) 1916E-1299. (Annotated.) Notes. Failure of carrier to enforce rule as af- fecting contributory negligence of passen- ger in violation thereof. 1916E-1308. Contributory negligence of passenger in permitting part of his body to protrude from car. 1916C-1218. b. Riding on Steps or Platform. 53. Boarding Moving Car. A boy nine years old, who on the invitation of the motorman boarded a car going so slowly that the boy could grasp the handle bar with his right hand and place both feet on the step of the ear, but who was thrown from the car by the sudden accel- eration of the speed, was not guilty of contributory negligence as a matter of law. Solomon v. Public Service R. Co. (N. J.) 1917C-356. 54. Preparation for Alighting Moving Car. That a passenger on a street ear went upon the platform or steps of the moving car preparatory to alighting does not alone show contributory negligence. Froeming v. Stockton Electric R. Co. (Cal.) 1918B-408. Note. Contributory negligence of passenger in alighting from street car and passing to rear of it across parallel tracks without looking for approaching car. 1916E- 998. 9. ACTIONS FOR INJURIES, a. Pleading. 55. Enforcement of Bight to Carriage. A complaint alleging that a common car- rier's refusal to accept complainant was a persecution of complainant for having brought a suit for damages against it and an attempted intimidation shows a pal- pable abuse of a public franchise, which a court of equity will enjoin. Hogan v. Nashville Interurban R. Co. (Tenn.) 1916C-1162. 56. A complaint alleging that a com- mon carrier had wrongfully refused to accept complainant as a passenger and threatened to continue such wrongful act sets out a right to relief by injunction, on the ground that a single action is a 160 DIGEST. 1916O 1918B. more adequate remedy than an action or actions at law for damages. Hogan v. Nashville Interurban B. Co. (Tenn.) 1916C-1162. 57. Act as Exclusive Remedy Plead- ing as Defense to Action. Where the complaint, in an action for a personal injury, alleged that the relation of pas- senger and carrier existed between plain- tiff and defendant at the time of the accident causing the injury, defendant could plead and prove that the relation of master and servant existed, and that plaintiff must resort to the relief afforded by the Workmen's Compensation Act. Susznik v. Alger Logging Co. (Ore.) 1917C-700. 58. Pleading Contributory Negligence. An answer, in an action for injury to a passenger, which alleges that plaintiff was transported by defendant on its log- ging train gratuitously solely for the benefit of plaintiff and defendant in con- nection with the business in which de- fendant was engaged, and that plaintiff, on reaching his destination, ran in front of the engine and was injured, sets forth plaintiff's contributory negligence, though, it does not admit any negligence of de- fendant. Susznik v. Alger Logging Co. (Ore.) 1917C-700. 59. Construction of Pleading. In an action for wrongful death of a street-car passenger, where the petition alleges that the decedent was injured "by start- ing the car while she was attempting to alight therefrom," the' allegation is not an admission that decedent negligently alighted from a moving car, but only that she was ready to alight. Froeming v. Stockton Electric B. Co. (Cal.) 1918B- 408. b. Presumption of Negligence. 60. Effect of Presumption. In a pas- senger's action for injuries from a colli- sion between two trains on the same track, plaintiff need not prove any speci- fic act of negligence, but may rest his case entirely on the presumption of negli- gence arising from the collision. Niebal- ski v. Pennsylvania B. Co. (Pa.) 1917C- 632. 61. Presumption of Negligence from Accident. Proof of injury, without con- tributory negligence, to a passenger in an elevator, from its fall due to a defec- tive bolt, raises a presumption of negli- gence of the carrier, requiring it to show that all required precautions to safeguard passengers had been taken. Dibbert v. Metropolitan Investment Co. (Wis.) 1916E-924. 62. Proof of Negligence. Where a pas- senger is injured from a collision between the train on which he is riding and an- other train on the same track, a presump- tion of negligence on the part of the company carrying the passenger arises, re- gardless of any question as to his negli- gence. Niebalski v. Pennsylvania B. Co. (Pa.) 1917C-632. (Annotated.) Note. Presumption of negligence from collision resulting in injury to passenger. 1917C- 634. c. Burden of Proof. 63. Contributory Negligence of Passen- ger. In a passenger's action for injuries from a collision between two trains on the same track, plaintiff's contributory negligence is a matter of defense, the bur- den of proof as to which is on defendant. Niebalski v. Pennsylvania B. Co. (Pa.) 1917C-632. d. Admissibility of Evidence. 64. Evidence of Bad Faith. In an ac- tion against defendant railroad by one claiming to have been arrested by the conductor, ejected from the train, and thrown into prison for drunkenness, when in fact perfectly sober, testimony that plaintiff's companions, who drank with him from the same bottle, were not dis- turbed by the conductor, is admissible as bearing on the good faith of the conductor in making the arrest. Spain v. Oregon- Washington B., etc. Co. (Ore.) 1917E- 1104. 65. Such testimony was admissible as part of the res' gestae. Spain v. Oregon- Washington B., etc. Co. (Ore.) 1917E-1104. e. Sufficiency of Evidence. 66. Evidence Sufficient. Evidence in an action for the death of a street-car pas- senger is held to be sufficient to sustain a verdict for the plaintiff. Froeming v. Stockton Electric B. Co. (Cal.) 1918B-408. 67. Evidence in an action for death of a passenger, who, suffering a stroke of apo- plexy while on a street car, was carried thereon for five hours, held to warrant a finding of negligence of the conductor in assuming, and continuing to indulge in the assumption, that the passenger was drunk, and not in a critical condition and in need of immediate medical attention. Middle- ton v. Whit-ridge (N. Y.) 1916C-856. (Annotated.) 68. In an acton against a steamship com- pany for death of a passenger flung over- board through an unguarded space in the rail of the vessel, the evidence is held to be sufficient to support a finding that the accident was caused by a lurch of the ship, and not by deceased's volition or lack of CARRIERS OF PASSENGERS. 161 attention. Hanley v. Eastern Steamship Corporation (Mass.) 1917D-1034. (Annotated.) 69. Liability for Injury to Passenger Falling Overboard. In an action against a steamship company for the conscious suf- fering of a passenger drowned upon going overboard through an unguarded place in the rail when the vessel lurched, the evi- dence is held to be sufficient to support a finding of due care on the part of de- ceased. Hanley v. Eastern Steamship Cor- poration (Mass.) 1917D-1034. (Annotated.) 70. Person Riding Wrongfully by Per- mission of Employee. Where a boy nine years old attempted to board a moving trolley car on the invitation of the motor- man, the act of the motorman in suddenly accelerating the speed of the car before the child reached a place of safety justi- fied a finding of actionable negligence of the street railway company. Solomon v. Public Service B. Co. (N. J.) 1917C-356. (Annotated.) f. Questions for Jury. 71. Passenger Alighting from Street Car Crossing Parallel Track Without Look- ing. A person, passing behind a west- bound street car from which she had just alighted and going upon the east-bound track without looking for a"approaehing car, was not guilty of contributory negli- gence as a matter of law, where her at- tention was directed towards another ap- proaching west-bound car, and her view of the east-bound car, which struck her, was obscured by the standing car, as she had a right to presume that proper warn- ing of the approa-ching car would be given, and that the car would be under proper control, and was not required to anticipate negligence on the part of those in charge of the car; and hence whether she was negligent is a question for the jury. Louisville R. Co. v. Kennedy (Ky.) 1916E-996. (Annotated.) 72. Boarding Car. In an action by one injured in attempting to board a moving street car, who claimed that the conductor negligently grabbed his arm, the questions of negligence and of plaintiff's contributory negligence held for the jury. Jonas v. South Covington, etc. St. B. Co. (Ky.) 1916E-965. 73. Contributory Negligence Riding on Step. In a passenger's action against a street railroad for injuries while riding on the step of a car, the question of contrib- utory negligence is held to be for the jury under the evidence. Kelly v. Santa Bar- bara Consol. B. Co. (Cal.) 1917C-67. (Annotated.) 74. One who rides on the step of a street car on account of its crowded con- dition may be guilty of contributory 11 negligence in BO doing the question being for the jury; so that, in an action for in- jury to such a passenger, a charge that, as matter of law, he was not guilty of such contributory negligence is erroneous. Kelly y. Santa Barbara Consol. B. Co. (Cal.) 1917C-67. (Annotated.) 75. Question of Recovery. On conflicting evidence, in an action for the death of a street car passenger, the question of recovery is for the jury, and must be sub- mitted, although one of plaintiff's wit- nesses on cross-examination testified ad- versely to him on matters outside the direct examination. Froeming v. Stockton Electric B. Co. (Cal.) 1918B-408. 76. Evidence in an action for death of a passenger, who suffered a stroke of apoplexy while on a street car, and was carried thereon for hours afterwards, held sufficient to go to the jurv on the issue of the omission of the carrier's duty to him being the proximate -cause of his death. Middleton v. Whitridge (N. Y.) 1916C- 856. (Annotated.) 77. Whether a person in attempting to board a moving trolley car is negligent depends on the circumstances and may, accordingly, be either a question for the court or jury. Solomon v. Public Service B. Co. (N. J.) 1917C-356. 78. Evidence considered and held suffi- cient to warrant submitting to the jury the question whether it was negligence to operate a street car in the city of Winona without a conductor, and to justify the jury in finding that it was. Koeller v. Wisconsin B. etc. Co. (Minn.) 1917C-71. (Annotated.) 79. In such action, where the issue is whether the carrier announced the junc- tion and the necessity for changing cars as claimed by it, an instruction, leaving it to the jury to determine whether the trainman exercised ordinary care to ap- prise plaintiff of the place she was to leave the train to take a train on a con- necting road, is erroneous, as ignoring the real issue. St. Louis, etc. B. Co. v. Need- ham (Ark.) 1917D-486. (Annotated.) 80. In an action for damages from de- fendant's negligent failure to notify plaintiff of the necessity for changing cars at a junction, the evidence is held to make the defendant's announcement of the junction and the necessity for changing a question for the jury. St. Louis, etc. B. Co. v. Needham (Ark.) 1917D-486. (Annotated.) g. Instructions. 81. Injury to Passenger Overcrowding of Car. In an action for injury to a pas- senger on a street car while standing on a step thereof, charges that every street 162 DIGEST. 191CC 1918B. railroad must furnish on the inside of its passenger cars sufficient room and accom- modations for all passengers who pay or buy tickets, that a carrier of persons for reward shall not overcrowd or overload his vehicle, and must give reasonable accom- modations, and that a carrier should not allow so many passengers upon its cars as to overcrowd them, and, if unable to prevent overcrowding, the carrier has a right to refuse to move its ears, but, if it does not adopt such course, and under- takes to transport all passengers, whether within the cars or on its platform it is under additional care, commensurate with the perils or dangers surrounding the pas- sengers by reason of the overcrowded con- dition of the cars, declared with fairness the law governing the conduct of common carriers of passengers, as expressed by Cal. Civ. Code, 483, 2102, 2184, 2185. Kelly v. Santa Barbara Consol. E. Co. (Cal.) 1917C-67. 82. Eight of Passenger on Car Step. In an action for death of a street car pas- senger, an instruction that, if a passenger is injured without fault on his part while on the steps of a moving car, the burden is on the company to show absence of negligence, is not erroneous for declaring that a passenger has a right to be on the steps of a moving car, since that is his right in entering and preparatory to leav- ing the car. Froeming v. Stockton Elec- tric E. Co. (Cal.) 1918B-408. 83. Insane Passenger. In an action for the death of a passenger who became in- sane while riding on the train, and at- tempted, to the knowledge of the porter and brakeman, to throw her baby from the car window, and after being prevented from so doing, and after apparently quiet- ing down, threw herself from the window, instructions held to have correctly declared the law and the measure of the carrier's duty toward the passenger. Weirling v. St. 'Louis, etc. B. Co. (Ark.) 1916E-253. (Annotated.) 10. JITNEYS AND TAXIS. 84. Taxicab Company as Carrier. A taxicab company is a common carrier within the meaning of the act of Cong. of March 4, 1913 (37 Stat. at L. 938, c. 150) 8, and hence subject to the jurisdic- tion of the Public Utilities Commission of the District of Columbia as a "public util- ity" in respect of its exercise of its exclu- sive right under lease from the Washing- ton Terminal Company, the owner of the Washington Union Railway station, to solicit livery and taxicab business from persons passing to or from trains, and of its exclusive right under contracts with certain Washington hotels to solicit taxi- cab business from guests, but that part of its business which consists in furnishing automobiles from its central garage on individual orders, generally by telephone, cannot be regarded as a public utility, and the rates charged for such service are therefore not open to inquiry by the Com- mission. Terminal Taxicab Co. v. Kutz (U. S.) 1916D-765. (Annotated.) 85. Jitney Bus as Common Carrier. A "jitney" is a self-propelled vehicle, other than a street car, traversing the public streets between certain definite points or termini, and, as a common carrier, con- veying passengers at a five-cent or some small fare, between such termini and in- termediate points, and so held out, adver- tised, or announced. Memphis v. State (Tenn.) 1917C-1056. (Annotated.) 86. Where, under an act of the legis- lature, municipalities are authorized to regulate by ordinance, subject to the stat- ute, the operation of jitnev buses as com- mon carriers, and the city council fails to regulate, a street railway company can have the operation of jitneys enjoined, since the city council might fail to act at all under the statute, and thus the rights of the company be unlawfully invaded. Memphis St. E. Co. v. Eapid Transit Co. (Tenn.) 1917C-1045. (Annotated.) 87. Regulation of Jitney Buses Effect of Noncompliance. Under Tenn. Acts 1915, c. 60, making jitneys common car- riers, and requiring them, under ordi- nances of the cities or towns, to file bonds and perform the conditions of the statute and ordinances, a jitney company is alto- gether without right to do business on the streets of a city, where the city has passed no ordinance pursuant to the act, and the company has failed to procure any license or execute any bond under the act. Memphis St. E. Co. v. Eapid Tran- sit Co. (Tenn.) 1917C-1045. (Annotated.) 88. Tenn. Acts 1915, c. 60, regulating jitneys as common carriers, and prohibit- ing their operation, except upon pre- scribed conditions, does not make an arbi- trary classification between jitney buses and street railway cars, since the jitney runs upon no track, and is less substantial and more dangerous than the street car, thus presenting essential differences prop- erly the subject of classification. Mem- phis v. State (Tenn.) 1917C-1056. 89. Separate Regulation of Jitney Buses. Tenn. Acts 1915, c. 60, regulating jitneys as common carriers, and prohibiting their operation, except upon prescribed condi- tions, does not make an arbitrary clasai fication between jitneys- and privately owned automobiles, since the uses and character of operation of the two classes are distinct. Memphis v. State (Tenn.) 1917C-1056. 90. Tenn. Acts 1915, c. 60, regulating jitneys as common carriers, and prohibiting their operation, except upon prescribed con- ditions, does not make an arbitrary claoti- CARRYING WEAPONS CERTIORARI. 163 fication between jitneys and taxicabs, since taxicabs are for hire at a fare pro- portioned to the length of the trips of the several passengers, without regard to route, while the jitney carries passengers upon a designated route, and the invest- ments in the two classes of machines are widely different. Memphis v. State (Tenn.) 1917C-1056. 91. Jitney Bus as Common Carrier. The legislature, being endowed with police power to regulate the use of streets in public places, may prescribe the condi- tions with which jitneys, being common carriers, must comply in order to operate. Memphis v. State (Tenn.) 1917C-1056. (Annotated.) Notes. State or municipal regulation of jitney buses. 1917C-1051. Taxicab proprietor as common 'Carrier. 1916D-767. Jitney bus proprietor as common car- rier of passengers. 1917C-1060. CARRYING WEAPONS. See Weapons. CARTAGE. Eight to lien for cartage, s?e Mechanics' Liens, 12, 13. CARTOON. As libel, see Libel and Slander, 153. CASHIER. Authority of, see Banks and Banking, 19. CASUAL EMPLOYEE. As within Workmen's Compensation Act, see Master and Servant, 241, 276. CATS. See Animals, 1, 2. CAUSA MORTIS. See Gifts, 11-17. CAVEAT. On will contest, see Wills, 126. CAVEAT EMPTOR. Application to guardian's sale, see Guard- ian and Ward, 13. CEMETERIES. Proceeding for exhumation, see Dead Body, 7-10. 1. Injunction Against Maintenance. While a cemetery is not a nuisance per se, yet underdrainage of a cemetery, which would pollute a stream used by an adjoining landowner to water his stock, will be enjoined without requiring a prior judgment at law establishing the nature of the nuisance. Sutton v. Findlay Ceme- tery Assoc. (111.) 1917B-559. (Annotated.) 2. A cemetery is not a nuisance per se, and its use cannot be enjoined because offensive to the esthetic sense of an ad- jacent proprietor. Sutton v. Findlay Cemetery Assoc. (El.) 1917B-559. (Annotated.) 3. The maintenance of a cemetery on land adjacent to that of complainant will not be enjoined on the ground of nui- sance, where it appeared that the surface waters promptly drained from the ceme- tery and would not pollute a stream flow- ing through complainant's lower lands. Sutton v. Findlay Cemetery Assoc. (111.) 1917B-559. (Annotated.) Note. Equitable relief against cemetery as nui- sance. 1917B-563. CENSUS. Meaning, see Municipal Corporations, 158. CERTAINTY. Requisite of charitable gift, see Charities, 15-17. Of indictments, see Indictments and In- formations, 10, 11. Of instiuctions, see Instructions, 12-17. As essential to remedy, see Specific Per- formance, 2. As statute requisite, see Statutes, 15-17. Of trusts, see Trusts and Trustees, 3. CERTIFICATE OF DEPOSIT. Construction, see Banks and Banking, 30. CERTIFIED CHECKS. See Checks, 8-11. CERTIFIED COPY. Of record, as evidence, see Evidence, 86, 87. CERTIORARI. 1. Scope and Purpose of Writ. Certi- orari is a common-law writ, which issues in the sound judicial discretion of the court to an inferior court, not to take the place of a writ of error or an appeal, but to cause the entire record of the inferior court to be brought up by certified copy for inspection, in order that the superior court may determine from the face of the record whether the inferior court has ex- ceeded its jurisdiction, or has not pro- 164 DIGEST. 19160 1918B. ceeded according to the essential require- ments of the law, in cases where no direct appellate proceedings are provided by law. Malone v. Quincy (Pla.) 1916D-208. 2. What Constitutes Part of Eecord. On certiorari to review the decision in an election contest, the opinion of the lower court, though not strictly a part of the record, is open to examination to discover the grounds of the court's action. Cra- mer's Election Case (Pa.) 1916E-914. 3. Scope of Review. An order of the trial court, made pending an action for libel, requiring defendant therein to pro- duce its circulation books, is not review- able by certiorari, since the court had jurisdiction of the parties and the sub- ject-matter and had power to make the oruer, and certiorari is not to correct errors committed by the court, but only to review cases where the court has ex- ceeded its jurisdiction and the order is illegal. Dalton v. Calhoun County Dis- trict Court (Iowa) 1916D-695. 4. Necessity of Notice of Hearing. Where a petition for certiorari does not ask for a stay of proceedings in the lower court, a notice of hearing served on the lower court is not a condition precedent to the issuance of the writ under Iowa Code, 4157. Dalton v. Calhoun County District Court (Iowa) 1916D-695. OHALIiENaiNQ JURORS. See Jury, 22-28. CHAMPERTY AND MAINTENANCE. 1. Agreement to Collect on Commission, A good-faith agreement by a layman to collect, compromise, or settle a promissory note in consideration of a certain percent- age of the amount collected or recovered, is not per se void on the ground of cham- perty or public policy. Rohan v. Johnson (N. Dak.) 1918A-794. (Annotated.) Note. Validity of agreement by person other than attorney to collect, settle or compro- mise claim for commission. 1918A-797. CHANGE OF BENEFICIARY. In benefit contract, see Beneficial Associa- tions, 27. CHANGE OF GRADE. See Streets and Highways, 9-14. CHANGE OF NAME. Suit to change name, see Names, 5. CHANGE OF TITLE. See Fire Insurance, 12-17. CHANGE OF VENUE. See Venue, 3-0. CHARACTER. Of accused, evidence, see Criminal Law, 49, 50, 96, 97. Certificate of, on discharge, see Master and Servant, 8. CHARACTER AND REPUTATION. Proof of, gee Evidence, 42. CHARACTER EVIDENCE. On impeachment of witness, see Wit nesses, 109-111. CHARACTER OF SERVANT OR EM- PLOYEE. Privileged communications to prospective employer, see Libel and Slander, 66- 68. CHARGE TO JURY. See Instructions. CHARITIES. 1. What Institutions or Purposes are Charitable, Iti4. a. In General, 164. b. Education, 165. e. Gift for Ben fit of Animals, 165. d. Home for Indigent Women, 165. e. Volunteer Fire Company, 165. f. National or Patriotic Purpose, 165. 2. The Cy Pres Doctrine, 165. I. Terms and Validity of Gift, 165. a. In General, 165. b. Certainty, 166. c. Kule Against Perpetuities, 166. d. Inadequacy, 166. e. Construction, 166. 4. Liability of Charitable Institution for Tort, "167. Saving's bank as charity, see Banks and Banking, 76. Bights of members of fire company on dis- solution, see Corporations, 115. Liability of fire patrol for negligence, see Master and Servant, 365. City regulation of private charity, see Municipal Corporations, 85. Statute against perpetuities inapplicable, see Perpetuities, 5, 6, 10. Exemption from taxation, see Taxation, 76, 77. 1. WHAT INSTITUTIONS OR PUR- POSE'S ARE CHARITABLE. a. In General. 1. What Constitutes Charity. The word "charity" includes substantially any scheme to better the conditions of any considerable part of society, and includes CHARITIES. 165 any gift, not inconsistent with the law, which tends to promote science or the education, enlightenment, or the ameliora- tion of the conditions of mankind, or which is for the public convenience. Wil- son T. First National Bank (Iowa) 1916D- 481. 2. What Constitutes Charitable Purpose. A "charitable trust" is a trust implying a public utility in its purpose, and if the purpose to be attained is personal, pri- vate, or selfish, it is not charitable; but when the purpose accomplished is that of public usefulness unstained by personal, private, or selfish consideration, its chari- table character insures its validity. Mat- ter of MacDowell (N. Y.) ,1917E-853. 3. Scope of Term "Charity." A "char- ity" is not confined to mere almsgiving or the relief of poverty and distress, but has a wider signification, and embraces the improvement and promotion of the happi- ness of man. Thorp v. Lund. (Mass.) 1918B-1204. Note. Gift for establishment of home for per- sons of particular class as charitable gift. 1917E-857. b. Education. / 4. Gifts to establish or endow schools for the mental or moral improvement of the people, especially of the poor, are law- ful public charities. Wilson v. First Na- tional Bank (Iowa) 1916D-481. c. Gift for Benefit of Animals. 6. Gift for Benefit of Animals. A de- vise in trust "for the protection and bene- fit of animals" is a valid charitable trust. In re Wedgwood (Eng.) 1917B-924. (Annotated.) d. Home for Indigent Women. 6. Establishment of Home for Indigent Women as Charity. A testamentary pro- vision giving property to be invested and the income to be used for hiring and main- taining a house to be used as a home for refined, educated, Protestant gentlewomen, whose means are small and whose home is made unhappy by having to live with relatives who think them in the way, with a preference to testatrix's sister and to her named cousins and their lineal de- scendants forever and to her named friends, all inmates of the home to pay board not to exceed $7 per week toward paying the expenses of the home, is not rendered invalid as a charitable trust be- cause of the preference given to testa- trix's relatives and friends; though if the purpose had been to create a trust only for their benefit it would not have come without the designation of a "charitable trust." Matter of MacDowell (N. Y.) 1917E-853. . (Annotated.) e. Volunteer Fire Company. 7. Charities What is Charitable Corpo- ration Volunteer Fire Company. The volunteer fire company, incorporated by Ky. Act March 24, 1851 (Acts 1850-51, c. 728), and whose charter was amended by Act April 24, 1884 (Acts 1883-84, e. 1112), is not a public charity corpora- tion, within Ky. St. 323, as to disposi- tion of a charity society's property on its dissolution, there not only being no gift to anybody, but no public purpose being imposed on the owners of the property, necessary under the definition of a public charity in section 317. Neptune Fire En- gine, etc. Co. v. Board of Education (ly.) 1917C-789. (Annotated.) Note. Fire company, insurance patrol or the like as charitable institution. 1917C-797. f. National or Patriotic Purpose. 8. What Constitutes Charity National or Patriotic Purpose. A deed of trust providing that a fund should be appointed to a "national or philanthropic purpose in Norway associated with the name of my late husband, Ole Bull," must be held to create a charity when due consideration is given to the words "national" and "phil- anthropic," and to the fact that Ole Bull is regarded as a distinguished patriot and national hero whose name and example serve to inspire the youth of Norway. Thorp v. Lund (Mass.) 1918B-1204. (Annotated.) 2. THE CY PBES DOCTEINE. 9. Inadequacy of Fund for Expressed Purpose. Under the cy pres doctrine, em- bodied in N. Y. Personal Property Law, 12, each case must depend upon its own peculiar circumstance, and inadequacy of the trust fund to accomplish the purpose of the charity may justify a change in the scheme of the charity, and, if the su- preme court cannot cause a testamentary trust to be carried out in the precise man- ner contemplated, it will apply the trust fund to other charities as nearly as pos- sible like that specifically mentioned in the will. Matter of MacDowell (N. Y.) 1917E-853. 3. TERMS AND VALIDITY OF GIFT, a. In General. 10. Form of Creation Us of Term "Charity." The employment of the word "charity" or "charitable" in a deed of trust is not essential to the creation of a valid charity. Thorp v. Lund (Mass.) 1918B-1204. 11. A testamentary gift of the income ox property to maintain a home for re- fined, educated, Protestant gentlewomen 166 DIGEST. 19160 1918B. whose means are small and whose home is made unhappy by having to live with relatives who think them in the way, ex- pressing a preference of benefits to the testatrix's sister, her named cousins and their lineal descendants forever, and to certain named friends, is a gift to a chari- table use within N. Y. Personal Property Law, 12, providing that no gift to chari- table uses shall be deemed invalid by rea- son of the indcfiniteness or uncertainty of the beneficiaries, and that if it names a trustee the property shall vest in him, and that if no trustee is named it shall vest in the supreme court with power to control and administer it, as a public charity need have no special reference to the poor, and its character as such was not impaired by the fact that the inmates of the home were required to pay board, or by the in- adequacv of the trust fund. Matter of MacDowell (N. Y.) 1917E-S53. (Annotated.) 12. Construction in Favor of Gift. A gift for charitable uses will be effected if it is consistent with the law, and for that purpose the most liberal rules permissible will be applied, and a charitable trust will often be sustained, where a private .rust would fail. Wilson v. First Na- tional Bank (Iowa) 1916D-481. 13. Necessity for Institution. A gift for the foundation of a manual training school is not invalid on the ground that such a charity has been superseded by the adoption of manual training in the public schools; it not being open to the parties or to the court to inquire whether charity in that field of education has been ren- dered unnecessary in that manner. Wil- son v. First National Bank (Iowa) 1916D- 481. 14. Construction in Favor of Gift. All doubts will be resolved in favor of a charitable trust. Wilson v. First Na- tional Bank (Iowa) 1916D-481. b. Certainty. 15. Designation of Beneficiaries. A charitable trust is not invalid because of indefiniteness and is sufficient if the bene- fited class is designated in a general way, leaving the practical application of the gift to be made by the trustee. Wilson v. First National Bank (Iowa) 1916D- 481. 16. Definiteness as to Object. A will recited testator's "desire to establish at I. an industrial training school for chil- dren and a library building to be used by the people of I.," and then named trustees who should administer the charity until a corporation could be organized to execute the trust, and also provided for the con- struction of a building for the school by the trustees, and that the school should be open to all persons fitted for the training offered, without regard to sex, race, color etc. Held, that the trust was not invalid as a charitable trust on the ground of in- definiteness. Wilson v. First National Bank (Iowa) 191GD-481. 17. If the general nature and purpose of the charity is expressed by an instru- ment creating a charitable trust, or is rea- sonably ascertainable, the details of its practical administration may be left to the trustee, and need not be provided for in the instrument. Wilson v. First Na- tional Bank (Iowa) 1916D-481. c. Rule Against Perpetuities. 18. Charitable Gift Indefinite as to Time. The fact that a will, which de- vised funds in trust to establish a school, and provided that a corporation should be organized to take over the stock, did'not limit the time in which the corporation must be organized cannot make the gift invalid under the statute against per- petuities, where testator bound the trus- tees by contract to organize the corpora- tion within a year after his death, and the will reaffirmed such contract, since the trustees could be compelled to comply with such obligations. Wilson v. First National Bank (Iowa) 1916D-481. 19. Where, under a will giving a fund in trust for the establishment of a school, the fund was not available until the death of testator's brother and sister, the trus- tees or the corporation directed to be or- ganized to take over the trust were not negligent in not attempting to establish the school before such means were avail- able, so that it cannot be claimed that the fund would not vest in the corpora- tion, under the statute against perpetu- ities, on the ground that there is no school in existence. Wilson v. First National Bank (Iowa) 1916D-481. d. Inadequacy. 20. A charitable gift is not invalid merely because it cannot take effect as fully as the donor intended, but will be effected so far as possible, and is not necessarily void because it contemplates contributions from others which may never be made, so that it cannot be said that the gift of $30.000 for the founding of a manual training school and public library is so inadequate in amount as to render the gift invalid as a charitable trust. Wilson v. First National Bank (Iowa) 1916D-481. (Annotated.) Note. Inadequacy of gift to accomplish pur- pose of charitable trust as affecting its validity. 1916D-487. e. Construction. 21. Power of Appointment Propriety of Exercise Beneficiary Designated Gen- CHARTER CHATTEL MORTGAGES. 167 erally. A trustee's proposed appointment to the Ole Bull fund committee of a fund appointed to a "national or philanthropic purpose in Norway, associated with the name of ... Ole Hull" is valid, where it appears that such committee was estab- lished by royal charter in Norway to ad- minister tLe surplus moneys collected for the Ole Bull monument and not needed for that purpose, and such augmentations as mig-ht come to it by gift or otherwise, the income to be applied to the distribution of donations to the younger musicians, actors, and actresses holding engagements with the National Stage of Bergen, which was founded by Ole Bull and is devoted to the fostering of a national and patri- otic spirit. Thorp v. Lund (Mass.) 1918B- 1204. 22. Such appointment of the fund was not to a public charity or for a "national or philanthropic purpose" within the terms of the deed of trust specifying that the fund should be devoted to such purpose. Thorp v. Lund (Mass.)' 1918B-1204. 23. Nature of Purpose as Charitable Circumstances Considered. In determining whether a deed of trust providing that a fund should be devoted to soine national or philanthropic purposes associated with the name of the settlor's husband created a charitable trust, the circumstances of the parties and their relation to the sub- ject matter should be considered. Thorp v. Lund (Mass.) 1918B-1204. 24. Construction in Favor of Charity. In view of Mass. Const, pt. 2, c. 5, 2, mak- ing it the duty of magistrates to encour- age public and private charity, a gift dictated by a benevolent purpose is to be liberally construed, and, if reasonably pos- sible, upheld as a valid charity rather than declared void. Thorp v. Lund (Mass.) 1918B-1204. 25. Construction "Or" Construed as "And." The rule in the construction of in- struments establishing charities that the word "or" will be construed to mean "and" when this seems necessary to effectuate the meaning intended applies especially where one word expresses a charitable use and the other, if standing alone, might not in- dicate a strict charity, in which case the dominant word is taken to be the one pointing to a charity, and the indefinite word is narrowed by its context or used as a synonym with it. Thorp v. Lund (Mass.) 1918B-1204. 4. LIABILITY OF CHARITABLE IN- STITUTION FOR TORT. 26. Liability for Acts of Employees. Though a hospital is a "charitable institu- tion" and not within the rule respondeat superior, it nevertheless is liable for in- juries to patients resulting from its negli- gence in the selection of ita agents and servants. Hoke v. Glenn (N. Car.) 1916E- 250. (Annotated.) CHARTER. See Corporations. Construction of railroad charter, see Rail- roads, 1. CHATTEL MORTGAGES. 1. Nature, Form, and Validity, 167. 2. Consideration, 167. 3. Filing or Recording, 168. 4. Lien, 168. a. What is Embraced, 168. b. Waiver and Discharge, 169. 5. Default and Foreclosure, 170. a. In General. 170. b. Rights of Junior Mortgagee, 170. 6. Rights and Duties of Mortgagor and Mortgagee as to Third Parties, 170. Holder not entitled to excess over debt, see Bankruptcy, 1, 2. 1. NATURE, FORM, AND VALIDITY. 1. Reservation to Mortagor of Right to Use. A mortgage on personalty not neces- sarily consumable in its use, where posses- sion nnd right, to use the property are reserved in the grantor, will not be held invalid, unless it appears from the instru- ment as a whole that the reservation is in- consistent with the purposes of the instru- ment and is for the general benefit and advantage of the grantor. Morgan v. Dayton Coal, etc. Co. (Tenn.) 1917E-42. 2. Mortgage on Stock of Merchandise. A mortgage on a stock of merchandise, with possession and right to continue busi- ness reserved to the mortgagor, is fraudu- lent upon its face and void. Morgan v. Dayton Coal, etc. Co. (Tenn.) 1917E-42. 3. Validity as to Creditors. A mortgage by a corporation of its real estate, plant, equipment, stock, bonds, leases, together with the issues and profits, reserving in the mortgagor the right of possession until default and possession taken by the mort- gagee, does not indicate that" the reserva- tions are made for the benefit of the mort- gagor and to cover up the property from other creditors, and is not invalid as to such creditors. Morgan v. Dayton, Coal, etc. Co. (Teiin.) 1917E-42. 4. Duress. Where the mortgagee, after two demands for payment of a running account, told the debtor that he was pre- pared to close him up unless he signed a mortgage, whereupon the debtor elected to do so, the mortgage was not invalid as having been executed under duress. Will- iams v. Noyes, etc. Mfg. Co. (Me.) 1916D- 1224. 2. CONSIDERATION. 5. Pre-existing Debt. A pre-existing debt is a sufficient consideration for a 168 DIGEST. 1916O 1918B. parol chattel mortgage. Brown v. Mit- chell (N. Car.) 1917B-933. (Annotated.) 3. FILING OE RECORDING. 6. Under Utah Comp. Laws 1907, 150, 2473, postponing the rights of a chattel mortgagee to those of a creditor of the mortgagor who extended credit subse- quently to the execution, but previous to the filing of the mortgage, where plain- tiff, after filing, secured the assignment of a claim against the mortgagor which had accrued previous to the filing, plaintiff ac- quired all rights of such mortgagor therein, including the right to invalidate the mort- gage. Volker Lumber Co. v. Utah, etc. Lumber Co. (Utah) 1917D-1158. (Annotated.) 7. A chattel mortgage which is not filed as required is valid against all persons having claims against the mortgagor which accrued previous to the execution and de- livery of the mortgage, unless such persons acquire a lien by attachment or otherwise against the property before the mortgage is filed as provided; since a debtor may prefer his creditors. Volker Lumber Co. v. Utah, etc. Lumber Co. (Utah) 1917D- 1158. (Annotated.) 8. Where a chattel mortgage is filed as provided, it becomes effective as against all persons extending credit to the mort- gagor after such filing, unless such per- sons can invalidate it on the ground of fraud or other legal basis of attack. Volker Lumber Co. v. Utah, etc. Lumber Co. (Utah) 1917D-1158. (Annotated.) 9. Under Utah Comp. Laws 1907, 150, providing that, unless the possession of personal property be given to, and re- tained by, the mortgagee, no mortgage thereof shall be valid as against the rights and interests of third persons, un- less the mortgage or a copy thereof be filed in the office of the recorder of the county where the mortgagor resides, etc., and under section 2473, providing that re- tention of possession of goods by their vendor shall be conclusive evidence of fraud as against creditors, including all persons who shall be creditors of the ven- dor at any time while such goods shall remain under his control, a chattel mort- gage is invalid as against all persons who without notice or knowledge of its exist- ence givt credit to the mortgagor at any time subsequent to execution and previous to filing. Volker Lumber Co. v. Utah, etc. Lumber Co. (Utah) 1917D-1158. (Annotated.) 10. A bona fide purchaser of offspring after its natural separation from the mother is not bound by the registration of a mortgage upon the dam, but takes free of that incumbrance. McCarver v. Griffin (Ala.) 1917C-1172. (Annotated.) 11. Where a chattel mortgage was unen- forceable at law because of the mort- gagee's failure to take possession of the property or record his mortgage within five days, as required by R. I. Gen. Laws, 1909, c. 258, 10, and the mortgagor after the mortgage was recorded sold the prop- erty to complainant, who took with notice of the facts and the mortgagee's rights in the premises, complainant is in particeps criminis with the mortgagor in seeking by such sale to defeat the mortgage, and is therefore not entitled to a decree in equity restraining the mortgagee from taking possession of the property and from fore- closing or treating the mortgage as valid. Howard v. McPhail (R. I.) 1917A-186. (Annotated.) . 12. Where the owner of certain personal property executed a mortgage thereon, but the property was neither delivered to the mortgagee nor the mortgage recorded with- in five days, as required by R. I. Gen. Laws 1909, c. 258, 10, a buyer of the mortgaged property from the mortgagor after the mortgage was recorded and with notice of the agreement of the seller to create a valid mortgage on the property will be regarded in equity as a trustee for the mortgagee to the extent of the latter's interest under the mortgage. Howard v. McPhail (R. I.) 1917A-186. (Annotated.) 13. Failure to Record Within Statutory Time. A buyer of personal property sub- ject to a mortgage which had not been re- corded within the statutory period, who buys after the mortgage is recorded and with notice of the mortgage, cannot ac- quire title freed from the lien of the mortgage by estoppel. Howard v. Mc- Phail (R. I.) 1917A-186. (Annotated.) 14. Failure to Record Effect as Between Parties. Under the express provisions of R. I. Gen. Laws 1909, c. 258, 10, requir- ing that chattel mortgages shall be re- corded within five days or possession of the property delivered to the mortgagee, such a mortgage is valid as between the parties, though neither of such require- ments is complied with. Howard v. Mc- Phail (R. I.) 1917A-186. Note. Validity of chattel mortgage not re- corded as required by statute as against person taking conveyance subsequent to actual recording. 1917A-196. 4. LIEN. a. What is Embraced. 15. Construction of Mortgage of Income. Under a mortgage by a going concern of its real estate, plant, and establishment, together with its income, issues, and profits, choses in action, etc., reserving a CHATTEL MORTGAGES. 169 right of user and enjoyment in the grantor until default, and giving the mortgagee the right to enter and take charge of the plant and operate it to discharge the mort- gage debt, the income, issues, profits, etc., do not pass under the lien of the mortgage until default and possession thereunder by the trustee, and the lien then only attaches to such income, issues, etc., as arise after default and possession thus taken. Mor- gan v. Dayton Coal, etc. Co. (Tenn.) 1917E-42. 16. Increase. As between mortgagor and mortgagee, offspring, regardless of its age and development, continues subject to the mortgage incumbrance. McCarver v. Grif- fin (Ala.) 1917C-1172. (Annotated.) 17. The offspring of female animals when they come into visible existence and are endowed with independent life rest at birth under the same title or ownership as the dam, and are subject to any existing mortgage incumbrance upon her. McCarver v. Griffin (Ala.) 1917C-1172. (Annotated.) 18. In detinue by the mortgagee of a mare for a colt born during the life of the incumbrance, which plaintiff had bought from the mortgagor after separation from the mother, the evidence is held to charge defendant with knowledge that the colt was subject to the mortgage on the dam. McCarver v. Griffin (Ala.) 1917C-1172. (Annotated.) 19. Additions to Stock of Goods. As be- tween the parties, a mortgage upon goods which authorizes the mortgagor to sell them, and with the proceeds of such sale to purchase other goods to take their place, is valid. Williams v. Noyes, etc. Mfg. Co. (Me.) 1916D-1224. (Annotated.) 20. The intention of the parties as gath- ered from the language of all parts of the agreement, considered in relation to each other, and interpreted with reference to the situation of the parties, and their ob- ject, always prevails, unless some estab- lished principle of law or sound public policy would thereby be violated; and hence under a chattel mortgage providing that the mortgagor might sell in the or- dinary course of business, replacing the stock with new stock and keeping it to its present value, and that it covered all after-acquired property added to the busi- ness in any manner or during the exist- ence of the mortgage, the mortgagee did not rely or intend to rely upon the agree- ment to sell from the stock and replace it with new stock, and, in view of what interested third parties might ascertain from inspection of the mortgage, he could take only such goods as he showed title to, which were in existence at the date of the mortgage or substituted for articles sold by purchase from the proceeds, as to hold otherwise would be a violation of an es- tablished principle of law and sound pub- lic policy. Williams v. Noyes, etc. Mfg. Co. (Me.), 1&16D-1224. (Annotated.) 21. Additions to Stock of Goods. A printed provision of a chattel mortgage covering a stock of goods, which was writ- ten on an ordinary farm mortgage, that "all increase from said stock of whatever kind or nature, the above-described stock being kept in my possession on Sec- tion No ' Township No Range No ," could not be construed to cover additions to or substitutions in the stock of goods. In re Thompson (Iowa) 1916D- 1210. (Annotated.) 22. At common law a chattel mortgage only included property which was in ex- istence and owned by the mortgagor when the mortgage was executed, unless he had a potential ownership therein at the time, as in case of crops, wool upon sheep, etc.; but, in absence of express provisions to that effect, a mortgage of a stock of goods would not cover and include other goods subsequently purchased from the trustees of the stock mortgaged, or otherwise. In re Thompson (Iowa) 1916D-1210. (Annotated.) 23. While the increase of chattels mort- gaged need not have a separate identity at the time the chattels and increase are mortgaged, in order to be covered by the mortgage, it must be at least the product or growth of property which at the time had a corporeal existence, and in which the mortgagor had a present interest. In re Thompson (Iowa) 1916D-1210. (Annotated.) 24. Confusion of Goods. Where, after a stock of goods was mortgaged, the mort- gagor openly sold from the goods in the same town in which the mortgagee lived, and replaced them with other goods, so that the subsequently acquired goods were mingled with the mortgaged property, ap- parently with the mortgagee's consent, each party would be entitled to such pro- portionate share of the whole mass as the property to which he was entitled bore to the whole mass. In re Thompson (Iowa) 1916D-1210. (Annotated.) Notes. Chattel mortgage on stock of mercantile goods as covering additions thereto. 1916D-1215. Right of chattel mortgagee or condi- tional vendor to accession to property mortgaged or told. 1917C-1170. Mortgage on animals as including in- crease. 1917C-1173. b. Waiver and Discharge. 25. Levy of Attachment. The levy of an attachment by a chattel mortgagee on the mortgaged property as the property of 170 the mortgagor does not waive the title of the mortgagee, or estop him from main- taining an action of detinue to recover the mortgaged property, since, by the direct provisions of Ala. Code 1907, 4091, a chattel mortgagor has an equity in the mortgaged property subject to levy. Ex part* Logan (Ala.) J916C-405. (Annotated.) Note. Waiver of chattel mortgage lien by at- tachment. 1916C-408. 5. DEFAULT AND FORECLOSURE, a. In General. 26. Remedies of Mortgagee. A chattel mortgagee has three several or concurrent remedies against the mortgagor: An action at law to recover the debt; an appropriate action to recover possession of the prop- erty; and a foreclosure of the mortgage, and sale of the property. Ex parte Logan (Ala.) 1916C-405. 27. Waiver of Fraud or Duress. Where the mortgagor for about three years there- after carried on his business with the mort- gage on his stock, he thereby waived any right to set up fraud or duress in the exe- cution of the mortgage. Williams v. Noyes, etc. Mfg. .Co. (Me.) 1916D-1224. b. Rights of Junior Mortgagee. 28. Price in Excess of Debt. Where per- sonal property, subject to a mortgage to secure rent, was sold by a receiver under foreclosure and bid in by the lessor at the full amount of the mortgage, which exceeded the amount of the rent due, the lessor is liable to a subsequent chattel mortgagee for the overplus, and the sale will not, in an analogy to sales of real property, be set aside on the ground that the purchase price exceeded the value of the goods, for sales of personalty are not tjrdinarily subject to redemption. North- ern Brewery Co. v. Princess Hotel (Ore.) 1917C-621. 6. RIGHTS AND DUTIES OF MORT- GAGOR AND MORTGAGEE AS TO THIRD PARTIES. 29. Effect of Settlement With Mortga gor. \\l\ere by statute the mortgagor in possession of a horse may sue the railroad company whose train killed it and the company compromises with the mortgagor, it is not liable for a second payment for the value of the horse to the mortgagee, since the law contemplates but one set- tlement or satisfaction for the same injury. Chicago, etc. R. Co. T. Earl (Ark.) 1917D- 552. 30. In such case where a mortgaged horse is killed by a railway company, the DIGEST. 1916C 1918B. mortgagor then in possession may maintain an action against the company for the killing of the horse, under Kirby's Ark. Dig. 6776, providing that any person who has a special ownership in property killed by a train may sue the company for dam- ages for such killing. Chicago, etc. R. Co. v. Earl (Ark~.) 1917D-552. (Annotated.) 31. Right of Action Against Third Per- son. Although the possession by a mort- gagor of personal property is permissive only, since Kirby's Ark. Dig. 5410, enti- tles the mortgagee to possession, the mort- gagor has such a special ownership and such duties in regard to the mortgaged property that he can maintain an action for negligent destruction or for conversion of the property. Chicago, etc. R. Co. v. Earl (Ark.) 19I7D-552. (Annotated.) 32. Duty to Protect Property. Although Kirby's Ark. Dig. 5396, makes the filing of a mortgage for record notice to all persons of its existence, and section 5410 provides that the mortgagee shall have the legal title thereto and the right of posses- sion, the mortgagor in possession of mort- gaged personal property has the special interest of a bailee, is under the duty of protecting the property, and is liable to the mortgagee if he fails to protect it. Chicago, etc. R. Co. v. Earl (Ark.) 1917D- 552. Note. Right of action of chattel mortgagor against third person for injury, etc.. to chattels. 1917D-554. CHATTELS. Meaning, see Executors and Administra- tors, 2. Liability of owner for driver's acts, iee Automobiles, 23-26. CHEATS. See False Pretenses. CHECKS. 1. Nature and Effect of Instrument, 171. 2. Presentment for Payment, 171. 3. Revocation and Countermand of Pay- ment, 171. 4. Certified Checks, 171. 5. Bights and Liabilities of Indorsers, 172. See Banks and Banking, 44. Check as payment, see Escrow, 3, 7. Worthless check, indorser defrauded, see False Pretenses, 3, 4. Finding in suit to cancel as conclusive in action on check, see Judgments, 65. Indorser's liability on pledged check, see Pledge, 1. CHECKS. 171 1. NATURE AND EFFECT OF INSTRU- MENT. 1. Negotiability. A "check" is a nego- tiable instrument payable on demand or at eight without days of grace, and is not an "inland bill of exchange," or less a check because it is postdated. Merchants, etc. Bank v. New National Bank (Ark.) 1917A-944. 2. PRESENTMENT FOR PAYMENT. 2. Place of Presentment. Under the Negotiable Instruments Law (N. Y. Consol. Laws, c. 38), 133, declaring that, where no place of payment is specified, present- ment for payment is properly made at the place of business of the one to make pay- ment, a check is properly presented for payment at the banking house of the in- stitution on which it is drawn. Columbia- Knickerbocker Trust Co. T. Miller (N. Y.) 1917A-348. 3. Check not Promptly Presented. Rem. & Bal. Wash. Code, 3444, provides that, where an instrument payable on demand is negotiated unreasonably long after issue, the holder is not a holder in due course. Section 3575 provides that a "check" is a bill of exchange drawii on a bank, pay- able on demand, and that, except as other- wise provided, the provisions of the Nego- tiable Instruments Act applicable to a bill of exchange payable on demand apply to a check. Section 3576 provides that a check must be presented for payment with- in a reasonable time after issue, or the drawer will be discharged to the extent of the loss caused by the delay. A check was given by the maker to the indorser as an advance payment for corporate stock sold by the indorser to the maker; the understanding being that the check should not be negotiated until delivery of the stock. The indorser five weeks there- after pledged the check with plaintiff bank as security for a pre-existing debt and a further loan. It is held that the bank was not thereby precluded from being a holder in due course, since, by section 3576, the fact that the instrument was stale when taken discharged the maker from lia- bility only to the extent of the loss caused by the delay, of which there had been none, while, assuming that the bank was chargeable with knowledge of all the facts existing at the time of taking the check, it was merely chargeable with knowledge that such check was given in connection with an executory contract for the pur- chase of stock to be delivered 60 days from the date of the check, which time had still 30 days to run before breach, by failure to deliver the stock, could occur, while knowl- edge by the indorsee of a negotiable in- strument that it has been given in consid- eration of an executory contract or agree- ment will not deprive such indorsee of his character as bona fide holder in due course, unless prior to the assignment he had notice of some breach of the execu- tory contract. German-American Bank v. Wright (Wash.) 1917D-381. 4. Presentment Through Clearing House. Under N. Y. Negotiable Instruments Law, 132, providing that presentment for pay- ment must be made by some person author- ized, a bank to whom a check was indorsed may present it to the drawee bank through the clearing house. Columbia-Knicker- bocker Trust Co. v. Miller (N. Y.) 1917A- 348. 5. Delay In Presenting. The failure to present a check within a reasonable time does not exonerate the drawer unless there has been a loss to him thereby. Baldwin's Bank v. Smith (N. Y.) 1917A-500. 6. Failure to Present Pledged Check. Where a bank sues the maker and in- dorser of a check pledged to it by such indorser, eridence is properly rejected as to whether it was customary or in keeping with prudent banking to hold a check taken as collateral for 20 days before send- ing it through for collection; the material point, under Rem. & Bal. Wash. Code, 3576, providing that a check must be pre- sented within reasonable time after its issue, or the maker will be discharged to the extent of loss caused by the delay, being whether loss was caused by any de- lay. German-American Bank v. Wright (Wash.) 1917D-381. 7. Effect of Acceptance. The "accept- ance" of a check contemplates a promise on the part of the drawee to pay same, and is essentially different from the payment thereof. Elyria Savings, etc. Co. v. Wal- ker Bin Co. (Ohio) 1917D-1055. (Annotated.) 3. REVOCATION AND COUNTER- MAND OP PAYMENT. 8. Bight to Stop Payment of Certified Check. After a bank has certified a check, thereby implying that it is drawn upon sufficient funds in its hands set apart for its satisfaction, and that they will be so applied when it is presented for payment, the drawer cannot stop payment on it, and the mere fact that he notifies the bank not to pay it does not release the bank from its liability thereon. Merchants, etc. Bank v. New National Bank (Ark.) 1917A- 944. (Annotated.) Mote. Right of drawer to stop payment of cer- tified check. 1917A-947. 4. CERTIFIED CHECKS. 9. Effect of Certification. Where the drawer of a check, payable November 1st, on the 29th day of June causes the cashier of the drawee bank to note thereon "Cer- 172 DIGEST. 19160 1918B. tified for $2,000. 6/29/1911. B. C. Pow- ell" the certification becomes an acknowl- edgment by the bank that the drawer will have funds on deposit which it will pay to the holder on presentation after Novem- ber 1st, the word "certify" meaning an absolute promise on the part of the bank to pay the check on presentation after No- vember 1st. Merchants, etc. Bank v. New National Bank (Ark.) 1917A-944. 10. Bights of Bona Fide Holder. Where e bank certified a postdated check of a depositor, which was delivered to a third person, to be by him delivered to the payee after its date, on his compliance with the terms of a contract between him- self and the maker, and it was delivered to the payee, although he had not com- plied with his part of the contract, a bank which credited him with the amount which he drew out before it had notice of any fraud in the transaction, or that the drawee bank had been enjoined from pay- ing it, is a bona fide holder for value in the usual course of business without no- tice, and may enforce payment as against the drawee bank. Merchants, etc. Bank v. New National Bank (Ark.) 1917A-944. 11. Liability of Bank to Holder. By force of the provisions of Ohio General Code, 8294, General Code, there is no lia- bility on the part of a bank to the holder of a check unless and until it accepts or certifies the check. Elyria Savings, etc. Co. v. Walker Bin Co. (Ohio) 1917D-1055. 5. EIGHTS AND LIABILITIES OP INDOESERS. 12. Effect of Secret Agreement. Where defendant draws a check to the order of his codefendant without any indication on its face that it is not to be negotiated, it not even being postdated, the secret agree- ment between the parties being that it should not be negotiated until the payee delivers to the maker certain stock, such agreement will not defeat the recovery of a bank, with which the indorser pledges the check as collateral for a new loan and for an antecedent debt, since he who makes a loss possible should suffer the loss. German-American Bank v. Wright (Wash.) I917D-381. 13. Clearing House Rules. The liability of an indorser cannot be affected by the fact that the check was sent through the clearing house; and, where the drawee re- fused payment, he cannot escape liability on the ground that, under the clearing house rules, the drawee was not privileged to do so. Columbia-Knickerbocker Trust Co. v. Miller (N. Y.) 1917A-348 (Annotated.) 14. Payment on Forged Instrument. Where a check is paid by a bank, which is the drawee thereof, on a forged indorse- ment, and there is stamped upon the check "Paid," together with the date of the pay- ment and the name of the bank, and the check is charged to the account of the drawer, this is not an acceptance of the check within the meaning of Ohio Gen- eral Code, 8294, and does not create a lia- bility against the bank in favor of the true holder or payee. Elyria Savings, etc. Co. T. Walker Bin Co. (Ohio) 1917D-1055. (Annotated.) Note. Liability of bank to true holder or payee of check paid on forged indorse- ment. 1917D-1058. CHEWING TOBACCO. Liability of manufacturer for injury to consumer, see Negligence, 2. CHILD. "Child" does not include bastard, see Exe- cutions, 4. CHILDREN. See Adoption of Children; Infants; Parent and Child. As including posthumous child, see Wills, 199. CHINESE. Deportation, see Aliens, 18-23. CHIROPRACTIC. See Physicians and Surgeons, 1, 2. CHIROPRACTOR. See Physicians and Surgeons, 1, 2. CHOSE IN ACTION. Aseignability, see Assignments, 11-16. CHRISTIAN NAME. Use of, see Names, 3, 4. CHURCHES. See Religious Institutions. CIRCUMSTANTIAL EVIDENCE. See Evidence, 160-162. Sufficiency, see Criminal Law, 91, 92. Sufficient to prove illicit intercourse, see Husband and Wife, 63. CITIES. See Municipal Corporations. CITIZEN. Not including corporation, see Corpora- tions, 2. CITIZENSHIP CLAIM OF LIEN. 173 CITIZENSHIP. Expatriation by marriage, see Aliens, 15, 16. CITY. See Municipal Corporations. CITY CHARTER. See Municipal Corporations, 1-17. CITY WARRANTS. See Municipal Corporations, 36, 120-128. CIVIL ACTION. See Actions and Proceedings. CIVIL CONSPIRACY. See Conspiracy, 13-20. CIVIL DAMAGE ACTS. Participation of officers as defense to lia- bility for mob violence, see Mobs, 1. 1. Liability for Death from Intoxication. In an action against a liquor dealer for a death caused by intoxication, evidence considered and held to warrant finding that defendant sold liquors to decedent while the latter was intoxicated. White v. State (Ind.) 1917B-527. (Annotated.) 2. In an action against a liquor dealer for a death caused by intoxication, evi- dence considered and held to justify find- ing that decedent's intoxication was the cause of his physical disability and death. White v. State (Ind.) 1917B-527. (Annotated.) 3. Instructions Sustained. In an action against saloon keepers and their surety for injuries inflicted by a drunken father on his daughter, instruction's submitting to the jury four essentials of defendants' lia- bility, that plaintiff was assaulted and in- jured, that the father was intoxicated, that such intoxication was caused by the defendants, and that the father was in the habit of using liquor, are proper, although on some of such elements the plaintiff's evidence was undisputed, since the credi- bility of witnesses is for the jury, who may disregard any testimony. Yonkus v. McKay (Mich.) 1017E-458. 4. Evidence. In an action against saloon keepers and their surety for in- juries inflicted by a drunken father on his daughter, evidence that on the day of the assault such father had no money with which to purchase liquor is properly ad- mitted as bearing on the issue whether at the time of the assault he was in fact in- toxicated. Yonkus v. McKay (Mich.) 1917E-458. 5. Complaint Sufficient. Where, in aa action against a liquor dealer for a death caused by intoxication, the complaint al- leged that the intoxication incapacitated the decedent to manage his horses prop- erly, that because of such incapacity they became unmanageable, and that, while de- cedent was intoxicated and the team in such state, he leaned out over the dash- board, and one of the horses, irritated by his acts, kicked him on the head and face, inflicting injuries from which he died, such complaint sufficiently avers connection between decedent's intoxication and his in jury. White v. State (Ind.) 1917B-527. 6. Civil Damage Act Evidence Admis- sible Possession of Money by Alleged Drunkard. In an action against saloon keepers and their surety t* recover for in- juries inflicted upon plaintiff by her father when drunk, testimony tending to show that, on the day of the assault, such father had no money to buy liquor is admissible to impeach the father's testimony that he had money, such matter being material to the issues. Yonkus v. McKay (Mich.) 1917E-458. Note. Damages for death by intoxication. 1917B-530. CIVIL RIGHTS. 1. Who Is "Colored" Person. In view of S. Car. Const, art. 3, 33, declaring void the marriage of a white person with a negro or mulatto having one-eighth or more negro blood, the child of a union of a white person and one having less than one-eighth negro blood is entitled to exer- eise all the legal rights of a white man, except those arising from a proper classi- fication, when equal accommodations are afforded. Tucker v. Blease (S. Car.) 1916C-796. CIVIL SERVICE. 1. Application to Policemen. The civil service provisions of section 1238 of the Kan. Gen. Stat. of 1909, relating to com- mission government in cities of the first class, must be restricted to the employ- ment of subordinates and employees, and cannot apply to officers within the con- templation of section 2, of art. 15, of the Kan. state Constitution. Haney v. Cofran (Kan.) 1917B-660. CIVIL WAR VETERANS. See Pensions. CLAIM AND DELIVERY. See Replevin. CLAIM OF LIEN. Notice, filing, service, see Mechanics' Liens, 18-28. 174 CLASSIFICATION. Of cities, see Municipal Corporations, 8, 9. CLASS LEGISLATION. See Constitutional Law, 63-70, 87. CLERICAL ERRORS. Disregard, in statute, see Statutes, 97. CLOUD ON TITLE. Injunction to prevent, see Injunctions, 6. Sale of curtesy interest as effecting, see Judicial Sales, 5. CLUBS. See Societies and Clubs. COAL. See Mines and Minerals. COAL HOLE. Injury to pedestrian, see Negligence, 29- 31. COAL MINES. See Mines and Minerals. COASTING IN STREET. Contributory negligence of child, see Negligence, 87. CODES. Codification, effect on titles of statutes, see Statutes, 4. Codification, effect on construction, see Statutes, 81. Revival of will" by, see Wills, 111, 112. Construction of codicils, see Wills, 1G9, 170. COLLAPSE OF BUILDING. Action for, see Negligence, 76. COLLATERAL ATTACK. On judgment, when permissible, see Judg- ments, 81, 82. On judgment, see Quieting Title, 12. On order of Railroad Commission, Bee Railroads, 36. COLLECTIONS. See Banks and Banking, 61-66. Agreement for commission not champer- tous, see Champerty and Maintenance. 1. COLLEGES AND UNIVERSITIES. County bonds to aid state university, see Counties, 18. DIGEST. ( 1916C 1918B. COLLISION. See Ships and Shipping, 1, 2. Motorcycle and auto, see Automobiles, 13 39-41, 46. Of ship with bridge, liability, see Bridges, 1-4. Presumption of negligence from accident, see Carriers of Passengers, 62. COLLOQUIUM. In complaint for defamation, see Libel and Slander, 84, 85, 89, 91, 107. COLORED PERSONS. Who are, see Civil Rights, 1. Race discrimination, see Constitutional Law, 64, 111, 125. Validity of law requiring white signers to license application, see Intoxica- ting Liquors, 44. Charge of placing negro over white girls, see Libel and Slander, 17. Ordinances segregating races, see Muni- cipal Corporations, 59-71. Separation of races, see Schools, 39. Note. Separation of white and colored pupils for purposes of education. 1916C-806. COLOR OF TITLE. See Adverse Possession, 19, 20. COMBINATIONS IN RESTRAINT TRADE. See Monopolies. OF COMITY. See Courts; Extradition; Foreign Laws; Judgments. Adoption proceedings of sister state, see Adoption of Children, 2, 4. COMMENT ON PUBLIC MATTERS. Privileged communications, see Libel and Slander, 63-65. COMMERCE. Meaning, see Fish and Game, 21. Defined, see Interstate Commerce, 1. Meaning, see Master and Servant, 41. COMMERCIAL PAPER. See Bills and Notes; Checks. COMMISSIONERS FOR CONDEMNA- TION. Report and proceedings, see Eminent Do- main, 64-67. COMMISSION FORM OF GOVERN- MENT. See Municipal Corporations, 10-14. COMMISSION MERCHANTS COMMON LAW. 175 COMMISSION MERCHANTS. Regulation of, see Constitutional Law, 43; Licenses, 35. COMMISSIONS. Of brokers, see Brokers, 3-11. Of executors and administrators, see Executors and Administrators, 62-64. On sheriff's sale, see Sheriffs and Con- stables, 13. COMMON CARRIERS. See Carriers; Carriers of Goods; Carriers of Live Stock; Carriers of Passengers; Elevators; Ferries. COMMON LAW. 1. In General. 2. To What Extent in Force. 3. In Relation to Crimes. Eight of action how abolished, see Actions and Proceedings, 3. Liability of bastard's father for support, see "Bastardy, 9. A.pplication of eminent domain, see Emi- nent Domain, 5. Presumption as to common law of sister state, see Evidence, 143-145. Common law indictment concluding against statute, see Indictments and Informa- tions, 4. Common law survivorship, see Joint Ten- ants, 1. Defense of privilege, see Libel and Slan- der, 75. Declaration for defamation, see Libel and Slander, 88. Conspiracy to raise prices indictable, see Monopolies, 8. Effect on duties of sheriff, see Sheriffs and Constables, 1. As inannlicable to attestation of wills, see Wills, 20. Applicability to revocation of will, see Wills, 104. 1. IN GENERAL. 1. Nature and Scope. The common law consists of those principles and rules of action which have been from time to time adopted and acted on by the courts when administering justice, in cases not gov- erned by any written law arising out of private disputes of individuals. Yazoo, etc. R. Co. v. Scott (Miss.) 1917E-S80. Note. "What the "common law" includes. 1918A-968. 2. TO WHAT EXTENT IN FORCE. 2. Extent of Adoption, The common law is in force in this state, except where it has been modified by competent govern- mental authority. Ingram-Dekle Lumber Co. v. Geiger (Fla.) 1918A-971. (Annotated.) 3. What is Included. Burns' Ind. Ann. St. 1914, 236, adopting all rules of the common law of England in force in the year 1607, does not bind the court to fol- low an English decision within the period named if such decision is unreasonable and unsuitable to American institutions, as the theory of the adopted system is that the law consists, not in the actual rules enforced by the decisions of the courts, but only in the principles from which these rules flow. Ketelsen v. Slilz (Ind.) 1918A-965. (Annotated.) Note. Extent of adoption of common law. 1918A-981. 3. IN RELATION TO CRIMES. 4. Crimes. Mont. Rev. Codes, 8275, denouncing as criminal contempt false or grossly inaccurate reports of the proceed- ings of a court, when construed in the light of the constitutional guaranty of freedom of speech, does not denounce as a crime every false or grossly inaccurate re- port concerning causes finally determined, when no public interest can suffer as a consequence of the publication, although such a report constituted a contempt at common law, and where the due adminis- tration of the law is not impeded, and a publication to the effect that the relator's first case was thrown out of court on a technicality, and his second case, by which he sought to oust a county com- missioner from office for misappropriation of public funds, was thrown out, and char- acterized by the court as a "dirty mess," and that if a man steals cattle he goes to the penitentiary, while if the county com- missioners take county money that is simply "a dirty mess," did not constitute contempt within the statute. State v. District Court (Mont.) 1918A-985. (Annotated.) 5. Extent of Adoption. The common law. as far as applicable, is in force by virtue of Mont. Rev. Codes, 3552, declar- ing that the common law, so far as not repugnant to or inconsistent with the fed- eral or state Constitution or laws of the state, is the rule of decision in all the courts of the state, and the law of con- tempt as understood in England at the time of the Revolution is not in force in the state, since before the organization of the territory the law in Enpland had been modified by various acts of Parliament, by decisions of the courts, and by disuse. State T. District Court (Mont.) 1918A- 985. Note. Adoption of common law in relation to crimes. 1918A-990. 176 DIGEST. 1916C 1918B. COMMON LAW LIABILITY. Assumption of, see Carriers of Goods, 3. Of sheriffs, see Sheriffs and Constables, 12, 13. COMMON LAW MARRIAGE. See Marriage, 6-10. COMMON NUISANCE. Statutory definition, see Nuisances, 7. COMMON STOCK. See Corporations, 59. COMMONWEALTH ATTORNEYS. See Prosecuting Attorneys. COMMUNICATION. AJ including acts, see Witnesses, 19. COMMUNISTIC SOCIETY. See Religions Societies, 1-4. COMMUTATION OF AWARD. Under Workmen's Compensation Act, see Master and Servant, 280. COMMUTE. As used in Workmen's Compensation Act, ee Master and Servant, 280. COMPANIES. See Corporations; Partnerships. COMPANY. Defined, see Trademarks and Trade-names, 6. COMPARISON OF TYPEWRITING. Bee Forgery, 3. COMPENSATION. Of attorneys, see Attorneys, 17-35. Of brokers, see Brokers, 3. Of corporate officers, see Corporations, 54, 55. For property taken for public use, see Eminent Domain, 29-55. Of executors and administrators, see Executors and Administrators, 62-64. Of guardian, see Guardian and Ward, 29, 30. Of judges, see Judges, 3-8. Of servants, see Master and Servant, 6-7. Under Workmen's Compensation Act, see Master and Servant, 270-283. Of city officers, see Municipal Corpora- tions, 135, 136. Of city firemen, see Municipal Corpora- tions, 161-163. Of abutting owner for closing street, see Streets and Highways, 4. Of cotenant for selling the common prop- erty, see Tenants in Common, 10. COMPETENCY OF WITNESSES. Bee Witnesses, 1-46. COMPETITION. See Monopolies; Trademarks and Trade- names. Eight of partner to compete with firm, see Partnership, 16, 17. COMPETITIVE BIDDING. On school building, see Schools, 10. COMPLAINT. See Pleading, 4-6. To magistrate, when privileged, see Libel and Slander, 43-44. COMPLETED. Meaning, see Taxation, 78, 79. COMPOSITION OF CREDITORS. See Accord and Satisfaction; Assignments for Benefit of Creditors; Bankruptcy; Compromise and Settlement. COMPOUND INTEREST. Accounting by trustee, see Interest, 5. COMPROMISE AND SETTLEMENT. Authority of attorney, see Attorneys, 9. Eight of client to settle his case, see At- torneys, 16. Effect on attorney's Hen, see Attorneys, 43. 1. Agreement Held to be Compromise. Complainant obtained an oil and gas lease on Indian land from the father and mother of the deceased allottee, claiming to be his sole heirs. Before the lease was re- corded the lessors sold the land, and the purchaser executed a lease, afterward ac- quired by defendant, which went into pos- session, claiming priority, because its lessors obtained title before the recording and without knowledge of complainant's lease. One M. obtained a conveyance of the land from other relatives of the de- ceased allottee, and claimed adversely to both lessees. Complainant brought suit against all adverse claimants and obtained a receiver. Both complainant and defend- ant made offers to M., who leased to de- fendant for a royalty and an agreement to carry on the litigation and conditionally to pay a bonus. The court determined COMPUTATION OF TIME CONFESSIONS. 177 that the father was the sole heir, but that defendant's lease from his grantee was prior because of complainant's failure to record. Thereupon M. filed an ancillary bill to recover the royalty on oil sold by the receiver. Held, that the lease and contract were in effect a compromise and settlement between two of the three ad- verse claimants, that they were the con- sideration for the surrender by M. of his claim to the oil rights, and that he was entitled to his share of the fund in the hands of the receiver in accordance with their terms. Kiefer Oil, etc. Co. r. Me- Dougal (Fed.) 1916D-343. 2. Annulment of Compromise. An agreement of compromise and settlement is not invalidated because of a mistake of law by one of the parties. Kiefer Oil, etc. Co. v. McDougal (Fed.) 1916D-343. (Annotated.) Note. Mistake of law as ground for annulment of compromise. 1916D-347. COMPUTATION OF TIME. See Time. CONCEALED WEAPONS. See Weapons. CONCEALING ASSETS. See Bankrutcy, 30-36. CONCEALMENT OP ASSETS. Liability of corporation, see Corpora- tions, 24. CONCLUSIONS OF LAW. To be avoided, see Pleading, 3. CONDEMNATION. Meaning, see Eminent Domain, 3. CONDITIONAL PARDON. See Pardons, 4. CONDITIONAL SALES. See Sales, 61-65. CONDITIONS. Defined, see New Trial, 37. CONDITIONS PRECEDENT. To exercise of police power, see Constitu- tional Law, 20. To discovery, see Discovery, 1. To issue of mandamus, sec Mandamus, 23. 12 To euit for reformation, see Rescission, Cancellation and Reformation, 4. To euit for cancellation, see Rescission, Cancellation and Reformation, 21-26. Enforcement of contract, see Specific Per- formance, 7. Compliance with mandatory law, see Stat- utes, 19. CONDONATION. See Divorce, 15-18, 32, 44-47. CONFESSIONS. 1. Admissibility. a. In General. b. Determination of Question. c. Effect of Improper Admission. 2. Weight and Corroboration. 1. ADMISSIBILITY. a. In General. 1. Procurement by Fraud. That a con- fession has been procured by deceptive practices does not render it inadmdssible in evidence. People v. Buffom (N. Y.) 1916D-962. (Annotated.) 2. Effect of Intoxication. Intoxication, less than mania, does not exclude a con- fession made during its continuance, but is a fact for the jury tending to discredit ' such confession. Lindsey v. State (Fla.) 1916C-1167. (Annotated.) Notes. Intoxication as effecting admissibility of confession. 1916C-1168. Admissibility of confessions obtained by fraud or trick. 1916D-966. b. Determination of Question. 3. Question for Jury. In a trial for murder held on the evidence that whether defendant's confessions were voluntary was for the jury. People v. Eoach (N. Y.) 1917A-H110. . Effect of Improper Admission. 4. In a prosecution of a wife for the murder of her husband, who died of arsenical poisoning, the erroneous admis- sion of evidence of the illness and death of defendant's daughter, presumedly of poisoning, long after the death of the hus- band, requires a reversal when considered in connection with the admission of a con- fession procured from defendant by de- ception. People v. Buffom (N. Y.) 1916D- 962. 2. WEIGHT AND CORROBORATION. 6. Corroboration of Confession. Under N. Y. Code Cr. Proc., 395, providing that the confession of the accused is not suffi- 178 DIGEST. 1916C 1918B. cient to warrant his conviction without additional proof that the crime charged has been committed, there must be, in addition to the confession, proof of the corpus delicti, and where the corpus delicti is established by independent evidence, a conviction based upon defendant's volun- tary confession is warranted. People v. Roach (N. Y.) 1917A-410. 6. Where the voluntary nature of con- fessions was submitted to tli'e jury under proper instructions, a verdict against the defendant is conclusive on the issue. Peo- ple v. Eoach (N. Y.) 1917A-410. 7. Confession as Sufficient Corroboration of Accomplice. Kirby's Ark. Dig., 2384, provides that a conviction for a felony cannot be had on the testimony of an ac- complice, unless corroborated by other evidence tending to connect defendant with the commission of the offense, and that the corroboration is not sufficient if it merely shows the offense was committed and the circumstances thereof. Section 2385 declares that the defendant's confes- sion, unless made in open court, will not warrant a conviction, unless accompanied by other proofs that the offense has been committed. Held that, where defendant's daughter testified that defendant had had intercourse with her, with her consent, defendant's voluntary confession of the same fact to officers after his arrest for incest constituted sufficient corroboration to sustain a conviction. Knowles v. State (Ark.) 1916C-568. (Annotated.) Note. Confession of defendant as sufficient corroboration of accomplice. 1916C-570. CONFISCATION. Of liquor unlawfully kept, see Intoxicat- ing Liquors, 17, 22. CONFLICT OF LAWS. See Bigamy, 2; Limitation of Actions, 5. Law governing benefit certificate, see Beneficial Associations, 8. Jurisdiction of civil and military courts, see Courts, 19. Descent of corporate stock, see Descent and Distribution, 4 1 . Operation of Workmen's Compensation Act outside of state, see Master and Servant, 179-183. Measure of damages for tort committed outside state, see Master and Servant, 370. Treaties in conflict with state laws, see Treaties, 7. 1. Sale of Intoxicants. A contract for the purchase of intoxicating liquors for a quantity in excess of that authorized by law. between a citizen of this state and a citizen of some other state, cannot bo enforced in the courts of our state, al- though the laws of the other state in ques- tion may authorize such contract. Klein v. Keller (Okla.) 1916D-1070. 2. Where two parties reside in different states, both of which authorize the sale of intoxicating liquors, and a retail dealer in one of such states contracts with a whole- sale dealer in the other of such states for a quantity of liquors, such contract being made with no intention to violate the laws of either state, and being valid in either of such states, and being such a contract as affects neither the statutes nor the policy of this state, it may be enforced in the courts of this state. Klein v. Keller (Okla.) 1916D-1070. 3. Validity of Contract. The question whether a contract is legal or illegal is judged by the law on the subject in the state or country in which the contract is made; the general rule being that "a con- tract good where made is good every- where, and a contract invalid where made is invalid everywhere." The exceptions to the general rule are: "(1) Where the contract in question is contrary to good morals; (2) where the state of the forum or its citizens would be injured through the enforcement by its courts of contracts of the kind in question; (3) where the con- tract violates the positive legislation of the state of the forum, that is, is contrary to its Constitution or statutes; (4) where the contract violates the public policy of the state of the forum. Klein v. Keller (Okla.) 1916D-1070. 4. The prosecution of transitory actions in a state -or country other than that in which the cause of action arose is based on the principle of enforcing a foreign right by comity, so that, if under the lex loci no right of action exists, none can be enforced in the jurisdiction of suit. Os- borne v. Grand Trunk R. Co. (Vt.) 1916C- 74. 5. Liability of Wife for Household Ex- penses. The law of New York governs a wife's liability for the purchase price of provisions furnished to, and consumed by, the family in that state. Mettler v. Snow (Conn.) 1917C-578. 6. Personal Status. Under Civ. Code Cal. 1872, 1387, legitimatizing the issue of marriages null in law, children of a bigamous marriage born in California are entitled to their father's share in the es- tate of his sister dying intestate domi- ciled in Connecticut, since the personal status as to legitimacy established by an- other state should be recognized in Con- necticut unless violating some positive law of the state, contravening its estab- lished public policy, or offending against good morals; while, had the mother of the children been a deceased sister of the CONFUSION. 179 intestate, instead of their father a brother, their right to share would have been complete under Connecticut law. Moore v. Saxton (Conn.) 1917C-534. (Annotated.) 7. Bights Under Benefit Certificate. In this action upon a certificate issued by a fraternal benefit society, organized under the statute of Illinois, we assume, for the purposes of this case, that the laws of that state govern the rights of the parties. Anderson v. Eoyal League (Minn.) 1917C- 691. 8. Transfer of Corporate Stock. The laws of Kentucky must determine the rights of a judgment creditor of the trans- feror of corporate stock in West Virginia to attach the stock in a suit in Kentucky, where no common law or statute of West Virginia invalidating the transfer is pleaded or proved. Husband v. Linehan (Ky.) 1917D-954. (Annotated.) 9. Discharge of Surety. The effect of acts of the creditor to discharge a surety is to be determined by the law of the place where the contract of suretyship is made. Scandinavian Amer. Nat. Bank v. Kneeland (Manitoba) 1917B-1177. 10. Enforcing Foreign Contract. A con- tract, though valid under the law of the place where it was made, will not be en- forced in a jurisdiction where to so en- force it would involve a disregard of the established public policy of that jurisdic- tion. Grosman v. Union Trust Co. (Fed.) 1917B-613. 11. Existence of Corporation. Whether a foreign corporation, doing business in the state and treated as a de facto going concern, has a legal existence, depends upon the laws of the state of its domicil. Dickey v. Southwestern Surety Ins. Co. (Ark.) 1917B-634. 12. Legality of Contract. Where a con- tract in a foreign state is sought to be enforced in another state, the lex loci con- tractus controls the question of the legal- ity of the contract, unless otherwise pro- vided in the contract, and the laws of the state where the contract was made will be observed, in determining the rights and obligations of the parties, and effect given thereto, unless such foreign laws are ir- reconcilable with the local laws, or in conflict with the established policy of the enforcing state, provided that such laws of the foreign state are pleaded and proved. Marx v. Hefner (Okla.) 1917B- 656. 13. Construction of Foreign Contract. In enforcing a Missouri contract, the courts of Indiana are required to give full faith and credit to the statutes of Mis- souri, as construed by its courts. Travel- ers' Protective Assoc. v. Smith (Ind.) 1917E-1088. 14. Construction of Contract of Sale. Where a letter offering to buy lumber was received by the seller at its place of busi- ness in Ohio where the letter of accept- ance was mailed and from which the lum- ber was shipped to points outside Ohio, the contract is an Ohio contract, the con- struction of which is controlled by the laws of that state. W. G. Ward Lumber Co. v. American Lumber, etc. Co. (Pa.) 1918A-451. Note. Presumption as to knowledge of foreign law. 1916D-1072. CONFUSION. 1. Confusion by Mistake or Accident, 179. 2. Confusion by Consent of Owners, 180. 3. Confusion by Wrongful Act, 180. Eights of mortgagee, see Chattel Mort- gages, 24. 1. CONFUSION BY MISTAKE OR ACCI- DENT. 1. Confusion "by Inevitable Accident. "VThere a confusion of goods is the result of inevitable accident, the several owners are tenants in common in the whole mass in proportion to the amount of property contributed thereto by each. In re Thompson (Iowa) 1916D-1210. 2. Loss Falling on Person Causing Con- fusion. Since the doctrine of confusion of goods is the protection of the innocent owner, the resulting loss falls upon the person causing the confusion, in case he is unable to distinguish his -property. In re Thompson (Iowa) 1916D-1210. (Annotated.) Note. Confusion of goods resulting from mis- take or accident. 1918A-746. 3. Apportionment of Proceeds. In an action to recover the proportionate share of property or goods confused by another, it is not necessary to identify exact prop- erty, and where the goods confused could have been separated by the holder, but were not. he is liable to the owner for the average price received at the sale of such goods. Hobbs v. Monarch Refriger- ating Co. (HI.) 1918A-743. 4. Effect of Accidental Confusion. Where poultry in a warehouse becomes mixed by inevitable accident, the original owners become tenants in common of the mass, bearing proportionately any loss, and being in equity entitled to their just proportion of the poultry. Hobbs v. Mon- arch Refrigerating Co. (111.) 1918A-743. (Annotated.) 180 2. CONTUSION BY CONSENT OF OWNERS. 5. Confusion by Consent. Where there is a confusion of goods by consent of the parties, their rights in the goods would rest upon the contract involved in such consent, with a presumption that they were tenants in common therein. In re Thompson (Iowa) 1916I>-1210. 3. CONFUSION BY WRONGFUL ACT. 6. Wrongful Confusion. Where goods are wrongfully mixed, the party whose wrong causes the confusion must bear the loss, unless the property consists of parts of equal value, and the value of each part with reference to the value of the whole is ascertainable, when the parties will be tenants in common and each entitled to his proportion thereof. In re Thompson (Iowa) 1916D-1210. 7. Confusion by Negligence. Where a confusion of goods is caused through mis- take or negligence without actual fraud, the person causing the confusion must bear the loss, unless -he can designate his own property. In re Thompson (Iowa) 1916D-1210. 8. Fraudulent confusion of a debtor's property with that of another in one fund converts the claim of the injured creditor into a priority of right on the commingled fund. Gurney v. Tenney (Mass.) 1918A- 739. (Annotated.) 9. Fraudulent Confusion. There being a fraudulent confusion of property, and plaintiff tracing that of his debtor into the common mass, defendant has the bur- den of proof as to separation. Gurney T. Tenney (Mass.) 1918A-739. (Annotated.) Note. Tortious or wrongful confusion of goods. 1918A-740. CONNECTING CARRIERS. See Carriers of Goods, 24-31. CONNIVANCE. See Divorce, 19-22. No defense, see Adultery, 4. CONSENT. Confusion by, effect, see Confusion, 5. As defense to crime, see Criminal Law, 9. Of landowner to improvement as essential to lien, see Mechanics' Liens, 17. Absence of consent, specific performance denied, see Specific Performance, 1. CONSENT JUDGMENTS. See Judgments, 43-45. DIGEST. 1916C 1918B. CONSERVATOR AND WARD. Se Guardian and Ward, CONSERVATORS OF THE PEACE. Notary as conservator, see Breach of Peace, 9. CONSERVATORY WRITS. No action on dissolution, see Malicious Prosecution, 3. CONSIDERATION. See Bills and Notes, 6, 12-16 ; Deeds, 23. Written contract, parol proof of considera- tion, see Evidence, 122, 129. Statement of in memorandum, see Frauds, Statute of, 18. Partial failure of in antenuptial contract, effect, see Husband and Wife, 22. Of mortgage debt, see Mortgages and Deeds of Trust, 19, 20. For warranty, see Sales, 12. Furnishing consideration by third party as raising trust, see Trusts and Trus- tees, 16, 17. CONSORTIUM. Husband's action for loss of, see Husband and Wife, 35. CONSPIRACY. 1. Criminal Conspiracy, 180. a. Right to Prosecute One of Several Conspirators, 180. b. Indictment, 180. e. Evidence. 181. 2. Civil Liability, 181. a. Character of Act and Nature of Liability, 181. b. Pleading, 182. c. Evidence, 182. Evidence, declarations of co-conspirator, see Admissions and Declarations, 12. Survival of action, see Executors and Ad- ministrators, 84. To raise prices, see Monopolies, 7, 8. 1. CRIMINAL CONSPIRACY. . Right to Prosecute One of Several Conspirators. 1. Effect of Acquittal of One Defend- ant. Upon the indictment of two persons alone for criminal conspiracy, the acquit- tal of one is an acquittal of the other. Gordon v. McLearn (Ark.) 1918A-482. b. Indictment. 2. Variance Immaterial. The variance between an indictment alleging that de- fendants wrongfully agreed to raise the price of milk to 13 cents and the proof CONSPIRACY. 181 that after the agreement they sold milk at 124 cents is immaterial, for the gist of the offense was the unlawful combination to raise the price, sustained by proof of agreement so to do, and that in conse- quence thereof defendants did raise the price. State v. Craft (N. Car.) 1917B- 1013. 3. Defenses Inducement for Purpose of Prosecution. An indictment charged a conspiracy to pervert the due administra- tion of the laws. The proof was of an agreement by defendants with a detective in the employ of the state's law officers to detect defendants in corrupt conduct, by which the detective was to pay them money for their votes as members of a city council. Held that, as the indictment charged but one conspiracy, to which the detective was proper to be a necessary party, and as his object was to expose cor- ruption, and prevent injury to the public, there was a failure to prove a conspiracy to pervert the due administration of the laws. State v. Dougherty (N. J.) 1917D- 950. (Annotated.) c. Evidence. 4. Proof by Circumstances. It is not necessary to prove a conspiracy by posi- tive evidence; but its existence may be inferred from circumstances attendant upon the doing of the act, and from the subsequent conduct of the parties. Brind- ley v. State (Ala.) 1916JM77. 5. Where, on the trial of C., a political leader, for selling a nomination to W. for a public office there was evidence suffi- cient to make a question of the existence of a conspiracy between C., W. and a third person to bring about the nomina- tion of W., the testimony of a witness as to what W. said to him after W. and C. and the third person had conferred about the nomination, and later at the time he procured a loan for W. on a note, and be- fore the money was paid over to him, is admissible. People v. Cassidy (N. Y.) 1916C-1009. 6. Acts and Declarations of Co-conspir- ators Admissible. Where evidence of a conspiracy has been given to make the question of its existence one for the jury, any evidence of the acts and declarations of the conspirators in furtherance of the common purpose is competent, and it is unnecessary that the conspiracy should be charged in the indictment to make the proof competent. People v. Cassidy (N. Y.) 1916C-1009. 7. Relationship of Parties. In deter- mining whether accused and his wife were co-conspirators in killing deceased, the fact of their relationship may be consid- ered. State v. Inlow (Utah) 1917A-741. 8. Circumstantial Evidence. While a conspiracy cannot be established by the acts and declarations of only one of the alleged co-conspirators so as to render such acts and declarations admissible against accused, yet a conspiracy may be estab- lished by circumstantial evidence, and in such case the acts of one co-conspirator are admissible against the other. State v. Inlow (Utah) 1917A-741. 9. Sufficiency of Evidence. In a prosecu- tion for conspiracy, the question whether the defendants were actuated by lawful or unlawful motives is held to be a ques- tion of fact on which the jury's finding is not reviewable. Hummelshime v. State (Md.) 1917E-1072. 10. investigation by Detective. In a prosecution for conspiring to demand money to corrupt a city council, testi- mony of a detective, engaged to entrap defendants, and the person from whom the money was demanded, as to whether he had investigated other members of the city council, and as to whether it was necessary to investigate other persons in connection with the water system, is prop- erly excluded. Hummelshime v. State (Md.) 1917E-1072. 11. In prosecution for conspiracy, where citizens had engaged a detective to ascer- tain if there was corruption in a city council, the refusal of the court to require an attorney, who had been engaged to en- gage such detective, to divulge the names of his clients, is not improper, where an opportunity was offered by the court and accepted by the defense to ask any wit- ness if he were one of the attorney's clients. Hummelshime v. State (Md.) 1917E-1072. 12. Mailing of Letter. In a prosecution for conspiring to demand money to cor- rupt a city council, where the person from whom defendants were charged to have demanded the money was a detective en- gaged to entrap them, testimony by the detective that the mail chute in an office building in which he placed a letter to a defendant was connected with the mail box below is admissible. Hummelshime v. State (Md.) 1917E-1072. (Annotated.) 2. CIVIL LIABILITY. a. Character of Act and Nature of Lia- bility. 13. Petition to Revoke License. De- fendants' motive being the public good, and they being not actuated by malice or intent to injure plaintiff, their action in signing and presenting such petition was not a conspiracy, since a "civil conspir- acy" is a combination between two or more persons to accomplish by concert of action an unlawful purpose, or to accom- plish a purpose not in itself unlawful by unlawful means; the damage being the gist of any action. McKee T. Hughes (Tenn.) 1918A-459. 182 DIGEST. 1916C 1918B. 14. Gist of Civil Action. In a hus- band's action against the relatives of his wife for conspiring to alienate her affec- tions, a recovery may be had against two or more of the defendants if the charge of conspiracy is sustained, and against any one or more for individual respon- sibility if no conspiracy is proved, since the damage to the plaintiff and not the conspiracy, is the gist of the right of ac- tion. Eatcliffe v. Walker (Va.) 1917E- 1022. 15. Gist of Civil Action for Conspiracy. The gist of the action of conspiracy is damage, and where no damage is proved the action cannot be maintained. You- mans v. Hanna (N. Dak.) 1917E-263. (Annotated.) 16. Acts Lawful if Done by Individual. Except where the members engaged make what would otherwise be a lawful and innocent act a nuisance and harmful. vrhat one may do singly a number may do to- gether. The mere fact that a number of persons join together in making a pur- chase of banking stock upon terms and conditions which would have been per- fectly lawful for one to do by himself does not render such transaction unlaw- ful. Youmanu v. Hanna (N. Dak.) 1917E- 263. b. Pleading. 17. Failure of Proof. Under Va. Code 1904, 3384, providing that, if at the trial of any action there is a variance between proof and pleadings, the court, if substan- tial justice will be promoted, and the opposite party will not be prejudiced, may allow amendment of the pleadings to con- form with proof, in a husband's action against the relatives of his wife for alienation of her affections, a charge that, unless the plaintiff prove conspiracy by all the defendants, there could be no re- covery, is properly refused; since any variance between the parties alleged to be liable and those shown by proof to be so can be cured by amendment under the statute. Eatcliffe v. Walker (Va.) 1917E- 1022. c. Evidence. 18. Evidence of Conspiring. In an fic- tion by a husband against the relatives of his wife, who had left him. for conspiring to procure a separation, plaintiff need not prove that the defendants came together and actually agreed in terms to bring about the separation and to pursue the end by common means; it being sufficient if it was shown that the defendants pur- sued the same object by their acts with a view to its attainment. Ratcliffe v. Walker (Va.) 1917E-1022. 19. Declarations of Co-conspirators Proof of Conspiracy as Prerequisite to Admission. Tn order that the declarators and conduct of third persons may be ad- missible against defendant, it is neces- sary to show by independent evidence that there was a combination between them and defendants, but it is not neces- sary to show by independent evidence that the combination was criminal or otherwise unlawful, and the element of illegality may be shown by the declara- tions themselves. Hitchman Coal, etc. Co. v. Mitchell (U. S.) 1918B-461. 20. Where H. was engaged in an effort to organize the coal miners of a particular district as the representative of a volun- tary association of which defendants were active members, and in the execution of a purpose to which they had given consent, and in which some of them were actively co-operating, his declarations and conduct while so doing are evidence against de- fendants. Hitchman Coal, etc. Co. v. Mitchell (U. S.) 1918B-461. CONSCRIPTION. See Army and Navy, 1-9. CONSOLIDATION OF SCHOOLS. See Schools, 3, 4. CONSTABLES. See Sheriffs and Constables. CONSTITUTIONAL LAW. 1. Nature and Operation of Constitu- tion, 183. 2. Distribution of Powers of Government, 184. a. In General, 184. b. Legislative, 184. c. Judicial, 184. 3. Police Power, 185. a. In General, 185. b. Scope of Power, 185. c. Regulation of Business, 186. d. Conflict With Federal Constitu- tion, 187. 4. Due Process of Law, 187. 5. Equal Protection of Laws, 188. a. In General, 188. b. Judicial Review of Classification, 188. 6. Impairment of Obligation of Con- tracts, 189. 7. Privileges and Immunities, 189. 8. Personal and Religious Liberty, 190. 9. General and Special Laws, 190. 10. Delegation of Legislative Power, 190. 11. Self-executing Provisions. 190. 12. General Principles Governing D.^ter- mination as to Constitutionality of Statutes, 191. a. In General, 191. b. Who may Raise Constitutional Question, 192. c. Avoidance of Determination. 193. d. Waiver of Objection, 193. e. Construction in Favor of Validity, 19:;. f. Presumption in Favor of Validity 194. CONSTITUTIONAL LAW. g. Wisdom of Statute, 195. h. Declaring Statute Unconstitu- tional, 196. 13. Construction of Constitution, 196. 14. Amendment of Constitution, 197. a. Adoption, 197. b. Construction and Operation, 197. See Carriers, 1, 2, 8-10, 12, 15-17; Coun- ties, 1-4, 6-8, 9, 18; Divorce, 1-3; Elections, 1, 2; Eminent Domain, 2, 6, 7, 14, 15, 25-27, 59, 97-99; Fish and Game, 6-8, 10-13, 15-22, 25-27; Food, 8-11, 15-20; Former Jeopardy, 1, 2, 6-8, 12; Fraudulent Sales and Con- veyances, 15-17; Gas and Gas Com- panies, 1, 6, -7; Guardian and Ward, 1, 2, 4; Habeas Corpus, 13; Husband and Wife, 5; Imprisonment for Debt in Civil Cases, 1, 2; Indictment and Informations, 7; Initiative and Ref- erendum, 1-6; Injunctions, 2, 8; Inn- keepers, 3; Interstate Commerce, 1, 5, 6, 9; Intoxicating Liquors, 1, 6, 12-31; 44, 58-69, 82; Irrigation, 12; Judges, 3, 4, 8, 13; Jury, 1-7, 32; Licenses 2, 17, 19, 20, 27, 29, 30, 31, 37; Mechan- ics' Liens, 1, 2, 14, 31, 38; Militia, 8, 12; Municipal Corporations, 1, 3, 7, 11-13, 19, 40, 42, 55, 59-71, 79, 84, 88, 117-119, 146, 150, 159, 164; Public Contracts, 1-3; Railroads, 6; Schools, 26, 33-40, 44; Sentence and Punish- ment, 1-5, 8, 9, 13-17 jvStare Decisis, 2, 4, 5. 11; Streets and Highways, 4, 5; Street Railways, 3; Taxation, 1, 6-11. 25, 26, 31, '32, 36, 37, 41, 54, 55, 60. 61, 67, 72. 74, 78. 79, 95. 96. 98, 120, 122, 123, 173, 181, 190-193, 199; Theaters and Amusements, 1, 3, 4; Towns, 1, 2; Treaties, 5; Trees and Timber, 2, 6-18; Waters and Water- courses, 5; Weights and Measures, 1. Farm Loan Act, see Agriculture, 6-9. Pure Seed Law, see Agriculture, 12-15. Eegulation alien employment, see Aliens, 9, 10. Selective Draft Act, see Army and Navy, 3-9. Prohibiting assignment of claim to non- resident, see Assignments, 5, 6. Prohibiting assignment of wages, see As- signments, 2. Regulations for bar admission, see Attor- neys, 3. Regulation of auctions, see Auctions and Auctioneers, 1. Regulation of motor vehicles, see Auto- mobiles, 2, 3, 7, 9. Requiring courts open to all, see Building and Loan Associations, 7. Regulation of rates of fare, see Carriers of Passengers, 5, 8-10. Regulation of jitneys, see Carriers of Pas- sengers, 88-91. Power to punish for contemj>t, see Con- tempt, 3, 8-14. Rights as to inheritance and devise, see Descent and Distribution, 2. Regulation of employment of labor, see Labor Laws, 1, 3-9, 12-15, 17-22, 24- 32. Scope of legislative power, see Legisla- ture, 1, 2. Freedom of speech, limitation on Con- gress, see Libel and Slander, 1, 2. Right to apply for redress of grievances, privilege, see Libel and Slander, 61. Constitutionality of Employers' Liability Act, see Master and Servant, 43-45. Constitutionality of Workmen's Compensa- tion Acts, see Master and Servant, 108, 110-168. Granting new trial on single issue not denial of due process, see New Trial, 10. Granting new trial on single issue not denial of jury trial, see New Trial, 11. Right to impose condition in pardon, see Pardons, 4. Regulation of pawnbrokers, see Pawn- brokers, 1, 2. Regulation of optometrists, see Physicians and Surgeons, 4. Regulation of drugless practitioners, see Physicians and Surgeons, 6, 7. Regulation of nurses, see Physicians and Surgeons, 8-10. White Slave Act, see Prostitution, 14. Anti-nepotism law, see Public Officers, 16. Statute creating state bond fund, see Pub- lic Officers, 67-74. Public utilities act, see Public Service Commissions, 8-10, 19, 20, 23, 27, 28. Exemption from taxes and recording fees, see Recording Acts, 4. Seizure of private papers, see Searches and Seizures, 2. Limitation on state's power, see States, 2. T itle and subject of statutes, see Stat- utes, 1-14. 1. NATURE AND OPERATION OF CONSTITUTION. 1. Rights Protected by Constitution. The provisions of the Constitution, Nev. state or federal, do not cover rights, privi- leges, and obligations not specified and not existing or understood at the time of its adoption, or not in force by long acquiescence, or by continued official or public approval. Worthington v. District Court (Nev.) 1916E-1097. 2. Constitution as "Law." A statute and a Constitution though of unequal dig- nity, are both "laws," and each rests upon the will of the people. State v. B'rantley (Miss.) 1917E-723. 3. The spirit of the Federal Constitu- tion does not oppose but favors congres- sional action which makes for the promo- tion of obedience to the laws of the sev- eral states. State v. Missouri Pacific R. Co. (Kan.) 1917A-612. 184 DIGEST. 1916C 1918B. 2. DISTRIBUTION OF POWERS OF GOVERNMENT. a. In General. 4. Powers of Federal Government. Un- der Const. U. S. Amend. 10 (9 Fed. St. Ann. 356), declaring that the powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respec- tively, or to the people, the government of the United States is one of enumerated powers, and can claim no powers not granted to it by the Constitution, and the powers actually granted must be such as are given expressly or by necessary impli- cation. People v. Brady (111.) 1917C- 1093. 5. Respective Powers of State and Fed- eral Government. The power to regulate property within the limits of the state, the modes of acquiring and transferring it, and the rules of descent and distribu- tion dealt with by trustees, executors, etc., are subjects belonging exclusively to the jurisdiction of the state, not subject to federal control. People v. Brady (HI.) 1917C-1093. b. Legislative. 6. Legislative Power to Regulate. The constitution of Ohio vests the judicial power of this state in the courts and spe- cifically defines and limits both the origi- nal and the appellate jurisdiction of the courts of appeals. The general assembly of the state cannot enlarge or restrict this jurisdiction in matters judicial, but may provide by law for the exercise of that jurisdiction. Thompson v. Redington (Ohio) 1918A-1161. 7. Scope of Legislative Power. Under Me. Const, art. 4, pt. 3, 1, giving the legislature full power to make and estab- lish all reasonable laws and regulations for the defense and benefit of the people of the state not repugnant to the Consti- tution, the powers of the legislature are absolute, except as limited by the Consti- tution. Laughlin v. Portland (Me.) 1916C- 734. 8. Regulation of Public Utilities. There is nothing in the constitution that pro- hibits the legislature from enacting laws to regulate and control public utility cor- porations. Idaho Power, etc. Co. v. Bloomquist (Idaho) 1916E-282. 9. After the adoption of section 14, art. 1, of the Idaho constitution, it only re- mained for the legislature to provide the procedure to carry into effect the provi- sions of said section. The legislature, however, may add to the public uses enumerated in said section, but it cannot annul or repeal any of the uses therein specified. Blackwell Lumber Co. v. Em- pire Mill Co. (Idaho) 1918A-189. c. Judicial. 10. Formulation of Public Policy. A" supreme court can announce no public policy of its own, but merely what it be- lieves to be the public policy of the peo- ple of the commonwealth by which it is created. It has no power to create or command but merely to construe; and where the people have spoken, either in the form of a constitutional enactment or a valid and constitutional statute, it must be controlled by their decisions and conclusions. Northern Pacific R. Co. v. Richland County (N. Dak.) 1916E-574. 11. Province of Courts. In the division of powers, it is the function of the legisla- tive department to make the laws, and the function of the judicial department to enforce them; and the courts are no more responsible for what a law may contain, so long as it is a valid enactment, than is the legislature responsible for the manner in which the courts may enforce the law. The responsibilities of the two depart- ments are ae separate as their functions. Van Winkle T. State (Del.) 1916D-104. 12. Validity of Statute. Coroner's Act (Hurd's 111. Rev. St. 1913, c. 31), 14, making it the duty of coroners' juries to inquire how, in what manner, and by whom or what dead bodies came to their death, and of all other facts of and con- cerning the same, together with all mate- rial circumstances in any wise related to or connected with the death, and to make up and sign a verdict and deliver it to the coroner, is not unconstitutional as invest- ing the coroner's jury with judicial power in violation of Const, art. 6, 1, by which all judicial powers are vested in the courts, as "judicial power" is the power which adjudicates upon and protects the rights and interests of individual citizens, and to that end construes and applies the laws, and this power involves, not only the power to hear and determine a cause, but also the power and jurisdiction to adjudi- cate and determine the rights of the par- ties to the controversy and to render a judgment or decree which will be effectual and binding upon them in respect to their personal or property rights in controversy in such proceedings, and the power to hear without the power to adjudicate and deter- mine the rights of the parties is not judi- cial power, as that term is used in the constitution. Devine v. Brunswick-Balke- Collender Co. (111.) 1917B-887. 13. Delegation of Judicial Power. It does not follow from pronouncements that judicial power may not be delegated, that none but duly constituted constitutional courts may exercise judicial power, and H may be delegated to and exercised by spe- cial tribunals or officers exercising quasi judicial functions and by purely admiuis- CONSTITUTIONAL LAW. 185 trative bodies upon whom such functions have been conferred. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. 3. POLICE POWER, a. In General. 14. The "police power" of the state is an attribute of sovereignty, and when exercised within its scope is supreme, to the exclusion of the power of the general government. It is the power of govern- ment inherent in every sovereignty that is, the power to govern men and things and, when exercised by a state sover- eignty, extends to such restraints and regulations as are reasonable and proper to protect the lives and property of its citizens and to promote the order and wel- fare of society. Van Winkle v. State (Del.) 1916D-104. 15. A rightful exercise of the police power is not a violation of the Fourteenth Amendment, U. S. Const., even though property interests are affected. People v. Weiner (111.) 1917C-1065. 16. Whether a statute based on the police power is reasonable depends on whether in its attempted regulation it makes efficient constitutional guaranties and conserves rights, or is destructive of inherent rights. People v. Weiner (HI.) 1917C-1065. 17. To come within the police power, a statute or ordinance must tend in some degree toward the prevention of offenses or the preservation of the public health, morals, safety, or welfare, and it must be apparent that such end is the one actually intended, and there must be some connec- tion between the provisions of the law and such, purpose. People v. Weiner (111.) 1917C-1065. 18. While the police power cannot ex- cuse the enactment of unreasonable, op- pressive, or xmjust laws, it may be legiti- mately exercised to preserve the public health, safety, morals, and general wel- fare. State v. Bunting (Oregon) 1916C- 1003. 19. The "police power" is the inherent sovereign power under which the state must act by enacting statutes for the benefit of society and the protection of morals, health, and order. Chicago, etc. R. Co. v. Anderson (Ind.) 1917A-182. 20. Prerequisites to Exercise. The state may exercise the police power whenever the public interests demand it, but, to justify the state in thus interposing its authority in behalf of the public, it must appear: First, that the interests of the public generally, as distinguished from those of a particular .class, require such interference; and, second, that the means are reasonably necessary for the accom- plishment of the purpose, and not unduly oppressive on individuals. Barrett v. State (N. Y.) 1917D-807. 21. Reasonableness of Police Regula- tion. The consideration and determination of the reasonableness of regulations under the police power rests with the legislative departments, and court will not examine the question de novo and overrule such judgment by substituting its own, unless it clearly appears that those regulations are so beyond all reasonable relation to the subject to which they are applied as to amount to mere arbitrary usurpation of power, or are unmistakably in excess of the legislative power or arbitrary be- yond possible justice, bringing the case within the rare class in which such legis- lation is declared void. State v. McKay (Tenn.) 1937E-158. 22. A statute enacted within the police power will not be adjudged invalid merely because omitted cases might have been properly included in the statute. People v. Charles Schweinler Press (N. Y.) 1916D-1059. b. Scope of Power. 23. Nature and Scope of Police Power. The legislature has power to pass laws for the preservation of good order, or to pro- mote public welfare and safety, or prevent fraud, deceit, cheating, and imposition, as the police power was in the state prior to the adoption of the Federal Constitu- tion, and remained with the state under the constitution, and has not been taken away by any of the amendments thereto. People v. Weiner (111.) 1917C-1065. 24. Where the legislature has jurisdic- tion, in view of the facts, to exercise its police power, the selection of the method and extent of its action is largely within its discretion, and will not be adjudged invalid by the courts unless clearly so. People v. Charles Schweinler Press (N. Y.) 1916D-1059. 25. The police power of the state is co- extensive with self-protection, and is not inaptly termed "the law of overruling necessity." State v. Starkey (Me.) 1917A- 196. 26. Nature and Scope of Police Power. The "police power" in effect sums up the whole power of government, and all other powers are only incidental and ancillary to the execution of the police power; it is that full, final power involved in the ad- ministration of law as the means to the administration of practical justice. Wes- sell v. Timberlake (Ohio) 1918B-102. 27. The "police power" is that inherent and plenary power in the state which en- ables it to prohibit all things hurtful to 186 DIGEST. 1916C 1918B. the comfort, safety, and welfare of society. People v. Weiner (111.) 1917C 1065. 28. Rights of property may not be in- vaded under the guise of police regulation. People v. Weiner (111.) 1917C-10bo. 29. An act passed under the police power of the state must hare some rela- tion and be adapted to the ends sought to be accomplished. People v. Weiner (111.) 1917C-1065. 30. Application of Fourteenth Amend- ment. The Fourteenth Amendment to the Federal Constitution [9 Fed. St. Ann. 384 et seq.] was not designed to interfere with the exercise of the police power of states. Durand v. Dyson (111.) 1917D-84. 31. The police power of the state in- cludes the right to regulate, control, and prohibit occupations endangering the health, morals, and safety of the general public. Longmire v. State (Tex.) 1917A- 726. 32. Nature and Scope. The right to im- pose restraints on the use and disposition of property, found by experience or on in- spection to be injurious to the health, morals, or general welfare, is within the police power, and a statute, uniform and general and applicable to all persons in the same circumstances, does not deny to one the "equal protection of the law" within Ind. Const., art. 1, 23, and Const. U. S. Amend. 14. Chicago, etc. K. Co. v. Anderson (Ind.) 1917A-182. 33. Extension by Modern Conditions. The advance of civilization and conse- quent extension of governmental activi- ties has resulted in lessening the dominion of individuals over their property and strengthening the state's regulation there- of, until all private property is now held subject to the right of the state to impose on the use and enjoyment thereof such reasonable regulations as are deemed ex- pedient for the public welfare. Harris v. Louisville (Ky.) 1917B-149. 34. The police power is not to be lim- ited to guarding merely the physical in- terests of the citizen, and his moral, intellectual, and spiritual needs may also be considered, as in preserving wild ani- mals. Barrett v. State (N. Y.) 1917D- 807. 35. Regulating Use of Property. Every holder of property holds it under the im- plied liability that its use may be so regu- lated that it shall not encroach injuriously on the enjoyment of property by others or be injurious to the community. Pitts- burgh, etc. E. Co. v. Chappell (Ind.) 1918A-627. c. Regulation of Business. 36. Power to Pass Inspection Laws. The right to pass inspection laws belongs to the police power of the government. State v. Starkey (Me.) 1917A-196. 37. Regulation of Commerce. The "lib- erty" guaranteed by La. Const., art. 2, providing that no person shall be deprived of life, liberty, or property without due process of law, includes the right to manu- facture and offer for sale any article of commerce one pleases so long as the doing so does not come under the restrictive jurisdiction of the police power. New Orleans v. Toea (La.) 1918B-1032. 38. Agencies. The state, in the exer- cise of its police power, could, consistently with the Federal Constitution, enact so much of Mich. Pub. Acts 1913, act Xo. 301, as provides for the licensing of private employment agencies, and prescribes rea- sonable regulations in respect to them, to be enforced according to the legal discre- tion of a commissioner, including a provi- sion making it a misdemeanor to send one seeking employment to an employer who has not applied for help. B razee v. Michigan (U. S.) 1917C-522. (Annotated.) 39. The term "police power" has a mean- ing coextensive with sovereign power or sovereignty. As understood in American constitutional law, the term denotes the power of the state to impose those re- straints on private rights which are neces- sary for the general welfare of all. and is but the power to enforce the maxim. "Sic utere tuo ut alienum non laedas." It is the power to regulate the business of others, and not a power to go into busi- ness. Union Ice, etc. Co. v. Ruston (La.) 1916C-1274. 40. The police power of the state is suffi- ciently broad and comprehensive to en- able the legislature to regulate by law public utilities, in order to promote the health, comfort, safety, and welfare of the people, and thus regulate the manner in which public utility corporations shall construct their systems and carry on their business within the state. Idaho Power, etc. Co. v. Blomquist (Idaho) 1916E-282. 41. Control of Public Utilities. All property devoted to public use is held sub- ject to the power of the state to regulate or control its use in order to secure the general safety, health, and public welfare of the people, and when a corporation is clothed with rights, powers, and franchises to serve the public, it becomes in law sub- ject to governmental regulation and con- trol. Idaho Power, etc. Co. v. Blomquist (Idaho) 1916E-282. 42. Regulation of Petroleum Products. The state has full power to enact proper laws for the inspection of oils, gasoline, petroleum, ether, and like substances; and legislation relating, to such inspection, if otherwise valid, is not void as an unlaw- CONSTITUTIONAL LAW. 187 ful exercise of its police power. Castle v. Aluson (Ohio) 1917A-164. (Annotated.) 43. Commission Merchants Validity of Regulation. The rights of liberty and property, guaranteed by Const. U. S. Amend. 14, and the corresponding provi- sions in the state constitution are not designed to interfere with the police power of the state for the protection of the health, safety, morals, and welfare; hence Bern. & Bal. Wash. Code, 7024- 7035, known as the Commission Mer- chants' Law. enacted to protect those con- signing property to commission mer- chants, is a ralid exercise of the police power, and does not interfere with the rights of liberty and property, which in- clude the privilege of pursuing an ordi- nary calling without restriction. State v. Bowen & Co. (Wash.) 1917B-625. (Annotated.) Note. State or municipal regulation of manu- facture of bricks. 1917B-931. d. Conflict With Federal Constitution. 44. Conflict With Federal Constitution. Though the exercise of the police power is not to be interfered with wfr&re it is with- in the scope of legislative authority, and the means adopted reasonably tend to ac- complish a lawful purpose, such power, broad as it is, cannot justify the passage of a law or ordinance running contrary to the limitations of the federal constitution. Buchanan v. Warley (U. SO 1918A-1201. 4. DUE PEOCE'SS OF LAW. 45. Application to States. The due pro- cess of law clause of the fifth amendment to the federal constitution applies only to Congress and does not affect state legis- lation. School Town of Windfall City v. Somerville (Ind.) 1916D-661. 46. Right of School Corporation to De- mand Due Process. Acts 1903, c. 204 (Burns' Ind. Ann. St. 1908, 6671), pro- viding that real property owned by com- mon school corporations shall be liable to special assessment for public improvements already constructed, and the corporation shall make payment is not invalid under Const. U. S. Amend. 14, prohibiting the deprivation of property without due pro- cess of law for school corporations; being created by the legislature in accordance with Const, art. 4, 1, the legislature 'has plenary power over them as well as over the roads and streets, and they cannot in- voke the due process clause. School Town of Windfall City v. Somerville (Ind.) 1916D-661. 47. Section 22, art. 1, of the Constitution of North Dakota, which provides that "all courts shall be open, and any man for any injury done him in his lands, goods, or reputation shall have remedy by due pro- cess of law, and right and justice admin- istered without sale, denial, or delay," is aimed, not merely against bribery and the direct selling of justice by magistrates and officials, but against the imposition of unreasonable restraints upon and charges for the use of the courts. Malin v. La- moure County (N. Dak.) 1916C-207. (Annotated.) 48'. What Constitutes "Property." With- in Const. U. S. Amend. 14 (9 Fed. St. Ann. 416), protecting life, liberty, and property from invasion without due process of law, "property" is more than the mere thing which a person owns and includes the right to acquire, use, and dispose of it, and these essential attributes of prop- erty are protected by the Constitution. Buchanan v. Warley (U. S.) 1918A-1201. 49. Right to Public Trial. Notwith- standing Mont. Const, art. 3, 16, guar- anteeing to an accused person a right to a public trial, the trial court has the right to preserve decorum, and may exclude persons for disorderly conduct, or because they impede the due administration of the law. State v. Keeler (Mont.) 1917E-619. (Annotated.) 50. The right of an accused to a public trial guaranteed by Mont. Const, art. 3, 16, is not infringed, because the court- room ig not large enough to include all per- sons, or because of an order closing the doors after the room is filled. State v. Keeler (Mont.) 1917E-619. (Annotated.) 51. The right of an accused person to a public trial guaranteed by Mont. Const, art. 3, 16, may be waived. State v. Keeler (Mont.) 1917E-619. (Annotated.) 52. Rules as to Burden of Proof. The constitution is not violated by statutes which change burden of proof and take away defenses like assumption of risk, negligence of fellow servant, and con- tributory negligence. Eules as to burden of proof, and permitting such defenses, are made either by courts or by legislative action, and the legislature may change any rule made by the legislature, or one made by the court. The constitution gives no vested rights in mere rules of procedure and the like. Hunter v. Colfax Consoli- dated Coal Co. (Iowa) 1917E-803. (Annotated.) 53. License Tax Regulations. Liberty to contract is not unconstitutionally in- fringed, contrary to the due process of law clause of U. S. Const. 14th Amend. (9 Fed. St. Ann. 416), by Florida Laws 1913, c. 6421, 35, making merchants offer- ing with merchandise bargained or sold any coupons, profit-sharing certificates, or other evidences of indebtedness or liability redeemable in premiums, liable to pay an 188 DIGEST. 1916C 1918B. additional license tax, which may be pro- hibitive, and, if the same are to be re- deemed by someone else than the merchant offering them, liable to pay a similar li- cense fee for the one who is to redeem. Rust v. Vaa Deman, etc. Co. (U. S.) 1917B-455. (Annotated.) 54. Nor is it invalid as unreasonable because requiring the giving of a surety bond for $3,000 before license can be is- sued. State v. Bowen & Co. (Wash.) 1917B-625. (Annotated.) 55. Employment of Citizens Only on Public Works. Property is not taken without due process of law, nor is the equal protection of the laws denied, con- trary to U. S. Const. 14th Amend. (9 Fed. St. Ann. 416, 538) by the provisions of N. Y. Consol. Laws, c. 31, 14, that only citizens of the United States may be em- ployed in the construction of public works by or for the state or a municipality, and that in such employment citizens of New York state must be given preference. Heim v. McCall (U. S.) 1917B-287. (Annotated.) 56. Effect of Coroner's Verdict. As no rights, property or otherwise, are fixed or established by a verdict of a coroner's jury, under 111. Coroner's Act, 14, that section is not void as depriving persons or property without due process of law. Devine v. Brunswick-Balke-Collender Co. (HI.) 1917B-887. 57. Statute Establishing Presumption. A state may, consistently with the due pro- cess of law clause of U. 8. Const. 14th Amend., establish by statute presumptions and rules respecting the burden of proof, provided that the statute be not unreason- able in itself, and not conclusive of the rights of a party. Hawkins v. Bleakly (U. S.) 1917D-637. 58. Criminal Law. Ga. Penal .Code (1910) 204 is not violative of article 1, section 1, paragraph 3, of the state con- stitution, which declares that "no person shall be deprived of life, liberty, or prop- erty, except by due process of law." Griffin v. State (Ga.) 1916C-80. 59. The fifth amendment of the constitu- tion of the United States is not a limi- tation upon the power of the states, but operates upon the national government only. Accordingly section 204 of the Ga. Penal Code, is not invalid as being viola- tive of that amendment. Griffin v. State (Ga.) 1916C-80. 60. What Constitutes. No process is "due process" which does not give notice, either actual or constructive, and no tak- ing of property for debt is lawful unless the debt has been created with the knowl- edge and consent of the debtor. Anderson v. Great Northern R. Co. (Idaho) 1916C- 191. 61. Coroner's Inquest. A coroner's in- quest is within the spirit of Const. S. Car. art. 1, 15, requiring all courts to be pub- lic. State v. Griffin (S. Car.) 1916D-392. Note. Validity of statute discriminating against aliens in employment of laborers. 1917B-287. 5. EQUAL PROTECTION OF LAWS, a. In General. 62. A statute, under which those in- cluded and those excepted are each- at liberty to place themselves in the same position that the other is, is, if a dis- crimination at all, a purely academic one. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. 63. Classification mnst always rest upon some difference bearing a reasonable and just relation to the act in respect to which the classification is proposed, though it need not always depend on scientific or marked differences in things or persons or relations, but it suffices if it is practical, and it is not reviewable unless palpably arbitrary. Hill v. Rae (Mont.) 1917E- 210. 64. Race Discrimination. Colored per- sons are citizens of the United States, and have the right to purchase property and enjoy and use it without laws discrim- inating against them solely on account of color. Buchanan v. Warley (U. S.) 1918A-1201. b. Judicial Review of Classification. 65. Class Legislation. Under Const. U. S. Amend. 14 (9 Fed. St. Ann. 538), pro- hibiting the denial to any person of the equal protection of the law, and Const. Tenn. art. 1, 8, prohibiting the imprison- ment or execution of any person, or depriv- ing him of life, liberty, or property, except by judgment of his peers or the law of the land, and article 11, 8, forbidding class legislation, the same rules will be applied to classifications therein as to the classifications made in legislative enact- ments, so that the basis for a classification must be natural, and not arbitrary or capricious, and must rest on some substan- tial difference; but the classification is not invalid merely because it does not depend on scientific or marked differences. Mem- phis v. State (Tenn.) 1917C-1056. 66. Under the provisions of the con- stitution prohibiting class legislation, it is not sufficient to invalidate a statute merely to show points of similarity in the thing classified, and the thing excluded from the classification; but it must be shown that the classification is unreasonable and im- practicable. Memphis v. State (Tenn.) 1917C-1056. 67. Legislative classification is permis- sible because in the nature of things and in due appreciation of equality in the opera- CONSTITUTIONAL LAW. 189 tion of the law it is necessary for pnr- poses of revenue, or in the application of the police power, or in legislation de- signed to increase the industries of the state, develop its resources and prosperity, etc. Hill v. Ra (Mont.) 1917E-210. 68. The provision of the federal Con- stitution guaranteeing to all persons the "equal protection of the laws," does not mean broadly that all persons, however situated, shall have the same rights and be protected in doing the same things, but means that all persons in like situations shall have an equal protection of the law; the test in ascertaining whether equal pro- tection of the laws is denied to any per- son, or to any class of persons, is whether the classification adopted is an arbitrary one, or is a reasonable one in view of the purposes and objects of the act. Van Winkle v. State (Del.) 1916D-104. 69. While legislative classification must have some reasonable basis upon which to rest, unless the courts are satisfied that there can be no basis in reason therefor, they will not overthrow the statute. Van- dalia Eailroad Co. v. Stillwell (Ind.) 1916D-2-58. (Annotated.) 70. The wealth and prosperity of Cali- fornia or of any other state m the Union is of vital importance to the people of North Dakota. A statute, therefore, which discriminates in the matter of the amount of an inheritance tax between a citizen and resident of Norway and a citizen of Norway residing in California or any other state of the Union, is not for that reason void on the ground of class legislation. Moody v. Hagen (N. Dak.) 1918A-933. 6. IMPAIRMENT OF OBLIGATION OF CONTRACTS. 71. Impairing Obligation of Contract. Rights and privileges arising from con- tracts with the state are subject to regu- lations for the protection of the public health, morals, and safety in the same sense as are rights arising from other con- tracts. Pittsburgh, etc. R. Co. T. Chappell (Ind.) 1918A-627. 72. Contract obligations are not uncon- stitutionally impaired by the imposition, under Florida Laws 1913, c. 6421, 35, of an additional license fee upon merchants offering with merchandise bargained or sold coupons, profit-sharing certificates, or other evidences of indebtedness or liabil- ity redeemable in premiums, since the stat- ute must be deemed to be prospective in its operation, and not to affect sales com- pleted before its enactment. Rast T. Van Deman, etc. Co. (U. S.) 1917B-455. (Annotated.) 7. PRIVILEGES AND IMMUNITIES. 73. A discrimination is not necessarily unlawful, but a privilege or a burden is or is not a denial of the eqnal protection of the laws according to whether the dis- crimination relates to a matter upon which classification is legally permissible, and, if so, whether the classification is a rea- sonable one. Hill v. Rae (Mont.) 1917E- 210. 74. Privileges and Discriminations. In the application of the Fourteenth Amend- ment to the federal constitution (9 Fed. St. Ann. 392) no distinction is to be ob-. served between the effect of privileges conferred and of burdens imposed; a priv- ilege conferred upon one class being a dis- crimination in favor of that class and against all others not similarly endowed, as a burden upon one class is a discrimina- tion against it and in favor of all others not similarly burdened. Hill T. Rae (Mont.) 1&17E-210. 75. Corporation as Citizen. A corpora- tion may not invoke the protection of the privileges and immunities provisions of the federal constitution, because it is not a "citizen," within the meaning of that pro- vision. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. 76. Const. U. 8. Amend. 14, and Const. Ind. art. 1, 23, prohibiting the granting of privileges or immunities, do not forbid classification of persons for legislative pur- poses, and where the situation, conditions, and circumstances of the person included within a class to which the law is made to apply so differ from those not so included as to indicate the propriety of making the law applicable only to those included with- in it, and the law applies to all whom the reason applies, and excludes all to whom the reason excludes, is not unconstitu- tional, and a classification having a rea- sonable basis will not be condemned merely because it is so framed as to include all within the reason of the classification and exclusion of others. Cincinnati, etc. R. Co. v. McCullom (Ind.) 1917E-1165. 77. Meaning of Prohibition. Const. U. S. Amend. 14, is a prohibition against the states, and requires that all burdens and liabilities imposed by law shall rest equally upon all persons under like circumstances and conditions, and Const. Ind. art 1, 23, prohibiting the granting to any citizen, or class of citizens, privileges or immunities, forbids the granting of privileges or im- munities which under like circumstances are not granted to all citizens; the one forbidding the curtailment of rights, and the other the enlargement of the rights of some in disparagement of the rights of others. Cincinnati, etc. B. Co. v. McCul- lom (Ind.) 1917E-1165. 78. The equality of rights and privileges with citizens of the United States with re- spect to security for persons and property which citizens of Italy are assured by the Italian treaty of February 26, 1871 (17 190 DIGEST. 1916C 1918B. Stat. at L. 845; 7 Fed. St. Ann. 656) is not infringed by the provisions of N. Y. Consol. Laws, c. 31, 14, that only citi- zens of the United States may be em- ployed in the construction of public works by or for the state or a municipality, and thnt in such employment citizens of New York state must be given preference. Heim v. McCall (U. S.) 1917B-287. (Annotated.) 79. Abridgment of Privileges of Citizen Scope of Federal Constitution. The Fourteenth Amendment (9 Fed. St. Ann. 392) draws a distinction between a citizen of the United States and a citizen of a state, and classifies the privileges of citi- zens into those which they have as citizens of the United States and those which they have as citizens of the state wherein they reside, and forbids the abridging of the privileges of a citizen of the United States, but docs not forbid the state from abridg- ing the privileges of its own citizens. Hopkins v. Richmond (Va.) 1917D-1114. 8. PERSONAL AND RELIGIOUS LIB- ERTY. 80. Mass. St. 1913, c. 678, 2, prohibiting the carrying of red or black flags in parades, is not bad as unlawfully depriving persons of their liberty; the purpose of the enactment being to prevent parades which would provoke turbulence, which is a legitimate regulation of personal lib- erty. Commonwealth v. Karvonen (Mass.) 1916D-846. (Annotated.) 81. Liberty of Contract. Liberty of con- tract is not an absolute and unlimited right, but upon the contrary is always subservient to the public welfare. Pitts- burgh, etc. R. Co. v. Kinney (Ohio) 1918B-2S6. 82. Liberty of Speech and of Press. Un- der the right of freedom of speech and of the press, the public have a right to know and discuss all judicial proceedings, but this does not include the right to at- tempt, by wanton defamation and ground- less charges of unfairness and partisan- ship, to degrade the tribunal and impair its efficiency. In re Hayes (Fla.) 191SB- 936. (Annotated.) 83. Liberty of Speech and of Press. The thirteenth section of the declaration of rights of the constitution of Florida, which provides that "every person may fully speak and write his sentiments on all sub- jocts. being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press," etc., does not secure im- munity from punishment to any citizen who falsely and with the purpose to de- fame, attacks in the newspapers the char- acter of any other citizen, or impugns the integrity, honor and authority of the courts. In re Hayes (Fla.) 1918B-936. (Annotated.) 84. The exercise of the right to "fully speak and write" one's sentiments on all subjects, a right secured by our constitu- tion, is always subject to the preservation of the governmental authority of the state as conferred by law. In re Hales (Fla.) 1918B-936. (Annotated.) 85. An attorney cannot, under his con- stitutional right of free speech, slander or defame a court. In re Hilton (Utah) 1918A-271. (Annotated.) Note. Validity of statute or ordinance regu- lating parades or processions. 1916D- 847. 9. GENERAL AND SPECIAL LAWS. 86. Effect of Slight Inequality. A stat- ute is general and uniform, within the re- quirements of the constitution, if it oper- ates equally upon every person and locality within the circumstances covered by the act, and when a classification has a rea- sonable basis it is not invalid merely be- cause not made with exactness, or because in practice it may result in some inequal- ity. Steele, etc. Co. v. Miller (Ohio) 1917C-926. 87. Classification. Reasonable classifi- cations in a legislative act are not prohib- ited by the Constitution prohibiting the passage of local or special laws. Worth- ington T. District Court (Nev.) 1916E- 1097. 88. Law Relating to Divorce. The Nev. C'onstitution, prohibiting any special laws granting divorce, renders void any special act granting divorce, as divorces were granted by Parliament and state legis- latures prior to the constitutional provi- sion. Worthington v. District Court (Nev.) 1916E-1097. 10. DELEGATION OF LEGISLATIVE POWER. 89. Delegation to Courts of Nonjudicial Duty. In the absence of express constitu- tional provision therefor, the general as- sembly of Ohio cannot assign to the judicial branch of the government any duties other than those that are properly judicial, to be performed in a judicial man- ner. Thompson v. Redington (Ohio) 1918A-1161. 11. SELF-EXECUTING PROVISIONS. 90. The part of Const. Mo. art. 9, 9, which provides that in any county which shall have adopted township organization the question of discontinuing the same may be submitted to a vote of the electors at a general election in the manner that shall be provided by law, is not self- executing, but the provision that, if a ma- jority of the votes cast on the question CONSTITUTIONAL LAW. 191 shall be n^ninst township organization, it shall cease in the county, and all laws in force in relation to counties not having township organization shall immediately take effect, is self-executing, and legisla- tion is necessary to carry into effect the first part, while legislation as to the sec- ond must conform to it. State v. Duncan (Mo.) 1916D-1. 91. Prohibiting Intoxicants. The prohi- bition amendment to the Ariz, constitu- tion, which in section 1 prohibits the manu- facture in or introduction into the state of any intoxicating liquor and punishes any person who manufactures or sells or introduces into the state intoxicating liquor, and which declares in section 2 that the legislature shall, by appropriate legis- lation, provide for carrying into effect of the amendment, and which provides in sec- tion 3 that the amendment shall take effect on and be in force after January 1, 1915, is, when considered as a whole, self-exe- cuting, and section 2 merely imposes on the legislature the duty of enacting appro- priate legislation for enforcement of pro- hibition; "appropriate" meaning suitable, fit, befitting, proper. Gherna v. State (Ariz.) 1916D-94. 92. Legislation in Aid of Self-executing Provision of Constitution. Const. Ariz, art. 2, 21, requiring the legislature to enact all necessary laws to carry into effect the provisions of the constitution, grants no power to the legislature, and the duty it seeks to impose exists without the provision. Gherna v. State (Ariz.) 1916D-94. 93. As to School Taxes. Ark. Const, art. 5, 28, declares that no money shall be drawn from the treasury except in pursuance of a specific appropriation made by law, which shall not be longer than two years. Article 14, 1-4, respectively, pro- vide that common schools shall be main- tained, that no school fund shall be used for any other purpose, that the general assembly shall provide by general laws for the support of common schools by taxes, that school districts may be allowed to levy special taxes, and that the supervision of public schools and the execution of laws relating thereto shall be vested in such officers as may be provided for by the gen- eral assembly. It is held that the pro- vision of the constitution relating to school taxes is self-executing, except that the legislature may, every two years, deter- mine what percentage of the maximum school tax shall be levied, and no specific biennial appropriation by the legislature is necessary to authorize the payment of school funds for common school purposes. Dickinson v. Edmondson (Ark.) 19170- 913. 94. Classification of Cities. Section 1 of article 18 of the Ohio Constitution, relat- ing to the classification of municipal corpo- rations, adopted September 3, 1912, is not self-executing. Murray v. State (Ohio) 1916D-864. (Annotated.) 95. Failure of Part. The fact that the costs cannot be collected, and that supple- mental legislation is necessary, does not affect the provisions of the prohibition amendment to the Ariz. Constitution, which are clearly self-executing. Gherna v. State (Ariz.) 1916D-94. 96. Defined. Constitutional provisions are "self-executing" when they take im- mediate effect, and legislation is not neces- sary to the enjoyment of the right given or the enforcement of the duty imposed. State v. Duncan (Mo.) 1916D-1. 9j7. How Aided. A self-executing pro- vision of the constitution does not neces- sarily exhaust legislative power on the ubject, but any legislation must be in harmony with the constitution and further the exercise of constitutional right and make it more available. Gherna v. State (Ariz.) 1916D-94. 98. Constitutional Provision as Self- executing. To the exent of establishing the nature of the use for which privately owned property is necessary to the com- plete development of the material re- sources of the state, the provisions of said section 14 of the Idaho constitution are self-executing, and the courts of general jurisdiction are vested with the power to determine, upon judicial inquiry, whether or not any particular use for which land is sought to be appropriated is "necessary to the complete development of the ma- terial resources of the state." Blackwcll Lumber Co. T. Empire Mill Co. (Idaho) 1918A-189. 12. GENERAL PRINCIPLES GOVERN- ING DETERMINATION AS TO CONSTITUTIONALITY OF STAT- UTES. a. In General. 99. Effect of Infringement of Constitu- tion. Only the valid legislative inter t be- comes the law to be enforced by the courts. State v. Philips (Fla.) 1918A-138. 100. Declaring Statute Unconstitutional. Where a court passes on the constitu- tionality of a statute, in the validity of, whicn it has a direct pecuniary interest, such court should refuse to uphold the act, unless it is clear, by reason and author- ity, that the law is constitutional. Mc- Coy v. Handlin (S. Dak.) 1917A-1046. 101. Power to Declare Statute Invalid. While the federal supreme court has the authority to make the final determination of the question of the constitutionality of an act of Congress, the state courts may, where the enforcement of a state statute 192 DIGEST. 1916C 1918B. depends upon the constitutionality of a federal law, determine the question. State v. Sawyer (Me.) 1917D-650. 102. Statute Discussed. Certain consti- tutional limitations of the scope of section 580 of the Kan. Civil Code discussed. Wideman v. Faivre (Kan.) 1918B-1168. 103. Judicial or Political Question. Whether or not a state has violated the provision of U. S. Const, art. 4, 4, guar- anteeing to every state in the Union a republican form of government, is not a judicial question, but is a political one, which is solely for Congress to determine. Mountain Timber Co. v. Washington (U. S.) 1917D-642. 104. Criterion of Validity. The consti- tutionality of a law may be determined by its operative effect, though on its face it may be apparently valid. Castle v. Mason (Ohio) 1917A-164. 1051 Evidence as to Constitutionality of Statute. The courts cannot hear evidence touching the constitutionality of a statute, but must determine its validity from the matters appearing on its face and matters of which the court can take judicial notice, though there may be some seeming excep- tions to this rule. Barker v. State Fish Commission (Wash.) 1917D-810. 106. Test of Reasonableness of Order. There is no test of reasonableness that will fit all cases, but an order is unreason- able if contrary to federal or state con- titution or laws, or if beyond the power of the commission, or if based on mistake of law, or if without evidence to support it, or if so arbitrary as to be beyond the exercise of reasonable discretion and judg- ment. State v. Great Northern B. Co. (Minn.) 1917B-1201. 107. Validity of Statute. Courts are not at liberty to declare a law void as in violation of public policy. Such policy is determined by the legislature, and the only limits upon the legislative power in such determination are those fixed in the state and federal constitutions. State v. Taylor (N. Dak.) 1918A-583. 108. Test of Validity of Statute. The only test of the validity of an act regu- larly passed by a state legislature is whether it violates any of the express or implied restrictions of the state or federal constitutions. State v. Taylor (N. Dak.) 1918A-583. 109. Construction of Constitution. While the constitution is often applicable to con- ditions not existing when it was adopted, nothing may be read into the constitution merely because so doing will be helpful in dealing with conditions which exist now, but did not exist when the constitution was adopted. Hunter v. Colfax Consoli- dated Coal Co. (Iowa) 1917E-803. b. Who may Raise Constitutional Ques- tion. 110. If there is any sphere within which a statute may validly operate, it should within that sphere be made effective. Therefore those not aggrieved may not complain of the unconstitutionally of a statute. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. 111. Validity of Ordinance. A colored man, who Purchased a residence in the district of a municipality set apart by a prior ordinance to white people, cannot assail the ordinance as depriving him of liberty or property without due process of law. Hopkins v. Richmond (Va.) 1917D- 1114. 112. Workmen's Compensation Act. The question of the constitutionality of the compulsory insurance provisions of the Iowa elective Workmen's Compensation Act (Iowa Laws 35th Gen. Assem. c. 147), 42, will not be considered by the federal supreme court at the instance of an ap- pealing employer who has not accepted the act, where the highest state court construes such act as not compelling an employer to insure unless he has accepted and thus be- come subiect to the act. Hawkins v. Bleakly (U. S.) 1917D-637. 113. Person not Injured. Persons not injured by portions of a statute cannot question its constitutionality. State Pub- lic Utilities Com. v. Chicago, etc. R. Co. (111.) 1917C-50. 114. Estoppel to Attack Statute. Mo. Laws 1905, p. 155, fixing fees of probate courts, and providing for the payment of a part of the fees into the county treas- ury for the benefit of the school fund of the county, and repealing all inconsistent acts and parts of acts, repeals Rev. St. 1899, 3240, prescribing the fees of pro- bate courts, and a judge of a probate court, elected after the Act of 1905 took effect, can only collect fees pursuant to the authority conferred thereby, and. when he collects fees, he is estopped from asserting the unconstitutionally of the provision for the payment of foes into the county treasury. Greene County v. Lydy (Mo.) 1917C-274. (Annotated.) 115. Estoppel to Attack Statute. A party may be estopped to assert the un- constitutionality of a statute in a suit on a bond given by him under it, from which he has received benefits. Greene County v. Lydy (Mo.) 1917C-274. 116. Who may Assert Invalidity. A gas-distributing company cannot assert that constitutional rights of a gas-produ- cing and transporting company furnishing gas to the former company upon the basis of a percentage of meter readings will be infringed by a municipal ordinance fixing the gas rates which the distributing com- CONSTITUTIONAL LAW. 193 pany may charge. Newark Natural Gaa, etc. Co. v. Newark (U. S.) 1917B-1025. 117. Persona not Affected. The defend- ant cannot attack the validity of the Wash. Commission Merchants' Law on constitutional grounds not applicable to their particular situation. State v. Bowen & Co. (Wash.) 1917B-625. 118. Where plaintiffs attacked the con- stitutionality of a statute authorizing a county to issue bonds for road purposes on the ground that the bonds cast a cloud on their property and that of other tax- payers, plaintiffs cannot urge the statute's invalidity as to persons who owned no property and paid only a poll tax, not falling within that class. Moose v. Board of Commissioners (N. Car.) 1917E-1183. 119. A court will not listen to an ob- jection made to the constitutionality of an act by a party whose right it does not affect and who has therefore no interest in defeating it. State v. Philips (Fla.) 1918A-138. 120. A person who does not belong to a class alleged to be unlawfully^ discrimi- nated against by a statute, cannot in judi- cial proceedings be heard to assail the constitutionality of the statute as it affects the class.. State v. Philips (Fla.) 1918A-138. 121. One cannot raise an objection to the constitutionality of a part of a stat- ute, unless his rights are in some way injuriously affected thereby, or unless the unconstitutional feature renders the en- tire act void or renders the portion com- plained of inoperative. State v. Philips (Fla.) 1918A-138. 122. The constitutionality of a provi- sion of a statute cannot be tested by a party whose rights or duties are not affected by it, unless the provision is of such a nature that it renders invalid a provision of the statute that does affect the party's rights or duties. State v. Philips (Fla.) 1918A-138. 123. All constitutional inhibitions against the taking of private property without due process of law and all constitutional guaranties of equal rights and privileges, are for the benefit of those persons only whose rights are affected, and cannot be taken advantage of by any other persons. State T. Taylor (N. Dak.) 1918A-583. 124. One cannot raise an objection to the constitutionality of a part of a statute, unless his rights are in some way injuri- ously affected by the statute, or unless the constitutional feature renders the en- tire act void. Gherna v. State (Ariz.) 1916D-94. 125. Persons Entitled to Attack Statute. Where specific performance of a contract 13. for the sale of real estate to a colored per- son, which provided that he should not be required to accept a deed unless he had a right under the laws of the state and the city to occupy the property as a residence, was denied because of the existence of an ordinance making it unlawful for any white or colored person to move into and occupy as a residence any house upon any block upon which a greater number of houses were occupied by persons of the opposite color, the vendor, though a white man, is entitled to attack the constitu- tionality of such ordinance notwithstand- ing the rule that only persons whose rights are directly affected may attack the constitutionality of a law or ordinance, as his right to sell his property was di- rectly involved and necessarily impaired. Buchanan v. Warley (U. S.) 1918A-1201. c. Avoidance of Determination. 126. Moot Questions. In an original proceeding in the supreme court, wherein a law is assailed as being unconstitutional, the court will not anticipate conditions which may never arise, or determine ques- tions relating to the validity of minor provisions as to detail, but will consider only those questions which relate to th validity of the whole act. State v. Tay- lor (N. Dak.) 1918A-583. 127. Unnecessary Constitutional Ques- tions. The rule that courts will not pass upon the validity of statutes unless it is necessary to a disposition of the appeal is one of comity, and may properly be de- parted from in an exceptional case. Hun- ter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. d. Waiver of Objection. 128. Statute Long Acquiesced in. That a statute has for years been enforced by the courts, without its constitutionality being challenged, may be considered as a recognition of its constitutionality, and courts will seldom entertain questions of the constitutionality of a statute recog- nized as valid in the adjudication of rights, and when the invalidity of the statute would lead to serious consequences. Worthington T. District Court (Nev.) 1916E-1097. 129. Provisions of Statute not Involved in Case. The supreme court, where called to determine the validity of the provi- sions of Mo. Eev. St. 1909, 10695, only so far as they relate to the disposition of a part of the fees collected by probate courts, will not consider the validity of the criminal provisions of the statute. Greene County v. Lydy (Mo.) 1917C-274. e. Construction in Favor of Validity. 130. The object expressed by the lan- guage of the statute in question, being one 194 that the legislature may lawfully accom- plish under its police power, the statute will not be declared to be unconstitutional upon the ground that the purpose of the legislature was to exact from the public utilities a money tribute in violation of constitutional principles; first, because the purpose of the legislature is known to the courts only in so far as it appears in the object expressed by the language of its enactment, and, second, because in dealing with the language of an enactment the courts adopt, if possible, that construction which will sustain the statute as a valid act of legislation. State v. Button (N. J.) 1917C-91. (Annotated.) 131. When the constitutionality of a statute is questioned, it is the duty of the courts, and also a rule of construction, to adopt such construction as will make the statute constitutional if its language will permit. Victor Chemical Works v. Indus- trial Board (111.) 1918B-627. 132. Unconstitutionality must be Clear. A statute will not be declared unconstitu- tional, unless clearly so, a.nd not merely because doubts arise as to its validity. Greene County v. Lydy (Mo.) 1917C-274. 133. It is presumed that the legislature intended to enact a valid law, and, tnere- fore, when a statute is susceptible of two constructions, one of which will render it valid and another which will render it unconstitutional and void, the former con- struction will be adopted. State v. Tay- lor (N. Dak.) 1918A-583. 134. Validity of Statutes Generally. All acts of the legislature are valid, un- less they conflict with the state or fed- eral Constitution. Board of Trustees v. Waugh (Miss.) 1916E-522. 135. Burden of Showing Discrimination. The burden is on one who complains that he has been denied the equal protection of the laws to sustain the complaint. State v. Philips (Fla.) 1918A-138. f. Presumption in Favor of Validity. 136. There is a strong presumption in favor of the validity and constitutionality of an act of the legislature. Victor Chemical Works v. Industrial Board (111.) 1918B-627. There is a presumption of validity in favor of a statute or ordinance; but such presumption, however strong, is not con- clusive, though the legislative action will be sustained if possible under any rea- sonably supposable state of facts. .New Orleans v. Toca (La.) 1918B-1032. 138. Unless an act is clearly and be- yond all rational doubt in conflict with the constitution, it will not be so declared; all reasonable doubts will be resolved in DIGEST. 1916C 1918B. favor of its constitutionality. Laughlin v. Portland (Me.) 1916C-734. 139. The legislature is presumed to act within its powers, and its lawmaking dis- cretion within its powers is not subject to review by the courts. State v. Philips (Fla.) 1918A-133. 140. It is presumed that the lawmaking power intended a valid, constitutional en- actment. State v. Philips (Fla.) 1918A- Io8. 141. Any doubt in favor of the validity of a statute must be resolved in favor of validity. Hopkins v. Richmond (Va.) 1917B-1114. 142. The presumption of the constitu- tionality of a statute attaches to each separable provision thereof, and the in- validity of any provision must be made to appear beyond a reasonable doubt, before the court can declare any provision invalid. Greene County v. Lydy (Mo.) 1917C-274. In construing a statute authorizing the destruction of diseased cattle, it must be presumed that the legislature has care- fully investigated and determined that the interests of the public require such legis- lation. Durand v. Dyson (HI.) 1917D-S1. 344. All reasonable doubts as to the question whether a statute authorizes tax- ation for a purpose not public should be resolved in favor of the constitutionality of the act. Perkins v. Board of County Commissioners (111.) 1917A-27. 145. All presumptions are in favor of the constitutionality of a statute. Per- kins v. Board of County Commissioners (111.) 1917A-27. 146. All reasonable intendments will be wade in favor of a law not obviously void on its face, and it will be presumed that the legislature has acted within constitu- tional limitations. State v. Bunting (Ore.) :916C-1003. 147. An act of a state legislature will not be held unconstitutional unless its un- constitutionally appears practically be- yond a reasonable doubt, since the state constitutions do not grant powers to the representatives of the people, but such representatives by virtue of the inherent sovereignty of the people have every power not withheld by the state constitu- tion, or given to the federal government by the federal constitution. MaCoy v. Handlin (S. Dak.) 1917A-1046. 148. All acts of the legislature are to be upheld by the court, unless it is plainly apparent that they conflict with the or- ganic law, after solving all doubts in favor of their validity. Board of Trus* tees v. Waugh (Miss.)"l916E-522. CONSTITUTIONAL LAW. 195 149. Every presumption is in favor of the validity of a statute, and, until the contrary is shown beyond a reasonabl doubt, a statute enacted in the exercise of the police power will not be overturned. State r. Bowen & Co. (Wash.) 1917B-625. 150. An act of the legislature will not be declared unconstitutional unless its conflict with the constitution is clear and certain. Stout v. State (Okla.) 1916E- 858. 151. Where a statute may be in viola- tion of constitutional rights according to circumstances, the existence of circum- stances necessary to support it will be presumed; hence it will be presumed in favor of Vt. Laws 1890, No. 179, empower- ing a paper company to float logs and timbers in a stream, that the stream was in fact navigable, for otherwise the act would be unconstitutional. Boutwell v. Champlain Realty Co. (Vt.) 1918A-726. 152. While it is only an honest exercise of the power that may do this, the courts presume that the legislature exercises this power in a legitimate way, and is not at- tempting thereby to evade the constitu- tion. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. 153. There is a legal presumption of the validity of a statute; if there is doubt as to its constitutionality the doubt shall be resolved in favor of its validity; the ex- pediency or inexpediency of the statute is not for the courts; and the legislature's power to enact laws has no limitation ex- cept the express limitations of the state and federal constitutions. State v. Mer- chants' Exchange (Mo.) 1917E-871. 154. In determining the constitutional- ity of a statute, any doubt must be solved in favor of the legislative action, and the power to set aside a law is not to be re- sorted to unless the case be clear, deci- sive, and unavoidable. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. 155. A statute solemnly enacted is not to be overthrown by anything short of a positive conviction of illegality. Hill v. Bae (Mont.) 1917E-210. 156. Where there is a reasonable doubt as to the meaning of a statute the court must adopt the meaning which will render it constitutional, for an act must be up- held by the court unless its repugnancy to the constitution clearly appears beyond reasonable doubt. Cincinnati, etc. R. Co. v. McCullom (Ind.) "1917E-1165. I g. Wisdom of Statute. 157. Judicial Review of Statutes. It is the function of the legislative department to enact law, and of the judicial depart- ment to construe and apply it; and the courts cannot pass upon the wisdom or justice of statutes, but are simply to as- certain the intent of the lawmakers as ex- pressed therein and to give effect thereto. Masses Pub. Co. v. Patten (U. S.) 1918B- 999. 158. Policy of Statute. The wisdom of laws, etc., is a matter for the legislature, and it is the sole duty of the courts to say whether the act as passed is viola- tive of the state or federal constitutions. State v. Senatobia Blank Book and Sta- tionery Co. (Miss.) 1918B-953. 159. Expediency of Statute. The wis- dom, necessity, or expediency of legisla- tion are matters for legislative, and not judicial, consideration. State v. Taylor (N. Dak.) 1918A-583. 160. While the courts will not pass upon the wisdom of an act concerning the exer- cise of the police power, they will pass upon the question whether the act has a substantial relation to the police power. People v. Weiner (111.) 1917C-1065. 161. Policy of Statute. The court, in determining the validity of a statute, will not consider its policy, wisdom, or expedi- ency, but will enforce it in accordance with the intention of the legislature, un- less clearly in conflict with the consti- tution. Worthington v. District Court (Nev.) 1916E-1097. 162. Policy or Wisdom of Statute. Criticisms against the wisdom, policy, or applicability of a statute are subjects for legislative consideration, and not for the court in determining the constitutionality of the act. Perkins v. Board of County Commissioners (111.) 1917A-27. 163. Policy or Wisdom of Statute. Questions of the wisdom, necessity, and policy of law are solely for the legisla- ture, and if the legislature proceeds regu- larly, violating no constitutional restric- tion, questions as to the necessity and policy of the law are conclusively deter- mined in favor of the statute, if any state of facts could exist which would justify it. State r. Bowen & Co. (Wash.) 1917B- 625. 164. Mandatory Nature f Constitution. Where constitutional provisions are clear, the courts should give effect to them, re- gardless of their wisdom. Moose v. Board of Commissioners (N. Car.) 1917E-1183. 165. The court, in determining the con- stitutionality of the legislative enactment, may not concern itself with the accuracy or wisdom of the legislative view. Hill v. Eae (Mont.) 1917E-210. 166. A statute enacted within the police power and appearing on its face to be rea- sonable and just and appropriate cannot be adjudged unconstitutional, though the court should doubt the wisdom of the stat- ute; and, before it can adjudge the stat- ute unconstitutional, it must be able to see either that there is no real substantial 196 DIGEST. 1916C 1918B. evil of public interest to be guarded against or that there is no reasonable re- lation between the evil and the purported prevention offered by the statute. People v. Charles Schweinler Press (N. Y.) 1916D- 1059. 167. Expediency of Statute. The court, in determining the validity of a statute, cannot consider its wisdom or policy or expediency. Gherna v. State (Ariz.) 1G16D-94. h. Declaring Statute Unconstitutional. 168. Duty of Courts to Declare Nullity. It is not only within the power, but it is the duty, of the courts in proper cases to declare an act of the legislature unconsti- tutional, as the constitution is the su- preme law which all judges are sworn to support, and the courts, in declaring what the law is, must, in case of a conflict be- tween the constitution and a statute, sus- tain the constitution. State v. Knight (N. Car.) 1917D-517. 169. Courts should not declare acts of the legislature unconstitutional unless sat- isfied of their unconstitutionally beyond a reasonable doubt. Victor Chemical Works v. Industrial Board (111.) 1918B-627. 170. Invalidating Statute Conflict With Constitution. It is the duty of the courts to enforce valid provisions of a statute; but a statutory provision that is clearly in conflict with organic law should not be enforced. State v. Philips (Fla.) 1918A- 138. 171. Validity of Statute In Harmony With Law Effectuating Constitutional Provision. No effect can be given to a legislative enactment, however broad its provisions, further than to harmonize it with existing law which is necessary to a constitutional requirement, and if a law be held to have been intended otherwise the court must declare it void for uncer- tainty or unconstitutionally. State v. Board of State Canvassers (Wis.) 1916D- 159. 172. Power to Annul Statute. If by judicial construction a legislative enact- ment embodies a purpose which is uncon- stitutional it must be condemned. State Y. Board of State Canvassers (Wis.) 1916D-159. 173. Section 9205, Rev. Codes N. Dak. 1905, may be enforced and sustained even after eliminating therefrom the provision which relates to the fine. Even after the excision of such part of the statute, it can be presumed that the legislature would have passed the act, even though it had realized that the unconstitutional part would be eliminated therefrom. State v. Bickford (N. Dak.) 1916D-140. (Annotated.) 174. One charged with selling liquor in violation of the prohibition amendment to the Ariz, constitution may not raise the question of the constitutionality of the provision prohibiting the introduction into the state of intoxicating liquor as an in- terference with interstate commerce, un- less that provision, if invalid, renders the entire amendment invalid. Gherna v. State (Ariz.) 1916D-94. (Annotated.) 13. CONSTBUCTION OP CONSTITU- TION. 175. Constitutional Declaration of Pur- poses. In said section 14 of the Idaho constitution the people have declared the necessary use of lands to the complete de- velopment of the material resources of the state to be a public use, and the legisla- ture has provided a procedure to subject such lands to such use. Blackwell Lum- ber Co. v. Empire Mill Co. (Idaho) 1918A- 189. 176. By that provision of said section 14, Idaho Const., to wit, "or any other use necessary to the complete development of the material resources of the state . . . is hereby declared to be a public use," it was intended to and does include and cover every material resource of the state, and it is for the court to determine upon the facts of each case whether or not the case comes within the provisions of said section of the constitution. Blackwell Lumber Co. v. Empire Mill Co. (Idaho) 1918A-189. 177. That clause of eaid section 14, Idaho Const., to wit, "subject to the regu- lation and control of the state," refers to the machinery or procedure necessary to subject private lands to a public use. Blackwell Lumber Co. v. Empire Mill Co. (Idaho) 1918A-189. 178. Section 2 of article XIII of the Ohio constitution, as amended in Septem- ber, 1912, contains a specific grant of power to the legislature to provide by law for the regulation of the sale and convey- ance of personal property, and is a quali- fication to that extent of the guaranties contained in the Bill of Rights. Steele, etc. Co. v. Miller (Ohio) 1917C-926. 179. The Kan. constitution was not framed and adopted for the special pro- tection of those who violate statutes, but for the good of the entire citizenship, and is to be construed with due regard for in- evitable changes in social conditions and the advancement made in respect to the health, morals, and welfare of the people. State v. Missouri Pacific E. Co. (Kan.) 1917A-612. 180. Words Taken in Ordinary Sense. In construing a state constitution the lan- guage thereof is to be taken in its gen- eral and ordinary sense, and when words CONSTITUTIONAL LAW. 197 having both a restricted and general meaning are used, the general must pre- vail, unless the context clearly indicates that the limited sense was intended. Bronson v. Syverson (Wash.) 1917D-833. 181. Contemporaneous Construction. Where the language of the constitution and the intent of the people in adopting it are clear and free from doubt or un- certainty, the practice of the general as- sembly and officers of the government in making appropriations has no influence in determining their legality, since contem- poraneous construction is of value only where there is doubt and uncertainty. Fergus v. Brady (111.) 1918B-220. 182. Citizens State and Federal Citi- zenship. Under Const. Amend. 14 (9 Fed. St. Ann. 384), providing that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside, citizenship in the United States is paramount and domi- nant, instead of being subordinate to and derivative from state citizenship. Selec- tive Draft Law Cases (U. S.) 1918B-857. 14. AMENDMENT OF CONSTITUTION, a. Adoption. 183. Number of Votes Cast. Under Const. Miss. 1890, 273, providing that, if it shall appear that a majority of the quali- fied electors voting shall have voted for the proposed change, alteration, or amend- ment, that it shall be inserted by the next succeeding legislature as a part of this constitution, and not otherwise, amended returns of an election upon a constitu- tional amendment, showing the number of electors appearing at the polls and voting, legally or otherwise, which may or may not have been counted in ascertaining the result of the election, are of no value, since they do not show the number of qualified electors voting, for the reason that, though a qualified voter succeeds in getting his name on the poll list and a ballot in the box, he is not a voter voting unless his ballot is such as is prescribed by law and conforms to the general law regulating elections. State v. B'rantley (Miss.) 1917E-723. 184. Proposal by Legislature Entries. Under Const. Wash. art. 23, 1, providing that constitutional amendments may be proposed in either branch of the legisla- ture, and, if agreed to by two-thirds of the members of each branch, shall be en- tered on their journals with the ayes and noes thereon, and be submitted to the elec- tors for their approval at the next gen- eral election, entries made on the journals, referring to a proposed amendment in the language of its title, that being sufficient as such, were sufficient without copying such proposed amendment in the jour- nals in full. Gottstein v. Lister (Wash.) 1917D-1008. 185. Form of Amendment. Const. Wash, art. 23, 1, provides that any amend- ment to the constitution may be proposed, provided that, if more than one amend- ment be submitted, they shall be submit- ted so that the people may vote for or against each amendment separately; arti- cle 2, 1, vests the legislative power in a senate and house of representatives, to be called the legislature of the state; and the seventh amendment approved March 10, 1911 (Wash. Laws 1911, p. 136), purport- ing to directly amend article 2, 1, sub- stantially repeated its language, and quali- fied it by adding provisions therein for the exercise of legislative powers directly by the people through the initiative and referendum, and by withholding the veto power of the governor from "measures ini- tiated by or referred to the people." It is held, on objection, that the legislative proposal involved more than one amend- ment, and at least two separate subjects, that the amendment dealt with but one subject of legislative power, the partici- pation of the people in legislation by di- rect vote, and that all else was incidental thereto, so that it was properly submitted as one proposition. Gottstein v. Lister (Wash.) 1917D-1008. 186. Number of Votes Required, Under Const. Wash. Amend. 7, approved March 10, 1911 (Laws 1911, p. 136), providing that initiative measures should become effective if approved by a majority of votes cast, if the votes cast equaled one- third of the total votes cast at such elec- tion, it is held that the term "votes cast at such election," meant the same as "number of voters voting at such elec- tion," and that since the court judicially knew that more than one-third of the voters voting on the amendment voted for its adoption, it was constitutionally adop- ted. Gottstein v. Lister (Wash.) 1917D- 1008. 187. Judicial Power to Review Proce- dure. The courts have the power to de- clare void any attempted amendment to the constitution which is not adopted as prescribed by the constitution itself, and it is their duty to do so when the want of such prerequisites is of a substantial na- ture, and such that the court can judici- ally know that there has been a want thereof. Gottstein v. Lister (Wash.) 1917D-1008. b. Construction and Operation. 188. Construction of Constitution. The court, in construing a constitutional amendment, may transpose sentences and sections, to aid in arriving at the true construction thereof. Gherna v. State (Ariz.) 1916D-94. 198 DIGEST. 1916C 1918B. 189. Harmonizing Parts. The court, in construing the prohibition amendment to the Ariz, constitution, must construe it as a whole and, if possible, give effect to the whole and to every section and clause; and, where different portions thereof seem to conflict, it must harmonize them, if practicable, and lean in favor of a con- struction which will render every provi- sion operative. Qherna v. State (Ariz.) 1916D-94. 190. A constitutional amendment which aims to enlarge the power of the legisla- ture or to remove doubts concerning its power should not be given too strict and literal an interpretation. Western Metal Supply Co. v. Pillsbury (Cal.) 1917E-390. CONSTITUTIONAL QUESTION. Jurisdiction of appellate court, see Appeal and Error, 25. CONSTRUCTION. By-laws, see Beneficial Associations, 11. Of negotiable instruments, see Bills and Notes, 8-11. Broker's contract, strictly construed, see Brokers, 1. Of charitable gifts, see Charities, 12, 14. Of contracts, see Contracts, 7-22. Of building or working contracts, see Con- tracts, 78, 79. Of deeds, see Deeds, 38-75. Of fire policies, see Fire Insurance, 8-22. Of Bulk Sales Act, see Fraudulent Sales and Conveyances, 18. Of fti'tenuptial contracts, see Husband and Wife, 20. Of instructions, se Instructions, 9-11. Of insurance policies, see Insurance, 9-23. Of judgments, see Judgments, 15, 16. Of defamatory language, see Libel and Slander, 22-23. Of life policy, see Life Insurance, 24. IK Workmen's Compensation Acts, see Mas- ter and Servant, 168-178. Of Anti-trust Act, see Monopolies, 12. Of city charter, see Municipal Corpora- tions, 15-18. Of ordinances, see Municipal Corporations, 92-99. Of statutes, see Statutes, 47-115. Of suretyship contracts, see Suretyship, 8-13. Of taxation statutes, see Taxation, 35-39, 70-85. Of exemption statutes, see Taxation, 70-85. Foreign Corporation Tax Act, see Taxa- tion, 154-163. Of Income Tax Act, see Taxation, 194- 199. Of treaties, see Treaties, 1-4. 6. Of forest laws, see Trees and Timber, 2-5. Of trusts, see Trusts and Trustees, 1-3. Of usury laws, see Usury, 3-8. Of contract to sell land, see Vendor and Purchaser, 6, 7. Espionage Act, see War, 19-25. Of Uniform Warehouse Receipts Act, see Warehouses, 6-&. Of grants of water power, see Waters and Watercourses, 6-11. State inspection laws, see Weights and Measures, 1-3. Of wills, see Wills, 145-228. CONSTRUCTIVE NOTICE. Eecord as notice, see Recording Acts, 6-10. CONSTRUCTIVE POSSESSION. See Adverse Possession, 5-8, 23, 24. How divested, see Adverse Possession, 30. CONSTRUCTIVE SERVICE. See Process, 7-12. CONSULS. See Ambassadors and Consuls. CONTAGIOUS DISEASES. See Health. CONTEMPT. 1. Classification of Contempts, 198. 2. Conduct Constituting Contempt, 198. a. Obstructing Service of Process, 198. b. Criticism of Court, 199. c. Newspaper Comment, 199. d. Defaming Legislature, 199. 3. Power to Punish, 199. 4. Proceedings for Punishment, 200. a. Sufficiency of Evidence, 200. 5. Punishment, 2CO. 6. Review of Proceedings, 200. Review of proceedings, see Appeal and Error, 33. Unauthorized practice of law, see Attor- neys, 6, 7. Disbarment not contempt proceeding, see Attorneys, 53. Concealment of assets, see Bankruptcy, 36. 1. CLASSIFICATION OF CONTEMPTS. 1. The enumeration in Mont. Rev. Codes. 7309, of acts constituting contempt is not exclusive, for section 8275 refers to other acts as constituting contempt. State v. District Court (Mont.) 1918A-985. 2. CONDUCT CONSTITUTING CON- TEMPT. a. Obstructing Service of Process. 2. Evading Service of Process. A wit- ness who, to evade service of subpoena to be issued, absconds and conceals himself at the request of a brother of one indicted for murder, is guilty of constructive con- CONTEMPT. 199 tempt of court. Aarons v. State (Miss.) 1916E-263. (Annotated.) b. Criticism of Court. 3. Criticism Respecting Past Decision. The purpose to be subserved by investing courts with the power to punish contempt, as is recognized by Const. Mont. art. 8, 3, authorizing writs of certiorari in pro- ceedings for contempt in the district court, is to enable the courts to maintain order, and compel respect for their lawful orders, and enable them to investigate and deter- mine causes before them without hind- rance, and any publication tending to in- terrupt the due course of judicial admin- istration may be punished as contempt, but criticism of a court after rendition of a decision, based on the decision, is not punishable as contempt, but is within the constitutional guaranty of freedom of speech, guaranteed by article 3, section 10. State v. District Court (Mont.) 1918A-985. e. Newspaper Comment. 4. Persons Liable for Newspaper Pub- lication. Kespondents, the publisher and managing editor of a newspaper published in a city where a federal court was in session, and circulated extensively in the city and throughout the state, permitted to be published therein an article contain- ing statements relating to the defendant in a criminal case then on trial, such as that he was a paroled convict from the peniten- tiary of another state, was said to have committed other crimes described and other statements, not based on any evi- dence in the case nor admissible therein, but which were extremely prejudicial to the defendant. The article was read by some of the jurors in the case, and made it necessary to discharge the jury and con- tinue the case. It is held that the court was within its power in imposing a fine for contempt on the publisher of the paper and also on the managing editor, although he did not personally see the article be- fore its publication, on the ground that he failed in his duty to exercise proper editorial supervision. In re Independent Pub. Co. (Fed.) 1917C-1084. 5. Freedom of Press. The public press is not immune from the provisions of such statute authorizing punishment for con- tempts, but the freedom of the press guar- anteed by the constitution is subordinate to the independence of the judiciary, and a newspaper article tending to interfere with the orderly procedure of the courts or to obstruct the administration of justice in accordance with legal standards is a contempt which is committed wherever the newspaper is intended to and docs in fact circulate. In re Independent Pub. Co. (Fed.) 1917C-1084. 6. Newspaper Publication as Contempt. Publishers of newspapers have the right, but no higher right than others, to pub- lish the conduct of the courts, but such right is limited by the obligation to ob- serve respect for truth and fairness. In re Hayes (Fla.) 1918B-936. d. Defaming Legislature. 7. The implied power of the House of Eepresentatives to deal directly by way of contempt, without criminal prosecution, with acts, the prevention of which is necessary to preserve and to carry out its legislative authority, does not embrace the punishment, as for a contempt, of the ac- tion of a federal district attorney in writ- ing and publishing a letter addressed to the chairman of a subcommittee of the house, containing matter defamatory to the house or the committee, even conceding that the house was considering, and its committee contemplating, impeachment proceedings against that official. Mar- shall v. Gordon (U. S.) 1918B-371. (Annotated.) 3. POWER TO PUNISH. 8. Acts not in Presence of Court. Under the provision of Judicial Code, 268 (Act March 3, 1911, c. 231, 36 Stat. 1163 [Fed. St. Ann. 1912 Supp. p. 243]), that the power of the federal courts to punish con- tempts "shall not be construed to extend to any cases except the misbehavior of any person in their presence or so near thereto as to obstruct the administration of jus- tice" the physical nearness to the place where the court is in session of the actual commission of the act charged as a con- tempt is not important, but, as in the law of constructive presence in criminal cases, the misbehavior is committed where it takes effect. In re Independent Pub. Co. (Fed.) 1917C-1084. (Annotated.) 9. Power to Punish as Inherent. The power of a court of record to punish for contempt is inherent in the court. State v. District Court (Mont.) 1918A-985. 10. Power of Congress to Punish Na- ture and Extent of Power. The distinc- tion between legislative, executive, and judicial powers, recognized by the federal constitution, and the express limitations in such constitution, negative any impli- cation of the possession of Congress of the commingled legislative- judicial authority as to contempts which is exerted in the English House of Commons. Marshall v. Gordon (U. S.) 1918B-371. (Annotated.) 11. Power to deal directly by way of contempt without criminal prosecution may be implied from the constitutional grant of legislative power to Congress in so far, and so far only, as such authority 200 DIGEST. 1916C 1918B. is necessary to preserve and to carry out the legislative power granted. Marshall v. Gordon (U. S.) 1918B-371. (Annotated.) 12. Punishment for contempt as punish- ment for the offense is not embraced in the authority to deal directly by way of con- tempt without criminal prosecution, im- plied from the constitutional grant of legislative power to Congress, since such power rests only upon the right of self- preservation, i. e., the right to prevent acts which, in and of themselves, inherently obstruct or prevent the discharge of legis- lative duty, or the refusal to do some- thing which there is an inherent legislative power to compel, in order that legislative functions may be performed. Marshall v. Gordon (U. S.) 1918B-371. (Annotated.) 13. Congressional authority to deal di- rectly by way of contempt without crim- inal prosecution with acts which interfere with the preservation of its legislative au- thority does not cease to exist merely be- cause the act complained of may have been committed before the authority is exerted. Marshall v. Gordon (U. S.) 1918B-371. (Annotated.) 14. Inherent Power to Punish. This court has the inherent power, independent of statutory authority, to punish as for a direct contempt any person who during the pendency of a cause before this court pub- lishes an article referring to such cause which reflects upon the efficiency and in- tegrity of the court. In re Hayes (Fla.) 1918B-936. Note. Power of legislature to punish person, other than witness for contempt. 1918B- 378. 4. PROCEEDINGS FOB PUNISHMENT. a. Sufficiency of Evidence. 15. Eemoving Children from Jurisdic- tion. Evidence in habeas corpus held suf- ficient, if it was the same as that in the contempt proceedings, to authorize a judg- ment that the applicant was in contempt for the violation of its injunction against removing his children from the jurisdic- tion of the court. Ex parte Ellerd (Tex.) 1916D-361. 5. PUNISHMENT. 16. Matters Considered. It is within the discretion of the court, in imposing a fine for a criminal contempt which made it necessary to discharge the jury and grant a continuance in a criminal caso then on trial, to take into consideration the in- creased costs thus incurred by the gov- ernment. In re Independent Pub. Co. (Fed.) 1917C-1084. 17. Imprisonment only, and for a term not exceeding the session of the body in which the contempt occurred, is the limit of the authority to deal directly by way of contempt without criminal prosecution, implied from the constitutional grant of legislative power to Congress in BO far as such authority is necessary to preserve and to carry out the legislative power granted. Marshall v. Gordon (U. S.) 1918B-371. (Annotated.) 6. REVIEW OF PROCEEDINGS. 18. Violation of Injunction. Where no appeal was taken from a decree for a per- manent injunction, rendered after due ser- vice on defendant, the sufficiency of the evidence to sustain that decree or the regularity of the proceedings cannot be reviewed on appeal from a sentence for contempt except in so far as to determine the jurisdiction of the court over the sub- ject-matter. People v. Clark (111.) 1916D- 785. 19. Sufficiency of Evidence. A decree entered on default, sentencing for con- tempt of court for disobedience to an in- junction, cannot be reviewed on the ground of the insufficiency of the evidence; since the default admits the facts alleged. People v. Clark (111.) 1916D-785. CONTENTS. Meaning, see Wills, 172. CONTEST OF WILL. .See Wills, 114-144. CONTESTS. Of elections, see Elections, 82-94. CONTINGENT ESTATE. Failure of condition, see Estates, 2. Option creates vested estate when, see Per- petuities, 3. CONTINGENT REMAINDER. See Remainders and Reversions, 5, 8-10, 14, 15, 21, 22. CONTINUANCE. See Trial. Harmless error in refusing, see Appeal and Error, 333. Necessity of exception for review, see Appeal and Error, 395. Amendment as ground for, gee Libel and Slander, 112. CONTINUOUS POSSESSION. See Adverse Possession, 12, 13. CONTRACTOR CONTRACTS. 201 CONTRACTOR. Defined, see Mechanics' Liens, 7. CONTRACTS. 1. Elements, 202. a. Offer and Acceptance, 202. b. Duress, 202. 2. Execution, 202. 3. Construction and Interpretation, 202. a. In General, 202. b. Particular Contracts, 203. 4. Validity, 203. a. Contracts in Violation of Statute or Ordinance, 203. b. Contracts Affecting Administra- tion of Justice, 204. c. Contracts Relating to Public Lands, 204. d. Contracts for Suppression of Bid- ding, 204. e. Enforcement of Illegal Contracts, 205. (1) Recovery on Quantum Meruit, 205. (2) Proof of Illegality, 205. f. Contracts Against Public Policy, 205. g. Contracts Affecting Elections, 206. h. Contracts Partially Illegal, 206. 5. Modification or Merger, 206. 6. Performance or Breach, 206. a. Performance, 206. b. Acts Constituting Breach, 206. c. Excuses for Nonperformance, 206. 7. Implied Contracts, 207. 8. Actions, 207. a. Remedies for Breach, 207. b. Pleading, 207. c. Evidence, 207. d. Questions for Jury, 207. e. Questions of Law and Fact, 208. f. Damages, 208. 9. Building or Working Contracts, 209. a. Construction of Provisions, 209. b. Perfermance or Breach, 209. c. Bond of Contractor, 210. d. Architect's Certificate, 210. e. Actions, 211. (1) Evidence, 211. (2) Damages, 211. (3) Judgment, 211. f. Right to Terminate Contract for Nonpayment, 212. 10. Avoidance for Fraud, 212. See Accident Insurance, 1, 6, 7; Accord and Satisfaction; Agency; Alteration of Instruments; Bailment, 1-3; Bills and Notes; Champerty and Mainte- nance; Fire Insurance; Fraud; Frauds, Statute of; Good Will; Guaranty; In- dependent Contractors; Infants; In- surance; Landlord and Tenant; Life Insurance; Limitation of Actions; Master and Servant; Municipal Cor- porations, 36, 129-131; Novation; Parent and Child, 2, 4, 6-8; Physicians and Surgeons, 14-18; Public Contracts; Public Officers, 5; Public Policy, 1; Rescission; Cancellation and Reforma- tion; Rewards; Sales; Seals; Specific Performance; Suretyship; Vendor and Purchaser. Establishment of party-wall, see Adjoining Landowners, 6. Liability of principal to agent, see Agency, 4, 5. Effect of alteration, see Alteration of In- struments, 8-11. Assignment of executory contracts, see Assignments, 7-10. . Remedy for discharge from service, see Assumpsit, 1. Compensation of attorneys, see Attorneys, 17-35. Collection agreement with bank, see Banks and Banking, 61. Insurance contracts of associations, see Beneficial Associations, 1-7. Contracts of brokers, see Brokers. Foreign contract, enforcement, see Con- flict of Laws, 10, 12-14. Liberty to contract, see Constitutional Law, 53. Impairing contract obligations, see Consti- tutional Law, 71, 72. Liberty to contract, see Constitutional Law, 81. Of convicts, see Convicts, 1. Of counties, see Counties, 19. Measure of damages for breach, see Dam- ages, 7-11. Written contract, parol evidence, see Evi- dence, 114-131. Statutes part of contract, see Fire Insur- ance, 6. Of married women, see Husband and Wife, l-r!2. Antenuptial contracts, see Husband and Wife, 15-25. Liability of infants, see Infants, 1-17. Injunction to prevent breach, see Injunc- tions, 10-12. Insurance policies, see Insurance, 9-23. Creation of joint tenancy by contract, see Joint Tenants, 8. Contract to pay rent implied from occu- pancy, see Landlord and Tenant, 32. Of employment, see Master and Servant, 1-8. Contracts forming basis for mechanics' liens, see Mechanics' Liens, 3-8. Enlistment as contract, see Militia, 14. Restraint on future occupation, see Monop- olies, 5, 13. Power of partner to bind firm, see Part- nership, 27, 28. Variance in date, see Pleading, 101. Cancellation, see Rescission, Cancellation and Reformation, 13-15. Contracts employing school teachers, see Schools, 29-30. Set-off of breach of warranty in action for repairs, see Set-off and Counterclaim, 3. Sunday contracts, validity, see Sundays and Holidays, 1-6. Taxation of contracts, see Taxation, 33. 202 DIGEST. 1916C 1918B. For improvement tinder special assess- ment, see Taxation, 126. Subscriber's contract for telephone ser- vice, see Telegraphs and Telephones, 37. For use of railroad right of way, see Telegraphs and Telephones, 6, 7. Breached contract to devise as creating trust, see Trusts and Trustees, 15. Effect of usury, see Usury, 3, 9-11. Effect on renewal of contract, see Usury, 12-18. War as excusing breach, see War, 18. Contracts to devise, see Wills, 5-7. Of legatees for division of personalty, see Wills, 254. 1. ELEMENTS, a. Offer and Acceptance. 1. Effect of Acceptance Consideration. Upon acceptance, the obligations became mutual, and the promise of one furnished a consideration for the promise of the other. Davis Laundry, etc. Co. v. Whit- more (Ohio) 1917C-988. b. Duress. 2. Who may Take Advantage of Duress. To be available as a defense in an action upon a contract, duress must have been exercised upon him or her who sets it up as a defense by him who claims the bene- fit of the contract or by some one acting in his behalf or with his knowledge. Travis v. Unkart (N. J.) 1917C-1031. 3. Definition of Duress. The definition of "duress" given in Ga. Civ. Code 1910, 4116, providing that "Duress consists in any illegal imprisonment, or legal impris- onment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will," is sufficiently comprehensive to in- clude any conduct which overpowers the will and coerces or restrains the perform- ance of an act which otherwise would not have been performed. Dorsey v. B'ryans (Ga.) 1917A-172. 4. What Constitutes Threat to Prose- cute Brother. Where a sister indorsed a note executed by her mother to plaintiff when informed by him that her brother had committed a state's prison offense, and that plaintiff would send him to prison if his notes were not taken up, the sister's contract of indorsement is void for legal duress. Travis v. Unkart (N. J.) 1917C-1031. (Annotated.) 5. What Constitutes Threat of Aban- donment by Spouse. While a threat by a husband to abandon his wife unless she signs a note may in some instances amount to duress which will relieve her of liab.il- ity on the note to a holder with notice, yet, where the circumstances show that the wile had no reasonable apprehension of the threat being carried into execution, the bare making of it will not be such duress as to render the note invalid. Dorsey v. Bryans (Ga.) 1917A-172. (Annotated.) Notes Validity and effect of contract induced by threats of criminal prosecution against friend, or relative other than parent, child or spouse. 1917C-1033. Threat of abandonment by spouse as duress. 1917A-174. Validity and effect of contract of pa- rent or child induced by threats of crimi- nal prosecution against other. 1917C- 1026. 2. EXECUTION. 6. What Constitutes Testamentary Act Proxy to Vote Stock. Such contract is not an attempted testamentary disposition of property, and so is not void because it was not executed with the formalities re- quired in wills. Thompson v. J. D. Thomp- son Carnation Co. (111.) 1917E-591. Note. Implied authority to fill in blanks so as to complete signed instrument. 191 7E- 518. 3. CONSTRUCTION AND INTERPRE- TATION. a. In General. 7. Effect of Express Provision. There can be no implied covenants in a contract in relation to any matter that is specifi- cally covered by the written terms of the contract itself. Kachelmacher v. Laird (Ohio) 1917E-1117. 8. Time of Essence of Contract. While under section 876, St. Okla. 1890 (section 968, Rev. Laws 1910), no particular form of expression is necessary to make it so, time is never considered of the essence of a contract unless expressly so provided by the terms thereof. Wiebener v. Peoples (Okla.) 1916E-748. 9. Where the language of a contract is uncertain and the parties thereto, by their subsequent acts and conduct, have shown that they construed it alike and within the purview of the constructions permit- ted as possible by such language, the courts will ordinarily follow such adopted construction as the correct one. Wiebener v. Peoples (Okla.) 1916E-748. 10. What Constitutes Engaging in Busi- ness. An agreement by the seller of a re- tail grocery business and the good will thereof not to conduct the same kind of business in the same town for a specified period is not broken by loaning money to a new grocery firm, where he has no peen- CONTRACTS. 203 niary interest in such firm, directly or in- directly, as member, manager, agent, or otherwise than as a creditor. Finch v. Michael (N. Car.) 1916E-382. (Annotated.) 11. Presumption as to Place of Pay- ment. Where a contract to pay money is silent as to the place of payment, the law, in the absence of any legitimate in- ference to the contrary, implies that pay- ment shall be made at the creditor's resi- dence, office, or place of business, if with- in the state. State v. Kenosha Home Tel. Co. (Wis.) 1916E-365. 12. Avoiding Oppression or Inequality. A contract will not be construed so as to render it oppressive or inequitable to either party thereto, or so as to place one of the parties at the mercy of the other, unless it is clear that such was the mani- fest intention. Little Cahaba Coal Co. vX Aetna Life Ins. Co. (Ala.) 1917D-863. 13. Construction in Favor of Validity. The court will not, unless constrained to do so by the terms of the instrument in the light of the surrounding circumstances, give to corporate bonds and mortgage such an interpretation as would make them void. Morgan v. Dayton Coal, etc. Co. (Tenn.) 1917E-42. 14. Intent of Parties. A party writing a contract cannot reasonably contend that he did not intend to do all that the con- tract by its terms obliged him to do. Hyland v. Oregon Hassam Paving Co. (Ore.) 1916E-941. 15. Popular or Technical Meaning. While legal terms are ordinarily given their technical meaning, in the absence of any- thing indicating that they are used in a different sense, where, upon consideration of the whole of an instrument, it appears that they are employed in an entirely dif- ferent sense, such meaning will be adop- ted, and they will not be given their strict technical meaning if this will defeat the manifest intention. Saulsberry v. Sauls- berry (Ky.) 1916E-1223. 16. Time as Essence of Contract. The written offer not having stipulated tho time when the stock should be delivered, time did not become the essence of the contract, but the seller had a reasonable time to procure the outstanding stock. Davis Laundry, etc. Co. v. Whitmore (Ohio) 1917C-988. 17. Intent of Parties Controls. Parties competent to contract and free to do so may, in the exercise of their judgment, make their own contracts; and when their intention is ascertained, it is ordinarily the duty of the courts to carry it out, if not in conflict with any rule of law. gool morals, or public policy. Parker-Wash- ington Co. v. Chicago (111.) 1916C-337. 18. Exchange of Property Contract Termination Lapse of Reasonable Time for Completion. Where a contract for an exchange of properties does not, in itself, provide a time for its termination, a rea- sonable time is implied. Littlefield v. Bowen (Wash.) 1918B-177. b. Particular Contracts. 19. Place of Support. When an obliga- tion upon the part of the grantee to sup- port the grantor is created by deed and there is no express direction where and how the support should be furnished, the grantor is entitled to require it to be fur- nished at any place he may select if it can be supplied there without needless or un- necessary expense. Soper v. Cisco (N. J.) 1918B-452. 20. Promise to Pay "All Debts." A promise to pay all the "debts and obliga- tions" of another includes the promise to pay its obligation to account and pay to a cotenant the latter's share of the pro- ceeds of ore which the grantor has ex- tracted from the common property and sold. Silver King Coalition Mines Co. v. Silver King Consol. Min. Co. (Fed.) 1918B--571. 21. Furnishing Materials for Telephone Line. Where plaintiff contracted with de- fendant to stake out a telephone line and furnish the materials for sixteen sections, defendant to procure subscriptions for that number of sections, or take them him- self, plaintiff's failure to deliver the mate- rials to defendant was not a breach of the contract. Camp v. Barber (Vt.) 1917A- 451. 22. Construction of Terms "Assets'' of Corporation. In determining the assets of the corporation in such case, a claim for demurrage apparently due the corpo- ration was properly excluded, where it appeared that the corporation's agent had agreed to save the party apparently liable therefor harmless from any claims for de- murrage. Miller v. Dilkes (Pa.) 1917D 1 - 555. Note. Amusement contracts. 1917C-391. 4. VALIDITY. a. Contracts in Violation of Statute or Ordinance. 23. Sale of Liquor Knowledge of Pur- pose to Resell Illegally. Mere knowledge on the part of a seller of intoxicants that the buyer intends illegally to resell the liquors will not render the contract void, so as to bar the seller's action for the purchase price, though if the seller partici- pates in or contributes to the purchaser's intention to sell illegally, or does any act to facilitate or further the design to trans- gress the law, or has an interest therein, the right to recover the price is lost. Paul Jones & Co. v. Wilkins (Tenn.) 1918B^- 977. (Annotated) 204 DIGEST. 1916C 1918B. 24. Violation of Statute. Any agree- ment involving the doing of an act posi- tively prohibited by common law or stat- ute is illegal and void. Gprdon v. Gor- don's Administrator (Ky.) 1917D-886. 25. Where the seller of liquors knew through its local agent that the buyer was running a wide-open liquor saloon in vio- lation of law, and made the shipment to a transfer company, not to the consignee, marked merely with his initials, BO that the public could not know to whom it was to be delivered, such seller cannot recover the price, having aided the buyer's design to transgress the law and circumvented the legislature's object in passing acts (Tenn. Ex. Sess.) 1913, c. 1, requiring common carriers to cause all consignees of liquor to sign, before delivery, an affi- davit setting out his name, etc. Paul Jones & Co. v. Wilkins (Tenn.) 1918B- 977. (Annotated.) Note. Validity of sale of liquors where seller knows same will be illegally resold. 1918B-978. b. Contracts Affecting Administration of Justice. 26. Validity of Contract to Procure Par- don or Parole. A contract whereby one agrees to use his personal influence with the pardoning authority to procure a par- don is void as against public policy, being in contravention of Ky. St. 1370, de- nouncing as unlawful contracts to procure a pardon from the governor, only in cases in which the party whose pardon is sought to be obtained has been convicted of crime by a legally constituted tribunal having the constitutional right to try and punish him. Gordon v. Gordon's Administrator (Ky.) 1917D-886. (Annotated.) 27. Contract to Procure or Suppress Evi- dence. A contract with decedent to secure letters in the possession of a third person so that they may be suppressed, and not without being used ia a criminal prosecu- tion against decedent, made with knowl- edge of such purpose, is illegal; but, if the letters were to be secured merely to pre- rent the person in whose possession they were from sending them unlawfully to the writer's wife, then the contract is good. Josephs v. Briant (Ark.) 1916E-741. 28. A contract to procure evidence to win decedent'g divorce case, or to secure the possession of letters to prevent their use against him in the divorce suit, was void for illegality; but, if the procurement of the letters by the claimant was the only service she was to perform, she being un- aware of any illegal purpose on the part of decedent to suppress the letters, it is not invalid. Josephs v. Briant (Ark.) 1916E- 741. Note. Validity of contract to procure pardon or parole. 1917D-890. c. Contracts Eclating to Public Lands. 29. Withdrawal of Competing Proposal for Public Land. The state of Idaho, by Eev. Codes Idaho, 1613-1634, accepted the provisions of the acts of Congress re- lating to the reclamation of desert lands (Act Aug. 18, 1894, c. 301, 4, 2& Stat. 422 [U. S. Comp. St. 1913, 4685]; Act June 11, 1896, c. 420, 1, 29 Stat. 413 [U. S. Comp. St. 1913, 46S6] ; Act March 3, 1901, c. 853, 3, 31 Stat. 118S [U. S. Comp. St. 1913, 4687]), established a com- plete system for carrying into effect their provisions, and vested in the state board of land commissioners the selection, man- agement, and disposal of such lands, au- thorizing the board on due application to contract on behalf of the state for the con- struction of irrigation works, and giving it exclusive power to pass on any application. While competitive proposals filed by two applicants for the reclamation of certain land were pending, one applicant orally agreed with the other that he would with- draw his bid for a certain consideration. A written contract executed subsequently in Pennsylvania, instead of providing that the applicant should withdraw its proposal, stipulated that it should sell to the other applicant its maps, plans, surveys, and esti- mates and interest in its application for the sum orally agreed upon. In accordance with the oral agreement the proposal was withdrawn and an award made to the other applicant, who paid a part of such sum on account, the maps, etc., being duly deliv- ered. It is held that the written contract, being void as against public policy and the real consideration therefor being illegal, could not be enforced for the amount re- maining due under it. Kuhn v. Buhl (Pa.) 1917D-415. d. Contracts for Suppression of Bidding. 30. Agreement to Prevent Bidding at Ju- dicial Sale. Plaintiff and three others were joint owners of certain corporate stock subject to a mortgage for the purchase price thereof. On foreclosure of the mort- gage, plaintiff was preparing to bid on the stock, when he was told by two of the other owners that the mortgagee had agreed to bid in the stock for the amount of the debt and transfer it to the three owners on payment of Ehe purchase price, thereby eliminating the interest of the fourth owner. Plaintiff thereupon ceased his efforts to raise the money with which to compete in the bidding, and, after the sale, discovered that the real agreement be- tween the purchaser and the other two owners was, that the stock should be trans- ferred to them, so that plaintiff was also CONTRACTS. 205 eliminated as an owner. It is held that the agreement between the purchaser, plaintiff, and the two owners to prevent competition in the bidding was a fraud upon the fourth owner, and therefore could not be specifically enforced in equity. Schmitt v. Franke (Wis.) 1917D-230. (Annotated.) Note. Validity of contract to prevent bidding at judicial sale. 1917D-232. e. Enforcement of Illegal Contracts. (1) Recovery on Quantum Meruit. 31. Where a contract, classifying the material to be removed by plaintiff in his grading and construction work, is void be- cause made on Sunday, plaintiff is entitled to recover the reasonable value of the work, regardless of the classification. Gist v. Johnson-Carey Co. (Wis.) 1916E-460. (2-) Proof of Illegality. 32. Parol Evidence to Show Illegality. Evidence aliunde is admissible to show the illegality of the consideration of a contract attacked on the ground that it is violative of public policy; it being the court's duty in such case to inquire into the entire transaction unembarrassed by any techni- cal rules as to the admissibility of evidence. Kuhn v. Buhl (Pa.) 1917D-415. Note. Admissibility of parol evidence to show illegality of contract. 1917D-426. f. Contracts Against Public Policy. 33. Effect of Infringing Public Policy. A contract prohibited by public policy will be declared illegal, though no actual injury may have resulted to the public in the par- ticular instance; the test being the evil tendency of the contract, and not its actual result. Kuhn v. Buhl (Pa.) 1917D-415. 34. A contract whereby a paving com- pany agreed to pay plaintiff 3 per cent of the contract price on all contracts for street improvement work entered into be- tween it and a city, to be earned when the contract should have been duly signed by the company and the city, and providing that plaintiff should "at all times do every- thing in his power" to further the busi- ness of the company, under which plaintiff was to circulate petitions among property owners asking that streets be paved with the company's product, and obtain signa- tures of 20 per cent of the property owners, to present such petitions to the city coun- cil, to answer and fight remonstrances, and, by bringing property owners before the street committee and the council, t pro- cure the passage of ordinances and reso- lutions authorizing the paving of streets, and assessing the expense on the adjacent lots, in effect a selling or promoting prop- osition, in view of the fact that the com- pensation was contingent, and was broad enough to cover services of any kind, secret or open, honest or dishonest, and the exercise of personal and private influ- ence upon the city council, and of the fact that such compensation was probably in- cluded in the company's contract price, is invalid, as against public policy. Hyland v. Oregon Hassam Paving Co. (Ore.) 1916E-941. (Annotated.) 35. Contract to Procure Legislation. Any person interested in any proposed legisla- tion before any legislative body, including the common council or other lawmaking body of a municipal corporation, may legally employ an agent or an attorney to collect facts relating thereto, and to pre- pare a bill, and to explain the desired measure to the legislative body or any com- mittee thereof- fairly and openly, and have it introduced, and a contract to pay for such services, so rendered, is not a viola- tion of law or of public policy. Hyland v. Oregon Hassam Paving Co. (Ore.) 1916E- 941. (Annotated.) 36. Contract Against Public Policy. Many things which the law does not pro- hibit in the sense of attaching penalties to punish their commission cannot be admit- ted as the subject of a valid contract, as being so mischievous in their nature and tendency that to permit them to be the subject-matter of a contract would be vio- lative of "public policy"; the principle de- claring that no one can lawfully do that which has a tendency to be injurious to the public welfare. Gordan v. Gordan's Admr. (Ky.) 1917D-886. 37. A contract is against public policy if injurious to some established public inter- est, contravenes some public statute, is against good morals, or tends to interfere with the public welfare or safety. Gordon v. Gordon's Admr. (Ky.) 1917D-886. 38. Ky. St. 3828 requires that the board of prison commissioners base its action in paroling a prisoner upon his record while confined, his record previous to confine- ment, and upon his securing, before parole, a contract for employment for six months. Section 1370 denounces the offense of as- sisting in procuring the granting or refusal of a pardon by the governor for fee or re- ward. It is held that a contract of a son with his father whereby the son agreed to prepare an application and to do what was necessary to secure the parole of his brother from prison in return for the father's promise to reimburse him for ex- penses incurred, necessary in view of the requirements of the paroling statute, was not void as in contravention of public pol- icy, the case not coming within section 1370. Gordon T. Gordon's Admr. (Ky.) 1917D-8S6. (Annotated.) 206 DIGEST. 1916C 1918B. 39. Contract to Control Governmental Action. All agreements for pecuniary con- siderations to control the business opera- tions of the government are void as against public policy, without reference as to whether improper means are attempted or used in their execution. Kuhn v. Buhl (Pa.) 1917D-415. 40. Public Policy. A contract is not void as against public policy unless it is injurious to the public or contravenes some established interest of society; such policy being determined by the state con- stitution and statutes, and, where these are silent, by the decisions of the courts. Chreste v. Louisville R. Co. (Ky.) 1917C- 867. Notes. Validity of contract for contingent com- pensation in procuring legislation. 1916E- 948. Validity of contract not to change will. 1916D-1160. g. Contracts Affecting Elections. 41. Influencing County Seat Election. That the principal purpose of a contract by one of two town-site companies to buy the other's land is to eliminate the latter's town as an aspirant for the county seat and secure influence and votes at a county seat election, will not invalidate the con- tract, though the election is pending, where there is no stipulation as to how the offi- cers of the vendor shall vote or use their influence or any provision that the pur- chase money shall not be payable if the election is unfavorable to the purchaser. Lamro Townsite Co. v. Bank of Dallas (S. Dak.) 1917C-346. (Annotated.) Note. Validity of contract designed to influence public election. 1917C-350. h. Contracts Partially Illegal. 42.. Effect of Partial Invalidity. Where the consideration is valid and several/ sep- arable promises are based upon it, some of which are legal and others illegal, while the illegal promises are void, the legal ones will be enforced. Stratton v. Wilson (Ky.) 1918B-917. (Annotated.) 43. Where the consideration of a con- tract is indivisible, and a part is illegal, it falls as a whole. Kuhn v. Buhl (Pa.) 1917D-415. 5. MODIFICATION OR MERGER. 44. Oral Extension of Time. A substan- tial performance of an oral agreement for an extension of time for the completion of a building contract reduced to writing makes the oral agreement a lawful altera- tion of the written contract. American- Hawaiian Eng. etc. Co. v. Butler (Cal.) 1916C-44. 6. PERFORMANCE OR BREACH, a. Performance. 45. Necessity of Performance. Where a contract for services is special and entire, the price as fixed by it cannot be recov- ered unless the party has strictly per- formed it. McCurry v. Purgason (N. Car.) 1918A-907. 46. The seller of a retail grocery busi- ness and the good will thereof who agreed not to conduct the same kind of business in the same town, is not thereby required to see that the purchaser retained all the customers of the old business. Finch v. Michael (N. Car.) 1916E-382. (Annotated.) b. Acts Constituting Breach. 47. The unconditional notice of cancel- lation, though not acquiesced in by plain- tiff operated to relieve defendant from damages resulting from the acts done by plaintiff in performance of the contract subsequent to notice of cancellation, and relieved defendant from freight charges in- curred by plaintiff after such notice of can- cellation. Hart-Parr Co. v. Finley (N. Dak.) 1917E-706. (Annotated.) 48. Anticipatory Breach. Before time fixed for delivery defendant gave notice of cancellation of his written and accepted order of plaintiff for a traction engine. Plaintiff refused to permit cancellation, in- sisting upon performance, with defendant repudiating the contract and declaring that he would not accept or pay for the machine. Plaintiff thereafter tendered it, and, upon defendant's refusal to accept it, left the engine at defendant's farm against his pro- tests and without his consent. Plaintiff claims title passed aa on a delivery, and sues for the purchase price, $2,400, and freight $104 additional. Held, the doctrine that there can be no anticipatory breach of an executory contract of purchase and sale, adopted in Stanford v. McGill, 6 N. D. 536, is overruled, and the overwhelming weight of authority, both English and American, followed. Hart-Parr Co. v. Finley (N. Dak.) 1917E-706. (Annotated.^) c. Excuses for Nonperformance. 49. Conditions Precedent. Plaintiff, en- tering into a contract with a contracting company for excavation work to be com- pleted for a certain price and by a certain date, with a provision for liquidated dam- ages, upon which the contractor gave a surety bond conditioned for the faithful performance of the contract, on the con- tractor's abandonment of the work, is un- CONTRACTS. 207 der no duty to complete it as a condition precedent to his recovery of damages. Comey v. United Surety Co. (N. Y.) 1917E- 424. 50. Effect of Waiver of Stipulation as to Time. Where time of performance of a building contract, made of the essence, is once waived, another date for performance can only be fixed by definite notice, or by conduct equivalent thereto. American- Hawaiian Eng., etc. Co. v. Butler (Cal.) 1916C-44. 51. Time for Rescission. In a suit to re- cover payments uuder a contract for the sale of a house and lot under which the purchaser went into possession in Novem- ber, 1911, but which he attempted to re- scind in. March, 1913, because of the in- ability of the vendor to give title to a narrow strip covered by the contract, evi- dence as to improvements made by the pur- chaser, the pendency of a suit involving the contract and its binding force, and ne- gotiations for a settlement, held to make a question for the jury whether the rescission was attempted within a reasonable time. Brown v. Aitken (Vt.) 1916D-1152. 52. Delay during the time parties to a contract are negotiating for a settlement does not amount to a waiver of the right to rescind. Brown v. Aitken (Vt.) 1916D- 1152. 53. Misrepresentation and Concealment. Misrepresentations by bank president solic- iting a guaranty as to the business of its debtor, the guarantor's son, and conceal- ment of the son's debt to the bank from stock gambling losses equaling the amount of the guaranty, are sufficient to avoid the contract. American National Bank v. DonneUan (Cal.) 1917C-744. Note. Right of purchaser to rescind contract for sale for breach by vendor in tender- ing less land than quantity contracted for. 1916D-1154. 7. IMPLIED CONTRACTS. 54. Services cy Member of Family. Where maintenance and services are ren- dered between relatives living together as one household there is a presumption that they were intended to be gratuitous. In order to recover therefor the plaintiff must overcome this presumption by proving af- firmatively either an express contract for remuneration or circumstances showing a mutual understanding or expectation be- tween the parties that there would be com- pensation. Holstein v. Benedict (Hawaii) 1918B-941. 8. ACTIONS, a. Remedies for Breach. 5n. Stipulated Remedies for Breach as Exclusive. Where a contract provides cer- tain specified remedies for its breach, other remedies are not excluded, in view of La. Rev. Civ. Code, art. 1962, providing that when a contract contains general obliga- tions, and the parties in order to avoid a doubt whether a particular case comes within the scope of the agreement have made special provisions for such case, the general terms of the contract shall not be restricted to the single case provided for. Queensborough Land Co. v. Cazeau (La.) 1916D-1248. b. Pleading. 56. Plea by Defendant of Change in Con- tract. In an action on a contract, defend- ant was not required to plead evidence to establish the contract, but, having pleaded the instrument claimed by it to establish the contract, was entitled to show that such instrument was prepared and assented to, with the changes therein, after the con- tract relied on by plaintiff had been exe- cuted. Divide Canal, etc. Co. v. Tenney (Colo.) 1917D-346. 57. Recovery on Quantum Meruit. In an attorney's action on an express contract for compensation, plaintiff cannot recover on the quantum meruit without amending his pleadings. Egan v. Burnight (S. Dak.) 1917A-539. c. Evidence. 58. Parol to Supplement Contract. Where a telephone rental contract is silent as to the place of payment of rentals, but pro- vides that it cannot be varied, except in writing, signed by a contract agent or higher officer of the company, evidence of an oral agreement between plaintiff and defendant's service solicitor that rentals should be collected monthly by collectors at plaintiff's office is inadmissible. State v. Kenosha Home Tel. Co. (Wis.) 1916E-365. (Annotated.) 59. Sufficiency. That the telephone num- ber, used by the seller of a retail grocery business in his store has been changed, and the old number transferred to a new grocery firm to whom he had loaned money, does not show a violation of his agreement not to conduct the same kind of business in the same town. Finch v. Michael (N. Car.) 1916E-382. (Annotated.) Note. Admissiblity of parol evidence to show place of payment under contract silent in that respect. 1916E-366. d. Questions for Jnry. 60. Amusement Contract Wrongful Dis- charge of Actor Question for Jury. In an action on a written contract for the em- ployment of a company of actors for wrongful discharge without two weeks' no- tice provided for, plaintiffs' right of re- covery is held to be for the jury. Fergu- 208 DIGEST. 1916C 1918B. son v. Majestic Amusement Co. (N. Car.) 1917C-389. (Annotated.) e. Questions of Law and Fact. 61. Abandonment. As t,o whether a con- tract in suit was abandoned is a mixed question of law and fact; what constitutes an abandonment being a matter of law, and whether there has been an abandon- ment, a question of fact. McCurry v. Purgason (N. Car.) 1918A-907. 62. Validity as Question of Law. "Whether a contract is against public policy is a question of law for the court to deter- mine from all the circumstances in each case. Kuhn v. Buhl (Pa.) 1917D-415. f. Damages. 63. Penalty or Damages. A provision in a contract for the sale of electrical ma- chinery to be manufactured that for each day of delay in the delivery thereof twen- ty-five dollars should be deducted from the purchase price "as liquidated damages and not as a forfeit" is a stipulation for liqui- dated damages and not for a penalty. Canadian General Elec. Co. v. Canadian Eubber Co. (Can.) 1916D-488. (Annotated.) 64. Recovery of Liquidated Damages. In an action for the purchase price of ma- chinery liquidated damages for delay in delivery, which by the contract are to be deducted from the price, may be so de- ducted without a cross-action. Canadian, General Elec. Co. v. Canadian Rubber Co. (Can.) 1916D-488. 65. Necessity of Proving Actual Damage. To warrant a recovery under a fair and reasonable provision for liquidated dam- ages for delay, no proof of actual damages is necessary. Canadian General Elec. Co. v. Canadian Rubber Co. (Can.) 1916D-488. 66. Contracts Liquidating Damages. Con- tracts by which parties, who are under no compulsion, agree beforehand upon the amount of damages which shall be allowed for a breach, are as lawful as any others, unless inhibited by some rule of law. Parker-Washington Co. V. Chicago (111.) 1916C-337. 67. Penalty or Liquidated Damages. Where the intention of the parties to a contract is in doubt, the courts are inclined to construe a sum stipulated for in case of breach as a penalty, since the general theory of the law is that compensation shall be the rule, and the application of that rule works justice between the par- ties. Parker-Washington Co. v. Chicago (111.) 1916C-337. (Annotated.) 68. In determining whether a stipulated sum to be paid for the breach of a contract was intended to be a penalty or liquidated damages, the language used and the sub- ject-matter of the contract will be consid- ered to ascertain the intention of the par- ties, and generally the language used will control; but the use of the word "liqui- dated" is not always controlling. Parker- Washington Co. v. Chicago (111.) 1916C- 337. (Annotated.) 69. If a provision in a contract fixing a stipulated sum in case of breach has refer- ence to uncertain damages, and it appears that serious damage might have been in- curred, and no fraud has been used in pro- curing the contract ; the courts cannot in- terfere, and the stipulated sum furnishes the measure of damages. Parker- Washing- ton Co. v. Chicago (111.) 1916C-337. (Annotated.) 70. Where different acts to be performed under a contract are of unequal degrees of importance, some resulting in great dam- age, and others in trifling and inconsider- able loss, a stipulated sum in gross, to be paid for a failure to perform any one ol the acts, will be construed as a penalty. Parker-Washington Co. v. Chicago (111.) 1916C-337. (Annotated.) 71. A stipulation in a contract with a city for the construction of a pumping sta- tion for pumping water to be distributed to certain parts of the city for the use of the inhabitants and for protection against fire, for the payment of $50 for each day that completion was delayed beyond a time fixed, is a stipulation for liquidated dam- ages, and not for a penalty, as the con- tract was made for the purpose of preserv- ing the health and promoting the conveni- ence and welfare of citizens, and protect- ing them and their property, and there can be no estimate of the damages, or compen- sation for the inconvenience to the public, especially where the contract recites that the damages from such delay cannot be cal- culated with any degree of certainty. Parker-Washington Co. r. Chicago (111.) 1916C-337. (Annotated.) 72. Liquidated Damages. Under a con- tract for the construction of a pumping station for a city, providing for the pay- ment of $50 for each day that the com- pletion of the contract was delayed as liquicated damages, such damages are re- coverable, though the pumping station was designed to bring water through a tunnel which was not completed until after the completion of the pumping station; the contracts for the construction of the tun- nel having provided for its completion nine months before the time fixed for completion of the pumping station. Parker- Washing- ton Co. v. Chicago (111.) 1916C-337. 73. Special Damage. One seeking to re- cover special damages for breach of con- tract must show that such damages were within the contemplation of both parties to the contract; otherwise he can only recover such damages as in the usual course of CONTRACTS. 209 things flow from the breach. Missouri etc. R. Co. v. Foote (Okla.) 1917D-173. (Annotated.) 74. Inference of Damage from Breach of Contract. Whenever there is a breach of a contract for the invasion of a legal right the law infers some damage. Finley v. Atlantic Transport Co. (N. Y.) 1917D- 726. 75. Liquidated Damages Distinguished from Penalty. Where plaintiff enters into a written contract with the defend- ant bank to tear down its old building and to erect a new two-story building, which should be completed by August 15, 1912, and to pay the owner $10 per day as liquidated damages for delay in com- pletion, and the bank's quarters on the lower floor are not completed and accepted until December 15th, and the upper floor later, during which delay the damages to the bank are indeterminate and difficult of ascertainment, though it is shown that the sum named bears a fair proportion to the damages discussed and manifestly con- templated by the parties in case of delay, and to the damages sustained, the stipula- tion is one for liquidated damages, and not for a penalty. Nevada County Bank v. Sullivan (Ark.) 1917D-736. (Annotated.) 76. Duty to Minimize Damages. Though plaintiff could keep the contract alive and insist upon its performance up to the time for delivery, and could incur freight ex- pense in so doing after notice of cancella- tion, its right to recover for it depends upon defendant's subsequent withdrawal of his repudiation and subsequent perform- ance. Hart-Parr Co. v. Finley (N. Dak.) 1917E-706. 77. The incurring of the freight charge after notice of cancellation received is an enhancement by plaintiff of its own dam- ages, and not recoverable, unless suit can be maintained for the purchase price. Hart-Parr Co. v. Finley (N. Dak.) 1917E- 706. Notes. Recovery of profits as damages for breach of contract to sell on commission. 1917B-1194. Measure of damages for breach of con- tract to make will. 1918A-854. Whether stipulated forfeiture for breach of contract a penalty or liquidated dam- ages. 1917D-739. 9. BUILDING OR WORKING CON- TRACTS, a. Construction of Provisions. 78. Right of Contractor to Instalment Delay in Prosecuting Work. The provi- sions in a building contract, which author- ize the owner to terminate the contract on the architect certifying that the de- linquencies of the contractor justify such action, and which authorize the owner, on terminating the contract, to enter on the premises and complete the work, and pro- vide that, in case of discontinuance of the employment, the contractor shall not be entitled to receive any further pay- ment until the work is finished, do not affect the right of the contractor, under the provision for partial payments as the work progresses, to receive moneys due him for work already done, unless there is an actual discontinuance of the employ- ment, in which case he is not entitled to any further payment until the work has been completed by the owner, and the architect's certificate of delinquency, au- thorizing a termination of a contract, is conclusive for the purpose of authorizing a termination, and for the purpose, after termination, of authorizing the owner to refuse further payments, and where the architect merely certifies to the failure of the contractor to prosecute the work dili- gently, the contractor is entitled to the partial payment stipulated for during the month preceding the making of the certi- ficate. American-Hawaiian Eng., etc. Co. v. Butler (Cal.) 1916C-44. 79. Practical Construction of Contract. In a contract for the constructian of & building, where there is an exception in favor of the builder of "excavations and foundations complete to joist line," which are to be "completed" by the owner, from the obligations of the builder, the builder should supply an iron railing required by the contract to be placed above the joist line on an outer retaining wall of a light and air space outside the basement, but he is not required to allow the owner in deduction from the contract price of con- struction the cost of stairways leading to and from such basement and voluntarily supplied by the owner, where all the con- duct of the parties during the work of construction shows that they construed the contract as requiring the owner to supply the same. Wiebener v. Peoples (Okla.) 1916E-748. Note. Construction of phrase "damage by ele- ments" or similar phrase as used in con- tract. 1917B-296. b. Performance or Breach. 80. Recovery for Substantial Perform- ance. A contractor and builder who has in good faith endeavored to perform all that is required of him by the terms of his contract for the construction of a building, and has in fact substantially per- formed the same, is ordinarily entitled to sue upon his contract and recover the con- tract price, less proper deductions there- from on account of omissions, deviations, and defects chargeable to him, especially where the owner occupies and uses such 210 DIGEST. 1916C 1918B. building. Wiebener v. Peoples (Okla.) 1916E-748. 81. Waiver of Defects. Mere occupancy and use of a building by the owner does not, as a matter of law, constitute an ac- eptance of the work of construction and a waiver of nonperf ormance by the builder of the stipulations in the contract and does not ordinarily justify inference of acceptance as a fact. Wiebener v. Peoples (Okla.) 1916E-748. 82. Mere part payment by the owner for the construction of a building, whether with or without knowledge of the build- er's failure to perform the contract, does not, as a matter of law, constitute an ac- ceptance of the work of construction and a waiver of such failure to perform, un- less, perhaps, to the extent of such pay- ment with such knowledge where such ac- ceptance and waiver is consistent with all the pertinent facts in the case. Wiebener v. Peoples (Okla.) 1916E-748. 83. Waiver of Nonperformance. Where a contract for the construction of a build- ing requires the same to be done to the satisfaction of the owner and reserves to him the right without the duty of super- vision and direction, his acquiescence in or his failure to object, during the work of construction, to minor and slight omis- sions, deviations, and defects, of which he has knowledge, before the builder has abandoned the work to him as completed and he is occupying and using the same, will ordinarily and when not excused be regarded as a waiver of such nonperform- ance. Wiebener v. Peoples (Okla.) 1916E- 748. c. Bond of Contractor. 84. Contractor's Bond Limitation of Time for Suit Effect of Abandonment of Work. A surety bond to plaintiff on his contract with a contracting company for excavation work to be done by a certain day and for a certain price, with a provi- sion that after a certain date damages were to be liquidated at $10 a day, condi- tioned for the faithful performance of the contract, and providing that actions against it must be begun within six months after the completion of the work specified in the contract, assumes comple- tion of the work, and will apply when the work has been done under the contract, but does not apply as against plaintiff's action for damages for the contractor's abandonment of and refusal to complete the work. Comey v. United Surety Co. (N. Y.) 1917E-424. 85. Building Contracts Liability on Contractor's Bond Waiver New Con- tract for Completion of Work. Plaintiff, who entered into a contract for excava- tion work, with a provision that for any delay after a fixed date damages should be liquidated at $10 per day, and to whom the contractor gave a surety bond condi- tioned for the faithful performance of the contract, and who after the contractor's abandonment of the work at once made demand on the surety and notified it of the contractor's default and that it would Le held responsible for the damages, by entering into a new contract with the con- tractor, assented to by the surety, and providing that it should not be deemed to waive the original contract and under which the work was completed at an in- creased cost, does not extinguish his right of action against the surety for damages for breach of the first contract. Comey v. United Surety Co. (N. Y.) 1917E-424. d. Architect's Certificate. 86. Conclusiveness of Architect's Certifi- cate. A certificate of an architect that the contractor has failed to prosecute the work with diligence, made pursuant to a stipulation in the contract authorizing a termination of the contract on the archi- tect certifying that the delinquencies of the contractor justify it, is at most only prima facie evidence in any collateral matter, and is not conclusive in an action by the contractor for the value of work done and material furnished. American- Hawaiian Eng., etc. Co. v. Butler (Cal.) 1916C-44. 87. Architect's Certificate Refused. Where it was the custom for a contractor, entitled to monthly payments on certifi- cates of the architect, to present each month to the architect an estimate of the work done and material furnished the pre- ceding month, and for the architect to ex- amine the work and certify that it was done to his satisfaction, and when a monthly estimate was presented to the architect, the architect replied that he had been instructed by the owner not to give the certificate, and the owner de- clared that he would not make any more payments, and there was no claim that the work for the preceding month had not been properly done, or any suggestion that the want of the architect's certificate was the ground for refusing payment, and the work for the month was, in fact, well done, the payment for the work becomes due, though the architect did not approve and certify to the work. American- Hawaiian Eng., etc. Co. v. Butler (Cal.) 1916C-44. 88. Termination for Default of Contrac- tor Requisites of Notice. Where a build- ing contract contains provisions author- izing the owner, on certificate of the architect, and after notice to the contrac- tor, to provide labor and materials, or ter- minate the contract, the certificate of the architect must substantially comply with the contract, and the notice to the con- tractor, following the certificate, must fully advise the contractor of what the CONTRACTS. owner demands. American-Hawaiian Eng., etc. Co. v. Butler (Gal.) 1916C-44. 89. Eight of Owner to Complete Work. A building contract which provides that, on the architect certifying to the failure of the contractor to supply skilled work- men or proper material, or to prosecute the work with promptness, the owner may, after three days' notice, provide labor and materials and deduct the cost thereof from any money then or thereafter to become due the contractor, and that, if the archi- tect shall certify that the failure is suffi- cient grounds for such action, the owner may terminate the employment, and enter on the premises, and employ persons to iinish the work, and, in case of discontinu- ance of the employment of the contractor, he shall not receive any further payment until the work shall be finished, does not contemplate a termination of the employ- ment of the contractor for only a part of the work, but as to any part of the work touching which, according to the archi- tect's certificate, the contractor is delin- quent, the owner may furnish the neces- sary labor and material to be used by and charged to the contractor, but may not oust the contractor from that part of the work and undertake to perform it inde- pendent of him, though, where the con- tractor has become so delinquent as to justify a termination, the owner, on the architect's certificate to that effect, may, after proper notice, terminate it. Amer- ican-Hawaiian Eng., etc. Co. v. Butler (Cal.) 1916C-44. 90. Where an owner, employing a build- ing contractor, fails to give lawful notice to the contractor of the termination of the contract, as authorized by the con- tract, on receiving a proper architect's certificate, the owner may not take charge of the work, or any part thereof, and the contractor may resist the attempt of the owner to do so. American-Hawaiian Eng., etc. Co. v. Butler (Cal.) 1916C-44. 91. Conclusiveness of Architect's Certi- ficate. Where a building contract author- izes the architect to determine and certify the existence of a fact, material to a pro- ceeding under the contract, the certificate of the architect, duly made, that the fact exists is conclusive on the parties as to the thing to be done to which the fact re- lates, or as to which, under the proceed- ing, it is to affect the rights of the par- ties, except for fraud or gross mistake amounting to fraud. American-Hawaiian Eng., etc. Co. v. Butler (Cal.) 1916C-44. e. Actions. (1) Evidence. 92. Lack of Interest in Nominal Party Burden of Proof. Where a party seeks to avoid an action on a contract by show- ing that the plaintiff is an agent, the bur- den of proving the fact of agency, as well as the fact that the principal was dis- closed, rests upon the party seeking to re- lieve himself from liability. Camp v. Bar- ber (Vt.) 1917A-451. 93. Time for Completion of Work- Waiver. Evidence held to sustain a find- ing that an owner, employing a contractor to construct a building, waived the time of performance specified in the contract, so that he could not recover damages for delay in completing the work. American- Hawaiian Eng., etc. Co. v. Butler (Cal.) 1916C-44. 94. Waiver of Invalidity. In an action to recover the balance upon a grading con- tract, evidence held to show that defend- ant did not require plaintiff to quit work, even if defendant had the right to do so. Gist v. Johnson-Carey Co. (Wis.) 1916E- 460. (2) Damages. 95. Measure of Damages for Defective Performance. Where a contractor and builder had breached his contract by minor and slight omissions, deviations, and defects in the construction of a building, when tested by the terms of the contract, the owner's measure of damages, under section 2620, St. Okla. 1890 (seo- tion 2852, Rev. Laws 1910), is such an amount as will compensate him for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom; but the form in which this measure is ex- pressed or the rule by which it is made may be changed to adapt it to the facts in the case on trial, as illustrated in the body of the opinion; and, where the facts warrant it, it is not error to instruct that such measure is the difference between the value of parts not so constructed and the same parts if they had been constructed as required by the contract. Wiebener v. Peoples (Okla.) 1916E-748. (Annotated.) 96. Measure of Damages for Breach. The basis of the action is to fasten a trust on the property of the testator in favor of the plaintiff, and to specifically enforce such a trust against the testator's execu- tor and the devisee claiming under the will violating the testator's contract with the plaintiff, and in the alternative to re- cover damages, if specific performance is impossible. The damages are measured by the value of the property promised to be devised, and not the value of the plain- tiff's services which furnished the consid- eration of the contract. Gordon v. Spell- man (Ga.) 1918A-852. (Annotated.) (3) Judgment. 97. Provision for Paying Subcontrac- tor. Where an owner, required to pay the 212 DIGEST. 1916C 1918B. building contractor monthly as the work progressed, refused to make a monthly payment on the ground that he had law- fully terminated the employment, and the owner, when sued by the contractor for the value of the work done, did not rely on the existence of a claim against the contractor, in favor of a subcontractor, as an excuse for the refusal to pay, the owner could not complain of a judgment for plaintiff with a direction that a sub- contractor's claim should be paid out of the amount of the judgment. American- Hawaiian Eng., etc. Co. v. Butler (Cal.) 1916C-44. f. Eight to Terminate Contract for Non- payment. 98. The rule that a rescission of a con- tract by one party thereto, without the consent of the adverse party, cannot be made except by one who is not in default applies where the obligations on which each party is in default are dependent and concurrent, or where the rescinding party's default is so related to the obli- gation in which the adverse party has failed that it, in some manner, affects per- formance, or the duty of the latter to per- form, but does not apply to a building contractor whose sole default is that he has not been diligent in performance; and where the owner refuses to make a monthly payment due under the contract, the contractor may rescind. American- Hawaiian Eng., etc. Co. T. Butler (Cal.) 1916C-44. (Annotated.) 99. Where an owner, required to make monthly payments to the contractor as the work progressed, wrongfully refused to make a monthly payment, it is a breach of contract, and the contractor can re- scind and sue on a quantum meruit for the work done and materials furnished. American-Hawaiian Eng., etc. Co. v. B'ut- ler (Cal.) 1916C-44. (Annotated.) Notes. Eight of building contractor to rescind contract for failure of owner to make pay- ment. 1916C-54. Avoidance of building and loan con- tract on ground of fraud. 1917A-890. 10. AVOIDANCE FOE FEAUD. 100. Rescission of Contract Fraud. Where one dealing with an agent to take applications for home purchasing invest- ment contracts signed without reading an application, reciting that the applicant re- lied solely on the terms of the contract and the options set forth on the back of the application and made a part thereof, and retained the contracts without read- ing them, and the agent made no effort to prevent a reading of the application and of the contracts, nor made any mis- representations as to the contents of the application, the applicant is not entitled to relief on the ground of fraud based on statements by the agent as to the contents of the contracts. Capital Securities Co. v. Gilmer (Ala.) 1917A-888. (Annotated.) CONTRACT TO DEVISE. When cause of action accrues, see Limita- tion of Actions. CONTRIBUTION. Cost of party' wall, see Adjoining Land- owners, 4-5. Necessary parties, see Parties to Actions, 3. Between partners, see Partnership, 21-24. By partner after dissolution, see Partner- snip, 44-46. CONTRIBUTORY NEGLIGENCE. See Carriers of Passengers, 23, 51-54; Negligence, 41-57, 66-68, 72-78, 82, 118; Railroads, 69-77, 85-87. Of servant, see Master and Servant, 32-37. In actions under Employers' Liability Act, see Master and Servant, 67, 68. As affecting compensation under Work- men's Compensation Act, see Master and Servant, 107, 187. As defense under Workmen's Compensa- tion Act, see Master and Servant, 343. Accident on right of way, see Railroads, 85-87. In street car accidents, see Street Rail- ways, 34-37. CONVERSION. 1. WTiat Constitutes Conversion, 212. 2. Who may Sue, 213. 3. Actions, 213. a. Pleading, 213. b. Evidence, 213. c. Instructions, 213. d. Measure of Damages, 213. e. Defenses, 214. f. Waiver of Tort, 214. Independent contract rights as counter- claim, see Bankruptcy, 5. Election of remedies, see Carriers of Goods, 32. When action of trover accrues, see Limi- tation of Actions, 20. No set-off of contract claims not con- nected, see Set-off and Counterclaim, 2. 1. WHAT CONSTITUTES CONVER- SION. 1. Taking from Husband of Owner. Where plaintiff, with consent of his wife, had possession of a dog given to his wife by defendant, the act of defendant, in either taking the dog or refusing to de- CONVERSION. 213 liver on demand under an assertion of title, was a conversion. Herries v. Bell (Mass.) 1917A-423. 2. Receiving Property from Tortfeasor. Merely receiving property from one who has converted it and returning it to him before notice of his want of title is not a conversion by the depositary. Holden v. Farmers, etc. Nat. Bank (N. H.) 1917E- 23. 2. WHO MAY SUE. 3. Conversion of Dog. Where plaintiff, with consent of his wife, had possession of her dog, and defendant converted the dog to his own use, plaintiff was entitled as bailee to recover full damages. Herries v. Bell (Mass.) 1917A-423. 4. Where plaintiff, with consent of his wife, had possession of her dog, and de- fendant enticed the dog away and detained it under a claim of ownership, plaintiff could sue for conversion. Herries v. Bell (Mass.) 1917A-423. 3. ACTIONS. a. Pleading. 5. All that is required in a declaration for trover is that the property should be described with as much reasonable cer- tainty as the nature of the case will per- mit, so that it may be identified, and so that defendant may be protected against another suit for the same cause of action. Williams v. Williams (Me.) 1916D-928. 6. Declaration. Trover may be main- tained to recover money deposited by an agent with the consent of his principal and thereafter converted by the agent, although the identical money cannot be specified in the declaration or thereafter identified. Williams v. Williams (Me.) 1916D-928. b. Evidence. 7. Expression of Conclusion. In an ac- tion for the conversion of electrical ma- chinery, sold to a contractor to be placed in an electric plant for defendant city, evidence by defendant's mayor and coun- cil as to whether they would have con- sented to the placing of the machinery in the plant, had they known that plaintiff reserved title, is admissible on whether the city had notice of the reserved title. Allis-Chalmers Co. v. Atlantic (Iowa) 1916D-910. c. Instructions. 8. Property Attached to Realty of Third Person. In an action for the conversion of electrical machinery sold to a contrac- tor to be placed in an electric plant, in which defendant city disclaimed knowl- edge that title was reserved by plaintiff until full payment, instructions on plain- tiff's estoppel to assert its claim against defendant should have distinguished as to fixtures placed in the plant before notice to defendant of the conditions of plain- tiff's contract of sale and those placed thereafter; the evidence raising the issue as to the time defendant received notice. Allis-Chalmers Co. v. Atlantic (Iowa) 1916D-910. (Annotated.) d. Measure of Damages. 9. Conversion of Corporate Stock. While the par value of stock is presumptively the measure of damages for its conver- sion, if it appears that the corporation has been in existence but a short time, that there have been no sales of stock, and that the assets are depleted, an instruc- tion that the damages are to be deter- mined by the amount which a person wish- ing to buy the stock would expect to pay is not error. Hawkins v. Mellis, Pirie & Co. (Minn.) 1916C-640. (Annotated.) 10. Loss of Article Having No Market Value. The measure of damages for loss by a carrier of an article which has no market value is the value of the article to the shipper; and, in ascertaining the value, inquiry may be made into the con- stituent elements of the article and the cost to the shipper of producing it. St. Louis, etc. B. Co. v. Dague (Ark.) 1917B- 577. (Annotated.) 11. Value of Article Having No Market Value. A shipper suing a carrier for the loss of an article having no market value, and showing that he was a mechanic, and giving a detailed estimate of the materials going into the article and the reasonable cost of constructing the same, may recover the value of materials furnished and the work done by others, as shown by his un- contradicted testimony. St. Louis etc. B. Co. v. Dague (Ark.) 1917B-577. (Annotated.) 12. Conversion of Articles for Personal Use. This general rule is subject to the exception that, where the property con- verted by the defendant to its use consists of articles for personal use, which have been used by the owner, and therefore have little or no market value, the meas- ure of damages is the reasonable value to the owner at the same time of conversion. Erie E. Co. v. Steinberg (Ohio) 1917E- 661. 13. Measure of Damages. In a suit for conversion, where the facts do not author- ize the assessment of exemplary damages, the general rule for the measure of dam- ages is the value of the property at the time of the conversion. Erie B. Co. v. Steinberg (Ohio) 1917E-661. Notes. Measure of damages for conversion of, or failure to deliver, household goods. 1917B-585. 214 DIGEST. 1916C 1918B. Measure of damages for loss or destruc- tion of property having no market value. 1917B-579. Measure of damages for conversion of shares of stock. 1916C-641. e. Defenses. 14. In a suit to recover the proceeds of shares of stock, which were deposited with brokers on a margin account, and were by their own employee converted, held, that the brokers were not guilty of bad faith in applying the proceeds of the transaction as directed by the employee. Carlisle v. Norris (N. Y.) 1917A-429. 15. Fraud of Owner's Employee. Plain- tiff deposited with stockholders stock cer- tificates to protect his margin account. An employee of the broker, who was also plaintiff's confidential agent, obtained pos- session of the stock, which had been re- hypothecated, and converted it to his own use, collecting the proceeds through the brokers as agent. Held that, where the brokers, in crediting the proceeds accord- ing to the employee's direction, acted in good faith, they were not liable, though negligent. Carlisle v. Norris (N. Y.) 1917A-429. f. Waiver of Tort. 16. Where a trespass has been commit- ted upon real estate, and property severed therefrom and sold by the defendant or converted to his own use, the owner may waive the trespass and sue for the value of the property, and the law will imply a promise to pay for it. Wilson, v. Shrader (W. Va.) 1916D-886. CONVERSION AND RECONVERSION. Power to sell land implied from direction to pay legacies, see Executors and Administrators, 44. Purchase of land by members of firm, see Partnership, 11, 12. 1. Reconversion How Accomplished. The beneficial owner of real estate which has been equitably converted into person- alty has the power by word or act to re- convert it into realty, but his words or acts to have such effect must be unequi- vocal, and clearly indicate the purpose to countermand the trust. Chambers v. Pres- ton (Tenn.) 1918B-428. 2. There can be no reconversion except by unequivocal act or declaration of the owner of the entire beneficial interest, and persons under disability are incapable of making such election. Chambers v. Preston (Tenn.) 1918B-428. 3. Where testator by will converted realty to personalty, and one heir mort- gaged his interest, which was also le%'ied on by certain creditors, and court pro- ceedings were had, and his interest was sold and bid in by the other legatees, and partition was had, there is no reconver- sion of the personalty into realty, espe- cially where certain remaindermen in in- terest were not made parties to the par- tition suit. Chambers v. Preston (Tenn.) 1918B-428. 4. Condemnation of Land Subject to Remainder. Where, in such case, certain of testator's realty was condemned by the federal government during the widow's lifetime and prior to the death of one of the sons, damages paid therefor to the trustee are distributable as realty, not as personalty. Tatham's Estate (Pa.) 1917A- 855. 5. Devise to Trustees With Power of Sale. For a testator to devise his land to trustees, with power to sell land and in- vest the proceeds in personalty, does not work an equitable conversion, though the sale and reinvestment has that effect. Porter v. Union Trust Co. (Ind.) 1917D- 427. 6. Effect on Owner's Right to Recover. Where title to property is changed from personalty to realty with the vendor's con- sent, the vendor's right of recovery to pro- tect his rights in the property must be based upon its reasonable value, rather than upon the property itself. Allis- Chalmers Co. v. Atlantic (Iowa) 1916D- 910. 7. Equitable Conversion Testamentary Direction for Future Sale. A will devi- sing the use of land as a loan to the tes- tator's wife to be sold by the executors on her death or on the son's attaining ma- jority, and the proceeds thereof to be dis- tributed among the children, operates to convert the realty into personalty as of the date of the testator's death. Cham- bers v. Preston (Tenn.) 1918B-428. (Annotated.) CONVEYANCE. Defined, see Frauds, Statute of, 12. CONVEYANCES OF LAND. Meaning, see Deeds, 70. CONVICTION. Form of sentence for several counts, see Sentence and Punishment, 10. CONVICTS. See Pardons. Effect of imprisonment on homestead, see Homestead, 19. Death sentence, effect of insanity, see Sentence and Punishment, 7, 12. Place of imprisonment, see Sentence and Punishment, 20. Impeachment of ex-eonvict witness, see Witnesses, 105. CORONERS CORPORATIONS. 215 1. Capacity to Contract. Under Okla. statutes a person convicted of a felony is not divested of all rights whatever and rendered absolutely civiliter mortuus, but may contract with an attorney or other person to obtain a parole, a pardon, or to sue for a writ of habeas corpus, and this in the absence of an express statute to the contrary, or some express provision for the management of his estate, neces- sarily carries with it the right to dispose of his property in order to employ counsel. Byers v. Sun Savings Bank (Okla.) 191GD- 222. (Annotated.) 2. Service of Process. Va. Code 1904, 2902, gives a right of action for wrong- ful death, though the act amounts to a felony. Section 4115 authorizes the ap- pointment of a person to take charge of the estate of a convict. Section 4116 pro- vides that such committee may sue or be sued in respect to debts due to or by the convict, "and any other of the convict's estate." Section 4120 provides that, if any person so appointed refuse to act or qualify, the court shall commit the estate to the sheriff of the county or sergeant of the corporation, who shall be the commit- tee. It is held that section 4116 author- izes actions against the committee on any cause of action existing against the con- vict, and, while at common law a convict might be sued, the statute covers the whole subject, and an action for wrongful death cannot be maintained against a convicted murderer, but must be brought against his committee. Merchant's Ad- ministrator v. Shry (Va.) 1916D-1203. (Annotated.) 3. Corporal Punishment. Laws N. Car. 1909, c. 281, 6, applicable to Wake county, provides that convicts sentenced to hard labor shall be under the control of the county commissioners, who shall have power to enforce all needful regulations for the successful working of convicts on the highways, and may authorize the supervisors in custody to use such dis- cipline only as may be necessary to carry out the regulations to the same extent as is allowed by law to the authorities of the penitentiary as to convicts employed in the state's prison. It is held that, since there is no law authorizing the authori- ties of the state's prison to enforce the discipline by flogging, supervisors in 'charge of a camp of convicts working on the roads in Wake county are not author- ized by mere custom or otherwise to flog a convict under their charge, to enforce discipline and compel him to work. State v. Nipper (N. Car.) 1916C-126. (Annotated.) Notes. Service of process on convict. 1916D- 1207. Right to inflict corporal punishment on convict. 1916C-130. Contractual capacity of convict. 1916D- CORONERS. Right of dissection, see Dead Body, 5. CORPORATE TRUSTS. See Monopolies.] CORPORATIONS. 1. Nature, Character and Status, 21C. 2. Matters Relating to Corporate Exist- ence, 217. a. Dissolution, 217. (1) In General, 217. (2) Forfeiture of Charter, 217. (3) Effect of Dissolution, 217. 3. Control by Legislature and Courts, 217. 4. Rights and Powers, 217. a. Effect and Validity of By-laws, 217. b. Purchase of Property, 218. c. Ultra Vires Acts, 218. d. Implied Powers, 218. e. Power to Contract, 218. 5. Duties and Liabilities, 218. a. In General, 218. b. Criminal Liability, 219. c. Duty to Stockholders, 220. d. Liability for Acts of Agents, 220. 6. Promoters, 220. 7. Officers and Agents, 220. a. Appointment, Election, and Quali- fication, 220. b. Authority, 221. (1) Ratification or Estoppel to Deny Authority, 221. (2) Proof of Authority, 221. e. Liability, 221. (1) To Corporation, 221. (2) To Third Persons, 221. (3) Relief to Stockholder, 222. d. Particular Officers, 222. (1) President, 222. (2) Directors, 222. e. Compensation for Services, 223. 8. Stock and Stockholders, 223. a. Issuance of Stock, 223. b. Subscription to Stock, 223. (1) In General, 223. (2) When Subscriber Becomes Stockholder, 223. (3) Withdrawal and Avoidance of Subscription. 224. (4) Conditional Subscriptions, 225. (5) Preference in New Issue, 225. c. Nature of Ownership, 225. d. Lien of Preferred Stock, 225. e. Transfer of Stock, 226. f. Stockholders' Meetings, 226. (1) Notice, 226. (2) Right to Vote, 227. (3) Voting Trusts, 227. (4) Voting Agreements, 227. (5) Proxies, 227. 216 DIGEST. 1916C 1918B. g. Dividends, 228. h. Bight to Inspect Corporate Books, 228. i. Distribution of Corporate Assets, 229. 3. Liability of Stockholders, 229. (1) In General, 229. (2) Persons Liable, 229. (3) Accrual of Cause of Action, 230. (4) Enforcement of Liability Proceedings, 230. (5) Limitation of Actions, 231. k. Stockholders' Actions, 231. (1) Eight of Action, 231. (2) Pleading and Practice, 231. (3) Limitation of Actions, 232. 9. Actions, 232. a. Process, 232. 10. Insolvency and Receiver!, 232. a. Preferences, 232. b. Distribution of Assets, 232. c. Appointment of Receiver, 233. 11. Corporate Mortgages and Bonds, 233. 12. Foreign Corporations, 234. a. Statutory Regulations, 234. (1) Imposition of License Tax, 234. (2) Statute Requiring Appoint- ment of Representative to Accept Service of Process, 234. (3) "What Constitutes Doing Business, 234. (4) Effect of Noncompliance With Statutes, 235. b. Insolvency and Dissolution, 235. c. Actions by and Against Foreign Corporations, 235. (1) Liability to be Sued, 235. (2) Service of Process, 235. (3) Limitation of Actions, 236. (4) Pleading, 236. (5) Defenses, 237. See Bills and Notes, 9; Building and Loan Associations; Canals; Carriers; Gas; Insurance; Irrigation; Mandamus, 14, 15; Municipal Corporations; Rail- roads; Quo Warranto, 5; Religious In- stitutions; Street Railways; Tele- graphs and Telephones; Water Com- panies and Waterworks. Acknowledgment before notary stock- holder, see Acknowledgments, 1. Foreign corporation as nonresident, see Attachment, 2. Stock, attachment of, see Attachment, 3, 5. Transfer of stock, see Conflict of Laws, 8. Foreign corporation, existence, see Con- flict of Laws, 11. Corporation not a citizen, see Constitu- tional Law, 75. Inheritance of stock, law governing, see Descent and Distribution, 4. Condemnation by de facto corporation, See Eminent Domain, 4. Bill to test election of officers, see Equity, 3. Judicial notice of charter of public service corporation, see Evidence, 12. Books and records as evidence, see Evi- dence, 100. Franchise, construction, forfeiture, see Franchises, 1, 2. Sale of stock, writing, see Frauds, Statute of, 8. Stockholder insurance agent issuing policy on corporate property, see Insurance, 2. Joint-stock corporations, see Joint Adven- tures, 8-10. Actions by and against for defamation, see Libel and Slander, 3, 69, 70, 72, 73. Blue Sky Law, see Licenses, 33, 34. "Person" includes corporation, see Limita- tion of Actions, 5. Stockholder's action, when cause accrues, see Limitation of Actions, 29. Prohibition of foreign corporation estab- lishing monopoly, see Monopolies, 15. Social club not included in statute, see Societies and Clubs, 1. Consolidation of street railway corpora- tions, see Street Railways, 7-19. Injunction by stockholder to restrain cor- poration from paying tax, see Taxa- tion, 90. Taxation of stock, see Taxation, 14-21, 34, 40-47, 78-85. Franchise tax, see Taxation, 147, 148. Federal Corporation Tax Act, see Taxation, 149. Foreign Corporation Tax Act, see Taxa- tion, 150-170. Injunction against using of name of an- other, see Trademarks and Trade- names 1 , 3. Right of alien enemy stockholder to vote, see War, 16. Domestic corporation as alien enemy, see War, 13, 14. 1. NATURE, CHARACTER AND STATUS. 1. "Citizen" as Including Corporation. An order of the railroad commission of Arkansas, based upon a petition signed by seventeen corporations and partnerships and one natural person, requiring one rail- road to establish a connection with another is void, as not being signed by fifteen bona Cde citizens residing within the territory affected, within the direct terms of Acts of Ark. 1907, p. 357, 1, since "bona fide cit- izens," as there used, means permanent residents, as distinguished from mere so ; journers, and refers to individuals, to the exclusion of corporations and copartner- ships. St. Louis, etc. R. Co. v. State (Ark.) 1917C-873. (Annotated.) 2. It being presumed that the petition would not be signed without consideration of its proposed demands, the word "citi- zen" will not be construed to include cor- porations, in the absence of a provision in the act creating a means by which the assent of a corporation may be evidenced. St. Louis, etc. R. Co. v. State (Ark.) 1917C-873. (Annotated.) CORPORATIONS. 3. A "citizen" ordinarily means only a natural person, and will not be construed to include a corporation, unless the gen- eral purpose and import of the statute in which the term is found seems to require it. St. Louis, etc. R. Co. v. State (Ark.) 1917C-873. (Annotated.) 3^. Whether a corporation is public or private is not to be decided from the number of persons engaged in the enter- prise for their mutual advantage, but from the terms of its charter and the general law under which it is organized. State Public Utilities Com. v. Bethany Mut. Tel. Assoc. (HI.) 1917B-495. (Annotated.) Notes. "Citizen" as including corporation, joint stock company or partnership. 1917C- 875. Corporation not operated for profit as public utility. 1916D-899. 2. MATTERS RELATING TO COR- PORATE EXISTENCE. a. Dissolution. (1) In General. 4. De Facto Dissolution. Where a cor- poration going out of business assigned itg assets to stockholders for their assumption of its debts, no creditor complaining, the title of such stockholders to stock and bonds of another corporation, assigned them by the owner in part payment of his indebtedness to the dissolved corporation, was perfect against the assignee of the judgment creditor of the assignor of the securities, although no notice of dissolu- tion of the corporation was filed with the secretary of state of the state of incor- poration, as its statute required. Husband v. Linehan (Ky.) 1917D-954. 5. Judicial Power. The right to dis- solve a corporation and wind up its affairs for any cause against its consent belongs to the sovereign state alone, and, in the absence of an express statute to that effect, the courts have no power to dissolve such corporation at the instance of an indi- vidual suitor. Union Savings, etc. Co. v. District Court (Utah) 1917A-821. (2) Forfeiture of Charter. 6. Wlio may Assert Forfeiture. Okla- homa statutes requiring corporations to pay a license tax for doing business, and providing that a failure shall work a for- feiture, being chiefly revenue measures, in- dividuals dealing with an Oklahoma cor- poration cannot question the validity of its existence on the ground that it had not paid its tax. Dickey v. Southwestern Surety Ins. Co. (Ark.) 1917B-634. (3) Effect of Dissolution. 7. Effect on Pending Penal Action. Kirby's Ark. Dig. 957, 958, authorizing any corporation to surrender its charter, and conferring on the chancery court juris- diction to pay the debts and distribute the assets among the stockholders, give the unqualified right to a corporation to dis- solve at any tim^, and a voluntary disso- lution pending action by the state for pen- alties for violation of the anti-trust stat- utes abates the action, in the absence of any provision for the enforcement of the claim against a dissolved corporation; for an action for a penalty is not an action for a "debt." State v. Arkansas Cotton Oil Co. (Ark.) 1917A-1178. (Annotated.) Notes. Dissolution of corporation as abating action against it to recover penalty or for- feiture. 1917A-1180. Necessity of assent of all stockholders to consolidation of corporations. 1918A- 165. 3. CONTROL BY LEGISLATURE AND COURTS. 8. Power to Dissolve. Tie power to wind up the affairs of a corporation and to dissolve it is not one which inheres in the courts, but exists only when conferred by statute. Union Savings, etc. Co. v. Dis- trict Court (Utah) 1917A-821. 4. RIGHTS AND POWERS, a. Effect and Validity of By-laws. 9. Seat of Insolvent Member. A pro- vision of the by-laws of a stock exchange, authorizing the sale of a member's seat on his insolvency and distribution of .the proceeds to members in payment of their claims against him, before payment of any- thing therefor to him or those claiming through him, is valid. Gartner v. Pitts- burgh Stock Exchange (Pa.) 1916E-878. (Annotated.) 10. Restrictions on Transfer of Stock. Mass. St. 1903, c. 437, makes the first step in the organization of a corporation the signing by the proposed incorporators of a written agreement of association, and by section S (e) requires it to state the re- strictions, if any, imposed upon the trans- fer of capital stock, and then requires a first meeting for the adoption of by-laws and the election of the directors and other officers, and articles of association contain- ing a copy of the agreement of associa- tion; and section 28 regulates the transfer of stock as to its form. The agreement of association provided that none of the stock should be transferred without the consent of three-fourths of the capital 218 DIGEST. 1916C 191B. stock, and a by-law required any stock- holder before selling stock to file a writing giving the name of the proposed purchaser, the number of shares, and the purchase price, which sale should not be made unless approved by a meeting of the stockholders at which three-fourths of the stock shall vote to permit the sale. It is held that such restrictions were within the legisla- tive intent, becoming a part of the corpo- rate being and entering into each share of stock, and were not inherently unconscion- able; and hence that defendants, claiming to hold offices as directors by virtue of shares of stock transferred in violation of such restrictions, were not qualified, and must surrender their offices. Longyear v. Hardman (Mass.) 19161>-1200. (Annotated.) 11. That an assignee of an insolvent member was not given an opportunity to be heard by the arbitration committee ap- pointed pursuant to such provision and the by-laws of the exchange did not entitle him to complain of a sale of the member's seat in accordance with the committee's action, or of the distribution of the pro- ceeds of the sale pursuant to the by-laws, especially where he did not appeal from the action of the committee to the board of appeals, as provided by the by-laws. Gartner v. Pittsburgh Stock Exchange (Pa.) 1916E-878. (Annotated.) Notes. Validity of corporate by-law regulating alienation of stock. 1916D-1202. Validity of rule of stock exchange with respect to seat of insolvent or defaulting member. 1916E-879. b. Title to Property. 12. A corporation itself is a legal per- sonalty holding the full title, legal and equitable, to all corporate property. Daw- son T. National Life Ins. Co. (Iowa) 3918B-230. c. Ultra Vireg Acts. 13. Ultra Vires Contracts. "Ultra vires contracts" include not only those entirely without' the scope and purpose of the char- ter privileges and objects, but also those beyond the limitation of the charter pow- ers, though within the purposes contem- plated by the articles of incorporation. American Southern Nat. Bank v. Smith (Ky.) 1918B-959. d. Implied Powers. 14 Incidental Powers. The term "inci- dental powers," within the rule that a cor- poration possesses only those powers which >ts charter confers upon it, either expressly or as incidental to its existence, means such powers as are directly and immedi- ately appropriate to the execution of the powers expressly granted and exist only to enable the corporation to carry out the purpose of its creation. State v. Missouri Athletic Club (Mo.) 1916D-931. 15. The "implied powers" of a corpora- tion are such as are not indispensably necessary to carry into effect others ex- pressly granted, and comprise all that are appropriate, convenient, and suitable for :that purpose, including as an incidental right a reasonable choice of the means to be employed in putting into practical effect this class of powers. State v. Missouri Athletic Club (Mo.) 1916D-931. 16. Powers essential to the exercise of the powers expressly granted are neces- sarily implied, and are as much granted as if expressed. Gregg T. Little Rock Cham- ber of Commerce (Ark.) 1917C-784. e. Power to Contract. 17. Chamber of Commerce Power to Contract Subsidy for Steamboat Line. The Little Bock Chamber of Commerce, incorporated under Kirby's Ark. Dig. 937-943, providing that such corporations shall have, for carrying out their object, such powers as are possessed by other corporations, and which may be necessary to their management and purposes, and whose constitution declared its object to be the upbuilding of the city, the encour- aging of its public improvements and educational advantages, and the develop- ment of its industries, and whose by-laws provided for an industrial committee to have exclusive control of the industrial fund and the power to grant aid or sub- sidies for public purposes, does not exceed its powers by granting a subsidy for th construction of boats and the navigation of the river from the city to Memphis, with a view to lowering prevailing freight rates. Gregg v. Little Rock Chamber of Commerce (Ark.) 1917C-784. (Annotated.) 18. Restriction to Corporate Purpose. The power of a corporation to make and take contracts is restricted to the pur- poses for which it is created, and cannot legally be exercised by it for other pur- poses. Gregg v. Little Rock Chamber of Commerce (Ark.) 1917C-784. Note. Powers and liabilities of private corpora- tion or association organized to promote business interests of community. 1917C- 787. 5. DUTIES AND LIABILITIES, a. In General. 19. Liability of Corporation. That the defendants wore interlocking corporations controlled by the same stockholders and CORPORATIONS. 219 directors, that the first company was cre- ated by the second company, and that the periodical formerly printed by the second company, in which the libel appeared, was transferred to the first, which had no vis- ible property, is no ground for maintain- ing a bill in equity for the assessment of damages suffered, for, if the first company is merely the mouthpiece of the second, its corporate form does not prevent plain- tiff from reaching the real offender, in an, action at law. Finnish Temperance Soc. v. Kiavooja Pub. Co. (Mass.) 1916D-1087. 20. Liability for Debt of Predecessor. A manufacturing corporation, without hav- ing issued any shares of its authorized capital stock, gave a mortgage on all of its property to secure an issue of bonds, with a provision that upon default in the payment of interest, the bondholders were authorized to take all the mortgaged prop- erty into their possession through the trustee, and operate and manage the busi- ness and property as a going concern, for the purpose of preserving it as security. The company defaulted on its payments, and at the request of a majority of the bondholders the trustee took possession of all. the property and business, making one of the principal bondholders its agent, and the business was continued for more than two years by the bondholders in the name of the mortgagor. Thereafter, at the re- quest of the bondholders the trustee fore- closed the mortgage, and the property was sold under the decree and purchased by the bondholders, who thereupon organized a new company as a holding company to take the title to the property, and the sheriff's deeds were made 'conveying all the prop- erty to the new company, none of the au- thorized capital stock of which was is- sued. No consideration was paid for the purchase of the property by the new com- pany, except the interest its incorporators owned as bondholders. In an action by plaintiff to recover for material and sup- plies furnished to the bondholders while in possession, and which were used for the purpose of preserving the property as security for the bonds, it is held that it would constitute a fraud on the rights of the plaintiff to permit the new company to acquire the title to the property freed from such obligations; that the circum- stances surrounding the creation of the new corporation and its succession to the business and property of the old show that there was, in fact, no purchase, but merely a change in the capacity in which the business was conducted. The same persons who conducted the business as bondholders in possession as mortgagees, changed from partners or bondholders to incorporators of the new company, and therefore plaintiff was entitled to judg- ment against the new company. Spadra- Clarksville Coal Co. v. Nicholson Qvan.) 1916D-652. (Annotated.) Note. Liability of corporation for debts of predecessor. 1916D-658. b. Criminal Liability. 21. Criminal Prosecution. Under S. Dak. Pen. Code, 15, providing that all persons who commit in whole or in part any crime within the state are liable to punishment, section 822 defining "person" as including corporations, S. Dak. Code Cr. Proc. 183, empowering and requiring the grand jury to inquire into all public offenses and pre- sent them by presentment, indictment, or accusation in writing, and section 560 et seq. providing for a hearing before a magistrate upon a presentment against a corporation or the filing of a complaint or information against it, and providing that if the magistrate return a certificate that there is sufficient cause to believe the cor- poration guilty, the state's attorney shall file an information, or the grand jury may proceed as in the case of a natural person held to answer, a criminal proceeding against a corporation may originate by in- dictment by the grand jury in the first instance, by the return of a presentment by the grand jury and a hearing before a magistrate, or by an information filed be- fore a magistrate and a preliminary exam- ination. State v. Taylor (S. Dak.) 1916E- 1285. 22. A corporation may be indicted and convicted under section 37 of the Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1096 [Fed. St. Ann. 1909 Supp. p. 415]), for conspiracy to commit an offense against the United States by carrying liquors into Indian Territory or introducing liquors into the Indian country, although under section 335 of the Criminal Code (Fed. St. Ann. 1909 Supp. p. 495) the offense is a felony. Joplin Mercantile Co. Y. United States (Fed.) 1916C-470. (Annotated.) 23. Under N. Car. Eevisal 1905, 2831, subd. 6, defining "person" as extending to bodies corporate, unless the context clearly shows the contrary, and section 3432 pro- viding that, if any person shall by any false pretense obtain any money or other thing of value with intent to defraud, such person shall be guilty of a felony and im- prisoned or fined, a corporation may be convicted of obtaining money by false pre- tenses, as a corporation may be convicted of a crime requiring an intent, and the fact that it cannot be imprisoned does not exempt it from criminal liability. State v. Salisbury Ice, etc. Co. (N. Car.) 1916C- 456. (Annotated.) 24. Criminal Liability. A bankrupt cor- poration is capable of committing the offense of knowingly and fraudulently con- cealing its property from its trustee in violation of Bankr. Act July 1, 1898, c. 541, 29b, 30 Stat. 554 (Fed. St. Ann. 1912 220 DIGEST. 1916C 1918B. Supp. p. 646). Kaufman v. United States (Fed.) 1916C-466. (Annotated.) Note. Criminal liability of corporation for act of misfeasance other than, homicide. 1916C-459. c. Duty to Stockholders. 25. The relation of a corporation to its stockholders is that of a trustee of a direct trust, as to which limitations are inap- plicable until there is a clear and unequiv- ocal disavowal of the trust and notice brought to the cestui que trust. Yeaman v. Galveston City Co. (Tex.) 1917E-191. d. Liability for Acts of Agents. 26. A corporation is as well liable for slander by an agent committed in the course of his employment as for a slander by an officer or manager of the corpora- tion. Fensky v. Maryland Casualty Co. (Mo.) 1917D-963. (Annotated.) 27. Liability for Slander. A corporation is liable for a slander uttered by its agent while acting in the scope of his employ- ment, and in the actual performance of the duties thereof touching the matter in question, though the corporation had no knowledge and did not ratify the act of the agent. Fensky v. Maryland Casualty Co. (Mo.) 1917D-963. (Annotated.) 6. PROMOTERS. 28. Bight of [Promoters to Subscribe. Promoters who complete subscription by subscribing for the balance of unsold shares, intending to sell such shares to others, are liable for the amount so sub- scribed. Heiskell v. Morris (Tenn.) 1918B-1134. 29. Liability on Contracts of Promoters. Where plaintiff, one of three partners en- gaged in selling interests in a tract of land on which they had an option and in organ- izing a corporation to take over such land, prepared the articles of incorporation with- out any promise that he would be paid therefor or without any assumption of lia- bility therefor by the directors, which ser- vice was more than in the interests of the partnership than of the corporation, he must be assumed to have rendered such services in pursuance of a representation by his partners that the incorporation would be without expense to purchasers, so that he cannot recover therefor against the corporation; since, while a corporation may adopt the contracts of its promoters, especially those necessary to effect its creation, promoters cannot, in the absence of any adoption of their acts, bind the cor- poration by their contracts made before it was incorporated. Tanner v. Sinaloa Land, etc. Co. (Utah) 1916C-100. (Annotated.) Note. Liability of corporation to third parties on contracts of its promoters. 19K5C-105. 7. OFFICERS AND AGENTS. a. Appointment, Election, and Qualifica- tion. 30. Eligibility of Officer Stock Trans- ferred to Permit Election. Defendant held a certificate for one share of stock issued to him by a corporation upon the assignment to him of a share of stock by one who held as trustee for heirs under a will. The assignment was made under a provision of the will where- by the trustee was empowered to transfer stock to another person to enable him to act as director in the corporation. De- fendant shortly after its issuance handed the stock certificate over to the trustee, with a memorandum wherein he acknowl- edged that he held the stock for the sole purpose of being qualified as a director, and declaring the beneficial ownership to be in the heirs under the trust. Held, that defendant was a stockholder within the statute requiring directors to be stockhold- ers, since the transfer of the stock and issuance of the certificate to him in ac- cordance with section 8 of the act under which the corporation was organized vested him, as to the corporation, with legal and equitable title. People v. Lihme (111.) 1916E-959. (Annotated.) 31. The fact that defendant surrendered his certificate to the trustee, together with the memorandum, does not affect his legal title, since he could be divested thereof only by transfer on the books of the com- pany, in accordance with the express terms of Act Feb. 18, 1857 (111. Laws 1857, p. 163), 8, under which the corporation was organized. People v. Lihme (111.) 1916E 959. (Annotated.) 32. The fact that defendant has no pecuniary interest in the success of the corporation does not disqualify him to act as director, since under the express terms of Act Feb. 18, 1857 (Laws 111. 1857, p. 164), 14, under which act the corporation was organized, providing for the voting of stock by fiduciaries, and under the general doctrine of the law, bare legal title in the absence of fraud qualifies the owner to act as director regardless of the trusts under which the stock may be held. Peo- ple v. Lihme (111.) 1916E-959. (Annotated.) 33. Necessity That Director Own Stock. A "director" in a corporation is a mere agent, and need not be a stockholder aside from statutory requirements. People v. Lihme (111.) 1916E-959. 34. Necessity for Acceptance. Evidence that one, claimed to be a director of a bank, had never performed the duties of CORPORATIONS. 221 the office; was re-elected to it after his attempted resignation; that he was with- out the state for over five years and took no part in the conduct of the affairs of the bank, although at one time, while with- out the state, he assisted in the purchase of a farm for the bank, is insufficient to show that he was in fact a director, since, before becoming such, it was necessary for him to accept the office. Zimmerman v. Western, etc. Fire Ins. Co. (Ark.) 1917D- 513. (Annotated.) Notes. Eligibility of officer of corporation to whom stock is transferred for purpose of enabling him to become officer. 1916E 963. Acceptance of office in private corpora- tion, 1917D-516. b. Authority. (1) Ratification or Estoppel to Deny Authority. 35. Where the evidence in an action to enforce specific performance of a contract between the president of a membership corporation and a landowner, for the pur- chase of land, fails to show any meeting of the directors of the corporation after the making of the contract, or that they had ratified the contract as individuals, or that any of them had ever heard of the contract, it cannot be inferred from any subsequent acts of the president that the contract had been ratified by the directors. Catholic Foreign Mission Soc. v. Oussani (N. Y.) 1917A-479. (Annotated.) 36. Ratification or acquiescence results from an appropriation of the proceeds to the beneficial use of the corporation, or its failure for an unreasonable length of time, after knowledge of the unauthorized act, to restore the proceeds thereof to the source from which they were derived, or from a course of dealing on its behalf, without objection, so obvious and often re- peated as reasonably to induce belief in corporate authorization for such purpose. Williams v. S. M. Smith Ins. Agency (W. Va.) 1917A-813. (2) Proof of Authority. 37. Authority of Officer to Contract. In an action for specific performance of a land sale contract evidence that plaintiff mem- bership corporation had not contracted be- cause it had not acted through its direct- ors, but through its president, who ex- ceeded his authority, is admissible under pleadings denying the contract. Catholic Foreign Mission Soc. v. Oussani (N. Y.) 38. To aid in determining whether the directors of a membership corporation au- thorized the president to contract to pur- chase land, not only the formal resolutions of the directors, but everything said and done at their meeting, may be shown. Catholic Foreign Mission Soc. v. Oussani (N. Y.) 1917A-479. (Annotated.) 39. Where a manager had no authority to execute a contract of guaranty for his bank, that fact "is evidence that a con- tract signed by him as manager was in- tended only as his personal obligation. Griffin v. Union Savings, etc. Co. (Wash.) 1917B-267. 40. Manner of Signing. Where a con- tract was signed by one who described him- self as manager of defendant bank, plain- tiff has the burden of proving, there being nothing else to show that defendant was bound, that it was the intention of the signer to bind the -bank. Griffin v. Union Savings, etc. Co. (Wash.) 1917B-267. Note. Authority of officer of corporation to enter into contract for purchase or sale of real estate. 1917A-482. c. Liability. (1) To Corporation. 41. Liability for Secret Profits. Where the directors of a corporation, on the un- subscribed for stock becoming greatly en- hanced in value, appropriated it to them- selves at a price below its selling value, of which the other stockholders had no notice, the profits accruing to them from the transaction constitute a trust fund be- longing to stockholders of record at the time of the sale of such stock. Hechel- man r. Geyer (Pa.) 1917A-236. (Annotated.) 42. The directors of a corporation are under an inherent obligation not to use their position to advance their individual interests, as distinguished from those which they represent in a fiduciary capac- ity. Hechelman v. Geyer (Pa.) 1917A- 256. 43. Liability of Directors to Corporation. The directors of a corporation are "trus- tees" or quasi trustees of its capital and assets, and, as such, are liable for any breach of duty with respect thereto. Hechelman v. Geyer (Pa.) 1917A-236. Note. .Liability of corporate director to cor- poration or stockholder for secret profits. 1917A-238. (2) To Third Persons. 44. Liability of Director for Neglect. An action under Kirby's Ark. Dig. 863, providing that any director of a bank or other corporation, intentionally neglecting or refusing to perform the duties of his office, shall be severally liable for debta 222 DIGEST. 1916C 1918B. of the corporation during the period of his neglect or refusal to perform the duties, must be brought within three years from such refusal, and is thereafter barred. Zimmerman v. Western, etc. Fire Ins. Co. (Ark.) 1917D-513. 45. Persons Entitled to Enforce. Where officers of an insurance company and a bank conspire for the purchase of the in- surance company's stock, and entries are made on the books of the bank BO as to conceal that fact from the directors and stockholders, they cannot be liable sever- ally to the depositor for any debt of the bank so accruing, since the insurance com- pany cannot hold directors for any liabil- ity founded on the company's participation in a wrongful act. Zimmerman v. West- ern, etc. Fire Ins. Co. (Ark.) 1917D-513. (3) Belief to Stockholder. 46. Eights of Shareholder Enjoining Il- legal Act. An individual shareholder in a building and loan association may main- tain an action to prevent its officers from doing some forbidden act, or from continu- ing a course of mismanagement of its affairs, or to require the association to obey the statute, or for the purpose of ob- taining a judgment against the association. Union Savings, etc. Co. v. District Court (Utah) 1917A-821. 47. Action *for Fraud. Plaintiff, the holder of shares of stock in a life insur- ance company having a book value of about $130 each, but which had sold as high as $150, and who sold them for around $200 a share to the vice-president and secretary of the company, acting with the president and others, owning a majority of its stock, in transferring or reinsuring its risks at a value giving them about $1,000 a share, and certain payments and preferences for such service, and who had not been informed as to the true condition of the company or the value of its assets, may maintain an action against such officers for fraud, and recover the full value of his stock, without refer- ence to the price agreed upon at the time of the sale. Dawson v. National Life Ins. Co. (Iowa) 1918B-230. (Annotated.) d. Particular Officers. (1) President. 48. Giving Note for Borrowed Money. A president has no inherent power to nego- tiate loans and issue notes therefor in the name of the corporate entity of which he is such officer. And, unless it ratifies such action on his part, or for an unreasonable length of time after knowledge thereof ac- quiesces therein, the notes so executed are not enforceable as liabilities against the- corporation. Williams v. S. M. Smith Ins. Agency (W. Va.) 1917A-813. 49. Authority of President to Execute Contract. A contract pertaining to the business of a corporation, when formally executed in its name by its president, will, in the absence of proof to the contrary, be presumed to have been authorized by the corporation, and the presumption is not necessarily rebutted by mere failure of the directors' record to show affirmatively that such authority had been given. Omaha Wool, etc. Co. v. Chicago Great Western R. Co. (Neb.) 1917A-358. (Annotated.) 50. Contract to Purchase Real Estate. Xeither a resolution of the board of direc- tors of a membership corporation that "the president and vice-president be empow- ered to take charge of the fiscal affairs until the by-laws are adopted," nor a reso- lution "that the president has authority to sign and execute all documents." standing alone and unexplained, gives the president that authority required by the N. Y. Mem- bership Corporations Law (Consol. Laws, c. 35), 13, providing that no purchase of realty shall be made by a membership cor- poration, unless ordered by the directors by a two-thirds vote, as a condition to his right to contract for the purchase of realty. Catholic Foreign Mission Soc. v. Oussani (N. Y.) 1917A-479. 51. Execution of Deed. A deed of "Big Hillabee Power Company," purporting on its face to be the deed of the company, and reciting that in witness the grantor had set its hand and seal and delivered it by its president signed "L. W. Roberts, Pres't Big Hillabee Power Co.," was the deed of the company, since any defect in the signature is such as a court of equity will not permit to defeat the right of the grantee. Nolen Y. Henry (Ala.) 1917B- 792. Note. Presumption that contract executed by president of corporation is authorized by corporation. 1917A-360. (2) Directors. 52. Fiduciary Relation of Director and Stockholder Purchase of Stock by Director. Any contract whereby corpo- rate directors acquire profit }o the share- holder's detriment, casts upon them the burden of affirmatively showing that the contract was fairly procured for value, or, if for less than value, upon full disclos- ure of all facts known to the director and unknown to the shareholder. Dawson v. National Life Ins. Co. (Iowa) 1918B-230. (Annotated.) 53. Relation to Stockholders. The offi- cers and directors of a corporation are trustees of the stockholders in many re- spects, as in the transaction of the busi- ness and care of the property of the CORPORATIONS. 223 corporation. Dawson v. National Life Ins. Co. (Iowa) 1918B-230. Note. Purchase of stock by director as af- fected by fiduciary relation to stockholder. 1918B-241. e. Compensation for Services. 54. Bight to Compensation for Extra Services. Plaintiff, while drawing a sal- ary of $100 per month as general man- ager of a corporation which he with others had organized to take over land on which they had an option, is not entitled to com- pensation for his services in preparing or copying a contract for use by the corpora- tion, since these services are such as a business manager is ordinarily expected to perform for his company. Tanner v. Sina- loa Land, etc. Co. (Utah) 1916C-100. 55. Allowed by Vote of Officer Benefited. Compensation voted to an officer of a cor- poration is illegal, if the resolution fixing it is carried by his vote, and such com- pensation may be recovered. Luthy v. Ream (111.) 1917B-368. 8. STOCK AND STOCKHOLDERS, a. Issuance of Stock. 56. Issue of Stock and Bonds. Where the parties by their pleadings and stipula- tions have made a case where a corpora- tion has purchased property necessary and proper for corporate use and issued there- for its capital stock and bonds, a prima facie case of valid payment for the stock and bonds is established. Morgan v. Day- ton Coal, etc. Co. (Tenn.) 1917E-42. b. Subscription to Stock. (1) In General. 57. Subscriptions of corporate stock by insolvent persons cannot be counted to hold other subscribers for the amount of their subscriptions; but, if such subscriber was apparently solvent at the time he made the subscription, no fraud is perpe- trated upon other subscribers by the ac- ceptance of his subscription in good faith, though he afterward proves to have been insolvent. Heiskell v. Morris (Tenn.) 1918B-1134. (Annotated.) 58. Contract for Sale of Stock. The Ideal Laundry Company was a corporation capitalized at 250 shares, of the par value of $100 each, of which plaintiff owned J26 shares, the balance outstanding in the names of other parties. The defendant laundry company, doing a kindred business and desiring to pur- chase all the shares, executed on January 11, 1910, to the plaintiff the following memorandum of agreement: "We agree to purchase 126 shares of Ideal Laundry stock for $5,500, and the balance of 124 shares at $50 per share, from F. C. Whit- more. (Signed) The Davis Laundry Company, per E. W. Sloan. 1-11-10." This memorandum was not signed by Whitmore. No time was fixed for the delivery of these shares, and it was verbally agreed that delivery should be made at a local bank, and that the buyer should assist in obtaining the outstanding shares. On February 21, 1910, the seller had deposited in the bank his own 126 shares and had obtained 116 of those out- standing, at which time he notified the defendant of this fact, and that the re- maining 8 shares would be delivered in a very short time. On January 31, 1910, the buyer took possession of the plant and assets of the Ideal Laundry Company and operated the same for a period of two weeks. On February 28, 1910, the seller had secured the entire 250 shares and de- posited them with the local bank for delivery, and so notified the buyer. On February 16, 1910, the buyer yielded pos- session and repudiated the contract. Held: The written memorandum was an offer to purchase the entire 250 shares of stock, and stipulated the price per share. Davis Laundry, etc. Co. v. Whitmore (Ohio) 1917C-988. 59. Common or Preferred Stock. Where a subscription agreement to form a cor- poration provides for the issuance of pre- ferred and common stock, and that the subscriber is to designate the class of stock to which he subscribes, an undesig- nated subscription will be deemed a sub- scription to common stock, unless a prefer- ence is asked prior to the organization of the corporation, or is given by unanimous consent of the stockholders after such time. National Bank v. Amoss (Ga.) 1918A-74. (2) When Subscriber Becomes Stock- holder. 60. A certificate of stock in a corpora- tion is not the stock itself, and is not necessary to a subscriber's complete own- ership of the stock, but is a mere muni- ment of title, evidencing the stockholder's right of ownership. Yeaman v. Galveston City Co. (Tex.) 1917E-191. (Annotated.) 61. Resolution Limiting Rights. Where stockholders of a corporation were Com- posed of the holders of certain trust* cer- tificates representing an interest in cer- tain town-site land, it being contemplated that the trust certificate should be ex- changed for stock in the corporation, the rights of the holders of such certificates cannot be terminated by a resolution that such holders should not be entitled to draw dividends or vote at stockholders' meetings until they had surrendered their certificates and taken out renewed eer- 224 DIGEST. 1916C 1918B. tificates, notice of which is given only by publication in three newspapers in states other than that in which the corporation was organized. Yeaman v. Galveston City Co. (Tex.) 1917&-191. 62. Where a subscriber to the capital stock of a corporation has paid his sub- scription or performed his obligation es- sential to entitle him to the issuance of his stock, he is a full stockholder and entitled to all the rights as such, regard- less of whether a stock certificate was ever issued to him. Yeaman v. Galveston City Co. (Tex.) 1917E-191. (Annotated.) 63. The owners of a town site, in order to promote a sale thereof, conveyed the land to trustees to be disposed of for their benefit, the land being represented by 1,000 shares of joint stock, for which cer- tificates were to be issued to purchasers for the benefit of the landowners. The purchasers formed a joint-stock company, operated by the trustees, who thereafter conveyed the land to the directors of the joint-stock company, and, a corporation having been subsequently formed and the land conveyed to it, it was resolved by the stockholders of the joint-stock com- pany that the holders of the trust certifi- cates should be required to file and register them, receiving in lieu thereof a certificate of stock in the corporation, and that such transfer should be necessary to enable the shareholders to receive divi- dends. The trustees continued to issue trust certificates after the organization of the corporation, and both such certifi- cates and the certificates for the shares in the corporation were acceptable in pay- ment for lots sold by the corporation. In 1856, forty shares of trust certificates being still outstanding, it was resolved that the holders should not be entitled to draw dividends or vote thereon until they were surrendered, and that notices of the resolution should be published in three newspapers in other states. The act of incorporation provided that "the stock- holders in the Galveston City Company be and they are hereby incorporated under the same name and style." It is held that, the act of incorporation being for the benefit of the persons interested in the joint-stock company, it would be pre- sumed that it was accepted by them, and hence the holders of trust certificates be- came ipso facto stockholders in the cor- poration, and were entitled to all the rights of stockholders, regardless of whether they ever surrendered their cer- tificates for shares in the company or not. Yeaman v. Galveston City Co. (Tex.) 1917E-191. (Annotated.) Note. "When subscriber to stock becomes stockholder. 1917E-209. (3) Withdrawal and Avoidance of Sub- scription. 64. Where subscribers for more than two years took no steps to repudiate sub- scriptions, but allowed their names to remain on the corporate books as share- holders, and paid one assessment, it is held that they could not defeat an action by receiver to recover unpaid subscrip- tions on the ground of fraud. Heiskell v. Morris (Tenn.) 1918B-1134. 65. Fraud on Subscriber Waiver by Delay. The shareholder, whose subscrip- tion is obtained through fraud, must be diligent in discovering the fraud and re- pudiating the contract, to avoid his sub- scription as against creditors of the corporation. Eeiskell v. Morris (Tenn.) 1918B-1134. 66. Insolvency of One Subscriber. The insolvency of a subscriber, as relieving other subscribers from obligation to pay subscriptions, is a matter of defense, the burden of proving which is on those sub- scribers asserting it. Heiskell v. Morris (Tenn.) 1918B-1134. (Annotated.) 67. Effect on Other Subscriptions. The withdrawal of a subscriber before the minimum stock subscription is reached does not vitiate the other subscriptions not so withdrawn. National Bank v. Amoss (Ga.) 1918 A-74. 68. Where promoters enter into a secret and collateral agreement with a person to induce him to subscribe for stock of a corporation to be formed, the breach of such agreement will not release the sub- scriber from his liability to the corpora- tion. National Bank v. Amoss (Ga.) 19 18 A-74. 69. Fraud of Promoter as Releasing Subscriber. Where a promoter solicited subscriptions to a corporation to be formed, and presented to the prospective subscriber a subscription agreement con- taining a provision that the promoter un- dertook and agreed that a certain corpora- tion would sell to the subscribers certain property for a stated sum, and no mis- representation of fact was made, nor any trick or device practiced by the promoter to secure the subscription, in a suit by the corporation and its officers to wind up its affairs, adjust the liabilities of the hold- . ers of stock and subscribers to stock, and distribute the corporate assets, subscribers will not be released on the ground that their subscription was procured by alleged fraud of the promoter, who had largely overvalued the property in the subscrip- tion contract, and who was a large owner of stock in the corporation which owned the property. National Bank v. Amoss (Ga.) 1918A-74. 70. Release of Subscriber. A sub- scriber to stock in a corporation to be CORPORATIONS. 225 formed "for the purpose of organizing the Sparta Cotton Mill," where the subscrip- tion agreement contained no reference to the scope, extent, or nature of the busi- ness beyond limiting the capital stock to a fixed sum, but did contain a provision that a named person would sell for a stated sum, to the subscribers, the prop- erty of the Sparta Oil Mill, is not released from his subscription because the charter subsequently granted empowers the cor- poration "to conduct such branch estab- lishments and business as are found to be useful to the main enterprise"; the ma ; n enterprise, as stated in the charter, being the manufacture and sale of cotton goods, yarns, thread and cloth. National Bauk v. Amoss (Ga.) 1918A-74. (Annotated.) Notes. Alteration in charter or change in cor-. porate design as releasing subscriber to stock. 1918A-79. Liability on stock subscription as de- pendent upon whole amount of stock having beea subscribed. 1918B-1137. (4) Conditional Subscriptions. 71. Effect of Failure to Subscribe En- tire Amount. Under a subscription con- tract, making all subscriptions contingent upon the whole amount being subscribed, no assessments can be enforced until the entire capital stock has been subscribed. Heiskell v. Morris (Tenn.) 1918B-1134. (Annotated.) 72. A subscription contract, providing that all subscriptions are on unlap (Idaho) 1918A-546. (4) Massachusetts. 17. Jurisdiction Over Commissioners. As Mass. St. 1911, c. 439, 3, relating to assessment of damages for the erection of a bridge makes ample provision for meet- ing expenditures incurred under the act, the supreme judicial court, which was em- powered to appoint commissioners to as- sess damages, has exclusive jurisdiction over such officials. Brackett v. Common- wealth (Mass.) 1918B-863. (5) North Dakota. 18. Prerogative Jurisdiction of Supreme Court. The prerogative jurisdiction of the supreme court may be exercised only in cases wherein the questions involved are publici juris, and the sovereignty of the state, or its franchises or prerogatives, or the liberties of its people, are affected; and this jurisdiction cannot be exercised to vindicate or protect mere private rights regardless of their importance. State v. Taylor (N. Dak.) 1918A-583. f. Conflicting Jurisdiction of Civil and Military Courts. 19. In habeas corpus to determine juris- diction of state courts, as opposed to mili- tary courts, to try offenses by members of the military, the fact that an arrest is under a city ordinance is immaterial, if the ordinance is valid. In re Wulzen (Fed.) 1917A-274. g. Courts-martial. 20. Status of Courts-martiaL While "courts-martial" discharge judicial func- tions, and are in a sense courts, they are not within the meaning of article 84 of the La. constitution, declaring that the judicial power of the state shall be vested in certain named courts. State v. Long (La.) 1917B-240. 3. PLACE OF HOLDING. 21. Theater. It is not proper to ad- journ a criminal trial for a capital offense from the regular courtroom to the stage of a public theater, without sufficient cause for so doing, the theater itself being filled with people, and under some circum- stances may be so prejudicial to defendant as to require a reversal. Eoberts v. State (Neb.) 1917E-1040. (Annotated.) Note. Power of court to try case at place other than courthouse or courtroom. 1917E-1050. 4. DECISIONS AS PRECEDENTS. a. Decisions of Federal Courts in State Tribunals. 22. The question whether the workmen's compensation act abolishes all other ac- tions by an employee injured while un- loading a ship in the navigable waters of Puget Sound is a wholly state question as to the right to maintain a common-law action, and therefore the decision of the federal district court in another case as to the interpretation of the act is not con- trolling upon the state court. Shaugh- nessy v. Northland Steamship Co. (Wash.) 191SB-655. 23. A state court in deciding a federal question must conform to the latest de- cision of the federal supreme court there- on, though it necessitates the reversal of its own prior decisions. Albert Pick & Co. v. Jordan (Cal.) 1916C-1237. 24. Binding Effect on State Court. De- cisions of federal courts arising on ques- tions depending upon acts of Congress are entitled to weight in the state court, if not controlling. Marinette v. Goodrich Transit Co. (Wis.) 1917B-935. 244 DIGEST. 1916C 1918B. 25. The decisions of the supreme court of the United States, respecting the powers delegated to the general govern- ment and those reserved to the state gov- ernments, constitute the "supreme law," and are controlling on the state courts. Van Winkle v. State (Del.) 1916D-104. b. Decisions of State Courts in Federal Tribunals. 26. Construction of Municipal Charter. The decision of the highest court of a state that a certain municipal ordinance, challenged as repugnant to the federal constitution, is within the scope of the powers conferred by the state legislature upon a municipality, is conclusive upon the federal supreme court on writ of error to the state court. Thomas Cusack Co. v. Chicago (U. S.) 1917C-594. 27. Method of Valuation. Federal courts will follow the decision of the highest state court of Kentucky that Ky. Stat. 4077- 4081, governing the valuation of the in- tangible property of an interstate railway company for tax purposes, properly con- strued, require first an apportionment to Kentucky of the proper share of the entire value of the capital stock, having regard to the relation of state mileage to system mileage, followed by a deduction from the state's proportion of the capital stock value of the assessed value of the company's tan- gible property within the state, rather than a deduction of the total tangible property in and out of the state from the total capital stock value before apportion- ment to the state. Louisville, etc. B. Co. v. Greene (U. S.) 1917E-97. (Annotated.) 28. Binding Effect on Federal Supreme Court. The decision of the highest court of a state that a municipal ordinance which is asserted to violate the federal constitution is within the city's charter powers, and is not forbidden by the state constitution, is conclusive upon the fed- eral supreme court on writ of error to the state court. Hadaeheck v. Sebastian (U. S.) 1917B-927. 29. Scope of State Statute. The appli- cation of the provisions of N. Y. Consol. Laws, c. 31, 14, against the employment of aliens on public works to contracts for the construction of subways in New York city, and the extent to which they affect the corporate rights of the city or of the subway contractors, are local questions not open for review in the federal su- preme court on writ of error to a state court. Heim v. McCall (U. S.) 1917B- 287. 30. Territorial Judgment. The federal supreme court will ordinarily defer to the rulings of the local courts with respect to the validity under the Hawaiian laws of a judgment of the Hawaiian courts. Kapio- lani Estate v. Atcherley (U. S.) 1916E- 142. 31. Federal Court Following State Deci- sion. In a suit in a federal court in- volving the title to real property, if the question is balanced with doubt, the court will incline to an agreement with a deci- sion of the highest court of the state bearing upon it, although it may not be such as to create a rule of property. Holden v. Circleville Light, etc. Co. (Fed.) 1916D-443. c. Decisions of Courts of Other States. 32. Jurisdiction of Probate Court tifect of Lack of Jurisdiction. The pro- bate court of another state is a court of limited jurisdiction; and, unless it had jurisdiction, its proceedings, admitting a will to probate, are void and derive no benefit from the "full faith and credit" provision of the constitution. Matter of Horton (N. Y.) 1918A-611. 33. Full Faith and Credit Clause. The full faith and credit clause of the federal constitution and the acts of Congress thereunder apply only when the court rendering a judgment had jurisdiction of the parties and of the subject-mat- ter and do not preclude an inquiry into the jurisdiction of the court, when an action is brought in the courts of a sister state on the judgment. Flexner T. Farson (111.) 19160^-810. 34. Following Other Jurisdictions. The courts of a state may refuse to follow even a consensus of authority in all other states, or a well-recognized rule of com- mon law, on the ground that it is not suited to the genius of the state or is opposed to its public policy; the public policy of a state being shown by its stat- utes and decisions. Northcut v. Church (Tenn.) 1918B-545. d. Advisory Opinions. 35. An advisory opinion given by the justices of the supreme court to the legis- lature is not the exercise of a judicial function, and has not the quality of judi- cial authority. Laughlin T. Portland (Me.) 1916C-734. e. Obiter Dicta. 36. Expressions of the court in an opin- ion, which go beyond the case, are to be respected, but should not control the judg- ment in a subsequent suit when the point is presented for decision. McCoy v. Hand- lin (S. Dak.) 1917A-1046. 5. RECORDS. 37. Correction of Eecord. On applica- tion to the lower ourt to have the rec- ord in that court corrected so as to prop- COVENANT CREDITORS' BILLS. 245 erly state what occurred, the court below if satisfied from its own knowledge, or from the eridence adduced, that the clerk's docket entries were erroneous or incomplete, had the power and duty to have them corrected. Dutton v. State (Md.) 1916C-89. 6. FEES. 38. Payment of Fees into County Treas- ury. The proviso in Mo. Eev. St. 1909, 10695, for the payment into the county treasury of a part of the fees collected by judges of probate courts, is not unconsti- tutional as a sale of justice prohibited by Const, art. 2, 10. Greene County v. Lydy (Mo.) 1917C-274. COVENANT. Assignability, see Assignments, 10. Measure of damages for breach, see Dam- ages, 16. Eunning with the land, see Deeds, 76. Of title, see Deeds, 77-81. In leases, see Landlord and Tenant, 4-7, 38. Renewal by holding over, see Landlord and Tenant, 49. For perpetual renewal, see Landlord and Tenant, 50-52. CREDIBLE. Meaning, see Wills, 23. CREDIBLE WITNESS. Defined, see Wills, 25. CREDIBILITY OF WITNESSES. See Witnesses, 89-95. Cross-examination to discredit, see Wit- nesses, 75-81. CREDIT INSURANCE. See Insurance, 50-56. CREDITOR AND DEBTOR. Privileged communications between, see Libel and Slander, 59. CREDITORS' BILLS. 1. Right to Maintain. 2. Jurisdiction. 3. Property Subject. Ten years to judgment upheld, see Laches. 4. 1. RIGHT TO MAINTAIN. 1. Exhausting Remedy at Law. A cred- itor may resort to a creditor's suit without exhausting his ordinary remedy at law. Fidelitv Mortgage Bond Co. v. Morris (Ala.) 1917C-952. 2. Purpose in Issue of Bonds. Where a creditors' bill against a mining corpora- tion alleged that bonds, which purported to be for the purpose of taking up out- standing indebtedness, were in fact issued to protect the company in the event of any calamity, such as an explosion in the mines, proof that the holders of the cor- porate stock undertook, by various re- organizations, to exchange their stok holdings for bonds of the defendant com- pany forms no basis of a decree for com- plainants. Morgan Y. Dayton Coal, etc. Co. (Tenn.) 1917E-42. 3. Requisites of Bill. Where the com- plainants in a creditors' bill attack the validity of a mortgage and bonds given by defendant corporation, the bill should set out facts relied upon to establish fraud in the transaction, and mere general state- ments will not suffice. Morgan v. Dayton Coal, etc. Co. (Tenn.) 1917E-42. 2. JURISDICTION. 4. Waiver by Failure to Demur. In a creditor's bill to enforce his claim, brought on the theory of defendant's violation of the Bulk Sales Act, defendant, by failing to demur to the bill of complainant, or to claim the right of demurrer in his answer on jurisdictional grounds, and by answer- ing to the bill on the merits, and by tak- ing proofs thereon, waives the question of jurisdiction, on the ground that the claim had not been reduced to judgment. Coffey v. McGahey (Mich.) 1916C-923. 5. Bankruptcy Effect of Proceeding Pending Creditors' Bill. The commence- ment of a bankruptcy proceeding against a corporation, in which there has been no adjudication of bankruptcy and no re- ceiver appointed, is insufficient to deprive the state court of jurisdiction of a gen- eral creditors' bill against the corporation. Morgan v. Dayton Coal, etc. Co. (Tenn.) 1917E-42. 6. The objection to jurisdiction of the state courts of a general creditors' bill be- cause of commencement of bankruptcy proceedings against the defendant should be presented in the trial court, and, if overruled, an appeal taken from the de- cision. Morgan v. Dayton Coal, etc. .Co. (Tenn.) 1917E-42. 3. PROPERTY SUBJECT. 7. Action to Subject Spendthrift Trust Necessary Parties. In suit by the judg- ment creditor of the beneficiary of an in- valid spendthrift trust to compel a cor- poration to transfer to him stock in it, the corpus of the trust, which had been sold to him on execution sale, a party who had an interest in the trust by its terms to the extent of a debt owed her by the 246 DIGEST. 1916C 1918B. beneficiary, though a proper party, is not a necessary party, since whether the cred- itor took the stock absolutely, by transfer on the books, or otherwise, he would take it subject to the interest of the party in- terested in the trust; she not being made a party to the suit. McColgan v. Walter Magee (Cal.) 1917D-1050. CEIME. See Criminal Law. Defined, see Criminal Law, 7. Words imputing crime, see Libel and Slan- der, 24, 25. CRIMINAL CONSPIRACY. See Conspiracy, 1-12. CRIMINAL CONVERSATION. See Husband and Wife, 65-74. CRIMINAL LAW. 1. Criminal Statutes, 247. a. Stay of Operation of Statute, 247. 2. Jurisdiction of Offenses, 247. 3. Elements of Crime, 247. 4. Parties to Crime, 248. 5. Preliminary Complaint and Examina- tion, 248. 6. Demurrer to Indictment, 249. 7. Rights of Accused, 249. a. Bight to Preliminary Examination, 249. b. Time to Prepare for Trial, 249. c. Right to Public Trial, 249. d. Right to be Present at Trial, 250. e. Right to Inspect Evidence and Know Names of Witnesses, 250. f. Arraignment and Plea, 250. g. Right to Confront Witnesses, 250. h. Right to be Heard by Counsel, 250. 8'. Right of Private Counsel to Prosecute, 251. 9. Election Between Counts, 251. 10. Reception of Evidence, 251. 11. Admissibility and Sufficiency of Evi- dence, 251. a. In General, 251. b. Identity of Accused, 251. c. Character or Reputation, 252. d. Testimony at Former Trial or on Preliminary Hearing. 252. e. Proof of Other Crimes, 252. f. Conduct of Accused, 252. - g. Sufficiency of Evidence, 253. h. Testimony of Accomplice, 253. i. Alibi, 253. 12. Instructions, 253. a. In General, 253. b. Reasonable Doubt, 254. c. Presumption of Innocence. 254. d. Failure of Accused to Testify, 254. e. Corroboration of Accomplice, 254. f. Credibility of Accused, 254. g. Circumstantial Evidence. 255. h. Capacity of Accused, 255. i. Testimony of Accomplice. 255. j. Good Character of Accused, 255. 13. Conduct and Remarks of Judge, 255. 14. Fairness of Trial, 256. See Admissions and Declarations; Argu- ment and Conduct of Counsel; Bail; Burglary; Confessions; Conspiracy; Contempt; Embezzlement; Escape; Ex- tradition; False Imprisonment; False Pretenses; Fines; Forgery; Former Jeopardy; Gaming; Homicide; Indict- ments and Informations; Jury, 7, 17- 19, 21, 22, 24-27, 30, 32-34, 38, 40; Larceny; Prostitution; Perjury; Rape; Receiviag Stolen Goods; Robbery; Se- duction; Sentence and Punishment; Sodomy; Threats; Verdict; Witnesses. Stay of civil action pending prosecution, see Actions and Proceedings, 14. Admissions of co-conspirator, see Admis- sions and Declarations, 12. Errors available without exception in cap- ital cases, see Appeal and Error, 353. Appealability of decision on motion to strike judgment see Appeal and Error, 38. Right of accused to sit by counsel, see Appeal and Error, 211. Harmless error not ground for reversal, see Appeal and Error, 216. Disbarment proceeding not criminal, see Attorneys, 50. Crimes of auto drivers, see Automobiles, 63-67. Crimes against bankruptcy law, see Bank- ruptcy, 30-36. Common law, adoption, see Common Law, 4, 5. Right of accused to public trial, see Con- stitutional Law, 49-51. Liability of corporations for crime, see Corporations, 21-24. Attempt distinguished from preparation, see False Pretenses, 8. Entrapment as defense, see False Pre- tenses, 11. Swearing jury before and after arraign- ment, see Former Jeopardy, 3. PJea of jeopardy, see Former Jeopardy, 9-12. Taking jury to revival meeting, see Homi- cide, 14, 15. Presumptions in homicide, see Homicide, 16. Admissibility of evidence, see Homicide, 17. Weight and sufficiency of evidence, see Homicide, 49-59. Instructions, see Homicide, 60-72. Character of proceedings in juvenile courts, see Infants, 29. Restraining enforcement of statute, see Injunctions, 13-21. Restraining criminal prosecution, see In- junctions, 32-34. Restraining criminal acts, see Injunctions, 35. Responsibility of insane persons, see In- sanity, 19-24. CRIMINAL LAW. 247 Prosecutions under liquor laws, see In- toxicating Liquors, 88-109. Conviction as bar to civil action, see Judg- ments, 72. Conspiracy to raise prices, see Monopolies, 8. Violations of ordinances, see Municipal Corporations, 101-105. Parties, see Robbery, 3. Offenses against Sunday laws, see Sundays and Holidays, 10. Direction of conviction, see Verdicts, 27. 1. CRIMINAL STATUTES'. a. Stay of Operation of Statute. 1. Held, the rule announced being eon- fined strictly to a criminal case, that to convict a defendant for an offense com- mitted after a decision of the court hold- ing a criminal statute not applicable to the facts, and before its reversal in a sub- sequent decision, would be to violate the constitutional provisions against the in- fliction of cruel and unusual punishments. State v. Longino (Miss.) 1916E-371. (Annotated.) 2. Effect of Decision Subsequently Over- ruled. Miss. Code 1906, 1169, provides that it shall be a criminal offense for the president, cashier, teller, etc., conducting the business of receiving on deposit money, etc., to receive any deposit while knowing the institution is insolvent. The statute was judicially declared not to apply to certain acts, but subsequently the ruling of the court was reversed and such acts held a criminal offense under the statute. Between the two decisions defendants com- mitted such acts. Held, that a holding by the court whether a criminal statute is, or is not, applicable to a particular state of facts is within the spirit of the constitu- tional prohibition against the passage of ex post facto laws, the decision of a court in construing a statute being as much a part of the law of the land as a legis- lative enactment, unlike their decisions re- lating to the common law, which are mere evidence of the law, and that no convic- tion may be had under the statute in ques- tion for violation committed between the first and second decisions of the court. State v. Longino (Miss.) 1916E-371. (Annotated.) Note. Criminality of act committed after de- cision holding statute inapplicable and be- fore reversal of decision. 1916E-373. 2. JURISDICTION OF OFFENSES. 3. Offense Committed Partly in One State and Partly in Another. Under the provision of N. Y. Penal Law (Consol. Laws, c. 40), 1930, that a person who commits within the state any crime, in whole or in part, is liable to punishment within the state, it is not necessary to jurisdiction of the New York courts over a prosecution for obtaining money by false pretenses, based on acts committed partly in another state, that the transaction should constitute a crime under the law of the foreign state where part of the acts are committed; it being sufficient that the transaction would be a crime under the law of New Ybrk if committed entirely within this state. People v. Zayas (N. Y.) 1917E-309. (Annotated.) 4. Concurrent Jurisdiction of Boundary Waters Offenses Identity of Prohibition. Where defendant was convicted of fishing for salmon in the Columbia river without a license, under Ore. L. O. L. 5298, de- nouncing such an offense committed in any of the waters of the state, and where the statutory provisions of the state of Wash- ington, on the same point, in the exercise of its concurrent jurisdiction with Oregon over the Columbia river, contain prac- tically the same provisions, the emphasis being upon the fact of fishing without a license, conviction here is proper under the federal rule that, in cases of concur- rent jurisdiction, the statutory provisions of the two states must be practically iden- tical to have a conviction in either. State v. Catholic (Ore.) 1917B-913. (Annotated.) Note. Jurisdiction to try prisoner forcibly or unlawfully brought within jurisdiction. 1917D-229. 3. ELEMENTS OF CEIME. 5. Criminal Law Distinction Between Felony and Misdemeanor. Under Md. Code Pub. Gen. Laws 1904, art. 27, 17, providing the punishment for an assault with intent to rape, such offense is a mis- demeanor, though punishable, in the dis- cretion of the court, with death or im- prisonment in the penitentiary for 20 years, and not a "felony," since the fact that a crime is punishable in the peniten- tiary or is infamous does not make it a felony, and is not even an "infamous crime," which depends on the character of the crime, and not upon the nature of the punishment; and hence it is not neces- sary that accused shall be arraigned. Dut- ton v. State (Md.) 1916C-89. 6. Under Ariz. Pen. Code 1913, 16, 17, dividing crimes into felonies and mis- demeanors, defining a felony as a crime punishable by death or imprisonment in the state prison, and every other crime as a misdemeanor, the place of punishment fixes the grade of the crime, and the im- prisonment for a misdemeanor must be in the county jail, and, the prohibition amendment declaring a violation thereof, a misdemeanor fixes the county jail as the 248 DIGEST. 1916C 1918B. place of imprisonment. Gherna y. State (Ariz.) 1916D-94. 7. What Constitutes Crime. The hiring of a school teacher at less than the mini- mum wage, in violation of Iowa Acts 35th Gen. Assem. c. 249, section 4 of which pro- vides that any school officer violating the act shall be fined from $'2,1 to $100, is a "crime" within Code, 5092, defining a "crime" as an act committed in violation of a public law forbidding it, and is triable as a "misdemeanor" under Code, 5093, 5094, declaring a "felony" to be a public offense punishable by imprisonment ia. the penitentiary, and every other public of- fense a "misdemeanor," and section 4905, further defining a "misdemeanor" as the doing of any act prohibited by a statute which provides no penalty, it not being essential that the statute declare that its violation shall be a crime and the col- lection of the fine by civil action being impossible until the amount is determined in a criminal prosecution, section 5095 for- bidding punishment for a public offense except upon legal conviction. Bopp v. Clark (Iowa) 1916E-417. 8. Intent When Essential. Under the rule that, when an act forbidden by law is intentionally done, the intent to do the act is the criminal intent which makes the offense, the intent of milk dealers en- tering into an unlawful combination to raise the price is immaterial in determin- ing their guilt of a common-law conspiracy to raise the price. State v. Craft (N. Car.) 1917B-1013. 9. Enticement as Defense. In a prose- cution for conspiring to demand money wherewith corruptly to influence a city council, the defense generally available, where infringement of a property right is charged, that defendants were enticed to the commission of the crime, thus nega- tiving want of consent, an essential ele- ment, is not applicable, since the public, the injured party, had not consented. Hummelshime v. State (Md.) 1917E-1072. Notes. Responsibility of deaf and dumb persons for crime. 1917B-240. Inducement to commit offense with view to prosecution therefor as defense to such prosecution. 1916C-730. 4. PARTIES TO CRIME. 10. Principal in Second Degree. Under Cr. Code (Act March 4, 1909, c. 321, 35 Stat. 1152 [Fed. St. Ann. 1909 Supp. p. 495]), 332, providing that all aiders or abettors of any crime are principals, where defendant was charged with knowingly and fraudulently aiding and abetting a bank- rupt corporation, of which he was presi- dent and general manager, to conceal its assets from its trustee, it is not necessary that the corporation should be first con- victed before the conviction of accused. Kaufman v. United States (Fed.) 1916C- 466. 5. PRELIMINARY COMPLAINT AND EXAMINATION. 11. Waiver of Examination. Utak Const, art. 1, 13, provides that offenses heretofore required to be prosecuted by indictment shall be prosecuted by informa- tion after examination and commitment by a magistrate, unless the examination be waived by accused, with the consent of the state. Utah Comp. Laws 1907, 4670, which was in force before the adoption of the constitution, provides that the testi- mony of each witness in cases of homicide must be reduced to writing as a deposition by the magistrate, or under his direction. Held that, where accused with the consent of the state waived the preliminary exam- ination, he must be held to have waived the necessity of the magistrate's hearing any testimony as to the charge against him, so that there was no testimony to be heard or reduced to writing. State T. Mewhinney (Utah) 1916C-537. 12. Presumption Supporting Acts of Magistrate. In the absence of any show- ing to the contrary, it murt be presumed that the examining magistrate performed the duty, imposed on him by statute, to warn* one accused of crime of his right to the assistance of an attorney. State v. Mewhinney (Utah) 1916C-537. 13. Ordering New Complaint Filed. Where on a preliminary examination it de- velops that the crime charged in the com- plaint has not been committed, but that some other crime has probably been com- mitted, the magistrate may direct the county attorney to prepare a new com- plaint and direct the rearrest of accused and give him opportunity to either waive or insist on an examination on the new charge. State v. Pay (Utah) 1917E-173. 14. Preliminary Complaint. The com- plaint need not state the offense charged in technical language, nor in such specific terms as is required in an information, and is sufficient where the jurisdictional facts appear and the crime is stated in ordinary language. State v. Pay (Utah) 1917E-173. 15. Preliminary Examination. Under Utah Const, art. 1, 13, providing for the prosecution of offenses by information after examination and commitment by a magistrate, and Utah Comp. Laws 1907, 4604, 4610, 4615, defining a criminal com- plaint and prescribing its requisite, and sections 4657 and 4665, authorizing the issuance of a warrant and requiring the magistrate to read to accused the com- plaint before proceeding with the exam- CRIMINAL LAW. 249 ination, and sections 4675 and 4692, declar- ing where it appears from the examination that a public offense has been committed, and that there is sufficient cause to be- lieve accused guilty, the magistrate must hold him for trial, and that where one has been examined and committed the district attorney must file an information charging the offense for which accused is held to answer, or any other offense disclosed by the testimony, whether charged in the com- plaint or not, a criminal prosecution must be begun by a complaint containing the statutory requisite, and accused can only be held for trial after a preliminary exam- ination for the crime charged in the com- plaint or one included therein. State v. Pay (Utah) 1917E-173. 6. DEMURRER TO INDICTMENT. 16. Questions Raised by Demurrer. By direct provision of Iowa Code, 5328, de- murrer can present only the questions whether the indictment substantially con- forms to code requirements, and whether it pleads facts constituting a legal defense to the prosecution. State T. McAninch (Iowa) 1918A-559. 17. Objection on Ground of Duplicity. Duplicity in an indictment is not reached by demurrer. State T. McAninch (Iowa) 1918A-559. 7. RIGHTS OP ACCUSED. a. Right to Preliminary Examination. 18. The right of accused to a pre- liminary examination is a substantial one and refers to the charge stated in the complaint. State v. Pay (Utah) 1917E- 173. 19. Accused may waive his right to a preliminary examination. State v. Pay (Utah) 1917E-173. (Annotated.) 20. Notwithstanding Laws Wis. 1905, c. 63, amending Laws of 1899, c. 218, so as to give the district court concurrent jurisdic- tion with the municipal court of offenses arising within the county of Milwaukee the punishment of which does not exceed one year's imprisonment or a fine of $500, or both, no preliminary examination is re- quired for minor offenses, where the exam- ining magistrate has jurisdiction to try de- fendant for the offense charged. State v. Solomon (Wis.) 1916E-309. (Annotated.) 21. The right to a preliminary examina- tion is entirely statutory; the proceeding being unknown at common law. State v. Solomon (Wis.) 1916E-309. (Annotated.) 22. St. Wis. 1911, 4781 et seq. giving to persons charged with offenses not triable before a justice of the peace, the right to a preliminary examination, do not give such rifrht to one charged with an offense, the exclusive jurisdiction to try which was given to the district court by Laws 1899, c. 218. 5, and the exclusive jurisdiction to hold a preliminary examination for whicfi was given to the same court by Laws 1905, c. 63, since the statutory scheme for preliminary examinations contemplates that they be held in a separate court from the one which has jurisdiction to try the ease. State v. Solomon (Wis.) 1916E-309. (Annotated.) Notes. Right of accused person to preliminary examination. 1916E-312. Waiver of preliminary examination by accused person. 1917E-179. b. Time to Prepare for Trial. 23. Fixing Date of Trial. The part of an order transferring a criminal case from one district court to another which assigns the cause for trial on a designated future date, though not binding on the district court to which the case is transferred, is not prejudicial to accused who thereby ob- tained notice that the cause will likely be called for trial on the date fixed, and he cannot complaint because the trial pro- ceeded on that date without showing that he did not have time in which to prepare his defense. State T. Giudice (Iowa) 1917C-1160. 24. Information and Trial at Same Term, Comp. Laws N. Dak. 1913, 10628, provides that, during each term of the district court at which a grand jury has not been sum- moned, the state's attorney shall file in- formation against all persons accused of having committed a crime or public offense, and authorizes the filing of such an infor- mation and the trial of the defendant at such term, even though the preliminary ex- amination was held during such term of the court, provided that a reasonable time and opportunity is afforded for the prep- aration of his defense. State T. Kilmer (N. Dak.) 1917E-116. e. Right to Public Trial. 25. Exclusion of Public. In determining whether any part of the public shall be ex- cluded from the trial of a criminal case the trial court is allowed some discretion, and no exclusion should be permitted which might injuriously and improperly affect the prisoner, and under no circumstances should a trial be so conducted as to have the ap- pearance of a star chamber proceeding; and hence the trial of a charge of assault with intent to rape, held by the court in the petit jury room instead of the courtroom, and with the consent of defendant's attor- ney, where it does not appear that any one whom defendant or his attorney desired to 250 DIGEST. 1916C 1918B. be present was excluded, is not a depriva- tion of defendant's rights. Dutton v. State (Md.) 1916C-89. 26. In a criminal prosecution, the court made an order that on account of the na- ture of the case the bailiffs should not ad- mit any members of the public who were not already in the courtroom, and that per- sons then in the courtroom could not leave and return. The court excepted newspaper men andx attorneys. It is held that the court could not, under Mont. Const, art. 3, 16, exclude all members of the public on account of the nature of the case. State v. Keeler (Mont.) 1917E-619. (Annotated.) 27. What Constitutes. The statute re- quires criminal trials to be held in the courtroom provided by the county board. Neb. Rev. St. 1913, 1162. The law re- quires that trials be public, but this re- quirement is satisfied by admitting those who could conveniently be accommodated in the courtroom, where the law requires such trials to be held, without interrupting the calm and orderly course of justice. Roberts v. State (Neb.) 1917E-1040. 28. Public Trial. Under Mont. Const, art. 3, 16, declaring that in all criminal prosecutions accused shall have the right to a public trial, there is a presumption of prejudice where accused shows that he was denied a public trial. State v. Keeler (Mont.) 1917E-619. (Annotated.) Note. Right of criminal court to exclude per- sons from courtroom. 1917E-625. d. Right to be Present at Trial. 29. Proceedings in Absence of Accused. In a prosecution for libel, the action of the court, during one of the adjournments of the trial and in the absence of defend- ant, in addressing all of the jurors in at- tendance upon the court touching a matter foreign to defendant's case, was not error. State v. Haffer (Wash.) 1917E-229. e. Right to Inspect Evidence and Know Names of Witnesses. 30. Witness not Indorsed on Informa- tion. A witness whose name is not in- dorsed on the information may be exam- ined on behalf of the state in a criminal prosecution, where it is shown that the attorney for the defendant was given due notice of the state's intention to call such witness, and when, prior to the filing of the information, the prosecution, though it was aware that such witness had some knowledge of the occurrence, had no knowl- edge that his testimony would be in any way material to the issues. State v. Kil- mer (N. Dak.) 1917E-116. f. Arraignment and Plea. 31. Necessity of Presence of Counsel. Where defendant's counsel was granted ten minutes to confer with witnesses, and could not be found at the expiration of twenty-five minutes, whereupon the court proceeded to arraign the defendant, who was present, and whose counsel returned during the reading of the indictment and entered a plea of not guilty, the absence of counsel does not render the arraignment erroneous. Mason r. State (Tex.) 1917D- 1094. 32. Waiver. Failure to arraign a de- fendant formally is not a fatal objection, where such defendant was present in court and testified as a witness upon his trial in his own behalf, and was represented by counsel, and no objection is interposed to proceeding with the trial without such ar- raignment. State v. Klasner (N. Mex.) 1917D-824. (Annotated.) Note. Waiver of arraignment in criminal case. 1917D-829. g. Right to Confront Witnesses. 33. Private Examination of Witness. Under Md. Declaration of Rights, art. 21, providing that in all criminal prosecutions every one has the right to be confronted with the witnesses against him, the exam- ination of the prosecutrix in a trial for as- sault with intent to rape by the court out of the presence of the defendant, except as he was called to the door for identifi- cation, is a deprivation of right and re- versible error. Dutton v. State (Md.) 1916C-89. 34. Confrontation of Witnesses. The constitutional right of confrontation is satisfied when the advantage of seeing the witness face to face and the opportunity to cross-examine him has once been ac- corded the accused. Territory v. Curran (Hawaii) 1918A-234. h. Right to be Heard by Counsel. 35. Bight to Appear by Counsel at In- quest. A coroner's inquest is merely a preliminary investigation and not a trial involving the merits, and a suspected per- son has no right to appear by counsel and cross-examine the witnesses, as the only object of such a course would be to prevent a full' investigation, in so far as it might tend to incriminate him, thus defeating the purpose of the inquest. State T. Griffin (S. Car.) 1916D-392. (Annotated.) 36. Waiver of Rights. The transcript of the proceedings before an examining mag- istrate, affirmatively showing that the de- fendant "waived the service of an attor- ney," shows that defendant was apprised CRIMINAL LAW. 251 of his right to such services. State T. Mewhinney (Utah) 1916C-537. Notes. Eight of accused or suspected person to appear by counsel at coroner's inquest. 1916D-394. Eight of accused to consult with or sit by counsel during trial. 1916D-204. 8. EIGHT OF PRIVATE COUNSEL TO PROSECUTE. 37. Eight of Private Counsel to Assist Prosecution. A member of the bar pri- vately employed by citizens interested in the suppression of crime may, with the con- sent of the state attorney and the court, be permitted to participate in the prose- cution of a criminal cause in the circuit courts of this state, as assistant to the state attorney. Robinson v. State (Fla.) 1917D-506. (Annotated.) Note. Right of private counsel to assist prose- cution in criminal case. 1917D-512. 9. ELECTION BETWEEN COUNTS. 38. Eequiring Election. Although it may be the general rule in the case of a felony that the court will permit the prosecution to give evidence of only one felonious transaction, it is also the rule that when it appears on the opening of the case and during the trial that there is no more than one criminal transaction involved, and the joinder of the different counts is meant only to meet the various aspects in which the evidence may present itself, the court will not restrict the prosecuting officer to particular counts, and will suffer a general verdict to be taken on the whole. State v. Bickford (N. Dak.) 1916D-140. 10. EECEPTION OF EVIDENCE. 39. Order of Proof. The order of proof upon the trial of a cause is largely within the control of the trial judge, and his dis- cretion must largely control. State v. Bickford (N. Dak.) 1916D-140. 40. The order in which evidence will be introduced is in the discretion of the trial judge. People v. Becker (Kan.) 1917A- 600. 11. ADMISSIBILITT AND SUFFI- CIENCY OF EVIDENCE. (a) In General. 41. That Witness not Called was in Pay of District Attorney. Defendant cannot complain that he was not allowed to show that a witness for the state on the first trial, who denied his testimony on motion for new trial, and who did not testify at the second trial, but who immediately prior to the last trial was within the jurisdiction of the court, was in the pay and under the control of the district at- torney. People v. Becker (Kan.) 1917A- 600. 42. Order of Proof. It is not error to admit acts and declarations of conspirators in evidence before all proof as to con- spiracy is in; the court charging that the evidence was only admissible in case con- spiracy was shown. People T. Becker (Kan.) 1917A-600. 43. Statement of Prosecuting Attorney. In a criminal prosecution, evidence that the state's attorney, after first hearing the prosecuting witness' story, stated that there was no ground upon which to arrest the defendant, is irrelevant, and should not be permitted to go to the jury. Rig- gins v. State (Md.) 1916E-1117. 44. Negative Evidence. Such evidence is incompetent, because purely negative in character, and designed merely to show that the detective had been unable to dis- cover evidence of the defendant's guilt. People v. Eoach (N. Y.) 1917A-410. 45. Corroborative Evidence. Evidence that tracks were found leading to the place where the cow was killed is also admissible as tending to corroborate the testimony of the prosecuting witness. Lee v. State (Ariz.) 1917B-131. 46. Admission of Guilt by Third Person. Evidence of declaration of third person, tending to show he committed the homi- cide, is inadmissible. State v. Farnam (Ore.) 1918A-318. b. Identity of Accused. 47. Identification of Accused Sufficient. In trial for assault with intent to rob, evidence by the assaulted party that while he was driving home, about eleven o'clock at night, accused climbed on the back of his wagon and pulled him back, turning over the seat, and snatched out of his pocket a pocket-book containing money, and that he looked accused square in the face and recognized him in moonlight, al- though combated by evidence of accused that the assaulted party was under the influence of liquor, was sufficient to sup- port verdict based on identification of accused. Gordon v. State (Ark.) 1918A- 419. 48'. As to Identity of Accused. The identity of one charged with crime may be established by natural and reasonable in- ferences deducible from proven facts, and may rest wholly on circumstantial evi- dence. In re Hilton (Utah) 1918A-271. Notes. Finger prints. 1917A-417. Admissibility in criminal case of evi- dence obtained by requiring defendant to furnish shoe to compare with footprint. 1917D-237. 252 DIGEST. 1916C 1918B. c. Character or Reputation. 49. Good Character of Accused. In a prosecution for receiving the earnings of a common prostitute, testimony that ac- cused, a police officer, enjoyed a good repu- tation for being a faithful officer is prop- erly excluded, not being material to the offense charged. State v. Schuman (Wash.) 1918A-633. 50. Where the reputation for truth and veracity of one accused of crime was not questioned by the state and the crime did not involve his reputation for truth he cannot introduce evidence thereof. State v. Schuman (Wash.) 1918A-633. d. Testimony at Former Trial or on Pre- liminary Hearing. 51. Testimony at Former Trial. Ore. L. O. L. 1533, makes the rules of evi- dence in criminal cases the same as in civil cases, except as otherwise specially provided. Section 727 authorizes the tes- timony of a witness deceased or out of the state or unable to testify, given in a former action, suit, or proceeding be- tween the same parties, relating to the same matter, to be received. Const, art. 1, 11, guarantees the accused the right to meet the witnesses face to face. Held, that testimony of witnesses out of the state given at a former trial in a prosecu- 'tion for larceny, the witnesses then being face to face with accused, is admissible, so far as relevant, in a subsequent prosecu- tion, of the same defendant for polygamy. State v. Von Klein (Ore.) 1916C-1054. 52. The rule excluding the testimony given by a witness at a former trial, if the deposition could have been taken, is more strict in criminal than in civil cases. Levi v. State (Ind.) 1917A-654. (Annotated.) 53. The showing that witnesses who testified at a former trial of a criminal case were nonresidents at that time and had been ever since, that the prosecuting attorney knew where they were residing, but the only effort made to procure their attendance was the issuance of subpoenas, that the deposition of one of the witnesses was taken with the defendant's consent, but no effort was made to procure the deposition of the others, and no showing was made that the testimony of such wit- nesses was necessary, or that it could not be readily procured through other wit- nesses, was not a sufficient showing to authorize the court, in the exercise of its discretion, to admit the former testimony of such witnesses. Levi v. State (Ind.) 1917A-654. (Annotated.) 54. Testimony given at a former trial is admissible at a subsequent trial of a criminal case only when necessary to pre- vent the miscarriage of justice. Levi v. State (Ind.) 1917A-634. (Annotated.) 55. Admissibility of Former Testimony of Absent Witness. Const, art. 1, 12, giving an accused the right to be con- fronted with witnesses against him, is not violated by the admission of testimony of witnesses taken at the preliminary hear- ing, who were shown to have been absent from the state at the time of the trial. State v. Inlow (Utah) 1917A-741. 56. The absence from the jurisdiction of a witness for the prosecution, though only temporary, is a ground for the admis- sion of his testimony given at a former trial of the case when the defendant has opposed a postponement of the case and insisted upon an immediate trial. Terri- tory T. Curran (Hawaii) 1918A-234. (Annotated.) 57. The party offering the testimony of witnesses who testified at a former trial of a criminal case has the burden of show- ing affirmatively all the facts necessary to bring the evidence within the exception to the rule of exclusion. Levi v. State (Ind.) 1917A-654. (Annotated.) e. Proof of Other Crimes. 58. As Incident to Eelevant Evidence. In a prosecution for polygamy, where a witness, having referred to the plural wife as Mrs. L., stated that she was known also as E. N., the que i ' : on whether she was the same E. N. who had complained against the defendant charging him with the larceny of $3,300 worth of diamonds is admissible for the purpose of identifi- cation and is not objectionable as tending to show another offense. State v. Von Klein (Ore.) 1916C-1054. 59. Proof of Other Offenses. In a prose- cution for extortion by threatening to ac- cuse another of the larceny of a cow, where the theory of the prosecution was that defendant compelled the prosecuting witness to kill a cow belonging to another so that defendant and his confederates could accuse him of the crime, and then extorted money from him to forego mak- ing the accusation, evidence that the de- fendant pointed a gun at the witness, and thereby forced him to kill the cow, is ad- missible as part of the transaction, al- though it tends to show the commission of another crime by defendant. Lee v. State (Ariz.) 1917B-131. f. Conduct of Accused. 60. Folly of Acts Attributed to Accused. A jury is not bound to hold that a speci- fied event has not occurred because its occurrence involves unwise or foolish or CRIMINAL LAW. 25;: blundering conduct on the part of the ac- cused person. People v. Becker (Kan.) 1917A-600. 61. Conduct of Accused After Offense. Where accused was informed shortly after the infliction of fatal wounds of dece- dent's death and of the fact that decedent had written accused's name, and that ac- cused stated that he would go to a certain place, evidence that accused dressed in a hurry is competent as showing. his conduct immediately after the offense. State v. Giudice (Iowa) 1917C-1160. 62. Refusal to Come to State Without Requisition. In a prosecution for larceny of a cow, admission of evidence that de- fendant refused to come to the state with- out requisition and was arrested and confined in another state pending requisi- tion is error, since it was his right so to do, and would not show guilt or guilty conscience. Harris v. State (Wyo.) 1917A-1201. 63. In a prosecution for larceny of a cow, exclusion of defendant's explanation of his refusal to come to the state with- out requisition, after admission of evi- dence showing such refusal and his arrest on account thereof, is error. Harris v. State (Wyo.) 1917A-1201. 64. Appearance and Manner of Accused. In a prosecution for homicide, testimony by a witness that the defendant stated to him the evening after the homicide, and before his arrest, that he had not been in the city where the homicide occurred, and that while he was talking defendant was nervous and excited and had a haggard appearance, which was unusual for him, is admissible. Mason v. State (Tex.) 1917D- 1094. g. Sufficiency of Evidence. 65. Degree of Proof. In a prosecution for crime, the defendant's guilt must be proved beyond a reasonable doubt. State v. Tetrault (N. H.) 1918B-425. 66. Verdict Sustained. The remaining assignments of error are without substan- tial merit. The verdict is supported by the evidence. Bird v. State (Ga.) 1916C- 205. 67. Proof of Motive. Proof of the ex- istence of a particular motive is not essen- tial to establish the guilt of a person ac- cused of crime. People v. Becker (N. Y.) 1917A-600. 68. Corroboration of Accomplice. Un- der Kan. Code Cr. Proc. 399, providing that a conviction cannot be had on the testimony of an accomplice unless corrob- orated by other evidence tending to con- nect the defendant with the commission of the crime, it is not required that the whole case shall be proved outside the testimony of accomplices, but the law is complied with if there is some evidence fairly tending to connect defendant with the commission of the crime, so that his conviction will not rest entirely on the evidence) of the accomplices. People r Becker /(Kan.) 1917A-600. 69. Penalties. A request for an instruc- tion that the crime alleged in the petition must be proved beyond a reasonable doubt is properly refused. All that is required of the state in civil actions for the recovery of a penalty under section 4191, Comp. Laws Okla. 1909 (Rev. Laws 1910, sea. 3619), is to prove the crime by a pre- ponderance of .the evidence. Hammett v State (Okla.) 1916D-1148. 70. Degree of Proof. To justify a vet- diet of guilty, it is not sufficient that the evidence create a suspicion or probability of guilt; it must exclude every reason- able hypothesis, except that of guilt. Wooden v. Commonwealth (Va.) 1917D- 1032. 71. Evidence Sufficient. The evident sustains the verdict. State T. Ward (Minn.) 1916C-674, h. Testimony of Accomplice. 72. Necessity of Corroboration. A per- son may be convicted upon the unsup- ported testimony of an accomplice, though the jury should be cautious, in so convict- ing. State v. Shaft (N. Car.) 1916C-627. 73. On a criminal trial, the testimony of an accomplice is competent. State v Shaft (N. Car.) 1916C-627. i. Alibi. 74. Evidence in a trial for homicide held to make the defense of alibi a ques- tion for the jury. People v. Roach (N Y^) 1917A-410. 12. INSTRUCTIONS, a. In General. 75. Requests- Covered by General Charge. The requests to charge the jury were substantially covered by the general charge of the court, and it was not error to decline them. Bird v. State (Ga ) 1916C-205. 76. As to Duty of Jurors to Consult and Deliberate. In a prosecution for larceny an instruction that it is the duty of each juryman to give careful consideration to the views his fellow jurymen present upon the testimony, that he should not shut his ears, and stubbornly stand upon the posi- tion he first takes, and that it should be the object of all jurors to arrive at a com- mon conclusion, and to deliberate together with calmness, and that it was their duty to agree upon a verdict, if that was possi- ble, is not erroneous, though it failed to 254 DIGEST. 1916C 1918B. state that the verdict should be that of each juror, and should be considered with candor. Harris v. State (N. Y.) 1917A- 1201. 77. Refusal of Request Charge Sub- stantially Given. It is not error to refuse a requested charge substantially covered by a charge given. Longmire v. State (Tex.) 1917A-726. 78. Urging Jury to Agree. For the court in a murder case to say in its charge that, unless the jury do its duty all labor expended would be lost, and that counsel and court have tried to perform their duty, and let it not be said that the jury neglected to perform theirs, and that he hoped they would endeavor to arrive at a conclusion, and that it would be based on evidence and in accord with their con- science, is not error. People v. Becker (Kan.) 1917A-600. 79. Test of Fairness. That the appel- late court, on reading the entire charge in a murder case, is unable to determine whether the trial court thought defendant guilty or innocent, is a sufficient test of its fairness. People v. Becker (Kan.) 1917A-600. 80. Applicability to Evidence. An in- struction is not erroneous because it is based on one of the possible interpreta- tions of an ambiguous document in evi- dence, particularly where there is other evidence which unequivocally bears that interpretation. Partridge v. United States (D. C.) 1917D-622. 81. Failure of Prosecution to Call Wit- ness. In a trial for murder defendant's requested charge that since the exact time when deceased was killed was material, the state's failure to call his son, who had lived with him, required the inference that his testimony, if given, would have shown beyond a reasonable doubt that deceased was killed before 10 P. M. of the day on which he was murdered, is too broad to justify the court in charging it. People v. Roach (N. Y.) 1917A-410. 82. Defining Unrelated Crime. In a prosecution for extortion by a threat to accuse another of a crime as defined by Ariz. Pen. Code 1913, 513, subd. 2, it is error for the court to read to the jury subdivisions 1, 3, and 4 of that section defining extortion bv other threats. Lee v. State (Ariz.) 1917B-131. 83. Malicious Mischief. There was no error in rulings in the admission or rejec- tion of evidence, or in failing to give a requested instruction. State v. Ward (Minn.) 1916C-674. b. Reasonable I>oubt. 84. Definition of Reasonable Doubt. An instruction that a reasonable doubt in the jury box is exactly the same kind of reasonable doubt that an honest man meets up with in human life is not error. State T. Pitt (N. Car.) 1916C-422. 85. Application to Particular Issue. Where the court applies the doctrine of reasonable doubt to the whole case and gives an approved charge on circumstan- tial evidence, it is not necessary to apply the law of reasonable doubt to each fact in the chain of circumstances. Mason T. State (Tex.) 1917D-1094. 86. As to Degree of Offense. A charge that the jury could not convict of the high- est offense charged, and to acquit of that crime, unless satisfied beyond a reasonable doubt that accused was guilty of that crime, with a similar charge as to each of the included offenses, concluding with a charge to acquit accused if they found none of the offenses proved beyond a rea- sonable doubt, sufficiently charges that, if there was a reasonable doubt as to guilt of one of the offenses included, it should be dropped, and the next in order inquired into. State v. Ashbury (Iowa) 1918A-85P. c. Presumption of Innocence. 87. Effect of Proof of Good Character. The defendant is presumed innocent, even where evidence of his good character is not offered, though evidence of good char- acter, when considered in connection with all the other evidence, may create in th minds of the jurors a reasonable doubt, when without such evidence none would exist. People T. Roach (N. Y.) 191 7 A- 410. d. Failure of Accused to Testify. 88. Comment on Scope of Testimony of Accused. An accused who takes the stand in his own behalf and voluntarily testifies for himself may not stop short in his testimony by omitting and failing to ex- plain incriminating circumstances and events already in evidence in which he participated, and concerning which he is fully informed, without subjecting his silence to the inferences naturally to b drawn from it, and justifying comment by the court in his charge to th effect that the jury may take this omission into con- sideration in reaching a verdict. Camin- etti v. United States (U. S.) 1917B-1168. e. Corroboration of Accomplice. 89. Where the trial judge is satisfied that there is some evidence corroborative of the testimony of an accomplice, then it is for the jury to determine whether the corroboration is sufficient to show guilt. People v. Becker (Kan.) 1917A-600. f. Credibility of Accused. 90. Singling Out Testimony. While an instruction upon the weight and credibil- CRIMINAL LAW. 255 ity to be given testimony may be ab- stractly correct, it is error to single out some particular witness or evidence for its application. State v. Ashbury (Iowa) 1918A-856. g. Circumstantial Evidence. 91. Where one charged with burglary admits the entry and the subsequent lar- ceny, but denies that he intended to com- mit larceny at the time of the entry, it is not necessary for the court to charge that, in order to convict where the only evi- dence of intent is circumstantial, the cir- cumstances must be such as to exclude every reasonable hypothesis except that of guilt. State v. Lapoint (Vt.) 1916C- 318. 92. As to Circumstantial Evidence. On a criminal trial, the modification of an in- struction that, where the state relies upon circumstances to establish defendants' guilt, it must prove each individual cir- cumstance so relied on to the satisfaction of the jury to a moral certainty or beyond a reasonable doubt, or that the jury must disregard any such circumstances from further consideration, by adding that the force of all circumstances is with the jury, is not erroneous; the modification not be- ing confusing or misleading but empha- sizing the proposition that the force and effect of the testimony is to be determined by the jury. State v. Griffin (S. Car.) 1916D-392. h. Capacity of Accused. 93. Capacity to Commit Crime. It is not error for the court to refuse to hold that a deaf mute was incapable of com- mitting a murder. Belcher v. Common- wealth (Ky.) 1917B-238. (Annotated.) 94. Whether a deaf mute was mentally incapable of committing a murder is, on conflicting evidence, a question peculiarly for the jury. Belcher v. Commonwealth (Ky.) 1917B-238. (Annotated.) i. Testimony of Accomplice. 95. Failure to Give Cautionary Instruc- tions. A conviction under the U. S. White Slave Traffic Act of June 25, 1910 (36 Stat. at L. 825, c. 395, Fed. St. Ann. 1912 Supp. p. 419), making criminal the transportation or the causing to be trans- ported, or the obtaining, aiding, or assist- ing in the transportation in interstate commerce of women or girls for the pur- pose of prostitution, debauchery, or other immoral purposes, will not be reversed be- cause of the refusal of the trial court to instruct the jury that the testimony of the women was that of accomplices, and was to be received with great caution, and to be believed only when corroborated by other testimony. Caminetti v. United States (U. S.) 1917B-1168. j. Good Character of Accused. 96. In an instruction, that when a per- son is charged with the commission of a crime the law presumes that he is a man of /average" character and that the fail- ure to call witnesses to prove his general good character raises no presumption against it, the use of the word "average" in place of the usual adjective "good" is not prejudicial. State v. Mewhinney (Utah) 1916C-537. 97. As to Effect of Proof of Good Char- acter. In a trial for murder, the refusal to charge for defendant that his unques- tioned good character is presumptively evidence of his innocence is not error, when considered in connection with a charge that evidence of his good character in itself may be sufficient to create a reasonable doubt, and that he is presump- tively innocent until the proof shows otherwise. People v. Boach (N. Y.) 1917A-410. 13. CONDUCT AND EEMAEKS OF JUDGE. 98. The judge making an order to keep the jury together during a murder trial should assume the responsibility of the or- der, and not indicate that the order is made at the instance of the state or ac- cused. State v. Giudice (Iowa) 1917C- 1160. 99. Limiting Time for Argument. It is within the discretion of the trial court to limit the time for argument in a criminal case. Samuels v. United States (Fed.) 1917A-711. (Annotated.) 100. Comment on Evidence. Where the only evidence that the prosecuting wit- nesses used drugs was hearsay, the court's remark in excluding medical testimony of the effect of the use of drugs upon the mind, that there was no testimony that any one of the witnesses was an habitual user of drugs, is not objectionable as a comment upon the evidence. State v. Schuman (W T ash.) 1918A-633. 101. Rebuke to Witness, Where the judge, following a question to a witness, stated that it looked like a man who had been justice of the peace ought to have sense enough to answer the questions asked, the statement being a reprimand addressed solely to the witness and not to the jury, and having no bearing upon his credibility, is within the court's proper, function. Patterson v. State (Ala.) 1916C-968. 102. Comment on Evidence. A remark by the trial judge in overruling an objec- tion to a certain question, that it was a part of the res gestae, is not a comment on the weight of the testimony. Mason v. State (Tex.) 1917D-1094. 256. DIGEST. 1916C 1918B. 103. Restraining Misconduct of Counsel. A bill of exceptions complaining of the action of the court in refusing to permit defendant's attorney to state reasons for objection to testimony and upon his insist- ing, ordering him to sit down and there- after/ordering the sheriff to sit him down, presents no error, where the bill shows that the same objections had been made to the testimony of other witnesses for reasons then stated, and the court quali- fied the bill by adding that the counsel gave him considerable trouble -and would not stop talking when commanded to do so. Mason v. State (Tex.) 1917D-1094. 104. A refusal to require that the dis- trict attorney occupy a place on the floor of the courtroom where other counsel sat, instead of sitting in the space between the bench and the bar, according to an estab- lished custom, was not error. Common- wealth v. Boyd (Pa.) 1916D-201. 105. Questioning Accused Before Sen- tence. When the prisoner is esked if he has anything to say before sentence is passed the proper practice is to note such, inquiry in the record. Dutton v. State (Md.) 1916C-89. (Annotated.) Note. Effect of failure to ask convicted per- son if he has anything to say before sentence. 1916C-95. 14. FAIRNESS OP TRIAL. 106. Prejudicial Influences. A murder trial is not rendered unfair or staged in a hostile atmosphere because before trial newspaper articles appeared accusing de- fendant's brother with tampering with witnesses, and defendant's counsel moved for postponement and to punish the dis- trict attorney for contempt, as having been the author of them, which motions were denied, as without evidence to sup- port them, or because a newspaper, during the selection of the jury, published an ar- ticle claimed to be the opening address of the prosecuting attorney, for which the newspaper was fined, all of which pro- ceedings were had in chambers, and no objections being made to the jurors as selected. People v. Becker (Kan.) 1917A- 600. 107. Latitude Allowed Parties. Defend- ant is not denied a fair trial because in exceptional instances greater latitude was allowed the district attorney on cross- examination of witnesses than was al- lowed defendant's counsel. People v. Becker (Kan.) 1917A-600. CRIMINAL LIBEL. See Libel and Slander, 165-167. CRIMINAL NEGLIGENCE. See Automobiles, 63. CEOPS. Parol reservation, see Frauds, Statute of, 10. Sale by parol, see Frauds, Statute of, 10, 11. Tenant's right as against landlord's ven- dee, see Landlord and Tenant, 53. 1. Injury to Crop Measure of Dam- ages, In an action for loss of growing crops caused by defendant's cutting off plaintiff's water supply, the measure of damages is the reasonable value of the crops when the damage occurred, not the rental value of the land. North Sterling Irrigation District v. Dickman (Colo.) 1916D-973. 2. Sale Apart from Soil. The title to growing crops passes to the purchaser be- fore severance from the soil, being an ex- ception to the rule that a chattel sold, which is annexed to the soil, would remain a part of the realty until after severance Wetkopsky v. New Haven Gas Light Co. (Conn.) 1916D-968. CROSS-BILL. See Equity, 15, 16; Quieting Title, 10, 11. CROSS-ERRORS. See Appeal and Error, 79-81. CROSS-EXAMINATION. Of witness, see Witnesses, 61-81. CROSSINGS, See Automobiles, 16, 18, 21, 51. CRUEL AND UNUSUAL PUNISHMENT. See Sentence and Punishment, 4, 13-17. CRUELTY. See Divorce, 34-37. CURTEST. Sale of cnrtesy interest, effect on title, see Judicial Sales, 5. CUSTODY OF JURY. See Jury, 29-35. CUSTOM. See Usages and Customs. CY PRES. See Charities, 9. DAMAGED GOODS. Consignee's duty to accept, see Carriers of Goods, 2. DAMAGES. 257 DAMAGES. 1. Exemplary Damages, 257. 2 Mitigation of Damages, 257. 3. Measure and Elements of Damages, 257. a. In General, 257. b. In Actions for Breach of Contract, 258. c. In Actions for Personal Injuries, 258. d. In Actions for Injuries to Property, 258. e. In Actions for Breach of Covenant, 259. 4. Pleading, 259. 5. Evidence, 259. a. Admissibility, 259. b. Sufficiency, 259. c. Burden of Proof, 259. 6. Instructions, 259. 7. Verdict, 259. a. Excessive Damages, 259. (1) Review in General, 259. (2) Power of Court to Order Ee- mittitur, 260. (3) What are Excessive Damages, (a) Personal Injuries, 260. (b) Death by Wrongful Act, 260. (c) Assault, 260. (d) Libel and Slander, 260. (e) Alienation of Affections, 261. (f) Action Against Tele- graph Company, 261. (g) False Imprisonment, 261. (h) Eape, 261. (i) Malpractice, 261. (j) Criminal Conversation, 262. (k) Malicious Prosecution, 262. See Assault, 14-17; Automobiles, 52-56; Contracts, 63-77, 95, 96; Conversion, 9-13; Crops, 1; Death by Wrongful Act, 45-53; Ejectment, 4; False Im- prisonment, 5-10; Malicious Prosecu- tion, 29-35; Eeplevin, 5-11; Specific Performance, 10, 11; Trespass, 10-12. Duty of adjoining owner to minimize damages, see Adjoining Landowners, 10. Damages in action by adjoining owner, tee Adjoining Landowners, 14-17. Harmless error in admitting evidence, see Appeal and Error, 240. In breach of promise suits, see Breach of Promise of Marriage, 15-17. In actions against carriers, see Carriers of Goods, 41-45. Measure of damages for breach of cove- nant, see Deeds, 85. Compensation in condemnation, see Emi- nent Domain, 29-55. Penalty for failure to pay loss, see Fire Insurance, 46. In action for criminal conversation, see Husbnnd and Wife, 67. 17 For wrongful eviction, see Landlord and Tenant, 42, 43. Effect of malice, see Libel and Slander, 8, 9, 13-15, 136, 151. Nominal damages, see Libel and Slander, 115. Punitive damages, see Libel and Slander, 8, 9, 162. Excessive damages, see Libel and Slander,; 155. Mitigation, see Libel and Slander, 157-160. In proceedings under Employers' Liability Act, see Master and Servant, 93, 94. Measure of damages for tort committed outside state, see Master and Servant, 370. In action against cotenant for mining, see Mines and Minerals, 8. Treble damages for injury under Sherman Act, see Monopolies, 27. In malpractice action, see Physicians and Surgeons, 43. Special damages how pleaded, see Plead- ing, 9. Pleading to warrant exemplary damages, see Pleading, 10. Measure for breach of warranty, sea Sales, 37, 38, 42, 44, 47. Measure of damages for collision, see Ships and Shipping, 1, 3. Bight of abutting owner on change of grade, see Streets and Highways, 11, 13, 14. In action for delay of telegram, see Tele- graphs and Telephones, 35. For vendor's breach, see Vendor and Pur- chaser, 15. 1. EXEMPLARY DAMAGES. 1. Exemplary Damages. Exemplary damages cannot be recovered in an action for the breach of a contract by a physician to attend a patient. Hood T. Moffett (Miss.) 1917E-410. (Annotated.) 2. Elements Considered Wealth of De- fendant. Where, under the pleadings of a case, exemplary damages may be allowed, the pecuniary ability of the defendant is a proper matter for the consideration of the jury. Dwyer v. Libert (Idaho) 1918B- 973. Note. Exemplary damages in action on con- tract other than contract to marry. 1917E-412. 2. MITIGATION OF DAMAGES. 3. Sick Benefits as Offset. An instruc- tion, in an action prosecuted by an admin- istrator of a decedent sustaining a per- sonal injury, that in assessing the damages defendant was entitled to credit for any amount decedent might have received by way of sick benefits on account of his in- juries was properly refused, because al- lowing a credit to defendant for sick bene- fits, though he had not contributed there- to. Cincinnati, etc. B. Co. v. McCullom (Ind.) 1917E-1165. 258 DIGEST. 1916C 1918B. 3. MEASURE AND ELEMENTS OF DAMAGES, a. In General. 4. Loss of Earning Capacity. One re- ceiving personal injuries because of an- other's negligence is entitled to damages for any disability he has sustained, includ- ing loss of earning capacity. Miller v. Delaware Eiver Trans. Co. (N. J.) 1916G- 165. 5. Where disability to labor, etc., is clearly proved in a personal injury action, the jury may award a reasonable sum therefor, irrespective of whether the in- jured person is shown to have any definite income. Miller v. Delaware Eiver Trans. Co. (N. J.) 1916C-165. 6. Personal Injury. The damages re- coverable in actions for personal injuries are for all the legal and natural conse- quences proximately resulting from the negligence alleged, though the particular form or nature of the results were not contemplated or foreseen. King v. Cooney- Eckstein Co. (Fla.) 1916C-163. b. In Actions for Breach of Contract. 7. Loss of Profits. Recovery may be had for loss of profits occasioned by breach of contract, where the business of which plaintiff was deprived was contemplated or can reasonably be presumed to have been contemplated by parties when the contract was made, and it is reasonably certain that gain or profit would have been derived therefrom, although the amount of such gain may be uncertain. McGinnis v. Studebaker Corporation (Ore.) 1917B- 1190. 8. Humiliation from Eviction. A strik- ing employee, evicted from a house occu- pied by him as part compensation for his services, is not entitled to damages for the mortification, humiliation, and injured feelings caused by having his household effects put into the street in the presence of onlookers, where it appears that most of the onlookers were strikers or sympa- thizers with the strikers and with plain- tiff. Lane v. Au Sable Electric Co. (Mich.) 1916C-1108. 9. Loss of Profits. Where plaintiff agrees to perform certain work for defend- ant and is prevented from doing so by de- fendant's failure, he is entitled to recover the profits which the evidence makes it reasonably certain that he would have made if the defendant had carried out his i-ontract. Streudle v. Leroy (Ark.) 1917D- 618. 10. Market Value What Constitutes. Where a manufacturer and wholesaler lo- cated in one city sells goods to a retailer located in another, the market value at the former city, plus the cost of transporta- tion to the buyer, is presumptively the market value at the retailer's city. Her- man & Ben Marks v. Haas (Iowa) 1917D- 543. 11. Mental Anguish. Where a physician breached a contract to treat a patient and physical pain resulted, damages may be recovered for mental anguish accompany- ing it. Hood v. Moffett (Miss.) 1917E- 410. c. In Actions for Personal Injuries. 12. Pain and Suffering. Plaintiff, in an action for injury from being struck on the fcot by a flying lump of coal from de- fendant's tender, making an operation necessary and which would confine him to his bed for several weeks, may recover for suffering which resulted or will rea- sonably result in the future from the in- jury. St. Louis, etc. R. Co. v. Armbrust (Ark.) 1917D-537. 13. Consideration of Life Expectancy. In an action for damages from the loss of an eye, the court charged that, if the jury were reasonably satisfied from the evi- dence that plaintiff was permanently in- jured then he was entitled to recover "such a sum as the evidence reasonably satisfies you his earning capacity has been de- creased, as placed at interest at 8% per annum will by taking a part of the prin- cipal and all of the interest each year, at the end of his life expectancy as shown by the American Experience Tables of Mortality that have been introduced in evidence, leave nothing." It is held that this was error, as the rule that the court was attempting to state is applicable only to cases of death, and the measure of dam- ages for a permanent injury not resulting in death is compensation for the disabling effect of the injury, past and prospective, including damages for loss of time and the incapacity to do as profitable labor as before the injury, as well as the mental and physical suffering. Louisville, etc. R. Co. v. Carter (Ala.) 1917E-292. 14. Effect of Previous Partial Disability. In an action for injuries to plaintiff's left eye, evidence as to the condition of his right eye subsequent to the injury was ad- missible, since, if his right eye was dis- eased or defective, the consequences to follow from the complete loss of his left eye would be more grave and damnifying, while, if the diseased or defective condi- tion of the right eye was aggravated by the injury to and loss of the left eye, this is a proper fact for the jury's considera- tion in ascertaining the damages. Louis- ville, etc. R. Co. v. Carter (Ala.) 1917E- 292. d. In Actions for Injuries to Property. 15. Injury to Land by Seepage. The measure of damages to land caused by seepage is the difference between the value of the land before and after the injury, not the reasonable cost of draining the land, DAMAGES. 259 though evidence of such cost is admissible as an aid in determining the value of the land after the seepage. North Sterling Irrigation District v. Dickman (Colo.) 1916D-973. Note. Bight to recover damages for loss of use in case of injury to article used for pleas- ure. 1917A-127. e. In Actions for Breach of Covenant. 16. Loss of profits, when they can be ascertained, is a proper measure of dam- ages where by the act of a lessor the ten- ant is deprived of the use and occupation of the premises covered by the lease. Stewart v. Murphy (Kan.) 1917C-612. 4. PLEADING. 17. Impotency. In an action for per- sonal injuries under a petition alleging that plaintiff's body was severely and perma- nently wounded, bruised, etc.; that the bones, flesh, and ligaments of his hips, pel- vis, legs, and ankle were broken, bruised, etc.; that he suffered great bodily and mental pain and anguish as a result there- of; that he was disabled and prevented from attending to his business affairs, or doing anything towards gaining a liveli- hood; and that he was permanently in- jured and crippled for life and had suffered and would continue to suffer great bodily pain, annoyance, inconvenience, and ex- pense evidence is not admissible that the injuries resulted in impotency, as the peti- tion neither alleged such injury nor con- tained an allegation of a general nature embracing it within its terms, and, where conditions or diseases will not necessarily result from the injuries, they must be pleaded. Hall v. Manufacturers' Coal, etc. Co. (Mo.) 1916C-375. (Annotated.) Note. Necessity that impotency be pleaded specially in action for personal injuries. 1916C-383. 5. EVIDENCE, a. Admissibility. 18. Mortality Tables. In an action for a personal injury consisting of the loss of an eye, mortality tables were admissible in connection with evidence tending to show decreased earning capacity on the question of probable life expectancy; the injury being permanent. Louisville, etc. B. Co. v. Carter (Ala.) 1917E-292. 19. Damage to Other Property. Where plaintiff had become the owner of two con- tiguous tracts before the drying up of the spring on one of them by mining, evidence of damages to the other tract resulting from such injury was competent uoon the issue of damages. Stonegap Colliery Co. v. Hamilton (Va.) 1917E-60. b. Sufficiency. 20. Vajue of Lost Time. A jury should be given * some substantial evidence upon questions that are not matters of common knowledge, and physicians' charges and the value of lost time are not such matters. Florida East Coast B. Co. v. Carter (Fla ) 1916E-1299. c. Burden of Proof. 21. In an action for damages, the burden is upon the plaintiff to prove by a pre- ponderance of the evidence each element of damage sustained. If it appears that the verdict includes an item of damage not so proved, a remittitur will be required. Kriss v. Union Pacific B. Co. (Neb.) 1918A- 1122. 22. Cause of Injury. In an action for personal injuries, plaintiff, to sustain the burden resting upon him, must introduce testimony making it more probable that the conditions on account of which a re- covery is sought were caused by the acci- dent than that they were due to some other cause. Blair v. Seitner Dry Goods Co. (Mich.) 1916C-8S2. 6. INSTBUCTIONS. 23. In an action for damages for per- sonal injuries, it is error to instruct that the jury may award such damages as they think plaintiff is entitled to recover; the correct rule of recovery being such an amount, if anything, as is established by a preponderance of the evidence. Bugen- stein v. Ottenheimer (Ore.) 1917E-953. 24. An instruction on the measure of damages, erroneous because not telling the jury that their finding must be based OB evidence, is not prejudicial error, as the oath of the juror is sufficient to compel him to conform his finding to the evidence. Weigel v. McCloskey (Ark.) 1916C-503. 25. Requiring Verdict to be Based on Evidence. An instruction on the measure of damages, which does not tell the jury that their finding must be based on the evi- dence, is erroneous. Weigel v. McCloskey (Ark.) 1916C-503. 7. VEEDICT. a. Excessive Damages. (1) Beview in General. 26. As such instruction gives a totally inapplicable measure or rule of damages, and necessarily implies that plaintiff's life expectancy was as shown by the mortality tables, whereas those tables are only evi- dence to be considered in ascertaining the probable life expectancy, it is prejudicial to the defendant's substantial rights. Louis- ville, etc. E. Co. v. Carter (Ala.) 1917E- 292. 260 DIGEST. 1916C 1918B. 27. Instruction Allowing Harmless. The giving of instructions authorizing the al- lowance of punitive damages is not preju- dicial where the verdict shows that only actual damages were awarded. Corry v. Sylvia Y Cia (Ala.) 1917E-1052. for labor for a year, and his injury ap- pears to be permanent, at least unless re- lief can be secured by an operation. Row- lands r. Chicago, etc. B. Co. (Wis.) 1916E- 714. (2) Power of Court to Order Bemittitur. 28. Excessiveness of Damages. It is held that the verdict of the jury and judg- ment of the court awarding plaintiff the sum of $12,000 was excessive in view of all the facts and circumstances in evidence, ::nd that said verdict and judgment be reduced to $8,640; or that upon failure of plaintiff to accept such modified judgment, the judgment be reversed in toto, and a new trial granted. McAlinden v. St. Marie's Hospital Association (Idaho) 1918A-380. (Annotated.) (3) What are Excessive Damages, (a) Personal Injuries. 29. Internal Injury and Loss of Leg. In view of the conflict in medical testimony ( as to the permanency of the injuries of a servant 54 years of age, whose injuries consisted of paralysis of one leg and in- ternal injuries, it is held that an award of $5,000 could not be determined exces- sive. Remsnidcr v. Union Savings, etc. Co. (Wash.) 1917D-40. 30. Verdict not Excessive. A verdict of $5,000 for an injury to plaintiff's foot, causing intense pain, and which in the four months between the injury and the trial had but little improved, necessitating an operation which might result in a com- plete recovery, though it would leave the foot permanently weaker, so that plain- tiff, who had been earning $1.50 a day, has been unable to work since, is not excessive. St. Louis, etc. B. Co. v. Armbrust (Ark.) 1917D-537. 3.1. A verdict for $3,202 for injuries to a child is not excessive, where his left hand was so injured that it was necessary to amputate the little finger, and where the hand became stiff and lacked the power of gripping, and where it is doubtful whether the hand will ever be as strong as a normal hand. Gregg v. King County (Wash.) 1916C-135. 32. A verdict awarding $27,000 to a rail- road engineer thirty-two years old for injuries permanently incapacitating him from labor will not be set aside as exces- sive. Canadian Pacific By. v. Jackson (Can.) 1916C-912. (Annotated.) 33. Eight thousand seven hundred dol- lars is not an excessive recovery for personal injury to a locomotive fireman twenty-eight years old, who earned $125 a month when injnrecl, where his skull was fractured, he was wholly incapacitated (b) Death by Wrongful Act. 34. A verdict of $20,000 against a rail- road for the wrongful killing of a man, twenty-eight years of age, in robust health, and earning $100 a month, who left a widow and three children, aged, respec- tively, six years, two years, and six months, is not excessive. Illinois Central R. Co. v. Causey (Mis.) 1917A-1281. 35. When from the evidence th proba- bilities of financial support from the son, had he lived, could not exceed $4,000, a verdict for $6,000 should be reduced to the former sum. Denver v. Atchison, etc. B. Co. (Kan.) 1917A-1007. 36. A verdict for $18,000 for the wrong- ful death of a street car passenger, who was married and left three girls of tender age, and a husband, and who was an ac- countant and aided her husband in figuring on contracts in his business, and was work- ing to help maintain the home, is not excessive. Froeming v. Stockton Electric B. Co. (Cal.) 1918B-408. 37. In an action for death, when struck by an automobile, of a child eight years old, of ordinary brightness, having an ex- pectancy of life over forty-nine years, ver diet of $3,300 is not excessive. C.awford v. McElhinney (Iowa) 1917E-221. 38. An award of $8,000 in favor of the administrator of a deceased boiler maker, who was earning from $56 to $108 per month at the time defendant's negligence caused his death, is not excessive, even though he was not a man of robust health; it appearing that he was not incapacitated at the time of the fatality. Nicoll v. Sweet (Iowa) 1916C-661. 39. Where deceased, who was in fair health and spent most of his evenings with his family, was forty-cine years old, and had an expectancy of about nineteen years, and earned from $20 to $25 a week, an award of $4.000 damages for his death is not excessive. Bichardson v. Sioux City (Iowa) 1918A-618. (c) Assanlt. 40. Assault. A recovery of $3.990 for assault and battery, and of $1.300 for ma- licious prosecution, held not excessive. Bursow v. Doerr (Neb.) 1916C-243. (Annotated.) (d) Libel and Slander. 41. Damages not Excessive. Where de fendant, being sent for by his father to DAMAGES. 261 get some medicine, sent back word for him to make "that damned bitch that sits dressed up by him all the time go," mean- ing plaintiff, defendant's stepmother, and afterwards, in their presence, said he meant what he said, a verdict of $3,000 is not so grossly excessive as to shock the moral sense or to indicate that the jury were actuated by prejudice, so as to au- thorize the court to set it aside on that ground, or to require plaintiff to take a less amount as a condition of not grant- ing a new trial. Boyd v. Boyd (Va.) 1916D-1173. (Annotated.) 42. Verdict for $1,000 to one of whom defendant stated on three occasions that he was a thief and should be arrested is held not to be excessive. Visa v. Calli- gan (Wash.) 1918A-819. Note. What is excessive verdict in action for libel or slander. 1916D-1175. (e) Alienation of Affections. 43. A verdict of $2700 damages for alienation of the affections of the plain- tiff's husband reviewed and held not to be excessive. Weber v. Weber (Ark.) 1916C- 743. (Annotated.) (f) Action Against Telegraph Company. 44. Mental Anguish Damages Exces- sive. Where a telegraph company negli- gently delayed the transmission of a message informing plaintiff that his father- in-law, whom he had not seen for over seven years, with whom he had had inti- mate relations, had died, and the delay prevented plaintiff from reaching the place of death in time for the funeral, an award of $250 damages is excessive by $200, where the body, which was not em- balmed, would have been decomposed had the funeral been delayed to await plain- tiff's coming, and the only service plaintiff could have rendered would have been to follow the remains of his father-in-law to the grave. Western Union Tel. Co. v. Blake (Ark.) 1916C-521. (Annotated.) (g) False Imprisonment. 45. Excessiveness. Where a warden, having charge of convict labor hired out to a contractor, refused to release a con- vict on the delivery of a pardon to him on the mistaken assumption that only the contractor had such authority, and the convict was detained 4 or 5 hours and was compelled to work 2^ hours after receipt of the pardon, but no indignities were offered him, a verdict of $1,000 for the false imprisonment is excessive, and a ver- dict for $25 would be affirmed. Weigel v. McCloskey (Ark.) 1916C-503. (Annotated.) 46. A (Verdict of $4,000 for alleged wrongful* ejection of plaintiff from de- fendant's train, and his arrest and de- tention for an hoar, without a showing of any physical force or brutal treat- ment or physical injury, even if plain- tiff was not drunk or disorderly, as al- leged, is in excess of what will justly compensate him for the suffering endured. Cincinnati, etc. E. Co. v. Cundiff (Ky.) 1916C-513. (Annotated.) 47. Damages not Excessive. Nor can we judicially say the verdict and judgment for plaintiff for $200 was excessive. How- ell T. Wysor (W. Va.) 1916C-519. (Annotated.) (h) Rape. 48. Damages not Excessive. Verdict for plaintiff for $5,000 in a civil action for rape is not excessive. Jensen v. Lawrence (Wash.) 1917E-133. (Annotated.) (i) Malpractice. 49. Where a physician wrongfully diag- nosed plaintiff's trouble as cystic tumors, instead of pregnancy, and when she was operated upon none were found, and she suffered much shock and underwent pain during her confinement, an award of $300 is not excessive. Just v. Littlefield (Wash.) 1917D-705. 50. The damages awarded are not ex- cessive. Viita v. Fleming (Minn.) 1917E- 678. 51. Verdict not Excessive. Where a sur- geon, in treating a fractured collar bone, did not exercise the degree of care which the law requires, resulting in the fragments overlapping and causing a deformity and condition which rendered the plaintiff a cripple and necessitated an operation by another surgeon, who made an incision down to the bone, refractured it by the use of instruments, made a hole in each fragment, and inserted a wire to hold the bones in place and prevent overlapping until a new union was effected, in view f the pain and suffering, expense, and loss of time necessarily entaijed, a verdiet for $1,000 is not excessive and does not indi- cate that the jury was influenced by bias or prejudice. Craghead T. McCullough (Colo.) 1916C-1075. (Annotated.) 52. Verdict Excessive. A verdict of $7,3&'5 for malpractice is not seasonably setting a fracture of a femur held exces- sive to the extent of $2,000. Cranford v. O'Shea (Wash.) 1916C-1081. (Annotated.) Note. "What is excessive or inadequate verdict in action against physician for malprac- tice. 1916C-1078. 262 DIGEST. 1916C 1918B. (j) Criminal Conversation. 53. Damages not Excessive. In an ac- tion for criminal conversation, a verdict for $3,500 did not show an abuse of the jury's discretion as to awarding punitive or exemplary damages. Jowett v. Wallace (Me.) 1917A-754. (k) Malicious Prosecution. 54. Excessiveness of Punitive Damages. Where, in a malicious prosecution suit, $25 compensatory damages and $1,000 punitive damages were assessed, it is held the dis- parity between the two kinds of damages was too great, and the punitive damages should be reduced to $200. Gordon v. Mc- Learn (Ark.) 1918A-482. 55. Eecovery mot Excessive. Where plaintiff and her husband were arrested for larceny, and, the hearing was held in a country precinct 80 miles from the county eat where plaintiffs' attorneys resided, and without railroad connection, an attor- ney's fee of $250 will not be held unrea- sonable, though there is no testimony to show its reasonableness. Mclntosh v. Wales (Wyo.) 1916C-273. (Annotated.) DAMNUM ABSQUE INJUBIA. Damage to riparian land 'by floating logs, see Trees and Timber, 23. DANGEROUS EMPLOYMENT ACT. Liability of owner to contractor's em- ployee, see Independent Contractors, 5. DARK PASSAGE. Duty to light, see Landlord and Tenant, 20. DAYS. Meaning, see Time, 2. DEAD BODY. See Cemeteries; Coroners; Death by Wrongful Act. Burial insurance', see Insurance, 59. 1. Property Eight In Dead Body. A son has a legal right to the possession of the dead body of his father, and any unlawful interference with that right is an action- able wrong. Finley v. Atlantic Transport Co. (N. Y.) 1917D-726. (Annotated.) 2. There is no right of property in a dead body in the ordinary commercial use of the term. Finley v. Atlantic Transport Co. (N. Y.) 1917D-726. (Annotated.) 3. Unnecessary Burial at Sea. Where a steamship passenger died, and the body was embalmed and put in such condition that it could have been carried to New York, the common law duty of the steam- ship company was to carry the body to New York and to deliver it to the next of kin for burial, and for breach of such duty a son has a cause ,of action. Finley v. Atlantic Transport Co. (N. Y.) 1917D- 726. 4. Duty to Bury. At common law it is the duty of an individual under whose roof a poor person dies to carry the body decently covered to the place of burial, and the body cannot be cast out so as to expose it to violation or offend the feel- ings or injure the health of the living. Finley v. Atlantic Transport Co. (N. Y.) 1917D-726. 5. Bight of Dissection. Under Penal Law (Consol. Laws, c. 40), 2211, as to burial of dead bodies, right of dissection exists only when a coroner is authorized by law to hold an inquest, or when the next of kin authorizes dissection to learn the cause of death. Finley v. Atlantic Transport Co. (N. Y.) 1917D-726. 6. Demand for Excessive Fare. A brother-in-law of decedent took charge at the request of decedent's husband, of the arrangements to transport decedent's body and he purchased a ticket for the corpse. The undertaker obtained a check therefor from the station baggage agent, and the corpse was received by the carrier for transportation so checked. The ticket col- lector wrongfully demanded fare from the brother-in-law for the corpse, and also exacted excessive fare. It is held that the brother-in-law had sufficient legal rights to justify a recovery of actual and punitive damages caused by the wrongful act of the ticket collector. Osteen v. Southern R. Co. (S. Car.) 1917C-505. (Annotated.) 7. Title to Lot. In a proceeding for the exhumation of a dead body, heard on affi- davits, the title to a cemetery lot wherein the burial occurred cannot be determined. State v. Clifford (Wash.) 1916D-329. 8. Where a stepdaughter who held title to a cemetery lot did not object immedi- ately upon the interment therein of the body of her stepfather according to the directions of the surviving widow, it will not be ordered exhumed upon objection of the stepdaughter two years later, made to procure an examination of the body to show that because of impotency certain persons were not deceased's children, even though deceased had expressed a wish to be interred in another place. State v. Clifford (Wash.) 1916D-329. / (Annotated.) 9. Under Rem. & Bal. Code, 1345, pro- viding that every illegitimate child shall be considered as an heir to the person who shall in writing before witnesses have ac- knowledged himself to be the father, a husband, who in an action against his wife DEADLY WEAPON DEATH. 263 for divorce on the ground of adultery alleged in his complaint and testified that some of the children of the marriage were his own, made such children his heirs, and hence the husband's body should not be ordered exhumed to show that such chil- dren were not his heirs because he was impotent. State v. Clifford (Wash.) 1916D-329. (Annotated.) 10. Power to Order Exhumation. Where the paternity of children is in issue, the body of the supposed father should not, more than two years after burial, be or- dered exhumed for examination to deter- mine his capacity, where it is questionable whether the examination would reveal anything, and the showing as to whether he was castrated is conflicting. State v. Clifford (Wash.) 1916D-329. (Annotated.) 11. Action for Injury Parties. A son suing a steamship company which buried his deceased father's body at sea for men- tal anguish and personal damage need not join his brothers and sisters as plaintiffs. Finley v. Atlantic Transport Co. (N. Y.) 1917D-726. Note. Power of court to order exhumation of dead body for evidentiary purposes. 1916D-331. DEADLY WEAPON. See Weapons, 3. DEAD PERSON. Defamation of dead, gee Libel and Slan- der, 34. DEALER. Meaning, see Interstate Commerce, 4. Meaning, see Licenses, 25. DEATH. See Homicide. Abatement of actions, see Actions and Proceedings, 16-18. Dying declarations, see Admissions and Declarations, 21-24. Termination of agency, see Agency, 3. Property of deceased alien, see Ambas- sadors and Consuls, 2, 4-7. Dissolution of attachment by death, see Attachment, 8, 10, 11. Terminates agreement to marry, see Breach of Promise of Marriage, 4. Kevocation of dedication by, see Dedica- tion, 23. Monument not a funeral expense, see Executors and Administrators, 26. Of spouse, effect on homestead, see Home- stead, 20, 21. Liability of husband for wife's funeral, see 'Husband and Wife, 46, 47. Of joint (tenant, survivorship, see Joint Tenants, 1, 2, 4. Cause of death, see Life Insurance, 38, 40. Proof of death, see Life Insurance, 43-44. As abating will contest, see Wills, 121. Testimony as to transactions with person since deceased, see Witnesses, 35-46. 1. Time of Death Presumed from Ab- sence. In such case, the presumption is that the absentee died during the first seven years of his unexplained absence. There is no presumption that his death, occurred at any particular time during said period. McLaughlin v. Sovereign Camp (Neb.) 1917A-79. (Annotated.) 2. Presumption from Absence. "A pre- sumption of death arises from the con- tinued and unexplained absence of a per- son from his home or place of residence for seven years, where nothing has been heard from or concerning him during that time by those who, were he living, would naturally hear from him." Holdrege v. Livingston, 79 Neb. 238. McLaughlin T. Sovereign Camp (Neb.) 1917A-79. 3. Grant of Letters of Administration as Evidence of Death. Acts 33d Gen. Assem. c. 200, provides that, when a resident of this state owning property, or any person who may have been a resident and ac- quired property rights within the state, absents himself from his usual place of residence and conceals his whereabouts from his family without known cause for a period of seven years, or where any such person has gone to parts unknown for a period of ten years, a petition may be filed in the district court setting forth the facts by any person entitled to administer upon such absentee's estate if he were known to be dead, setting forth the names of the persons who would be his legal heirs if he were dead, so far as known, and praying for the issuance of letters of administration upon the estate, which may be issued. In an action against a fraternal benefit insurance or- ganization by the beneficiary of a death benefit certificate, plaintiff introduced as evidence of her husband's death letters of administration upon his estate issued to her by the district court under chapter 200, on account of insured's continued ab- sence. It is held that such letters of ad- ministration upon the absentee's estate were not admissible, since they were with- out probative value as to his death; the statute providing for the administration of absentees' estates, and not for those of decedents. Werner v. Fraternal Bankers' Reserve Soc. (Iowa) 1918A-1005. (Annotated.) 4. Presumption of Death from Absence. The unexplained absence from home for seven years of a person raises the pre- sumption of his death. Werner v. Fra- ternal Bankers' Reserve Soc. (Iowa) 1918A-1005. 264 DIGEST. 1916C 1918B. Notes. Grant of letters testamentary or of ad- ministration as evidence of death. 1918A- 1011. Time of death within rule as to pre- sumption of death from absence. 1917A- 82. DEATH BY WRONGFUL ACT. 1. Origin and Nature of Bight of Action, 264. 2. Suit in Foreign Jurisdiction, 264. 3. Limitation of Actions, 265. 4. Who may Sue, 265. a. Illegitimate Relatives, 265. b. Nonresident Aliens, 265. 5. Actions, 265. a. Form of Action, 265. b. Defenses, 266. c. Evidence, 2G6. d. Instructions, 267. e. Questions for Jury, 268. 6. Measure of Damages, 268. a. Generally, 268. b. For Death of Child, 268. c. For Death of Husband, 268. d. For Death of Parent, 269. See Automobiles, 39-51, 46, 47-49; CiYll Damage Acts, 1-6. Eepresentation of deceased alien by con- sul, see Ambassadors and Consols, 4-7. Harmless error in excluding evidence, see Appeal and Error, 272. Excessiveness of damages, see Damages, 34-39. Liability under Employers' Liability Act, see Master and Servant, 73. Failure to furnish fire-escapes, see Fires, 5. Fraudulent release of claim, iee Eelease and Discharge, 5. No recovery for pension of deceased, see Ships and Shipping, 3. 1. ORIGIN AND NATURE O*' KiGHT OF ACTION. 1. Nature of Bight to Recorer. A right to recover for the death of another is statutory. McLaughlin v. United Rail- roads (Cal.) 1916D-337. 2. The right of action for wrongful death given by Shannon's Code, 4025 et seq.. is that which the deceased would have had if he had lived, and the recovery is in right of the deceased. Sharp v. Cincinnati, etc. R. Co. (Tenn.) 1917C-1212. 3. An action under the Homicide Act (Code 1907, 2486). authorizing actions for damages for any wrongful act, omission, or negligence causing the death of another, is a civil, not a penal or quasi criminal, ac- tion, though the damages are punitive. Wataon v. Adams (Ala.) 1916E-565. 4. In action for wrongful death by negligence under Code Civ. Proc. 1902- 1905, the executor or administrator of de- cedent is a mere nominal party without any interest in the damages, holding them, when recovered, as trustee or agent for the beneficiaries; the claim of the benefi- ciaries being of the same character as claims for injuries to the property of claimants. Hamilton T. Erie R. Co. (N. Y.) 1918A-928. 5. The cause of action for death from negligence created by Code Civ. Proc. 1902-1905, is original and not derivative, and is not a part of the estate of decedent, but damages are allowed, not for inury to his estate, but for an injury, through loss of him, to the estate of the beneficiaries. Hamilton v. Erie R. Co. (N. Y.) 191 SA- 928. 6. Defenses Release by Injured Person. Laws 1909, c. 301, 1, declares that, when- ever the death of a person shall be caused by wrongful act, neglect, or default such as would have entitled the party to main- tain an action and recover damages, then the corporation or person who would hare been liable if death had not ensued shall be liable in an action for damages not- withstanding the death of the person in- jured. Section 3 provides that every such action shall be for the exclusive benefit of the wife, or husband, or children, or, if there be neither of them, then for the parents and next of kin of the person whose death shall be so caused. It is held that, where a husband who was injured executed a release to the wrongdoer be- fore his death, an action might be main- tained for the benefit of the dependent wife, children, or next of kin, for the stat- ute creates a wholly new "cause of ac- tion," which consists of a right belonging to one pergon and some wrongful act or omission by another by which the right has been violated, and the provision with respect to the right of the injured person to maintain an action merely requires that the wrong in the first instance should ?ive rise to a cause of action. Rowe v. Rich- ards (S. Dak.) 1918A-294. (Annotated.) Notes, Death of human being as element of re- covery in civil action between third per- sons. 1917B-888. 2. SUIT IN FOREIGN JURISDICTION. 7. An administrator may be appointed to bring an action for wrongful death wherever the defendant may be found,, though the decedent was a nonresident and left no assets in the state other than such right of action, and though he sus- tained the injuries causing hii death in another state, ag the right of action itself is property and is transitory, and exigts wherever the defendant may be found. DEATH BY WRONGFUL ACT. 265 Howard v. Nashville, etc. B. Co. (Tenn.) 1917A-844. (Annotated.) 8. What Law Governs. A right of ac- tion for wrongful death is governed by the laws of the state where the injury occurred. Sharpe v. Cincinnati, etc. R. Co. (Tenn.) 1917C-1212. 9. A right of action for wrongful death is transitory and may be enforced against the defendant wherever he may be found, provided it is not contrary to the policy of the forum and is allowed by the state wherein the injury occurred, except in those cases controlled by federal statutes. Howard v. Nashville, etc. R. Co. (Tenn.) 1917A-844. 3. LIMITATION OF ACTIONS. 10. In an action against a railroad for death of its employee, a change from the widow as party plaintiff to the adminis- trator as such was no change of the cause of action within the statute of limitations, though the purpose of the amendment was to bring the case within the Federal Em- ployers' Liability Act (Fed. St.- Ann. 1909 Supp. 584) under which the widow cannot recover. Nashville, etc. Ry. v. Anderson (Tenn.) 1917D-902. (Annotated.) 11. Amendment Omitting Eeference to State Statute. In a widow's action against a railroad for death of its em- ployee, where plaintiff's original pleadings referred to the Georgia statutes, the amendment of such pleadings to omit all reference to such statute and to show that decedent was employed in interstate commerce when killed, defendant's plea having shown such fact originally, upon substitution of decedent's administrator a& plaintiff under the Federal Employers' Liability Act, was not a change of cause of action within the statute of limitations, since the reference to the Georgia statute could be disregarded as surplusage. Nash- ville, etc. Ry. v. Anderson (Tenn.) 1917D- 902. 12. Effect of Bar of Action for Injury. Since a right of action for injuries be- longs to the injured person, terminates at his death, and depends on the common law, while the right to damages for wrong- ful death resulting from such injuries be- longs exclusively to the administrator and is a creature of statute, limitations having run against an action for injuries to de- cedent is no bar to the administrator's right to recover for wrongful death. Causey v. Seaboard Air Line R. Co. (N. Car.) 1916C-707. (Annotated.) 13. Necessity That Plaintiff Plead Com- pliance With Statute of Limitations. Un- der Code Civ. Proc. 1902, providing that the executor or administrator of a dece- dent who has left surviving husband, wife, or next of kin may maintain an action to recover damages for a wrongful act, resulting in death of such decedent, and providing that "such an action must be commenced within two years" after the decedent's death, it is not necessary that it appear from the face of the complaint that action was commenced within two years. Sharrow v. Inland Lines (N. Y.) 1916D-1236. (Annotated.) Notes. Pleading statute of limitations in ac- tion for death by wrongful act. 1916D- 1241. Commencement of running of statute of limitations against action for death by wrongful act. 1916C-713. 4. WHO MAY SUB. a. Illegitimate Relatives. 14. Mother of Illegitimate Child. Un- der our statute the mother of an illegiti- mate minor child, and the mother alone, has the right to sue for and recover dam- ages for the death of such child by the wrongful act, negligence, carelessness, or default of another. Hadley T. Tallahas- see (Fla.) 1916C-719. (Annotated.) Notes. Kight of persons other than parent to recover for death of illegitimate child. 1916E-454. Right of parent to recover for death of illegitimate child. 1916C-720. b. Nonresident Aliens. 15. Rights of Alien Beneficiary. The alienage of the beneficiaries of the cause of action for death by negligence, given by Code Civ. Proc. 1902-1905, does not affect their rights. Hamilton T. Erie R. Co. (N. Y.) 1918A-928. 5. ACTIONS, a. Form of Action. 16. Trial on Wrong Theory Effect. Where the trial of an action for death of a passenger, flung overboard by the lurch- ing of a steamship, proceeds on the theory that the case was governed by St. 1907, c. 375, imposing a penalty for negligently causing the death of a human being in in- stances where no other remedy is given, there is a mistrial, since such statute has no application to death of a passenger caused by the negligence of a common car- rier, a matter regulated by Rev. Laws, c. 70, 6, providing a statutory penalty for death caused by the negligence of common carriers, the rule of damages and grounds of liability established by the two acts being different. Hanley v. Eastern Steamship Corp. (Mass.) 1917D-1034. 266 DIGEST. 1916C 1918B. b. Defenses. 17. Settlement by Administrator of Ac- tion for Injuries. Where the plaintiff dies during the pendency of an action for per- sonal injury, and a reviver is had in the name of an administrator, who accepts a payment in full satisfaction of all claims, no further recovery can be had for the benefit of the next of kin, upon the theory that the death was due to the injury which was the basis of the original action. Berner v. Whittelsey Mercantile Co. (Kan.) 1916D-350. (Annotated.) 18. Antecedent Disease. Where plain- tiff's intestate died of traumatic pneu- monia, caused by being struck by a fall- ing cornice of defendant's building, the fact that deceased was predisposed to disease will not excuse defendant from liability for negligence. Nicoll v. Sweet (Iowa) 1916C-661. c. Evidence. 19. Admisslbility of Coroner's Verdict. In an action for the death of a person struck by defendant's automobile truck, a verdict of a coroner's jury, in which it was stated that in the opinion of the jurors the driver of the truck was blame- less, is properly admitted, as the finding of a coroner's jury is admissible in evi- dence, and the question whether the driver was blameless was an essential matter be- fore the jury for its investigation, and properly included in its verdict. Devine v. Brunswick-Balke-Collender Co. (111.) 1917B-887. (Annotated.) 20. Cause of Death. In an action for death by wrongful act the burden is on the plaintiff to show that the death of his intestate was proximately caused by the injuries received through the defendant's negligence and not by a pre-existing disease. Carmody v. Capital Traction Co. (D. C.) 1916D-706. 21. Property Left by Deceased. While, in an action for the death of one who left a widow, but no children, it would be im- proper to show what property she received from him, admission of evidence of the amount of property he left, it not appear- ing what disposition of it he made by his will, or what debts he left, cannot be said to have been prejudicial to defendant. Mahlstedt v. Ideal Lighting Co. (111.) 1917D-209. 22. The common-law rule that a wife is not competent to testify to any fact or transaction, knowledge of which was ob- tained by means of the marriage relation, does not prevent her after his death tes- tifying in behalf of his estate to facts re- lating to him coming to her knowledge independently of him, and not because of anv confidential relation between them. Mahlstedt v. Ideal Lighting Co. (111.) 1917D-209. (Annotated.) 23. Complaints of Suffering. In an ac- tion for wrongful death, while the admin- istrator is not entitled to recover for de- ceased's conscious suffering, evidence of complaints made by deceased of pain and suffering soon after the injury is admis- sible as bearing on the extent and location of his injuries. Nicoll v. Sweet (Iowa) 1916C-661. 24. Damages Held Excessive. In a parent's action for loss of services, etc., of a minor son, killed in defendant's em- ployment, evidence held not to sustain a finding that the boy's probable earnings, less the expense of maintenance, etc., to- gether with the amount allowed for fune- ral expenses, would amount to more than $1,000, so that the judgment would be re- duced to that amount. Carnego v. Cres- cent Coal Co. (Iowa) 1916D-794. 25. Sufficiency. Evidence that a certain sum was paid as the funeral expenses of a minor son did not authorize the submission of the reasonable expenses of the funeral to the jury, in a father's action for loss of services, etc., in absence of other evidence as to the reasonable cost of the burial. Carnego v. Crescent Coal Co. (Iowa) 1916D-794. (Annotated.) 26. Inheritance from Deceased. In an action by children for the negligent death of a parent, evidence of the property re- ceived by them in the distribution of the estate of the deceased parent is not ad- missible. McLaughlin v. United Railroads (Cal.) 1916D-337. (Annotated ) 27. Evidence of Domestic Relations of Deceased. In an action for wrongful death, evidence of the number of children of deceased is admissible, just as the fact of his marriage, to show an incentive to thrift and accumulation. Nicoll v. Sweet (Iowa) 1916C-661. (Annotated.) 28. Payment of Funeral Expenses. In a parent's action for loss of services of a minor child killed by defendant's negligence, evidence that a witness paid a certain sum for the minor's funeral expenses on behalf of the boy's father, who gave the witness the money was ad- missible as tending to show that funeral expenses had been incurred, though not sufficient to show the reasonableness of such expenses. Carnego v. Crescent Coal Co. (Iowa) 1916D-794. 29. Nature of Injury Received. A de- scription of the injuries received by a child killed by a street car is properly admitted, it tending to show they were received in the manner claimed by plain- tiff, defendant claiming they were re- ceived in another manner. Wende v. Chicago City R. Co. (111.) 1918A-222. 30. What Testimony is Negative. Where, in an action against a railroad company for the wrongful death of a Pullman car employee engaged in repairing cars, due to the shifting of a car without warning DEATH BY WRONGFUL ACT. 267 to him, the witnesses who testified that no warning was given while deceased was where he could have heard it had special opportunities, by reason of their being en- gaged in the railroad yard in occupations similar in the matter of danger, to hear and remember such warning if it had been given, their testimony was not purely negative in character. Philadelphia, etc. R. Co. v. Gatta (Del.) 1916E-1227. 31. Mortality Tables. Though the Am- erican experience mortality tables are made up from selected lives, such tables are admissible in an action for wrongful death of one who it appeared had previ- ously been a sufferer with asthma, since they show only the probable continuance of life, and do not show the continuance of earning power. Fifield's Administra- trix v. Rochester (Vt.) 1918A-1016. (Annotated.) 32. Affection for ChUdren. Though the action is only for the pecuniary loss sus- tained by deceased's children from his death, evidence that he taught his little girl her Sunday school lessons, and wanted her to go to Sunday school, and made her practice her music lessons, is admissible to show he had an affection for his chil- dren, took an interest in their welfare, and on that account would be likely to contribute in the future to their support. Chicago, etc. R. Co. v. Gunn (Ark.) 1916E- 648. (Annotated.) Notes. Admissibility in action for death by wrongful act of evidence of habits or physical condition of deceased. 1916E- 652. Admissibility in action for death by wrongful act of evidence of property in- herited by plaintiff from deceased. 1916D- 340. Admissibility in action for death by wrongful act of evidence of domestic re- lations of deceased. 1916C-671. Admissibility of coroner's verdict as evi- dence in subsequent proceedings. 1917B- 892. Admissibility, in action for death by wrongful act, of mortality tables to show probable duration of life. 1918A-1021. d. Instructions. 33. Instructions as to Measure of Dam- ages. Where, in an action for negligent death, the court fairly instructs the jury on the measure of compensation, refusal to charge that the pecuniary value of the life of decedent to plaintiffs is the value in money of the life of decedent to plain- tiffs at the time of her death is properly refused. McLaughlin v. United Railroads (Cal.) 1916D-337. 34. An instruction in an action by chil- dren for the negligent death of a parent that the pecuniary value of the life of decedent to the children is the value in money of the life of decedent to them is properly refused because misleading for failing to define the term "value in money." McLaughlin v. United Railroad (Cal.) 1916D-337. 35. Inability to Obtain Insurance. In an action for wrongful death, evidence that deceased could not obtain life insurance because of his health is admissible as a circumstance bearing on the value of his life, though not of great importance. Nicoll v. Sweet (Iowa) 1916C-661. 36. In an action for wrongful death, where the court admitted evidence of the number and ages of decedent's children, an instruction that the amount of dam- ages could not be increased by reason of decedent's having left children, and that the evidence was admitted only upon the question of incentive to industry, is not contradictory or misleading. Nicoll v. Sweet (Iowa) 1916C-661. (Annotated.) 37. Negligence. Where, in an action for the death of a person struck by an au1;o- mobile truck, a verdict of the coroner's jury, exonerating the driver of the truck, is admitted in evidence, it is error to charge that this verdict was not conclusive, but that the jury should consider it in de- termining whether or not the driver was guilty of the negligence charged in the declaration, since, while the verdict was competent evidence, its weight was for the jury, and the court had no right to invade the province of the jury and tell them, or attempt to tell them, what weight should be attached thereto, and the instruction was equivalent to a statement that the court regarded such verdict as very strong evidence. Devine v. Brunswick-Balke-Col- lender Co. (111.) 1917B-887. (Annotated.) 38. Such instruction is also objection- able, &s it was no more the duty of the jury to consider such verdict than to con- sider any other competent evidence, and their attention should not have been par- ticularly directed to such verdict. Devine v. Brunswick-Balke-Collender Co. (111.) 1917B-887. (Annotated.) 39. Damages. In an action for the death of a minor, an instruction that in assessing damages the jury were not con- fined to the pecuniary value of .the ser- vices of the minor to the next of kin until she had reached majority, but might con- sider the pecuniary benefit which the next of kin might have received from the minor had she not been killed at any age, while not proper as a rule for measuring dam- ages, is not erroneous, because it merely informed the jury they were not merely confined to the pecuniary value of the minor's services until she reached major- ity. Lichtenstein v. L. Fish Furniture Co (111.) 1918A-1087. 268 DIGEST. 1916C 1918B. 40. Action for Death of Child Falling Into Pool. In au action for death of a child, caused by falling into a drain into which was discharged hot water from the boilers of a cotton mill, an instruction that it was not necessary to prove that the pool of water was not of itself attractive to children is properly refused as argu- mentative. Thompson v. Alexander City Cotton Mills Co. (Ala.) 1917A-721. 41. In an action for death of a child from falling into a drain, into which the hot water from mill boilers was dis- charged, an instruction that the necessity for having the blow-off pipe in the opera- tion of the mill was not an excuse for negligence in not having the place of dis- charge properly guarded is properly re- fused as abstract and misleading, where there was no attempt to show that such necessity of a blow-off pipe was an excuse for negligence, and there was no showing that the place of discharge, as distin- guished from other places in the drain, was guarded or not. Thompson v. Alex- ander City Cotton Mills Co. (Ala.) 1917A- 721. 42. In an action for death of a child from falling into a drain into which the hot water from mill boilers was dis- charged, a charge that plaintiff was not required to prove the nature of children, as the jury is presumed to know such nature as well as witnesses, is properly refused as argumentative. Thompson v. Alexander City Cotton Mills Co. (Ala.) 1917A-721. 43. In an action for death of a child from falling into a drain into which the hot water from mill boilers was dis- charged, an instruction that it was not necessary that plaintiff prove that defend- ant actually knew that any child ever actually went or played in any part of the open space in which the drain was situ- ated, nor that defendant actually knew that such open place was attractive to children, is properly refused as mislead- ing. Thompson v. Alexander City Cotton Mills Co. (Ala.) 1917A-721. e. Questions for Jury. 44. Dependents. In an action under the Federal Employers' Liability Act (Act April 22, 1908, e. 149, 35 Stat. 65 [Fed. St. Ann. 1909 Supp. p. 584]), for the death of an employee, for the benefit of his brothers and sister, evidence that the brothers and the sister are of tender age and without estate makes a question for the jury as to whether they are depend- ent upon deceased. Kenney v. Seaboard Air Line R. Co. (N. Car.) 1916E-450. 6. MEASURE OF DAMAGES, a. Generally. 45. There is no fixed rule for the jury to follow in awarding damages for wrong- ful death, except that all the elements which enter into the value of a human life as they appear from the evidence should be considered by the jury in the exercise of their discretion in making the award. Korab v. Chicago, etc. R. Co. (Iowa) 1916E-637. 48. The measure of damages for wrong- ful death is the value of decedent's life to his estate, had he not perished. Nicoll T. Sweet (Iowa) 1916C-661. b. For Death of Child. 47. A parent suing for loss of services of a minor employee killed by defendant's negligence was entitled to recover the present worth of his son's probable earn- ings up to the time he would have become of age, less the probable cost of clothing, maintenance, etc. Carnego T. Crescent Coal Co. (Iowa) 1916D-794. 48. The word "expenses" as used in Code, 3471, permitting a father to main- tain an action for the actual loss of ser- vices and for expenses resulting from the injury or death of a minor child, includes expenses for a suitable burial. Carnego v. Crescent Coal Co. (Iowa) 1916D-794. 49. Recovery by Parent Funeral Ex- penses. At common law it was a father's duty to defray the necessary burial ex- penses of his child, and if the child died from injuries after surviving for a time, the parent could recover for the loss of his services up to his death, together with expenses for a suitable burial. Carnego v. Crescent Coal Co. (Iowa) 1916D-794. 50. Damages Instructions Capitaliz- ing Income. In a mother's action for the wrongful death of her son, the court in- structed the jury to allow the capital sum which would represent the money which plaintiff had a reasonable expectation of receiving from decedent during the term of her natural life, and then capitalize that in a fixed sum and let that be the rerdict. It is held that the word "capital- ize" as so used meant to convert a periodical payment into a sum in hand, and. the jury being presumed to have so understood it, the instruction was correct. Brown v. Erie R. Co. (N. J.) 1917C-496. e. For Death of Husband. 51. Earnings in Unlawful Occupation. In an action for the death of a hackman, where, though he pandered to immorality, there is no evidence that he received any compensation, the refusal of requests that damages for his death could not be assessed on the basis of his immoral profits is not error, where the court lim- ited the jury in awarding damages to a consideration of his legitimate earnings. Richardson v. Sioux City (Iowa) 1918A- 618. DEBT DEDICATION. 269 d. For Death of Parent. 52. Under Code Civ. Proc. 377, author- izing the jury to give such damages for death as under the circumstances may b .just compensation, damages for grief and wounded feelings cannot be awarded, nor can the suffering by decedent in conse- quence of receiving the fatal injuries bt considered, but the law seeks only to compensate in terms of money for th loss, and, where children sue for the death of a parent, they may recover their rea- sonable expectation of financial benefit from the continued existence of the parent, including in this estimate the loss of the nurture, instruction, training, and care of which the children have been de- prived. McLaughlin v. United Railroads (Cal.) 1916D-337. 53. Federal Employers' Liability Act. In an action under the Federal Employers' Liability Act CAct April 22, 1908, c. 149, 35 Stat. 65 [Fed. St. Ann. 1909 Supp. p. 584]), the widow and minor child of decedent being beneficiaries, the measure of damages is such sum as the widow might reasonably have expected to re- ceive from her husband for support, and such sum as such child would have ex- pected for support during minority, plus compensation for the loss of care, counsel, training, and education which, under the evidence, it might have reasonably re- ceived from the parent. Nashville, etc. Ey. v. Anderson (Tenn.) 1917D-902. DEBT. Assignment for collection outside juris- diction, see Assignments, 3-6. Debt as provable claim, effect on counter- claim, see Bankruptcy, 4, 5. Proof of nonexiatence, see Evidence, 35. Of executors and administrators, as assets, see Executors and Administrators. 16, 17. Tort judgment as "debt," see Imprison- ment for Debt in Civil Cases, 2. Definition, see Mortgages and Deeds of Trust, 20. Meaning, see Municipal Corporations, 114. DEBT LIMIT. See Banks and Banking, 59, 60; Counties, 8-10. In cities, sec Municipal Corporations, 111-119. DEBTOE AND CREDITOR. See Accord and Satisfaction; Accounts and Accounting; Fraudulent Sales and Conveyances. Bank creditor of depositor, see Banks and Banking, 26, 27. Privileged communications between, see Libel and Slander, 49, 50, 59. Insurable interest of creditor, see Life Insurance, 2. DECEASED PERSON. Defamation of dead, see Libel and Slan- der, 34. DECEIT. See False Pretenses; Fraud. Assignability of cause of action, see As- signments, 12-14. DECISION. Decisions as precedents, see Courts, 22-36. Without judgment, as res adjudicata, see Judgments, 64, 65. DECLARATION. See Pleading, 4-6. DECLARATION OF HOMESTEAD. Sufficiency, see Homestead, 3. DECLARATIONS. See Admissions and Declarations; Dying Declarations. Declarations of injured workman, admissi- bility in proceeding under Workmen's Compensation Act, see Master and Servant, 297. DECOY LETTERS. See Postoffice, 10. DECREE OF DISTRIBUTION. See Executors and Administrators, 61. DECREES. See Judgments. Sufficiency of exceptions for reyiew, see Appeal and Error, 433. DEDICATION. 1. In General, 269. 2. What Constitutes, 270. a. Intent of Owner, 270. b. Acceptance, 270. e. Evidence of Dedication, 271. 3. Revocation, 271. 4. Right to Assert Dedication, 272. 1. IN GENERAL. 1. What Constitutes Sale With Refer- ence to Map. A vendor may be estopped to deny dedication of land to the public use as a highway when he has sold prop- erty abutting thereon to individuals on the faith of a recorded map. Eltinge v. Santos (Cal.) 1917A-1143. 270 DIGEST. 1916C 1918B. 2. Who may Dedicate. A dedication or gift of land for a public use can be made only by the owner. A purchaser of land encumbered with a security deed, in pos- session under a bond for title, as against his vendor and encumbrancer, has no such power. But where such purchaser makes an express offer to dedicate for a public use, as against his grantee and the public he will be estopped from denying that he is without power to dedicate because of the incompleteness of his title. Hoole T. Attorney General, 22 Ala. 190. Jacobs' Pharmacy Co. v. Luckie (Ga.) 1917A- 1105. 3. Estoppel to Deny Dedication. Where the grantee of lands from an owner, who by exhibiting a plat .to intending pur- chasers had dedicated highways marked thereon, could have ascertained the fact by white stakes driven in the ground, to mark the borders of the highways, so as to induce an inquiry as to the source, nature, and extent of the easements, such grantee is estopped to deny that the origi- nal owner had made a parol dedication binding upon it, although it secured title for valuable consideration by mesne con- veyances. Nicholas v. Title, etc. Co. (Ore.) 1917A-1149. 2. WHAT CONSTITUTES, a. Intent of Owner. 4. How Made. Dedication is an appro- priation of land to a public use by the owner, and accepted for such use by or on behalf of the public, and may be express, by deed or explicit oral or written declara- tion, or some other explicit manifestation of purpose, or it may be implied by some act or course of conduct from which a reasonable inference of the intent may be drawn, or which is inconsistent with "any other theory. Harris v. St. Helens (Ore.) 1916D-1073. 5. Intent Essential to Dedication. To constitute a dedication, the owner must intend to devote his property to a public use, and this intention must be clearly and unequivocally manifested by his acts. Hams v. St. Helens (Ore.) 1916D-1073. b. Acceptance. 6. An express acceptance may be shown by some order, resolution, or action of the public authorities made and entered of record. While an implied acceptance of a dedication may be inferred from the acts of the public authorities in treating the land offered as public property. Chicago, etc. R. Co. Chicago (111.) 1917A-1146. 7. Levy of Tax as Refusal to Accept. Where there has been no acceptance, formal or otherwise, by the city or by the public, of land dedicated for public use, the levy and collection of taxes and spe- cial assessments shows an intention not to accept the dedication. Hanford v. Seattle (Wash.) 1917B-195. 8. Implied Acceptance of Dedication. A formal acceptance of a dedication of a street is unnecessary, since approval by the municipality will be implied. Nicho- las v. Title, etc. Co. (Ore.) 1917A-1149. 9. What Constitutes Acceptance. Where a city ordinance purported to dedicate to the public certain property for use as a park, and thereafter museums were erected on a part thereof and used by the public, and other portions were either leased to tenants or used as a public dump- ing ground, and were not opened for park purposes, there is no acceptance of the dedication of these other portions. Board of Trustees of Phila. Museums v. Trustees of Univ. of Pa. (Pa.) 1917D-449. 10. Necessity of Acceptance. A "dedica- tion" is the joint effect of the offer by the owner to dedicate and acceptance by the public, and there can be no dedication without the participation of both, though the dedicator is a municipality; and hence the passage of a city ordinance, setting apart land for public uses, being a mere offer to dedicate, becomes binding only by acceptance and use by the public for the purposes stated. Board of Trustees of Phila. Museums v. Trustees of Univ. of Pa. (Pa.) 1917D-449. (Annotated.) 11. Presumption as to Acceptance. Where the streets and alleys of a sudivi- sion are dedicated to the public, an ac- ceptance of the principal streets by the municipality raises a presumption that the others have been accepted, but this pre- sumption cannot prevail, where the ac- ceptance, except as shown by the filing of a map showing all the streets, was limited to the streets in part of a subdivision, and defendants held open and notorious posses- sion of others for at least thirty years. Chicago, etc. B. Co. v. Chicago (111.) 1917A-1146. 12. Proof. The mere filing of a plat showing the existence of streets which the owner had once offered to dedicate will not, where nothing else was done by the municipality, show an acceptance. Chicago, etc. R. Co.'v. Chicago (111.) 1917A-1146. 13. Dedication Complete when. A com- mon-law dedication is complete only upon acceptance. Chicago, etc. R. Co. v. Chi- cago (111.) 1917A-1146. 14. Acceptance by Public. Where an owner offers to dedicate land to the public use as a park or street, the public may ac- cept the offer by use or by formal action. Eltinge v. Santos (Cal.) 1917A-1143. 15. Acceptance by Municipality. Ex- cept where a municipality may not have DEDICATION. 271 charter powers to accept a dedication, an acceptance by its duly authorized officers may be express, by deed, or other matter of record, or, unless prohibited by a stat- ute or ordinance, the acceptance may be implied from acts showing that the muni- cipality has assumed control and posses- sion of the property. Harris v. St. Helens (Ore.) 1916D-1073. Note. Necessity for acceptance where land is dedicated to public use by municipality. 1917D-452. c. Evidence of Dedication. 16. In a suit to determine an adverse in- terest in realty, evidence held sufficient to show an intention on the part of the owner of lots, selling them through an agent, to make a parol dedication to the public, as indicated upon a printed plat shown purchasers, of parts of certain streets bordering on certain blocks as highways sixty feet in width. Nicholas v. Title, etc. Co. (Ore.) 1917A-1149. 17. By Parol. To establish a parol dedi- cation, evidence must be adduced tending to substantiate a clear intention to devote some particularly described land to a pub- lic use. Nicholas v. Title, etc. Co. (Ore.) 1917A-1149. 18. Sale of Lots With Reference to Plat. A sale of lots, according to a plat and the execution of deeds therefor by the owner of the plat, constitutes a ratification of such plat as filed. Hanford v. Seattle (Wash.) 1917B-195. (Annotated.) 19. Estoppel to Deny. In a suit to determine an adverse interest in realty, where plaintiff was seeking to establish that certain streets on which his lots abutted were sixty feet in width, and be- fore delivery of his deed the original pur- chaser from the owner, who dedicated the ways, had examined the block, stepped the width of the highways bordering them, found them to be sixty feet, and saw them marked out with white stakes similar to one received in evidence, his at- tention being then attracted to the post, the admission in evidence of testimony re- lating to the stakes, as marking the lines of one of the streets, is proper. Nicholas v. Title, etc. Co. (Ore.) 1917A-1149. 20. "Reserved." Under Ore. L. O. L., 718, providing that the terms of a writ- ing are presumed prima facie to have been used in their primary and general accepta- tion, whore a plat filing for record has a strip marked "Reserved for Wharves." the word "Reserved" means kept for future use; retained; kept back. Harris v. St. Helens (Ore.) 1916D-1073. 21. Reservation on Plat. The filing for record of a plat of land divided into lots and blocks with a strip allowing the river front marked "Strand, Reserved for Wh-afves," does not constitute a dedica- tion of the land so marked. Harris v. St. Helens (Ore.) 1916D-1073. (Annotated.) Notes. Reservation of land on map or plat for specified purpose as dedication thereof to public. 1916D-1079. Dedication of park or square by selling lots according to map or plat. 1917B-197. 3. REVOCATION. 22. Revocation of Dedication. Where the owner of land filed a map showing an intention to dedicate a strip as a public way, and his successor in title thereafter filed another map evincing an intention to withdraw the first owner's offer of dedica- tion, there having been no acceptance of the offer by the public between the filing of the first map and the revocation of the offer by the second, the original owner's successor in title can so revoke the offer of dedication. Eltinge T. Santos (Cal.) 1917A-1143. (Annotated.) 23. Death of Dedicator. The death of a dedicator of public streets impliedly re- vokes his offer of dedication. Chicago, etc. R. Co. v. Chicago (111.) 1917A-1146. (Annotated.) 24. Right to Revoke Dedication. Where an owner of an interest in land agrees to donate to a county a strip for the purpose of widening a public highway, subject to other property owners along the highway giving the necessary land to widen it to a certain extent, and where it appears that some of the abutters refuse to donate, and others because of their minority, are unable to make a dedication, the land- owner making the proposed dedication may formally withdraw the same, not- withstanding on the day previous to his withdrawal, the county authorities have passed a resolution accepting all donations made before that time. Jacobs' Pharmacy Co. r. Luckie (Ga.) 1917A-1105. (Annotated.) 25. Where the owner of land surveys it into lots, blocks, and streets, and prepares a map thereof, showing streets of certain width, which he exhibits to intending pur- chasers, who bought before he changed his mind as to the width of the streets, and superseded the map which he had exhibited by a recorded plat differing therefrom as to the width of the streets, he irrevocably dedicates to the public the highways as shown by the map, without acceptance by any corporate authority, as such circum- stances create an estoppel in pais. Nicho- las v. Title, etc. Co. (Ore.) 1917A-1149. (Annotated.) 272 DIGEST. 1916C 1918B. 26. How Revoked. A dedication by plat of lands for public purposes may he re- voked before acceptance by conveying the land as private property. Hanford T. Seattle (Wash.) 1917B-195. 27. Where plat and deed of dedication contain no evidence of intent of plattor to donate a block known as "East Park," for public purposes or for any specific use, and where no public use was made of land, and taxes and special assessments were collected, and the land was trans- ferred by deed as private property, it is held, under Wash. Code 1881, 2332, 2339, there was nothing more than an am- biguous dedication of such tract which had been revoked, so that city could not claim land as public park (citing Words and Phrases). Hanford v. Seattle (Wash.) 1917B-195. (Annotated.) Note. Revocability of dedication of land to public use. 1817A-1109. 4. Right to Assert Dedication. 28. Bar by Limitations. Where the successor in title of the original owner of lands, who, before selling, plats them so as to dedicate highways to the public, does not improve or encroach on such highways, the statute of limitations never begins to run against the right of the suc- cessor in title of an original purchaser from the original owner to insist on the maintenance of the highways, since the grantees of a dedicator may extinguish the right of the public in a street only by an unlawful encroachment thereon for a term equal to the period of the statute of limitations, which purpresture raises an estoppel. Nicholas v. 'Title, etc. Co. (Ore.) 1917A-1U9. DEEDS. 1. Requisites, 272. a. In General, 272. b. Execution, 272. c Delivery, 273. (1) In General, 273. (2) Delivery to Third Person, 273. (3) Evidence of Delivery, 273. d. Acceptance, 271. 2. Time of Taking Effect, 274. 3. Validity, 274. a. Omission of Grantor's Name, 274. b. Name of Grantee, 274. c. Consideration, 274. d. Undue Influence and Fraud, 274. e. Mental Incapacity, 27o. f. Conveyance in Fee to Take Effect in Future, 275. ?. Conveyance of Expectancy, 275. . Restrictive Conditions, 75. i. Nonexistent Grantee, 276. 4. Construction, 276. a. In General, 276. b. Doubtful or Uncertain Descrip- tion, ^ "."',. c. Conditions, 277. d. Exceptions and Reservations, 277. e. Inconsistent Provisions or Recitals, 278. f. Estate or Interest Conveyed, 278. g. Evidence in Aid of Construction, 279. 5. Covenants Running With Land in Gen- eral. 279. 6. Covenants of Title, 279. a. Warranty, 279. b. Against Incumbrances, 279. (1) What Constitutes Breach, 27&. (2) Measure of Damages for Breach, 280. 7. Recitals. 280. Se Chattel Mortgages; Escrow; Estates; Lis Pendens; Mortgages; Quieting Title; Recording Acts; Remainders; Rescission, Cancellation and Reforma- tion; Vendor and Purchaser. Presumption of execution from acknowl- edgment, see Acknowledgments, 3. Proof of delivery, see Admissions and Declarations, 8. Of homestead, execution by wife, see Homestead, 11. Liability of wife on covenants, see Hus- band and Wife, 45. Life tenant's attempt to convey fee, ef- fect, see Life Estates, 4. Conveyances of mining interests, see Mines and Mining, 2, 3. Deed intended as mortgage, see Mortgages and Deeds of Trust, 6-12. Rule against perpetuities, see Perpetuities, 8. Record as notice, see Recording Acts, 9, 10, 11, 13. Reformation, see Rescission, Cancellation and Reformation, 3, 5, 6. Cancellation, see Rescission, Cancellation and Reformation, 12. Tax deeds, see Taxation, 111-115. Interpretation according to local meaning, see Usages and Customs, 2. Building restrictions, see Vendor and Pur- chaser, 22-26. 1. REQUISITES. a. In General. 1. Operative Words of Conveyance. Operative words manifesting intent to transfer the property are absolutely essen- tial to the conveyance of title. The in- tent must be disclosed by the words of the deed not the mere acts of the parties. Freudenborger Oil Co. v. Simmons (W. Va.) 1918A-873. 2. Requisites of Deed. The requisites of a deed are persons able to contract for the purposes intended by the deed which must contain a grantor and a grantee and describe a thing granted, and the parties must be suffiricntly described or the deed is void. Duffield v. Duffield (111.) 1916D- 859. b. Execution. 3. "Execution" of Deed as Including De- livery. "Execution," as applied to % deed, DEEDS. 273 includes effective delivery. William* T. Kidd (Cal.) 1916E-703. c. Delivery. (1) In General. 4. Delivery of Deed Defined. Delivery of a deed is the act, however evidenced, by which the deed takes effect and title therebv passes. Williams v. Kidd (Cal.) 191GE-703. 5. Intent to Transfer Present Title. A deed, to transfer real property, must be delivered by the grantor with intent to transfer title, and the test under which delivery is to be determined is in ascer- taining whether, in parting with the pos- session of the deed, the grantor intended to divest himself of title; if he did there was an effective delivery, and, if not, there was no delivery. Williams v. Kidd (Cal.) 1916E-703. 6. Deed Taken by Violence. Where a vendor and a purchaser met to complete a sale of land, and the purchaser laid the money down and reached for the deed, whereupon the vendor knocked him down and took both the deed and money, it is held that there was no valid delivery of the deed. Coe v. Wormell (Wash.) 1917C- 679. 7. Delivery Held Sufficient. The facts concerning the delivery of a deed con- sidered, and held sufficient to constitute a valid delivery. Withers v. Barnes (Kan.) 1917B-55. (2) Delivery to Third Person. 8. The mere fact that a deed was signed and acknowledged by the grantor and at the same time handed to the husband of the grantee, with directions to the hus- band to keep the deed and give it to the grantee when the grantor was dead, and that the husband did so, was not alone conclusive evidence of a delivery with in- tent to vest in the grantee a present title. Williams v. Kidd (Cal.) 1916E-703. 9. Deposit for Delivery After Grantor's Death. A grantor may place his deed in the hands of a third person for delivery to the grantee on the death of the grantor, and such a delivery is effectual to pass a present title if the intention of the grantor is to make the delivery absolute. Williams v. Kidd (Cal.) 1916E-703. 10. Where a deed is deposited by the grantor with a third person, to be handed to the grantee on the death of the grantor, there is no delivery unless accom- panied by an intention of the grantor that title shall immediately pass to the grantee, and where the deed is handed to the third person without any intention of a present transfer of title, but, on the contrary, with an intention of the grantor 18 to reserve the right of dominion over the deed/and the right to revoke or recall it, there is no effective delivery, and where the grantor, when depositing the deed, in- tends that it shall only be delivered to the grantee after the death of the grantor, and title shall vest only on delivery te the grantee, the deed is inoperative as an attempt by the grantor to make a testa- mentary disposition. Williams v. Kidd (Cal.) 1916E-703. 11. Where a deed was delivered by the grantor to a third person to deliver to the grantee on the grantor's death, the grantee, producing the deed, established a prima facie case of delivery, which was overcome by proof of the fact that the grantee had no knowledge of the existence of the deed, and did not come into posses- sion of it until after the death of the grantor. Williams v. Kidd (Cal.) 1916E- 703. (3) Evidence of Delivery. 12. Where the issue was whether a gran- tor had ever parted with title, acts, con- duct, and declarations of the grantor with reference to the property after the execu- tion of a deed thereof were admissible on the issue of intent to deliver the deed. Williams v. Kidd (Cal.) 1916E-703. (Annotated.) 13. Where a grantor delivered the deed to the husband of the grantee, with in- structions to deliver the same to the gran- tee on the grantor's death, and the issue was whether the delivery was effective to pass a present title, the fact that the hus- band made no mention of the deed to the grantee until after the death of the gran- tor, though no secrecy was enjoined on him by the grantor, could be considered to show that there was no delivery of the deed with intent to pass a present title, and that the husband knew it. Williams v. Kidd (Cal.) 1916E-703. 14. Where a grantor delivered the deed to the notary who took the acknowledg- ment, with instructions to deliver to the grantee on the grantor's death, and the deed was part of a plan by the grantor to dispose of all his property, a separate deed being contemplated for each piece of prop- erty, but the plan was never fully carried out, the fact that the notary knew that the plan was abandoned and that he made no entry of the deed in his notarial record as required by Pol. Code. 794, could be considered in determining the question of effective delivery of the deed. Williams v. Kidd (Cal.) 1916E-703. 15. The failure of a third person to whom a deed had been delivered by the grantor, with instructions to deliver to the : rantee on the grantor's death, to call the grantor's attention to the fact that he could not make a sale of part of the prop- 274 erty covered by the deed, as- contemplated by the grantor, could be considered in de- termining whether the delivery was effect- ive to pass title. Williams v. Kidd (Cal.) 1916E-703. 16. Evidence held to sustain a finding that a deed was not delivered by the gran- tor with intent to transfer a present title. Williams v. Kidd (Cal.) 1916E-703. Note. Admissibility of declaration of grantor after conveyance as to delivery of deed. 1916E-713. d. Acceptance. 17. Refusal by One Grantee to Accept. The provision for the son is not so com- plicated with the other gifts specified in the deed that the failure of one destroys them all. Miller v. Miller (Kan.) 1917A- 918. 2. TIME OF TAKING EFFECT. 18. Bights of Senior Grantee. The senior grant vests the legal title in the holder and is always the paramount title, unless it has been lost by the adverse pos- session of another or he has renounced his title; and the law vests the possession of land in the paramount title holder, and a senior grantee is by operation of law in the constructive possession of the land, where it is not in the actual possession of another. Tennis Coal Co. T. Sackett (Ky.) 1917E-629. DIGEST. 1916C 1918B. . Presumption as to Date. Prima facie, the date of a deed is the day of its execution, notwithstanding it was acknowl- edged at a later date. Dulin v. Ohio River B. Co. (W. Va.) 1916D-1183. 19. Taking Effect After Grantor's Death. A deed duly acknowledged, delivered, and recorded, which recites that the grantor, in consideration of a nominal sum paid in cash, and of love and affection, grants, bargains, sells, and conveys to the grantee specified real estate, "this deed not to take until after my death," conveys the title to the grantee subject to a life es- tate of the grantor, and is not testament- ary in character. Phillips v. Phillips (Ala.) 1916D-994. (Annotated.) Note. Construction of instrument in form of deed to become effective upon death of grantor. 1916D-996. 3. VALIDITY. a. Omission of Grantor's Name. 20. Grantor not Named in Body. An option to purchase land owned by a hus- band and wife jointly, apparently made by the husband alone, but signed by the wife, is valid and binds the wife's interest. Agar v. Streeter (Mich.) 1916E-518. (Annotated.) Note. Effect of omission of grantor's name from body of deed. 1916E-521. b. Name of Grantee. 21. Deed, to Grantee mot in Existence. The grantee named in a deed must be a person, natural or artificial, capable of taking title at the time of the conveyance. Duffield v. Duffield (111.) 1916D-859* (Annotated.) 22. A deed to heirs of a living person, without specifying their names, describes no one as grantee, and is void, for a living person has no heirs. Duffield v. Duffield (111.) 1916D-859. (Annotated.) c. Consideration. 23. Future Support. A deed for lands made by a grantor, in consideration of "support during her natural life" therein recited, is not a gift, but is founded upon a valuable consideration, and when made by one having the mental capacity to make it, and without fraud, duress or undue in- fluence, will be sustained. Soper v. Cisco (N. J.) 1918B-452. d. Undue Influence and Fraud. 24. The rule that undue influence is not to be presumed from the mere relation of parent and child, in case of a convey- ance from a parent to a child, does not conflict with the broad rule that where par. ties stand in confidential relation to each other a conveyance from the weaker to the dominant party is presumed to result from undue influence, and therefore, where facts are shown, other than the mere rela- tion of parent and child, establishing be- tween the parties a confidential relation in which the child is the dominant party, a conveyance from the parent to the child is presumed to be tainted with undue influ- ence, and the burden is upon the child to show the bona fides of the transaction. Soper v. Cisco (N. J.) 1918B-452. (Annotated.) 25. A mother, seventy-seven years of age, in the full possession of her mental faculties and in good physical health, made 8 deed for her homestead property to her daughter, forty-five years of age, who had been her chief support for fifteen years prior thereto. The consifleration for the deed was $300 and "support during her natural life" therein expressed. It was drawn by and acknowledged before a com- petent lawyer, with whom the mother con- ferred privately, and was recorded imme- diately. The property was then worth about $5,000, but of small rental value and DEEDS. 275 not readily marketable. The bargain was made at the solicitation of the mother, the daughter being reluctant. No effort was made to keep the transaction secret. Before and at the time of making the deed and until eleven years thereafter, when failing mental faculties rendered some restraint necessary, the mother had per- fect liberty of action and freely saw such of her. other children as she wished to see and who wished to see her. Her daughter supported the mother satisfactorily at the homestead for sixteen years after the deed was made, when the mother, without any fault of the daughter, went away and re- fused to return. Held, that the bargain was a natural and provident one for the mother to make and was not the product of undue influence, and will not be set aside for failure to show that the mother had "independent advice." Soper v. Cisco (N. J.) 1918B-452. (Annotated.) Note. Presumption and burden of proof of un- due influence in case of conveyance inter vivos by parent to child. 1918B-457. e. Mental Incapacity. 26. Capacity of Grantor Test. The test of mental capacity to make a deed is that a person shall have ability to understand the nature and effect of the act in which he is engaged and the business he is trans- acting. Soper v. Cisco (N. J.) 1918B-452. f. Conveyance in Fee to Take Effect in Future. 27. Limitation of Future Estate. A grantor has power to limit a future estate by his deed. Duffield v. "Duffield (111.) 1916D-859. g. Conveyance of Erpectancy. 28. A deed which on its face purports to convey a bare contingency or possibil- ity, and in which there is nothing to show a present right in the vendor to sell a future benefit, is void. (a) A covenant of warranty in such deed will not inure to the benefit of the vendee, or his heirs, so as to subject after-acquired property of the vendor to such covenant. Dailey v. Springfield (Ga.) 1917D-943. (Annotated.) 29. Accordingly, where a vendor for a named consideration conveyed to a vendee "all the present rights in or title to all interests that" the vendor "may become possessed of either by inheritance or by deed from" the mother of the vendor, in certain city lots which the mother "now owns" in a certain city, and any interest he "may in the future become possessed of in any other city property, . . . either bj deed or inheritance from" the mother, this was an attempt to convey a mere naked possibility without any present in- terest, and was void. (a) Where in such case an action was brought by the widow of the vendee, who was his sole heir, in her own right (there being no debts against the estate), to re- cover an interest in certain realty belong- ing to and the proceeds of certain other property derived from the mother's estate, after her death, a demurrer to such peti- tion was properly sustained. Dailey v. Springfield (Ga.) 1917D-943. (Annotated.) h. Restrictive Conditions. 30. Eestraint on Alienation Validity. A restraint on the alienation of an equi- table life estate, although in form of a covenant rather than condition, is invalid. Lee v. Gates (N. Car.) 1917A-514. 31. Public Policy. A covenant which is against public policy is not enforceable. Lee v. Gates (N. Car.) 1917A-514. 32. A condition in a deed, for the benefit of the grantor and its other grantees, that the grantee shall not sell to a negro, is not against the public policy of the state, as creating a tenure of property unknown to the law, in view of La. Rev. Cir. Code, arts. 490, 491, 709, 1764, and 2013, giving the fullest liberty to contract and dispose of one's property. Queensborough Land Co. v. Cazeau (La.) 1916D-1248. (Annotated.) 33. Condition Against Sale to Negro. A condition in a deed, for the benefit of the grantor and its other grantees, that the grantee shall not sell to a negro, does not violate Const. U. S. Amend. 14; since, so far as prohibiting discrimination against the negro race, it applies only to state legislation, and not to contracts of indi- viduals. Queensborough Land Co. v. Ca- zeau (La.) 1916D-1248. (Annotated.) 34. Eestraint of Marriage Validity of Condition in Deed. A condition subse- quent in general restraint of marriage, con- tained in a deed to land, will be disre- garded as invalid, and marriage will work no forfeiture. Gard v. Mason (N. Car.) 1917D-281. (Annotated.) 35. Validity of Condition Against Sale cf Liquor. A townsite company, the stock- holders of which owned a controlling in- terest in another corporation, engaged in mining adjacent to the townsite to induce workmen and employees of the coal com- pany to make their homes in the proposed town, constructed houses thereon to be sold to such employees, and for that purpose procured a loan from a brewing company secured by a deed of trust on all the town- site property except two certain blocks and two lots in other blocks, and as a part of the transaction, and to effectuate a scheme 276 DIGEST. 1916C 1918B. to restrict and limit the traffic in intoxi- cating liquors, agreed to convey such lots to the brewing company, and to insert, in all other deeds conveying lots, a condition that intoxicating liquors should never be sold on the premises except by druggists for medicinal purposes. It is held that such condition in conveyances of lots did not contravene public policy, and was valid and enforceable, as it was not intended to exclude absolutely the sale of intoxicating liquors, or to prevent competition therein in a broad and general sense, or in any way to control prires to the detriment ot the public, especially as the business of selling intoxicating liquor at retail has never been a matter of common right nor a lawful trade except under such author- ity as is specially conferred by the sov- ereignty. Fusha v. Dacona Town Site Co. (Colo.) 1917C-108. (Annotated.) 36. Every owner of real estate in fee simple has the legal right to dispose of it either absolutely or conditionally and to regulate the manner in which it shall be used and occupied as he may deem just and proper, providing the conditions and re- strictions imposed are not violative of the public good or subversive of the public in- terests, and, if conditions in a deed are made in good faith for a valuable consid- eration and do not stipulate for anything malum in se or malum prohibitum, they do not contravene public policy and should be enforced. Fusha v. Dacona Town Site Co. (Colo.) 1917C-108. Notes. Validity of condition in deed in restraint of marriage. 1917D-282. Validity of partial or limited restraint on alienation of fee simple estate. 1916D- 1254. Validity of condition in deed prohibiting sale of liquor on land granted. 1917C-110. Building restriction on restrictive agree- ment as binding public or public service corporation. 1918B-591. i. Nonexistent Grantee. 37. Where a deed purports to grant a present estate in possession to a certain grantee or grantees, and the grantee or any of the grantees are not in being when the deed is executed, no title passes to him or them, and heirs or heirs of the body of a living person are within the rule. Duf- field v. Duffield (111.) 1916D-859. (Annotated.) Note. Validity and effect of deed or grant of present estate to grantee not in existence. 1916D-864. 4. CONSTRUCTION, a. In general. 38. The intention of parties to a doed must be gathered from the language used, which, in case of doubt, must be taken most strongly against the grantor. Bridge- water Milling Co. v. Fredericksburg Power Co. (Va.) 1916D-1027. 39. Grantors are presumed to intend what the words in their deeds import, and the same license of construction permitted in the case of wills is not allowed in the construction of deeds. Duffield v. Duifield (111.) 1916D-859. 40. A deed between a grantor and a per- son named and described as a son of the grantor, and the heirs of his body, as gran- tee, and which declared that the grantor, in consideration of love and affection and the conditions stated, conditionally granted and conveyed to "the said grantee" de- scribed real estate on conditions specified, granted a present estate in possession to the grantee named and to the heirs having no existence, and the deed vested the title in the grantee named. Duffield v. Duffield (111.) 1916D-859. (Annotated.) 41. "Natural Heirs." The term "natural heirs," in a deed to one and her natural heirs, with no context to explain it, is to be given its legal and technical mean- ing, as it cannot be assumed the word "natural" was surplusage. Maynard v. Henderson (Ark.) 1917A-1157. (Annotated.) 42. The term "natural heirs," in a deed to one and to her natural heirs, is not to be construed as meaning heirs generally, but as heirs of the body. Maynard v. Henderson (Ark.) 1917A-1157. (Annotated.) 43. Intention of Parties. In construing a deed, regard must be had to the situation of the parties, the subject-matter of the agreement, and the object which the par- ties had in view at the time and intended to accomplish. Bridgewater Milling Corp. v. Fredericksburg Power Co. (Va.) 1916D- 1027. 44. Construction of Clauses Together. The function or office, of the reddendum in a deed is primary and it is equal, in dig- nity and virtue, to the premises. To as- certain the intent of the grantor and the effect of the deed, both must be read to- gether and permitted to operate. Freud- enberger Oil Co. T. Simmons (W. Va.) 1918A-873. b. Doubtful or Uncertain Description. 45. Meaning of "More or Less." Where a farm is sold, described to contain 104 acres more or less, except 28.50 acres more or loss sold to a railroad, a shortage of about three acres in the property passing to the purchaser is covered by the words "more or less," as such words are intended to cover a reasonable excess or deficit. Frey v. Etzel (Wis.) 1917D-153. (Annotated.) 46. Uncertainty of Description. The law leans against the destruction of a deed for DEEDS. 277 uncertainty of description, and will con- strue, where it can be done consistently with the rules, so as to effect, and not to defeat, the intentiqn of the parties. Nolen v. Henry (Ala.) 1917B-792. 47. A grantor, owning a large body of surrounding land, conveyed ten acres, to be laid off so as to include a certain shoal on the creek, which in fact was in section 15; the deed describing it as being in sections 16 and 22, to be laid off so as to include that certain shoal, the land to be surveyed and platted, and a certified plat to become a part of deed to complete a description, in view of the recording of the plat referred to therein, is an uncer- tain description, which may be aided by parol proof, and which comes within the maxim, "Id certum est, quod certum reddj potest." Nolen v. Henry (Ala.) 1917B- 792. Note. Construction of term "more or less" in deed of realty. 1917D-155. e. Conditions. 48. Construction Against Restriction. Where the right to enforce a restriction contained in the conveyance as to the use of the property conveyed is doubtful, all doubt should be resolved in favor of the free use thereof for lawful purposes by the owner of the fee. Hunt v. Held (Ohio) 1916C-1061. 49. Condition Against Sale to Negro. A condition in a deed, for the benefit of the grantor and its other grantees, that the grantee shall not sell to a negro, is a con- dition subsequent, or a resolutory condi- tion, the accomplishment of which has the effect of restoring matters to the situation in which they were before the contract was entered into. (La. Rev. Civ. Code, art. 2045.) Queensborough Land Co. v. Cazeau (La.) 1916D-1248. 50. Covenant to Use for Residence Pur- poses. A clause in a conveyance restrict- ing the use of the property conveyed "for residence purposes only" does not prohibit the erection of a double or two-family house on tlie premises. Hunt v. Held (Ohio) 191CC-1051. (Annotated.) 51. The word "residence," as used in a covenant restricting the use of property to residence purposes, is equivalent to "resi- dential" in contradistinction to "business," and has reference to the use or mode of occupancy to which the property may be put. A building used as a place of abode, and in which no business is carried on, is used for "residence purposes," whether oc- cupied by one family or a number of fami- lies. Hunt v. Held (Ohio) 1916C-1051. (Annotated.) 52. Invalid Condition, Invalid condi- tions or provisions against alienation in. a deed do not defeat the estate to which they are annexed; but it stands, and the invalid conditions are rejected. Le T. Gates (N. Car.) 19I7A-514. 53. Estoppel To Urge Invalidity of Re- straint on Alienation. A void restraint on alienation in a deed cannot be enforced on ground of estoppel against persons sign- ing the deed. Lee v. Gates (N. Car.) 1917A-514. d. Exceptions and Reservations. 54. Rights of Grantor of Railroad Right of Way. Where the owner of a body of land, through which a private road is maintained by him as a way necessary for ingress and egress between his residence and his farm and timbered lands located thereon, sells a strip of land through his tract to a railroad company for the pur- pose of locating a railroad thereon in such way as to intersect with the private road, and executes to the purchaser a formal deed, whereby he conveys the bargained land to the purchaser in fee simple, with a general warranty of title, and recites in the deed that the land is conveyed "absolutely and without reservation," there is no implied reservation of a right to con- tinue the use of the road at the point of intersection with the land so granted; and under authority of the deed, the grantee, in so far as it might affect the grantor, can close the road. Carlton v. Seaboard Air-Line Ry. (Ga.) 1917A-497. (Annotated.) 55., Repugnancy. An exception of sever- able matter, expressed in sufficient terms and placed immediately after the haben- dum in a deed, is not repugnant in the legal sense of the term to the granting clause, and is valid. Freudenberger Oil Co. v. Simmons (W. Va.) 1918A-873. 56. The space or position in a deed usually accorded to the reddendum may be used for a clause excepting a sever- able thing from the premises or grant- ing clause of the deed, and an excep- tion so made is not repugnant to the grant, unless it is in irreconcilable con- flict therewith. Freudenberger Oil Co. v. Simmons (W. Va.) 1918A-873. 57. Effect of Exception. An exception eliminates from the operation of the terms of the granting clause so much of what would otherwise pass by them as is embraced in the terms of the exception, and the deed, as a whole passes what is embraced in the terms of the grant less what is included in the exception. Freud- enberger Oil Co. v. Simmons (W. Va.) 1918A-873. 58. Exception of Minerals. An excep- tion of the minerals in a tract of land, granted in general terms, by the premises of the deed, made by a clause in space 278 usually occupied by the reddendum, is valid. Freudenberger Oil Co. v. Simmons (W. Va.) 1918A-873. 59. The following terms in such a deed: "Excepting therein all coal or other min- erals or mineral waters which are to be held in common by all the heirs" of the grantor, sufficiently manifest intent to ex- cept the minerals in the land from the operation of the deed. Freudenberger Oil Co. v. Simmons (W. Va.) 1918A-873. 60. Distinction Between Exception and Reservation. A reservation in a deed of proper subject-matter of an exception is, in law, an exception, though incapable of operation as a reservation, since it ex- presses unequivocal intent not to part with the thing reserved. Freudenberger Oil Co. v. Simmons (W. Va.) 1918A-873. (Annotated.) 61. Exception Abortive Attempt to Nullify. An abortive attempt, in a deed in which an exception is made, to grant the subject-matter of the exception, neither negatives the intent to except nor invalidates the exception. Freudenberger Oil Co. v. Simmons (W. Va.) 1918A-873. Note. Distinction between exception and reservation in deed. 1918A-877. e. Inconsistent Provisions or Recitals. 62. Construction Estate Limited by Habendum Clause. Though the granting clause of a deed is "grants, bargains, sells, and conveys the lands," which under Kirby's Ark. Dig. 731, imports a con- veyance of a fee simple, "unless limited by express words of such deed," the fol- lowing provision: "It is understood that said property is to be used as a game and fish preserve only and the conveyors . . . reserve . . . the right to cut and remove all timber . . . and it is a condition . . . should [the grantee] abandon the prop- erty . . . said lands shall revert to [the grantors] or its successors," not constitut- ing, strictly speaking, an habendum clause, but clauses descriptive of the interest con- veyed and of the purpose of the convey- ance, limits the conveyance to the privi- lege of hunting and fishing; there being no such repugnancy between the granting clause and the succeeding clauses as neces- sitates a choice between conflicting provi- sions. Stokes v. State (Ark.) 1917D-657. (Annotated.) 63. Inconsistency of Granting and Habendum Clauses. While, if a deed clearly and by apt terms grants a title in fee simple, any limitation thereof in the habendum clause repugnant to or incon- sistent with the estate so created is void, yet, in determining the intent the whole deed is to be looked to, and the granting clause, being merely "sell and convey . . . undivided one-third interest," and in- tention to create a joint tenancy with right of survivorship clearly appearing from the deed in its entirety, it is to be given that effect. Wood v. Logue (Iowa) 1917B-116. f. Estate or Interest Conveyed. 64. It is also immaterial that the strip of land described in the map as a street was never used by any owner of the ad- joining lands. Eltinge v. Santos (Cal.) 1917A-1143. 65. In such case it is immaterial that for many years a warehouse was main- tained on a buyer's land, and that such warehouse had no opening toward the street. Eltinge v. Santos (Cal.) 1917A- 1143. 66. Sale With Reference to Map Rights of Purchaser. Where the vendor of land passed the deeds thereto before a certain map was recorded, the descriptions of the deeds referring to the map and recognizing that a street existed as delin- eated on such map as being adjacent to the property sold, the subsequent recorda- tion of the map binds the vendor and his successors, so far as the private buyers are concerned, to accord to them a right of way over the land described as a street. Eltinge v. Santos (Cal.) 1917A-1143. 67. Estate Created. The nature and quantity of interests granted by a deed may be ascertained by the instrument it- self and must be determined as a matter of law, and the intent is that which is apparent and manifest in the deed itself. Duffield v. Duffield (111.) 1916D-859. 68. Limitation Clauses. In construing a deed the portions defining and limiting the estate granted are the granting clause and habendum. Duffield v. Duffield (111.) 1916D-859. 69. Deed to One and Bodily Heirs. A deed to one and her bodily heirs creates a fee tail at common law, by Kirby's Ark. Dig. 735, turned into a life estate in th first taker, with remainder in fee in her children. Maynard v. Henderson (Ark.) 1917A-1157. 70. What Estates may be Created. As used in Gen. Stats. Kan. 1863, c. 22, 3, providing that conveyance of land, or of any other estate or interest therein, may be made by deeds, the words "conveyances of land" mean the land itself in fee sim- ple, and "any other estate or interest therein" includes estates of freehold and less than freehold, of inheritance and not of inheritance, absolute and limited, pres- ent and future, vested and contingent, and any other kind a grantor may choose to invent consistent with public policy. Mil- ler v. Miller (Kan.) 1917A-918. 71. Appurtenances. A grant of a lot abutting on a city street vests title to a DEEDS. 279 coal vault under and an opening in a pavement, though in terms not expressly including either of them. Such title is, however, subject to tjie easement of the public for street purposes. Hill v. Norton (W. Va.) 1917D-489. 72. Quitclaim by Judgment Creditor. The holder of a judgment h.as no estate or interest in land subject to the judgment lien, but only a right to have it applied to the satisfaction of his debt, and hence an instrument executed by him quitclaim- ing a part of the land to a purchaser from the judgment debtor merely releases and exonerates such land from the judgment lien. Brown v. 'Harding (N. Car.) 1917C- 548. Note. Construction of habendum clause in deed in connection with premises. 1917D- 661. g. Evidence in Aid of Construction. 73. Where plaintiff, in a suit to estab- lish ownership of various tracts of land end to the coal and minerals thereunder, substantially shows that the lands sued for were within his grant and not included in any prior grants or exclusions, the burden shifts to the defendant to show that the lands were included in an exclusion or prior grant. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. 74. Grant of Lands Inclusion of Par- ticular Tract. In such suit the evidence is held to show that such tracts were not embraced in any of the exceptions in the patent to the original patentee or in plaintiff's deed from the devisees under his will. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. 75. Impeachment by Parol. The inten- tion of the grantor is to be ascertained from the language employed in the deed. In case of doubt, interpretation may be aided by evidence of the situation and cir- cumstances of the grantor and his relation to the grantees at the time the deed would take effect if valid, but it cannot be im- peached by testimony of the grantor that he did not intend anybody should have the land if his son refused to take. Miller v. Miller (Kan.) 1917A-918. 5. COVENANTS EUNNING WITH LAND IN GENERAL. 76. A condition, in a deed for the bene- fit of the grantor and its other grantees, that the grantee shall not sell to a negro, expressly declaring that it runs with the land, creates a real, as distinguished from a personal, obligation, and is valid under La. Rev. Civ. Code, art. 1901, giving the effect of laws to agreements legally en- tered into, and articles 11 and 12 prohibit- ing contracts against law and good morals. Queensborough Land Co. v. Cazeau (La.) 1916D-1243. (Annotated.) 6. COVENANTS OP TITLE, a. Warranty. 77. After Acquired Title. A deed by an expectant heir conveying with general warranty all of his interest in the real estate of his mother, though in effect a quitclaim deed, is sufficient to estop the grantor with respect to a title subse- quently acquired by descent, as a quit- claim deed is sufficient to convey an absol- ute fee-simple title. Blackwell v. Harrel- son (S. Car.) 1916E-1263. 78. Conclusiveness Against Covenantor of Judgment Against Covenantee. Notice of the suit and opportunity to defend it must be given to the warrantor of a title, or a judgment against the title in a suit against his grantee will not be available against him, if available at all, in favor of the successful assailant of the title. Kapi- olani Estate v. Atcherley (U. S.) 1916E- 142. (Annotated.) 79. What Constitutes Breach of War- ranty. Language of the deeds in question in this case examined, and held not a recognition of a highway right over the locus in quo. McAndrews, etc. Co. v. Camden National Bank (N. J.) 1917C-146. (Annotated.) 80. Whether the existence of an ac- tual traveled highway across an open tract of land conveyed without mention thereof is a breach of a general covenant of warranty quaere. McAndrews, etc. Co. v. Camden National Bank (N. J.) 1917C-146. (Annotated.) 81. When there is no open highway across land conveyed, and no indication on the ground of such highway to apprise the grantee of its physical existence, and no subjection of the land to highway uses recognized in the title deeds by express mention or reference to other documents, a prior dedication to public use, afterward accepted by the public and enforced by judgment, will support a suit for breach of warranty. McAndrews, etc. Co. v. Cam- den National Bank (N. J.) 1917C-146. (Annotated.) Note. Necessity of notice to covenantor of good title to defend eviction proceeding in order to conclude him in action on covenant. 1916E-148. b. Against Incumbrances. (1) What Constitutes Breach. 82. Railroad Right of Way as Breach of Covenant. Railroad tracks in existence and operation across a tract of land, when conveyed by deed containing a covenant 260 DIGEST. 1916C 1918B. of warranty and against inenmbTances, are incumbrances, where the grantee, though inspecting the premises before purchase, was misled by the grantor into believing that the railroads were paying rent for the right of way. Schwartz v. Black (Tenn.) 1916C-1195. (Annotated.) 83. Easement to Take Ice. A covenant that the grantor was well seised of the premises as of a good, sure, perfect, absol- ute, and indefeasible estate of inheritance, and that the same are free from all incum- brances which the grantor will forever warrant and defend, is breached by a reservation of the right to harvest ice formed on a pond within the land, which also required party in possession to main- tain the water at a certain height; for the title to ice formed on ponds and streams belongs to the owner of the bed. Gadow v. Hunholz (Wis.) 1917D-91. 84. A landowner covenanted that the premises were free from incumbrances, but his title was subject to the right of others to harvest ice from a pond thereon. The owner of the ice right refused to dispose of it to the grantee, but the grantee was not called upon to keep the water up to a cer- tain level, as the reservation required. It is held that, though the covenant was breached when the deed was made, the right reserved was in the nature of an "easement" or a "profit a prendre," which is the right to take the soil or a product thereof, and hence there was a construc- tive eviction entitling the grantee imme- diately to recover the amount of his dam- ages. Gadow r. Hunhola (Wis.) 1917D-91. (Annotated.) Note. Nature and effect of grant of right to take ice from another's premise*. 1917D- 93. (2) Measure of Damages for Breach. 85. Easement Benefiting Land. Where, in a suit by a grantee for breach of gen- eral covenant of warranty and against in- cumbrances, because of railroad tracks and rights of way over the land, the evi- dence shows that the railroads are bene- ficial to the premises, the grantee cannot recover substantial damages. Schwartz T. Black (Tenn.) 1916C-1195. 7. RECITALS. 86. Impeaching Recital in Deed. Where a deed by a husband for the benefit of his wife recited a valuable consideration, the burden of showing that the deed was exe- cuted in consideration of marriage rests on the husband suing for the restoration of the property after divorce of the par- ties. Anheier v. De Long (Ky.) 1917A- TJ39. 87. Contradiction by Parol. Ky. Civ. Code Prac. 425, requiring a judgment of divorce to contain an order restoring any property which either spouse obtained from the other during marriage in con- sideration thereof, where a divorced hus- band seeks to recover property conveyed to the wife directly or indirectly in con- sideration of the marriage, the recital in the deed of a valuable consideration may be contradicted by parol, even in the ab- sence of any fraud or mistake. Anheier r. De Long (Ky.) 1917A-1239. DEEDS OF TEUST. See Mortgages. DEEB. Right to kill within inclosure, see Ani- mals, 21. Killing deep in defense of property, see Animals, 22. DE FACTO OFFICERS. See Public Officers, 30, 35, 58-60. DEFAMATION. See Libel and Slander. r DEFAULT. See Pleading, 106. DEFAULT JUDGMENTS. See Judgments, 46-50. DEFENDANTS. See Parties to Actions. DEFINITENESS. As essential to remedy, see Specific Per- formance, 2. DEFINITIONS. See Words and Phrases. DEFRAUDING CREDITORS. See Fraudulent Sales and Conveyances. DELAY. See Laches. DEL CREDERE AGENTS. See Agency, 9. DELEGATION OF LEGISLATIVE POWER. See Labor Laws, 26; Public Service Com- missions, 19. DELEGATION OF POWER DEPOSITIONS. 281 DELEGATION OF POWER. Judicial power, see Constitutional Law, 13. Legislative power, see Constitutional Law, 89. DELIVERY. See Escrow, 1-12. Of deed, proof, see Admissions and Decla- rations, 9. Of negotiable paper, see Bills and Notes, 17-19. Of deeds, see Deeds, 416. Bar of statute removed by, see Frauds, Statute of, 6, 9. Of gifts, see Gifts, 4, 5, 12, 13. Meaning, see Intoxicating Liquors, 81. As essential to pardon, see Pardons, 1. Of surety bond, see Suretyship, 7. DELAY. In telegram, see Telegraphs and Tele- phones, 27, 28. DELUSION. Defined, eee Insanity, 24. Defined, see Wills, 62. DEMAND. Prerequisite to action for forfeiture, ee Forfeitures, 1. DEMAND AND PRESENTMENT. See Bills and Notes, 31, 32. DEMURRAGE. State regulation of, see Carriers of Goods, 20. DEMURRER. See Equity, 20; Pleading, 38-62. Ruling on held harmless error, see Appeal and Error, 223-227. To indictment, see Criminal Law, 16. DEMURRER TO EVIDENCE. See Trial, 51. DEPARTURE. See Pleading, 98. DEPENDENTS. Who are under Employers' Liability Aet, see Master and Servant, 74, 75. Who are, under Workmen's Compensation Act, ee Master and Servant, 265-269. DEPOSITARIES. See Escrow. DEPOSITIONS. 1. Right to Take, 281. 2. Necessity and Suiiiciency of Notice, 281. 3. Admissibility in Evidence, 2,82. Eeview, see Appeal and Error, 105. Deposition at former trial, admissibility, see Evidence, 84. 1. EIGHT TO TAKE. 1. Proof of Incapacity of Testator. An action will not lie to perpetuate testi- mony as to the alleged incompetent men- tal condition of one who has executed a will and who is still living. Pond v. Faust (Wash.) 1918A-736. 2. Necessity and Sufficiency of Notice. A notice to take deposition of a wit- ness about to go out of the commonwealth and not to return in time for trial, di- rected to "James C. McClellan," while the party's name was "James C. McLellan," and seasonably served, is sufficient, though subsequent notice, not seasonably served, correctly gave the name of the party. McLellan v. Fuller (Mass.) 1917B-1. 3. Under Ala. Code 1907, 4032, as amended by Acts 1911, p. 487, providing, relative to depositions, that when the tes- timony is desired under section 4030, Bubd. 3, authorizing the taking of deposi- tions when the witness resides more than 100 miles from the place of trial or is absent from the state, the testimony may, unless the opposite party makes the affi- davit therein prescribed, be taken by interrogatories, that the moving party may file interrogatories, of which and of the residence of the witness and of the commissioner to be appointed he must give the opposite party notice, and that, if thereupon such opposite party shall make affidavit that in his belief it is material that the testimony of such wit- ness be taken orally, the clerk shall issue a commission to take such testi- mony by oral examination, provided, how- ever, that in all cases in which testi- mony is to be taken by interrogatories the party against whom the testimony is pro- posed to be taken shall, within the time allowed to file cross-interrogatories, have the right to demand reasonable notice of the time and place of taking the testi- mony and to attend such examination and cross-examine the witnesses orally in all cases where depositions are taken on com- missions from the law courts, the party against whom it is proposed to take the testimony within the time for filing cross- interrogatories has a right to demand rea- sonable notice of the time and place of taking the testimony, and to attend and cross-examine the witnesses orally, though the meaning of the statute is somewhat obscure. Barfield v. South Highlands In- firmary (Ala.) 1916C-1097. 4. Necessity of Naming Witness. The notice directing the commission to take 282 DIGEST. 1916C 1918B. the depositions of persons named "and others," depositions taken of others than those named are admissible. In re Raw- lings' Will (N. Car.) 1918A-948. (Annotated.) Note. Necessity and sufficiency of naming of witness in notice of taking deposition. 1918A-950. 3. ADMISSIBILITY IN EVIDENCE. 5. Depositions Taken Before Death. Such statute does not render inadmissible a deposition of the surviving party to a transaction taken before the death of the other party, though it is offered in evi- dence after such death. Beaston v. Port- land Trust, etc. Bank (Wash.) 1917B-488. (Annotated.) 6. Bight of Adverse Party to Use. When a party takes a deposition and files it, but declines to read it, his adversary may read it, but he must introduce the whole. Jonas v. South Covington, etc. B. Co. (Ky.) 1916E-965. (Annotated.) DEPOSITS. See Banks and Banking, 13-22, 24-56. DEPOTS. See Carriers of Passengers; Railroads. DESCENT AND DISTRIBUTION. 1. Nature and Right of Succession, 232. 2. Property Subject to Succession, 282. 3. Who may Inherit, 282. a. Illegitimate Children, 282. b. Inheritance Through Illegitimates, 282. 4. Actions Concerning Property of Intes- tates, 283. 5. Assignment of Prospective Inheritance, 283. See Advancements; Dower; Escheat; Exe- cutors and Administrators; Wills. Inheritance from foster parent, see Adop- tion of Children, 5, 6. Inheritance from adopted child, see Adop- tion of Children, 7-9. Inheritance by aliens, see Aliens, 57. Distribution to heirs, legatees and credit- ors, see Executors and Administrators, 57-61. 1. NATURE AND RIGHT OF SUCCES- SION. 1. Time of Ascertainment. The son has no heirs at all while living. Who the heirs of his body may be cannot be ascertained until his death, and children now in being take nothing under the deed unless they outlive their father. Miller v. Miller (Kan.) 1917A-918. 2. Nature of Right to Inherit or Take by Will The right to inherit or to take by will and the right to devise and to be- queath are not natural and inalienable rights, nor are they guaranteed by the state or federal constitutions. Moody v. Hagen (N. Dak.) 1918A-933. (Annotated.) Note. Right to take property by inheritance or will as natural right protected by con- stitution. 1918A-939. 2. PROPERTY SUBJECT TO SUCCES- SION. 3. Survival of Actions. In such case, if the injury occurred during the lifetime of plaintiff's devisor, the right of action does not descend to plaintiff as the devisee, but survives to the devisor's personal rep- resentatives. Louisville, etc. R. Co. v. Jackson (Ark.) 1918A-604. 4. Situs of Corporate Stock. Shares of stock in a corporation are personal prop- erty, and descend according to the laws of the state which was the domicil of the owner at the time of his death, and the certificates of shares of corporate stock, which constitute evidence of ownership, are transferred according to the laws of the state wherein the corporation was or- ganized. State v. Dunlap (Idaho) 1918 A - 546. (Annotated.) 3. WHO MAY INHERIT, a. Illegitimate Children. 5. As used in Kan. Gen. St. 1909, $ 2956, providing that illegitimate children shall inherit from the father whenever they have been recognized by him as his chil- dren, but such recognition must have been general and notorious, or else in writing, "general" means "extensive," though not "universal" and "notorious" is synonymous with "open." Record v. Ellis (Kan.) 1917C-822. (Annotated.) 6. From or Through Mother. It is th law in Connecticut that a child born out of wedlock is the child of its mother, cap- able of inheriting from her and through her. Moore v. Saxton (Conn.) 1917C-534. 7. Inheritance from Father. The testi- mony examined and found not to support a finding of general and notorious recogni- tion by the father of the plaintiff's son- ship as required by the statute (Kan. Gen. Stat. 1909, 2956), in order to entitle him to inherit from the father. Record T. Elis (Kan.) 1917C-822. (Annotated.) Note. Right .of illegitimate child to inherit from or through father. 1917C-826. b. Inheritance Through Illegitimate*. 8. Construction of Statute. Under S. Car. Civ. Code 1912, 3562, which was en- DESCRIPTION DETAINER. acted in 1906, and which provides that any illegitimate child whose mother shall die intestate shall, so far as her property is concerned, be an heir at law as to such property, the children of an illegitimate child who died prior to 1906 are heirs of their grandmother, the mother of the ille- gitimate child, who died subsequent to 1906; as the act is remedial, and so con- strued is not retrosoective, since it looks forward to the time when the distribution of the intestate's estate is to be made, especially in view of section 3555, provid- ing that the lineal descendants of an "es- tate" (intestate) shall represent their re- spective parents and take among them the share or shares to which their parents would have been entitled had such parents survived the intestate, and, moreover, the legislature in using the technical term "heir at law" must have intended to in- vest the illegitimate children with inheri- table blood such as other heirs at law pos- sess. Trout v. B'urnette (S. Car.) 1916E- 911. (Annotated.) Note. Law governing status of person as legi- timate or illegitimate. 1917C-537. 4. ACTIONS CONCERNING PROPERTY OF INTESTATES. 9. Liability of Heirs for Debts En- forcement Laches. On a bill to charge the lands of a decedent in the hands of the heirs with a sum alleged to be the property of his surviving children to which they became entitled upon his death as part of their mother's estate, it appeared that complainants' mother on her death in 1895, intestate, was seized in fee-simple of an improved lot, that the property vested in her children as tenants in common, sub- ject to the life estate of their surviving father, that the surviving husband and children immediately sold the lot, that the father gave two-thirds of the proceeds to the children and retained the other third for his own use during his lifetime, though he was entitled to the use of the whole proceeds for life, and the father and the children treated the property as his for 18 years until his death. It is held that as courts of equity do not countenance laches or long delays and refuse to inter- fere in favor of a party guilty of laches or unreasonable acquiescence in the assertion of stale demands, the bill was properly dismissed. Henderson v. Harper (Md.) 1917C-93. (Annotated.) 5. ASSIGNMENT OP PROSPECTIVE INHERITANCE. 10. Release of Expectancy to Answer. Where, as he may, the prospective heir of a living person releases his expectancy to the ancestor, a court of equity will enforce the contract for the benefit of the other heirs. Donough v. Garland (111.) 1916E- 1238. 11. Assignment of Expectancy to Stran- ger. Where the prospective heir of a liv- ing person assigns or transfers his expec- tancy, the transaction operates as a con- tract by the assignor to convey the legal estate or interest when it vests in him, which will be enforced in equity when the expectancy has become a vested interest. Donough v. Garland (111.) 1916E-1238. (Annotated.) 12. Release to Ancestor. The release to a living ancestor by his prospective heir of such heir's expectancy is not within the terms of the statute of descent (Hurd's Rev. St. 111. 1913, c. 39, 4, 8), relating to advancements received by a child or lineal descendant toward his share of the estate. Donough v. Garland (111.) 1916E- 1238. 13. Where an heir presumptive releases his expectancy as such to his ancestor, the release operates to extinguish his right of inheritance; the line of inheritance is ended by the release, which is binding not only upon the heir, but upon those taking as heirs in his place. Donough v. Garland (111.) 1916E-1238. 14. Assignment of Expectancy to Stran- ger. Where an heir presumptive assigns his expectancy as such to a third person, instead of releasing it to his ancestor, his right of inheritance is not extinguished, but the assignment will be enforced as a contract to convey the legal interest when it ceases to be an expectancy and be- comes a vested estate, and the assignee acquires a right to the estate only if it ever vests in the heir. Donough v. Gar- land (111.) 1916E-1238. (Annotated.) Note. Validity of transfer of expectancy in estate made by heir or beneficiary to stranger. 1916E-1241. DESCRIPTION. In contract to sell land, aee Vendor and Purchaser, 5. DESERTION. See Divorce, 9-14, 37-43. DESIRE. Meaning, see Wills, 192, 194, 195. DESTRUCTION. Of will as revival of former one, see Wills, 113. DETAINER. See Forcible Entry and Detainer. 284 DETECTIVES. See Licenses, 23, Sheriff's duty as to detectives, see Sheriffs and Constables, 7. Communications with employer as privi- leged, see Witnesses, 33%. DETENTION. See False Imprisonment. DETINUE. See Replevin. DIGEST. 1916C 1918B. DISCHARGE. See Release and Discharge. Of bankrupt, see Bankruptcy, 24, 25. As consideration, gee Bills and Notes, 12. Of negotiable paper see Bills and Notes, 35-37. Of servant, see Master and Servant, 3-5, 8. Of surety, see Suretyship, 15-19. E'ffect of release of cosurety, see Surety- ship, 25. DISCIPLINE. Punishment of convicts, see Convicts, 3. DEVISES. See Wills. Contract to devise, sea Specific Perform- ance, 5, 6, 9. DIAGNOSIS. Liability for error, see Physicians and Surgeons, 21. DIARY. As evidence, see Evidence, 103, 104. DICT.A. As precedents, see Stare Decisis, 10. DICTAPHONE. Admissiblity of evidence procured by, see Homicide, 35. DILIGENCE. Dismissal for want of, see Dismissal and Nonsuit, 4-9. Sufficiency of showing diligence to secure evidence, see New Trial, 22-24, 33, 34. DIPLOMATIC OFFICERS. See Ambassadors and Consuls. DIRECT ATTACK On judgment, see Judgment, 80. DIRECTING VERDICT. See Verdicts, 14-35. DIRECTORS. Powers and duties, see Corporations, 52, 53. DISAFFIRMANCE. Of contract by minor, see Infants, 8-14. DISBARMENT OF ATTORNEYS. See Attorneys, 44-68. DISCLAIMER. General powers no authority for, tee At- torneys, 8. DISCONTINUANCE. See Dismissal and Nonsuit. DISCOUNT. Provision for, effect on negotiability, see Bills and Notes, 21. DISCOVERY. Order to produce books not reviewable, see Certiorari, 3. 1. Showing of Materiality. Though, un- der Iowa Code, 4654, providing that the district court may in its discretion re- quire the production of any papers or books which are material to the just de- termination of any cause pending before it. the application for such order must affirmatively show that the evidence is material, yet an express averment is not necessary, and where, in an action for libel plaintiff applied for an order to re- quire defendant newspaper to produce its circulation lists, and the petition set out in detail what was expected to be proved by such evidence, it is sufficient as show- ing the materiality of the evidence. Dai- ton v. Calhoun County District Court (Iowa) 1916D-695. 2. Production of Newspaper Circulation Books. An order of the court, in an ac- tion for libel, requiring defendant therein to produce as evidence its circulation books, is not an unreasonable sesrch and eeizur* in violation of Ihe constitution. Dalton v. Calhoun County District Court (Iowa) 1916I>-695. 3. Privilege Transcript of Court Pro- ceedings. A transcript of shorthand notes of a proceeding in court which the attor- ney of a .stranger thereto procured to be taken for his information in anticipated litigation is not privileged from inspec- tion. Lambert T. Home (Eng.) 1916C- 872. (Annotated.) 4. Production of Document. In an ac- tion against a newspaper for libel, the DISCRETIONARY ACTS DISMISSAL AND NONSUIT. 285 circulation books of the newspaper are material evidence showing the extent of the injury, and the fact that defendant in its answer admitted the circulation as broadly as charged does not render it immaterial, since plaintiff, notwithstand- ing the admissions, has the right to in- troduce the evidence. Dalton T. Calhoun County District Court (Iowa) 1916D-695. (Annotated.) Notes. Transcript of court proceedings as priv- ileged from inspection. 1916C-876. Effect on right to production of docu- ment of admission by opposing party as to its contents. 1916D-6&8. DISCRETIONARY ACTS. Not compcllable, see Mandamus, 3. DISCRETION OF COURT. Permitting reading law to jury, see Argu- ment and Conduct of Counsel, 27. In disbarment proceedings, see Attorneys, 48, 52. In ruling on challenges, see Jury, 27, 28. On motion for new trial, see New Trial, 1, 22, 25, 40, 42, 43. Physicial examination of plaintiff, see Physical Examination, 2. Amendment without terma, see Pleading, 70. In imposing sentence, see Sentence and Punishment, 17-19. As to continuance, see Trial, 1. As to exhibitions before jury, see Trial, 57, 58. As to qualification of experts, see Wit- nesses, 11. DISEASE. See Health. As defense, see Breach of Promise of Mar- riage, 1, 5-8. Workmen's Compensation Act as applying to, see Master and. Servant, 110, 193- 198, 200. As affecting testamentary capacity, see Wills, 83, 86. DISHWASHER. As within Workmen's Compensation Act, see Master and Servant, 226. DISMISSAL AND NONSUIT. See Equity, 21-25. Of appeal, see Appeal and Error, 82-88. Eight of client to dismiss, see Attorneys, 15. Of condemnation proceedings, see Eminent Domain, 92-96. Sufficiency as termination of suit, see Malicious Prosecution, 5, 6. Discontinuance of special assessment pro- ceedings, see Taxation, 138. Of taxpayer's suit, see Taxation, 203. 1. Motion to Dismiss Properly Denied. Certain motions to dismiss, made at the close of plaintiff's case and again at the close of all the testimony, held properly denied. Price v. Minnesota, etc. R. Co. (Minn.) 1916C-267. 2. Failure of ProQf. Where the testi- mony for plaintiff, in a personal injury case, leaves the cause of the accident to mere speculation, a nonsuit should be en- tered. Holmberg v. Jacobs (Ore.) 1917D- 496. 3. Taking Case from Jury Insufficiency of Evidence. The court should not take a ease from the jury upon a motion for a nonsuit or upon a motion to direct the jury to return a verdict for defendant, un- less it appears that the evidence in plain- tiff's behalf, upon the most favorable con- struction that the jury would be at liberty to give, would not warrant a verdict for plaintiff. McAlinden v. St. Maries Hos- pital Assoc. (Idaho) 1918A-380. 4. Dismissal for Want of Prosecution. The fact that one of defendant's coun- sel died within the five year period and tho other ceased to act will not excuse plaintiff from bringing the action to trial within that time, as he could have re- quired defendant to appoint another attor- ney, or appear in person. Larkin T. Su- perior Court (Cal.) 1917D-670. 5. After defendant's answer, plaintiff's attorney died, and defendant served no notice on plaintiff in accordance with Cal. Code Civ. Proc., 286. declaring that when an attorney dies or ceases to act a party to an action for whom he was acting must, before any further proceedings are had against him, be required by the adverse party by written notice to appoint an- other attorney or appear in person. Sec- tion 583 provides that if an action is not Drought to trial within five years after answer it shall be dismissed. It is held that the defendant's failure to file notice demanding the appointment of an attor- ney for the plaintiff did not preclude him from claiming a dismissal for plaintiff's failure to bring the case to trial within five years. Larkin v. Superior Court (Cal.) 1917D-670. 6. That the original defendant adminis- trator died within the five-year period arter answer in which actions must, un- der Cal. Code Civ. Proc. 583, be brought to trial, and no other administrator was appointed until after the expiration of that period, will not excuse plaintiff's fail- ure to bring the action to trial and so preclude dismissal. Larkin T. Superior Court (Cal.) 1917D-670. 7. Where the answer was filed June 30, 1909, and the minutes of the court showed that on November 27th, the date set for trial, the parties appeared in court and through their counsel stipulated that trial should be fixed for April 11, 1910, and the 286 DIGEST. 1916C 1918B. court so ordered, that on April 11, 1910, the case was continued until June 29th, and on June 29th the case was again con- tinued until September 19th, but there was no record entry of independent stipulation in writing providing that time of trial should be extended beyond the five-year limit, the action must be dismissed under Cal. Code Civ. Proc. 583, declaring that an action not brought to trial within five years after answer shall be dismissed, un- less extended by written stipulation of the parties. Larkin v. Superior Court (Cal.) 1917D-670. 8. Under such statute, a stipulation by counsel of the respective parties for an extension of the time of trial is a stipula- tion of the parties. Larkin v. Superior Court (Cal.) 1917I>-670. 9. Delay in Bringing Action to Trial. Cal. Code Civ. Proc. 583, declaring that any action shall be dismissed by the court in which it shall have been commenced, or to which it may be transferred on motion of defendant after due notice to plaintiff, unless it is brought to trial within five years after defendant has filed his answer, except where the parties have stipulated in writing that the time may be extended, is mandatory. Larkin v. Superior Court (Cal.) 1917D-670. DISOBEDIENCE. pensation Act, see Master and Ser- vant, 199, 207. . DISORDERLY CONDUCT. See Breach of Peace. DISORDERLY HOUSES. See Prostitution. Policy on bawdy house, validity, see Fire Insurance, 1. Injunction to abate, see Injunctions, 29. 1. "Blind Tiger." A disorderly "blind tiger" is a disorderly "tippling-house." Calhoun v. Bell (La.) 1916D-1165. 2. Illegal Sale of Intoxicants. A saloon run in violation of law is a "disorderly house," which is defined as any place where illegal practices are habitually car- ried on; and hence a saloon open, equip- ped, and ready for business is a threat to breach the peace, if not in itself a breach of the peace. State v. Reichman (Tenn.) 1918B-889. 3. Owners of Premises Liability for Use for Prostitution Tenement House Act. The N. Y. Tenement House Law, as amended by Laws 1913, c. 598, forbidding the use of any part of a tenement for pur- pose of prostitution, though construed to inflict a penalty independently of knowl- edge on the part of the owner as to the use, is a valid act. Tenement House De- partment v. McDevitt (N. Y.) 1917A-455. 4. The knowledge of the owner of the use of a tenement is not essential to a re- covery of the penalty under the N. Y. Tenement House Law, as amended by Laws 1913, c. 598, forbidding that a tene- ment be used for prostitution. Tenement House Department v. McDevitt (N. Y.) 1917A-455. (Annotated.) 5. Under N. Y. Tenement House Law (Consol. Laws, c. 61) 109, 124, as amended by Laws 1913, c. 598, giving right of action for penalty if any tene- ment house or any part thereof shall be used for a purpose of prostitution, an act on a single day, followed by the eviction of the occupants, is insufficient to show the use forbidden by the statute. To make the owner liable, it must appear that the building has been "used" for the pur- pose of prostitution, and this imports, not an isolated act of vice, but some measure, even though brief, of continuity and per- manence. To say that a building is used for such a purpose means, in substance, that it is kept or maintained for such a purpose. Tenement House Department T. McDevitt (N. Y.) 1917A-455. (Annotated.) 6. Instructions Definition of House of HI Fame. The refusal of an instruction defining a house of ill fame as a place in- habited by more than one woman actually engaged in prostitution, and the giving of an instruction defining it as a house visited by persons of both sexes for the purpose of. having unlawful indiscriminate eexual intercourse, is not error. State v. Gardner (Iowa) 1917D-239. Note. Validity and construction of statute making owner of premises liable for use thereof for purpose of prostitution. 1917A-459. DISSECTION. Right of, see Dead Body, 5. DISSOLUTION. See Building and Loan Associations, 6-12. Of attachment, see Attachment, 8-13. Of foreign corporation, see Corporations, 165. DISSOLUTION OF CORPORATIONS. Seo Corporations, 4, 5, 7, 8, 165. DISSOLUTION OF PARTNERSHIP. By retirement of partner, see Partnership, 40. By death of partner, see Partnership, 41. Rights of partners, see Partnership, 42. By suit in equity, see Partnership, 43-46. DISTINGUISHING MARKS DIVORCE. 287 DISTINGUISHING MARKS. On ballot, see Elections, 37-73. DISTRIBUTION OF ASSETS. See Corporations, 115, 116, 146, 147. DISTRIBUTION OF PROPERTY. See Descent and Distribution. DISTRICT ATTORNEYS. See Prosecuting Attorneys. DISTRICT SCHOOLS. See Schools. DISTURBING PEACE. See Breach of Peace. See Irrigation. DITCHES. DIVERSION. Of city funds, see Municipal Corporations. 107. DIVERSION OF WATER. Rights of riparian owner, see Waten and Watercourse*, 14-16. DIVIDENDS. See Corporations, 101-103. DIVISION FENCES. See Boundaries; Fences. DIVORCE. 1. Jurisdiction, 287. 2. Grounds for Divorce, 288. a. In General, 288. b. Desertion, 288. 3. Defenses, 289. a. Condonation, 289. b. Connivance, 289. c. Recrimination, 289. d. Refusal of Reconciliation, 290. e. Separation Agreement, 290. 4. Pleading, 290. a. Answer, 290. b. Cross-bill, 290. 5. Evidence, 290. a. Cruelty, 290. b. Desertion, 290. c. Condonation, 291. 6. Counsel Fees, 291. 7. Decree, 291. a. In General, 291. b. Effect, 291. c. Remarriage, 292. 8. Custody of Children, 292. 9. Vacating or Setting Aside Decree, 292. 10. Independent Action to Recover Prop- erty. 292. 11. Extraterritorial Effect of Foreign Di- vorce, 292. See Alimony and Suit Money. Unreasonable contract for fees, see Attor- neys, 27. Special legislation, see Constitutional Law, 88. Proceedings before commissioner, see Costs, 10. As bar to dower, see Dower, 13. Antenuptial agreement contemplating di- vorce, validity, see Husband and Wife, 17, 24, 25. Liability of husband for wife's attorney's fees, see Husband and Wife, 38, 41, 42. Effect of divorce on insurance, see Life Insurance, 10-12. Remarriage, validity, see Marriage, 4, 5. Effect on mortgage of mortgagor's divorce, see Mortgages and Deeds of Trust, 18. Right of divorced mother to sue, see Seduction, 2, 3. Title of divorce statute, see Statutes, 9. Retrospective operation of statute, see Statutes, 75. 1. JURISDICTION. 1. Statute Requiring Residence. The constitutional prohibition against the im- pairment of obligation of contracts does not apply to divorces, which are under the control of the legislature, and the provi- ion of Act Feb. 20, 1913 (Laws Nev. 1913, c. 10), amending section 22 of the marriage and divorce act of 1861 (Laws 1861, c. 33), as amended in 1875 (Laws 1875, c. 22), by declaring that when, at the time a cause for divorce- accrues, the parties are not both residents, the court cannot have jurisdiction, unless either party has been a bona fide resident for not less than one year, does not impair the obligation of contracts, though it be con- strued as relating to a cause for divorce. Worthington v. District Court (Nev.) 1916E-1097. (Annotated.) 2. Acts Feb. 20, 1913 (Laws Nev. 1913, c. 10), amending section 22 of the mar- riage and divorce act of 1861 (Laws 1861, c. 33), as amended in 1875 (Laws 1875, c. 22), by declaring that when, at the time a cause for divorce accrues, the par- ties shall not have been bona fide resi- dents, the court shall not grant a divorce, unless either party shall have been a bona fide resident for not less than a year, pro- vides for a classification of nonresidents at the time of the accrual of a cause of action for divorce, and the classification is reasonable, and does not conflict with the Fourteenth Amendment to the federal constitution guaranteeing the equal pro- tection of the laws. Worthington v. Dis- trict Court (Nev.) 1916E-1097. (Annotated.) 3. Requirement as to Residence. The provision in Act Feb. 20, 1913 (Laws Nev. 1913. c. 10), amending section 22 of the marriage and divorce act of 1861 (Laws 288 DIGEST. 1916O 1918B. 1861, e. 33), as amended in 1875 (Laws 1875, c. 22), by declaring that when, at the time of the accrual of a cause for di- vorce, the parties shall not both be bona fide residents of the state, no court shall grant divorce, unless either party shall have been a bona fide resident for not less than one year next preceding the com- mencement of the action, is of general uniform operation throughout the state, and applies the same in every part of the state, and to all persons under similar cir- cumstances, and is not a local or special law within Const, art. 4, 20, prohibiting any local or special law granting a divorce. Worthington v. District Court (Nev.) 1916E-1097. (Annotated.) 4. Power of Court. The courts have no inherent power to grant a divorce; but such power must be conferred by statute. Worthington v. District Court (Nev.) 1916E-1097. 5. Residence Essential to Jurisdiction. The courts of a state have no jurisdic- tion to grant a divorce, unless at least on of the parties has a domicil in the state, and the appearance of a nonresident de- lendant will not invest the court with jurisdiction of a suit brought by a person who has no bona fide domicil in the state. Worthington v. District Court (NY.) 1916E-1097. 6. Statute Requiring Residence. A stat- ute of a state which provides that where, at the time of the accrual of a cause for divorce, the parties shall not be both bona fide residents, no court shall grant a di- vorce, unless either party shall have been a bona fide resident for not less than one year next preceding the bringing of the action, does not violate Const. U. S. art. 4, 2, guaranteeing to citizens of each state all privileges and immunities of citizens in the several states; there being a distinc- tion between the citizenship and residence and the rights of citizens and residents, and the constitution guaranteeing no rights to citizens as to divorce. Wor- thington v. District Court (Nev.) 1916E- 1097. (Annotated.) 7. Right to Change of Venue. S. Dak. Code Civ. Proc. 101, requiring actions to be tried in the county of defendant's resi- dence, and section 102, authorizing: the court to change the place of trial when the action is brought in the wrong county. apply to actions for divorce where the de- fendant resides in a different county from that of plaintiff, notwithstanding the pro- visions of Laws 1907, c. 132. 1, that the plaintiff in an action for divorce must have been a resident for three months of the county where the action is commenced. Hockett T. Hockett (S. Dak.) 1917A-938. (Annotated.) Notes. Change of venue in divorce action. 1917A-9-10. Validity of statute requiring certain period of residence within state as pre- requisite to divorce. 1916E-1110. 2. GROUNDS FOR DIVORCE, a. In General. 8. Right to Divorce Statutory. The right to a divorce is not a guaranteed priv- ilege of the citizens, and the right to di- vorce is limited to the causes and subject to the requirements prescribed by state statute. Worthington v. District Court (Nev.) 1916E-1097. b. Desertion. 9. Conduct of Husband's Relatives. Where husband without necessity refused to provide a separate home for his wife, or to furnish a home with her, except at the home of his parents, where she refused to live, but was willing to live with him under any other reasonable conditions, her refusal is not "desertion" sufficient to justify a divorce. Marshak v. Marshak (Ark.) 1916E-206. (Annotated.) 10. What Constitutes Desertion. There may be a separation of husband and wife without desertion, and desertion of a wife by her husband without separation. Tip- ton v. Tipton (Iowa) 1916C-360. 11. Separation Pursuant to Antenuptial Agreement. Abnormal conditions in the marital relation instituted by mutual agreement between husband and wife will afford neither party ground for judicial action against the other, as where the wife lived with her people apart from the husband from the time of the marriage, except for his occasional visits, but such abnormal conditions are to be considered in determining, if there existed a marital relation for the husband to sever by de sertion and in determining if his conduct constituted a desertion. Tipton v. Tipton (Iowa) 1916C-360. (Annotated.) 12. Where the wife lived with her par- ents from the time of marriage, receiving visits from her husband several times weekly, and visiting occasionally at his parents' home, where he lived, there is a marital relation that might be severed by the husband by desertion. Tipton T. Tip- ton (Iowa) 1916C-360. 13. Want of Reasonable Excuse. It is not alone sufficient to justify a divorce that there was a desertion; but the deser- tion must have been without reasonable excuse. Tipton T. Tipton (Iowa) 1916C- 360. 14. Desertion upon Agreement. An ac- tion for divorce for abandonment or desertion occurring after a separation agreement cannot be maintained. Canning v. Canning (Vt.) 1916C-344. (Annotated.) DIVORCE. 289 3. DEFENSES. a. Condonation. 15. What Constitutes. The wife's adul- tery in keeping an assignation house and offering herself therein, is completely con- doned by cohabitation for ten years, when the husband knows of and assists her in operating the house. Klekamp v. Klekamp (111.) !9^18A-663. (Annotated.) 16. Breach of Condition of Condonation. A wife's petition for divorce on the ground of cruelty, wherein the defense is condonation by cohabitation pending the proceeding, but where it is found that the condition of the condonation had been broken by renewed acts of cruelty, is not thereby abated, but the petitioner may rightfully proceed and obtain a divorce thereunder. Egidi v. Egidi (R. I.) 1918A- 648. (Annotated.) 17. "Condonation" is the forgiveness, express or implied, by one of the married parties of an offense which he knows the other has committed against the mar- riage, on the condition of being con- tinually afterwards treated by the other with conjugal kindness, and that there shall be no just cause for complaint in the future resulting in the rule that, while the condition remains unbroken, there can be no divorce, but that a breach of it revives the original remedy. Egidi v. Egidi (R. I.) 1918A-648. (Annotated.) 18. While cohabitation while a divorce proceeding is pending is ordinarily a con- donation, and a bar to the relief prayed for, yet when the charge is cruelty, much less cruel treatment than would be neces- sary for a good ground for divorce, will suffice to avoid the defense of condo- nation, and the wife, owing to her helpless- ness, is more indulgently considered as to ecr-tionation than the husband, and if the co"diHon of condonation in such case is broken by a renewal of the acts of cru- e''<- the. o"i 29-39. Proof of motive, see Polygamy, 1. Violation of postal laws, burden of proof, see Postoffice, 1. Admissibility of evidence in trial for using mails to defraud, see Postofllce, 4, 7-10. On proceedings to oust officer, see Public Officers, 55, 56. Proceedings before railroad commission, see Railroads, 4. In accidents at crossings, see Railroads, 71-75. In civil action for rape, see Rape, 14. Malice shown by giving redelivery bond, see Replevin, 11. 338 ' DIGEST. 1916C 1918B. Proof of mistake for reformation, see Re- scission, Cancellation and Reforma- tion, 6, 7. Proof for cancellation, see Rescission, Can- cellation and Reformation, 16, 30-32. Action on warranty, see Sales, 35. Admissibility in action for seduction, see Seduction, 4. No vested right in rules of evidence, see Stare Decisis, 7. Judicial notice of current history, see Statutes, 87. In actions for injuries by street ears, see Street Railways, 38-41. Action for injury by defect in highway, see Streets and Highways, 43. In action on suretyship contract, see Suretyship, 23. In action for delay in telegram, see Tele- graphs and Telephones, 32. Sufficiency to prove tender, see Tender, 1. Reception of evidence, see Trial, 15-52. Proof of trust, see Trusts and Trustees, 5, 18-21. Proof of usury, see Usury, 6. Judicial notice of state of war, see War, 1. Actions against warehousemen for negli- gence, see Warehouses, 10, 11. Proof of execution of will, see Wills, 41- 48. Proof of testamentary capacity, see Wills, 64-88. ProQf of undue influence, see Wills, 98- In proceedings to contest will, see Wills, 129, 140, 148, 144. Testimony as to transactions with person since deceased, see Witnesses, 35-46. 1. JUDICIAL NOTICE. a. General Principles. 1. Notoriety. The limits of "judicial notice" cannot be prescribed with exact- ness, but notoriety is, generally speaking, the ultimate test of facts sought to be brought within the realm of judicial no- tice; in general, it covers matters so noto- rious that a production of evidence would be unnecessary, matters which the judicial function supposes the judge to be ac- quainted with actually or theoretically, and matters not strictly included under either of such heads. Gottstein v. Lister (Wash.) 1917D-1008. 2. Stipulations and Admissions. Neither the stipulations nor admissions of coun- sel can bring facts within the sphere of judicial notice which in law did not be- long there. Gottstein v. Lister (Wash.) 1917D-1008. (Annotated.) b. Legislation. 3. Judicial notice will be taken of jour- nals of the legislature before they are pub- lished. Heiskell v. Knox County (Tenn.) 1916E-1281. (Annotated.) 4. Judicial notice of legislative journals, showing the proper enactment of a statute, may be taken on demurrer to a bill, char- ging that a statute was not regularly en- acted; a demurrer not admitting allega- tions contrary to facts judicially known to the court. Heiskell v. Knox County (Tenn.) 1916E-1281. (Annotated.) 5. Legislative Journals. The court takes judicial notice of the journals of the legis- lature,, showing the steps taken in the en- actment of statutes. Heiskell v. Knox County (Tenn.) 1916E-1281. (Annotated.) 6. Federal Statutes. State courts take judicial notice of acts of Congress. Row- lands v. Chicago, etc. R. Co. (Wis.) 1916E- 714. Note. Judicial notice of contents of legislative journals on issue as to enactment of stat- ute. 1916E-1284. c. Elections. 7. Number of Voters in State. The court judicially knows, as matter of com- mon knowledge, that there are not 900,000 electors in the state of Washington. Gott- stein v. Lister (Wash.) 1917D-1008. 8. Procedure for Adoption of Constitu- tional Amendment. Wash. Const, art. relating to amendments, provides that the legislature shall cause amendments to be submitted to the- people, to be published at least three montns next preceding the election in some weekly newspaper in every county where a newspaper is pub- lished throughout the state. In an action to enjoin the governor and state and county officers from enforcing initiative measure No. 3 (Laws Wash. 1915, p. 2), it was contended that the seventh amend- ment to the constitution had not been law- fully submitted, in that publication was defective because not published in several counties for the required period "next pre- ceding" the election thereon. It is held that, so far as officially recorded facts were concerned, the court judicially knew only that the legislature of 1911 proposed the seventh amendment; that such pro- posal was duly evidenced by proper en- tries on the senate and house journals: that the act provided for publication of the amendment prior to the election, as re- quired by the constitution; that, on a can- vass showing its adoption, the governor proclaimed the amendment to have been adopted and to have become part of the constitution; that it could not judicially notice facts touching the sufficiency of its - publication prior to its adoption; and that,.. as all the facts within its knowledge . showed its lawful adoption, it could not - say that publication was defective, or that it had not been duly submitted to the ; people. Gottstein v. Lister (Wash.) 1917D- 1008. (Annotated.) Note. Judicial notice of proceedings for adop- tir>n of amendment to constitution. 1917D- 1031. EVIDENCE. 339 d. Customs. 9. Business Methods. The court can take judicial notice of the general purpose and method of doing business of building and loan associations. Union Savings, etc. Co. v. District Court (Utah) 1917A-821. e. Navigability of Stream. 10. Navigable Character of Stream. The court will take judicial notice that the Connecticut river ia a public highway used for transporting property in boats and floating logs. B'outwell v. Champlain Realty Co. (Vt.) 1918A-726. 11,. Whether a state supreme court in a mandamus proceeding should take judicial notice that the principal river of the state is navigable at the capital of the state is a question of state law, and the federal supreme court cannot pronounce its action in taking judicial notice thereof errone- ous; there being no constitutional right to a trial by jury. Wear v. Kansas (U. S.) 1918B-586. f. Matters Pertaining to Public Service Corporations. 12. Charter of Public Service Corpora- tion. The court will not take judicial no- tice of the provisions of the charter of a public service corporation. Western Union Tel. Co. v. Burlington Traction Co. (Vt.) 1918B-841. g. Population. 13. Federal Census. It is a matter suffi- ciently notorious to charge the court with judicial knowledge that according to the federal census of 1910 approximately one- third of the productive population is en- gaged in agriculture. Hill v. Eae (Mont.) 1917E-210. h. Mortality Tables. 14. Mortality Tables. It is not error to admit, without foundation, a standard table of life expectancy, in an action for the wrongful death of a street car pas- senger, since courts will take judicial no- tice of such a table. Froeming v. Stock- ton Electric E. Co. (Cal.) 1918B-488. (Annotated.) Note. Judicial notice of mortality tables. 1918B-415. i. Physical Results. 15. Properties of Gasoline. The court will take judicial notice of the dangerous character and explosive qualities of gaso- line. Whittemore v. Baxter Laundry Co. (Mich.) 1916C-818. 16. Inflammable Nature of Gas. In an employee's action for injuries from the ex- plosion of a gas stove, the court will take judicial notice that gas used for fuel is so inflammable that the moment a flame is applied it will immediately ignite with an explosion, if present in any considerable volume. Holmberg v. Jacobs (Ore.) 1917D- 496. j. Governmental Affairs. 17. Public Fiscal Affairs. The court judicially knows that the organized mili- tia of the state, when traveling on orders from the governor, travels at the expense of the state. State v. Missouri, etc. fi. Co. (Mo.) 1916E-949. k. Matters not Judicially Noticed. 18. While the court will take judicial no- tice that the White river is one of the large rivers of the state and is nontidal, the question whether it is a "boatable stream" ^that is, one of common passage as a highway) is one of fact. Boutwell v. Champlain Realty Co. (Vt.) 1918A-726. 19. Practicability of Labeling Seed. The courts do not judicially know that in the ordinary conduct of business the re- quirement of a statute that agricultural seeds be labeled with the locality where the seed is grown is an impracticable one. State v. McKay (Tenn.) 1917E-158. 2. RELEVANCY AND ADMISSIBIL- ITY IN GENERAL. a. In General. 20. Ruling on Evidence Approved. It is held that the court did not err in refusing to admit certain evidence. Ruble v. Busbj (Idaho) 1917D-665. 21. Certain rulings of the trial court OK the admission of evidence held not erro neous. Viita v. Fleming (Minn.) 1917E 678. 22. The court did not err in its rulings excluding certain evidence. Norton v. Duluth Transfer R. Co. (Minn.) 1916E- 760. 23. Liberal Tendency as to Admissibil- ity of Evidence. The modern notion of the admissibility of evidence is that it is more important to get the truth than to quibble over impractical distinctions be- tween facts and conclusions. First Na- tional Bank v. Robinson (Kan.) 1916D- 286. 24. Subsequent Conditions. Evidence of condition of places and ways a few days after the accident is admissible in connec- tion with a showing that the situation has remained unchanged. Marks v. Columbia County Lumber Co. (Ore.) 1917A-306. 25. Where evidence is elicited on cross- examination from which an inference of a fact favorable to accused may be drawn, subsequent evidence of other facts show- ing that the inference is not warranted is competent and material. People v. Gas- sidy (X. Y.) 191GC-1009. 340 DIGEST. 1916C 1918B. 26. Irrelevant Testimony. Testimony which does not illustrate any issue made by the pleadings should be repelled. Peagler Y. Davis (Ga.) 1917A-232. 27. What Evidence Is Relevant. Un- der common-law principles, whatever tends to prove any material fact is relevant and competent. People v. Roach (N. Y.) 1917A-410. 28. Disregard of Technicalities. Rules of evidence are established for the pur- pose of enabling the court and jury to as- certain the true facts concerning the mat- ters in controversy, and not for the pur- pose of hindering and delaying justice, by the enforcement of technical abstract phrase? defining the rules for the admis- sibility of evidence. Rogers v. O. K. Bus, etc. Co. (Okla.) 1917B-581. Note. Admissibility in civil case of evidence showing that witness had previously claimed privilege in criminal case. 1917E- 879. b. Proving Value. 29. The same principles apply to the proof offered of the value of certain house- hold goods, clothing, pictures, and other personal articles which were in the fac- tory when it burned. Hollinger v. Mis- souri, etc. R. Co. (Kan.) 1916D-S02. (Annotated.) 30. Cost. The case is the common one in which the property destroyed was not bought and sold on the market, had no market value, and consequently could not be valued by that standard. In such cases the real value is to be ascertained from such data as may be available. Cost is an element of such value, and a person hav- ing knowledge of the elements involved may testify to them and give his estimate of value. Hollinger v. Missouri, etc. R. Co. (Kan.) 1916D-802. (Annotated.) 31. Price Paid. Proof of what was paid for an article recently in the open market or when sold at auction, etc., is some evi- dence of the actual or reasonable value of such article. Carnego v. Crescent Coal Co. (Iowa) 1916D-794. (Annotated.) 32. Detailed Value of Property Valued as Whole. Where it appears that the value of 'the business, the property, and the good will has been agreed upon by the contracting parties- and stipulated in a written contract, and no other considera- tion than that fixed in the contract is shown, and where it further appears that the written contract was admitted to be the contract entered into between the par- ties in which the consideration for such business, property, and good will as a whole was fixed, the trial court does not err in striking out the testimony of appel- lant attempting to fix the valup of each article of personal property and the real estate separately. Harshbarger v. Eby (Idaho) 1917C-753. 33. Proof of Value. The value of prop- erty cannot be established by the amount at which it is listed by a real estate broker for sale. Peagler v. "Davis (Ga.) 1917A- 232. 34. Value of Land. In an action for a certain per cent of the value of land as an attorney's fee, evidence that the land was available for city lot purposes is compe- tent to establish its market value at the time the debt accrued, though it was not then being used for such purposes. Myers v. Bender (Mont.) 1916E-245. Note. Price paid for personalty or services as evidence of value thereof. 1916D-797. c. Proof of Nonexistence of Debt. 35. Rebutting Inference. Where there is testimony justifying an inference that a portion of the amount subsequently bor- rowed by W. was used by him to discharge the note, evidence of the payment of the note by W.'s brother, limited to contradict the inference, is admissible. People v. Cassidy (N. Y.) 1916C-1009. d. Identity of Person. 36. Person Referred to not Identified. In an action for the death of a hackman, claimed to have been caused by the negli- gent construction of a highway, where liquor was found in the vehicle, testimony by a woman that she was carried to her home in that vicinity about an hour and a half before by a hackman, whom she did not know, but judged was sober, is imma- terial, there being nothing to show that the two were the same. Richardson v. Sioux City (Iowa) 1918A-618. 3. HEARSAY EVIDENCE, a. In General. 37. In an action by the assignee of a lease against the lessor, it is proper to re- fuse to permit plaintiff to testify as to statements made by his assignor concern- ing the lease; such being hearsay and not binding on the lessor. Streit v. Wilker- son (Ala.) 1917E-378. 38. In an action against a decedent's es- state for board furnished him. a question to a witness as to what decedent had said to him when he purchased certain goods at a store was properly excluded as hear- say. McCurry v. Purgason (N. Car.) 1918A-907. 39. Ancient Transaction. In an action by a railroad company to recover posses- sion of land condemned by it in 1833, in EVIDENCE. 341 which defendant claimed that the com- pany had abandoned its easement therein, conveyances of the land and distributions of it aa a part of the estates of deceased owners, most of which were made more than thirty years prior to the trial, and none of which recognized any title in the railroad company, are admissible to prove possession by those claiming under the former owner, since a party will be re- quired, and within the limits of sound rea- soning permitted, to present the best and fullest case within MB power to offer, and where the fact in question comes from a time beyond living memory placed at thirty years, there is an exception to the rule rejecting hearsay evidence allowed in cases of ancient possession and in favor of the admission of ancient documents in support thereof. New York, etc. R. Co. v. Cella (Conn.) 1917D-591. 40. Hearsay. In general, hearsay testi- mony is inadmissible. Carroll v. Knicker- bocker Ice Co. (N. Y.) 1918B-540. b. Pedigree. 41. As to Race to Which Person Be- longs. A witness, who has not testified to general reputation as to the parentage of a person, whose race is in question, cannot testify as to who was said to be such per- son's parent. Medlin v. County Board of Education (N. Car.) 1916E-300. (Annotated.) c. Testimony on Former Trial. Note. Admissibility of evidence given at for- mer trial concerning transaction with per- son since deceased. 1917B-366. 4. CHARACTER OR REPUTATION. 42. Evidence of Reputation. In a civil action for the recovery of a penalty, evi- dence of general reputation of the defend- ants as law-abiding citizens was inadmis- sible, and the court properly excluded such evidence. Hammett v. State (Okla,) 1916D-1148. (Annotated.) Note. Admissibility of evidence of character or reputation of defendant in action to recover penalty. 1916D-1151. 5. BEST AND SECONDARY EVI- DENCE. a. In General. 43. Contents of Lost Letters. Where a suit was on a contract embodied in letters which were shown to have been lost, it is proper to introduce copies in evidence. Josephs v. Briant (Ark.) 1916E-741. b. Executed Sale of Land. 44. Sale in Bankruptcy Proceeding. Where on the trial of a claim case the wife of the defendant in fi. fa., whoso trustee in bankruptcy was the claimant, was permitted to testify, over objection, that a certain lot of land (on which she claimed that she had borrowed money and that her money had been used in buying the stock of goods levied on) had recently been sold by the trustee in bankruptcy, the admissibility of such testimony was not open to the sole objection that there was better evidence of the sale. Brown v. Caylor (Ga.) 1916D-745. 45. Maps. Under Ore. L. O. L. 712, providing that there shall be no evidence of the contents of a writing, other than the writing itself, except when the origi- nal is in the possession of the party against whom the evidence is offered, and he withholds it upon notice to produce, and when the original cannot be produced by the party by whom the evidence is offered in a reasonable time with proper diligence, and its absence is not owing to his neglect or default, in a suit to deter- mine an adverse interest in realty, where the width of streets was in question, the point being whether the owner of land, selling it, had represented, by exhibiting a printed map, that streets were of a, cer- tain width, two duplicates of the printed map exhibited to the purchaser of the original plat of the district are admissible in evidence for plaintiff, though he offered no testimony to explain his failure or in- ability to produce the original from which the copies were made, since copies of printed duplicates are admissible. Nicho- las v. Title, etc. Co. (Ore.) 1917A-1149. c. Letters. 46. Mailing of Letter. Where a United States postmaster testified that a person mailed a registered letter to a certain ad- dress, if the witness was testifying from personal knowledge, and not from the rec- ords, which the postoffice regulations for- bade his taking from the postoffice, the evidence is admissible. Josephs v. B'riant (Ark.) 1916E-741. 47. Hearing Letter Bead. A witness who heard a letter read may testify as to its contents, the letter being lost and the person who read it being dead; the obliga- tion to the source of his knowledge of the contents going to the weight only of his testimony. Chalvet v. Huston (D. C.) 1916C-1180. (Annotated.) d. Title to Realty. 48. When the title to real estate is di- rectly in issue, the best evidence of title consists in the muniments of title such as deeds, mortgages, patents, wills, etc. Littlefield v. Bowen .(Wash.) 1918B-177. e. Laying Foundation for Secondary Evi- dence. 49. Necessity of Demand for Document. Since the defendant in a criminal prosecu- 342 DIGEST. 1916C 1918B. tion cannot be compelled to testify against himself, or produce incriminating docu- ments, the state may introduce secondary evidence as to the contents of such docu- ments without previous notice to produce the original. People v. Gibson (X. Y.) 1918B-509. 50. Secondary Evidence of Document. The admission in evidence of copies of in- voices which the party offering the copies claims he sent to the adverse party is erro- neous, where notice to produce the origi- nals was not served on the adverse party, and where there was no examination of the adverse party as to their existence. Herman & Ben Marks v. Haas (Iowa) 1917D-543. 6. EXPERT AND OPINION EVIDENCE. a. Opinion of Witnesses in General. 51. Scope of Patent Evidence of Sur- veyor. On the issue whether a part of a tract was embraced in a patent prior to that tinder which the plaintiff claimed, the statement of one of the surveyors that it was his opinion that it was so embraced, but that he had not made any survey of the other patent and knew nothing of its lines, except that some one had informed him of the location of one of the corners, does not constitute any evidence as to where the lines of the patent, made sixty years previously, would be marked when surveyed, and hence is insufficient to re- quire a submission to the jury. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. b. Expert Evidence. (1) In General. 52. Theory of Admission. Experts are allowed to testify by way of opinion be- cause they are presumed to have acquired more skill and knowledge and to be more capable of forming a correct opinion as to the subject-matter of the question under discussion. American Bauxite Co. v. Dunn (Ark.) 1917C-625. 53. Weight. There are degrees, of ex- pertness and witnesses who by experience, study and observation know more about the subject in question than persons who have had no experience or especial knowl- edge touching such subject are competent to testify as experts, the weight of their testimony being for the jury. Denver v. Atchison, etc. B. Co. (Kan.) 1917A-1007. 54. Testimony by a handwriting expert as to the genuineness of a disputed sig- nature is the expression of an opinion and not binding on the jury, and its weight depends very largely on the cogency of the reasons given by him for his opinion. Palmer v. Blanchard (Me.) 1917A-S09. (2) Qualifications of Experts. 55. In an action against a railroad for death of a switchman in service, the quali- fication of the fireman of the switching crew, to testify as a railroad expert as to whether it was the switchman's duty to throw a certain switch about the time he was killed, rests largely in the discretion of the trial judge. Devine v. Delano (111.) 1918A-689. 56. Duty of Railroad Employee. In an action against a railroad for death of its switchman in service, the fireman of the switching crew is qualified to testify that from his knowledge of railroading he would say it was the switchman's duty to have thrown a switch about the time he was killed. De.vine v. Delano (111.) 1918A- 689. (3) Subjects of Expert Testimony. 57. Correspondence of Logs With Stumps. It is not error to receive as evidence the opinions of qualified witnesses as to whether logs found in defendant's posses- sion came from stumps on the land of the complaining witnesses. State v. Ward (Minn.) 1916C-674. 58. Weight of Expert Testimony. The opinions of experts are admitted to aid the jury to understand questions which in- experienced persons are not likely to de- cide correctly without aid, but it is for the jury to determine what weight the opinion of an expert is entitled to under the circumstances of a given case. Amer- ican Bauxite Co. v. Dunn (Ark.) 1917C- 625. 59. As to Handwriting. Opinion evi- dence in relation to handwriting is gen- erally viewed with caution by the courts. B'aber v. Caples (Ore.) 1916(^1025. 60. Testimony That Person Appeared Sick. A graduate and experienced nurse may properly testify that a person ap- peared to be very sick, and it would seem that any witness of ordinary intelligence might be allowed to so testify. Barfield v. South Highlands Infirmary (Ala.) 1916C-1097. 61. Possibility of Cure. In an action for malpractice, it is not error to permit experts to answer questions as to whether there was any way known to the medical profession by which a blood clot, "in cases of this sort," could be prevented, on the theory that such testimony transcended the limits of all possible human attain- ment. Barfield v. South Highlands Infirm- ary (Ala.) 1916C-1097. 62. Wounds Possibility of Infliction With Particular Weapon. A physician who reached decedent immediately after his death and who describes the wounds EVIDENCE. 343 inflicted on decedent, is properly permit- ted to testify that the wounds could have been inflicted by a razor held by a man coming up from behind decedent and cut- ting him from behind. State v. Giudice (Iowa) 1917C-1160. 63. Result of Observations Under Micro- scope. A handwriting expert may testify as to the age of ink, as indicated by his observations under the microscope; the testimony of a witness not being limited to the information which he acquires by his senses, unaided by any instrument or process. Williams v. Williams (Me.) 1916D-928. (Annotated.) 64. Gasoline Erp'.osion. It requiring peculiar skill and judgment by those who had experience in such matters to state how the gasoline, by the explosion of which plaintiff's testate was killed, might have got into his cellar, it was proper to allow experts to give their judgment thereon. Mahlstedt v. Ideal Lighting Co. (111.) 1917D-209. 65. Opinion Evidence as to Purpose. In a prosecution for the attempt to entice a girl to enter employment of another for immoral purposes, opinions as to the char- acter of the place of employment, based on hearsay, are inadmissible; such matter not being a subject for expert testimony. State v. Eeed (Mont.) 1917E-783. 66. Finger Prints. In a prosecution for murder, where there was testimony of five separate marks upon the clapboards of the deceased's house, and proof that such marks were made in human blood, the ex- pert testimony of a witness, who fully ex- plained his qualifications, specified the cir- cumstances upon which he predicated his opinion, swore that he was able to express an opinion with reasonable certainty and who was exhaustively and skilfully cross- examined as to the identity of the defend- ant's finger prints upon paper with the marks on the clapboards, is competent. People v. Eoach (N. Y.) 1917A-410. (Annotated.) c. Nonexpert Opinion. (1) In General. 67. Conclusion of Witness. In an action on a policy on a stallion, where the plain- tiff was allowed to testify that the $2,000 cash which he had paid at the time of the purchase of the insured horse and others was paid for that horse, because the seller claimed that a note was outstanding on such horse, and she had to have the cash to pay it, such testimony is not improper as calling for the conclusion of the witness as to how the money was applied, since it was a mere relation of alleged facts. Sim- mons v. National Live Stock Ins. Co. (Mich.) 1917D-42. 68. On an issue as to whether a note of a married woman was an independent transaction or given as surety for her husband, an offer to prove by plaintiffs cashier that, if plaintiff took the note without any investigation of the parties or genuineness of the signature, it would appear that the transaction was done merely for collateral security as defend- ant claims and to get rid of the com- plaint of a bank examiner, is properly refused as an offer to elicit argument from the witness and not to show facts. First National Bank v. Bertoli (Vt ) 1917B-590. 69. Evidence as to the cause of an employee's discharge by witnesses who were familiar with the cause was as to a fact and not a conclusion. Johnson v. Aetna Life Ins. Co. (Wis.) 1916E-603. 70. It is error to allow plaintiff to state he would not have bought the tract with- out the spring at the price he paid, if he had not owned the tract with the spring. Stonegap Colliery Co. v. Hamilton (Va.) 1917E-60. (2) Subjects of Nonexpert Opinion. 71. Value of Wearing AppareL The owner of wearing apparel may testify as to its value in an action to recover dam- ages for the loss thereof. Rules of evi- dence are not so technical as to require ex- pert witnesses to prove the reasonable or market value of chattels in common use, where it is apparent from the facts proven that the value of the articles is within the knowledge of persons of ordinary intelli- gence and experience. Rogers v. O. K. Bus, etc. Co. (Okla.) 1917D-581. (Annotated.) 72. Value of Chattels. It is the well- known and generally accepted rule that, when a witness testifies as to the value of chattels in common use, it will be inferred that he means their market value, unless a different basis of value is fixed by the witness, or it is apparent that the witness bases his value on a different foundation. Rogers v. O. K. Bus, etc. Co. (Okla.) 1917B-581. 73. Knowledge from View. It is not error to permit jurors on the former trial to give their opinions or conclu- sions derived from and based upon the knowledge acquired on the view. State v. Ward (Minn.) 1916C-674. (Annotated.) 74. Estimate of Quantity. Where, in an action under Towa Code, 2423, to recover payments made for liquor illegally sold by defendant to plaintiff, a witness testified that he delivered liquor to plaintiff, but kept no account of the sales or the quan- tity, and turned over to defendant the amount each night, it is proper to permit 344 DIGEST. 1916C 1918B. the witness to give his opinion as to the amount of liquor delivered to plaintiff. Critanovich v. Bromberg (Iowa) 1917B 309. 75. Testamentary Capacity. A nonex- pert, though not a subscribing witness and not present at the execution of the will, may testify to testatrix's mental condi- tion, if he has had adequate opportunities for observation and forming an opinion. In re Eawlings' Will (N. Car.) 1918A-948. 76. Knowledge of Another. In an ac- tion for the death of a servant employed by defendant in the operation of an elec- tric plant, and whose duty it was to turn the switches, alleging defendant's negli- gence in the installation of the switches, and that the accident was due to insuffi- cient insulation of the switch handles, the inquiry as to decedent's knowledge of the voltage of the current does not relate to a matter within the realm of expert testi- mony, where there is nothing in the case to show that it required any technical knowledge to judge accurately of what de- ceased, in the circumstances disclosed, must have known concerning the voltage. McCarthy's Adm'r v. Northfield (Vt.) 1918A-943. (Annotated.) Note. Admissibility of direct opinion of wit- ness as to ownership of personalty. 1916D-289. 77. Direct Testimony as to Ownership. A party claiming title to a chose in action or other personal property which is the subject of litigation may properly be per- mitted to answer a question as to who is its owner, and if his adversary desires the constituent facts on which such claim of ownership is based he may elicit them on crose-examination. First National Bank v. Kobinson (Kan.) 1916D-286. (Annotated.) 78. Intoxication. Opinions of nonex- perts are admissible on the defense of in- toxication in a murder case. Common- wealth v. Boyd (Pa.) 1916I>-201. 79. Evidence of Intoxication. It is not competent for witnesses of accused to tes- tify that his intoxication rendered him, at the time of the killing, incapable of un- derstanding that he was committing a crime, since that is a conclusion for the jury. James v. State (Ala.) 1918B-119. 80. A witness, testifying that accused, relying on the defense of intoxication, was drinking and acted queerly just before the offense, may not testify that he considered accused mentally unbalanced at that time. James v. State (Ala.) 1918B-119. 81. In a servant's action for damages for personal injury, wherein the master claimed that the injury was caused by plaintiff's fall while intoxicated, the peo- ple with whom plaintiff boarded, who saw him at the breakfast table and ob- served hia conduct, might state that then and when he left the house shortly after- wards he was very drunk, as whether a person is drunk is a question which one not an expert may answer, being some- thing of common knowledge, and such statements amounting in effect, to a de- scription of facts, a characterization of plaintiff's conduct. American Bauxite Co. v. Dunn (Ark.) 1917C-625. (Annotated.) Note. Admissibility of nonexpert testimony to prove intoxication. 1917C-628. 7. DOCUMENTAKY EVIDENCE, a. In General. 82. Evidence in Another Case. The evi- dence in an action of debt, dependent upon the same issues of fact as those in- volved in another action of assumpsit, is made part of the record in the latter by the following agreement filed therein: "The parties hereto agree that the facts in this case are as follows: (Here insert the transcript of the evidence as certified by Henry Garfield Chancy, the official stenographer of this court, as reported in the same styled case, marked Debt No. 1, tried at the September term of this court, 1908.)" Wilson v. Shrader (W. Va.) 1916D-886. b. Records and Public Documents. 83. Where plaintiff passenger, after his arrest by defendant railroad's conductor and ejection from the train for being drunk, pleaded guilty to a charge of being drunk and disorderly in the city, the rec- ord of the conviction, in plaintiff's subse- quent suit against the road for his arrest by the conductor, is admissible in evidence as an inconclusive admission against plain- tiff's contention in the suit that he was sober when arrested. Spain v. Oregon- Washington R. etc. Co. (Ore.) 1917E-1104. (Annotated.) 84. Deposition at Former Trial. In an action against an attorney for negligence in the trial of an action for plaintiff, suing an employer for a personal injury, a dep- osition of a witness testifying at a former trial is admissible, where the witness in the deposition has more than merely corro- borated the testimony at the trial. Mc- Lellan v. Fuller (Mass.) 1917B-1. (Annotated.) 85. Hearing on Transcript of Former Evidence. Due process of law does not forbid the hearing of a cause upon a tran- script of evidence formerly heard in court, especially where the course pursued has the nssont of the parties. De La Rama v. De La Kama (U. S.) 1917C-411. EVIDENCE. 345 86. Certified Copy. A certified copy of the records in the office of the collector of internal revenue relating to the issuance of a liquor license is admissible in evi- dence in a prosecution for maintaining a liquor nuisance when properly proved, and. such record is properly proved when there is attached thereto a certificate by the col- lector of internal revenue as to its cor- rectness and authenticity. State v. Kil- mer (N. Dak.) 1917E-116. 87. A statement in a certificate of the collector of internal revenue, which is at- tached to a certified copy of the record of special taxpayers and registers of his dis- trict, does not render the admission of such record reversible error, because it states in substance that the record shows the issuance of United States special tax stamps to the defendant, when the record upon its face shows the same fact. State v. Kilmer (1ST. Dak.) 1917E-116. 88. Testimony at Former Trial. The statute permitting the use of the stenog- rapher's transcript of testimony (Gen. Stat. Kan. 1909, 2407) does not restrict such use to the limitations which attach to a deposition under sections 337 and 358 of the Civil Code. New v. Smith (Kan.) 1917B-362. 89. Police Station Blotter. A memo- randum made by the officer in charge of a police station, showing the names of persons arrested, the charges preferred, etc., is not admissible as evidence of the facts therein stated. Carroll v. Parry (D. C.) 1916E-971. Note, Admissibility in subsequent civil action of judgment of conviction based on plea of guilty. 1917C-1109. c. Private Documents. (1) Entries in Course of Business. 90. Book not of Original Entry. In an administratrix's action on open account, where all the books of decedent, who had kept a store of which defendant was man- ager, had been destroyed by fire, except a ledger, such ledger is admissible as origi- nal evidence of the state of account between decedent and defendant, under authenticating testimony of decedent's bookkeeper from personal knowledge that entries on the bill book and cash book were correct copies of the entries on the sale tickets and tickets showing payments of salary, not made by him, but by the clerk who sold goods or the cashier who advanced money, and that the entries on the bill book and cash book were cor- rectly transferred to the ledger, and from thence, when filled, to that sought to be introduced. Givens v. Pierson's Adminis- tratrix (Ky.) 1917C-956. (Annotated.) '(2) Maps. 91. Admissibility of Ancient Map. An ancient map of the public roads of a county, purporting to have been made by authority, and coming from the proper custody, is competent evidence to show the existence and location of the public roads of the county at the time it was made, and in a contest between coterminous land- owners, where a road delineated on the map is claimed to be a boundary, such map is relevant, and is receivable in evi- dence, when, upon inspection by the court, the map appears to be what it purports to be and is shown to have been produced from the proper depository. Bunger v. Grimm (Ga.) 1916C-173. (Annotated.) 92. Original Map to Explain Later One. Where, in an action by a railroad to re- cover possession of part of its right of way alleged to. have been encroached upon, the defendant introduced in evi- dence a plat of the right of way used in a previous suit between the railroad and the township, it is error to exclude from evidence another plat of the right of way .made earlier by a real estate agent of the company, dead at time of suit, proved to have been his by his handwriting, the sec- ond plat being a counter declaration to the first plat introduced by defendant; the purpose of the introduction of such plat being to show the location of plaintiff's right of way. Atlantic Coast Line B. Co. v. Dawes (S. Car.) 1917A-1272. Note. Admissibility in evidence of ancient map or survey. 1916C-176. (3) Books not Relating to Exact Science. 93. Booklet Issued toy Manufacturer of Gas Machine. A booklet issued by de- fendant relative to its gasoline lighting systems, one of which it sold to deceased and installed in his house, is, in an action for his death by explosion of gasoline therefrom, properly admitted in evidence, he having been seen reading it, and its statements being such as to tend to lead him to think that precautionary measures were unnecessary in the operation of the system. Mahlstedt ,T. Ideal Lighting Co. (111.) 1917D-209. (4) Medical Books. 94. Objections to extracts from scientific medical works introduced in evidence were properly overruled, though there was no proof that fhey were works of authority and standing with the medical profession, where the objections did not point out this lack of proof, as the deficiency might have been supplied or the extracts excluded had the point been raised. Barfield v. South Highlands Infirmary (Ala.) 1916C-1097. 346 DIGEST. 1916C 1918B. 95. Medical Books. Relevant .extracts stock of a corporation provided that the from medical treatises recognized and ap- proved by the medical profession as stand- ard may be read to the jury in evidence. Barfield v. South Highlands Infirmary (Ala.) 1916C-1097. (5) Statutes. 96. Admlssibility of Printed Volume. Under Iowa Code, 4651, providing that printed copies of the statute law of other states, purporting to have been published under the authority thereof, or proven to be commonly admitted as evidence, shall be admitted in the courts of the forum, a copy of the statutes of a foreign state is inadmissible in evidence, where the work itself did not purport to be pub- lished under the authority of the state, and no proof was offered to show that it was commonly admitted as evidence of the statutes in the courts of the foreign state. Eudolph Hardware Co. v. Price (Iowa) 1916D-850. (Annotated.) Note. Admissibility of printed copy of stat- utes to prove law of another jurisdiction. 1916D-853. (6) Mercantile Reports. 97. The reports of mercantile agencies, offered for the purpose of proving the amount of property owned by a person, are not admissible in evidence to prove the value of such property; nor does their competency in this case appear for the purpose of showing "notice, lack of no- tice, or motive." Brown v. Caylor (Ga.) 1916D-745. (Annotated.) Note. The law of mercantile agencies. 1916D- 747. (7) Survey Notes. 98. Admissibility of Survey. An unoffi- cial survey is admissible in evidence- when proved to have been correct. Bunger v. Grimm (Ga.) 1916C-173. 99. Field Book of Deceased Surveyor. Field book entries made by a deceased surveyor for the purpose of a survey 011 which he was professionally employed, are admissible in evidence, being made in the discharge of a professional duty; hence on proper foundation, such notes may be re- ceived in evidence and another surveyor interpret them. Wightman v. Campbell (N. Y.) 1917E-^673. (Annotated.) Note. Admissibility in evidence of field book entries of deceased surveyor. 1917E-675. (8) Corporate Books and Records. 100. As Between Stockholders. A con- tract for the sale of a large part of the corporation's indebtedness should be there- after ascertained and paid in certain pro- portions by the buyer and seller. There- after the buyer furnished a statement of the corporate indebtedness, which should be paid by the seller, and the seller dis- puted the statement and refused to pay any part of the indebtedness shown by it. Suit was thereupon brought by the buyer for an accounting and to enforce payment of the balance found to be due. It is held that the corporation's books and vouchers, showing its business while both parties were stockholders, were properly admitted in evidence. Miller v. Dilkes (Pa.) 1917D- 555. (Annotated.) Note. Admissibility in evidence of books or records of corporation in action between members or between corporation and mem- ber. 1917D-558. (9) Letters. 101. Letters Written by Parties After Suit Begun. Letters written between hus- band and wife after the institution of a suit for divorce, each to obtain an ad- vantage over the other at trial, will be accorded no weight. Marshak v. Mar- shak (Ark.) 1916&-206. 102. Self-serving Letters. A packer of corn wrote a broker of cornpacking pro- ducts offering "10,000 cases fancy," at $1 per dozen cases. The broker procured a purchaser subject to approval of a sample cas'e but upon receipt of the sample case the purchaser wired the broker that it was not of fancy quality and could not be used. The broker wrote the packer stat- ing the substance of the telegram. It is held that, in an action by the broker for commissions, the letter and telegram were improperly excluded, since letters and telegrams by one party to a suit to the other sent in the general course of busi- ness and not specifically to manufacture evidence, and which by the character of their contents are naturally calculated to elicit replies and denials, are admissible in evidence, though self-serving and not an- swered, not as themselves affording proof that the statements therein are true, but on the ground that silence when such statements are made may itself be an ad- mission. Dennis v. Waterford Packing Co. (Me.) 1917D-788. (Annotated.) Note. Admissibility in evidence of self-serving lettpr or telegram sent in general course of business. 1917D-790. (10) Diary. 103. Admissibility of Private Diary. When a deceased person, a stranger to the transaction, made entries in a book which are relevant to the case, the entries are EVIDENCE. admissible in evidence only when made in the regular course of business, which means in the way of business, and hence entries by a private person in a diary con- cerning the weather kept only as a matter of custom and not as a matter of business or duty are not admissible after his death. Arnold v. Hussey (Me.) 19160-715. (Annotated.) 104. In an action for injuries caused by a fall on the ice in front of defendant's building, the erroneous admission of en- tries in a private weather record kept by one now deceased, tending to show that the temperature was such that ice could not have formed on the day in question, is prejudicial. Arnold v. Hussey (Me.) 1916C-715. (Annotated.) Notes. Private diary as evidence. 1916C-717. Admissibility of evidence received through detectaphone or dictagraph. 1916E-181. (11) Hospital Charts. 105. Admissibility of Hospital Chart. Entries of plaintiff's symptoms, etc., on a hospital chart by various nurses are not admissible in the absence of evidence that the nurses are unobtainable. Osborne v. Grand Trunk R. Co. (Vt.) 19160-74. (Annotated.) 106. In an action against a surgeon for malpractice in his treatment of a patient in a hospital, charts or records kept by the nurses for the information of the attend- ing physician or surgeon axe properly ad- mitted in evidence, though they doubtless signified little to the jury. Barfield v. South Highlands Infirmary (Ala.) 19160- 1097. 107. In an action for malpractice on the part of a surgeon in treating a patient in a hospital, it is not error to permit defendant, while testifying as an expert and giving his opinion on the whole course of treatment administered to plaintiff, to read temperature charts kept by the nurses in the hospital, the authenti- city and accuracy of which was fully es- tablished and undisputed, this being noth- ing more than a statement of some of the considerations that influenced his pro- fessional judgment respecting the proper treatment to be followed. Barfield v. South Highlands Infirmary (Ala.) 1916C- 1097. Note. Hospital chart as evidence. 1916C-78. d. Official Documents. 108. Necessity of Showing Appointment. An administrator's deed, accompanied by the^ order of the ordinary granting leave to "sell, is admissible as a muniment of title, without the production of the letters of administration. Bunger v. Grimm (Ga.) 1916C-173. 109. An administrator's deed wit bout an order of sale, or a sheriff's deed tot ac- companied by the execution under which the property is sold, ia admissible in evi- dence as color of title. Bunger v. Grimm (Ga.) 1916C-173. 8. DECLARATIONS AND ADMISSIONS. See Admissions and- Declarations. 9. COMPARISON OP TYPEWRITING. 110. Proof of Authorship of Typewritten Letters. "Where a contract alleged to be embodied in an illiterate person's letters is in issue, testimony as to how he spelled words and wrote letters on the typewriter, and that the letters in question were his, by persons familiar with his methods of writing, is competent. Josephs v. Briant (Ark.) 1916E-741. 10. HANDWRITING. 111. Text by Other Writings. On an issue as to the genuineness of the alleged signatures of indorsers to the notes sued on, it is error to submit to witnesses, tes- tifying to their opinion as to the genuine- ness of the signatures, on cross-examina- tion, imitated signatures made by en- gravers in order to test the witnesses' knowledge. Fourth National Bank v. Me- Arthur (N. Car.) 1917B-1054. (Annotated.) 112. Signature in Court as Standard. The signature of the defendant in a crim- inal action, which is made by him in open court and without objeotion, is admissible in evidence for comparison and in order to prove the genuineness of other hand- writing claimed to be his. State v. Gor- don (N. Dak.) 1918A-442. Note. Testing handwriting witness by nse of other writing. 1917B-1060. 11. PHOTOGRAPHS AS EVIDENCE. 113. Preliminary Proof Requisite. On an issue as to the genuineness of the sig- natures of alleged indorsers of certain notes sued on, enlarged photographs of the disputed writings are inadmissible with- out preliminary evidence of the photo- grapher who made them as to how and under what conditions they were taken, so that the jury might determine whether they were exact reproductions. Fourth National Bank v. McArthur (N. Car.) 1917B-10S4. 12. PAROL EVIDENCE TO VAEY WRITTEN INSTRUMENTS, a. Proof of Collateral Agreement. 114. Parol to Vary Writing. Where a contract of sale is reduced to writing, the 348 DIGEST. 1916C 1918B. written instrument is the exclusive evi- dence of the contract, and it cannot be varied by parol, proof tending to show the existence of additional warranties. Pick- rell, etc. Co. v. Wilson Wholesale Co. (N. Car.) 1917C-344. 115. Where defendant's special notice, in replevin for two cows under a chattel mortgage given to secure purchase price of a horse, set out misrepresentation of the property sold, a warranty, and an oral contract that the sale of the horse was conditional upon his conforming to the terms of the representation and warranty, but contained no direct allegation of fail- ure of consideration, or of distinct under- standing between the parties that delivery of the mortgage was conditional, and not absolute, the admission of testimony of defendant that the sale was conditional, and not absolute, is improper. Solomon v. Stewart (Mich.) 1917A-942. 116. Showing Existence of Right to Re- scind. In replevin by a mortgagee for two cows under a mortgage given to secure the purchase price of a horse, parol evi- dence is inadmissible to show that the sale of the horse was subject to the express condition that it could be returned if not as represented, although parol evidence is admissible to show that a contract was procured by fraud, that there was failure of consideration, or that the understand- ing waa that the delivery of the mortgage and note, etc., was not absolute, but merely conditional. Solomon v. Stewart (Mich.) 1917A-942. 117. Parol Evidence to Vary Lease. A written lease for three years at a monthly rental cannot be varied by parol evidence that the lessor, at the time of the execu- tion of the lease, advised the lessee of a pending action by a third person to en- force the lessor's contract of sale, and that the lessee replied that he would take his chances, and thereby relieve the lessor from liability for the lessee's eviction by the third person, succeeding in his action; the rule that a written instrument, accom- panied by a condition precedent to its taking effect, may be modified by parol proof of the condition not being applica- ble to a written instrument which has once taken effect or to a contract which the statute of frauds requires to be in writing. Wolf v. Megantz (Mich.) 1916D-114<3. 118. The mailing and contents of a pos- tal card from carrier to consignee, an- nouncing arrival of shipment, may be shown by parol, in an action by the con- signee to recover the goods in which de- fendant claims for storage, the mailing and contents being matters collateral to the issue, and not the subject-matter of the litigation. Holloman v. Southern R Co. (N. Car.) 1917E-1069. 110. Parol to Vary Writing Scope of Contract of Suretyship. Where a wife as surety for her husband signed a note and mortgage, she cannot in an action on the note and mortgage testify that she only intended to pledge her land and did not intend to incur further obligation, for that would contradict the terms of the written instrument. Royal v. Southerland (N Car.) 1917B-623. b. To Explain Ambiguity. 120. Effect of Use of Printed Letter- head. \Vhere a contract of guaranty was written on a letterhead of a bank, which showed the names and official capacities of the various officers, and was signed by one who appended the word "manager" after his signature, but there was nothing to show that the manager intended the bank to be bound, the word "manager" must prima facie be taken as mere descriptio personae, though it creates sufficient ambi- guity to admit parol evidence as to the intention of the signer. Griffin v. Unioa Savings, etc. Co. (Wash.) 1917B-267. (Annotated.) Note. Evidentiary effect of use of printed let- terhead or billhead. 1917B-271. c. Showing Real Character of Instrument. 121. Parol to Explain Writing. In a suit by plaintiff railroad to recover possession of a part of its right of way, alleged to have been encroached upon by defendant, where defendant offered in evidence a plat of plaintiff's right of way which had been put in evidence in a previous suit between plaintiff road and another party, and which showed that the right of way l>y the scale of the plat was less than claimed in suit by the plaintiff road, the explana- tion of the roadmaster of the road, who was present when the plat was drawn, who had procured data for it, and who knew the purpose for which it was made, that there had been no attempt to draw it to scale is improperly excluded from evi- dence. Atlantic Coast Line R. Co. v. Dawes (S. Oar.) 1917A-1272. 122. Showing Consideration. Under Ky. St. 472, providing that the consideration of any writing with or without seal may be impeached or denied by pleading veri- fied by oath, the true consideration of a deed may be shown though it contradicts the writing. Hite v. Reynolds (Ky.) 1917B-619. 123. Apparently Independent Transac- tion as Suretyship Contract. That a mar- ried woman signed a note to plaintiff bank which on its face was a contract ap- parently independent of her husband's in- debtedness to the bank does not preclude her from showing the true intent of the transaction and that she in fact executed tho note as surety for him. First Xr- tional Bank v. Bertoli (Yt.) 1917B-590. EVIDENCE. 349 d. To Show Complete Instrument. 124. Parol Evidence to Explain Writing Writing Incomplete. The correspond- ence soliciting the note and transmitting it to the holder in escrow discloses that it is but part of and supplementary to the conditions under which the note was ex- ecuted and was to be delivered. The cor- respondence can therefore be explained, and supplemented in such particulars by oral testimony. Northern Trust Co. V. Bruegger (N. Dak.) 1917E-447. e. To Prove Lost Instrument. 126. Parol Evidence of Destroyed Judi- cial Record. Where a judicial record has been destroyed by fire, and the parties in- terested in it have no copy thereof in. their possession or control, its contents may be established by parol testimony. Williams v. Eichardson (Fla.) 1916D-245. (Annotated.) 127. Loss of Official Document. the loss and contents of a warrant offered in evidence and connected with a legal proceeding should ordinarily be proved by the legal custodian of such paper, rather than by other witnesses, yet if the fact and contents of such paper otherwise sufficiently appear from other parts of the record to which the paper belongs, admit- ted in evidence, the admission of the evi- dence of such other witness will not con- stitute reversible error. Howell v. Wysor (W. Va.) 1916C-519. 128. Lost Letter. In an action to recover a broker's commission on a sale of land, wherein plaintiff testified that defendants gave him a written agreement of employ- ment in the form, of a letter, in response to a conversation between himself and defend- ant, and containing the substance of and confirming it, which writing had been lost, plaintiff's testimony as to such conversa- tion was admissible, as being merely a statement of the contents of the writing. Taggart Y. Hunter (Ore.) 1918A-128. Note. Proof of parol of contents of lost or de- stroyed judicial record. 1916D-248. f. To Show Consideration. 129. Parol evidence is admissible to show the real consideration of a contract reciting a consideration. Queensborough Land Co. v. Cazeau (La.) 1916D-1248. g. To Explain Terms. 130. In an action for damages for fail- ing to deliver cucumber seed bought un- der a written contract as being "Improved Chicago Pickling," evidence that the pur- chaser was informed as to the kind of seed actually furnished, that it had been devel- oped from seed purchased from a certain company, and that he agreed that it should be labeled, "Improved Chicago Pickling," is improperly excluded; it be- ing in explanation, and not in variation, of the terms of the written contract. B'uckbee v. P. Hohenadel, Jr. Co. (Fed.) 1918B-88. (Annotated.) 131. In an action for damages for fail- ing to deliver "Improved Chicago Pick- ling" cucumber seed under a written con- tract, evidence that the seller produced cu- cumbers from the seed contracted for as samples and sent them to the purchaser previous to the delivery is admissible to show notice of the actual nature of the seed to be delivered. Buckbee v. P. Hoh- enadel, Jr. Co. (Fed.) 1918B-88. (Annotated.) 13.' PRESUMPTIONS. Of execution of deed from acknowledg- ment, see Acknowledgments, 3. Of alienage from foreign residence, see Aliens, 1. Of continuance until change is proved, see Aliens, 1. No presumption of alteration from erasure, see Alteration of Instruments, 12. On appeal, see Appeal and Error, 190-202. That child born in wedlock is legitimate, see Bastardy, 11, 12. Of consideration from "value received," see Bills and Notes, 16. That payee is holder of note, see Bills and Notes, 58. Of negligence from accident, see Carriers of Passengers, 60-62. Of innocence of accused, see Criminal Law, 87. Of death from absence, see Death, 1, 2, 4. Of acceptance of some streets from accept- ance of others, see Dedication, 11. That date of deed is that of execution, see Deeds, 18%. After twenty years that judgment has been paid, see Executors and Adminis- trators, 34. That law of foreign state is law of forum, see Foreign Laws, 1, 3. Of fraud in fiduciary relations, see Fraud, 13, 14. No presumption of law against gifts causa mortis, see Gifts, 16. Of fraud from relation of confidence, see Gifts, 15. . Of undue influence from relation of con- fidence, see Gifts, 15. That evidence authorized judgment, see Habeas Corpus, 15. In favor of homestead right, see Home- stead, 1. In homicide cases, see Homicide, 16. That highest number of votes for one office equaled number of voting elec- tors, see Initiative and Referendum, 7. That one is sane, see Insanity, 9, 15. From failure to produce evidence, see In- structions, 66. 350 DIGEST. 1916C-- 1918B. By statute that holder of IT. S. tax re- ceipt is dealer, see Intoxicating Li- quors, 104, 105. In favor of consent judgment, see Judg- ments, 45. That plaintiff is owner of judgment, see Judgments, 16. Of agreement to pay rent from occupancy, see Landlord and Tenant, 32. Of malic* from wrong done, see Libel and Slander, 10. Of damage from publication, see Libel and Slander, 115, 120. As to malice, see Libel and Slander, 121. Of regularity of election, see Local Op- tion, 1. Under Workmen's Compensation Act, see Master and Servant, 331-333. That ordinance is reasonable, see Munici- pal Corporations, 97. That initial is Christian name, see Names, 4. Child of six or seven incapable of contrib- utory negligence, see Negligence, 48. Boy of five unconscious of danger, see Negligence, 50. Against railroad for accident, see Negli- gence, 77. Of negligence of carrier from accident, see Negligence, 114. That public nuisance affects all public alike, see Nuisances, 16. No presumption of undue influence in gift to child, see Parent and Child, 6. Malpractice not presumed from result, see Physicians and Surgeons, 36. That cause of action accrued within state, see Pleading, 53. Against state in action in nature of quo warranto, see Quo Warranto, 1. That order of railroad commission is rea- sonable, see Railroads, 46. That testamentary remainder is vested, see Eemainders and Reversions, 12. That statute was regularly enacted, see Statutes, 26. That legislature knows rules of construc- tion, see Statutes, 78. As to valuation for taxation, see Taxation, 50, 52. Of title from possession, see Trespass, 5. Against motion to direct verdict, see Ver- dict, 29-31. That waters above ebb and flow are non- boatable. see Waters and Water- courses, 28. a. Intention of Parties. 132. Inferences Against Actual Intent of Parties, The law should not be so ap- plied as to create presumptions which have no actual basis of fact in the inten- tion of the parties. Shepard v. New York (N. Y.) 1917C-1062. b. Performance of Public Duty. _ 133. In such case the court will conclu- sively presume that the publication was made according to the constitutional re- quirements by those to whom the constitu- tion and statutes enacted in pursuance thereof intrusted such duty. Gottstein v. Lister (Wash.) 1917D-100S. (Annotated.) 134. Acts of Public Officer. The acts of a public officer which presuppose the ex- istence of other acts or conditions to make them legally operative are presumptive proofs of the latter. Hamilton v. Erie E. Co. (N. Y.) 1918A-928. c. Receipt of Letter. 135. That notice by postal card, properly addressed and mailed, from carrier to con- signee, of arrival of shipment, was re- ceived, will be presumed in the absence of evidence to the contrary. Holloman Y. Southern R. Co. (N. Car.) 1917E-1069. (Annotated.) 136. A letter which a witness testified he mailed to defendant by dropping in an iron letter box on a street corner is ad- missible, since the court judicially knows that such mail boxes are maintained by the government, and it will be presumed that the letter was duly delivered to de- fendant the same as if it had been de- posited in the postoflSce. Corry v. Sylvia Y Cia (Ala.) 1917E-1052. (Annotated.) Note. Presumption of receipt of letter. 1917E-1058. d. Knowledge of Law. 137. Knowledge of Foreign Law. As a general rule, a man is presumed to know and understand, not only the laws of the country where he dwells, but also those of the foreign country or state in which he transacts business. Klein v. Keller (Okla.) 1916D-1070. (Annotated.) e. Ownership. 138. Presumption of Continuance. Title once shown to exist, whether by the pro- bative force of possession or otherwise, is conclusively presumed to continue as against a trespasser. Vidmer v. Lloyd (Ala.) 1917A-576. f. Identity of One of Same Name. 139. Identity of Person from Identity of Name Conflicting Presumptions. The presumption that identity of names indi- cates identity of persons will make admis- sible in a trial for maintenance of a liquor nuisance a government license for the sale of liquor issued to a person of the same name as the defendant, without prelim- inary proof of the identity of the person. State v. Kilmer (N. Dak.) 1917E-116. (Annotated.) EVIDENCE. 351 Note. Conflict between presumption of iden- tity of person from identity of name and another presumption. 1917E-121. g. Sobriety. 140. As there is a presumption of sobriety, the erroneous admission of such evidence is harmless. Eichardson v. Sioux City (Iowa) 1918A-618. (Annotated.) Note. Presumption of temperance or sobriety. 1918A-620. h. Eeceipt of Telegram. 141. Though where a telegram properly addressed is delivered to the company with payment of the fee for transmission, or is shown to have been sent, delivery to the addressee is presumed, there is no pre- sumption from the fact that a telegraph company found a telegram among its files, where no showing was made as to how or for what purpose the telegram came into possession of the company nor as to pay- ment of fee. Ottumwa v. McCarthy Im- provement Co. (Iowa) 1917E-1077. (Annotated.) 142. Delivery of Telegram. Delivery of a properly addressed message to a tele- graph company for transmission raises a presumption that it was received in due course by the addressee. Corry v. Sylvia Y Cia (Ala.) 1917E-1052. Note. Presumption of receipt of telegram. 1917E-1081. i. Common Law of Sister State. 143. In the absence of evidence, the common law of Delaware will be presumed to be the same as that of Massachusetts. Klotz v. Pan-American Match Co. (Mass.) 1917D-895. 144. The presumption is that the com- mon law of a sister state is the same as that of the state of suit. German-Ameri- can Bank v. Wright (Wash.) 1917D-381. 145. Law of Sister State. In the ab- sence of proof to the contrary, the law of another state or country is presumed to be like the common law of the forum, but it is not presumed to be like the statutory law. Gowett v. Wallace (Me.) 1917A- 754. Note. Presumption of undue influence arising from relation of man and woman engaged to be married. 1916C-1031. j. Authority to Answer Letter. 145$. Authority to Answer Letter. Where a letter was addressed to the land agent of a railroad company and was an- swered the following day by a person as- suming to act for the company, it should be presumed that the answer was made by one whose duty it was to act in the matter until the contrary appeared. New York, etc. R. Co. v. Cella (Conn.) 1917D- 591. Note. Presumption as to authenticity of let- ter received in reply to letter. 1917D-925. 14. BUEDEN OF PEOOF. 146. New Matter in Answer. Defend- ant has the burden of proving matters set up by the answer and denied by the reply. Schworm v. Fraternal Bankers Eeserve Soc. (Iowa) 1917B-373. 147. Quantum of Evidence. In an ac- tion against a decedent's estate to recover for board furnished him, an instruction that the burden of proof was on plaintiff to make out a case and to offer evidence "sufficient by its greater weight to sat- isfy" the jury of the truth of her allega- tions, sufficiently stated the correct rule. McCurry v. Purgason (N. Car.) 1918A- 907. 148. The burden of establishing the truth of a plea in abatement that the plaintiff was a fictitious person ia upon the defendant. Baldauf v. Nathan Russell (N. J.) 1917D-1191. (Annotated.) 15. PRIVILEGED COMMUNICATIONS. See Witnesses. 16. WEIGHT AND SUFFICIENCY OF EVIDENCE. a. In General. 149. Preponderance of Evidence. A greater or less probability, leading on the whole to a satisfactory conclusion, is all that can reasonably be required to estab- lish controverted facts. Devine v. Delano (111.) 1918A-689. 150. What Amounts to More than Scin- tilla. To amount to more than a scintilla the evidence must be of a character suffi- ciently substantial, in view of all the cir- cumstances of the case, to warrant the jury, as triers of the facts, in finding from it the fact to establish which the evidence was introduced. Holstein v. Benedict (Hawaii) 1918B-941. (Annotated.) 151. Relative Weight of Measurement and Estimate. Opinion testimony as to a witness' estimation from observation of the depth of a hole in the street is so con- jectural as not to raise a substantial con- flict, where there is other positive evi- dence by one who accurately measured the hole that it was of a different depth, so that the first-mentioned testimony does 352 not make the question one for the jury. Lalor v. New York (N. Y.) 1916E-"2. (Annotated.) 152. To sustain a finding in his favor, it is not essential there should be a dis- tinct preponderance of evidence on behalf of the plaintiff. To have this effect, it is only necessary that the evidence, when considered in its entirety, reasonably jus- tifies such verdict. Hill v. Norton (W. Va.) 1917D-489. 153. Evidence Held Sufficient. The ver- dict finds support under the evidence and the law. Manning v. St. Paul Gaslight Co. (Minn.) 1916E-276. 154. Sufficiency of Evidence to Show Contents. Evidence of the contents of a lost instrument considered and held not to be of the clear and convincing character required by law. Queen v. Queen (Ark.) 1917A-1101. (Annotated.) Notes. Sufficiency of proof to establish contents of lost instrument. 1917 A-l 104. Relative weight of deposition and oral testimony. 1917D-758. Comparative weight of estimate and ac- tual measurement. 1916E-573. Sufficiency of evidence to show mailing of letter. 1917E-1076. What constitutes scintilla of evidence. 1918B-943. DIGEST. 1916C 1918B. certificates, which it pledged with the bank. In some way defendant's employee, B., who was also plaintiff's confidential agent, obtained possession of the stock certificates and converted them to his own use. Plaintiff asserted tBat defendant was liable for the value of the certificates he had deposited, and called defendant's cashier to give evidence as to the transac- tion. The cashier testified without contra- diction that he delivered to B. two other certificates for 200 shares upon making monthly settlement of plaintiff's account, and that for some reason B. substituted those for the ones held by the bank, and which defendant was entitled to hold as margin. Held, that the cashier's testi- mony was not so improbable as to entitle plaintiff to have its truth submitted to the jury; he having called him as a wit- ness. Carlisle v. Norris (N. Y.) 1917A- 429. 159. Conclusions Motive. Plaintiff having introduced evidence tending to show a reason favorable to him for an admitted act of defendant, defendant, to explain his conduct, could give his version of the occasion and his reason for the act, though such reason was uncommunicatod to any one at the time; this affecting only the weight of his testimony. Comstock's Administrator v. Jacobs (Vt.) 1918A-465. b. Negative Testimony. 155. The evidence in an action against the landlord by a tenant's guest for in- juries from falling in an unlighted hall- way within the exclusive control of the landlord is held to sustain a finding that the landlord was obligated by the terms of the tenancy to light the hallway, and that he negligently failed to do so. Galagher v. Murphy (Mass.) 1917E-594. (Annotated.) 156. Relative Weight of Positive and Negative. The rule that positive testi- mony outweights negative testimony does not conflict with the rule that the weight of conflicting testimony shall be left to the jury, but is merely a rule of measure- ment for use by the jury. Philadelphia, etc. B. Co. v. Gatta (Del.) 1916E-1227. 157. Relative Weight of Positive and Inferential Evidence. The evidence of unimpeached witnesses testifying from accurate and positive knowledge concern- ing facts is not controverted by indefinite statements or negative testimony, or by doubtful inferences from undisputed facts. Johnson v. Aetna Life Ins. Co. (Wis.) 1916E-603. c. Uncontroverted Testimony. 158. TJncontradicted Testimony. De- fendant, a stock broker, received two stock d. Circumstantial Evidence. 160. A verdict may be founded on cir- cumstances alone in criminal as well as in civil cases. Devine v. Delano (111.) 1918A-689. 161. "Circumstantial evidence" is the proof of certain facts and circumstances in a given case from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind. Devine v. Delano (111.) 1918A-689. 162. Circumstantial evidence is ac- cepted with great caution. Watson v. Adams (Ala.) 1916E-565. e. Number of Witnesses. 163. While the jury is to be guided by the evidence, it is under no necessity of comparing the number of witnesses, and rendering verdict accordingly, but should weigh all the testimony. Music v. Big Sandy, etc. B. Co. (Ky.) 1916E-689. f. Impossibility of Truth. 164. Testimony to Fact Physically Im- possible. "Where one car and the trucks '. of another rolled off the end of a railroad switch and crashed into the fence in front of plaintiff's residence, wrecking it, but not injuring the house, except breaking a window by a flying picket, testimony by plaintiff that she was thrown over the foot EVICTION EXECUTIONS. 353 of a bed, which was two feet higher than the' mattress, on to a rocking chair, and thereby injured, when taken into connec- tion with testimony by other occupants that they Avere not even awakened, is con- trary to the physical facts, and no recov- ery can be had. Louisville, etc. B. Co. T. Chambers (Ky.) 1917B-471. (Annotated.) Note. Conversations by telephone as evidence. 1916E-977. EVICTION. Of tenant, effect on rent, see Landlord and Tenant, 33, 34, 41. EXAMINATION OF WITNESSES. See Witnesses, 47-88. EXAMINATION OF TITLE. Eight of purchaser to time for, see Judi- cial Sales, 3. EXCEPTIONS. In deeds, see Deeds, 55-61. EXCESSIVE DAMAGES. See Damages, 26-55. EXCISE TAX, See Taxation, 86, 145-170. EXCLUSION OF ALIENS. See Aliens, 3, 17-23. EXECUTION. Of deeds, see Deeds, 3. EXECUTIONS. 1. Exemptions, 353. a. Trust Property, 353. b. Tools and Apparatus of Trade, 353. c. Proceeds of Fire Insurance, 353. d. Public Property, 353. e. Persons Entitled, 353. f. Evasion of Exemption Laws, 354. 2. Lien of Execution, 354. Creditor's right to ignore conveyance, see Fraudulent Sales and Conveyances, 4, 5. Claim of homestead before execution, see Homestead, 9. Sale under junior writ, rights of parties, see Judicial Sales, 4. Sales under foreclosure, see Mortgages and Deeds of Trust, 29-33. Effect on execution sale of failure to re- cord deed, see Recording Acts, 2. Suspension of sentence, see Sentence and Punishment, 11, 12. 23 Liability for unauthorized execution sale, see Sheriffs and Constables, 8, 9. 1. EXEMPTIONS, (a) Trust Property. 1. Land Held in Trust. Land held in trust for the defendant is not subject to sale under execution. Johnson v. Whilden (N. Car.) 1916C-783. b. Tools and Apparatus of Trade. Note. Vehicle as "tool," "implement" or "in- strument" within exemption statute. 1917D-96. . Proceeds of Fire Insurance. 2. Property not Exempt .at Time of Fire. Under Bern. & Bal. Wash. Code, 568, providing that whenever property legally exempt from execution and attach- ment is insured and destroyed by fire the insurance money, to an amount equal to the exempt property, shall be exempt, where a man, living with and supporting his illegitimate child and its mother, so that he was not the head of a family or a householder and entitled to exemptions when the house in which he lived, whick was insured, was burned, by marrying the woman before trial of his creditor's gar- nishment proceedings against the insurer, legitimatized the child, so that he himself became entitled to exemptions, the insur- ance money is not exempt from the cred- itor's claim, since to reach such result it would be necessary to read into the stat- ute a provision that if property is insured which is not exempt and is damaged by fire, and if the fire had not occurred the property would have been exempt at the time of the trial, the insurance money shall be exempt. Peerless Pacific Co. v. Burckhard (Wash.) 1918B-247. d. Public Property. 3. Property in use for public or govern- mental purposes cannot be sold on execu- tion or other legal process, the rule being founded on "public policy," which is based upon the fundamental law, the declara- tions of the legislature in the statutes, or the decisions of the courts. School Town of Windfall City v. Somerville (Ind.) 1916D-661. e. Persons Entitled. 4. "Child" as Including Illegitimate Child. Under Bern. & Bal. Wash. Code, 553, 565, providing that every person who has residing on the premises with him and under his care and maintenance big minor child is the head of a family, and that every person who has residing with him and under his care and maintenance 354 DIGEST. 1916C 1918B. his minor child is a householder, one liv- ing with and supporting his minor illegiti- mate child and its mother is not the "head of a family" or a "householder," and so not entitled to exemptions from attach- ment or execution, as the word "child," used in the statute without qualifying words, the context not showing any con- trary meaning, does not include an illegiti- mate child. Peerless Pacific Co. v. Burck- hard (Wash.) 1918B-247. (Annotated.) f. Evasion of Exemption Laws. 5. Damages for Evading Exemption. In . an action brought by a debtor to recover damages caused by his creditor's assign- ment of the claim to a nonresident so that it might be collected by attachment, evi- dence held to support a finding that the debtor was not the owner of property, in- cluding the fund attached, of a value in excess of the statutory exemption. Ander- son v. Knotts (Ind.) 1916D-868. 2. LIEN OF EXECUTION. 6. Effect of Issuing Execution. Under N. Y. Code Civ. Proc. 1250, providing that a judgment required to be docketed neither affects real property nor is en- titled to a preference until the judgment roll is filed and the judgment docketed, and section 1251, providing that a judg- ment docketed in a county clerk's office is a charge upon the debtor's real property in the county for ten years after filing the judgment roll, where a judgment debtor inherited realty from his father, so that the liens of the judgment creditors, whose judgments had been docketed, attached thereto simultaneously on the death of the father, one creditor cannot obtain a pref- erence over the others through the issu- ance of execution and the advertising of the property for sale by the sheriff. Hul- bert T. Hulbert (N. Y.) 1917D-180. (Annotated.) 7. Necessity of Issuing Execution to Create Lien. Under N. Y. Code Civ. Proc. 1250, providing that a judgment required to be docketed neither affects real prop- erty nor is entitled to a preference until the judgment roll is filed and the judg- ment docketed, and section 1251, provid- ing that a judgment docketed in a county clerk's office is a charge upon the debtor's real property in the county for ten years after filing the judgment roll, a judgment, upon being filed and docketed, becomes a lien upon the real estate of the debtor, pud it is no longer necessary that an execu- tion should be issued upon the judgment to cause it to become a lien upon realty. Hulbert v. Hulbert (N. Y.) 1917D-180. Note. Issuance of execution as giving priority to one of several equal judgment. 1917D- 1S7. EXECUTOR DE SON TOUT. See Executors and. Administrators, 65-70. EXECUTORS AND ADMINISTRATORS. 1. Appointment and Removal, 354. a. Jurisdiction to Appoint, 354. b. Persons Entitled, 355. c. Contest of Appointment, 356. d. Removal or Revocation, 356. 2. Bonds, 356. 3. Assets of Estate, 356. 4. Rights and Liabilities, 356. 5. Presentation and Proof of Claims. 6. Family Allowance and Probate Home- stead, 357. 7. Sale of Decedent's Realty, 358. 8. Accounting, 359. 9. Distribution, 360. a. To Heirs and Legatees, 360. b. To Creditors, 360. e. Proceedings, 360. 10. Compensation, 360. 11. Executors de Son Tort, 360. 12. Actions, 361. a. By Personal Representative, 361. b. Against Personal Representative^ 362. c. Limitation of Actions, 363. See Embezzlement, 5. Substitution of executor in action against decedent, see Actions and Proceed- ings, 17-18. Credit to executor for advancements, see Advancements, 2. Appeals in administration and probate proceedings, see Appeal and Error, 32. Withdrawal of decedent's deposit, see Banks and Banking, 47. Proceeds of condemned land, distribution, see Conversion and Reconversion, 4. Administrator's deed as evidence, see Evidence, 108, 109. Attachment of payments directed by will, see Garnishment, 2, 4. Action to recover excessive allowance to. see Limitation of Actions, 8. Listing of debts by executor, as acknowl- edgment, see Limitation of Actions, 43. Pleading bar which intestate could have set up, see Limitation of Actions, 52. Probate or administration tax, see Taxa- tion, 28-32. Treaty in conflict with state administra- tion law, see Treaties, 7. Designation of executor, see Wills, 208. Testimony as to transactions with person since deceased, see Witnesses, 3546. 1. APPOINTMENT AND REMOVAL. a. Jurisdiction to Appoint. 1. The word "estate," as used in Shan- non's Tenn. Code, 3935, subd. 4, authoriz- ing the appointment of an administrator of the estate of a nonresident in any county where any suit is to be brought, EXECUTORS AND ADMINISTRATORS. 355 prosecuted, or defendant in which the es- tate is interested, means the whole legal entity which may be the subject of devolu- tion on the legatees, devisees, heirs, or distributees of a decedent, under the laws of a state or government, which, under such laws, may be attacked or defended, or to obtain which, a suit may be brought. Sharp v. Cincinnati, etc. R. Co. (Tenn.) " 1917C-1212. (Annotated.) 2. Assets Within Jurisdiction. Under Shannon's Tenn. Code, 3935, providing that letters of administration may be granted upon the estate of a nonresident by the county court of any county where deceased had any goods, chattels, or assets or any estate, real or personal, at the time of his death, or where the same may be when the letters are applied for, or where any suit is to be brought, prosecuted, or defended in which the estate is interested, an administrator may be appointed in the county in which the decedent was wrong- fully killed, though the cause of action for the wrongful death is the only asset in the county, and there are no technical assets. Since the word "chattels" includes not only personal property in possession, but choses in action, the term "goods and chattels" is of very wide signification, and includes choses in action. The term "choses in action" includes rights of ac- tion for tort. The word "assets," as used in the administration statutes, though usually meaning items subject to payment of the debts of the decedent, is not wholly limited to this meaning, but has been ap- plied to money collected by an adminis- trator as damages for wrongful killing of an intestate. The word "estate," though in its primary and technical sense re- ferring only to an interest in land, as used with reference to a decedent's property, has acquired a wider application in a pop- ular sense and refers to the entire mass of decedent's property, both real and personal, while the words "goods, chattels, or assets or any estate, real or personal," include every kind of property of any nature whatsoever, and are not limited to technical assets subject to the payment of debts. Sharp v. Cincinnati, etc. B. Co. (Tenn.) 1917C-1212. (Annotated.) Note. Bight of action within jurisdiction as sufficient property right to warrant grant ,of administration. 1917C-1217. b. Persons Entitled. 3. The quoted phrase in the county be- > tween the United States and a foreign -.country, which provides that, in the event of any citizen of either dying in the ter- ritory of the other, the consul of the nation of which the deceased may belong shall, "so far as the laws of each country will permit," and pending the appointment of an administrator, take charge of the property of the deceased and have the right to be appointed administrator, applies not only to the temporary possession which the foreign consul may take, but qualifies his right to be appointed administrator, and his right to be appointed adminis- trator is subject to the statute declaring that, in the absence of next of kin entitled to inherit, the public administrator is en- titled to letters of administration, and the foreign consul is only to administer in the absence of an application by the next of kin or the public administrator, and then only as to persons legally competent within Cal. Code Civ. Proc. 1365, subd. 10. Estate of Servas (Cal.) 1916D-233. (Annotated.) 4. Right of Foreign Consul to Admin - ister. The phrase "so far as the laws of each country will permit," in the treaty between the United States and Sweden providing that, in the event of any citi- zen of either country dying in the terri- tory of the other; the consul of the nation of which deceased may belong shall, "so far as the laws of each country will per- mit," and pending the appointment of an administrator, take charge of the property of decedent for his lawful heirs and cred- itors and have the right to be appointed as administrator, refers exclusively to the laws of the state within which the for- eigner dies. Estate of Servas (Cal.) 1916D-233. (Annotated.) 5. Priority of Right to Appointment. Subject to Mo. Eev. St. 1909, 15, declar- ing priority of persons entitled to ad- minister estates, and sectioji 19, prescrib- ing when letters testamentary with will annexed shall issue, it is within the dis- cretion of the court to appoint the admin- istrator, and the public administrator has no superior fight to appointment as ad- ministrator with the will annexed. Brinck- wirth v. Troll (Mo.) 1918B-1056. (Annotated.) 6. Mistress of Testator. Where tes- tator, after separating from his wife, who became insane, entered into a meretricious relation with B., whom he appointed ex- ecutrix of his will, but on testator's death it appeared that B. had no interest in the estate under the will or otherwise, that she was unfriendly toward the insane widow, and that the estate was probably insuffi- cient to pay its debts, including the widow's allowance, the court should have sustained a protest against the appoint- ment of B. as executrix, under Colo. Bev. St. 1908, 7111, providing that if any per- son named as executor shall appear incom- petent for any reason, letters of adminis- tration may be granted in the same manner as if such person had not been named, etc. Deeble v. Alerton (Colo.) 1916C-863. Note. Bights and duties of consul with respect to decedent's estate. 1916D-237. 356 DIGEST. 1916C 1918B. e. Contest of Appointment. 7. Effect of Appeal from Order. Ex- ecutors, whether testamentary or dative, are included within the meaning of the comprehensive language, "or other admin- istrators of successions," as used in article 1059 of the La. Code of Practice, and judgments appointing or removing them become provisionally executory when ren- dered, and are not subject to suspension by appeal. Succession of Lefort (La.) 1917E-769. d. Removal or Revocation. 8. Revocation of Administration by Dis- covery of Will. The discovery of a will after the appointment of an administrator does not make the appointment void ab initio, and accordingly a person purchas- ing realty from the administrator prior to the discovery of the will takes a good title. Hewson v. Shelley (Eng.) 1917B- 1119. (Annotated.) 9. Public Administrator Revocation of Letters. It being the duty of the public administrator to be at all times in court and take notice of all proceedings, failure to give actual notice of a proceeding to re- voke his letters on discovery of a will does not vitiate the order of revocation. Brinckwirth v. Troll (Mo.) 1918B-L056. (Annotated.) 10. On discovery and probate of a will. the powers of the public administrator to administer the estate cease ipso facto, and he is therefore entitled to no notice of a proceeding formally to vacate his au- thority. Brinckwirth v. Troll (Mo.) 1918B-1056. (Annotated.) 11. Mo. Rev. St. 1909, 47, requir- ing that on discovery and probate of a will the letters of administration of the administrator theretofore appointed shall be revoked, applies as well to the public administrator as to others, although he has on due notice taken charge of the estate. Brinckwirth T. Troll (Mo.) 1918B- 1056. (Annotated.) Note. Validity of acts of administrator whose appointment is revoked by subsequent discovery ofwill. 1917B-1128. 2. BONDS. 12. Liability of Sureties. For the pur- pose of charging an administrator's sure- ties, an indebtedness due the estate from the administrator should not be regarded as an asset as of the time of its maturity, if at that time and at all subsequent periods he was insolvent and did not have or could not procure the money with which to pay the debt. McEwen v. Fletcher (Iowa) 1916D-631. (Annotated.) Note. Liability of sureties of executor or ad- ministrator for debt of their principal to decedent. 1916D-633. 3. ASSETS OF ESTATE. 13. Construed as Including Land. Real estate is an "asset" of the estate of a dece- dent. Friend v. Hogg (Fla.) 1917B-155. 14. Collection of Assets. The adminis- trator of a person, in whose name judg- ments were taken, and who appeared on the record to be the legal owner of one and the beneficial owner of the other, can enforce or collect them for the benefit of the true owner. Brown v. Harding (N. Car.) 1917C-548. 15. Appraisement. Section 12, c. 56, W. Va. Acts 1907, respecting the appraise- ment of nates, bonds, and evidences of debt, owned by a decedent at the time of his death, does not apply to evidences of debt not taxable in this state, owned by a nonresident at the time of his death, and sent to an attorney in this state, by his personal representative, for suit there- on against the debtor who resides here. Austin v. Calloway (W. Va.) 1916E-112. 16. Ordinarily debts due by an admin- istrator to the estate are treated as assets of the estate from the timo of their ma- turity, especially where he has mixed the funds of the estate with his private prop- erty or reports them as assets in his h'ands. McEwen v. Fletcher (Iowa) 1916D-631. 17. Where an administrator inventoried a debt due from himself on demand as a deposit in his private bank and did not report within a year, as was his duty, or do anything in this regard until or- dered by the court, and then filed a report showing money in his bank and a personal indebtedness, but never made a report which secured the approval of the court, it appeared that his bank was a going concern for 16 months after his appoint- ment, and that he did not keep separate funds in the bank for the estate, and there was no proof of his insolvency dur- ing such 16 months, his debt is properly charged against him as an asset of the estate, as because of his trusteeship he was under greater obligations to pay that debt than others and was bound to do so. so long as his bank was a going concern, even though it made him insolvent. Mc- Ewen v. Fletcher (Iowa) 1916D-631. (Annotated.) 4. RIGHTS AND LIABILITIES. 18. Power to Charge Assets. The rule that an administrator or executor is with- out power to impose a charge on the as- sets by any new and independent contract, unless expressly authorized by statute or will, even though for the benefit of the estate, applies to the employment of an attorney. Matter of Estate of Munger (Iowa) 1917B-213. 19. Implied Powers. The powers and obligations of an executor or adminis- trator are defined and limited by the will EXECUTORS AND ADMINISTRATORS. 357 or statute, and he has no implied powers beyond those necessary to effectuate the powers expressly conferred. Matter of Estate of Munger (Iowa) 1917B-213. 20. Improvement of Property. An ad- ministrator with the will annexed, ap- pointed after the executrix had been de- clared insane, has no power to build a family dwelling house on the land of the estate. Stuckey v. Stephens (Ark.) 1917A-133. 20a. Powers of Administrator de Bonis Non. Under Me. Pub. Laws 1903, c. 193, making it the duty of an administrator de bonis non to collect all assets of the estate, such administrator can recover in his representative capacity from dece- dent's bank an amount paid out on a forged order. Walker v. Portland Sav- ings Bank (Me.) 1917E-1. 21. Personal Liability of Executor. One obtaining an option contract from an ex- ecutor, with knowledge that he would have to obtain a deed from the heirs at law of testator cannot hold the executor personally liable on the contract. Hedge- cock v. Tate (N. Car.) 1916D-449. 22. Personal Liability of Administrator. NO cause of action against an adminis- trator in his official capacity can be based upon services rendered him in the admin- istration of the estate. Milbourne v. Kelley (Kan.) 1916D-389. 23. Contracts. The contract of an ad- ministratrix employing an attorney to prosecute an action, though approved ex parte by the judge or court, is of no validity as against those entitled to the estate. Matter of Estate of Munger (Iowa) 1917B-213. (Annotated.) 5. PRESENTATION AND PROOF OF CLAIMS. 24. Debt Secured by Mortgage. A mort- gage by an intestate not presented to the administrator within the statute of non- claim, is barred in the absence of payment of interest or other act of estoppel. Fremd v. Hogg (Fla.) 1917B-155. (Annotated.) 25. An indebtedness secured by a real estate mortgage is not "contingent" within Wis. St. 1915, 3858, though not due at the time of administration; therefore, where it was not duly presented as a claim against the estate, the mortgagor on sub- sequent foreclosure is not entitled to a deficiency judgment over against dis- tributees after a complete administration of the estate. Schmidt v. Grenzow (Wis.) 1917B-163. (Annotated.) 26. Priority of Claim. An expenditure for a monument is not strictly a fmieral exoense within Iowa Code, 3347. pro- Tiding that, as soon as the executor or administrator has sufficient means, he shall pay charges of deceased's last sick- ness and funeral, but even though the estate is insolvent the court may in its sound discretion class such an expenditure as a funeral expense, but postponing it to the payment of such part of a claim for nursing during the last sickness of de- ceased as is preferred by statute. Matter of Estate of Lester (Iowa) 1917B-255. (Annotated.) Note. Laches or neglect of creditor of deceased as precluding enforcement of debt against heir or devisee. 1917C-95. Liability of decedent's estate for cost of monument or tombstone. 1917B-256. Presentation of claim, as condition precedent to enforcement of mortgage against decedent's estate. 1917B-156. 6. FAMILY ALLOWANCE AND PRO- BATE HOMESTEAD. 27. Eights of Widow Occupation of Homestead. Under statutes providing that the widow may occupy the homestead until allotment of dower, homestead, or the estate is otherwise distributed, the widow is not by an antenuptial settlement deprived of such right of occupation, es- pecially where the only other person interested in the estate is a nonresident living a great distance from the home- stead and it is necessary to the preserva- tion of the property that it should be oc- cupied. Stratton v. Wilson (Ky.) 1918B- 917. 28. Allowance to Widow. Where there is protracted litigation between the next of kin living outside the state and a widow appointed administratrix, during which the widow, although confined by a marriage settlement to a cash provision in lieu of widow's rights occupied the homestead, allowances for minor house- keeping expenses and court costs may be allowed in the discretion of the trial court. Stratton v. Wilson (Ky.) 1918B-917. 29. A widow's allowance out of her de- ceased husband's estate is not a distribu- tive part of the estate, but a part of the cost of administration. Deeble v. Aler- ton (Colo.) 1916C-863. 30. Where a husband and wife executed a separation agreement providing that neither should have nor claim any part of the other's estate, but containing no plain provision that the wife waived her widow's allowance in case of the husband's death, there is no waiver, and the separation agreement is no bar to its allowance. Deeble v. Alerton (Colo.) 1916C-863. (Annotated.) 31. Selection of Personalty on Behalf of Surviving Spouse. The right of the eur- 358 viving spouse to select personal property to the value of $500, if not exercised in his lifetime, may be exercised by his administrator. Nordlund v. Dahlgren (Minn.) 191 7B-941. Note. Effect of voluntary separation on right to widow's allowance. 1916C-866. 7. SALE OF DECEDENT'S REALTY. 32. Collateral Attack on Sale. Under S. Dak. Prob. Code, 102, providing that, where real estate belonging to the estate of a decedent is to be sold, the -judge must require a special bond unless the general bond is equal to twice the value of the personal property, and the probable amount to be realized from the sale, the determination by the probate judge as to whether the general bond is sufficient is a judicial act which cannot be collaterally attacked. Bichelson v. Mariette (S. Dak.) 1917A-883. 33. Sale of Reversion for Debt. By the Ga. Civil Code 1910, 4094, it is de- clared that "No administrator or executor shall be authorized to sell the reversionary interest in the land set apart as dower during the lifetime of the widow, except it be necessary to pay debts." (a) It was not a correct application of this rule to charge that "all property, real and personal, belonging to his [the de- ceased husband's] estate, and which is subject to the payment of his debts, must first be fully exhausted before the ad- ministrator can lawfully obtain an order from the court of ordinary authorizing him to bring to sale the reversionary in- terest in dower lands for the purpose of paying off debts owing by the estate of the deceased husband." (b) Whether the charge on this sub- ject, when taken in connection with its context and the entire charge, would re- quire a reversal, were there no other er- rors, need not be decided. Sutton v. Ford (Ga.) 1918A-106. 34. Time for Application. Though the common-law presumption, from lapse of 20 years, that a judgment has been paid, may be rebutted in scire facias proceed- ings instituted after the presumption has attached, and though no statute limits the time within which an administrator may apply for and be allowed an order to sell lands to pay judgment creditors of de- ceased, he will in no case be granted an order to sell lands for payment of debts after the time limited by statute for re- covery thereon, or after the 'time when by the common law the debts are pre- sumed to be paid. Cohen v. Tuff (Del.) 1917C-596. (Annotated.) 35. Bights of Lessee. Where an ex- ecutor authorized by will to sell real es- tate exercises the power of sale of land DIGEST. 1916C 1918B. encumbered by a lease made by testator, the sale must be made subject to the rightg of the lessee. Heiseman v. Lowenstein (Ark.) 1916C-601. 36. Power to Mortgage. A mere power of sale of real estate conferred on execu- tors by will does not include a power to mortgage. Heiseman v. Lowenstein (Ark.) 1916C-601. (Annotated.) 37. Where the bulk of the estate of a testator, who directs his executors to de- posit specified sums with trust companies to pay to named beneficiaries, is real estate, and the testator directs the executors to close up the estate as speedily as possible, so that the creditors and beneficiaries may promptly receive what is due them, the executors have power to sell, but not to mortgage, the estate. Heiseman v. Lowen- stein (Ark.) 1916C-601. (Annotated.) 38. Any words in a will which show an intention to confer on the executor power to sell real estate and execute the requisite deeds, or any form of a will which imposes duties which cannot be performed without a sale, necessarily creates a power of sale. Heiseman v. Lowenstein (Ark.) 1916C- 601. 39. A testator, who directs his executor to dispose of his real estate, thereby con- fers on the executive power to execute the requisite deeds of conveyance. Heiseman v. Lowenstein (Ark.) 191GC-601. 40. Power to Sell Lands. An executor has no power to sell the land of his tes- tator, unless directed to do so by the will, either expressly or by necessary implica- tion. Heiseman v. Lowenstein (Ark.) 1916C-601. 41. Order to Sell Land. An order to sell land, granted to an administrator by the court of ordinary describing the land as located in a named county and known by ascertain name, and as containing a stated number of acres, more or less, and lying alongside a certain river, followed by aa additional description giving the calls for three sides of it, is not void for uncer- tainty. When property has a descriptive name, it may be conveyed by that name; and such description will prevail over one which is intended to be a further descrip- tion, but which is uncertain and imperfect. Extrinsic evidence is receivable to apply the description to its subject-matter. Bunger v. Grimm (Ga.) 1916C-173. 42. Power to Give Option, An executor, vested with no power to sell land, has no power to give an option to sell land. Hedgecock v. Tate (N. Car.) 1916D-449. (Annotated.) 43. Joint Executors Failure of One to Qualify. The provision of a will, making a trust company an executor and desig- nating another to act with the company, EXECUTORS AND ADMINISTRATORS. 359 intended the two to act jointly as ex- ecutors; and, where one of them failed to qualify, the other had the power, under the express provision of Ky. St. 3888, to sell and convey land as directed by the will. Varble v. Collins' Executor (Ky.) 1916D-448. 44. Implied Power to Sell Land. The executor under a will, giving specific leg- acies of money payable out of sales of cer- tain lots, though not expressly authorized by the will, yet from his duty to carry out its provisions and to raise the fund with which to satisfy such legacies, had implied power to sell and convey testa- trix's realty. Varble v. Collins' Executor (Ky.) 1916D-448. (Annotated.) 45. An executor has no implied power to sell lands of the testator when the legal title thereto passes to specific devisees other than the executor, and the will does not direct or show an intent for the pay- ment of debts or legacies with the proceeds of sales of the lands, or direct the executor to divide the estate among beneficiaries, and the power to sell land is not in reality necessary in order to carry out any of the provisions of the will, and the will gives to the executor no directions whatever, and, considered as an entirety, discloses no intent to confer upon the executor power to sell lands of the testator. First Baptist Church v. American Board of Com'rs (Fla.) 19-16D-404. (Annotated.) 46. Estoppel to Attack Executor's Sale. The receipt by a beneficiary of proceeds of an unauthorized sale of lands by an ex- ecutor may not estop such beneficiary from claiming rights in the lands, the title to which was given by the testator's will. First Baptist Church v. American Board of Com'rs (Ma.) 1916D-404. Notes. Implied power of executor to sell real estate of executor. 1916D^10. Limit of time within which leave will be granted to sell decedent's realty. 1917C-600. 8. ACCOUNTING. 47. Counsel Fees of Administrator. Counsel fees of an administratix are necessarily left largely to the discretion of the trial court. Stratton v. Wilson (Ky.) 1918B-917. 48. Where an administratrix, seeking to be compensated for money paid to an attor- ney, showed a contract employing the at- torney to collect a claim for the death of the decedent, and agreeing to pay him one-third of the amount collected without suit, and in the event of suit one-half the amount collected, and that a suit begun was settled by payment of $199 funeral expenses and $1,875 as damages, and she claimed to have paid the attorney $937, but on objections waived offering any evi- dence, the court erred in allowing her more than one-third of the amount recov- ered. Matter of Estate of Munger (Iowa) 1917B-213. 49. Where a widow was administratrix, her claims for expenses in the employment of an attorney, stated as for "consultation with Mrs. A. on the death of her husband and in relation to estate matters," and an- other item relating to consultation with her and another person, without stating what it was about, did not on their face appear to involve matters necessarily of concern to the estate, and, the burden be- ing on the administratrix to show that fact, the court did not err in rejecting such items. Matter of Estate of Munger (Iowa) 1917B-213. 50. Allowance for Expenditures. Under Iowa Code, 3415, entitling executors and administrators to compensation for all ordinary services and "such further allow- ances as are just and reasonable . . . for actual, necessary, and extraordinary ex- penses or services," allowances claimed thereunder must be specifically stated; there being no presumption that they are reasonable and just, but the burden being on the administrator. Matter of Estate of Munger (Iowa) 1917B-213. 51. Claims not Allowed by Probate Court. Under chapter 2-65, Minn. Laws of 1899, claims theretofore paid by the ad- ministrator without having been allowed by the probate court, may be credited to him in his final account upon proof that such claims were just and existing de- mands against the estate at the time of payment. Nordlund v. Dahlgren (Minn.) 1917B-941. 52. Rents and Profits of Land. Where the administrator takes possession of the real estate he must account for the rents and profits received therefrom, and if the amount received cannot be otherwise de- termined, the court may charge him with the rental value of the land. Nordlund v. Dahlgren (Minn.) 1&17B-941. 53. Advancement to Infant Heir Sup- port from Corpus of Estate. An admin- istrator who makes unreasonable and ex- cessive advances for the support of a minor heir out of the corpus of the estate will not be allowed reimbursement there- for. In re Bundle (Ont.) 1917A-139. (Annotated.) 54. Debt of Representative to Estate. Where an administrator includes his in- debtedness to the estate in his reports as a part of the assets and asks that the amount he claims be fixed as his liability, the court has jurisdiction to find the amount of his liability and charge it against him. McEwen v. Fletcher (Iowa) 1916D-631. 360 DIGEST. 1916C 1918B. 55. Waiver of Jury Trial. An adminis- trator, whose report includes as a part thereof his personal liability to the estate, who goes to trial to the court on the issues tendered by the objections without any objection or demand for a jury, waives a jury trial. McEwen v. Fletcher (Iowa) 1916D-431. 56. Beview of Finding on Accounting. Where the issues made by the objections to an administrator's report were tried to the court without objection, the findings on disputed testimony have the same force and effect aa a verdict of a jury. McEwen v. Fletcher (Iowa) 1916D-631. Note. Power of executor or administrator to employ attorney under express contract as to amount of compensation. 1917B-21C. 9. DISTRIBUTION, a. To Heirs and Legatees. 57. Determination of Indebtedness. The county court, having jurisdiction to make settlement and distribution of a decedent's estate, may determine the share of each distributee, and to that end it has author- ity to inquire into and determine the in- debtedness of the distributee to the estate, and order a deduction of the same from his share. Stenson v. H. S. Halvorson Co. (N. Dak.) 1916D-1289. 58. Extent of Indebtedness. Evidence examined, and held that the finding of the trial court that the extent of such heir's indebtedness to the estate exceeded the value of his distributive share in the es- tate is fully sustained. Stenson v. H. S. Halvorson Co. (N. Dak.) 1916D-1289. 59. Indebtedness by Heir. An indebt- edness owing by an heir to a decedent's es- tate constitutes a prior equitable lien upon uch heir's distributive share of the estate as against the liens of judgments docketed against him. Stenson v. H. S. Halvorson Co. (N. Dak.) 1916D-1289. (Annotated.) Not*. Distributive share of heir in real estate as chargeable with heir's indebtedness to estate either as against land itself or pro- ceeds of sale thereof. 1916D-1294. b. To Creditors. 60. N. Car. Revisal 1905, 87, provid- ing for the order of the payment of claims against the estate of a decedent, was de" signed only to fix the order of such pay- ment, and does not render a married woman's estate liable for necessaries fur- nished during her last sickness and for her funeral expenses, which otherwise would be a debt of the husband. Bowen v. Daugherty (N. Car.) 1917B-1161. (Annotated.) c. Proceedings. 61. Collateral Attack. The decree of distribution of a decedent's estate duly entered by the county court is final and conclusive as against a mere collateral at- tack. Stenson v. H. S. Halvorson Co. (N. Dak.) 1916D-1289. 10. COMPENSATION. 62. Compensation of Administrator. Under Ky. St. 3883, as to allowance to a personal representative, where the prop- erty of the estate is distributed in kind, and the administrator is put to little or no trouble, he should not be allowed the max- imum sum of five per cent of the value of the property thus distributed. Stratton v. Wilson (Ky.) 1918B-917. 63. Under Ky. St. 3883, because the personalty is distributed by the adminis- trator in kind, it does not necessarily fol- low that he' should not be allowed anything for his services, but a reasonable allow- ance should be made to him. Stratton v. Wilson (Ky.) 1918B-917. 64. Forfeiture of Commissions. Under Va. Code 1904, 2678, 2679, requiring executors and administrators to settle their accounts and providing for a for- feiture of their commissions, an adminis- trator of an estate qualifying in 1893 and an executor of an estate qualifying in 1892 are not entitled to commissions on that part of the estate of their respective decedents due and payable to heirs, not made until compelled by suit. Crismond's Adm'x. v. Jones (Va.) 1917C-155. Note. Validity of statute fixing probate or administration fees. 1916C-213. 11. EXECUTORS DE SON TORT. 65. What Intermeddling Constitutes. That funds belong to an estate will not make one liable as an executor de son tort for intermeddling therewith, where he would not be liable were the owner an individual, but in the one case, as in the other, there must be a wrongful invasion of the property rights of the owner. Holden v. Farmers, etc. Nat. Bank (N. H.) 1917E-23. (Annotated.) 67. Defendant bank paid to one E funds of a decedent on an order forged by E, such funds being used for E's own purposes. It is held that the transaction did not ren- der the latter executor de son tort to make the act of the bank in paying him valid against the estate after his appointment as administrator; more than the mere recep- tion of assets being required to give the payee in such a case character as executor de son tort, so far as the validation of the EXECUTORS AND ADMINISTRATORS. 361 payment itself is concerned. Walker v. Portland Savings Bank (Me.) 1917E-1. (Annotated.) 68. Effect of Acts of Executor de Son Tort. All lawful acts done in the pro- fessed administration of a decedent's es- tate by one purporting to act as executor, which an executor de jure would have been bound to perform in due course of administration, bind the estate; it being shown that the executor de son tort was acting as an executor, but a single act of an administrative character does not bind the estate. Walker v. Portland Savings Bank (Me.) 1&17E-1. 69. Definition. An executor de son tort is one deriving no authority from the decedent, with whose estate he yet wrong- fully assumes to interfere, as by demand- ing payment of debts-, or paying them, or carrying on decedent's business, etc., although merely asserting colorable title in himself to the decedent's goods is not sufficient to fix the character upon him. Walker v. Portland Savings Bank (Me.) 1917E-1. (Annotated.) 70. Ratification of Acts Before Appoint- ment. One who has assumed without right to act as an executor may ratify and vali- date by relation, after his appointment as administrator, all acts done in a repre- sentative capacity, which would have been valid had he been the rightful representa- tive. Walker v. Portland Savings Bank (Me.) 1917E-1. Note. "What acts of intermeddling charge per- son as executor de son tort. 1917E-3. 12. ACTIONS, a. By Personal Representative. 71. An action the cause of which sur- vives may on death of plaintiff at once be revived in the name of a special ad- ministrator; there being no general ad- ministrator or executor. Aetna L. Ins. Co. v. Taylor (Ark.) 1918B-1122. 72. In an action by an executor with power of sale for specific performance of defendant's contract to purchase land of the estate sold to pay specific legacies, the devisees were not necessary parties. Varble v. Collins' Executor (Ky.) 1916D- 448. 73. Right of Administrator of Heir to Contest. Conceding that Mo. Rev. St. 1909, 555, in regard to will contests is remedial, and should be liberally construed, it permits contest only by persons inter- ested in the probate; so that the adminis- trator of a deceased contestant is not en- titled to revival of the action in his name. Braeuel v. Reuther (Mo.) 1918B-533. (Annotated.) 74. Mo. Rev. St. 1909, 101, authorizing the administrator to commence and prose- cute all actions which may be maintained and are necessary in the course of his administration, and defend all such as are brought against him, does not warrant the administrator's revival of a will contest which is not in any sense a property right, but only a mere right of action. Braeuel v. Reuther (Mo.) 1918B-533. 75. Under Mo. Rer. St. 1909, $ 104, pro- viding that executors and administra- tors shall prosecute and defend all ac- tions commenced by or against the deceased at the time of his death, and which might have been prosecuted or maintained by or against such executor or administrator, the administrator cannot prosecute or maintain actions unless he might have done so had the action not been brought by the deceased. Braeuel v. Reuther (Mo.) 19186-^533. (Annotated.) 76. Under Mo. Rev. St. 1909, 105, au- thorizing administrators to prosecute ac- tions for torts, there is no authority in the administrator to prosecute a will con- test. Braeuel v. Reuther (Mo.) 1918B- 533. (Annotated.) 77. Abatement and Revival. At com- mon law a right of action for personal injuries did not survive the person in- jured; and, in case an action had been brought, it abated on the death of either party. Cincinnati, etc. R. Co. v. McCul- lom (Ind.) 1917E-1165. 78. Statute Providing for Survival. The purpose of Burns' Ind. Ann. St. 1914, 286, providing that, whoever has a claim for personal injuries and obtains a judg- ment, and he dies pending the appeal, the claim shall survive, and be prosecuted by his personal representatives, is to provide for the survival of certain actions, and the classification created by the statute is practical and not palpably arbitrary, and is not in conflict with Const. Ind. art. 1, 23, and Const. U. S. Amend. 14. Cincin- nati, etc. R. Co. v. McCullom (Ind.) 1917E- 1165. (Annotated.) 79. The enforcement of Burns' Ind. Ann. St. 1914, 286, authorizing the personal representative of one obtaining a judg- ment for a personal injury to prosecute an action on the death of the judgment plain- tiff pending an appeal, or before a new trial, if reversal be had, does not deprive the wrongdoer of property without due process of law, for the statute only re- quires that compensation shall be made for the injuries occasioned by the wrong- ful act, and imposes no liability in favor of the estate of an injured person which could not have been enforced in his favor had he lived. Cincinnati, etc. R Co. v. McCullom (Ind.) 1917E-1165. (Annotated.) 80. An answer, pleading a release as a bar, but which does not aver that the costs 362 of the administration have been paid, or that there are no creditors of the estate n demurrable, though it avers that there are no creditors who have filed claims against the estate, since that is not equivalent to an averment that there are no claims. Cincinnati, etc. B. Co. v. McCullom (Ind.) 1917E-1165. 81. Eight of Heirs to Release. An ac- tion for personal injuries, prosecuted, on plaintiff's death pending an appeal from a judgment in his favor, by his adminis- trator, or after reversal of the judgment, as authorized by Burns' Ind. Ann. St. 1914, 286, is based on the wrong inflicted on the original plaintiff, and the amount re- covered is subject, in the hands of the administrator, to the costs of administra- tion, payment of debts, and distribution of balance in accordance with the statute on that subject, and an attempted release by heirs is not available as a defense. Cin- cinnati, etc. R. Co. v. McCullom (Ind.) 1917E-1165. 82. Action on Contract of Deceased. Such a declaration in assumpsit upon a note payable to his intestate, and past due at his death, need not aver a promise to the administrator. It is sufficient to aver a promise to his intestate and a breach, by nonpayment to either his intestate or him- self. Austin v. Calloway (W. Va.) 19H5E- 112. 83. Allegation of Representative Capa- city. A declaration by an administrator, suing as such, upon a cause of action ac- cruing to his intestate in his lifetime, which fails to aver that plaintiff was ap- pointed and qualified as such administra- tor, is bad on demurrer. Austin v. Callo- way (W. Va.) 1916E-112. (Annotated.) 84. Conspiracy to Restrain Trade. A right of action for damages sustained from an unlawful conspiracy and combination between the defendants for the purpose of creating restrictions in trade and com- merce, and of destroying the credit, repu- tation, and business of F., whereby F.'s business was ruined, and he was forced to sell its tangible assets for an inadequate price, does not survive the death of F. at common law, nor under Comp. Laws Mich. 1897, 10117, which provides that actions for negligent injury to persons, for dam- ages to real or personal estate, and actions to recover real estate, where persons have been induced to part therewith through fraudulent representations and deceit, shall survive. Frohlich v. Deacon (Mich.) 1916C-722. (Annotated.) 85. Under Pub. Acts 1897, No. 195 (Comp. Laws Mich. 1897, 10421, 10422), providing that where, by the fraudulent representations any injury shall be done to the person, property, or rights of an- other for which an action for fraud may be brought, assumpsit may be brought to DIGEST. 1916C 1918B. recover damages for such injury, and that the cause of action shall, upon the death of the person injured, survive, held, by an equally divided court, that such cause of action did not survive the death of F., since defendant's acts, though illegal and oppressive, were neither deceptive nor fraudulent, and, while they would give a right of action on the case, the action was not one for fraud and deceit. Frohlich v. Deacon (Mich.) 1916C-722. (Annotated.) Notes. Right of executor or administrator to recover from estate advancement made to member of decedent's family. 1917A-134. Survival of right of action for conspir- acy to restrain trade. 1916C-726. Necessity that executor or administra- tor in action brought by him allege that suit is brought in representative capacity. 1916E-1H. Validity of statute providing for sur- vival of action for personal injuries after death of person injured. 1917E-1171. Power or duty of administrator, guard- ian, or the like, to contest will. 1918B- 536. b. Against Personal Representative. 86. Inability to Procure Testimony. Plaintiff, in an action against an admin- istrator for breach of intestate's contract, is not entitled to an instruction balancing her inability to testify against defend- ant's difficulty in not having the benefit of intestate's testimony. Parsons v. Trowbridge (Fed.) 1917C-750. 87. Necessity of Presenting Claim. Un- der Md. Code Pub. Civ. Laws, art. 93, 83, providing that no administrator shall dis- charge any claim against the decedent, ex- cept at his own risk, unless it first be passed by the orphans' court, or be proven according to the rules prescribed in the statute, section 97, providing that no ad- ministrator shall be allowed in his account for any claim discharged by him unless he produce the claim passed by the or- phans' court or proven as herein directed, section 99, providing for the defense of claims by the personal representative, sec- tion 116, providing that no administrator shall be bound to take notice of any claim against his decedent "unless a suit shall be pending against such administrator for such claim," the fact that the claim on which an executor is sued has not been passed in the orphans' court or proven, does not preclude the suit. Schnepfe v. Schnepfe (Md.) 1916D-988. 88. Decree in Action Against. Under Mass. Rev. Laws 1902, c. 172, 6, 7, where decree is for plaintiff, in a suit in which, defendant dying pending the suit, his administrator appeared and defended, EXECUTORY DEVISE EXPLOSIONS AND EXPLOSIVES. 363 it should provide for execution for the costs alone against the administrator per- sonally. Hanscom v. Maiden, etc. Gas- light Co. (Mass.) 1917A-145. 89. Allowance of Costs from Estate. Where an action by an heir against the administrator results in relieving the es- tate from a charge for excessive advances made by the administrator, the latter should not be allowed costs out of the estate. In re Bundle (Ont.) 1917A-139. c. Limitation of Actions. 90. Time to File Claim. The fact that the claim was filed in the probate court, and that the administrator had knowledge of it and had made efforts to adjust and settle it, will not suspend the statute nor estop the administrator from relying upon the bar of the statute. Milbourne v. Kel- ley (Kan.) 1916D-389. 91. In an action to establish a claim against the estate of a deceased person it was shown that the letters of administra- tion issued on December 10, 1910. At that time the statute (Gen. Stat. 1909, section 3516), allowed three years for the presen- tation of claims. An act which took ef- fect on the 22d day of May, 1911 (Laws 1911, c. 188), reduced the time to two years, with a provision that all demands not exhibited within two years shall be forever barred. Although the plaintiff had 18 months after the act took effect in which he might have commenced his ac- tion, his claim was not exhibited until more than two years thereafter. Held, that he was allowed a reasonable time to pursue his remedy, and that the action is barred by the new statute. Milbourne v. Kelley (Kan.) 1916D-389. (Annotated.) 92. Nor will the plaintiff be heard to say that by reason of such acts and con- duct of the administrator the period of IS months was not in this case a reasonable time. Milbourne v. Kelley (Kan.) 1916D- 389. Note. Public administrators. 1918B-1059. EXECUTORY DEVISE. Defined, see Wills, 209. EXEMPLARY DAMAGES. See Damages, 1-2; False Imprisonment, 10; Libel and Slander, 8, 9, 162; Malicious Prosecution, 32, 34, 35; Replevin, 6, 9. EXEMPTIONS. See Homestead; Executions, 1-6. Salary not exempt, see Bankruptcy, 3. From seizure for rent, see Landlord and Tenant, 35. From service of civil process, see Process, 4, 5. Validity of exempting recording fees, see Recording Acts, 4. From taxation, see Taxation, 67-85. EXHIBITS. See Pleading. Removal to jury room, effect, see Jury, 38, 39. EXPATRIATION. See Aliens, 15, 16. EXPECTANCY. Assignability, see Assignments, 8, 9. EXPENSES. Allowance for, see Judges, 4, 5. EXPERTS. Testimony in shock cases, see Electricity, 14, 16-19. Competency to testify, see Witnesses, 11- 16. Cross-examination of, see Witnesses, 82. EXPLOSIONS AND EXPLOSIVES. Explosion of gasoline light plant, see Neg- ligence, 90, 99. Judicial notice of nature of gas, see Evi- dence, 15, 16. Expert testimony as to presence of gaso- line, see Evidence, 64. Descriptive booklet as evidence, see Evi- dence, 93. 1. Leaving Small Quantity Exposed. It is gross negligence for an agent of a powder company, after shooting -an oil well with solidified glycerine, to leave a quart of that explosive lying near the well; and the act of a workman, unskilled in the use of such substances, in removing the dangerous article and placing it in the stone fence of a nearby graveyard to prevent injury to himself and his fellow workmen, does not amount to an unre- lated, intervening and efficient cause so as to excuse the powder company from its liability for damages to children who afterward find the solidified glycerine and are injured by it. Clark v. E. I. Du Pont De Nemours Powder Co. (Kan.) 1917B- 340. (Annotated.) 2. The owner of so inherently dangerous a commodity as solidified glycerine is re- quired to exert the highest d'egree of care to keep it in close custody to prevent its doing mischief, and that duty never ceases; and such owner is liable for all the natural and probable consequences which flow from any breach of that duty. Clark v. E. I. Du Pont De Nemours Pow- der Co. (Kan.) 1917B-340. (Annotated.) 364 DIGEST. 1916C 1918B. 3. The rules heretofore announced by this court for the determination of proxi- mate cause adhered to. Clark v. E. I. Du Pont De Nemours Powder Co. (Kan.) ' 1917B-340. (Annotated.) 4. Injury by Concussion. The use of high-power explosives in making excava- tions of rock and earth is a lawful method of accomplishing that purpose; but where dirt and stone are thrown by the force of the blast upon the property of another, or where the work of blasting is done in such proximity to adjoining property that re- gardless of the care used the natural, necessary or probable result of the force of the explosion will be to break the sur- face of the ground, destroy the buildings, and produce a concussion of the atmos- phere, the force of which will invade the adjoining premises, injuring the buildings thereon and making them unfit and unsafe for habitation, the person or corporation making use of such explosives will be lia- ble for the damage proximately and natur- ally resulting therefrom, irrespective of the question of negligence or want of skill in the blasting operations. Louden v. Cin- cinnati (Ohio) 1916C-1171. (Annotated.) EX REL. See States, 11. 5. A petition averring that defendants in the use of high explosives broke into plaintiff's land and dwelling house with force and violence by means of explosions of great power and frequency in the street adjacent to and in close proximity to plaintiff's dwelling house, and thereby produced concussions and vibrations of the earth and air, causing foundations, walls, chimneys, ceilings, cistern and vault and window glass of plaintiff's house to break and fall, rendering such house un- safe for habitation and untenantable, states a cause of action. Louden v. Cin- cinnati (Ohio) 1916C-1171. (Annotated.) Notes. Injury to property by concussion or vibration resulting from blasting. 1916C- 1176. Liability as for negligence of one throw- ing away small quantity of explosive. 1917B-345. EX POST FACTO STATUTE. Cohabitation after statute forbidding mar- riage, see Incest, 2. EXPRESS. Meaning, .see States, 6. EXPRESS COMPANIES. See Carriers; Carriers of Goods; Carriers of Live Stock. EXPRESS TRUSTS. See Trusts and Trustees, 1-5. EXTENSION OF WATER MAINS. Public water supply, see Waterworks and Water Companies, 5-7. EXTORTION. 1. Sufficiency of Indictment, Under Ariz. Pen. Code 1913, 943, providing that an information is sufficient if it states the act charged as the offense clearly and dis- tinctly in ordinary and concise language, so as to enable a person of common under- standing to know what is intended, and with sufficient certainty to enable the court to pronounce judgment, and which contains the formal allegations of the necessary jurisdictional facts, an informa- tion for extortion by threat to accuse an- other of a crime as defined by Pen. Code 1913, 512, 513, which charges that the defendant threatened to accuse another of grand larceny, is sufficient without alleg- ing the particulars of the larceny. Lee v. State (Ariz.) 1917B-131. 2. Threat in Connection With Demand for Payment of Debt. Accused, who wrote one who trespassed on his land and cut his timber that if the trespasser did not compensate him for the damages he would prosecute him, is not guilty of the offense denounced by Miss. Code 1906, 1364, declaring that any person who shall knowingly send any letter threaten- ing to accuse another of a crime with a view to extort money shall be guilty of an attempt to rob; for a creditor is en- titled to demand payment of honest debts, and a threat to charge the debtor with an offense committed in connection with the debt or obligation ia not within the stat- ute. State v. Eicks (Miss.) 1917E-244. (Annotated.) 3. Trial. In a prosecution for extortion by threatening to accuse another of grand larceny, it is error to read to the jury all of Ariz. Pen. Code 1913, 481, 483, 484, defining grand larceny, and not to confine the instruction to the particular kind of larceny to which the threat referred. Lee v. State (Ariz.) 1917B-131. 4. Threat to Accuse of Crime. One who extorts money from another by a threat to accuse the other of a crime is guilty of extortion, whether the other is in fact guilty or innocent of the crime referred to in the threat. Lee v. State (Ariz.) 1917B-131. (Annotated.) Notes. Threat to accuse of crime as criminal offense. 1917B-134. Criminal liability for threat of prosecu- tion in connection with demand for pay- ment of debt. 1917E-246. EXTRADITION FALSE IMPRISONMENT. 365 EXTRADITION. 1. Scope of Inquiry. The court, on habeas corpus by one in custody under a requisition warrant for his arrest as a fugitive from the justice of another state, will not go into the facts of his guilt or innocence of the offense, charged by the demanding state. Ex parte McDaniel (Tex.) 1917B-335. 2. Who is Fugitive. A person who commits a crime in one state and departs therefrom and is found in another is a "fugitive from justice." Ex parte Mc- Daniel (Tex.) 1917B-335. 3. Legality of Warrant. An extradition warrant for the arrest of a fugitive from the justice of the demanding state makes a prima facie case on habeas corpus for the discharge of accused, and the burden is on him to show that the warrant was not legally issued. Ex parte McDaniel (Tex.) 1917B-335. 4. Sufficiency of Warrant. An extradi- tion warrant, which recites that the de- mand was accompanied by a "complaint," instead of by a copy of an affidavit duly certified as authentic by the governor of the demanding state, is sufficient on habeas corpus. Ex parte McDaniel (Tex.) 1917B-335. 5. Presumption of Authority of Magis- trate Taking Affidavit. An extradition warrant, which recites that accused stands charged by complaint before the proper authorities of the demanding state and that the demand is accompanied by a copy of a complaint sworn to before a justice of the peace, duly certified as authentic by the governor of the demanding state, pre- sents a prima facie case of the authority of a justice of the peace to act as magis- trate, and accused has the burden of show- ing the contrary to obtain his discharge on habeas corpus. Ex parte McDaniel (Tex.) 1917B-335. 6. Persons Subject to Extradition. Where accused detained under an extra- dition warrant sought his discharge on habeas corpus and showed that two indict- ments found in the state were pending against him, the court must order the de- tention of accused until the indictments are disposed of, with direction for his delivery under the extradition warrant. Ex parte McDaniel (Tex.) 1917B-335. (Annotated.) Note. Person in custody on charge of other crime as subject to extradition. 1917B- 337. EYEWITNESS. "Who is not. see Accident Insurance, 25. See Brokers. FACTORS. FACTORIEa See Manufacturers. FAILURE OF CONSIDERATION. As defense, see Bills and Notes, 15. FAIR COMMENT. Privileged criticism, see Libel and Slan- der, 65. FAIRNESS. As essential to remedy, see Specific Per- formance, 3. FAIRNESS OF TRIAL. Excluding outside influence from jury, see Jury, 33, 34. FALSE IMPRISONMENT. 1. Persons Liable- 2. Defenses. 3. Evidence. 4. Instructions. 5. Damages. Excessiveness of damages, see Damages, 45-47. Imprisonment of insane patient, liability, see Hospitals and Asylums, 3-6. Wife's action for imprisonment of hus- band, see Husband and Wife, 34. Liability of warden for holding pardoned convict, see Pardons, 2. 1. PERSONS LIABLE. 1. Reporting Offense to Officer. One who in good faith reports to a police offi- cer the violation of a city ordinance, and at the same time asks that the violator be arrested, but does not assume to say what steps shall be taken to that end, is not thereby rendered liable for damages be- cause the arrest is made without the issu- ance of a warrant. Lemmon v. King (Kan.) 1917E-401. (Annotated.) 2. Detention of Convict After Pardon. Where a warden, appointed by a contrac- tor for convict labor and confirmed by the court under tne statute, refuses, on the ground of lack of authority, to release a convict laborer of whom he had charge, on delivery of a pardon to him, he is liable for false imprisonment. Weigel v. McCloskey (Ark.) 1916C-503. Note. Liability of person reporting commission of offense to police officer for arrest by officer without warrant. 1917E-404. 2. DEFENSES. 3. Truth of Charge. On the trial of an action for false imprisonment and assault, the truth of the matter charged in a void 366 DIGEST. 1916C 1918B. warrant on which plaintiff was unlawfully withdrawn from their consideration, arrested, is immaterial. Howell v. Wysor Spain v. Oregon-Washington B., etc. Co. (Ore.) 1917E-1104. 3. EVIDENCE. (W. Va.) 1916C-519. 4. Condition of Jail. Where defendant railroad's conductor arrested plaintiff on the pretext that he was drunk, ejected him from the car, and turned him over to the railroad's watchman, who incarcerated him in a city jail, the road's trespass was one continuing through the incarceration and up to plaintiff's release, and it was liable for the imprisonment, as well as the un- lawful ejection, so that evidence is admis- sible to prove the condition of the city jail. Spain v. Oregon-Washington E., etc. Co. (Ore.) 1917E-1104. 5. Character of Associate of Person Im- prisoned. In an action against a railroad for injuries sustained by plaintiff when arrested for drunkenness, by defendant's conductor, ejected from the train, and im- prisoned, testimony of a witness, who had given plaintiff the bottle from which he was drinking at the time of the arrest, which plaintiff claimed contained ginger ale instead of beer, that he (the witness) was a good clean athlete and drank no liquor, is admissible. Spain \. Oregon- Washington E., etc. Co. (Ore.) 1917E-1104. 6. Acts of Servant Proof of Motive. In an action against a railroad, its special police officer and another for wrongful ejection and arrest, where the evidence justifies compensatory damages only, evi- dence as to the special officer's motive in making the arrest is inadmissible. Cin- cinnati, etc. E. Co. v. Cundiff (Ky.) 1916C- 513. 4. INSTEUCTIONS. 7. Instructions Approved. There was no reversible error in the giving and refusing of the instructions in this case. Howell v. Wysor (W. Va,) 1916C-519. 5. DAMAGES. 8. Speculative Consequences. In an ac- tion by a railroad passenger for his arrest and ejection from defendant's train as intoxicated, and his subsequent imprison- ment, which he claimed caused him to undergo a second amputation of his arm, where plaintiff's evidence as to the cause of such second amputation left it a matter of speculation whether the cause thereof was a cold caught in the jail in the un- healed original amputation, or infection from unsterilized bandages, etc., the court should have withdrawn from the jury the subject of the second amputation, as an element in plaintiff's recovery, since, when the evidence leaves the case in such situ- ation that the jury must guess as to which of several possible causes occasioned the injury, such part of the case should be 9. Elements of Damage. Where a rail- road passenger was taken from the train by the conductor and other agents of the road on the pretext that he was drunk and drinking in the car, which arrest was accomplished with some degree of physical force and involved a false imprisonment of the passenger, in his action against the road he could recover for humiliation on account of the public ejectment from the car, although, except in cases of slander, breach of promise, and the like, a recovery for mental suffering unaccompanied by physical injury will not be permitted. Spain v. Oregon- Washington E., etc. Co. (Ore.) 1917E-1104. 10. Punitive Damages. Where there was nothing in the conduct of defendant rail- road's special police officer and its em- ployee, acting under his direction, in eject- ing and arresting plaintiff that can be considered as wanton or reckless disre- gard of plaintiff's rights as a passenger, and where neither their language nor man- ner was insulting, punitive damages are not recoverable. Cincinnati, etc. E. Co. v. Cundiff (Ky.) 1916C-513. Note. What is excessive or inadequate verdict in action for false imprisonment. 1916C- 505. FALSE PRETENSES. 1. Elements of Offense, 366. 2. Indictment, 367. 3. Defenses, 367. 4. Evidence, 367. 5. Instructions, 368. Liaoility of corporation, see Corporations, 23. 1. ELEMENTS OP OFFENSE. 1. Pretense as Sole Inducement. It is not essential to the offense of obtaining property by false pretenses that the pre- tense shall be the sole inducement moving the prosecutor to part with his property. Partridge v. United States (D. C.) 1917D- 622. 2. Note as Property. A promissory note is "property" or a "thing of value" within a statute against false pretenses. Part- ridge v. United States (D. C.) 1917D-622. (Annotated.) 3. Giving Worthless Check. Where ac- cused asked prosecutor if he would cash a check or identify him at a bank, and they went together to the bank, and the officers thereof refused to give accused money on prosecutor's identifica- tion, and thereupon accused wrote a check on his home bank, payable to prosecutor, who indorsed it, and the bank thereupon FALSE PRETENSES. 367 paid the money to accused in the presence of prosecutor, the prosecutor was de- frauded, if the cheek was riot paid for want of funds. State v. Foxton (Iowa) 1916E-727. (Annotated.) 4. Under the Iowa statute, any person who, by false pretense or by any false token, obtains, with intent to defraud, any money from another, one who gives a check on a bank in which he has no account, and without reasonable expectation for believ- ing that the check will be paid on presenta- tion, and who delivers the check to a third person and secures money thereon from him, is guilty of obtaining money under false pretenses, though no representation was made other than that involved in the delivery of the check. State v. Foxton (Iowa) 1916E-727. (Annotated.) 5. Obtaining Loan. The word "obtain," as used in section 13104, Ohio General Code, is not limited to getting, securing or appropriating money or property as owner. It includes as well the getting or securing of money or property by way of a loan. Tingue v. State (Ohio) 1916C- 1156. (Annotated.) 6. Intent. Under N. Car. Revisal 1905, 3432, providing that, in an indictment for obtaining property by false pretenses, it shall be sufficient to allege that the party did the act with the intent to de- fraud, without alleging an intent to de- fraud any particular person, and that it shall not be necessary to prove an intent to defraud any particular person, an alle- gation, in an indictment as to the persons intended to be defrauded, is surplusage, and a claim of variance cannot be predi- cated thereon. State v. Salisbury Ice, etc. Co. (N. Car.) 1916C-456. 7. Reliance on Representation. While, to constitute the offense of obtaining prop- erty by false pretenses, defendant's con- duct must deceive and be intended and calculated to deceive, the sale of 1,750 pounds of coke as a ton constitutes the offense, though the buyer strongly sus- pected, that defendant was selling by short weight, where he did not and could not know this until he weighed the coke after delivery, as he was induced to part with the price in reliance upon defendant's representation that it was a ton. State r. Salisbury Ice, etc. Co. (N. Car.) 1916C- 456. 8. Attempt. The acts of a person whose property is insured against loss by bur- glary in secreting the property and mak- ing complaint to the police that it had been stolen are merely preparation for the commission of the offense of obtaining money from the insurer by false pretenses and do not constitute an attempt to com- mit the offense. Hex v. Robinson (Eng.) 1917B-1229. (Annotated.) 9. Nature of Pretense. It is not neces- sary that the false pretense should be di- rect, definite and positive; it is sufficient if it is so worded as reasonably to deceive a person of ordinary intelligence. Part- ridge v. United States (D. C.) 1917D-622. Notes. Bill or note as "property," etc., within statute against false pretenses. 1917D- 627. What constitutes attempt to obtain money by false pretenses. 1917B-1230. Obtaining loan of money as constituting crime of obtaining money by false pre- tenses. 1916C-1158. Giving worthless check as false pre- tense. 1916E-736. 2. INDICTMENT. 10. Sufficiency of Complaint. A com- plaint for obtaining money by false pre- tenses, which alleged that the defendant falsely represented that a certain ring was of solid gold, and that the complaining witness, relying on such pretense, .was in- duced thereby to deliver to the defendant a certain sum of money, is not objection- able as failing to show what was the de- ception practiced or as failing to show the connection between the pretenses alleged and the obtaining of the money. State v. Solomon (Wis.) 1916E-309. 3. DEFENSES. 11. Entrapment. Accused, obtaining money by means of short weight of coke sold to prosecutor, was guilty of obtain- ing money by false pretenses, punishable by Revjsal N. Car. 1905, 3432, though prosecutor testified that he had been sus- pecting that accused was selling short weight, and that he had to buy from him to find out whether that was true or not, and that he did not know positively that accused sold short weight until the coke had been weighed after paying the price. State v. Salisbury Ice, etc. Co. (N. Car.) 1916C-728. (Annotated.) 4. EVIDENCE. 12. Falsity of Representation Owner- ship of Land. A representation of owner- ship of land is not shown to be true by proof of the possession of a contract for the purchase thereof. Partridge v. United States (D. C.) 1917D-622. 13. Where one is charge^ with obtaining money by false pretenses by means of a worthless check, the state may not show that accused drew checks on other banks, unless it appears that there were no funds in the other banks, from which a fraudu- lent intent could be deduced, and that he intended also to defraud prosecutor. State v. Foxton (Iowa) 1916E-727. 368 DIGEST. 1916C 1918B. 14. On a trial for obtaining money by false pretenses by means of a worthless check, evidence that accused had drawn another check on another bank, unaccom- panied by evidence that the check was ever presented to the bank, or that accused did not have credit there, is inadmissible. State v. Foxton (Iowa) 1916E-727. 15. Proof of Other Similar Offenses. On a trial for obtaining money by false pre- tenses by means of a worthless check, evi- dence of the giving of othfcr worthless checks by accused about the time of the giving of the check involved is admissible to show intent. State v. Foxton (Iowa) 1916E-727. 16. Control by Accused of Subject-mat- ter of Pretenses. Where the false pre- tenses charged were with respect to the financial condition of a corporation, evi- dence tending to show that the accused controlled the corporation and that its 'ostensible officers acted under his direction is admissible. Partridge v. United States (D. C.) 1917D-622. 17. Concealment of Documents by Ac- cused. Where the false pretenses on which an indictment is based related to the financial condition of a corporation, evidence that the accused secreted its rec- ords and endeavored to prevent an exam- ination of its affairs is admissible. Part- ridge v. United States (D. C.) 1917D-622. 18. Evidence of Other Offenses. The ex- tent to which evidence of other similar offenses may be received on a prosecution for obtaining money under false pretenses to show guilty knowledge or intent rests largelv in the discretion of the trial court, and its decision will not be reversed un- less the evidence admitted appears clearly to be irrelevant and prejudicial*. Part- ridge v. United States (D. C.) 1917D-622. 5. INSTRUCTIONS. 19. Instructions^ On the trial of an in- dictment for obtaining property by false pretenses an instruction which in effect singles out one of several representations shown by the evidence and tells the jury to acquit if they find it to be true is prop- erly refused. Partridge v. United States (D. C.) 1917D-622. Note. Jurisdiction of offense of obtaining property by false pretenses. 1917E-311. FALSE SWEARING. See Perjury. FALSE REPRESENTATIONS. See Fraud and Deceit. FALSTTS IN UNO. See Instructions, 47. FARMING. See Agriculture. FARM LOAN ACT. See Agriculture, 5-10. FAMILY ALLOWANCE. See Executors and Administrators, 27-31. FAVORABLE ERRORS. Not available, see Appeal and Error, 443- 452. FEDERAL EMPLOYERS' LIABILITY ACTS. See Master and Servant. FEDERAL COURTS. Appeals in, see Appeal and Error, 14. Jurisdiction, see Courts, 8-11. FEDERAL CORPORATION TAX ACT. Validity, see Taxation, 149. FEDERAL INCOME TAX ACT. See Taxation, 179, 182. FEDERAL RESERVE ACT. See Banks and Banking, 77, 79, 80. FEES. Of attorneys, see Attorneys, 17-35. Of judges, see Judges, 3-8. Of referees, see Referees, 8. Sheriff's fees, see Sheriffs and Constables 12, 13. FELONIOUSLY. Meaning, see Homicide, 6. FELONY. Defined, see Criminal Law, 7. FELLOW SERVANTS. See Master and Servant, 25-28. Assumption of risk under Employers' Lia- bility Act, see Master and Servant, 69. FENCES. Unfenced land, liability of owner, see Animals, 3. 1. Division Fence. There was evidence to show that the defendant company, and its lessor before it, had maintained a cer- tain fence along the whole line of its right of way past plaintiff's close from the very beginning, although it latterly protested FEEAE NATURAE FINES AND PENALTIES. 369 that it was not liable to do so. These pro- tests were inefficacious to discharge the company's liability, and the case was rightly submitted to the jury upon the question of defendant's liability through lack of maintaining a sufficient fence, there being no question of right or obli- gation on the part of plaintiff or defend- ant in reference to the fence in question under the provisions of the fence act. Titus v. Pennsylvania R. Co. (N. J.) 1917B-1251. 2. When for a period of over 20 years the owner of one of two adjoining tracts has continuously, without interruption and as of duty, repaired and maintained the whole of a division fence between them, a presumption arises that he or those under whom he derived title were, as owners of a servient tenement, bound to perpetually make and maintain the fence, the exist- ence of a former and lost agreement to do so may be inferred. Titus v. Pennsyl- vania R. Co. (N. J.) 1917B-1251. (Annotated.) Note. Prescriptive obligation to maintain divi- sion fence. 1917B-1253. FERAE NATURAE. See Animals, 11-26. Wild animals subject of larceny, when, see Larceny, 1. FERRIES. 1. What is Ferryboat. Steamers oper- ated by a railroad company on Lake Tahoe which carry goods and passengers be- tween California points, Nevada points and interstate points are not "ferryboats" within Cal. Pol. Code, 3643, denning a ferryboat as a vessel traversing across any of the waters of the state between two constant points regularly employed for the transfer of passengers and freight, author- ized by law so to do, and also any boat employed as a part of the system of a rail- road for the transfer of passengers and freight plying at regular and stated periods between two points. Lake Tahoe R., etc. v. Roberts (Cal.) 1916E-1196. FERRYBOAT. Definition, see Ferries, 1. FERTILIZER PLANT. See Nuisances, 3. FIAT. Sufficiency for mandamus, see Mandamus, 28. FICTITIOUS PAYEE. Defined, see Bills and Notes, 39. FIDELITY INSURANCE. See Insurance, 31-39. 24 FIDUCIARY RELATION. Abuse of, see Fraud, 6, 7, 13. FIGHTING. Not accidental means of injury, see Acci- dent Insurance, 16. FILING. See Pleading, 105, 106. Effect of filing, see Recording Acts, 1. FINDING. Rights of finder, see Lost Property, 1, 2. FINDINGS. See Equity, 29; Life Insurance. 56; Ref- erees, 4; Trial, 63-71. Conclusiveness of immigration official's findings, see Aliens, 22. Review of findings, see Appeal and Error, 136-154. Harmless and prejudicial error, see Appeal and Error, 320-324. Necessity of exception to error, see Appeal and Error, 384-388. Sufficiency of objections for review, see Appeal and Error, 428-431. In disbarment proceedings, see Attorneys, 46. In election contest, see Elections, 92. On challenges, see Jury, 27. In proceedings under Workmen's Compen- sation Act, see Master and Servant, 299, 300, 304, 305. On foreclosure of mechanic's lien, see Mechanics' Liens, 59. In proceedings to contest will, see Wills, 132. FINES AND PENALTIES. See Forfeitures; Sentence and Punish- ment. Right to appeal, see Appeal and Error, 4. Assignability of cause of action for pen- alty, see Assignments, 15, 23. Interest on penalty of forfeited bail, see Bail, 1. Punishment for contempt, see Contempt, 16, 17. Jurisdiction of action for penalty, see Courts, 3. Sufficiency of proof, see Criminal Law, 69. Penalty for failure to pay loss, see Fire Insurance, 46. Penal action as jeopardy, see Former Jeopardy, 6-8. Fine or ouster, as penalty of foreign cor- poration, see Monopolies, 18, 19. Fines not "ordinary revenue," see Schools, 22. Disposition of fines, see Sentence and Pun- ishment, 5. Provision for fine or compensation for embezzlement, see Sentence and Pun- ishment, 6. 370 DIGEST. 1916C 1918B. Penal statutes, construction, see Statutes, 88, 89. Penalty for nonpayment of tax, see Taxa- tion, 86. Forfeiture of usurious interest, see Usury, 3, 5, 8, 19. Forfeiture of double interest, see Usury, 24, 25. 1. Excess! veness Preventing Test of Statute. The penalties of $1,000 fine, or six months' imprisonment, prescribed by Florida Laws 1913, c. 6421, 35, for viola- tions of its provisions against the sale without payment of the specified license fee, of merchandise accompanied by cou- pons, profit-sharing certificates, or other evidences of indebtedness, or other liabil- ity redeemable in premiums, are not so severe as to intimidate against a contest of the validity of such statute, and thus deny the equal protection of the laws. Rast v. Van Deman, etc. Co. (U. 8.) 1917B-455. FINGER PRINTS. Expert testimony, see Evidence, 66. FIRE ESCAPES. See Fires, 1-5. Ihity to provide, see Landlord and Tenant, 13. FIRE INSURANCE. 1. Nature of Contract, 370. 2. Effect of Binding Slip, 3'0. 3. Statutory Regulations, 371. 4. Insurable Interest, 371. 5. Construction of Policy, 371. a. Cause of Loss, 371. b. Particular Provisions, 371. (1) Vacancy Clause, 371. (2) Provision Against Aliena- tion, 371. (3) Provision Against Incum- brances, 372. (4) Watchman Clause, 372. (5) Agreement to Pay Loss, 372. (6) Arbitration Clause, 373. (7) Designation of Location, 373. C. Waiver of Provisions, 373. a. Vacancy Clause, 373. b. Provision Against Incumbrance, 373. 7. Cancellation of Policy, 373. 8. Loss and Adjustment, 373. a. Subrogation of Insurer and As- signment of Claims, 373. b. Arbitration and Appraisement, 374. c. Apportionment of Loss, 375. . d. Subrogation to Rights of Mort- gagee, 375. 9. Actions, 37.1. a. Pleading, 375. b. Sufficiency of- Evidence, 376. c. Damages, 376. Exemption of proceeds of policy, see Exe- cutions, 2. Exemption from creditors of proceeds of, see Fraudulent Sales and Convey- ances, 14. 1. NATURE OF CONTRACT. 1. On Bawdy House Validity. A pol- icy of fire insurance on a house of prosti- tution and the furniture therein is void as against public policy. Dominion Fire Ins. Co. v. Nakata (Can.) 1916C-1063. (Annotated.) 2. Right of Agent to Insure Own Prop- erty. An agent of a fire insurance com- pany with authority to act for it in con- tracting insurance, countersigning policies, and delivering them, cannot issue a policy to himself on his own property unless the company, with knowledge of the facts, ratifies his act. Salene v. Queen City Fire Ins. Co. (Ore.) 1916D-1276. (Annotated.) 3. A mortgagee knew that the mort- gagor was an agent of a fire insurance company with power to act for it in con- tracting insurance. The mortgagor issued a policy on the property payable to the mortgagee as his interest might appear. It is held that the mortgagee was charge- able with knowledge of the want of power of the mortgagor to issue a policy on his own property, and to hold the company he must show that it approved or ratified the policy with knowledge of the facts. Salene v. Queen City Fire Ins. Co. (Ore.) 1916D-1276. (Annotated.) Notes. Right of fire insurance agent to insure his own property. 1916D-1278. Validity of insurance policy on property illegally kept or used. 1916C-1070. 2. EFFECT OF BINDING SLIP. 4. Binding Slip as Contract. Where the president of plaintiff lumber company wrote the agent of defendant insurance company, "I wish you would also bind the building of [the owner] being constructed at Lost Springs for $1,500 as we are fur- nishing the material. We can probably make this permanent, but we want to be covered in the meantime," to which the agent replied that he had bound the build- ing, but stated that it was necessary fpr the company to have a definite location on the risk if they were to hold the binder, requesting that his correspondent send a regular application blank for a policy, which the president of plaintiff company thereafter neglected to do, there is a bind- ing contract of present insurance made between the parties, subjecting the insur- ance company to liability for a loss, such of the necessary terms of every contract of insurance as were unexpressed in the correspondence resting in implication. FIRE INSURANCE. 371 Royal Ins. Co. v. Walker Lumber Co. (Wyo.) 1917E-1174. (Annotated.) 3. STATUTORY REGULATIONS. 5. Provision for Payment of Less Than Face of Policy. In such case any condi- tion in the policy providing for the pay- ment of a less sum than the amount of the insurance as written therein is void under the provisions of the valued policy law. Neb. Rev. St. 1913, 3210. Dinneen v. American Ins. Co. (Neb.) 1917B-1246. 6. Local Regulations as Part of Policy. When writing insurance on a building sit- uated within the fire limits of a city, the insurance company is bound by the laws and ordinances of the city and such laws and ordinances should be considered as a part of the policy. Dinneen v. American Ins. Co. (Neb.) 1917B-1246. (Annotated.) Note. Effect of local ordinance or regulation on liability under fire insurance policy. 1917B-1250. 4. INSURABLE INTEREST. 7. Leasehold. The interest of a lessee under a lease for years is insurable. Home Ins. Co. v. Coker (Okla.) 1917C- 950. (Annotated.) Note. Insurable interest of tenant of property for specifis term. 1917C 951. 5. CONSTRUCTION OF POLICY, a. Cause of Loss. 8. A company issuing a policy of insur- ance against direct loss by fire is not lia- ble thereon for an injury occasioned to a steam boiler through its negligent man- agement by some one connected with the business. McGraw v. Home Ins. Co. (Kan.) 1916D-227. (Annotated.) Note. Overheating as fire within fire insurance policy. 1916D-228. b. Particular Provisions. (1) Vacancy Clause. 9. Effect of Subsequent Occupancy. Fire insurance policies in the Maine stand- ard form expiring in December, 1913, and December. 1914, provided that they should be void if the premises should become vacant and so remain for more than 30 days without the previous assent of the insurer in writing. The premises were vacant without such assent from January 31, to June, 1912, after which they were occupied until July 28, 1912, when the loss occurred. Me. Rev. St. c. 1, 6, par. 1, provides that words and phrases shall be construed according to the common mean- ing of the language. Held, that the word "void" meant null, of no effect, and that the force of the provision did not depend upon an increase of risk, but that the vacancy worked a forfeiture and not merely a suspension of risk, so that the subsequent occupancy did not revive the policy. Dolliver v. Granite State Fire Ins. Co. (Me.) 1916C-765. (Annotated.) 10. Period Between Successive Occu- pancies. A fire policy contained a stipula- tion that, if the building should become vacant or unoccupied, it should be null and void. The policy was issued on an application stating that the premises were used as a private dwelling, but after issu- ance the owner began to rent them. Upon the tenant removing from the dwelling the owner secured a vacancy permit, and about the time of its expiration the ten- ant returned. After expiration of the vacancy permit the tenant again removed from the premises, though he left a stove and a few other articles which the owner intended to appropriate for rent. Before the premises were reoccupied by the owner they were burned. It is held that, though the owner intended and would have in less than a week reoccupied the premises, no recovery could be had on the policy; this not being a case of a policy issued upon rented property, where short vacan- cies are to be anticipated. Planters' Fire Ins. Co. v. Steele (Ark.) 1917B-667. (Annotated.) 11. Change in Occupancy. A fire policy was issued on an application containing a statement that the building was occupied as a private dwelling, and the policy pro- vided that, if the building should become vacant or unoccupied, or any change should take place in the title, occupancy, or possession, it should become null and void. After issuance of the policy in- sured ceased to occupy the premises as a private dwelling, and leased them to ten- ants. It is held that there was such a change in the occupancy as to avoid the policy, notwithstanding that at the time of a fire the premises were vacant, and in- sured was intending to reoccupy them within a few days. Planters' Fire Ins. Co. v. Steele (Ark.) 1917B-667. Notes. Revival of fire insurance policy by oc- cupancy after vacancy. 1916C-770. Construction of vacancy clause in fire insurance policy issued upon rented prop- erty. 1917B-669. (2) Provision Against Alienation. 12. Sale of Interest by Joint Owner. Where an insurance policy covering part- nership property is voidable by change of title of insured, a sale of his interest by 372 DIGEST. 1916C 1918B. one partner to a third person affects the risk, because a new party is brought into contractual relations with the insurance company. Firemen's Ins. Co. v. Larey (Ark.) 1917B-1225. (Annotated.) 13. Under such policy, covering prop- erty of tenants in common, a sale by a tenant in common of his interest to a stranger ends the contract of insurance as to him or his vendee. Firemen's Ins. Co. T. Larey (Ark.) 1917B-1225. (Annotated.) 14. Under such policy, covering property of tenants in common, a sale by a tenant in common of his interest to a stranger does not affect the insurance as to the remaining tenant or tenants in common, since thereby no stranger is brought into contractual relation with the insurance company so far as concerns that part of the insurance which covers the interest of the tenant or tenants in common not sell- ing. Firemen's Ins. Co. v. Larey (Ark.) 1917B-1225. (Annotated.) 15. Fire Insurance Change in Interest or Title Renewal of Lease. A condition against change in title or interest in a fire insurance policy issued to a lessee holding under a lease giving an option of renewal is not broken by a renewal of the lease, the provisions of the new lease be- ing identical with those of the former one, including the renewal clause. Home Ins. Co. v. Coker (Okla.) 1917C-950. 16. Sale and Reacquisition Before Loss. Since a clause in a fire insurance policy, forfeiting the policy if any change takes place in the title, possession, or interest of the insured in the property, or if the policy be assigned, must be construed to contemplate only transfers which per- manently divest the insured of all interest in the property, where, upon a sale of the land by insured, the policy was trans- ferred with the consent of the company, subsequently again transferred without the consent of the company, and finally transferred to the original owner without the consent of the company, the policy is not thereby rendered void, in the absence of a declaration of forfeiture; the prop- erty having been restored to the party with whom the company originally con- tracted, before the loss occurred and the liability of the company having merely been suspended during the interim. Ger- mania Fire Ins. Co. v. Turley (Ky.) 1917C-931. (Annotated.) 17. Interpretation, A policy of fire in- surance on a building under construction in favor of a lumber company contained the provision that it should be void if any change took place in the interest, title, or possession of the subject of insurance. The policy stood in the name of the owner of the building, and to cover the lumber company's interest a rider was attached to the effect that a loss, if any, was payable to the company as its interest might ap- pear. In the policy there was a printed stipulation that if an interest under the policy should exist in favor of any person having an interest other than the insured, the conditions of insurance, relating to such interest, "as shall be written upon, attached, or appended hereto" should ap- ply. It is held that the conveyance, twelve days before loss of the building, by the owner to his sister did not relieve the insurer of liability to the lumber com- pany, since the stipulation of the policy relating to the effect of a change in title did not apply to the lumber company where not set out in the rider. Royal Ins. Co. v. Walker Lumber Co. (Wyo.) 1917E- 1174. Note. Sale and reacquisition of title as viola- tion of clause in fire insurance policy pro- hibiting change in interest, title, etc. 1917C-934. (3) Provision Against Incumbrances. 18. Effect of Subsequent Satisfaction. Under a policy of insurance on an auto- mobile providing that it shall be void if the property should become incumbered by a chattel mortgage, or if any change other than by the death of insured should take place in the interest or title of the property, a chattel mortgage subsequently given merely suspends the insurance, and, where it is paid and canceled before a loss, the insurance revives. Cottingham v. Maryland Motor Car Ins. Co. (N. Car.) 1917B-1237. (Annotated.) Note. Revival of fire insurance policy after satisfaction of lien or incumbrance at- taching to property in violation of policy. 1917B-1241. (4) Watchman Clause. 19. Negligence of Watchman. When the insured employs two competent watch- men and, in good faith, instructs them to watch carefully the property and to guard against fire, both by day and by night, the condition of the "watchman clause" in the policy is fully complied with on the part of the insured and negligence on the part of a watchman does not forfeit the policy. Theriault v. California Ins. Co. (Idaho) 1917D-818. (Annotated.) Note. Construction of watchman clause in fire insurance policy. 1917D-821. (5) Agreement to Pay Loss 20. Agreement to Pay Loss Within Specified Time. Under a contract of in- surance, providing that within sixty days FIRE INSURANCE. 373 after written notice of the fire or the fur- nishing of a sworn statement on request the insurer should pay the amount for which it should be liable, which amount, if not agreed upon, should be ascertained by award of three referees chosen in the manner designated, and that the award of a majority should be conclusive and final as to the amount of loss, in view of Mass. Laws 1910, c. 552, relating to sworn state- ments of loss, the obligation of the in- surer is to pay within sixty days after the notice of the fire or the submission of the sworn statement when demanded, even though the precise amount is not then ascertained. Second Society v. Royal Ins. Co. (Mass.) 1917E-491. (6) Arbitration Clause. 21. Provision for Arbitration. A con-" tract of insurance, providing that the company, within sixty days after notice of fire in writing, or the submission of sworn statement on request, should either pay the amount for which it should be liable, which amount, if not agreed upon, should be ascertained by award of ref- erees, and that the award in writing of a majority should be conclusive and final as to the amount of loss, that such reference, unless waived, should be a condition precedent to any right of action at law or in equity to recover such loss, was not an arbitration of the whole controversy but only a stipulation for determining the amount of damages, and is a valid provi- sion not obnoxious to the principle that contracts to oust courts of their jurisdic- tion are not binding. Second Society v. Royal Ins. Co. (Mass.) 1917E-491. (7) Designation of Location. 22. Absence of Stock from Designated Location. Where a policy insuring horses against fire while contained in a described barn also uses the language of Wis. St. 1913, 1941-43, which provides for in- demnity against loss of the property while contained in the location described, and not elsewhere, insured cannot, on the theory that it was contemplated between the parties that the horses might of necessity be taken from the barn to per- mit repairs, recover for their loss while away from the barn; there being no ambiguity of language or waiver of that provision in the policy. Rosenthal v. In- surance Co. (Wis.) 1916E-395. (Annotated.) Note. Fire insurance policy on live stock in designated location as covering animals temporarily elsewhere. 1916E-398. 6. WAIVER OF PROVISIONS, a. Vacancy Clause. 23. Waiver of Forfeiture. An insurer may waiva a breach of a provision for forfeiture in case of vacancy without its assent. Dolliver v. Granite State Fire Ins. Co. (Me.) 1916C-765. b. Provision Against Incumbrance. 24. Failure to Make Inquiry. Where a fire policy is issued by an insurance company without written application, the company must be held to have waived the condition of the policy, providing that if the property be, or shall become, in- cumbered by a chattel mortgage, the policy shall be void, for while effect should be given to the contract, the in- sured has practically no voice in framing it, and to permit the company to obtain the premiums where the insured was in ignorance of the stipulation would work a fraud. Great Southern Fire Ins. Co. v. Burns (Ark.) 1917B-497. (Annotated.) 7. CANCELLATION OF POLICY. 25. Necessity of Return of Unearned Premium. Under a fire insurance policy in the New York standard form providing that it might be canceled at any time at the request of the insured, or by the in- surer, by giving five days' notice of such cancellation, and that if the policy should be canceled as provided the unearned part of the premium actually paid should be returned on surrender of the policy or last renewal, the insurer retaining the cus- tomary short rate, except that on a can- cellation by it by giving notice it should retain only the pro rata premium, the giving of the five days' notice was suffi- cient to cancel the policy, and the return of or offer to return the premium is not an essential element of the cancellation. Mangrum & Otter v. Law Union, etc. Ins. Co. (Cal.) 1917B-907. (Annotated.) Note. Necessity of return or tender of un- earned premium to effect cancellation of fire insurance policy by insurer. 1917B- 910. 8. LOSS AND ADJUSTMENT. a. Subrogation of Insurer and Assign- ment of Claims. 26. Enforcement of Subrogation. Burns' Ind. Ann. St. 1914, -249, declares that there shall be no distinction in plead- ing between actions at law and suits in equity, while section 251 declares that every action must be prosecuted in the name of the real party in interest. Sec- tions 269 and 270 require all persons having an interest and desiring relief to be joined as plaintiffs, and permit the joinder as defendants of persons who ere necessary parties or have refused to join as plaintiffs. An insurer against fire paid a policy on property destroyed by fire 374 DIGEST. 1916C 1918B. a railroad train. It Second Society v. Royal Ins. Co. (Mass.) (Annotated.) communicated from is held that, as the insurer was subrogated to the rights of the owner, it could, in its own name, maintain an action for the destruction of the property, and in case the property destroyed was of a greater value than the amount of the insurance, the owner should be joined. Pittsburgh, .etc. R. Co. v. Home Ins. Co. (Ind.) 1918A- 828. Annotated.) 27. Subrogation to Eights Against Wrongdoer. An insurer of property de- stroyed by fire, who has paid the loss, is subrogated by equitable assignment to the rights of the owner to recover against one who is responsible for the property's de- struction. Pittsburgh, etc. R. Co. v. Home Ins. Co. (Ind.) 1918A-828. 28. Burns' Ind. Ann. St. 1914, 5525a, making railroad companies liable for the firing of property by locomotives, and providing that they shall have an in- surable interest therein, does not destroy the right of an insurer of property fired by a locomotive to be subrogated to the rights of the owner to recover damages; the statute merely giving the railroads an insurable interest which they might pro- tect by taking a policy in its own name. Pittsburgh, etc. R. Co. r. Home Ins. Co. (Ind.) 1918A-828. 29. Effect of Release by Insured. Where, a tortfeasor, who fired property, with knowledge that the insurer had paid the amount of the policy, paid the insured a further sum, and procured a release, such release is no defense against an ac- tion by the insurer. Pittsburgh, etc. R. Co. v. Home Ins. Co. (Ind.) 1918A-828. b. Arbitration and Appraisement. 30. Procedure at Arbitration. Mass. Pub. St. 1882, c. 188, 1, 6, 7, now Rev. Laws, c. 194, 1, 6, 7, the general law authorizing reference to arbitration, by section 7 provides that arbitrators shall meet and hear the parties, and by section 1 that all controversies which may be the subject of an action at law or a suit in equity may be submitted to arbitration. A reference in writing solely to determine the amount of the loss under a policy of fire insurance was not limited to the words of the policy, but expressly incor- porated the statute by reference. It is held that the parties might agree to a reference broader or more detailed in its scope than the policy demanded, that the requirement that the referees meet and hear the parties implied that relevant evidence should be received and consid- ered, especially as the reference to the procedure under the general law neces- sarily imported into the reference the practice, under general arbitration, of hearings at which evidence is received. 1917E-491. 31. Scope of Arbitration. Under Mass. St. 1907, c. 576, setting forth the stand- ard form of policy, by section 57 provid- ing that if buildings insured against loss by fire are totally destroyed, the insurer shall not be liable beyond the actual value of the property at the time of the loss or damage, in force when the policy was is- sued, it is proper for referees, to deter- mine the amount of the loss, to refuse to consider the cost to the insured from the tearing down of the walls of the building during the fire at its expense by public officers, and after the fire by itself at its own expense, and the increased cost of rebuilding, due to the fact that under the building laws a new structure must be of more expensive materials, since those matters had no relation to the actual value of the property. Second Society v. Royal Ins. Co. (Mass.) 1917E-491. 32. The refusal of referees, appointed to fix the amount of loss under a policy of fire insurance, to receive evidence as to the loss when the submission required them to listen to evidence, requires that the award be set aside, although an award should stand unless it primarily appears that the alleged misconduct has prejudiced, or may have prejudiced, the party complain- ing, or had violated the rules which jus- tice requires should be observed to secure the fair determination of the matters in dispute. Second Society v. Royal Ins. Co. (Mass.) 1917E-491. (Annotated.) 33. Ground for Vacating Award, In- sured, by written agreement submitting to referees amount of its loss under a policy of fire insurance, is entitled to an honest award free from the taint of fraud or pre- judice, but mere inadequacy of an award honestly made without mistake is no ground for setting the award aside, to jus- tify which the inadequacy of the award must be so strong, gross, and manifest that it would be impossible to state it to a man of common sense without producing an ex- clamation at the inequality of it, so that the difference between the insured's al- leged value of $100,000 and an award of $57,604 after the referees had disallowed elements of damages, one of which amounted to at least $20,000, did not, of it- self, show fraud, bias, or prejudice, so as to justify a setting aside of the award on the ground of inadequacy, but the parties having chosen that tribunal were bound thereby. Second Society v. Royal Ins. Co. (Mass.*) 1917E-491. 34. Effect of Failure of Arbitration. The provision of a policy of fire insurance for ascertainment of the amount of loss or <^mage by a reference and award is not satisfied by one appointment of referees, and it is not the law that an insured may FIRE INSURANCE. 375 recover, unless it appears that the award has failed through his fault. Second Soci- etj v. Boyal Ins. Co. (Mass.) 1917E-491. 35. Conclusiveness of Award. The ques- tion -whether an award of referees ap- pointed under a policy of fire insurance to ascertain the amount of loss should be set aside may be determined in the insured's action of contract upon the policy, without resort to equity, under the rule that an award may be impeached at law for mis- take of fact not appearing on its face, and in such action the defendant might offer to show the validity of the award in bar to an action thereon. Second Society v. Eoyal Ins. Co. (Mass.) 1917E-491. 36. Under a policy of fire insurance that if the amount for which the company was liable was not agreed upon it should be ascertained by an award of referees, that an award in writing of a majority should be conclusive, and that such reference, un- less waived, should be a condition prece- dent to any action at law or in equity to recover for such loss, the insured's cause of action is upon the policy of insurance, and not upon the award, which, if valid, is simply the evidence as to the amount of loss. Second Society v. Koyal Ins. Co. (Mass.) 1917E-491. c. Apportionment of Loss. 37. Building Incapable of Repair. When an insured building is injured by fire to such an extent as to destroy its use as a building and require it to be demol- ished or removed, the insured will be en- titled to recover as for a total loss. Such construction of the valued policy law does not deprive the insurance company of its property without due process of law. Din- neen v. American. Ins. Co. (Neb.) 191 7B- 1246. d. Subrogation to Eights of Mortgagee. 38. Subrogation of Insurer to Rights of Mortgagee. Where a mortgagee insures the hypothecated property at his own ex- pense, the insurer, paying a loss by fire to such mortgagee to the amount of the debt, is subrogated to the mortgagee's right in such debt, since the insurance contracted and paid for by the mortgagee in effect makes the insurance company a surety to the holder of the mortgage for the pay- ment of the debt. Milwaukee Mechanics' Ins. Co. v. Eamsey (Ore.) 1917B-1132. (Annotated.) 39. Eealty was insured against fire, the loss being payable to a mortgagee as its in- terest might appear; otherwise to the in- sured. Within the term of the policy the property was destroyed by fire, and upon the mortgagee and owner suing the insur- ance company the mortgagee recovered judgment for the amount of its secured debt, while the owner failed to recover because he had contracted to sell, violating a policy restriction. The insurance com- pany paid the mortgagee's judgment, and demanded that the mortgagee assign to it the owner's note and mortgage, which was refused. Thereupon the company sued the mortgagee and the owner, claiming subro- gation to the rights of the mortgagee against the owner, and seeking to fore- close the security and recover the amount of the debt. It is held that the insurance company could not recover, since by the policy it agreed with the owner to pay a certain designated person, the mortgagee, in case of a loss, but did not agree to pay the owner's debt to the mortgagee as such. Milwaukee Mechanics' Ins. Co. v. Eam- sey (Ore.) 1917B-1132. (Annotated.) 40. Subrogation to Eights Against Tort- feasor. Where insured property is burned by the tortious act of one not a party to the contract, the insurer, paying the loss, is subrogated pro tanto to the chose in action the payee has against the tortfeasor by reason of his insurable interest. Mil- waukee Mechanics' Ins. Co. v. Eamsey (Ore.) 1917B-1132. Note. Subrogation of insurer to rights of mort- gagee. 1917B-1135. 9. ACTIONS, a. Pleading. 41. Declaration, in an action of contract upon a policy of fire insurance in the standard form, setting out a contract of insurance, a total loss of the property in- sured, together with a compliance with the condition precedent to the effect that there must be a reference to ascertain the amount of loss that the award was invalid, insured's offer to proceed to a new arbitra- tion and the insurer's refusal to do so and its insistence on the validity of the award made, sets out a cause of action on the policy. Second Society v. Eoyal Ins. Co. (Mass.) 1917E-491. 42. Award as Condition Precedent to Re- covery on Policy. Under a contract of in- surance, providing for the determination of the amount of loss by award of referees, and that an award in writing of a majority should be conclusive, and that such refer- ence, unless waived by the parties, should be a condition precedent to any right of action at law or in equity to recover such loss, the reference, and not the award, was the condition precedent to an action at law, so that the declaration, alleging a reference and a definite refusal to join in another reference, is not defective in failing to allege a valid award. Second Society v. Eoyal Ins. Co. (Mass.) 1917E- 491. 43. Avoiding Arbitration for Fraud. Al- legations in an action of contract on a 376 DIGEST. 1916C 1918B. policy of fire insurance that the inade- quacy of the award arose from the fraud, bias, and prejudice of the referees, without alleging definite acts constituting fraud, bias, or prejudice, are not enough to re- quire judicial inquiry. Second Society v. Royal Ins. Co. (Mass.) 1917E-491. 44. Avoidance of Arbitration. An alle- gation, in an action of contract upon a policy of fire insurance in the standard form, that no notice of hearings was given to the plaintiff by the referees to fix dam- age, without alleging that no hearings were given as required by the terms of the reference, nor that the plaintiff did not, in fact, have notice of the hearings, or was not heard, does not show that any substantial right of the plaintiff was affected; and no intendment in this re- spect can be made in favor of the pleader. Second Society T. Royal Ins. Co. (Mass.) 1917E-491. FIRES. b. Sufficiency of Evidence. 45. What Constitutes Fire. Evidence that, when the person in charge of a steam boiler used in a laundry left it at night, it was over half full of water, the gas by which it was heated being turned off, and was then in good condition, and that when the building was unlocked the next morn- ing no fire was burning under the boiler, but it was empty of water, and was ruined by the action of excessive heat, nothing being shown as to whether any one con- nected with the business returned during the night, does not justify an inference of an intentional injury to the property hav- ing been done by some one, who gained wrongful entrance to the building. Mc- Graw v. Home Ins. Co. (Kan.) 1916D-227. (Annotated.) e. Damages. 46. Penalty for Failure to Pay In- surance. Insured and insurer agreed upon the amount of a fire loss. Thereafter the insurer denied liability on the ground that the property was encumbered at the time the policy was written. The original com- plaint prayed recovery for the amounts named in the face of the policies, but the insured shortly amended, praying recov- ery for the amounts agreed upon. It is held that, as the insurer contested all lia- bility, the insured could recover the attor- ney's fees and penalties provided by Ark. Acts 1905, p. 307. Great Southern Fire Ins. Co. v. Burns (Ark.) 1917B-497. FIRE INSURANCE PATROL. Liability for torts of employees, see Mas- ter and Servant, 365. FIREMEN. See Municipal Corporations. 1. Regulations in General. 2. Fires Set by Railroads. a. Care Required. b. Proximate Cause. c. Actions. (1) Pleading. (2) Admissibility of Evidence. (3) Sufficiency of Evidence. d. Statutes Imposing Liability. Volunteer fire company, charitable corpo- ration, see Charities, 7. Liability of innkeeper for injury to guest, see Innkeepers, 8-10. Duty to provide fire escapes, see Landlord and Tenant, 13. Effect of fire damage to leasehold, see Landlord and Tenant, 16. Fireman as within Workmen's Compensa- tion Act, see Master and Servant, 242. Liability of railroad for fire started by its laborers' campfire, see Master and Servant, 364. City fire departments, see Municipal Cor- porations, 161-168. Owner's duty to extinguish, see Negligence, 17. Duty to guard stationary engine, see Neg- ligence, 33. Spark from sawmill engine, see Negli- gence, 91. Statute imposing absolute liability, see Railroads, 61^63. Liability of railroads, title of statute, see Statutes, 13. Duty of street car employees as to fire en- gines, see Street Railways, 33. Failure to furnish water, liability, see Waterworks and Water Companies, 10. 1. REGULATIONS IN GENERAL. 1. Fire Escapes. Though 111. Factory Act, 14, required the equipping of fac- tories and mercantile establishments with sufficient and reasonable fire escapes, the fact that a fire escape was built pursuant to the statute does not show that it was adequate; the statute not prescribing any standard for fire escapes. Lichtenstein v. L. Fish Furniture Co. (111.) 1918A-1087. 2. HI. Factory Act (Kurd's Rev. St. 1913, c. 48, 102), 14, requiring suffi- cient and reasonable fire escapes to be furnished in factories, mercantile estab- lishments, etc., is valid. Lichtenstein v. L. Fish Furniture Co. (111.) 1918A-1087. 3. Neither elevator shafts nor inside stairways, both of which serve as means of spreading fire, can be considered as fire escapes within 111. Factory Act. 14. requiring factories, etc., to be equipped with fire escapes. Lichtenstein v. L. Fish Furniture Co. (111.) 1918A-1087. 4. A master is bound to furnish fire escapes under 111. Factory Act, 14, requir- ing factories and mercantile establishments Vo be equipped with fire escapes, though FIEES. 377 no notice to furnish same has been given by a factory inspector. Lichtenstein r. L, Fish Furniture Co. (111.) 1918A-1087. 5. In an action for the death of an employee based on defendant's violation of 111. Factory Act, 14, requiring the furnishing of sufficient and adequate fire escapes in factories, mercantile establish- ments, etc., an instruction that there was a statute making it the duty of every person employing servants in a factory r mercantile establishment to exercise reasonable care in furnishing to such servants sufficient and reasonable means of escape in case of fire, and to exercise reasonable care in keeping the means of escape free from obstruction, is not erroneous; the master in such case be- ing liable if the fire escapes were insuffi- cient or if they were obstructed. Lichten- stein v. L. Fish Furniture Co. (111.) 1918A- 1087. 2. FIRES SET BY RAILROADS, a. Care Required. 6. The placing by a railroad company of bunk cars for the use of its laborers upon its right of way, Adjacent to plaintiff's property, does not of itself create a nui- sance so as to render the railroad liable for loss caused by a fire kindled by the laborers upon the right of way to heat water to wash their clothes, and communi- cated to plaintiff's property. Excelsior Products Mfg. Co. v. Kansas City So. R. Co. (Mo.) 1917B-1047. (Annotated.) 7. Where the conductor of a railroad passenger train observed a fire upon the right of way kindled by laborers for their own purpose and not obviously dangerous to adjoining premises, the railroad is not liable for his failure to stop his train and extinguish the fire, since the circumstances did not impose such a duty upon him. Excelsior Products Mfg. Co. v. Kansas City So. R. Co. (Mo.) 1917B-1047. 8. The knowledge of railroad laborers who kindled a fire on a railroad right of way for a purpose outside the scope of their employment is not knowledge of the fire by the railroad company, which requires it to use due care to prevent the spread of the fire. Excelsior Products Mfg. Co. v. Kansas City So. R. Co. (Mo.) 1917B- 1047. b. Proximate Cause. 9. The negligence of a railroad company in permitting combustibles to accumulate on its right of way is not the proximate cause of the burning of adjoining prop- erty, where the fire was started by rail- road laborers on the right of way for their own purposes, and there was no evidence that the rubbish became ignited and there- by communicated the fire to the plaintiff's property. Excelsior Products Mfg. Co. v. Kansas City So. R. Co. (Mo.) 19176^1047. (Annotated.) C. Actions. (1) Pleading. 10. Under Burns' Ind. Ann. St. 1914, 5525a, declaring that railroad companies shall be responsible to every person whose property may be destroyed by fire com- municated by locomotives, and that, in all actions instituted under the act, the bur- den of proving contributory negligence shall be on the defendant, a complaint seeking to recover for the firing of prop- erty by a railroad company need not aver the negligence of the company or plain- tiff's freedom from contributory negli- gence. Pittsburgh, etc. R. Co. v. Home Ins. Co. (Ind.) 1918A-828. 11. Liability of Railroad. In an action under Burns' Ind. Ann. St. 1914, 5525a and 5525b, which impose upon a railroad company liability for fires communicated by locomotives, regardless of its negli- gence, the complaint need not allege the duty of the railroad company to exercise care to protect plaintiffs property, as would be necessary if negligence were re- lied upon. Pittsburgh, etc. R. Co. v. Chap- T>ell (Ind.) 1918A-627. (2) Admissibility of Evidence. 12. Condition" of Locomotive at Another Time. The property burned was a choco- late factory and its contents. There was evidence that the fire originated soon after a mixed train passed the factory going east early in the morning and that the engine was working steam when it passed. Evidence that the same engine when going west the evening before threw fire when working steam was admissible. Hollinger v. Missouri, etc. R. Co. (Kan.) 1916D-802. (3) Sufficiency of Evidence. 13. Railroads Evidence Sufficient. Find- ings that the fire was communicated by the engine referred to and of damages closely approximating the totals of the schedules attached to the petition were sufficiently sustained by the evidence. Hollinger v. Missouri, etc. R. Co. (Kan.) 1916D-802. d. Statutes Imposing Liability. 14. Mo. Rev. St. 1909, 3150, 3151, making railroads liable for fires started by engines and those communicated by the ignition of dry vegetation negligently per- mitted to remain on the right of way, does not make the railroad liable for a fire kindled by its laborers on the right of way outside the scope of their employment and communicated directly to adjoining prop- erty without the ignition of rubbish upon the right of way. Excelsior Products Mfg. Co. v. Kansas City So. R. Co. (Mo.) 1917B-1047. (Annotated.) 378 DIGEST. 1916C 1918B. 15. Railroads Statutory Liability for Fires Enforcement in Another State. The statute of the state of Missouri mak- ing railroad corporations responsible in damages for loss by fire communicated by their engines is compensatory and reme- dial and may be enforced in an action for such damages prosecuted in this state. Hollinger v. Missouri, etc. R. Co. (Kan.) 1916D-802. 16. Statute Imposing Absolute Liability. Burns' Ind. Ann. St. 1914, 5525a, making railroad companies liable for fires caused by its locomotives, and providing that contributory negligence shall be a matter of defense, is not invalid as working an impairment of the obligation of a con- tract, because at the time the railroad ac- quired its right of way, and at the present, it is authorized to propel its trains by steam power. Pittsburgh, etc. R. Co. v. Home Ins. Co. (Ind.) 1918A-828. FISCAL MANAGEMENT. See States, 5-7. FISH AND GAME. 1. Right to Take Fish, 378. 2. Statutory Regulations, 3J8. 3. Offenses Against Fishing Laws, 380. 4. Interference With Hunting Rights, 380. 5. State's Title to Wild Game, 380. Property rights in inclosed deer herd, see Animal!, 21. Killing deer in defense of property, see Animals, 22. Domesticated wild fowl, see Animals, 20. 23-26. 1. RIGHT TO TAKE FISH. 1. Eight of Property in Fish. Where one catches fish in public waters and con- fines them in a private pond having no outlet to public waters, he becomes the owner of such fish and may recover their value from another wrongfully taking them from his possession. Murphy v. Hitchcock (Hawaii) 1917B-976. (Annotated.) 2. Sale of Leasehold Interest in Pond. Fish in a private pond, unconnected with public waters, do not pass by sale of a leasehold interest in the pond made under execution, the levy and notice of sale be- ing silent as to the fish, and the execution defendant being admitted to be the owner of the fish at the time of the levy and sale. Murphy v. Hitchcock (Hawaii) 1917B- 976. 2. STATUTORY REGULATION'S. 3. Validity of Statute. Vt. Const, c. 2, 63, provides that the inhabitants of a state shall have liberty in seasonable times to hunt on their own lands and others not inclosed, and take fish in all waters under proper regulations, and chapter 1, art. 5, provides that the "people of this state by their legal representatives have the sole . . . right of governing and regulating the internal police of the same." Held, that article 5 authorized the enactment of Acts Vt. 1912, No. 201, requiring hunting licenses, section 1 of which provides that the word "resident" as used in the act which provides that, if applicant is a bona fide resident or owner of improved realty of a certain taxable value, he shall pay a certain fee shall "cover all citizens of the United States" living in the state for not less than 6 months, even though the sec- tion is considered to exclude a resident alien. Bondi T. MacKay (Vt.) 1916C-130. (Annotated.) 4. Treaties Right of Resident Alien Exclusion from Privilege of Hunting. The treaty between the United States and Italy (Feb. 26, 1871, 17 Stat. 845) pro- viding that citizens of each country shall enjoy the same rights and privileges which are granted to the natives is not violated by Acts Vt. 1912, No. 201, 1, providing that the word "resident" as used in the act which related to hunters' licenses is intended to include all citizens of the United States, though the section con- strued excludes from obtaining a license an Italian subject who is both a resident and a taxpayer. Bondi v. MacKav (Vt.) 1916C-130. 5. A hunting license fee of $10.50 re- quired by Acts Vt. 1912, No. 201, 43, of nonresidents is not unreasonable. Bondi v. MacKay (Vt.) 1916C-130. (Annotated.) 6. Acts Vt. 1912, No. 201, 1, providing that the word "resident" as used in the act which requires one hunter's license fee of a bona fide resident or property owner, and another in case of a nonresident, shall cover all citizens of the United States living in the state for 6 months, does not contravene Const. U. S. Amend. 14, rela- ting to the equal protection of the law, even if construed to exclude a resident alien and taxpayer from obtaining a license. Bondi v. MacKay (Vt.) 1916C- 130. (Annotated.) 7. The legislature may regulate the right to take game, with respect to its de- crease as well as its preservation and in- crease. Bondi v. MacKay (Vt.) 1916C- 130. (Annotated.) 8. Requirement of License to Hunt. Acts Vt. 1912, No. 201, 47, provides that, if the applicant for a hunter's license is a bona fide resident of the state, or owns improved realty listed for taxes at $1,000, he shall pay 75 cents. Section 43 pro- vides that, if he is a nonresident, and does not own improved realty of a certain valu- ation, he shall pay $10. Section 1 pro- FISH AND GAME. vides that the word "resident" as used in the act is intended to cover "all citizens of the United States who have lived in this state for not less than six months" before applying, and that the term "non- resident" shall include all persona not com- ing within the definition of "resident." Section 4, subd. 3, provides that game or fish protected by law, if taken by a non- resident, may be transported without the state as provided. Held, that one who had for 14 years been a bona fide resident and taxpayer of the state, though not on real estate of the required value, but was not a citizen of the United States, being a subject of Italy, was not entitled to a license. Bondi v. MacKay (Vt.) 1916C- 130. 9. Wash. Laws 1897, p. 82, 1, and Laws 1899, p. 277, 1, making it unlawful for anyone at a specified season to take or destroy any deer, Laws 1901, p. 279, 1, 2, limiting the number of deer that may be killed, Laws 1903, p. 94, 1, making it unlawful for any person at a certain sea- son to take or "possess" any deer, Laws 1905, p. 277, providing for licenses, and Laws 1911, p. 396, making it unlawful to take or possess any deer, did not cover the possession of deer which were reclaimed and kept in an inclosure. Graves v. Dun* lap (Wash.) 1917B-944. (Annotated.) 10. Regulation of Salmon Fishing. Ore. L. O. L. 5293, 5298, regulating fishing for salmon, sturgeon, or other anadromous fish in the waters of the state, is not class legislation within the prohibition of Const, art. 1, 20, providing "no laws shall be passed granting to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens," since the statute protects the right of all persons possessing the requisite qualifications who pursue the salmon fishery under similar circumstances and conditions. State v. Catholic (Ore.) 1917B-913. 11. Ore. L. O. L. 5298, regulating fish- ing for salmon, etc, in the waters of the state, is not in violation of Const. U. S. Amend. 14 (9 Fed. St. Ann. 392), provid- ing that no state shall make a law to abridge the privileges and immunities of citizens of the United States, since a busi- ness, to be protected from interference by state legislation under such amendment, must be a calling which any person can pursue anywhere in the United States as of common right, while the qualified ownership of roving fish in navigable waters within the state is in that sov- ereignty in trust for its citizens alone. State v. Catholic (Ore.) 1917B-913. 12. Regulation of Method of Taking Fish. Laws Wash. 1915, p. SO, 36, pro- viding that it shall be unlawful to oper- ate in any of the waters of Puget Sound any purse seine, drag seine, or other like seine or net of a greater length than 500 feet with meshes less than 2 inches stretch measure, and after January, 1916, 3 inch3s stretch measure, and that it shall also be unlawful to operate any gill net of a greater length than 500 feet with meshes less than 5 inches stretch measure, does not, because it permits the use or purse and drag seines of over 500 feet in length with a smaller mesh than the mesh required with respect to gill nets of the same length, deny to gill net fishermen the equal protection of the laws, in violation of Const. U. S. Amend. 14, or grant to purse and drag seine fishermen privileges and immunities which it withholds from gill net fishermen, in violation of Const. Wash. art. 1, 12, as it discriminates only as to appliances used, and permits every person to use each class of appliances un- der exactly the same conditions and re- strictions, and it does not affect the valid- ity of the act that its operation will en- tirely destroy the vocation of the gill net fishermen, assuming such to be its effect. Barker v. State Fish Commission (Wash.) 1917D-810. (Annotated.) 13. The classification of territory in game and fish laws preventing hunting or fishing in a portion of the state and per- mitting it elsewhere in the state is not a discrimination between or a classification of persons in violation of the state or federal constitution. Barker v. State Fish Commission (Wash.) 1917D-810. (Annotated.) 14. Enforcement of Game Law. Ac- cused, who was charged with unlawfully shooting ducks from a point in the open sea near an island within the jurisdiction of the state, cannot complain that the warrant against him was directed to and served by a fish warden, for Laws Me. 1913, c. 206, 45, declares that the general supervision of the sea and shore fisheries is extended to islands and to game and birds found thereon, and that such depart- ment shall have charge of the enforcement of laws relating to sea and shore fisheries and fish wardens, who are empowered to enforce all laws relating thereto, and have the same power to serve criminal process as sheriffs. State v. Sawyer (Me.) 1917D- 650. 15. Validity of License Law. The power and discretion of the legislature to control and regulate the subject of hunting game is not limited by the organic law, and the subject regulated may be as restricted in manner and extent as the legislature deems advisable; but the regulations should affect alike all persons similarly situated and conditioned with reference to the particular regulations. State v. Philips (Fla.) 1918A-138. (Annotated.) 16. The discretion of the legislature in classifying those who are to be affected by a regulation for the protection of game, 380 DIGEST. 1916C 1918B. will not be disturbed by the courts where the classification has some just, fair and practical basis in real differences with ref- erence to the subject regulated; and all doubts will be resolved in favor of the validity of a statute. State v. Philips (Fla.) 1918A-138. (Annotated.) 17. Sections 26, 27, 28, 29, 30, 31 and 32- of chapter 6969, Fla. Acts of 1915, must be eliminated as clearly violative of the pro- visions of the constitution relative to the appointment of officers and fixing their compensation, but such elimination will not render the entire act inoperative. State v. Philips (Fla.) 1918A-138. (Annotated.) 18. The provisions of chapter 6969 re- quiring residents of the state to pay a license tax of $3 to hunt game in each countv of the state other than the county of residence, and requiring residents of a county to pay only $1 as a license tax for hunting game in such county, are not on their face purely arbitrary and unlawful. State v. Philips (Fla.) 1918A-138. (Annotated.) 19. Federal Eegulation of Migratory Birds. Act Cong. March 4, 1913, c. 145, 37 Stat. 847 (3 Fed. St. Ann. 2d ed. 412), declaring that all migratory and insectivor- ous birds shall be deemed within the cus- tody and protection of the government of the United States, and shall not be de- stroyed or taken contrary to regulations providing for, and providing for regula- tions of the taking of such game, purports to regulate exclusively the matter and to deprive the states of control over such game. State v. Sawyer (Me.) 1917D-650. (Annotated.) 20. Federal Regulation of Game, As the states retained all powers not granted to the federal government, the states, as sovereignties, have the exclusive right to regulate the taking and capturing of wild game, unless such right is conferred upon the federal government. State v. Sawyer (Me.) 1917D-650. (Annotated.) 21. The commerce clause of the consti- tution, giving Congress the right to regu- late commerce with foreign nations, among the several states, and with the Indian tribes, does not warrant Act Cong. March 4, 1913, purporting to regulate the killing and taking of migratory and insectivorous birds within the several states; the killing or taking of such birds not being an act of "commerce." State v. Sawyer (Me.) 1917D-650. (Annotated.) 22. Validity of Fishing Laws. That Wash. Laws 1915, p. 80, 36, is unwise or unjust, in that the three-inch mesh thereby permitted to be used in purse and drag nets is much more destructive to fish than the fire-inch mesh permitted to be used in gill nets, is a matter with which the court has nothing to do, as it does not, for this reason, discrimin- ate between persons or grant privileges or immunities to any class and withhold them from another, nor deny to any person the equal protection of the laws. Barker v. State Fish Commission (Wash.) 1917D- 810. (Annotated.) Notes. Validity of statute requiring license to hunt game. 1916C-134. Validity and construction of federal statutes protecting r a sale of goods of the value of $50 or ipward shall not be enforceable by ac- tion unless the buyer shall accept part of ;he goods and actually receive them or yivo something in earnest to bind the con- ;ract or in part payment, etc., if a reser- ratflm of a growing crop by a grantor imounts to a contract to sell or a sale, :he grantor both accepts and receives the :rop and gives something in part payment, vhere the crop is subsequently delivered to him by a tenant; the conveyance of the property constituting payment in full. Willard v. Higdon (Md.) 1916C-339. 8. Sale of Corporate Stock. A contract relating to the sale of corporate stock of the value named falls within the statute of frauds relating to the sale of personal property. Such contract is one for the disposal of goods within the meaning of section 8384 (1), Ohio General Code, and is required to be in writing and signed by the parties to be charged. Davis Laundry, etc. Co. v. Whitmore (Ohio) 1917C-988. (Annotated.) 9. Delivery Avoiding Statute of Frauds. Where plaintiff sent orders by mail from time to time to defendants for flour for future delivery, the most of which were accepted in writing, but one was not, de- liveries afterward made without any des- ignation of the particular contract on which they were applied were presump- tively intended to apply and were applied on the contracts in their chronological or- der, and, where there was not sufficient to fill the orders prior to the one not ac- cepted, there is no ground for claiming a delivery thereon to take the sale out of the statute of frauds. Van Boskerck v. Torbert (Fed.) 1916E-171. Notes. Effect on sales of corporate stock of seventeenth section of statute of frauds and equivalent enactments. 1917C-991. Symbolical or constructive delivery of goods within statute of frauds. 1917B- 566. Continuance of existing possession by vendee as sufficient delivery to take verbal sale of goods out of statute of frauds. 1917B-572. Contract for sale of building as contract for sale of realty within statute of frauds. 1916D-970. 3. ESTATES IN LAND. a. Agreements Other Than Contracts of Sale. 10. Parol Reservation of Growing Crop. As a growing crop may be sold by parol, a parol reservation of such a crop upon a conveyance of land is valid, since a crop may be so dealt with as to make it per- sonal property, and therefore does not necessarily pass with the land upon which it is growing. Willard v. Higdon (Md.) 1916C-339. (Annotated.) Note. Validity of parol reservation of crops by vendor of land. 1916C-344. b. Contracts of Sale. 11. Transfer of Growing Crop. Grow- ing crops, if fructus industriales, such as a crop of wheat, are chattels, and may be 392 DIGEST. 1916O 1918B. old without complying with the require- ments of the statute of frauds, especially in view of Md. Uniform Sales Act (Code Pub. Civ. Laws, art. 83), 97, providing that "goods" includes all chattels per- sonal other than things in action or money, and that the term includes emblements, industrial growing crops, and things at- tached to or forming a part of the land which are agreed to be severed before sal* or under the contract of sale. Willard. v. Higdon (Md.) 1916C-339. c. Agreements With Agent. 12. Broker's Authority to Sell. Under Colo. Rev. St. 1908, 2660, providing that no estate or interest in lands other than leases for not exceeding one year shall be created, granted, etc., unless by operation of law or by a conveyance in writing sub- scribed by the party creating it, or by his lawful agent thereunto authorized by writ- ing, section 2662, requiring contracts for the sale of the land to be in writing and subscribed by the party by whom the sale is made, section 2663, providing that such instruments may be subscribed by such party's agent lawfully authorized by writ- ing, and section 2677 defining "convey- ance" as used in that chapter as embrac- ing every instrument in writing except a will by which any estate or interest in lands is created, aliened, assigned, or sur- rendered, an agent's authority to contract for the sale of land on behalf of his prin- cipal must be conferred in writing. Springer v. City Bank, ebe. Co. (Colo.) 1917A-520. 4. PROMISE TO ANSWER FOR THE DEBT, DEFAULT OR MISCARRI- AGE OF ANOTHER. 13. Agreement of Stockholder to Eepay Advance to Corporation. A promise by a stockholder that he will repay advances to be made to th corporation, on the strength of which advances are made, creates an original and not a secondary liability and is not within the Can. statute of frauds. Gilliea v. Brown (Can.) 1917D- 354. (Annotated.) 5. SUFFICIENCY OF MEMORANDUM. a. In General. 14. Memorandum Insufficient. A writ- ing which stated the receipt from plaintiff of $5 "deposit on house No. 44 Mill street, balance of $35 to be paid on or before the date named," and signed by defendant, and another writing, signed by defendant, reciting 'the receipt from plaintiff of $35 "balance on house No. 44 Mill Street," were insufficient as memoranda of any contract for the sale of land, not showing any sale. Wetkopsky v. New Haven Gas Light Co. (Conn.) 1916D-968. 15. Contract of Sale Evidence of Writ- ing Insufficient. Evidence in behalf of cross-complainant in ejectment claiming under a contract for a conveyance by de fendant bank, plaintiff's grantor, is held to be insufficient to prove any written agreement or memorandum to convey the realty, as required by Ore. L. O. L. 808, subd. 6. Brown v. Farmers', etc. National Bank (Ore.) 1917B-1041. b. Signature of Parties. 16. Sale of Goods. An unsigned state- ment given by defendants to plaintiff, pur- porting to show the number of barrels of flour sold by defendants to plaintiff and remaining undelivered, which included a certain number of barrels sold on a cer- tain date, is not a sufficient memorandum to take such sale out of the statute of frauds of New York, which requires con- tracts of sale of goods for the price of $50 or more not delivered to be evidence by some note or memorandum in writing subscribed by the party to be charged or his agent. Van Boskerck v. Torbert (Fed.) 1916E-171. 17. Printed Signature. A printed and written contract between an owner of land and a broker or agent for the sale of land wag signed by the owner by his own hand. The signature of the broker was printed. The broker acted upon the contract. In this, an action to recover a commission for the sale of the land de- scribed in the contract, the trial court ex- cluded the paper as not being sufficient under section 2628, Rev. St. 1913, and re- fused an offer to show that the land was sold by virtue of the contract. Held, that the rulings were erroneous. Berryman v. Childs (Neb.) 1918B-1029. (Annotated.) Not*. Sufficiency of printed signature to memorandum within, statute of frauds. 1918B-1030. c. Statement of Consideration. 18. Necessity of Stating Consideration. Under Ore. L. O. L. 808, declaring void certain agreements, including one author- izing or employing an agent or broker to sell real estate for compensation or a com- mission, unless the same, or a memoran- dum thereof, expressing the considerations, be in writing and subscribed by the party to be charged, the written authorization to a broker to sell real estate must state the compensation to be paid him. Tag- gart v. Hunter (Ore.) 1918A-128. (Annotated.) Note. Necessity for statement of considera- tion in contract within statute of frauds other than contract to answer for debt of another. 1918A-134. FRAUDULENT SALES AND CONVEYANCES. 393 6. PART PERFORMANCE. 19. Verbal Agreement to Divide Estate. Where plaintiff's father before his death made an agreement with his children for the distribution of his property, giving equal shares to all except to the plaintiff, who was a cripple and in ill health, and who continued to live with her father, and where he executed deeds to the other chil- dren for the property which they were to receive under the agreement, but failed to execute a deed to plaintiff for the 75 acres of the home place which she was to re- ceive, and thereafter, by acts of the de- fendant, the father was led to deed a por- tion of the 75 acres orally given to plain- tiff to the defendant, plaintiff was entitled to a decree setting aside the deed to the defendant and vesting title in her, in spite of the statute of frauds. Simmons v. Ross (111.) 1916E-1256. 20. Delivery of Stock. The delivery of the 242 shares of stock to the National Bank of Commerce, accompanied by de- fendant's possession and operation of the plant for a period of two weeks, was evidence justifying a jury in finding that this was an acceptance under the verbal contract, and took the case out of the Ohio statute above mentioned. Davis Laundry, etc. Co. v. Whitmore (Ohio) 1917C-988. (Annotated.) 7. PERFORMANCE AND ENFORCE- MENT. 21. Executed Contract. The statute of frauds does not apply to executed con-. tracts; hence the acceptance by defendant of part of the materials purchased by plaintiff, who agreed to furnish the mate- rials and stake out a telephone line of six- teen sections, takes the case without the Vt. statute. Camp T. Barber (Vt.) 1917A- 451. 22. Oral Contract as Defense. A party may rely upon an oral contract as a de- fense, though the contract could not be enforced on account of the statute of frauds, especially in view of the provision of the Md. Uniform Sales Act (Code Pub. Civ. Laws, art. 83) that a contract to sell or a sale "shall not be enforceable" un- less the buyer shall accept part of the goods and actually receive them, etc. Willard v. Higdon (Md.) 1916C-339. 8. PLEADING AND PRACTICE. 23. Necessity of Pleading as Defense. The defense of statute of frauds is waived, not being pleaded or otherwise raised in the trial court, though the complaint fully disclosed the basis of plaintiff's claim. First National Bank v. G. Geske * Co. (Wash.) 1917B-564. 9. LOSS OF MEMORANDUM, EFFECT. 24. Proof of Lost Memorandum. The contents of a written memorandum of sale required by the statute of frauds, which has been lost, may be proved by parol, and proof of a statement by a defendant that an order for merchandise sent by let- ter had been accepted by mail is sufficient to establish such a written memorandum of sale, although the acceptance was not received by plaintiff. Van Boskerck v. Torbert (Fed.) 1916E-171. (Annotated.) Note. Proof by parol of contents of lost memorandum required by statute of frauds. 1916E-173. FRAUDULENT SALES AND CONVEY- ANCES. 1. In General, 393. 2. Transactions Invalid, 393. 3. Remedies of Creditors, 394. 4. Avoidance of Conveyance, 394, a. Who may Avoid, 394. b. Evidence, 394. c. Instructions, 394. 5. Property Subject to Claims of Creditors. 395. 8. Sales in Bulk Acts, 395. a. Validity, 395. b. Construction, 395. . Defenses, 395. d. Liability of Purchaser, 395. What law governs, see Bankruptcy, 17. Avoidance in bankruptcy, see Bankruptcy, 12, 17-20. Conveyance of homestead, validity, see Homestead, 12-16. Suit to set aside transfer, see Limitation of Actions, 9, 10. 1. IN GENERAL. 1. Bight to Prefer Creditor. At com- mon law a debtor may prefer one creditor to another, provided there is no secret trust for the debtor; and such genuine transfer is not vitiated by the fact that in other respects the preferred creditor de- sired to and did help the debtor to se- cre*e his property from another creditor. Gurney v. Tenney (Mass.) 1918A-739. 2. Conveyance in Consideration of Sup- port. A conveyance by an old and feeble man, of his homestead to his daughter in consideration of her caring for him in his old age is not necessarily fraudulent. McKillip v. Farmers' State Bank (N. Dak.) 1917C-993. 2. TRANSACTIONS INVALID. 3. Voluntary Conveyance Producing In- solvency. Where a debtor conveys un- exempt property without consideration and without retaining sufficient other property to pay his then existing debts, the con- veyance is void as against prior creditors. Thysell v. McDonald (Minn.) 1917C-1015. 394 3. REMEDIES OF CREDITORS. 4. Bight to Ignore Conveyance. Under Ky. St. 1907, declaring that every con- veyance by a debtor without valuable con- sideration shall be void as to his then existing liabilities, where the legal title to land vested in a debtor's children un- der a conveyance from their grandfather to whom their father conveyed, is subject only to the claim of the debtor's creditors to the extent of $50, the amount of the purchase price paid by the father, no part of the property can be subject to the cred- itor's claim without a proceeding to have the conveyance declared to be fraudulent as to amount paid by the father, and in such case an execution could not be levied thereon on the theory that the title there- to never passed. Hall T. Casebolt (Ky.) 1917C-1012. 5. Where conveyances by a debtor through his father to his children were without consideration, the conveyances are void under Ky. St. 1907, as to prior debts, and no title passes to the grantee, and the property may be sold under an execution against the debtor, ignoring the fraudulent conveyances. Hall v. Casebolt (Ky.) 1917C-1012. 4. AVOIDANCE OF CONVEYANCE. ,a. Who may Avoid. 6. Mortgagee of Other Land. A mort- gagee may maintain a suit to set aside a fraudulent conveyance of property other than that covered by the mortgage by a purchaser assuming payment of the mort- gage debt, where the purchaser is insol- vent. Fidelity Mortgage Bond Co. v. Morris (Ala.) 1917C-952. (Annotated.) 7. Consideration Indemnity to Surety. A surety who guaranteed performance of a contract may, upon furnishing the prin- cipal with advances necessary to enable him to carry out his contract, demand se- curity, and other creditors of the prin- cipal cannot attack mortgages given or assignments made as in fraud of creditors. Dickey v. Southwestern Surety Ins. Co. (Ark.) 1917B-634. 8. Withholding Deed from Record. Where a grantee withheld his conveyance from record for over three years, during which time the grantor was in open and exclusive possession of the land, the con- veyance being withheld so as not to im- pair the credit of the grantor, the convey- ance is, as to those extending credit on the faith of the grantor's apparent owner- ship, fraudulent; consequently a complaint by the grantor's trustee in bankruptcy, alleging such facts, is good against de- murrer. Manders v. Wilson (Fed.) 1918A- 1052. (Annotated.) b. Evidence. 9. Sufficiency of Evidence. After plain- tiff obtained verdict against T., T. induced DIGEST. 1916C 1918B. H. to foreclose her second mortgage on his property, and 1 after she had been obliged to pay the first mortgage she in- sisted on a change; and the property was conveyed to P., by arrangement between P. and T., and P. gave a first mortgage to a bank and a second mortgage to H., the two being less than the original mort- gages. It is held that, as against a find- ing of no fraudulent purpose by H., it was not necessary, as matter of law, to attrib- ute one to her. Gurney v. Tenney (Mass.) 1918A-739. 10. Proof of Fraud. Where one seeks to set aside a deed on the ground of fraud, his proof must be clear and convincing. McKillip v. Farmers' State Bank (N. Dak ) 1917C-993. 11. In an action to quiet title to two tracts of land and to set aside a levy and sale thereof in a creditor's suit against the debtor, the plaintiff's father, the evi- dence is held to show that the debtors' con- veyance of the tract to the plaintiffs was voluntary, without consideration, and for the fraudulent purpose of defeating his creditors. Hall v. Casebolt (Ky.) 1917C- 1012. 12. Sufficiency of Evidence. In an ac- tion by the assignee of a judgment to sub- ject corporate stock and bonds thereto, the evidence is held to show that the securi- ties were sold in good faith by the judg- ment debtor, with indorsement and de- livery, to interveners, his creditors. Hus- band v. Linehan (Ky.) 1917D-954. Note. Delay in recording deed as constituting fraud on creditors of grantor. 1918A- 1054. c. Instructions. 13. Consideration Payment by Grantee of Balance of Price Due from Grantor. The court erred in instructing the jury that if one who was insolvent conveyed to another property upon which he owed an unpaid balance of the purchase price, upon the sole consideration of payment of the balance of the purchase money, by the transferee, such conveyance would be with- out a valid consideration and void as against other creditors; that the equity which the vendor had, if he had an equity, in the property under the circumstances stated, was subject to his debts, and that he could only "convey it for a valuable consideration; otherwise, it belonged to his creditors, and he could not give it away to a person without receiving some- thing for it which would inure either to the benefit of himself or his creditors." A conveyance by an insolvent under the cir- cumstances to another party upon the con- sideration of the payment by the latter of the balance of the unpaid purchase money would not be without consideration, and FREEDOM OF PRESS FREE SCHOOLS. 395 would not be a mere voluntary convey- ance, and it was error to so instruct the jury; though they might properly have been informed that in passing upon the bona fides of the transaction between the vendor and his transferee they could take into consideration the value of the equity in the land with which the vendor was vested and the amount of the unpaid pur- chase money, and the insolvency of the grantor. Ga. Civ. Code, 4244. Loewen- herz v. Merchants', etc. Bank (Ga.) 1917E- 877. 5. PROPEETY SUBJECT TO CLAIMS OP CREDITORS. 14. Proceeds of Fire Insurance Policy. The proceeds of the insurance on a build- ing on land conveyed to insured in fraud of the creditors of the grantor do not take the place of the property destroyed by fire, and the trustee in bankruptcy of the grantor may not recover them. Trenholm v. Klinker (Miss.) 1917E-289. (Annotated.) Note. Right to proceeds of insurance on prop- erty conveyed in fraud of creditors. 1917E-291. 6. SALE'S IN BULK ACTS. a. Validity. 15. The Act of April 18, 1913, to amend section 11102 et seq., Ohio General Code, relating to the transfer of stocks of mer- chandise and fixtures other than in the usual course of trade (103 O. L. 462), is a valid enactment not repugnant to the state or federal constitutions. Steele, etc. Co. v. MiDer (Ohio) 1917C-926. (Annotated.) 16. The New York Bulk Sales Law (Per- sonal Property Law, 44) invalidating as to creditors a sale in bulk of a stock of merchandise is constitutional. Klein v. Maravelas (N. Y.) 1917B-273. (Annotated.) 17. The Ark. Bulk Sales Law (Laws 1913, p. 326), which requires a purchaser of stock of goods in bulk to give notice to creditors before purchase, is not invalid as violating Const, art. 2, 2 and 18, guaranteeing the right of acquiring, pos- sessing, and protecting property, and pro- hibiting the granting of special privileges and immunities to any person or class. Stuart v. Elk Horn Bank, etc. Co. (Ark.) 1918A-268. (Annotated.) b. Construction. 18. Notice to Creditors of Seller. Ark. Bulk sales act requires the seller to fur- nish a written list of the names and ad- dresses of his creditors with the amount of indebtedness due each not less than ten days before the sale and delivery, and re- quires the purchaser, before taking pos- session of the stock of goods or paying the purchase price, to notify personally, or by registered mail, every creditor whose name appears on the list, or of whom he has any knowledge, of the sale. Defend- ant purchased the stock of goods, agree- ing to assume payment of all indebtedness which the debtor disclosed. The debtor concealed his indebtedness to the plaintiff bank, and the list of creditors was not prepared by the debtor ten days before the sale, nor were the notices given at that time. Defendant paid all the cred- itors of whose claims he was notified. It is held that, as the statute in requiring notice to be given some days before the sale contemplated that creditors who were not notified might learn of the proposed sale, defendant did not substantially comply with the act so as to escape lia- bility to plaintiff. Stuart v. Elk Horn Bank, etc. Co. (Ark.) 1918A-68. c. Defenses. 19. Waiver of Failure of Seller to Comply. Where the owner of a stock of merchandise, in good faith, and for a fair consideration placed in escrow during the consummation of a transfer of such stock, proceeds to comply with the provisions of the Okla. Bulk Sales Act (section 2903, Rev. Laws 1910), and furnishes a list of his creditors to the representative of the purchasers, which list complies substan- tially with the requirements of the stat- ute, but where the notice given the cred- itors was signed by the transferor instead of the transferees, a resident creditor, who receives such notice with knowledge of all the facts connected with the proposed 1 sale, and who assents thereto, waives any objection he might otherwise have to a strict compliance with the statute, and : .s estopped from thereafter, and within the ten-day period named in the statute, at- taching the stock of goods, on the ground that the seller has not fully 'complied with the statute. First Bank of Texola v. Ter- rell (Okla.) 1917A-681. d. Liability of Purchaser. 20. Effect of Failure to Comply With Act. Though a purchaser of a stock of goods in bulk did not comply with the bulk sales act, he does not become liable for all of the debts of the seller, but only for the seller's debts, so far as they can be satisfied out of the stock of goods which he is held to be a receiver for bene- fit of the seller's creditors. Stuart v. Elk Horn Bank, etc. Co. (Ark.) 1918A-268. FREEDOM OF PRESS. See Contempt, 4-6. See Schoola FREE SCHOOLS. 396 FREIGHT CHARGES. See Carriers of Goods, 15-23. FROM. Meaning, see Time, 5, 7. FRONT FOOT RULE. Ftr ipecial assessment, see Taxation, 132. DIGEST. 1916O 1918B. by which one, on paying money or giving any other thing of value, obtains a token, which entitles him to receive a larger or smaller value, as some formula of chance may determine; the fact that the purchas- ers could at all events keep up their pay- ments, and ultimately receive the furni- ture, not changing the nature of the trans- action. State T. Lipkin (N. Car.) 191 7D- 137. (Annotated.) FRUCTUS INDUSTRIALES. Sale by paxol, see Frauds, Statute of, 11. FRUIT STAND. See Nuisances, 6. Meaning, see Streets and Highways, 22. FRUIT TREES. Destruction of diseased trees, see Agricul- ture, 2, 8. FUGITIVE FROM JUSTICE. Meaning, see Extradition, 2. GAMBLING. See Gaming. GAME LAWS. See Fish and Game. Denned, see "Animals," 28. GAMING. As ground for deportation, see Aliens, 23. Consideration, see Bills and Notes, 6. 1. "Pool/* In a prosecution under Pen. Code 1913, 321, for conducting a gam- bling device consisting of a pool known as "pari mutuel," conviction set aside. Mc- Call v. State (Ariz.) 1918A-168. (Annotated.) 2. What Constitutes Lottery. Revisal 19CX5, 3726, declares that any person who shall promote a lottery, or by such means sell or dispose of any property, evidences of debt, etc., shall be guilty of an offense. Defendant took orders for furniture, under contracts providing for weekly instalments nntil the entire purchase price should be paid, but holding out the prospect that the purchaser might for advertising purposes be given the article before the payments had been completed. The contracts fur- ther provided that a lapse in payment should work forfeiture. It is held that as the purchasers had no control over the way in which the prizes were to be dis- tributed, and afl the prizes were ordinarily given before any advertising was done, the transaction was a "lottery," which term in common parlance means a scheme for the distribution of prizes, by lot or chance, GARAGE. As a nuisance, see Nuisances, 17. GARNISHMENT. 1. Bank Deposit in Name of Debtor. Money deposited in bank by a judgment debtor as agent for a third person cannot be reached by garnishment proceedings by the judgment creditor, who did not ex- tend credit on faith of the deposits being the agent's. Home Land, etc. Co. v. Routh (Ark.) 1917C-1143. (Annotated.) 2. Funds in Hands of Executor or Ad- ministrator. Section 228 of the code au- thorizing creditors to proceed by garnish- ment against "any person" who shall be indebted to, or have any property, real or personal, in his possession or under his control belonging to, the debtor, is suffi- ciently broad in its terms to authorize an action in garnishment against an executor or administrator after an order of final distribution. Sherman v. Havens (Kan.) 1917B-394. 3. It being one of the agreed facts in the present case that the estate of the testator is solvent and able to respond to the quarterly payments due to the bene- ficiary, and that they have made such pay- ments to him in advance and recognized the provision, no order of distribution was necessary in order to authorize them to make the payments, and such quarterly payments are subject to attachment be- fore final settlement. Sherman v. Havens (Kan.) 1917B-394. 4. Deposit With Sheriff to Discharge Liens. The proceeds of a cashier's check deposited by a bank with a sheriff and re- ceiver to secure the discharge of a log- gers' liens in a foreclosure suit is not sub- ject to garnishment at the suit of other creditors of the defendant in the fore- closure action, though the check was in- dorsed by the sheriff to the clerk of the court and was by him cashed, and though defendant prevailed as against the log- gers' liens, where the check was not a loan by the bank to defendant, but was a spe- cial deposit to be returned to the bank in the event that it was not used for the pur- pose intended, and it was immaterial that a note for the amount of the check was given by defendant to the bank to evi- dence the transaction. Beaston v. Port- land Trust, etc. Bank (Wash.) 1917B-48S. GAS AND GAS COMPANIES GENERAL AND SPECIAL LAWS. 397 5. Bank Account of Third Party In Debtor's Name. In garnishment proceed- ings by a judgment creditor against a bank having on deposit funds of the judgment debtor, held by the latter as agent for a third person, the evidence is held to war- rant the conclusion that the transaction between the judgment debtor and his prin- cipal, resulting in the deposit of the funds in the debtor's name, was conducted in good faith. Home Land, etc. Co. v. Routh (Ark.) 1917C-1143. (Annotated.) Note. Money standing in name of debtor but belonging to third person as reachable in garnishment proceeding. 1917C-1145. GAS AND GAS COMPANIES. Judicial notice of nature of gas, see Evi- dence, 16. Sufficiency of garnishee's intervention plea, see Intervention, 2, 3. Ordinance fixing rates, see Constitutional Law, 116. Nature of gas and oil lease, see Landlord and Tenant, 2, 3. 1. Rate Regulation. The property of a gas-distributing company cannot be said to have been taken without due process of law, contrary to U. S. Const. 14th Amend. (9 Fed. St. Ann. 416), by a decree which enforced, without prejudice to the right to aoply thereafter for modification, a mu- nicipal ordinance fixing gas rates for five years, where there was no claim that the company could not operate profitably under such ordinance so long as its con- tract with a producing gas company, under which the latter was to furnish gas to the former upon the basis of a per- centage of meter readings, which had two or three years to run when the suit was commenced, remained in force, and no evidence was offered to show the rate paid by the distributing to the producing com- pany after the expiration of such contract. Newark Natural Gas, etc. Co. v. Newark (U. S.) 1917B-1025. (Annotated.) 2. Liability for Injury Caused by Es- cape. Defendant manufactures and dis- tributes illuminating gas. Such gas, when allowed to escape, in any considerable quantity, becomes a highly dangerous sub- stance, and the defendant must exercise a commensurate degree of care to prevent the gas from escaping up to the time it is measured and delivered, through its meter, to the consumer. Manning v. St. Paul Gaslight Co. (Minn.) 1916E-276. (Annotated.) 3. The rule of res ipsa loquitur may be applied to a situation which discloses that gas escaped in destructive quantities from a break in the service pipe installed by the gas company upon the consumer's premises, at his cost, where the evidence further shows that there had been no work or change upon such premises which could have affected the pipe, and no interference therewith. Under this rule defendant was not entitled to a directed verdict. Man- ning v. St. Paul Gaslight Co. (Minn.) 1916E-276. (Annotated.) 4. Complaint Held Sufficient. The com- plaint, without the permitted amendment, held sufficiently broad to admit of proof showing improper installation of the ser- vice pipe. Manning v. St. Paul Gaslight Co. (Minn.) 1916E-276. 5. Extension of Mains Reasonableness of Order. The fact that the increased re- turn from an extension of gas mains or- dered by a Public Service Commission amounts to less than three per cent on the cost of making the extension does not show that the order is arbitrary or capricious* People v. McCall (N. Y.) 1916E-1042. 6. Proof of Reasonableness of Rates Rate Prevailing Elsewhere. In proceed- ings by a city against a gas company be- fore the Public Service Commission, tha fact that other cities of similar population are procuring gas at a much less rate than defendant company charges is some evi- dence of the fact that its rates are unrea- sonable. State v. Public Service Commis- sion (Mo.) 1917E-786. 7. Regulation of Rates Power to Make Test Order. In a city's proceeding before the Public Service Commission against a manufacturer and distributer of gas, the evidence tended to show an exorbitant rate for gas in the city, and that a reduc- tion in rates would increase the sales or consumption. It is held that an order of the commission fixing lower rates for the gas company temporarily, merely to make a test, that the real question of a reason- able rate might be ultimately determined, the order leaving that open, was not un- reasonable. State v. Public Service Com- mission (Mo.) 1917E-786. (Annotated.) Notes. Liability of gas company for injury caused by escape of gas from pipes. 1916E-277.- State or municipal regulation of gas rates, 1917B-1026. GASOLINE. Judicial notice of properties of, see Evi- dence, 15. Storage as a nuisance, see Nuisances, 5. GASOLINE LIGHTING PLANT. Explosion of, see Negligence, 90, 99. GENERAL. Meaning, see Descent and Distribution, 5 GENERAL AND SPECIAL LAWS. See Constitutional Law, 8G-88. 398 GENERAL APPEARANCE, See Appearances, 3-6. GENERAL DENIAL. Bee Pleading, 31, 32. GEOGRAPHICAL NAME. Acquisition of exclusive right to use, see Trademarks and Tradenames, 4. GIFTS. 1. Gifts Inter Vivos. a. Nature and Elements. b. Subjects of Gift. c. Delivery and Acceptance. d. Evidence. 2. Gifts Causa Mortis. a. Nature and Elements. b. Delivery. c. Evidence. Charitable gifts, see Charities, 10-26. Creating disability to pay debts, validity, see Fraudulent Sales and Convey- ances, 3. Suit to set aside, see Laclies, 1. Parent to child, see Parent and Child. 6. Statute against perpetuities not applied to charities, see Perpetuities, 5, 6, 10. Validity of Sunday gift, see Sundays and Holidays, 7. Construed as creating tenancy in common, see Tenants in Common, 3. Testamentary gift, see Wills, 216-218. 1. GIFTS INTER VIVOS. a. Nature and Elements. 1. Between Husband and Wife Death of Husband. Where a husband had on a trip abroad given his wife express checks for their expenses amounting to $800, and at another time sent her $2,000 in a draft, and there is no showing that he intended that she should account therefor, she is entitled to retain the same on his death. Stratton v. Wilson (Ky.) 1918B-917. b. Subjects of Gift. 2. Parol Gift of Mortgage. A valid gift inter vivos of a mortgage may be made without a writing. Hoyt v. Gillen (Mich.) 1916C-812. (Annotated.) 3. Note Payable to Donor's Estate. Where a person takes a note payable to his estate he does not thereby deprive him- self of the right to dispose of it during his lifetime. Poole v. Poole (Kan ) 1918B-929. Note. Validity of gift of mortgage inter vivos without writing. 1916C-814. e. Delivery and Acceptance. 4. An owner of a bank deposit when making an additional deposit informed the DIGEST. 19160 1918B. assistant cashier that she wanted the de- posit arranged so that in case she died, her two children P and D could get the money, but so that she could draw the in- terest. The money was thereupon placed in an account by itself, and entered in the depositor's passbook as "payable to P or D, an equal amount to each," but in the bank's ledger as "payable to self or P or D, an equal amount to each." It is held that there was a gift of the money to the two children and a delivery thereof to the bank as trustee to be held by it for their use and benefit during the life of the depositor, with the right on her part to have the use and benefit of the accru- ing interest. Boyle v. Dinsdale (Utah) 1917E-363. (Annotated.) 5. That the depositor's passbook is in her possession at the time of her death does not prevent the gift from taking effect, since there was an actual delivery of the money to the bank as trustee, and a symbolical delivery by delivery of the passbook was unnecessary. Boyle v. Dins- dale (Utah) 1917E-363. (Annotated.) 6. The gift is not invalid on the ground that it is a testamentary disposition. Boyle v. Dinsdale (Utah) 1917E-363. (Annotated.) Note. Complete execution of gift inter vivos by deposit of money in bank to credit of another. 1917E-367. d. Evidence. 7. Sufficiency of Evidence of Gift. A finding of a gift inter vivos of a note and mortgage affirmed by equally divided court. Hoyt v. Gillen (Mich.) 1916C-812. 8. The entry of the deposit on the bank's ledger as payable to the depositor or to the two children did not affect the validity of the gift, as a trust in personalty need not be in writing or in any particular form. Boyle v. Dinsdale (Utah) 1917E-363. (Annotated.) 9. Corroborating Testimony as to Gift. Where plaintiff, to show that his intes- tate, while living with defendant, had not, as claimed by defendant, given him all of her property for her support, showed that she gave defendant's young daughter fifty dollars, defendant could, as against objec- tion going only to its weight, in corrobora- tion of his testimony that he gave intes- tate the money with which to make the gift, introduce his personal cashed check for fifty dollars, payable to K, and in- dorsed by him for her. Comstock's Ad- ministrator v. Jacobs (Vt.) 191SA-465. 10. Deposit in Bank in Name of Donee. In an action involving the title to money deposited in a bank and entered in the de- positor's passbook as "payable to P or D (children of the depositor), an equal amount to each," but entered in the bank's GOOD FAITH GRAND JURY. 399 ledger as "payable to self or P or D, an equal amount to each," the evidence is held to be sufficient to show that it was the de- positor's intention that she should have the right to draw the interest for her own use during her life if she so desired, and that the principal sum should go to the two children. Boyle v. Dinsdale (Utah) 1917E-363. (Annotated.) Note. When gift to "children" and like in- cludes child en ventre sa mere. 1916E- 1034. 2. GIFTS CAUSA MORTIS. a. Nature and Elements. 11. Validity of Gift Causa Mortis. Gifts causa mortis, if made by competent persons, and fully executed, are valid, in the absence of fraud or undue influence if the rights of creditors are not affected. Baber v. Caples (Ore.) 19160-1025. b. Delivery. 12. Gift of Note. Whether a gift of a promissory note or other chose in action is causa mortis or inter vivos, the actual delivery of the written evidence of the debt is sufficient, without any assignment or indorsement. Baber v. Caples (Ore.) 1916C-1025. 13. Requisites of Gift Causa Mortis. A "gift causa mortis," like a gift inter vivos, must be completely executed and go into immediate effect, and be accompanied by an actual and complete delivery. Baber v. Caples (Ore.) 1916C-1025. c. Evidence. 14. Evidence Sufficient. Evidence held to show that decedent gave the promissory notes in controversy to defendant; that she indorsed each of them with her own hand, and delivered them to the defend- ant with intent to vest title in him, and that he accepted them as a gift causa mor- tis. Baber v. Caples (Ore.) 1916C-1025. 15. Undue Influence Persons Engaged to be Married Presumption. Where a re- lation of confidence exists, as between a man and woman engaged to be married, it is incumbent upon the donee causa mor- tis to show that the gift was not obtained by fraud or undue influence. Baber v. Caples (Ore.) 1025. (Annotated.) 16. No Presumption. While gifts causa mortis are sustained only on clear proof of the essential facts, there is no presump- tion of law against them. Baber v. Caples (Ore.) 1916C-1025. 17. Fraud and Undue Influence. Evi- dence held to show that a gift causa mor- tis was not induced by fraud or undue influence of the donee. Baber v. Caples (Ore.) 1916C-1025. GOOD FAITH. No defense to false imprisonment, see Hos- pitals and Asylums, 4. GOODS. Defined, see Frauds, Statute of, 11. GOODS AND CHATTELS. Meaning, see Executors and Administra- tors, 2. GOOD WILL. See Sales, 3, 19. GOVERNOR. Grant of conditional pardon, see Par- dons, 4. Veto power, see Statutes, 23, 24, 27. 1. Civil Liability for Official Acts. The office of governor is political and the dis- cretion vested in the chief executive by the constitution and laws of the state re- specting his official duties is not subject to control or review by the courts. His proclamations, warrants and orders made in the discharge of his official duties are as much due process of law as the judgment of a court. Hatfield v. Graham (W. Va.) 1917C-1. 2. The governor cannot be held to an- swer in the courts in an action for damages resulting from the carrying out of his law- ful orders or warrants issued in good faith in discharge of his official duties. Hatfield v. Graham (W. Va.) 1917C-1. GRADE CROSSINGS. See Railroads, 19-25, 50, 51, 64-77. GRAND JURY. 1. Powers and Duties, 399. 2. Selection, 400. 3. Number, 400. Misconduct, effect on indictment, see In- dictments and Informations, 1. Member as complainant, see Indictments and Informations, 23, 24. Resubmission, see Indictments and Infor- mations, 26, 27. Disqualification of member for trial jury, see Jury, 21. Expunging report of district attorney's misconduct, see Prosecuting Attorneys, 3,4. 1. POWERS AND DUTIES. 1. Where a grand jury had been properly drawn, summoned and impaneled to serve during a term of court continuing two weeks, and, having completed their work at or near the end of the first week, were discharged by the court for the term, and 400 DIGEST. 1916O 1918B. on the day following their discharge a homicide was committed in the county in which the court was being held, and the court by appropriate written order directed the sheriff and regular bailiffs sworn at the term of the court then being held to re- summon the same grand jury to reconvene during the second week of the court, for the purpose of investigating the case of the person charged with the murder of the person killed, and also to take into con- sideration any other matter that might legally come before the grand jury during the term, such reconvening of the grand jury was legal, and an indictment prop- erly found by them against such person was also legal. The order of the court reconvening the grand jury, after they had been discharged, had the effect of abrogating the former order of discharge. Bird v. State (Ga.) 1916C-205. (Annotated.) 2. Powers of Grand Jury. Under Comp. Laws 1897, 1395, 11443, authorizing a grand jury to make reports or present- ments relating to trespass on public lands and violations of election laws, and sec- tions 11891, 11893, providing how indict- ments shall be found, without providing for the filing of a report or presentment reflecting on the conduct of public officials a grand jury has no right to file a report reflecting on the official conduct of the prosecuting attorney, unless followed by an "indictment," which is a written accusa- tion that one or more persons have com- mitted a crime, presented on oath by a grand jury; for a "presentment," as dis- tinguished from an "indictment," is a no- tice taken by a grand jury of any offense from its own knowledge or observation without a bill of indictment laid before it at the suit of the commonwealth, and is generally regarded in the light of in- structions on which an indictment must be found. Bennett v. Kalamazoo Circuit Judge (Mich.) 1916E-223. (Annotated.) Note*. Power of grand jury to report crime or misconduct otherwise than by indictment or presentment. 1916E-228. Power of court to reassemble dis- charged grand jury. 1916C-207. 2. SELECTION. 3. Irregularity in Drawing. So much of section 3, c. 157, serial section 5539, Code 1913, as relates to the issuance of a venire facias for grand jurors is directory, and the failure to issue such writ will not vitiate an indictment found by a grand jury selected and drawn, in the manner provided by the statute, who actually at- tended and are impaneled and sworn ac- cording to law. Such a grand jury is lawfully constituted. State v Wetzel (W. Va.) 1918A-1074. (Annotated.) 4. Likewise, the failure of the clerk of the circuit court to issue a summons re- quiring the clerk of the county court to attend the drawing of grand jurors, does not affect the legal status of a grand jury, provided the clerk of the county court does actually attend and assist in the drawing of such grand jurors. State v. Wetzel (W. Va.) 1918A-1074. (Annotated.) 5. The presence of the clerk of the county court at the drawing of grand jur- ors, and the list of names of persons se- lected by the county court to serve as such, as well as its delivery to and preservation by the clerk of the circuit court, are all indispensable requirements, and a failure to comply with all, or any one, of them renders the grand jury ille- gal and their indictments void because not selected in the manner provided by law. Kespecting these matters the stat- ute is mandatory. State v. Wetzel (W. Va.) 1918A-1074. (Annotated.) Note. Legality of grand jury not selected in accordance with statute. 1918A-1080. 3. NUMBER. 6. Quorum, Number Constituting. The provisions of section 3 of Act No. 98 of 1880 that the grand jury for the parish of Orleans should consist of sixteen mem- bers, twelve of whom should constitute a quorum, were entirely superseded by the provisions of article 117 of the constitu- tion of 1898 (retained in the constitution of 1913) that the grand jury shall consist of twelve members, nine of whom must concur to find an indictment. The num- ber required to constitute a quorum is the number who must concur to find an indict- ment. State v. Pallet (La.) 1918A-102. (Annotated.) 7. As the law only requires the concur- rence of nine members of the grand jury to find an indictment, it does not require the presence of more than nine members during the deliberations or finding or pre- sentment of the indictment. State v. Pallet (La.) 1918A-102. (Annotated.) GRAND LARCENY. See Larceny, 3. GRATUITOUS UNDERTAKINGS. See Automobiles, 30. GRAVEYARDS. See Cemeteries. GROUNDS FOR NEW TRIAL. See New Trial, 3-24. GUARANTY GUARDIAN AND WARD. 401 GUARANTY. Power of banks to guarantee, see Banks and Banking, 1-3. Warranty distinguished, see Sales, 16. 1. Fraud in Procurement. The evidence is held to sustain findings that a guaranty was procured by fraud. American Na- tional Bank v. Donnellan (Cal.) 1917C- 744. GUARDIAN AND WARD. 1. Nature of Relationship, 401. 2. Appointment, 401. a. In General, 401. b. Proceedings for Appointment, 401. 3. Powers, 402. ' a. To Maintain and Defend Actions, 402. b. Sale of Ward's Property, 402. c. Investment of Funds, 402. d. Lease of Ward's Property, 402. e. Release of Ward's Claim for Dam- ages, 402. 4. Accounting, 403. 5. Transactions Between Guardian and Ward, 4Q3. 6. Compensation of Guardian, 403. Guardians ad litem, see Infants, 19-22. Privilege in statements by guardian in in- terest of estate, see Libel and Slander, 52, 53. 1. NATURE OF RELATIONSHIP. 1. Where the property of an aged person is placed in the hands of a guardian or conservator to be managed for his bene- fit, as provided by Burns' Ann. St. 1914, Sllla, it is not "taken" by law in such a sense as to require that compensation shall be made under Const, art. 1, 21, provid- ing that no man's property shall be taken by law without just compensation. Kutz- ner v. Meyers (Ind.) 1917A-872. (Annotated.) 2. Such statute, applying to and enforce- able against all persons who, on account of old age, shall become incapable of man- aging their estates or business affairs, and applying to all persons under like condi- tions, does not deny to such persons the equal protection of the laws guaranteed by Const. U. S. Amend. 14. Kutzner v. M yers (Ind.) 1917A-872. (Annotated.) 3. In view of the state's policy to pro- tect those who, by reason of youth or in- capacity, are incapable of managing their estates by placing their property in the hands of guardians or conservators, stat- utes may extend the same protection to persons incapable of managing their es- tates and affairs by reason of old age. Kutzner v. Meyers (Ind.) 1917A-872. (Annotated.) 4. For Aged Person Validity of Stat- ute. Burns' Ann. St. 1914, Sllla, provid- ing that whenever any person files a com- 26 plaint in a court of probate jurisdiction to the effect that any inhabitant of such county, because of old age, is incapable of managing his estate or business affairs, the court shall cause ten days' notice to be given such aged person, and that, if on trial he is found incapable, the court shall appoint a guardian for his estate, who shall give bonds and be under like re- strictions and act in the same manner and with the same powers as in cases of guard- , ians for minors, provides due process of law, within the meaning of Const. U. S. Amend. 14. Kutzner v. Meyers (Ind.) 1917A-872. (Annotated.) Note. Validity of statute providing for ap- pointment of guardian for aged person. 1917A-874. 2. APPOINTMENT. a. In General. 5. Right of Aged Person to Select Guardian. Burns' Ann. St. 1914, Sllla, providing for the appointment of a guard- ian for a person incapable of managing his estate or affairs, who shall give bonds and be under like restrictions* and act in the same manner and with the same powers as in cases of guardians for minors, refers to the manner in which the duties of the trust shall be performed by the guardian after appointment, and the court properly refuses to permit an alleged in- competent to select his guardian, since sec- tion 3057, providing that an infant over fourteen may select a guardian, applies only to the appointment of guardians for infants. Kutzner v. Meyers (Ind.) 1917A- 872. b. Proceedings for Appointment. 6. Petition for Guardianship. A peti- tion under Burns' Ann. St. 1914, Sllla, jroviding for the appointment of a guard- ian of the estate of any person who, by reason of old age, is incapable of man- aging his estate or affairs, stating the facts showing the disability of the aged* person and his residence in the county where the petition was filed, is sufficient against a demurrer; and its allegation that shortly before the proceeding he conveyed real estate, vaJued at $3,800, for an ex- pressed consideration of $1, and that it had been obtained by fraud and undue in- fluence, tendering no issue which could be tried in the proceeding, does not render the complaint insufficient. Kutzner v. Meyers (Ind.) 1917A-872. 7. Issues Under Petition. Under such petition, the validity of the alleged deed is not in issue and could not be decided; and hence the court does not err in ex- cluding evidence as to the grantor's men- tal capacity at the time he executed the deed. Kutzner v. Meyers (Ind.) 1917A- 872. 402 DIGEST. 1916C 1918B. 8. Evidence. In such proceeding, eri- dence identifying th record containing the deed from the alleged incompetent and the admission of the record in evidence are proper, since, when considered with other evidence, it showed that a short time be- fore the proceeding he had conveyed valu- able real estate in consideration only of the grantee's agreement to look after him, and is proper for the court to consider ?n determining whether a guardian should be appointed. Kutzner v Meyers (Ind.) 1917A-872. . 3. POWERS, a. To Maintain and Defend Actions. 9. With Eespect to Will of Ward. A guardian of an insane person has no legal interest either in establishing or disestab- lishing his ward's will executed before* his appointment, though he possibly has suffi- cient special interest and right of posses- sion to maintain replevin to recover pos- session of the instrument for safekeeping from one in unauthorized possession, since the law does not notice wills during the lifetime of their makers, except to provide a method of custody and safekeeping. Pond v. Faust (Wash.) 1918A-736. 10. Action to Cancel Ward's Will. Bern. & Bal. Code, 1659, 1662, do not confer on the guardian of a living insane person the right to maintain an action to cancel a will of the ward in the custody of a third person. Pond v. Faust (Wash.) 1918A-736. b. Sale of Ward's Property. 11. Effect of Failure to Give Bond. Where the lands of an insane person were sold by his guardian without any special sale bond being given, and the guardian wholly failed to account for the proceeds of the sale, the owner is not estopped from attacking the validity of the sale after being restored to his reason. Richelson v. Mariette (S. Dak.) 1917A-883. (Annotated.) 12. Under Prob. Code, 403, providing that every guardian authorized to sell real estate must, before the sale, give bond to account for the proceeds thereof, the re- quirement of the bond is mandatory, and an order confirming a sale, made without the giving of such bond, is void and sub- ject to collateral attack. Richelson v. Mariette (S. Dak.) 1917A-883. (Annotated.) 13. Application of Doctrine of Caveat Emptor. The doctrine of caveat emptor does not apply to sales by guardians under order of the court, and where a guardian selling a lot as an entirety under order of court and the purchaser did not know that it was subject to an easement not disclosed in the records as shown by an abstract, the purchaser is entitled to an abatement in the price because of the in- cumbrance by the easement. Stonerook v. Wisner (Iowa) 1917E-252. (Annotated.) 14. Sale of Personalty. A guardian of a minor having the same jurisdiction over the minor's choses in action as an executor has over the personal property of his tes- tator, the guardian, at his peril and the peril of his bondsmen, may assign and , transfer notes belonging to the minor's estate. Echols v. Speake (Ala.) 1916C- 332. (Annotated.) Notes. Power of guardian to sell personal prop- erty of ward. 1916C-334. Doctrine of caveat emptor as applicable to sale by guardian. 1917E-255. c. Investment of Funds. 15. Investment Outside Jurisdiction. A guardian who makes investments beyond the jurisdiction of the court is, except un- der peculiar circumstances, responsible for the safety of the funds invested. In re Moore (Me.) 1917A-645. 16. Injudicious Investment. A guardian who invests guardianship funds without security is liable for all losses arising therefrom. In re Moore (Me.) 1917A- 645. d. Lease of Ward's Property. 17. Lease of Realty. Under Kirby's Dig. 3798, a lease of a ward's estate by the guardian is void if not confirmed, and that the court ordered the lease and pre- scribed the terms does not constitute con- firmation. Gaines v. Gaines (Ark.) 1917A- 1254. (Annotated.) 18. Validity of Lease not Approved. Where an instrument, purporting to be a lease executed by the guardian of a minor Indian, is not shown to have been exe- cuted upon the order of court of probate, as provided by section 2405, Stat. Ind. Ter., is offered in evidence, an objection to its competency is properly sustained. Fisher v. McKeemie (Okla.) 1917C-1039. Note. Power of guardian to lease ward's real estate. 1917A-1256. e. Release of Ward's Claim for Damages. 19. Effect. A release given by plain- tiff's guardian to the employer in whose service he had been injured, on the ground that plaintiff's claim against the employer was regulated by the Workmen's Compen- sation Laws does not settle the claim for damages for injury resulting from his wrongful employment in violation of St. 1915. 1728a. subd. 1, forbidding employ- ment of children between fourteen and GUESTS HABEAS CORPUS. 403 sixteen, without permit, etc., and if so in- tended is not binding because it was not approved by the county ourt as expressly required by section 3982. Stetz v. F. Mayer Boot, etc. Co. (Wis.) 1918B-675. 4. ACCOUNTING. 20. Settlement of Account. Though a guardian at the time of the settlement of his account represented the face value of securities to be the cash value, the pro- bate court may investigate the character of the investments and determine the lia- bility of the guardian thereon. In re Moore (Me.) 1917A-645. 21. Finality. Where the probate court opened the final account of a guardian on the petition of the adult ward and dis- allowed items of credit and commissions and restated the account, the restated ac- count must be deemed final, though in- formal. In re Moore (Me.) 1917A-645. 22. Allowance for Expenses. A sum ap- plied by a guardian to ^reserve invest- ments without security and beyond the jurisdiction of the court cannot be allowed to him on his final settlement, where losses arising from the investment are charge- able to him. In re Moore (Me.) 1917A- 645. 23. The sureties of a guardian are not so directly interested in proceedings by the ward on reaching majority for the opening of the final settlement of the guardian and the disallowance of credits allowed and commissions, as will prevent the granting of relief merely because of delay by the ward in instituting proceed- ings" In re Moore (Me.) 1917A-645. (Annotated.) 24. Mere delay of a ward in petitioning, after reaching majority, to open the final settlement of his guardian and for the disallowance of items of credit therein allowed and for disallowance of commis- sions, does not bar relief where no testi- mony has been lost and where there has been no change of circumstances affecting the guardian. In re Moore (Me.) 1917A- 645. (Annotated.) 25. Time for Application to Open Ac- count. Where no time is specified by stat- ute within which a guardian's settlement may be opened for fraud or mistake, the time within which the ward after attain- ing full age must apply for relief depends on the sound discretion of the court, con- sidered with reference to the nature and extent of the account, the condition and situation of the parties, and the character and evidence of the fraud or mistake. In re Moore (Me.) 1917A-645. (Annotated.) 26. Opening Account. The right of a ward to open the account of his guardian for the disallowance of items of credit therein and the disallowance of commis- sions is unaffected by the fact that the succeeding guardian knew the facts and failed to take any action. In re Moore (Me.) 1917A-645. 27. The probate court decreeing the re- opening of the account of a guardian may restate the account. In re Moore (Me.) 1917A-645. Note. Lapse of time, as affecting right to open guardian's account or settlement. 1917A- 648. 5. TRANSACTIONS BETWEEN GUARD- IAN AND WARD. 28. Duty of Guardian to Disclose Facts. A guardian in settling with his ward and in accounting to the court must make full disclosure of all facts necessary to a com- plete understanding of the transactions, and a failure so to do is a breach of trust. In re Moore (Me.) 1917A-645. 6. COMPENSATION OF GUARDIAN. 29. Mismanagement of Estate. Where a guardian has been guilty of wrongdoing in the management of his ward's estate or the ward has suffered by the guardian's neglect of duty, commissions to the guard- ian will be refused. In re Moore (Me.) 1917A-645. 30. Appointment of Person not Eligible. Since a trust company is not authorized to act as the guardian of an infant, the ap- pointment of an officer of such a company as guardian of a minor heir as an incident to the appointment of the company as ad- ministrator of his ancestor is an evasion of the spirit of the law and no compensa- tion will be allowed to him for his ser- vices as guardian. In re Rundle (Ont.) 1917A-139. GUESTS. See Innkeepers. Injury to guest, see Automobiles, 29-31. Liability of guest, see Automobiles, 33-35. Liability of landlord for injury to tenant's guest, see Landlord and Tenant, 18. Injury in dark hall, see Negligence, 83. HABEAS CORPUS. 1. Nature and Scope of Remedy, 404. 2. Grounds of Remedy, 404. 3. Jurisdiction of Courts to Issue Writ, 404. 4. Application for Writ, 404. 5. The Return, 404. 6. Hearing and Determination, 405. 7. Appeal and Error, 405. See Costs, 3. To prevent deportation, see Aliens, 23. Review of proceedings, see Appeal and Error, 39. Jurisdiction not tested by, see Courts, 4. 404 DIGEST. 1916C 1918B. Guilt not an issue, see Extradition, 1. Burden of proof, legality of warrant, see Extradition, 3, 5. Sufficiency of extradition warrant, see Ex- tradition, 4. For release of enlisted minor, see Mili- tia, 2. To investigate detention of militiaman on criminal charge, see Militia, 19. 1. NATURE AND SCOPE OF REMEDY. 1. Review of Military Jurisdiction, The power to issue writ of habeas corpus under U. S. Rev. St. 753 (3 Fed. St. Ann. 167, Comp. St. 1913, S 1281), is to be sparingly exercised, especially when di- rected toward release of members of the military accused of offenses against the peace of the state; the jurisdiction of the civil courts of the state over such offenses in time of peace being admitted. In re Wulzen (Fed.) 1917A-274. 2. Bight to Release Imprisonment Originally Illegal. In habeas corpus pro- ceedings, so far as the right to the writ is concerned, it is immaterial whether the applicant was originally restrained by civil or criminal process, since the sole question to be determined on hearing is whether his restraint is now legal. Addis T. Applegate (Iowa) 1917E-332. 3. Persons Subject to Writ Public Offi- cers. The fact that one against whom ha- beas corpus issues is a public officer does not render him immune, and his official character neither enlarges nor abridges his righti. Addia v. Applegate (Iowa) 1917E-332. 4. Nature of Habeas Corpus Proceeding. Proceedings in habeas corpus are not ad- versary in character, are not in a tech- nical sense a suit between applicant and officer, whose responsibility ceases when he brings the applicant into court, for the court to pass upon the ultimate question whether such applicant is or is not wrong- fully restrained of his liberty. Addis v. Applegate (Iowa) 1917E-332. 5. Excessive Sentence. On habeas cor- pus by one fined for contempt of the dis- trict court for the violation of its injunc- tion, when the court imposed a fine in ex- cess of the limit permitted by Tex. Rev. Civ. St. 1911, art. 1708, the judgment of the court is not void except as to the ex- cess, and the applicant will not be re- leased until he has paid the fine that could be lawfully imposed. Ex parte Ellerd (Tex.) 1916D-361. (Annotated.) 6. Conviction Under Defective Informa- tion. That the information under which one was convicted was defective does not entitle him to discharge on habeas corpus; all that he could secure by a reversal on appeal, in view of Mo. Const, art. 2, 23, being a remand for trial on a proper in- formation. 684. In re Siegel (Mo.) 1917C- 2. GROUNDS OF REMEDY. 7. Invalidity of Order in Bastardy Pro- ceeding. As an order of the magistrate issuing a warrant in a bastardy proceed- ing, committing to jail a defendant ar- rested in another county, and not taken before the magistrate of that county in- dorsing the warrant, because of his fail- ure to give an undertaking, was void, the invalidity of the order could be asserted by a writ of habeas corpus. People T. Snell (N. Y.) 1917D-222. Note. Right of prisoner who has received ex- cessive sentence to be discharged on ha- beas corpus or appeal. 1916D-368. 3. JURISDICTION OF COURTS TO ISSUE WRIT. 8. Judge Bemote from Place of Confine- ment. Under Iowa Code 1897, 4419, pro- viding that the district courts and their judges have jurisdiction to allow a writ of habeas corpus upon proper showing, and that the writ may be served in any part of the state, and under section 4420, providing that application for habeas cor- pus must be made to the judge most con- venient in point of distance to the appli- cant, and the more remote judge, if ap- plied to, may refuse the writ unless a sufficient cause be stated in the petition for not making the application to the more convenient court, where one who had been confined to a hospital for female inebriates applied to the judge of a re- mote district court for habeas corpus to secure her release, claiming that she was cured, and alleging convenience of wit- nesses in her application as a reason for not applying to a judge nearer the place of detention, such judge has jurisdiction under the statutes to grant the writ. Ad- dis v. Applegate (Iowa) 1917E-332. 4. APPLICATION FOR WRIT. 9. Prima Facie Showing of Illegality. An application for habeas corpus must at least make prima facie showing that the applicant's confinement is unlawful. Ad- dis v. Applegate (Iowa) 1917E-332. 10. Habeas corpus may be applied for by and secured upon the application of the person confined, or the application may be made on his behalf by another, or the court itself may issue the writ on its own motion in proper case. Addis v. Applegate (Iowa) 1917E-332. 5. THE RETURN. 11. Duty to Produce Applicant in Court. By whatever authority the original re- HABEAS CORPUS. 405 straint of an applicant for habeas corpus was made, upon issuance of the writ the party against whom it runs must bring the applicant before the judge to explain and justify the present restraint, since the object of the writ is to give speedy and effective relief to those wrongfully de- prived of their liberty, no matter by whom or under what claim. Addia v. Applegate (Iowa) 1917E-332. fl. HEARING AND DETERMINATION. 12. Confinement of Inebriate for Treat- ment. Where one confined in a hospital for female inebriates sought habeas corpus against the superintendent to secure her release, whether the court on hearing has the right to inquire whether petitioner was cured is a question of law. Addis v. Ap- plegate (Iowa) 1917E-332. (Annotated.) 13. Iowa Const, art. 1, 13, provides that the writ of habeas corpus shall be issued when application is made as required by law. Iowa Code Supp. 1907, 2310a3 pro- vides that if, after thirty days of treat- ment and detention as an inebriate in an insane hospital, a patient shall appear to be cured, and if the physician in charge and the superintendent of said institution shall so recommend, the governor shall parole such patient. Section 2310al2 pro- vides that the board of control of state institutions may discharge any inebriate confined to the state hospital on recom- mendation of the superintendent, when satisfied that such person will receive no benefit from further hospital treatment, and further provides that the term of de- tention and treatment of an inebriate shall be until the patient is cured, not exceeding three years. Petitioner was committed as an inebriate by order of the court to the state hospital for the insane, to be con- fined "until cured, not exceeding three years." She sought habeas corpus against the superintendent of the institution to secure her release, claiming that she was cured. It is held that the court, on hear- ing, had tha right to determine the issue of fact whether she was cured, since, if such was the case, the purpose of confine- ment was accomplished, and there was no longer any right xinder the order or stat- utes to confine her longer; habeas corpus being a proper means under the constitu- tion, although the remedy was not given expressly by the statutes, to secure her release, when her right to liberty arose upon the occurrence of a cure. Addis v. Applegate (Iowa) 1917E-332. (Annotated.) 14. Inferences on Habeas Corpus Stat- ute Under Which Conviction was Had. Petitioner's conviction of, and sentence to a term of two years for, voting twice at an election, being: supported by Mo. Rev. St. 1909, 4427, authorizing a term "not exceeding five years," and it not appear- ing by the record proper, all that is before the court, that the information was not drawn, and the punishment assessed, there- under, he will not be discharged on habeas corpus, even if sections 6155, 6177, under which the information might be drawn, and which require a terjn not less than two years nor more than five years, be invalid as 'special legislation. In re Siegel (Mo.) 1917C-684. 15. Sufficiency of Evidence. Where the testimony on habeas corpus shows that the court, before fining the applicant for con- tempt, heard the evidence as to his contempt, but that evidence is not before the court in habeas corpus proceedings, it will be presumed that it authorized a judg- ment of conviction. Ex parte Ellerd (Tex.) 1916D-361. 7. APPEAL AND ERROR. 16. Right of Appeal. Following the de- cision in Re Petitt, 84 Kan. 637, 114 Pac. 1071, it is held that, since the adoption of the amended Kan. Code, an appeal may be taken to the district court from a de- cision of the probate court discharging the petitioner in a habeas corpus proceeding. Miller T. Gordon (Kan.) 1916D-502. (Annotated.) 17. The respondent in a habeas corpu proceeding appealed to the district court from an order of the probate court dis- charging the petitioner. The district court dismissed the appeal on the ground that it had no jurisdiction. The respondent then appealed to the supreme court. No super- sedeas was granted and no stay was asked of the order discharging the petitioner. Held, that the questions raised are not moot, and that in case the district court upon a trial of the appeal on its merits remands the petitioner, the court in which the prosecution was commenced will have authority to issue a warrant for the peti- tioner if that is found necessary. Miller v. Gordon (Kan.) 1916D-502. (Annotated.) 18. A chief of police, who is made the respondent in a habeas corpus proceeding, has such an interest therein that he may prosecute an Appeal from an order of the probate court discharging the petitioner. The case of Cook v. Wyatt, 60 Kan. 535, 57 Pac. 130, is overruled. Miller v. Gor- don (Kan.) 1916D-502. (Annotated.) 19. Scope of Review. Habeas corpus is assumed to be the proper remedy, without that question being decided, the'court pre- ferring to place its decision upon the mer- its. State v. Barnes (N. Dak.) 1917C-762. 20. On appeal from discharge on habeas corpus of one confined in a state hospital for female inebriates, the court cannot re- view the finding of the trial co\irt, where there is evidence to support it, that such 406 patient was cured; the question being one of fact, not reviewable on appeal. Addis r. Applegate (Iowa) 1917E-332. (Annotated.) Note. Finality of order in habeas corpus pro- ceedings. 1916D-506. HAIL INSURANCE. See Insurance, 57, 59. HAND CAB. Use at night, contributory negligence, see Master and Servant, 33. Negligence in operating, see Railroads, 52, 68. HANDWRITING. Expert testimony, see Evidence, 59, 63, 111. Comparison, see Evidence, 112. HARMLESS ERROR. See Appeal and Error, 212-334. HATCHWAY. Meaning, see Streets and Highways, 30. HAWKERS AND PEDDLERS. See Licenses, 3-15. License of itinerant food venders, see Food, 8-12. Right of fruit stand in street, see Streets and Highways, 22. 1. Soliciting Orders by Sample. One who, by displaying samples, solicits orders for the sale of goods for future delivery, is not, as a general rule, a "peddler." Ideal Tea Co. v. Salem (Ore.) 1917D-684. (Annotated.) 2. An ordinance of a city, which imposes on peddlers a license, which defines a "peddler" as a person who, for himself or as the agent of another, goes from house to house selling or offering to sell for future delivery by sample, and which declares that the provisions shall not apply to any merchant or dealer having a regular place of business in the city in taking or soli- citing orders for the sale and delivery of his merchandise, conflicts with Ore. Const, art. 1, 20, prohibiting laws granting to any citizen or class of citizens privileges or immunities which on the same terms shall not equally belong to all citizens; for it imposes a license on nonresident soli- citors, but permits merchants of the city to have their employees visit the houses of their customers and take orders for goods without a license. Ideal Tea Co. v. Salem (Ore.) 1917D-684. Note. Sale by sample for future delivery as peddling. 1917D-686. DIGEST. 1916C 1918B. HAZARDOUS. Meaning, see Master and Servant, 257. HEADLIGHTS. See Automobiles, 4. HEAD OF A FAMILY. Meaning, see Executions, 4. HEALTH. 1. Boards of Health. 2. Health Regulations. a. Regulation of Diseased Animals. b. Regulation of Bedding Materials. Scope of police power, see Constitutional Law, 14-44. Workmen's Compensation Act, as applying to disease, see Master and Servant,. 110, 193-198, 200. Physical examination of pupils, see Schools, 33-38. Exclusion of pupils exposed to disease, see Schools, 42, 43. 1. BOARDS OF HEALTH. 1. Review of Decision of Board. As 111. Laws 1915, pp. 3, 5, 2, 8, authorizing the destruction of diseased cattle by the board of live stock commissioners, is valid, the remedy of a stockman whose cattle have been by the board determined to have a contagious disease and are about to be de- stroyed is at law, and not in equity, even though it is contended that the cattle are not afflicted with a contagious disease, and the evidence of experts is conflicting. Durand v. Dyson (111.) 1917D-84. 2. HEALTH REGULATIONS, a. Regulation of Diseased Animals. 2. Diseased Animal as Nuisance. Cattle afflicted with a dangerous or contagious disease are public nuisances at common law, which nuisance cannot be legalized, as it invades the peace and safety of the people. Durand v. Dyson (HI.) 1917D-84. 3. Validity of Statute Providing Com- pensation to Owner. 111. Laws 1915, p. 3, 2, declares that it shall be the duty of the board of live stock commissioners to investigate all cases of communicable diseases among domestic animals, and to use all proper means to prevent the spread of such diseases, and provides for the extirpation thereof, authorizing the de- struction of the deceased animals, as well as the premises in which they are hous"i. The section also authorizes the board to make agreements with the owner as to thp value of the animals, and, in case such an agreement cannot be made, provides for the appraisement thereof. Section 8 de- clares that nil claim? arising from the slaughter of animals shall in no event ex- HEARING HEREDITAMENTS. 407 ceed $300 for any registered animal of thd bovine species, or $150 for any unregistered animal, and that the average shall not ex- ceed $250 per head for a herd of registered cattle, nor $125 for unregistered cattle.. It is held that as diseased cattle consti- tute a nuisance, and as Const. U. S. amend. 14 is not intended to deprive states of their police power, the statute is valid, for in such case the determination of whether cattle are diseased, as well as whether they should be slaughtered, is properly left to an administrative board, as the board of live stock commissioners. Darand v. Dyson (HI.) 1917D-84. (Annotated.) 4. Delegation of Power to Board. 111. Laws 1915, pp. 3, 5, 2, 8, authorizing the destruction of diseased cattle, and provid- ing for compensation of owners, is not an abuse of legislative discretion, though the determination of the question of disease be left to the board of live stock commis- sioners. Durand v. Dyson (111.) 1917D- 84. (Annotated.) Note. Validity of statute providing for de- struction of diseased animals with compen- sation to owner. 1917D-89. b. Regulation of Bedding Materials. 5. 111. Act July 1, 1915 (Laws 1915, p. 375), relative to the use of second-hand material in the manufacture of mattresses, quilts, or bed comforters, but containing no similar provision with respect to pillows, discriminates between manufacturers and dealers in pillows and manufacturers and dealers in mattresses, comforters, and quilts, and is class legislation. People v. Weiner (111.) 1917C-1065. (Annotated.) 6. 111. Act July 1, 1915 (Laws 1915, p. 375), 3, providing that, when any per- son shall remake or renovate or employ others to remake or renovate any mattress, quilt, or bed comforter for his own use, the material used for filling, together with the cover, shall be sterilized, is a proper exercise of the police power, and the same requirement could be made with reference to the manufacture and sale of mattresses, etc. People v. Weiner (111.) 1917C-1065. (Annotated.) 7. 111. Act July 1, 1915 (Laws 1915. p. 375), relative to the use of second-hand material in mattresses, quilts, or bed com- forters manufactured for sale, cannot be upheld as passed to prevent fraud or de- ceit in the sale of goods, as regulations to prevent fraud and deceit could be readily provided without prohibiting the use of second-hand material if properly renovated and sterilized. People v. , Weiner (111.) 1917C-1065. (Annotated.) 8. Use of Second-hand Material in Bed- ding. 111. Act July 1, 1915 (Laws 1915, p. 375), prohibiting the use of cotton or other material made second-hand by use about the person in the making of mat- tresses, quilts, or bed comforters, and the sale of mattresses, etc., in which any such second-hand material is used is void, as depriving citizens of the lawful use of their property in a manner not injurious or dangerous to others, since, while it would be proper to require that material be free from germs of contagion and infec- tion, the possible danger to health or safety does not justify the absolute prohi- bition of a useful industry or practice where the danger can be dealt with by regulation, and the evidence shows that second-hand bedding does not necessarily convey infectious or contagious diseases, and that a lawful business of selling or dealing therein may be carried on without danger to the public health, and the legis- lature itself recognizes this by permitting persons to remake or renovate or employ others to remake or renovate for their own use any mattress, quilt, or bed comforter, provided the material is sterilized, and it is the fundamental right of every person under the federal and state constitutions to pursue, without let or hindrance, all such callings or pursuits as are innocent in themselves, and not injurious to the public. People v. Weiner (111.) 1917C- 1065. (Annotated.) Note. State or municipal regulation of use or sale of second-hand clothes, bedding or the like. 1917 to imprison the patient. Cook v. High- land Hospital (N. Car.) 1917C-158. (Annotated.) 4. Good Faith No Defense to False Im- prisonment. That the head of a private hospital in good faith believed he was entitled to imprison a patient, who de- sired to leave, is no defense to an action for compensatory damages. Cook v. High- land Hospital (N. Car.) 1917C-158. (Annotated.) 5. Wrongful Detention of Patient. Where a patient in a sanatorium, who is not in such condition that she would be likely to imperil her health or safety, de- sired to leave, those in charge of the san- atorium cannot lawfully compel her to re- main. Cook v. Highland Hospital (N. Car.) 1917C-158. (Annotated.) 6. A patient, by agreeing to abide by the rules of a private hospital and to re- main there for a fixed time, does not thereby surrender control of herself. Cook v. Highland Hospital (N. Car.) 1917C-158 (Annotated.) Notes. Construction of statute providing for compulsory commitment of inebriate to institution for treatment. 1917E-359. Eight to damages for unlawful deten- tion in hospital or institution for insane. 1917C-162. HOSTILE POSSESSION. See Adverse Possession, 8-11. HOTELS. See Innkeepers; Licenses. Duty to provide fire escapes, see Landlord and Tenant, 13. HOUSE BREAKING. See Burglary. HOUSEHOLDER. Meaning, see Executions, 4. HOUSEHOLD EXPENSES. Liability of husband for, see Husband and Wife, 39, 40, 43, 44. HOUSE MOVING. Eight to use streets, see Streets and High- ways, 23. 418 HOUSE OF ILL FAME. Meaning, see Disorderly Houses, 6. HOUSES OF PROSTITUTION. See Disorderly Houses. HUMOR AND WIT. No defense to defamation, see Libel and Slander, 77. HUNTING. See Fish and Game. HUSBAND AND WIFE. 1. Disabilities of Married Women, 418. a. Contracts in General, 418. b. Suretyship for Husband, 419. c. Conveyances, 420. d. Right to Sue and be Sued, 420. 2. Antenuptial Contracts, 420. a. Validity, 420. b. Construction, 420. c. Enforcement, 421. 3. Wife's Separate Property, 421. 4. Bights and Liabilities Inter 8e, 421. a. In General, 421. b. Actions Between Husband and Wife, 422. 5. Bights Against Third Persons, 422. a. Actions for Injuries to Husband, 422. b. Actions for Injuries to Wife, 422. c. Actions for Services of Wife, 422. 6. Liability to Third Persons, 423. a. Necessaries, 423. b. Liability on Contracts, 423. c. Wife's Funeral Expenses, 423. 7. Alienation of Affections, 424. a. Nature and Bight of Action, 424. b. Burden of Proof, 424. c. Admissibility of Evidence, 425. d. Sufficiency of Evidence, 425. 8. Criminal Conversation, 4:2.'. See Adultery; Alimony and Suit Money; Curtesy; Divorce; Dower; Marriage; Polygamy. Expatriation by marriage, see Aliens, 15 16. Assignment of wages, see Assignments, 1, 2. Liability of owner for husband's negli- gence, see Automobiles, 24, 32. Liability of wife for her own negligence, see Automobiles, 25, 49. Wife's liability for household expenses, see Conflict of Laws, 5. Alienation of affections, excessiveness of damages, see Damages, 43. Criminal conversation, excessiveness of verdict, soe Damages, 53. Measure of damages for husband's death. see Death by Wrongful Act, 51. Widows allowance, see Executors and Ad- mimistrators, 27-31. Gift to wife, validity, see Gifts, 1. DIGEST. 1916O 1918B. Execution and acknowledgment of con- veyance of homestead, see Homestead, 11, 16. Mortgage by husband alone, see Home- stead, 17, 18. Effect of death of spouse, see Homestead, 20, 21. Jurisdiction of juvenile court over married minor, see Infants, 36, 38. Survival in wife of joint chose in action, see Joint Adventures, 6. Wife not concluded by judgment against husband, see Judgments, 66. Privileged communications, effect of by- standers, see Libel and Slander, 56, 58. Wife's conveyance of her life estate, see Life Estates, 5. Insurable interest inter se, see Life In- surance, 8, 9, 14. Effect of divorce, see Life Insurance, 10- 12. Action to restore property, see Parties to Actions, 6. Purchase in wife's name as creating trust, see Trusts and Trustees, 17. Beneficiary spouse as attesting witness, see Wills, 21-24. Competency of wife to testify in bastardy proceedings, see Witnesses, 7-9. Communications between as privileged, see Witnesses, 30. 1. DISABILITIES OF MABBIED WO- MEN. a. Contracts in General. 1. Authority of Wife to Pledge Credit for Necessaries. A wife is held not to have exceeded her authority in pledging her 'husband's credit for provisions where, for 12 years, he made payments on the account, notwithstanding he also ad- vanced her large sums for household ex- penses. Mettler v. Snow (Conn.) 1917C- 578. 2. Household Expenses. Under Ore. L. O. L., 7039, providing that the ex- penses of the family and the education of the children are chargeable upon the prop- erty of both husband and wife, or of either of them, and that in relation thereto they may be sued jointly or sepa- rately, although an action at law may be maintained against a married woman for the value of goods purchased by her husband and used as family necessaries, yet the realty of a wife cannot be sub- jected to the payment of a note given by her husband to evidence his lir>b;iitv to a tradesman for household supplies: her liability under the statute being only upon the original account for goods sold and delivered. Dale v. Marvin (Orr- ^ 1917C-557. (Annotated.) 3. Power of Wife to Contract. Prior to the passage of Vt. Acts 1884. Xo. 140. relating to the property of married women HUSBAND AND WIFE. 419 (P. S. 3037-3051), a note executed by a married woman was void at law, but by such statute the disability of a married woman to contract with others than her husband is removed so far as her separate property is concerned, with a special lim- itation that nothing contained therein shall authorize her to become surety for her husband's debts except by way of mortgage duly executed, etc. First Na- tional Bank v. Bertoli (Vt.) 1917B-590. b. Suretyship for Husband. 4. "Where a wife signed a note as surety for her husband, the fact that he induced her through false representations cannot be shown in defense; the note being given for a good consideration and the cred- itor not being a party to the fraud. Eoyal y. Southerland (N. Car.) 1917B-623. 5. N. Car. Const., art. 10, 6, declaring that the real and personal property of any woman acquired before marriage shall be and remain her sole and separate property, not liable for the debts of her husband, does not inhibit a wife from becoming the surety of her husband; the purpose being merely to protect the estate of the wife from liability for her husband's debts arising by reason of the coverture. Boyal v. Southerland (N. Car.) 1917B-623. (Annotated.) 6. A contract of suretyship being pri- marily a contract between the surety and creditor, a wife may, under N. Car. Laws 1911, c. 109, authorizing married women to contract and deal as femes sole, become surety for her husband. Eoyal v. Souther- land (N. Car.) 1917B-623. (Annotated.) 7. Under Ky. St., 2127, providing that no part of a married woman's estate shall be subjected to the payment for the debt of another, including her husband, unless set apart for that purpose by deed or mort- gage a wife's separate property may be mortgaged by her and her husband to secure the debt of the husband or another, rejardless of whether her property is a homestead. Hite v. Eeynolds (Ky.) 1917B-619. (Annotated.) 8. Where certain sureties on the bond of a tax collector borrowed money from a bank and loaned it to the wife of the tax collector, who paid it to the county in sottlement.of a shortage due the county by the collector, and the wife executed a mortgage to the sureties on her land to secure the payment of the money thus loaned, such a transaction would come within the provisions of the statute, which declares that a wife cannot bind her sepa- rate estate by any contract of suretyship, nor by any assumption of the debts of her husband, and that any sale of her separate estate, made to a creditor of her husband in extinguishment of his debts, shall be absolutely void. (a) In such a case the sureties on the husband's bond are his creditors within contemplation of law. (b) It follows that a mortgage executed and delivered by the wife, on land belong- ing to her individually, to the sureties on her husband's bond, as set out in the first head-note, is absolutely void, and, on fore- closure proceedings in behalf of the sure- ties, the wife can defend on such ground and defeat the proceedings. Sharpe v. Denmark (Ga.) 1917B-617. (Annotated.) 9. Act Tex. March 21, 1913 (Acts 33d Leg., c. 32), amending Eev. St. 1911, arts. 4621, 4622, 4624, governing a married woman's liability on contracts, evidences the establishment, or the continuance, with the modifications thereby made, of a well-defined public policy of preventing the diminution of the estates of married women by unauthorized transfers or con- veyances, or by subjecting them to the payment of forbidden obligations; and a contract made in Illinois by a married woman residing in Texas, whereby she be- came a surety for her husband, being con- trary to this public policy, cannot be en- forced in the courts of Texas, or in courts administering the laws of Texas. Groa- man v. Union Trust Co. (Fed.) 19K T1 - 613. (Annotated.) 10. Eev. St. Tex. 1911, art. 4621, as amended by Act March 21, 1913 (Acts 33d Leg., c. 32), provides that neither the separate property of the wife, nor the rents from her real estate, nor the interest on bonds and notes belonging to her, nor her personal earnings, shall be subject to the payment of debts contracted by the husband. Article 4624, as amended by the same act, after providing that the separate property of the husband and cer- tain community property shall not be sub- ject to the payment of debts contracted by the wife, except for necessaries, con- tains a proviso that the wife shall never be the joint maker of a note, or a surety on any bond or obligation of another, without the joinder of her husband with her in making such contract. It is held that a contract made by the wife alone, by which she undertakes to become a surety on a bond or obligation on which her husband is a principal is forbidden by the statute, as the word "another" cannot reasonably be given such a mean- ing as would prevent the husband from being regarded as "another" than his wife, and the wife may not become a surety on bonds and obligations in which the husband cannot join. Grosman v. Union Trust Co. (Fed.) 1917B-613. (Annotated.) 420 DIGEST. 1916C 1918B. 11. A husband, being indebted to plain- tiff bank for $14,500 and being requested to change the indebtedness, procured his wife to execute a note to the bank for $5,000 after one of the bank's officers had informed her that it was desired only as security for her husband's indebtedness and that the first money received on hii collections would be applied in payment of the note. The husband was given credit on other notes for the amount of the wife's note, which was renewed from time to time until after the husband's death, when she was induced to pay a large portion thereof and give a new note for the balance, having proved the last renewal note as a claim against her hus- band's estate. It is held that the trans- action showed that the wife executed the note as surety for her husband only, and that the notes as renewed were therefore void as violating Vt. P. S., c. 147, provid- ing that a married woman may not be- come surety for her husband, and hence the note given in partial surrender of the last renewal note was without considera- tion and unenforceable. First National Bank v. Bertoli (Vt.) 1917B-590. (Annotated.) Note. Bight of married woman to become surety for husband. 1917B-597. c. Conveyances. 12. Mortgage Necessity of Joinder by Husband. A wife's mortgage is in the same category as her deed, as to which Me. Rev. St., c. 63, 1, provides that realty directly conveyed to her by her husband cannot be conveyed by her with- out his joinder, so that the husband's in- heritance right to one-third of her abso- lute property is not conveyed by her mort- gage thereof, in which he does not join. Gato v. Christian (Me.) 1917A-592. d. Eight to Sue and be Sued. 13. Services of Wife Right to Recover in Own Name. Where a husband has consented that his wife might render services and nursing to a person since deceased, the wife may maintain an ac- tion for compensation in her own name under Iowa Code, 3162, providing that a wife may receive the wages of her personal labor and maintain an action therefor in her name as if unmarried. Tucker v. Anderson (Iowa) 1918A-769. 14. Alienation of Affections Wife's Right of Action. Under Kirby's Ark. Dig., 6017, authorizing a wife to sue alone as to any separate property or for damages for any injury, a wife mav main- tain an action for damages for the alienation of the affections of her hus- band, whether the cause of action is de- nominated a personal or a property right. Weber v. Weber (Ark.) 1916C-743. (Annotated.) 2. ANTENUPTIAL CONTRACTS, a. Validity. 15. Release of Dower. A contract be- tween parties -about to marry that the marriage shall not affect the rights of either in the property of the other or his own property is not contrary to public policy, so that any reasonable provision which an adult previous to marriage agrees to accept in lieu of dower will bar a subsequent claim thereto. Dickason v. English (HI.) 1918A-1165. 16. Agreement to Live With Husband's Parents. An agreement between parties about to be married that the wife should live with her husband at the home of his parents is an antenuptial contract which merges into the marriage contract and is of no binding force. Marshak v. Mar- shak (Ark.) 1916E-206. 17. Provision Contemplating Divorce. A stipulation in an antenuptial settlement providing for a fixed sum for alimony in the event of divorce or separation is void, as providing for a future separation after marriage. Stratton v. Wilson (Ky.) 1918B-917. 18. Signing Without Advice. An ante- nuptial settlement as to which all the facts were fully stated to the bride be- fore the marriage is not invalidated be- cause she signed it before being so ad- vised. Stratton v. Wilson (Ky.) 1918B- 917. 19. Concealment of Facts. To be bound by the terms of an antenuptial settlement, the prospective wife, before entering into the contract, and at the time, must have been apprised without misrepresentation or concealment of the nature and extent of her prospective husband's estate and the value of her marital rights therein which she bv its terms is surrendering. Stratton v. Wilson (Ky.) 1918B-917. b. Construction. 20. Contract Favored in Law. Contracts for antenuptial settlements are favored by the law, and will not be held invalid for trifling or technical reasons. Stratton v. Wilson (Ky.) 1918B-917. - 21. Effect of Testamentary Provision. An antenuptial agreement to cause to be paid to a woman $250 per month if the parties married and she survived, is not abridged by a codicil providing the annu- ity out of the remainder of the estate after the provisions of three paragraphs of the will. Estate of Cutting (Cal.) 1917D-1171. HUSBAND AND WIFE. 421 22. Partial Failure of Consideration for Antenuptial Agreement. Where parties about to marry agreed each on his part to release all claims to the property of the other, the wife to receive $5,000 to be paid from her husband's estate on his death, and to be in full satisfaction and discharge of her claims as widow or heir at law, it being mutually declared to be the intention that neither should have nor acquire any right, title, or claim to the real or personal estate of the other, but that the estate of each should descend or vest in his or her heirs at law, lega- tees, or devisees as though no marriage had ever taken place, and each agreeing that, in case either decided to mortgage or sell his property, the other would join in the conveyance or mortgage, after which the husband mortgaged his real estate without joining his wife, and the mortgage was foreclosed, the heirs of the mortgagee have title and can have the cloud of the wife's claim to $5,000 from the estate removed; the marriage and mutual covenants alone being sufficient to support the antenuptial agreement, and the payment of the money not being a condition precedent to the relinquishmeut. Dickason v. English (111.) 1918A-1165. (Annotated.) Notes. Effect of partial invalidity of antenup- tial contract. 1918B-925. Effect on antenuptial agreement for release of dower or like interest of failure of eon si deration for agreement. 1918A- 1168. c. Enforcement. 23. An antenuptial settlement of $25,- 000 to the wife as widow and $10,000 to her if divorced or separated, where the marriage is consummated, will be en- forced on the death of the husband as to the $25,000 settlement, notwithstanding the illegal promise to pay alimony. Strat- ton v. Wilson (Ky.) 1918B-917. (Annotated.) 24. Fault of Wife. Where a wife sepa- rated from her husband and sued for a di- vorce, which was refused, it does not nec- essarily follow that the wife was so much to blame for the separation that an ante- nuptial agreement between the parties cannot be enforced at her instance. Schnepfe v. Schnepfe (Md.) 1916D-988. 25. Effect of Separation. Where hus- band and wife entered into an antenuptial agreement providing for the payment of $12,000 by him to her, she relinquishing all other rights in his estate, this agree- ment will be enforced in equity after his death, although the wife after mar- riage separated from him. Schnepfe v. Schnepfe (Md.) 1916D-9S8. 3. WIFE'S SEPAEATE PROPERTY. 26. Separate Interest in Husband's Property. W T hile a wife may convey her separate interest in land as though un- married if the deed she executes with her husband is a suitable instrument for re- lease of dower or alienation of homestead, no purpose to affect her independent in- terest can be implied. Agar v. Streeter (Mich.) 1916E-518. 27. Right of Husband to Attack Con- veyance. Where a wife sells her separate property, representing herself to be a widow, when, in fact, her husband is liv- ing and entitled to his estate by the curtesy initiate, the purchaser having en- tered into possession, a joint disseisin is effected, so that a joint suit by the hus- band and wife is necessary; hence, if the wife is estopped from asserting her rights, there can be no relief, the wife not having effected a fraud on her husband. Bryant v. Freeman (Tenn.) 1917E-1J1. 28. Conveyance by Wife Estoppel of Wife to Repudiate. Where a married woman whose husband has been sentenced to the penitentiary for life disposes of her property, representing herself to be a widow, her fraud estops her from ques- tioning the conveyance on the ground that her husband did not join, and her privy examination was not taken in the form prescribed for deeds of married women. Bryant v. Freeman (Tenn.) 1917E-111. 29. Ratification oy Husband. Where a wife after the birth of heirs sold her separate property while her husband was in the penitentiary, and after his release he joined with her in disposing of prop- erty purchased with the proceeds thereof, he ratifies the original sale and estops himself from setting up any rights in the first property which he might have under his curtesy initiate. Bryant v. Freeman (Tenn.) 1917E-111. 4. RIGHTS AND LIABILITIES INTER SE. a. In General. 30. Power of Husband to Dispose of Personalty. The general rule is that the law has placed no restriction or limitation on the husband's right to make such dis- position of his personal property during his lifetime as he may elect. Poole v. Poole (Kan.) 1918B-929. (Annotated.) 31. A widow sued as an heir of her de ceased husband to set aside gifts and transfers of personal property made by him to the defendants, who are his sons by a former marriage. The transfers were made without the wife's knowledge, when the husband was eighty-three years 422 of age and possessed of no other prop- erty, and immediately following the dis- missal of an action brought by her for separate maintenance, that action having been settled upon his conveying to her certain real estate and agreeing to pay her a monthly allowance. The court found that he made the gifts and trans- fers to his sons in anticipation that he would not lire long and to prevent the plaintiff from inheriting a share in the property as his widow, and in the further anticipation of the probability that the resumption of the marriage relation with plaintiff would not last long or be per- manent, and that she might separate from him and bring another action for alimony or divorce, and to defeat her right to a division of hjs property, held, following Small T. Small, 56 Kan. 1, 54 Am. St. Rep. 581, 30 Lt R. A, 243, 42 Pac. 323, that the gifts to the sons not being colorable but absolute transfers of the title to the property, binding upon the grantor, are binding upon the heirs, and cannot be at- tacked by the widow as made in bad faith because of the intent thereby to deprive her of an interest in the property either as wife or widow. Poole v. Poole (Kan.) 1918B-929. (Annotated.) 32. Where the transfer or gift is color- able and there is a voluntary transfer or conveyance by which the husband re- serves to himself an interest in or a power to dispose of the property, it may be declared void as against the widow and she may participate in its distribu- tion upon the theory that the title still remained in the husband at his death. Poole T. Poole (Kan.) 191SB-929. (Annotated.) Notes. Right of husband, as against wife, to dispose of his personalty during covert- ure. 1918B-934. Right of wife to leave marital home be- eause of conduct of husband's relatives. 1916E-209. b. Actions Between Husband and Wife. 33. Action by Wife Against Husband. Neither Shannon's Tenn. Code, 6470, making one committing an assault ain't battery upon his wife for any cause whatsoever guilty of a misdemeanor, nor Pub. Acts 1913, c. 26, providing that mar- ried women are thereby fully emancipated from all disability on account of covert- ure, that marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition, or disposi- tion of property, or as to her capacity to make contracts, and do all acts in refer- ence to property which ghe could lawfully do if she were not married, but that every married woman shall have the same capacity to acquire, hold, control, and dispose of property and to make any con- DIGEST. 1916C 1918B. trnct in reference thereto and to bind herself personally, and to sue and be sued as if she were not married, abrogates the common-law rule that one spouse cannot sue the other for an assault committed during the marriage, as it must be as- sumed that, if it had been the purpose of the legislature to change this rule, such purpose would have been clearly ex- pressed, or would have appeared by neces- sary implication. Lillienkamp v. Ripple- toe (Tenn.) 1917C-901. (Annotated.) 5. RIGHTS AGAINST SONS. THIRD PER- a. Actions for Injuries to Husband. 34. Imprisomment of Husband. Defend- ant C., believing that plaintiff's husband was immorally intimate with C.'s wife, with certain others carried out a scheme to take the husband in flagrante delicto with another woman, that he might be imprisoned for adultery. Held that, de- fendants' wrongful act being leveled at the husband only, and not at plaintiff, she could not recover damages from de- fendants because of the loss of her hus- band's affections, society, support, etc., due to his incarceration for such offense. Nieberg v. Cohen (Vt.) 1916C-476. (Annotated.) Note. Right of wife to recover damages for imprisonment of husband. 1916C 481. b. Actions for Injuries to Wife. 35. Recovery for Loss of Consortium. A husband cannot recover against a per- son responsible for injuries to his wife for the loss of the undefined influence of the wife in the family relation and the pleasure of the relationship or for the loss of "consortium," defined as a person's affection, society, or aid, or the right to the conjugal fellowship of the wife and to her company, co-operation, and aid in every conjugal relation. Blair v. Seitner Dry Goods Co. (Mich.) 1916C-882. (Annotated.) 36. Right of Wife to Sue for Injuries. A wife may" sue for injuries to her person without joining her husband as plaintiff. Blair v. Seitner Dry Goods Co. (Mich.) 1916C-882. Note. Right of husband to recover for loss of consortium in action for personal injuries to wife where statute gives wife right of action for such injuries. 1916C-386. c. Actions for Services ef Wife. 37. Recovery by Husband for Loss of Services. While the legislature has re- lieved married women of certain disabili- ties and has denied to the husband the HUSBAND AND WIFE. 423 right to her earnings and the profits of any business she may carry on, it has not put her domestic duties and labor per- formed in and about her home for her family upon a pecuniary basis, nor classi- fied such duties as services, nor permitted her to recover for the loss of ability to perform them, and the husband may re- cover the pecuniary value of a service habitually rendered by the wife which he has lost on account of her injuries. Blair v. Seitner Dry Goods Co. (Mich.) 1916C- 882. 6. LIABILITY TO THIRD PERSONS, a. Necessaries. 38. Attorney's Fees in Divorce Suit. Where an attorney brought an action for a wife for divorce, and the husband filed a cross-petition containing allegations re- flecting on the character of the wife, who thereafter withdrew from the case, and the court granted a divorce to the hus- band on the cross-petition, the attorney cannot, by independent action, recover from the husband for the services ren- dered the wife on the theory that they were "necessaries." Wick v. Beck (Iowa) 1917A-691. (Annotated.) 39. Household Expenses. Under the New York law, a wife is not liable for provisions furnished the family, unless she expressly agreed to pay for them or exceeded her authority as her husband's agent in ordering them. Mettler v. Snow (Conn.) 1917C-578. (Annotated.) 40. Funeral Expenses. At common law neither a wife nor her estate is liable for necessaries furnished to her or for her funeral expenses, though courts at times enforce such claims against her estate on equitable principles. Bowen T. Daugh- erty (N. Car.) 1917B-1161. (Annotated.) Note. Liability of wife for household ex- penses. 1917C-561. b. Liability on Contracts. 41. Attorney's Fees in Divorce Suit. A husband is not liable for the services of an attorney, who at the request of the wife consulted with merchants relative to their furnishing necessaries to the wife pending divorce proeeedngs by the hus- band. Meaher v. Mitchell (Me.) 191 7A- 688. (Annotated.) 42. Since Me. Rev. St. c. 62, 6, author- izes the court in a libel for divorce to or- der the husband to pay the wife's attor- ney's fees, there is no necessity for the wife pledging her husband's credit for such fees, and her attorney cannot, after a divorce has been denied to the husband, recover from the husband for his services in an independent action. Meaner v. Mitchell (Me.) 1917A-688. (Annotated.) 43. Note for Household Goods. Where a creditor, to whom a husband had given a note representing his liability for house- hold goods, sought to enforce against the wife her joint liability with the husband for such expenses under Ore. L. O. L. 7039, by levying execution upon the wife's homestead estate under judgment against the husband alone in an action on his note, the attempt is in contraven- tion of the organic law, which guarantees to a citizen the right of trial by jury be- fore he or she may be deprived of prop- erty, unless the wife's realty was fraudu- lently conveyed to her by her husband. Dale v. Marvin (Ore.) 1917C-557. (Annotated.) 44. Household Expenses. Where a married woman personally applies to a tradesman for the purchase of groceries, stating that she wishes to open an account in her own name, and directs the plaintiff to charge the goods to her, and where in pursuance of this arrangement the goods are delivered at her home and charged to her, she will be personally liable there- for, notwithstanding the legal obligation of the husband to support his wife, and the groceries being such as would be a proper support to be provided by the hus- band for Jhe family. Bell T. Rossignal (Ga.) 1917C-576. (Annotated.) 45. Effect on Wife of Covenants. Usually when a wife joins in the deed of her husband of his property, the cove- nants in the deed being in form the joint covenants of both of them, the covenants are not hers, but are his only; but, if it appears that the sole consideration for the deed was received by her and was by her husband so intended, the covenants will be treated as the joint covenants of husband and wife. Agar v. Streeter (Mich.) 1916E-518. Note. Liability of husband for counsel fees incurred by wife in divorce action. 1917A-689. c. Wife's Funeral Expenses. 46. Liability of Husband for Wife's Funeral Expenses. At common law a husband is liable for the funeral expenses of his deceased wife and for necessaries furnished to her during their married life, including the cost of clothing, food, ordinary household supplies, medical at- tendance, expenses of sickness, and arti- cles of comfort suitable to the condition and style in which the parties were ac- customed to live. Bowen v. Daugherty (N. Car.) 1917B-1161. (Annotated.) 424 DIGEST. 1916O 1918B. 47. Under Laws N. Car. 1911, e. 109, flicted. authorizing a married woman to contract as if she were unmarried, a married woman or her estate after her death is liable for her express contract, or in the common counts in assumpsit when goods are furnished on her credit, but where there is no express promise by a wife or circumstances showing that the expenses of her last sickness and her funeral ex- penses were furnished on her credit, or that of her estate, the husband is primarily liable therefor, and the estate of the wife cannot be charged with claims for such expenses if they can be collected from the husband. Bowen v. Daughcrty (N. Car.) 1917B-1161. (Annotated.) Note. Liability of husband for wife's funeral expenses. 1917B-1164. 7. ALIENATION OP AFFECTIONS, a. Nature and Bight of Action. 48. Liability of Relative. Where a parent, brother, or sister acts in good faith and is prompted by worthy motives in advising a wife or husband to separate from the other spouse, even though such advice results in separation and estrange- ment, the advising relative is not liable as for alienation; but, if it be made to appear that such relative was actuated by malice, and wilfully interfered for such reason, not for the welfare of the related spouse, an action will lie on behalf of the injured spouse for alienation. Ratcliffe r. Walker (Va.) 1917E-1022. (Annotated.) 49. Duty of Parents. Parents are justi- fied in giving counsel and advice to a daughter, who has contracted a marriage with a man who is believed by them to be wholly unfitted to make her happy and to support her properly, and if they act without malice, and are prompted by af- fection for their daughter and solicitude for her health and happiness, they cannot be held liable for alienation. Kleist v. Breitung (Fed.) 1917E-1014. (Annotated.) 50. Necessity of Separation of Spouses. An action by a married woman against an unmarried woman % for alienation of her husband's affections will lie even though plaintiff's husband has not completely and in a literal sense abandoned her. Rott v. Goehring (N. Dak.) 1918A-643. (Annotated.) 51. Loss of Consortium. If through defendant's alleged wrongful acts the plaintiff's husband was induced and per- suaded to deprive plaintiff of the conjugal affection and society which the marriage contract entitled her to enjoy, she has a. right to recover for the injury thus in- Rott T. Goehring (N. Dak.) 1918A-643. (Annotated.) 52. Right of Wife to Sue. Section 4355, Comp. Laws N. Dak. 1913, which pre- scribes what is forbidden by the rights of personal relation, was not intended to pre- scribe the only rules of conduct as to the violation of the wife's conjugal rights. Held, further, following King v. Hanson. 13 N. D. 85, that subdivision 1 of said section gives to the wife the same pro- tection as subdivision 2 gives to the hus- band. Rott v. Goehring (N. Dak.) 191v\- 643. 53. What Constitutes Alienation. De- fendant will not be exonerated from all liability merely because the plaintiff's husband may have been more blamable than defendant. Rott v. Goehring (N. Dak.) 1918A-643. 54. Prior Estrangement. The fact that plaintiff was estranged from her husband prior to his illicit relations with defend- ant will not defeat the action. Rott v. Goehring (N. Dak.) 1918A-643. 55. Single Act of Unfaithfulness. A single act of sexual intercourse by a man accustomed to marital infidelities, with a prostitute, on a chance occasion, does not constitute the "enticement" and "alienation" essential to a recovery by the wife in a suit for alienation of affec- tions. Nieberg v. Cohen (Vt.) 1916C- 476. 56. Paramour Solely Liable. The ordi- nary right of action of a wife for the alienation of affections and loss of society of her husband through criminal conversa- tion is against the husband's paramour alone. Nieberg v. Cohen (Vt.) 1916C-476. 57. Right of Recovery. A wife at com- mon law had no remedy for alienation of her husband's affections and consequent loss of his society and aid; such right being conferred on her by modern stat- utes empowering her to sue alone and to hold separate property. Nieberg v. Cohen (Vt.) 1916C-476. Notes. Action by wife for alienation of affec- tions or for criminal conversation. 1916C-748. Liability of parent or guardian for alienation" of affections. 1917E-1017. Liability of relative other than par- ent or guardian for alienation of affec- tions. 1917E-1027. Actual separation or abandonment as prerequisite to action for alienation of affections. 1918A-647. b. Burden of Proof. 58. In an action for alienation of the affections of plaintiff's husband, the bur- HUSBAND AND WIFE. 425 den is on plaintiff to show that defendant was the pursuer, not merely the pursued, and that she deliberately influenced plaintiff's husband to withdraw his care, protection, comfort and companionship. Stewart v. Hagerty (Pa.) 1917D-483. c. Admissibility of Evidence. 59. Acts After Separation. In an ac- tion by a wife against another woman for alienation of the affections of plaintiff's husband, where there is no evidence of improper relations between defendant and the husband before the separation of plaintiff from her husband, evidence of such improper relations thereafter is in- admissible. Stewart v. Hagerty (Pa.) 1917D-483. (Annotated.) Note. Admissibility in action for alienation of affections of evidence of acts committed after separaton of spouses. 1917D-484. d. ' Sufficiency of Evidence. 60. In an action by a husband against the relatives of his wife for a conspiracy to alienate her affections, the questions whether the defendants or any of them gave advice to the wife to induce a separation, indulged in solicitation, used any compulsion, or made any threats to that end, or entertained any malice toward the plaintiff, are held to be for the jury under the evidence. Katcliffe v. Walker (Va.) 1917E-1022. 61. In an action for alienation against the parents, brothers, and sister of a wife who had separated from her husband, the evidence is held to be sufficient to sustain a verdict against all the defendants on the ground that there was a common un- derstanding and design to procure a separation. Ratcliffe v. Walker (Va.) 1917E-1022. (Annotated.) 62. Liability of Parent. The evidence is held to be insufficient to show that the defendants, who were the parents of the plaintiff's wife, through malice or other improper motives, alienated her affections from the plaintiff, or that they tried in any way so to alienate her affections. Kleist v. Breitung (Fed.) 1917E-1014. (Annotated.) 63. Circumstantial Evidence. Direct proof of illicit relations is not required, circumstantial evidence being sufficient. Rott v. Goehring (N. Dak.) 1918A-643. 64. Evidence Insufficient. In an action for alienation of the affections of plain- tiff's husband, the evidence is held to be insufficient to show that defendant was the active cause of the alienation of plaintiff's husband's affections. Stewart v. Hagerty (Pa.) 1917D-483. 8. CRIMINAL CONVERSATION. 65. Evidence. In a trial, without a jury, of a husband's action for criminal conversation, the admission in evidence of letters to plaintiff from his wife contain- ing matters competent and matters in- competent is not error, where the court stated that the letters were admitted merely to contradict any inference that the husband and wife were living to- gether, and there was other and compe- tent evidence relative to the adultery re- lied on as the basis of the action. Rehl- ing v. Brainard (Nev.) 1917C-656. 66. Question not Decided Right of Wife to Sue for Criminal Conversation. Whether an action will lie by a married woman for criminal conversation, and also whether such a cause of action is alleged in the complaint, not decided for reasons stated. Rott v. Goehring (N. Dak.) 1918A-643. 67. Measure of Damages. In a hus- band's action for criminal conversation, lack of consortium is an element of the damages, but the fact that the breaking up of the home or the destruction of the marital relation has been only partial, and that there has been a reconciliation, may be considered in mitigation of dam- ages. Rehling v. Brainard (Nev.) 1917C- 656. 68. Scope of Issue. In a husband's ac- tion for criminal conversation, the issue is whether the wife has been guilty of adultery without his consent or conniv- ance. Rehling v. Brainard (Nev.) 1917C- 656. 69. Evidence Sufficient. Evidence in a husband's action for criminal conversa- tion, tried without a jury, is held to sus- tain a judgment for plaintiff. Rehling v. Brainard (Nev.) 1917C-656. 70. Eight to Punitive Damages. In ac- tions for criminal conversation, the jury, in their discretion, may award punitive or exemplary damages. Jowett v. Wal- lace (Me.) 1917A-754. 71. Marriage Proof. In an action for criminal conversation, the husband was a competent witness as to the performance of a marriage ceremony. Jowett v. Wal- lace (Me.) 1917A-754. 72. To support an action for criminal conversation, there must be proof of a marriage ceremony performed by a per- son authorized by law to solemnize mar- riages. Jowett v. Wallace (Me.) 1917A- 754. (Annotated.) 73. In actions for criminal conversation, the production of record proof of the mar- riage from the proper public records, with proof of the identity of the parties, is suffi- cient prima facie proof of the authority of 426 DIGEST. 1916C 1918B. IMMEDIATE DISABILITY. the person officiating to solemnize mar- riages; since, while the marriage must be Defined, see Accident Policy 2 strictly proved, the record affords presump- tive evidence of regularity and authority. Jowett v. Wallace (Me.) 1917A-754. (Annotated.) 74. Proof Bequisite to Recovery. In an action for criminal conversation,' plaintiff must prove a legal marriage in fact, and carnal intercourse between his wife and defendant. Jowett T. Wallace (Me.) 1917A-754. IMMIGRATION. See Aliens, 3, 17-23. Importation of contract labor, see Labor Laws, 2. IMMORAL PURPOSES. See Prostitution, 12, 13. Note. Proof of marriage in action for crim- inal conversation. 1917A-755. HYPOTHETICAL QUESTIONS. See Witnesses, 55-60. HYPOCRISY. Charge of as libel, see Libel and Slander, 26. ICE. Bights of riparian owner, see Waters and Watercourses, 13. ICE CREAM. Regulation of, see Food, 3, Id. IDEM SONANS. See Names, 7. IDENTITY. Presumption as to, see Evidence, 139. IDENTITY OF ISSUES. See Judgments, 58-61. IDENTITY OF OFFENSES. S e Former Jeopardy, 4. ILLEGAL CONSIDERATION. See Bills and Notes, 52. ILLEGALITY. Of contracts, see Contracts, 23-43. ILLEGITIMACY. See Bastardy. ILLEGITIMATES. Descent to and through, see Descent and Distribution, 5-8. "Child" not including bastard gee Execu- tions, 4. See Disease. ILLNESS. IMPAIRING CONTRACT OBLIGATIONS. Eight hour day, see Labor Laws, 15. IMPEACHMENT. Of verdict, see Verdicts, 12-13. Of witnesses, see Witnesses, 96-111. IMPLIED CONTRACTS. See Contracts, 54. IMPLIED COVENANTS. See Landlord and Tenant, 4-7. IMPLIED MALICE. See Libel and Slander, 10, 12. IMPLIED POWERS. See Corporations, 14-16. IMPLIED REPEAL. See Statutes, 117-121. IMPLIED TRUSTS. See Trusts and Trustees, 13-21. IMPLIED WARRANTY. See Sales; Warranty. IMPOTENCE. As defense in assault, see Rape, 13. IMPRISONMENT. See False Imprisonment; Imprisonment for Debt and in Civil Cases; Sentence and Punishment. Effect on homestead rights, see Home- stead, 19. Place of, see Sentence and Punishment, 20. IMPRISONMENT FOR DEBT AND IN CIVIL CASES. 1. What Constitutes Debt. Comp. Laws N. Dak. 1913, 10941. which authorizes im- prisonment in case of the nonpayment of IMPROVEMENTS INCLUSION BY REFERENCE. 427 the costs of a criminal prosecution, does not violate either the constitution of the state of North Dakota or that of the United States. State r. Kilmer (N. Dak.) 1317E-116. 2. Eem. & Bal. Wash. Code, 749, pro- viding that a defendant may be arrested in civil cases, in actions for damages, on a cause of action not arising out of con- tract, where defendant is a nonresident, or is about to remove from the state, where the action is for any injury to per- son or character, for wrongfully taking, detaining, or converting property, in an action for fines or penalties, on promise to marry, for money received, property em- bezzled, fraudulently misapplied or con- verted by a public officer, an attorney or a corporation's agent, or other person in fiduciary capacity, for professional mis- conduct, for a recovery of possession of personal property unjustly detained and concealed, removed, or disposed of, when defendant has been guilty of a fraud in contracting a debt, or in concealing or disposing of property sought to be taken by suit, when the action is to prevent threatened injury to or destruction of property, when a defendant refuses to apply money to payment of judgments with intent to defraud plaintiff, or when he refuses to comply with the legal order of the court to defraud plaintiff, is uncon- stitutional, under Const, art. 1, 17, pro- viding there shall be no imprisonment for debt except in case of absconding debtors; a judgment founded on tcrt being a "debt" within the meaning of the consti- tution. Bronson T. Syverson (Wash.) 1917D-833. (Annotated.) Note. Civil liability for tort as debt within constitutional provision against imprison- ment for debt. 1917D-841. IMPROVEMENTS. Care required in excavating, see Adjoin- ing Landowners, 9. Effect on compensation, see Eminent Do- main, 37, 38. Right to lien for improvements by tenant, see Mechanics' Liens, 8. Street and highway improvements, see Streets and Highways, 5-15. Defaulting vendee's right to recover for improvements, see Vendor and Pur- chaser, 20. 1. Recovery by Occupying Claimant. Where, in a suit to recover the possession of land condemned by a railroad company, defendant in addition to pleading an aban- donment of the railroad company's ease- ment also made claim for improvements made upon the property in good faith, be- lieving that he had an absolute title, evi- dence as to the length of time that de- fendant was engaged in constructing a building on the property and the amount expended in its erection is admissible un- der the claim for improvements. New York, etc. R. Co. v. Cella (Conn.) 1917D- 591. IMPUTATION OF FRAUD. See Libel and Slander, 30. IMPUTATION OF CRIME. See Libel and Slander, 24, 25. IMPUTATION OF UNCHASTITY. . To male, see Libel and Slander, 36. IMPUTED NEGLIGENCE. See Automobiles, 26, 32-35. Imputed contributory negligence, see Negligence, 55-57. INADEQUACY. Of gift, effect on validity, see Charities, 20. INADEQUACY OF CONSIDERATION. Defense of, see Bills and Notes, 13. INCEST. 1. Marriage of Accused. In a prosecu- tion for incest alleged to have been com- mitted by defendant with his daughter, a girl of 18, the state introduced a mar- riage certificate showing that defendant had married E. in Kansas on August 25, 1895, and E.'s sister testified that the woman mentioned in the marriage certifi- cate was her sister and defendant's wife; that she was alive at the time of the trial; and that defendant had lived with her as his wife for the past 20 years. Held, sufficient to establish that defendant waa a married man at the time of the commis- sion of the crime. Knowles v. State (Ark.) 1916C-568. 2. Cohabitation After Statute Forbid- ding Marriage. Where defendant in 1882 married the daughter of his half-sister when incest was not a crime, and such marriage was not void, but voidable, his cohabitation with her after the passage of the Act of Dec. 24, 1884 (18 Stat. 857), S. Car. Criminal Code, 388, making incest a crime, cannot be punished as incest, for as to him the statute would be ex post facto. State v. Smith (S. Car.) 1917C- 149. INCIDENTAL POWERS. See Corporations, 14-16. INCLUSION BY REFERENCE. In bill of exceptions, see Appeal and Error, 67-70. DIGEST. 1916C 1918B. INCOME TAX See Taxation, 180-199. INCOMING PARTNER. Liability for firm debts, see Partnership, 26, 32-36. INCOMPETENT. See Insanity. INCONSISTENT DEFENSES. Right to plead, see Pleading, 20, 25-30. INCONTESTABLE CLAUSE. See Life Insurance, 26-37. INCREASE. See Chattel Mortgages, 21-24. INCREASE OF CAPITAL STOCK. Preferential rights of stockholders in new issue, see Corporations, 73. INCUMBRANCES. Effect of bankruptcy, see Bankruptcy, 16. Avoidance of policy by, see Fire Insur- ance, 18. Waiver of provision against, see Fire In- surance, 24. IN CUSTODIA LEGIS. Control of bankruptcy trustee, see Bank- ruptcy, 14. INDEMNITY. Action by beneficial obligee, see Bonds, 1. INDEPENDENT CONTRACTORS. Authorized unlawful act, see Torts, 5. 1. Mode of Payment as Affecting Inde- pendence. Defendant made an agreement with J. & Son relative to the construction of a building on its property, by which J. & Son were to erect the brick walls and the foundations according to plans and specifications drawn by defendant's architect, defendant was to furnish all building material, while J. & Son were to supply all scaffolding, etc., used in the construction of the building, J. & Son were to employ their own men, and for their services in the supervision, construction, and general erection of the brick and cement work were to receive a specified sum per week. J. & Son hired all the bricklayers, including plaintiff, and all laborers, and gave the orders to the men as to what they should do, and how it should be done, and one of the members kept the time of the men, and made out the weekly pay roll, which he presented to defend- ant, from whom he received the money to meet it. Defendant's president was about the building practically every day, and conferred with J. & Son regarding the plans and specifications, and on one occasion told a workman that certain win- dow frames should be changed, but did not tell him to make the change, and it was not made until J. & Son so directed. He also laid off another workman, but in doing se acted under the direction of J. & Son. Held, that J. & Son were "inde- pendent contractors," and alone had con trol over plaintiff and the methods to be used in constructing the building, and hence defendant was not liable for plain- tiff's injury caused by the falling of a de- fective scaffold which was the property of J. & Son, and had been used by them on other buildings, and was placed in posi- tion bv their employees. Marion Shoe Co. v. Eppley (Ind.) 1916D-220. (Annotated.) 2. Control of Work as Affecting Inde- pendence. Where a building contract pro- vided that the owner, through an inspec- tor representing him, should have author- ity to examine the materials furnished, and to condemn that not conforming to a prescribed standard, and the inspector was authorized to arrest the progress of the work if it did not conform to such stand- ard, but he had power only to see that the standard was lived up to as the work progressed, and had no control of the means and methods of attaining the stand- ard, the contractor was an independent contractor, and not an employee, for whose negligence the employer was liable. Prest- o-lite Co. v. Skeel (Ind.) 1917A-474. 3. Definition. An "independent con- tractor" is one exercising an independent employment under a contract to do certain work by his own methods, without sub- jection to the control of his employer, ex- cept as to the product or result of the work. Prest-o-lite Co. v. Skeel (Ind.) 1917A-474. 4. Wliat Constitutes Independent Con- tractor. Where an agreement provides for a result to be accomplished, but leaves to the person employed to accomplish it the means and methods by which it is to be accomplished, the person so employed is a contractor, and the relation is not that of master and servant, and the em- ployer is not liable for the contractor's negligence. Prest-o-lite Co. v. Skeel (Ind.) 1917A-474. 5. Dangerous Employment What Con- stitutes. The Ind. Dangerous Emnlov Act of 1911 (Acts 1911. c. 236) has no application to the liability of an owner for injuries to an employee of an inde- pendent contractor, engaged in construct- ing a building, from the collapse of suoh INDEPENDENT CONTRACTORS. 429 building. Prest-o-Hte Co. v. Skeel (Ind.) 1917A-474. 6. Who is not an Independent Contrac- tor. Where one person lets a contract to another to do a particular work, reserving to himself no control over the manner in which it shall be performed, except that it shall conform to a particular standard when completed, he is not liable for an injury occurring to others by reason of any negligence of the person to whom the contract is let, and the fact that he re- tains a supervision of the work for the purpose of securing certain results, that he may stop work which is not properly done, that the right is reserved to make alterations in the contract, that the con- tractor is to be compensated by a lump sum, by a commission on the cost, or a per diem, or that the proprietor furnishes the building material, where the accident does not result from a defect in such ma- terial, does not change the rule. Marion Shoe Co. v. Eppley (Ind.) 1916D-220. (Annotated.) 7. Liability of Owner Defect in Plans. When an owner has exercised due care to employ an architect to prepare plans and specifications for a building, and builds accordingly, he should not be held liable for any defects, unless they were such that he should have known of them. Prest-o-lite Co. v. Skeel (Ind.) 1917A-474. 8. Effect of Nuisance Created by Owner. The owner of a building employed an in- dependent contractor to paint it, and the contractor negligently fastened the guy ropes so that the stage on which he was painting slipped, and he fell and struck plaintiff on the sidewalk below. It ap- peared that the work was done in the usual way, and there was no evidence that it was customary to erect guards over sidewalks above which men were painting from a suspended stage during the work. Held, that, while an abutting owner caus ing a nuisance to be erected on his prop- erty is not excused from liability for an injury therefrom to a person using the street because he employs an independent contractor to do the work, yet, as the sus- pension of the stage above the sidewalk was not such a menace to the safety of those using it as to amount to a nuisance, the owner was not liable. Weilbacher v. J. W. Putts Co. (Md.) 1916C-115. (Annotated.) 9. Admissibility of Evidence. In an ac- tion for damages by being struck by an independent contractor who fell from a staging suspended over the sidewalk by reason of his own negligence in fastening the guy ropes, where the president of the defendant owner testified for plaintiff that the contract for painting was given to the contractor and that the owner had noth- ing to do with the work, did not employ the men engaged in it, or control the methods, the plaintiff has a right to ask on redirect examination who owned the appliances used in the work, but not to inquire whether defendant took anv pre- caution to safeguard travel on the side- walk below; sin<"e the latter question does not relate to any matter covered by the cross-examination. Weilbacher v. J W. Putts Co. (Md.) 1916C-115. 10. Ees Ipsa Loquitur. The maxim "res ipsa liquitur," meaning that, although there must be reasonable evidence of negligence, yet where the thing is shown to be under the management of defend- ant or his servants, and the accident is such as in the ordinary course of things does not happen if those in control use proper care, affords reasonable evidence, in the absence of explanation, that the accident arose from want of care, does not apply to the owner of a building who had no control over a contractor engaged in painting it, through whose negligence plaintiff was injured. Weilbacher v. J. W. Putts Co. (Md.) 1916C-115. 11. Burden o.f Proof. Plaintiff, in an action for injury from being struck by an independent contractor who fell from a painter's stage suspended from defend- ant's building over the sidewalk, by rea- son of his negligent fastening of the guy ropes, has the burden of showing that de- fendant owner was guilty of negligence; and the mere fact that the contractor fell and injured him will not justify an in- ference of defendant's negligence. Weil- bacher T. J. W. Putts Co. (Md.) 1916C- 115. 12. Jury Question Negligence. The question whether an injury might reason- ably have been anticipated by the owner of a building abutting on a public street as a probable consequence of work, such as painting and repairing, which he has done by an independent contractor is gen- erally a question of fact for the jury. Weilbacher v. J. W. Putts Co. (Md.) 1916C-115. (Annotated.) 13. Duty of Owner. The duty of the owner ol property abutting on a highway not to create a nuisance on the highway endangering the public use thereof does not make him an insurer against injury to the public or require him to provide agr.inst all possible injury, and does not require him, on employing an independent contractor to paint the building, to see that the guy ropes used by the contractor to fasten a stage are properly tied. Weil- bacher v. J. W. Putts Co. (Md.) 1916C- 115. (Annotated.) 14. Such conditions were not such that the injury might have been anticipated by the owner as the probable consequence of the work if he failed to take proper precaution to prevent it, and hence the owner was not liable; although, if the in- jury had been such that he should have 430 DIGEST. 1916C 1918B. anticipated it, he would have been liable. Weilbacher T. J. W. Putts Co. (Md.) 19160-115. (Annotated.) 15. Erection of Scaffold Injury to Pedestrian, The owner of a building con- tracted with a painter to paint it, he to furniah the appliances and employ the labor therefor, the owner not retaining any supervision of the work or any con- trol over the men, and the contractor used a stage fastened by guy lines which were not tight enough, and which allowed the stage to slip, so that he fell therefrom and struck plaintiff as she was passing on the sidewalk below. Held, that the negli- gence was the negligence of an independ- ent contractor, for which the owner was not liable. Weilbacher v. J. W. Putts Co. (Md.) 1916C-115. (Annotated.) INDEPENDENT COVENANTS. To repair and to pay rent, see Landlord and Tenant, 38. INDIANS. Regulating shipping liquor to Indian Ter- ritory, see Intoxicating Liquors, 30. 1. Lease of Lands of Minor. Under Act Cong. April 26, 1906, c. 1876, 34 Stat. 145 (Fed. St. Ann. 1909 Supp. p. 190), requir- ing that allotments of minor Indians be leased under orders of the proper court, and section 2405, Stat. Ind. Ter. section' 3509, Mansf. Dig. Ark', relating to the leasing of the lands of minors, an order of .court permitting a guardian to lease his ward's land is indispensable to a valid lease. Fisher v. McKeemie (Okla.) 1917C- 1039. 2. Proof of Age. In an action to can- cel conveyances affecting an Indian allot- ment consummated prior to the approval of Act Cong. May 27, 1908, c. 199, 35 St. at L. 313, S 3, the "enrollment records" are not conclusive evidence as to the age of the allottee. In auch case his age is a question of fact, to b proved by compe- tent testimony, as any other fact at issue in the case. Freeman v. First National Bank (Okla) 1918A-259. INDICTMENTS AND INFORMATIONS. 1. Finding and Filing, 430. 2. Formal Requisites, 430. 3. Charging Offense, 431. a. In General, 431. b. Charging Malice, 431. . Charging One Offense in Different Counts, 431. d. Allegation of Time of Offense, 431. e. Joinder of Offenses, 432. f. Joinder of Defendants, 432. 4. Amendment, 432. 5. Quashing or Setting Aside, 432. 6. Variance, 432. 7. Rcsubmission, 433. See Abduction, 1; Adultery, 3; Assault, 1; Conspiracy, 2, 3; Embezzlement, 3-5, Ertortion, 1; False Pretenses, 6, 10; Intoxicating Liquors, 84, 89: Larceny, 2, 3, 8; Libel and Slander, 166, 167; Prostitution, 18, 19; Rape. Charging abduction, see Abduction, 1. Erroneous construction held harmless error, see Appeal and Error, 228. Failure to give name to injured person, see Automobiles, 67. Concealment of assets, see Bankruptcy, 30. Accepting deposit while insolvent, see Banks and Banking, 15, 16. 13, 20. For polygamy or bigamy, see Bigamy, 2. Offering bribe, see Bribery, 2, 3. Quashing information as bar to prosecu- tion, see Former Jeopardy, 5. Validity of indictment, found after dis- charge and reassembly, see Grand Jury, 1. Irregularity in drawing grand jury, effect, see Grand Jury, 3-5. Quorum necessary to validity, see Grand Jury, 7. Defective information, relief, see Habeas Corpus, 6. For involuntary manslaughter, see Homi- cide, 5-7. For murder, see Homicide, 4, 9, 10, 13. Included offenses, see Homicide, 8, 12. Negativing exceptions, see Licenses, 26. 1. FINDING AND FILING. 1. Misconduct of Grand Jurors. It is the policy of the law to preserve inviolate the secrecy of proceedings before the grand jury, and the discussion of evidence before them, relating to an alleged crime which they are then considering, by per- sons not sworn to testify as witnesses, will vitiate an indictment returned by them whether they were actually influ- enced by such discussion or not. The law seeks to guard against even the possibility of such influence. State v. Wetzel (W. Va.) 1918A-1074. 2. Effect of Invalid Appointment. The order appointing an attorney to file an information and prosecute the cause, being void for want of jurisdiction to make it, there being no temporary vacancy in the office of state's attorney, may be attacked by motion to quash the information filed by such appointee, and this without regard to the question of prejudice from the or- der. State v. Flavin (S. Dak.) 1918A-713. 2. FORMAL REQUISITES. 3. Verification, In the United States the informations used by the prosecuting officers are the informations used by the attorney general in England, and not those exhibited by masters of the crown, and which were governed by 4 and 5 William and Mary, c. 18; and as at common law an information could be filed by the attor- ney general simply oil his oath of office,. 431 and without verification, the verification of an information by a prosecuting attor- ney in this country is unnecessary, unless required by some constitutional or statu- tory provision. Weeks v. United States (Fed.) 1917C-524. (Annotated.) 4. Indictment at Common Law Con- cluding Against Statute. Under N. Car. Revisal 1905, 3254, making an indictment sufficient in form where it expresses the charge against defendant in a plain, in- telligent, and explicit manner, an indict- ment otherwise sufficiently good as charg- ing a common-law offense is not invalid because it concludes "against the form of the statute." State v. Craft (N. Car.) 1917B-1013. 5. Formal Defects. Under Iowa Code, 5290, providing that no indictment is in- sufficient, nor can the trial, judgment, or other proceedings be affected for the omis- sion of certain formal allegations, for sur- plusage, repugnant allegations, or for other matter, formerly deemed a defect, but not tending to prejudice the substantial rights of the defendant on the merits, the verbal exactness and the technical strict- ness of old times are not now required in indictments. State v. MeAnich (Iowa) 1918A-559. 6. Failure to Verify Cure by Amend- ment. In a prosecution for libel, error of the court refusing to set aside an informa- tion in accordance with provisions of Bern. & Bal. Wash. Code, 2101, because not verified, is without prejudice, where the court permits an amended information to be filed in the exact language of the origi- nal and duly verified. State v. Haffer (Wash.) 1917E-229. 7. Necessity of Verification Informa- tion. The provision of the Fourth Consti- tutional Amendment (9 Fed. St. Ann. 249) that "no warrants shall issue but upon probable cause supported by oath or affirm- ation," which is a limitation upon the pow- ers of the federal government only, does not require an information filed by a dis- trict attorney of the United States to be verified or supported by an affidavit based on personal knowledge and showing prob- able cause, unless such information is made the basis of an application for a warrant of arrest. If the sole purpose of the in- formation is to state the accusation, a de- fendant may be charged and tried for a misdemeanor on an information not veri- fied nor so supported. Weeks v. United States (Fed.) 1917C-524. (Annotated.) 8. Disregarding Defects. While it is the declared policy of the legislature, as well as of this court, to uphold indictments and informations whenever there has been a substantial compliance therein with the statutory requirements, this relates to mat- ters of form, and not of substance. Bran- son v. State (Fla.) 1918A-312. Note. Necessity that criminal information filed by prosecuting attorney be under oath. 1917C-531. 3. CHARGING OFFENSE, a. In General. 9. Each Count Treated as a Whole. In: determining the sufficiency of an indict- 1 ment, each count must be treated as a f whole, and not merely as a part thereof. Samuels v. United States (Fed.) 1917A- 711. 10. Requisites of Charge. Where the language of an indictment for murder in the first degree is clear enough to enable the jury to easily understand it, and is not so vague as to mislead the accused and embarrass her in the preparation of her defense or expose her to substantial danger of another prosecution for the same offense, the indictment, if not otherwise defective, should not be quashed. Kobin- son v. State (Fla.) 1917D-506. 11. Requisite Degree of Certainty. Where the language of an indictment is sufficiently certain to enable an innocent person to prepare for trial, and furnishes the accused with reasonable information of what he is called upon to answer by setting forth the constituent elements of the crime charged, it cannot be maintained that the accused is not apprised of the nature and cause of the accusation against him. Eobinson v. State (Fla.) 1917D-506. b. Charging Malice. 12. Malicious Mischief. An indictment for malicious injury to property is not bad because it fails to charge that defend- ant acted "maliciously." State v. Ward (Minn.) 1916C-674. 13. Sufficiency. The words "wilfully and unlawfully" embody the idea of malicious- ness. State v. Ward (Minn.) 1916O674. c. Charging One Offense in Different Counts. 14. One Transaction in Several Forms. Where the statute declares an act unlawful when perpetrated in any one or all of several modes, the information may charge the act in separate counts, basing each count upon the different modes specified. State v. Bickford (N. Dak.) 1916D-140. d. Allegation of Time of Offense. 15. Meaning of "Then." As used in an indictment, the word "then" is an adverb of time, meaning "at that time," and the phrase "then and there" means at the time and place charged, and refers to a single transaction. State v. Klasner (N. Mex.) 1917D-824. 432 . Joinder of Offenses. 16. Indictment Sustained. Information for embezzlement examined, and held to charge one, and not several offenses. State v. Bickford (N. Dak.) 1916D-140. f. Joinder of Defendants. 17. Violation of License Statute. Where an indictment charged two jointly with practicing medicine without having ob- tained from the state board of medical ex- aminers the prescribed certificate, such in- dictment was not invalid for the joinder, since, when two are supposed to be jointly guilty of an offense, they may be indicted jointly or separately, and, in either case, one alone may be found guilty and the other acquitted. State r. McAnish (Iowa) 1918A-559. (Annotated.) Note. Right to join two or more defendants in indictment for violation of license stat- ute. 1918A-571. 4. AMENDMENT. 18. Amendment at Trial. Allowing amendment of an information at close of testimony by inserting "Dorothy Burger" in lieu of "Jennie Doe," where defendant knew at time of filing information that Jennie Doe was a fictitious name intended to describe Dorothy Burger, is without prejudice in view of Mont. Rev. Codes, 9174, allowing amendment at trial for variance in name where not prejudicial to defendant, and section 9157, providing that no judgment shall be affected by defects in form which do not prejudice rights of defendant. State v. Reed (Mont.) 1917E- 783. 19. Formal Amendment. Under Pa. Act March 31, 1860 (P. L. 433) 11, authoriz- ing the amending of indictments, it is proper to permit an indictment which, charges the killing of a named woman by a man also named, but by clerical error uses the wrong gender of the pronoun in referring to each, to be amended by trans- posing the pronouns. Commonwealth v. Boyd (Pa.) 1916D-201. 20. Prejudice to Accused. Under Iowa Acts 33d Gen. Assem. c. 227, authorizing amendments to indictments which do not prejudice the rights of accused, an indict- ment for false pretenses which charged that accused induced prosecutor to part with his money on receiving a check there- for, that accused falsely represented to prosecutor that he had sufficient funds in the bank on which the check was drawn to pay it when presented, that prosecutor believed the representations to be true, and was deceived thereby, and that payment of the check was refused when presented because accused did not have any money on deposit, is properly amended by the al- DIGEST. 1916C 1918B. legation that prosecutor indorsed accused's check, and that money thereon was pro- cured from a bank which was paid to ac- cused. State v. Foxton (lows) 1916E-727. 5. QUASHING OR SETTING ASIDE. 21. Power of Court on Own Motion. Iowa Code, 5319, provides that, if motion to set aside an indictment is made before plea is entered the indictment must be set aside, if certain objections appear. The objections enumerated do not include that the indictment charges no crime. Section 5331 provides that, if demurrer to an in- dictment be sustained for failure of the indictment to charge a crime, the defend- ant must be discharged unless the defect can be remedied in another indictment, when the cause may be resubmitted to the grand jury. It is held that, although the statutes do not authorize a court, on its own motion, before plea, to set aside an indictment for failure to charge a crime, they do not expressly prohibit it, and therefore the court may, on its own mo- tion, set aside an indictment for failure to charge a crime, and resubmit the cause to the grand jury before plea is entered. State v. Asbury (Iowa) 1918A-856. (Annotated.) 22. Grounds for Quashing. Where the information charges an offense different from that stated in the complaint on which accused had a preliminary examination, the accused may, before pleading to tho merits, move to quash the information on that ground. State v. Pay (Utah) 1917E-173. 23. Complainant Member of Grand Jury. It is not ground for quashing an indict- ment that the complainant was a member of the grand jury by which it was found but took no part in the deliberation therein. Veronneau v. Rex (Can.) 191 7E- 612. (Annotated.) 24. Prosecutor Member of Grand Jury. That the foreman of the grand jury was the prosecutor, and swore out a complaint against accused, is not ground for quash- ing an indictment against him, where the foreman retired from the jury room, and did not discuss the case with the grand jury, nor vote on passing the bill. State v. Pitt (N. Car.) 1916'-422. (Annotated.) Note. Power of court to set aside indictment on own motion and order resubmission. 191SA-860. 6. VARIANCE. 25. Surplusage. Mere matter of un- necessary particularity or immaterial de- scription contained in an indictment is not sufficient upon which to base a charge of variance between pleading and proof. Such variance must be based upon some essential element of the offense or some INDORSEE INFANTS. 433 essential part of such element. Tingue v. State (Ohio) 1916C-1156. 7. RESUBMISSION. 26. Necessity of Summoning Witnesses. Under Iowa Code, 5278, providing that, on resubmission to the same or another grand jury, it shall be unnecessary to sum- mon the witnesses again, but the minutes on the former indictment may be detached and attached to the second indictment, it is unnecessary that the witnesses, on whose testimony a defective indictment was found, be resummoned before the grand jury which brings in the second indict- ment on resubmission. State v. Asbury (Iowa) 1918A-856. 27. Resubmission to Grand Jury. Nev. Rev. Laws, 7005, subd. 6, allows grand jurors to be challenged because of a state of mind which would prevent them from, acting without prejudice to the substantial rights of the challenging party. Section 7399 provides that the court may dismiss an action after indictment, and section 7401 declares that such a dismissal shall not bar another prosecution for the same felony. Section 7044 provides that the dismissal of a charge shall not prevent the same charge from being submitted to a grand jury as often as the court may direct. Section 7101 provides that, if a demurrer to an indictment is allowed, the judgment is a bar to another prosecution, unless the court thinks that the defect may be avoided in a new indictment, and directs a resubmission to the same or an- other grand jury; and section 7024 limits evidence receivable by the grand jury to sworn witnesses, legal documentary evi- dence, and depositions. Defendant was in- dicted for obtaining money under false pretenses, a felony, and pleaded not guilty, and thereafter the indictment was dis- missed, and the matter resubmitted to the same grand jury, who reported "No bill." Subsequently the matter was again resub- mitted to the same grand jury, who re- turned an indictment for the felony. Held that, as a reconsideration of the charge or the evidence would be necessary, it could not be resubmitted to the same grand jury, which, having already formed an opinion on the merits, was subject to the challenge that their state of mind pre- vented them from acting impartially, but that the resubmission must be to another grand jury. State v. Towers (Nev.) 1916D-269. (Annotated.) Note. Eesubmission of cause to grand jury. 1916D-273. INDOBSEE. Who is, see Bills and Notes, 29. Rights of, see Bills and Notes, 56. 28 INDORSEMENT IN BLANK. Effect, see Bills and Notes, 1. INDORSEMENTS. See Bills and Notes 1, 2, 28, 30, 40; decks, 5 14. INDUCEMENT. In complaint for defamation, see Libel and Slander, 84, 85, 87, 101, 107. INDUSTRIAL INSURANCE. See Insurance, 61. INEVITABLE ACCIDENT. Confusion by, see Confusion, 1, 4. INFANTS. 1. Liability on Contracts, 434. a. In General, 434. b. Contracts for Necessaries, 434. c. Disaffirmance, 434. (1) Right to Disaffirm, 434. (2) Time of Disaffirmance, 434. (3) Effect of Disaffirmance, 435. d. Ratification, 435. 2. Actions, 435. a. Pleading, 435. b. Guardian ad Litem, 435. c. Evidence, 436. d. Actions for Injury to Minor, 436. e. Proceedings in Juvenile Courts, 436. See Adoption of Children; Guardian and Ward; Parent and Child. Care to avoid children, see Automobiles, 17, 25, 45. Liability of carrier to boy invited to ride, see Carriers of Passengers, 27, 70. Custody on divorce of parents, see Divorce 58-61. Duty toward children, overhead wires, see Electricity, 13. Injury by explosion, see Explosions and Explosives, 1. Leasing lands of minor Indians, see In- dians, 1, 2. Sales of liquor to minors, see Intoxicating Liquors, 12. Vacation of judgment affecting infant, aee Judgments, 36. Rights of minor servant under Workmen's Compensation Act, see Master and Servant, 189-192, 244. Parent's right to release minor, see Militia 1-3. Injury on dock, see Negligence, 6, 7. Injuries by attractive nuisances, see Neg- ligence, 23-28. Contributory negligence of infants, see Negligence, 48-53. Ordinary care on part of child, see Negli- gence, 51. Imputed negligence of parent, see Negli- gence, 56, 57. 434 DIGEST. 19160 1918B. Negligence of child coasting in street, see Negligence, 87. Liability of canal company for drowning of child, see Negligence, 93. Stealing ride, see Negligence, 1 Relative rights of parents, see Parent and Child, 1. Parent's contract for services of child, see Parent and Child, 2. Parent's action for loss of services, see Parent and Child, 3. Support by parent, see Parent and Child, 4. Emancipation, see Parent and Child, 5. Contracts between parent and child, see Parent and Child, 6-8. Infants as witnesses, see Witnesses, 5, 6. 1. LIABILITY ON CONTRACTS, a. In General. 1. An infant is not bound by a contract made for him or in his name by another person purporting to act for him, unless such person has been duly appointed his guardian or next friend and authorized by the court to act and bind him; but the per- son so contracting is himself bound. Cain v. Garner (Ky.) 1918B-824. (Annotated.) 2. Enforcement of Infant's Contract for Services. Where an infant's executory contract with plaintiff for personal services as a jockey was unenforceable against him, an injunction restraining him from a breach of its covenants by working for or serving any person except the plaintiff is improperly granted. Cain v. Garner (Ky.) 1918B-824. 3. A contract whereby a father under- took to bind his infant son to work for plaintiff as a stable boy and race rider for a term of three years for a fixed compen- sation to be paid to the father, which pur- ported to be the act of the infant by his parents, and was signed by him and by his father and the plaintiff, covenanting that the infant would not leave the service of plaintiff and would faithfully serve him, but under which the plaintiff was under no obligation to teach the infant or to develop him as a jockey, is a contract for his personal services, and not an in- denture of apprenticeship, under the laws of Iowa, where the contract was made. Cain v. Garner (Ky.) 1918B-824. (Annotated.) 4. When Binding. Attempted contracts by an infant are incomplete and imperfect, and do not become binding except by the act, or failure to act, of the infant after he reaches majority. Matter of Farley (N. Y.) 1916C-494. 5. Voidable or Void. Contracts by min- ors are generally not void, but voidable only, and may be ratified or disaffirmed after majority. Hobbs v. Hinton Foundry, etc. Co. (W. Va.) 1917D-410. 6. Money Loaned. No recovery can b had at law or in equity against an infant for money loaned, though the loan was procured by false representations of the infant as to his age. Leslie v. Sheill (Eng.) 1916C-992. (Annotated.) Note. Infancy as defense to action for money loaned. 1916C-999. b. Contracts for Necessaries. 7. Legal Services as Necessaries. A pe- tition which seeks a recovery against a minor for legal services rendered in re- gard to his estate upon an express contract, or upon a quantum meruit, based upon a contract made in a foreign state, which does not plead the lex loci contractus of the contract, showing such services are classed as a "necessary," does not state a cause of action. Marx v. Hefner (Okla.) 1917B-65. c. Disaffirmance. (1) Right to Disaffirm. 8. Eight to Avoid Contract Contract for Personal Services. Except for neces- saries, an infant may, at his election, avoid any executory contract made by him dur- ing infancy, including his contract for the performance of labor or personal services. Cain v. Garner (Ky.) 1918B-824. (2) Time of Disaffirmance. 9. The retention, for three months after full age, of possession of property pur- chased by an infant, his enjoyment of the beneficial use thereof, payment of part of the consideratipn therefor, and his offer for sale of part thereof do not preclude right to disaffirm or authorize the infer- ence of an intention to ratify. Hobbs v. Hinton Foundry, etc. Co. (W. Va.) 191 7D- 410. (Annotated.) 10. An infant's contract, wholly con- summated by him before or after full legal age, requires more prompt action and a less degree of confirmatory conduct than one not thus performed. Hobbs v. Hin- ton Foundry, etc. Co. (W. Va.) 1917D-410. (Annotated.) 11. While much depends upon the promptitude with which acts are per- formed by way of confirmation or disaffirm- ance after attaining full age, no time has been, or in the nature of things can be, definitely fixed as alike applicable to all cases. Hobbs v. Hinton Foundry, etc. Co. (W. Va.) 1917D-410. (Annotated.) Note. What constitutes reasonable time for in- fant to disaffirm contract after majority. 1917D-413. INFANTS. 435 (3) Effect of Disaffirmance. 12. Bight to Recover. Sections 4014 and 4015, N. Dak. Kev. Codes 1905, permit a minor to make contracts with certain exceptions, in the same manner as an adult, subject to his power of disaffirm- ance, and permit him to disaffirm contracts, except for necessaries, and statutory con- tracts, either before his majority or within one year thereafter, when the contract is made while he is under the age of 18; if made when over the age of 18, disaffirm- ance may be had by his restoring the con- sideration or paying its equivalent, with interest. Held, that a minor cannot dis- affirm his express contract when partially performed and recover in an action based on the contract. Held, further, that an infant having elected to disaffirm his con- tract when partially performed, the dis- affirmance relates back to the inception of the contract, and the contract is totally destroyed and the parties left to their legal rights and remedies the same as though there had never been any contract. Yancey v. Boyee (N. Dak.) 1916E-258. (Annotated.) 13. Plaintiff, a minor, made a contract to work for defendant, a farmer, during the season of 1912, and at the end of the season he was to be paid $30 per month for his services. He disaffirmed this contract and left defendant's* employ in August, and subsequently sued upon the contract to recover wages for the time he worked. It is held that the action cannot be main- tained, and that the question of defend- ant's rights to recoup or offset damages sustained by the breach of the contract is therefore eliminated from the case. Yan- cey v. Boyce (N. Dak.) 1916E-258. (Annotated.) 14. Discharge of Security. A disaffirm- ance after full age of a contract made while an infant, and a return, or offer to return, to the vendor of the property pur- chased, will effect the discharge of a trust lien given to secure payment of the con- sideration, and to acquit both principal and surety therefrom. Hobbs v. Hinton Foun- dry, etc. Co. (W. Va.) 1917D-410. Note. Right of infant who repudiates contract for services to recover therefor. 1916E- 261. d. Ratification. 15. Whether he acts within a reasonable time after full age, and what acts consti- tute a ratification, are ordinarily questions of fact. Hobbs v. Hinton Foundry, etc. Co. (W. Va.) 1917D-410. 16. To effectuate a ratification, however, the acts must be inconsistent with any other purpose, as where, after attaining his majority, he retains and for an unreason- able length of time enjoys the beneficial use of property purchased while a minor, or exercises such acts of ownership over it as clearly evince a purpose to ratify. Hobbs v. Hinton Foundry, etc. Co. (W. Va.) 1917D-410. 17. What Constitutes. While ratification is generally a question of intention, the purpose to ratify need not be expressly declared. Such purpose may be, and ordi- narily is, inferred from the free and vol- untary acts of the party to be charged, although he may not have in mind any definite intent or purpose to ratify. Hobbs v. Hinton Foundry, etc. Co. (W. Va.) 1917D-410. 2. ACTIONS. a. Pleading. 18. Expenditures for Nurture. A peti- tion, in an action on a contract binding plaintiff to rear and maintain defendant's child during the minority of the child, which alleges that plaintiff provided the child with a home, maintained, clothed, and educated him, nursed and cared for him in sickness, and in that way expended the amount demanded, states a cause of ac- tion as against the objection that it does not allege that the expenses incurred were necessaries. Myers v. Saltry (Ky.) 1916E- 1134. , b. Guardian Ad Litem. 19. Appointment of Guardian Ad Litem Effect. Where a guardian ad litem for an infant party to an action has been duly appointed, the infant is properly in court for all purposes. Burke v. Northern Pacific R. Co. (Wash.) 1917B-919. 20. Order of Appointment. In an action for the death of a street car passenger, it is not error for the court to admit the order appointing a guardian ad litem on the fact of appointment but not on the truth of the matter alleged in the petition. Froeming v. Stockton Electric R. Co. (Cal.) 1918B-408. 21. Allegation of Appointment. In an action for wrongful death of a street car passenger by the guardian ad litem of minors, an allegation that the guardian was appointed guardian ad litem and was authorized to commence and prosecute the action, and that he accepted the appoint- ment, though inartistic, was not bad as pleading a conclusion. Froeming v. Stock- ton Electric R. Co. (Cal.) 1918B-J08. 22. Necessity for Guardian. Neither un- der an action upon an express contract, nor upon a quantum meruit, can a recovery be had against a minor in an action at law for an attorney's fee for legal services rendered in behalf of a minor in relation to his property, without the intervention of a legal guardian, as such legal ser- 436 DIGEST. 1916C 1918B. rices cannot be classed as a "necessary," under the meaning of section 886, Okla. Rev. Laws 1910. Marx T. Hefner (Okla.) 1917B-656. c. Evidence. 23. Burden of Proof. Where an Indian allottee brings an action to cancel certain deeds and mortgages affecting his allot- ment, on the ground that he was an infant when the same were executed, he thereby assumes the burden of proof in establish- ing the fact of his infancy. Freeman r. First National Bank (Okla.) 1918A-259. d. Actions for Injury to Minor. 24. Under Wis. St. 1915, 1728a, subd. 1, forbidding the employment of children between fourteen and sixteen in any fac- tory, etc., without first obtaining the per- mit therein specified, the violation of which is made by section 1728h a misdemeanor punishable by fine and imprisonment, plain- tiff, under sixteen, who misrepresented his age to defendant's foreman when he was employed, is not thereby estopped from recovering damages for the injury in such employment, as the statute is declaratory of a public policy, and is aimed at the master and not at the servant. Stetz v. F. Mayer Boot, etc. Co. (Wis.) 1918B- 675. 25. Defenses. Under Wis. St. 1915, 1728a, subd. 1, prohibiting the employ- ment of any child between the ages of fourteen and sixteen at work in any fac- tory, etc., without first obtaining the writ- ten permit therein specified, and section 1827h, declaring that any employer includ- ing a corporation violating section 1728a, subd. 1, shall be guilty of a misdemeanor and liable to fine or imprisonment, an em- ployer of a child having no permit cannot defend on the ground that its foreman was reasonably justified under all the facts in relying on his representation that he was more than sixteen years of age; since the employer's violation of the statute consti- tutes a criminal offense, classed with gross negligence, and makes him liable in a civil action for injury resulting from such vio- lation of law. Stetz v. F. Mayer Boot, etc. Co. (Wis.) 1918B-675. e. Proceedings in Juvenile Courts. 26. Employment Forbidden. Under the Wash. Juvenile Court Law (Laws 1913, p. 520), a girl of 17 cannot sing in a cafe where intoxicants are sold, even though she gains her livelihood in that manner, and notwithstanding it is elsewhere provided in the act that children under the age of 12 shall not participate in any entertain- ment for hire. In re Lundy (Wash.) 1916E-3007. (Annotated.) 27. Procedure Approved. In the charge, apprehension, investigation and order in- volved herein, the child was not denied any of her constitutional rights. In Re Turner (Kan.) 1916E-1022. (Annotated.) 28. Verification of Complaint. A girl 15 years old found by the probate ji; sitting as the juvenile court, to be delin- quent and incorrigible, to associate know- ingly with immoral persons, to be growing up in idleness and crime, and vie' the city ordinances by remaining out until late hours at night, was ordered comr to the Industrial School for Girls at Beloit. Her parents appeared without service of process on them, but the child was taken into custody by the probation officer upon a warrant based upon a complaint verified on information and belief. A hearing fol- lowed, and the testimony abundantly sup- ported th findings of the court. Held, that such child is not entitled to a writ of habeas corpus because of failure to verify the complaint positively. In re Turner (Kan.) 1916E-1022. (Annotated.) 29. Proceedings not Criminal. By ex- press declaration of the statute in ques- tion, and by the settled decisions applica- ble to similar enactments, all such pro- ceedings, orders and judgments are deemed to have been taken and done in the ex- ercise of the state's parental power, and neither the stigma nor the penalty for crime can be held to accompany such pro- ceedings or order. In re Turner (Kan.) 1916E-1022. (Annotated.) 30. Vacating Commitment. A juvenile court has no power to vacate a commit- ment after the expiration of the term at which it is entered. Board of Children's Guardians v. Juvenile Ct. (D. C.) 191 6E- 1019. (Annotated.) 31. Purpose of Statute. The Kan. juvenile court act (Gen. St. 1909, 5099- 5113) has for its object, not the punish- ment of juvenile offenders for misconduct, criminal or otherwise, but their removal from the path of temptation and their di- rection into the paths of rectitude by pre- ventive and corrective means. In re Turner (Kan.) 1916E-1022. (Annotated.) 32. The act is an assertion of the state's power as parens patriae and its right to exercise proper parental control over those of its minor citizens who are disposed to go wrong. In re Turner (Kan.) 1916E- 1022. (Annotated.) 33. Order for Probation, Under the Utah juvenile delinquent statute providing that the juvenile court may order that the juvenile be committed to the State In- dustrial School, that the court may com- mit a juvenile to the care of a probation officer, subject to return to court for fur- ther proceedings, or may dispose of the INFECTIOUS DISEASES INITIATIVE AND REFERENDUM. 437 matter in any way deemed for the best interests of the delinquent, the act of the juvenile court in making an order of com- mitment upon the first hearing, and then conditionally suspending it by an order of probation, and, after violation of the conditions of probation, ordering that she be committed, while somewhat irregular, is not void. Stocker v. Gowans (Utan) 1916E-1025. (Annotated.) 34. Notice to Parent. Where the juve- nile court, after notice of proceedings to the mother of a delinquent, and a finding of her unfitness, which was not disputed or appealed from, made an order of com- mitment, and suspended it by an order of probation, and having control of the de- linquent and authority to modify its orders, it may on a showing of the delinquent's violation of the probation conditions order her commitment without further notice to the mother. Stoker v. Gowans (Utah) 1916E-1025. (Annotated.) 35. Review of Proceedings. Under the Utah juvenile statute, as amended and re- enacted by Laws 1913, e. 54, giving the juvenile court jurisdiction over delinquents under the age of 18, and making its judg- ments operative until the delinquent reaches the age of 21 years, and providing that all orders of the court shall be under its control until the delinquent reaches such age, the delinquent or any one in her behalf may apply for a modification of the judgment, and determination of the right of her custody with a right of ap- peal as provided in section 11, so that the rights of delinquents may be enforced without recourse to habeas corpus proceed- ings. Stoker v. Gowans (Utah) 1916E- 1025. (Annotated.) 36. Married Infants. The operation of the law governing juvenile delinquents is not suspended merely because a delinquent enters into the marriage relation. Stoker v. Gowans (Utah) 1916E-1025. (Annotated.) 37. Purpose and Construction of Law. The Wash. Juvenile Court Law (Laws 1913, p. 520), declaring that certain minor children shall be considered delinquents and wards of the state, should be given a liberal construction, so as to give effect to the beneficent purpose of the law, ex- cept in so far as it purports to restrain the liberty of infants, in which case it should be construed with all the strictness of a criminal statute. In re Lundy (Wash.) 1916E-1007. (Annotated.) 38. Married Infant. The Wash. Juve- nile Court Law (Laws 1913, p. 520), de- claring that the law shall apply to all minor children under the age of 18 who are delinquent or dependent, and that the words "dependent children" shall mean uny child under the age of 18 who habitu- ally visits any pool room, saloon, or place where intoxicating liquors are sold, etc., applies to a girl of 17 who had previously been married to a man of full age, though the marriage had been annulled. In re Lundy (Wash.) 1916E-1007. (Annotated.) Notes. Jurenile Courts. 1916E-1010. "Child" as including illegitimate child. 1918B-249. INFECTIOUS DISEASES. See Diseases. INFEINGEMENT. of trade names, see Trademarks and Trade- names, 3-7. INHERIT. Meaning, see Tenants in Common, 2. INHERITANCE^ Nature of right to take by, see Descent and Distribution, 2. INHERITANCE TAXES. See Taxation, 28, 171-179. See Names. INITIALS. INITIATIVE AND REFERENDUM. See Intoxicating Liquors, 14. 1. Scope of Power. Since by the bill of rights all political power is vested in and derived from the people, and by Miss. Const. 1890, 33, as amended, a part of the legislative power is conferred upon the legislature, the remainder being re- served to the people, and by Const. 1890, 273, the legislature has a limited power to amend the constitution (Laws Miss. 1916, c. 159) as to initiative and referen- dum gives no new power to the people and is valid. State v. Brantley (Miss.) 1917E- 723. (Annotated.) 2. Emergency Laws. The provision in section 2 of chapter 237, N. Dak. Laws 1915 (commonly known as the State Board of Eegents Act), empowering the governor to nominate and the Senate to confirm nominations for the offices of members of the state board of regents during the same session of the legislature at which the act creating the offices was enacted, does not conflict with or contravene the initia- tive and referendum amendment to sec- tion 25 of the state constitution. State T. Crawford (N. Dak.) 1917E-955. (Annotated.) 3. Grant of Power to Municipality. The Minn, constitutional requirement that the 438 charter shall provide a legislative body for the city is not violated by conferring the power of the initiative and referendum upon the electors of the city after estab- lishing such legislative body. State v. Duluth (Minn.) 1918A-683. 4. Legislative Power. The amendment of Ore. Const, art. 4, 1, declaring that the legislative authority shall be vested in a legislative assembly, that the people re- serve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same, and also reserve th power to approve or reject any acts of the legislative assembly, does not lessen the powers of the legislature in mat- ters of legislation only, but the legislature is not the exclusive agent of legislation, and such power is conferred on the people by article 11, 1, and article 4, la, re- serving to the people the initiative and referendum. Kalich v. Knapp (Ore.) 1916E-1051. 5. Form of Submission. The mere fact that separate powers of Initiative and referendum might have been submitted upon separate ballots is not determinative of the question whether submission of both projects on one ballot violated Miss. Const. 1890, 273, as to plurality of objects. State v. Brantley (Miss.) 1917E-723. (Annotated.) 6. Submission on one ballot of the three powers of initiative and referendum as applied to statutes, and initiative as ap- plied to constitutional amendments, being for the one general purpose of providing more direct control of legislation, does not violate Miss. Const. 1890, 273, providing that, if more than one amendment shall be submitted at one time, they shall be submitted in such manner and form that the people may vote for or against each amendment separately. State v. Brantley (Miss.) 1917E-723. ' (Annotated.) 7. Presumption as to Vote. In the ab- sence of correct certification of the num- ber of electors voting upon a constitu- tional amendment submitted at a general election, the court must presume that the highest number of votes cast for candi- dates for any one office represented the number of electors voting, so that a vote for the amendment to the constitution (Laws Miss. 1916, c. 159) providing for the initiative and referendum was adopted where the vote therefor was 19,118 and the highest vote cast for any office was 37.583. State v. Brantlev (Miss.) 1917E- 723. 8. Procedure. Wash. Const. Amend. 7, approved March 10, 1911 (Laws 1911, p. 136) requires the legislature to provide methods of publicity of all laws and amendments to the constitution referred to the people so that each voter of the state shall receive the publication at least DIGEST. 1916C 1918B. 50 days before the election, and that any initiative measure shall become a law if approved by a majority of the votes cast thereon. Laws 1913, p. 418, enacted pursu- ant thereto, provides by section 29 that not less than 55 days before any election on initiative measures the secretary of state shall mail each voter e copy of the pamphlet containing the measure, and by section 30 that votes thereon shall be can- vassed by the regular election officers, and that within 30 days after election the secretary of state shall canvass the vote and certify the result to the governor, who shall proclaim measures approved by a majority equal to one-third of the total vote cast to be the law of the state. In an action to enjoin the governor and state and county officers from enforcing initia- tive measure No. 3 (Laws 1915, p. 2), pro- hibiting the manufacture, keeping, sale. and disposition of intoxicating liquors, it was contended that the measure had not been lawfully submitted or voted upon. It is held in the absence of constitutional or statutory provisions for preserving any official record evidence or facts showing sufficiency of publication that, while the court judicially knew that the measure was submitted by the general election, that a majority of votes were for its adop- tion, that the governor had proclaimed the result of the canvass, and declared it a law, it could not judicially know any facts touching the sufficiency of the publi- cation and hence could not determine its sufficiency. Gottstem v. Lister (Wash.) 1917D-1008. INJTJNCTIONa Nature and Grounds of Relief, 439. a. Tn General, 439. Subjects of Belief, 439. a. Property and Bights of Property Generally, 439. b. Personal Bights, 439. c. Contracts, 439. d. Municipalities and Public Officer*, 440. (1) Restraining Passage or En- forcement of Statute or Ordinance, 440. (2) Restraining Payment of Moneys Unconstitutionally Appropriated, 441. (3) Restraining Discretionary Acts. 441. e. Civil Actions and proceedings, 441. f. Restraining Acts Constituting Nuisance as Crime, 441. g. Restraining Labor Combinations, 442. h. Restraining Criminal Prosecution. 442. i. Restraining Criminal Act, 442. Actions for Injunctions, 442. a. Bill, 442. b. Temporary Restraining Order, 442. INJUNCTIONS. 439 4. Temporary Injunction, 442. a. In General, 442. b. Modification or Suspension, 442. 5 Injunction Bond, 443. See Nuisances, 10-13. To prevent violation of building ordinance, see Buildings, 6-8, To restrain fixing rates, see Carriers, 5-11. Bight of street railway to enjoin jitneys, see Carriers of Passengers, 86. To abate cemetery as nuisance, see Ceme- teries, 1-3. Stockholder's action to prevent illegal act, see Corporations, 46. Estoppel to prevent railroad construction, see Ejectment, 2. Protection of appropriation rights, see Irrigation, 9, 10. Dissolution as res adjudicata, see Judg- ments, 62. Injunction to prevent organization, see Labor Combinations, 11. Abatement of nuisance, see Laches, 2. To prevent foreclosure sale, sea Mortgages and Deeds of Trust, 32. Agains^ officers of union, see Parties to Actions, 7-9. Suit to prevent dispossession, see Parties to Actions, 10. Enjoining chiropractor, see Physicians and Surgeons, 2. Using mails to defraud, see Post Office, 3. Prohibition against unwarranted injunc- tion, see Prohibition, 4. Prohibition against further order, see Pro- hibition, 3. To restrain order of railroad commission, see Railroads, 45-47. To stay execution of insane capital con- vict, see Sentence and Punishment, 12. To restrain use of name, emblems, insignia of fraternity, see Societies and Clubs, 3, 4. Taxpayer's suit to restrain expenditures, see States, 7. As remedy for erroneous assessment or taxation, see Taxation, 90-100. To restrain special assessment, see Taxa- tion, 144. Taxpayer's action to restrain city from engaging in business, see Taxation, 201. To prevent use of tradename, see Trade- marks and Tradenames, 1, 3, 7. To restrain diversion of subterranean waters, see Waters and Watercourses, 17-23. To restrain damage by floating logs, see Waters and Watercourses, 25. 1. NATUEE AND GBOUNDS OF BE- LIEF. a. In General. 1. Apprehension of Injury. An injunc- tion should not be issued upon the mere apprehension of the complainant that some illegal act would be done. O'Bear v. Sar- tain (Ala.) 1918B-593. 2. Statute Regulating Procedure. Cal. Code Civ. Proc. 525-533, defining the power of a superior court as to granting, refusing, modifying, and dissolving tem- porary injunctions, are not invalid as en- croaching upon the original jurisdiction of the court in equity cases granted by the constitution of 1879. United Bailroads v. Superior Court (Cal.) 1916E-199. 2.' SUBJECTS OF BELIEF. a. Property and Bights of Property Gen- erally. 3. Unlawful Carriage of Passengers by Jitney. Where the plaintiff street rail- way company has a franchise from the city, its franchise is a property right, under which it can restrain any person from becoming a common carrier of pas- sengers in competition with it without legislative or municipal authority, and for tnat purpose its franchise is exclusive against all persons upon which similar rights have not been conferred. Memphis St. E. Co. v. Bapid Transit Co. (Tenn.) 1917C-1045. (Annotated.) 4. Against Trespass. The grantee of the successful plaintiff in ejectment, in posses- sion thereunder, is entitled to an injunc- tion against one committing trespass upon the realty whose sole claim of title is under the unsuccessful defendant in eject- ment. Williams v. Bichardson (Fla.) 1916D-245. 5. In a suit to enjoin the closing of a right of way acquired by prescription. The petition sufficiently set forth a cause of action, and it was error to dismiss it on general demurrer. Carlton v. Sea- board Air-Line By. (Ga.) 1917A-497. 6. Against Creation of Cloud on Title. Equity will enjoin execution of a deed which it would cancel if executed. May- nard v. Henderson (Ark.) 1917A-1157. 7. Interference with Easement. Upon proper application, a court of equity will enjoin interference with an owner's ease- ment when the injury complained of is ir- reparable, the intermeddling continuous, or the remedy at law for damages inadequate. Nicholas v. Title, etc. Co. (Ore.) 1917A- 1149. b. Personal Bights. 8. Against Publication of False Political Matter. The publication of political mat- ter in a newspaper cannot be enjoined merely because it is false or misleading, such relief being forbidden by the follow- ing constitutional provisions: "Every per- son may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for 440 libel, both ciril and criminal, the truth when published with good motives, and for justifiable ends, shall be a sufficient defonse." Neb. Const, art. 1, 5. Howell v. Bee Publishing Co. (Neb.) 1917D-655. (Annotated.) 9. Against Publication of Libel. Where no breach of trust or of a contract ap- pears, a bill in equity will not lie to en- join the publication of libelous statements injurious to plaintiff; his remedy being an action at law for damages. Finnish Temperance Soc. v. Biavaja Pub. Co. (Mass.) 1916D-1087. (Annotated.) Note. Injunction against publication of or to compel retraction of libel. 19161>-1088. c. Contracts. 10. Breach of Contract. Equity will re- strain a breach of an express covenant where injury arising from a breach cannot be adequately compensated. Marvel v. Jonah (N. J.) 1916C-185. 11. Covenant Against Engaging in Com- peting Business. A stipulation, in a firm agreement between plaintiff and defend- ant for the general practice of medicine at Atlantic City, that defendant will not practice medicine in the city for three years after the termination of the firm, is enforceable in equity at the suit of plaintiff who had built up so large a prac- tice in the city as to be unable to take care of it without assistance, as against the objection that equitable relief will deprive defendant of the privilege of prac- ticing in the only field of his acquain- tance; the practice of the firm not being confined to Atlantic City, but embracing adjacent boroughs. Marvel v. Jonah (N. J.) 1916C-185. (Annotated.) 12. Contract of Employment. Contracts for the services of artists of special merit are personal and peculiar, and, when they contain negative covenants which are es- sential parts of the agreement that the artist will not perform elsewhere, and the damages in case of violation are incapable of definite measurement, they are such contracts as ought to be specifically en- forced, and a violation of the covenants will be restrained by injunction. Cain v. Garner (Ky.) 1918B-824. Note. Injunction as remedy for breach of ex- press covenant not to engage in same busi- ness as covenantee. 1916C-187. d. Municipalities and Public Officers. (1) Restraining Passage or Enforcement of Statute or Ordinance. 13. Enjoining Criminal Prosecution. While equity will not ordinarily enjoin a DIGEST. 1916C 1918B. criminal prosecution (Georgia Railway & Electric Co. v. Oakland City, 129 Ga. 576, 59 8. E. 296) yet, where repeated prosecu- tions are threatened under a void munici- pal ordinance, and the effect of such prose- cutions would tend to injure or destroy the property of the person prosecuted or de- prive him of the legitimate enjoyment of his property, equity will entertain a suit to inquire into the validity of the or- dinance, and enjoin its enforcement. Carey v. Atlanta (Ga.) 1916E-1151. 14. Preventing Criminal Prosecution. Where prosecution under a void regulation relating to a misdemeanor is threatened, and the attempted enforcement of the reg- ulation will deprive plaintiff of a valuable property right, he may sue to enjoin the prosecution. Ideal Tea Co. v. Salem (Ore.) 1917D-684. 15. Against Enforcement of Penal Stat- ute, The owner of a teachers' agency who was threatened with prosecution under the Wash. Employment Agency Law, and whose business would be greatly injured or destroyed in case of arrest and prosecu- tion, could, where it appeared that he misrLt come within the purview of the law, obtain an injunction against prosecution, and in that way secure a construction of the act and test its constitutionality, not being bound to wait until criminal prose- cution, under the law prohibiting the charging of fees for obtaining employment had ruined his business. Huntworth v. Tanner (Wash.) 1917D-676. 16. Against Criminal Prosecution. While as a general rule a court of equity (or one exercising equitable jurisdiction) will not enjoin a proceeding before a recorder of a city, instituted for the purpose of pun- ishing the violation of a penal ordinance, yet in certain cases a court having equi- table jurisdiction may intervene to pro- tect property or property rights from irre- parable damage by wrongful conduct of municipal officers, although repeated prose- cutions in the recorder's court, or threats thereof, may be used as a means of con- summating the wrong. Cutsinger v. At- lanta (Ga.) 1916C-280. 17. Restraining Prosecution Under In- valid Statute. Equity has jurisdiction to restrain the criminal prosecution of an em- ployer under the Arizona anti-alien labor law of December 14, 1914, at the instance of an alien employee who alleges ttiat the act violates the federal constitution and that its enforcement will result in his im- mediate discharge from employment, al- though such employment may be one at will, rather than for a term. Truax v. Raich (U. S.) 1917B-283. 18. Federal Injunction Against Enforce- ment of State Penal Statute. The threat- ened enforcement by state officers through civil or criminal proceedings, of a state INJUNCTIONS. 441 statute which is attacked as repugnant to the federal constitution, may be enjoined by a federal court, where the statute, if exerted against complainants and their property, will produce irreparable injury. East v. Van Deman, etc. Co. (U. S.) 1917B-455. 19. Against Prosecution for Violating Liquor Law. In an action to enjoin a prosecution for carrying on business with- out a license in violation of Ore. Laws 1913, p. 143, providing that no person shall sell or receive or solicit consignments, or farm, dairy, orchard, or garden products for sale upon commission, where the com- plaint does not deny that plaintiff is en- gaged in such business, it is insufficient to authorize equitable interference. Sherox v. Aitchison (Ore.) 1916C-1151. (Annotated.) 20. Irreparable Injury the Criterion. Where an attempted enforcement of an in- valid ordinance or statute would do irre- parable injury to property rights, a court of equity may restrain the maintenance of the criminal actions. Sherod v. Aitchi- son (Ore.) 1916C-1151. (Annotated.) 21. Mere Invalidity Insufficient. The mere invalidity of a statute or ordinance is not sufficient to authorize an injunction against a prosecution thereunder, since such invalidity may be interposed as a complete defense to the prosecution. Sherod v. Aitchison (Ore.) 1916C-1151. (Annotated.) Note. Power of equity to enjoin criminal prosecution. 1916C-1153. (2) Eestraining Payment of Moneys Un- constitutionally Appropriated. 22. Enjoining Purchase of Property. The averment of the unverified bill to en- join a county from buying land that too much is being paid for it. and that com- plainant believes and alleges that the county is being burdened with $50,000 more than the land is worth, this going as a profit to promoters, is insufficient as an attack on the purchase, authorized by the legislature at the price attacked. Heiskell v. Knox County (Tenn.) 1916E- 1281. (3) Restraining "Discretionary Acts. 23. Equity has no power to control the discretion of county commissioners In the conduct of the county's business. O'Eear v. Sartain (Ala.) 1918B-593. . Civil Actions and Proceedings. 24. Restraining Suit in Another State. A court may restrain a citizen of the state of the forum from prosecuting a suit against a citizen of the same state in a foreign state. American Express Co. v. Fox (Tenn.) 1918B-1148. (Annotated.) 25. Defendant, a resident of Tennessee, will not be enjoined from suing a com- plainant in the state of Mississippi on a cause of action arising in Tennessee, be- cause it would be to complainant's con- venience to be sued in Tennessee, or be- cause the rules of law in Mississippi are slightly different, for probably the laws of Tennessee would be applied, and such an injunction should be granted only in a very special case, and not one merely where the practice in two states differed. American Express Co. T. Fox (Tenn.) 1918B-1148. (Annotated.) 26. A court will not, at the suit of a nonresident corporation which might re- move a suit brought by a resident of the state to the federal courts, enjoin a resi- dent from guing in a foreign state, for such corporation could not be compelled to submit to the jurisdiction of the local courts. American Express Co. v. Fox (Tenn.) 1918B-1148. (Annotated.) Note. Power of court to enjoin proceedings in another state or country. 1918B-1150. f. Eestraining Acts Constituting Nui- sance as Crime. 27. Protection of Water Eights. Rev. St. Colo. 1908, c. 72, providing a method of establishing priorities to the use and distribution of water, and that any com- missioner failing to perform his statutory duty, and any person violating the com- missioner's order, shall be guilty of crim- inal offenses, dos not afford a complete and adequate remedv for injury from the taking of water by a junior appropriator, when it is needed and demanded by a senior appropriator within the same irri- gation division, s as to preclude an in- junction. Rogers v. Nevada Caaal Co. (Colo.) 1917C-669. 28. Public Nuisance. The rule that equity cannot punish crime if the punish- ment is the only object of the proceeding does not prevent it from exercising its jurisdiction to enjoin a public nuisance against a disorderly house, which was a public nuisance at common law, particu- larly where criminal prosecutions have proved effective. People v. Clark (111.) 1916D-785. (Annotated.) 29. Private Nuisance. The keeping of a bawdyhouse being a crime, and being a private rather than a public nuisance it cannot be enjoined in a suit by the state. Laymaster v. Goodin (Mo.) 1916C-452. (Annotated.) Not*. Eight of state to enjoin private nuisance which is also crime. 1916C-455. 442 DIGEST. 1916C 1918B. g. Restraining IabOT Combinations. 80. Injunction Against Unionizing Em- ployees. Where an employer makes non- membership in a labor union a condition of employment, with the free assent of its employees, the fact that the employment is at will and terminable by either party at any time does not affect the right of the employer to an injunction against the efforts of third parties to organize the em- ployees. Hitchman Coal, etc. Co. v. Mit- chell (U. S.) 1918B^461. (Annotated.) 31. An employer, operating a nonunion mine and having agreements with his em- ployees that they would not become mem- bers of a union, is. as much entitled to an injunction to prevent the unionizing of the miners as the unionizing of the mine, assuming that there is a practical distinc- tion between the two; the first being but a step in the process of unionizing the mine. Hitchman Coal, etc. Co. v. Mitchell (U. S.) 1918B-461. (Annotated.) h. Restraining Criminal Prosecution. 32. Kirby's Ark. Dig. 2454, providing for an inquest by sheriff's jury into the insanity of persons sentenced to be exe- cuted, affords such person a remedy in case he becomes insane after trial. Hence the chancery court cannot, on the ground that such person has no other remedy, jus- tify an order enjoining his execution. Ferguson v. Martineau (Ark.) 1916E-421. (Annotated.) 33. Courts of equity have no jurisdic- tion to interfere by injunction with crimi- nal proceedings; their jurisdiction to be confined solely to civil and property rights. Ferguson v. Martineau (Ark.) 1916E-421. 34. The threatened prosecution of a criminal action will not usually be en- joined, under Ore. I*. O. L. 389, author- izing suits in equity where there is not a plain, adequate, and complete remedy at law. Sherod v. Aitchison (Ore.) 1916C- 1151. (Annotated.) i. Restraining Criminal Act. 35. Enjoining Criminal Act. Although the acts of a water officer in permitting water to be taken by a junior appropri- ator, and the taking thereof by the latter, are crimes subject to prosecution, they constitute a special injury to the senior appropriator, and may be enjoined by a court of equity. Rogers v. Nevada Canal Co. (Colo.) 1917C-669. Note. Right of municipality to enjoin viola- tion of municipal ordinance. 1916C-963. 3. ACTIONS FOR INJUNCTIONS, a. Bill. 36. Petition Held Sufficient. The allega- tions of the petition for an injunction in this case were sufficient to withstand a general demurrer, which admits the facts alleged; and it was error to sustain the demurrer and dismiss the petition. Cut- singer v. Atlanta (Ga.) 1916C-280. b. Temporary Restraining Order. v 37. On January 27th an injunction suit -SlNB instituted by the county attorney praying for a temporary restraining order enjoining defendants from permitting moving picture shows being opened on Sunday, and that the cause be set for hearing, and that upon final hearing the temporary restraining order be made per- manent, and the petition was presented on the same day to the judge of the district court,- who indorsed thereon the following fiat: "Petition granted and clerk of dis- trict court directed to issue and direct to each and every defendant ... an order enjoining, restraining, and prohibiting them and each of them from opening or permitting to be opened their theaters and moving picture shows on Sunday . . . un- til further orders of this court; this cause set down for hearing Saturday, February 3d." Held, that the order was only a temporary restraining order and expired on the date of the hearing, unless ex- tended, and hence a judgment of contempt for its alleged violation after such date was void. Ex parte Zuecaro (Tex.) 1917B- 121. (Annotated.) 4. TEMPORARY INJUNCTION, a. In General. 38. Distinction Between Restraining Order and Temporary Injunction. Under the Texas practice, injunctions are classi- fied: First, as a "restraining order," which is an interlocutory order made upon appli- cation for an injunction as a part of a motion for the preliminary injunction, by which a party is restrained pending the hearing of the motion; second, an order which operates, unless dissolved by an in- terlocutory order, until the final hearing; and, third, a perpetual injunction, which can only be ordered upon final decree. Ex parte Zuecaro (Tex.) 1917B-121. (Annotated.) 39. Temporary Injunction Properly Denied. The court erred in granting a temporary injunction. Jacob's Pharmacy Co. v. Luckie (Ga.) 1917A-1105. Note. Distinction between temporary restrain- ing order and temporary injunction. 1917B-123. b. Modification or Suspension. 40. Power to Modify. In view of Cal. Civ. Code, 3421. providing that provi- sional injunctions are regulated by the INNKEEPERS. 443. Code of Civil Procedure, and Code Civ. Proc. 525-533, providing a complete sys- tem of law and procedure as to granting, refusing, modifying, and dissolving tem- porary injunctions, and of sections 939, and 9G3, allowing an appeal from an order granting or dissolving an injunction, a superior court, which, upon notice and hearing, has granted a temporary injunc- tion absolutely restraining a defendant from the commission of certain acts dur- ing the pendency of the action, without reserving any right of revocation or modi- fication, has no power subsequently to make an order staying the operation of the injunction until final determination of the cause or until a contemplated appeal has been heard. United Eailroads v. Su- perior Court (CaL) 1916E-199. (Annotated.) Note. Modification or suspension of prelimi- nary injunction before trial. 1916B-205. 5. INJUNCTION BOND. 41. Where a telegraph company was en- joined, during the year 1914, from carry- ing on intrastate business within the state because it had not paid the city license fees, and the city had given the statutory bond to secure the injunction, the case will not, after the expiration of the year, be deemed moot, so as to preclude a re- view of the question by the court, for a dismissal of the appeal would result in leaving the question of whether the issu- ance of the injunction was wrongful un- determined, and would not give the tele- graph company any rights under the bond; this being true, even though it might be maintained that the city, as an arm of the state, was not required to give bond. Postal Telegraph-Cable Co. T. Montgomery (Ala.) 1918B-554. (Annotated.) INJURIES ARISING OUT OF AND IN COURSE OF EMPLOYMENT. Under Workmen's Compensation Act, see Master and Servant, 206-230. INJURIES TO PROPERTY. See Injunctions. Measure of damages, see Damages, 15. INJURY. Meaning? within Workmen's Compensation Act, see Master and Servant, 196. INNKEEPERS. 1. Definitions and Distinctions, 443. 2. Statutory Regulation, 443. 3. Liability for Effects of Guest, 444. 4. Liability for Personal Injuries to Guest, 444. 5. Lien of Innkeeper, 444. See Licenses, 28-30. Injury to guest by impure food, see Food, 25-26. Duty to provide hotel with fire escapes, see Landlord and Tenant, 13. 1. DEFINITIONS AND DISTINCTIONS. 1. When Relation Commences Delivery Of Baggage. The relation of innkeeper and guest involves the obligation to fur- nish accommodation on the one hand, and the obligation to pay on the other. Gen- erally a person becomes a guest when he registers and engages accommodation. He may, however, be a guest before doing either. Handing baggage to a porter or bell boy of the inn may commence the relations, if the parties contemplate that accommodation be engaged. But one does not become a guest by merely handing his satchel to such employee when he does not intend to engage such accommodation. Parker v. Dixon (Minn.) 1918A-540. (Annotated.) 2. Restaurants Distinguished from Inns. A restaurant keeper differs from an inn- keeper in that he furnishes only food, or food and drink, and not lodging or shelter, though, in so far as the character of the service performed by a restaurant keeper and by an innkeeper to their respective patrons is concerned, it is the same. Mer- ril T. Hodson (Conn.) 1916D-917. Note. Intrusting baggage to innkeeper or hia employee as establishing relation of inn- keeper and guest. 1918A-541. 2. STATUTORY REGULATION. 3. The act of 1883 (Laws 1883, e. 47) known as the "Nebraska Hotel Act" im- posing on innkeepers the duty to take certain precautions against fire does not contravene the provisions of the Four- teenth Amendment to the constitution of the United States, or deprive an innkeeper of life, liberty or property without due process of law, and is a valid enactment. Strahl v. Miller (Neb.) 1917A-141. (Annotated.) 4. This act confers upon a guest at a hotel the right to maintain a cause of ac- tion against the proprietor for injuries re- ceived through the negligence of the pro- prietor or his servants. Strahl v. Miller (Neb.) 1917A-141. (Annotated.) 5. The fact that the statute or ordinance in question does not, in terms, impose a civil liability for its violation does not affect such evidence of its violation as may go to show negligence. Hoopes v. Creighton (Neb,) 1917E-847. (Annotated.) 444 3. LIABILITY FOR GUEST. 6. Liability for Loss of Property of Guest. An innkeeper is answerable for the loss in his inn of the goods of his guest unless the loss arises from the negli- gence of the guest or the act of God or of a public enemy. Parker v. Dixon (Minn.) 1918A-540. 7. This rule of liability arises only in favor of guests. It does not arise in favor of one who comes to the inn intending only to avail himself without expense of the facilities and comforts which the inn- keeper furnishes free to the public at large. Parker v. Dixon (Minn.) 1918A- 540. 4. LIABILITY FOR PERSONAL IN- JURIES TO GUEST. 8. Liability for Injury to Guest by Fire. A hotel owner may not omit to do the things that are reasonably necessary for the safety and protection of the guests of the house, and if he disregards the provi- sions of the law concerning the establish- ment of fire escapes upon the building, and such other devices as the law provides for, he will be held liable for the damages sus- tained because of the death of any guest which may be brought about by his negli- gence. Hoopes v. Creighton (Neb.) 1917E- 847. (Annotated.) 9. A requested instruction of the de- fendant, to the effect that the plaintiff's decedent assumed the risk of injury be- cause he knew the dangerous condition of the building as regards injury by fire, was properly refused. Hoopes v. Creighton (Neb.) 1917E-847. (Annotated.) 10. Injury to Guest in Fire. An inn- keeper is not an insurer of the safety of his ruest; but he is bound to exercise rea- sonable care for the comfort and safety of the guest while in his hotel, and if the guest is injured in attempting to escape from a fire through the negligence of the innkeeper or his employees the innkeeper is liable therefor. Strahl v. Miller (Neb.) 1917A-141. (Annotated.) Note. Liability of innkeeper to guest for in- juries sustained by latter in fire. 1917A- 143. 5. LIEN OF INNKEEPER, 11. Owner of Apartment House. Colo. Rev. St. 1908, 4013, providing that the keeper of any hotel, tavern, or boarding house, or any person renting furnished or unfurnished rooms, shall have a lien upon the baggage and furniture of his guests, boarders, and tenants for lodging, board- ing or renting, does not give the owner of an apartment house consisting of suites rented furnished for housekeeping pur- poses for homes a lien upon the tenant's DIGEST. 1916C 1918B. EFFECTS OF goods for rent, as the words "any person who rents furnished and unfurnished rooms" are not intended to include all classes of rooms for whatever purpose rented, but are limited to persons renting rooms for lodging purposes, etc., and do not include furnished houses, as the apart- ment is to all intents and purposes the same as an individual dwelling house. Scanlan r. La Coste (Colo.) 1917A-254. (Annotated.) INNOCENT BYSTANDER. Wounded by another's self-defense, see Negligence, 102, 116. INNOCENT PURCHASER, See Bona Fide Purchaser. Of altered note, see Alteration of Instru- ments, 7. INNUENDO. In complaint for defamation, see Libel and Slander, 82, 83, 90, 92, 101, 107. INQUEST. On sanity of convict condemned to death, see Sentence and Punishment, 7. INQUISITION OF INSANITY. Not applicable to convicts, see Insanity, 16. INSANE DELUSION. Defined, see Wills, 59, 60 63. See Wills, 56, 59, 60-64, 79, 80, 82. INSANITY. 1. Evidence of Insanity, 444. 2. Inquisition of Insanity, 445. 3. Maintenance of Insane Person and His Estate, 446. 4. Criminal Responsibility, 446. Arrest of lunatic without warrant, see Arrest, 6. Duty of carrier toward insane passenger, see Carriers of Passengers, 31. Test of capacity to convey, see Deeds, 26. Attack on guardian's sale after restora- tion, see Guardian and Ward, 11. Instructions, see Homicide, 64. Duty toward patient who becomes insane, see Hospitals and Asylums, 3. Suicide while insane, see Life Insuranc, 57-59. As accident within Workmen's Compensa- tion Act, see Master and Servant, 197. Of convict condemned to death, sen Sen- tence and Punishment, 7, 12. Impeachment of insane witness, see Wit- nesses, 105. 1. EVIDENCE OF INSANITY. 1. Where defendant committed murder to avoid apprehension and conviction for INSANITY. 445 an attempted robbery, and relies upon in- sanity as a defense, the test of mental re- sponsibility is not whether he was a eon- firmed thief and had not the will power to resist theft, but whether he had the mental capacity to distinguish between right and wrong with respect to the mur- der. State r. Mewhinney (Utah) 1916C- 537. 2. Where the evidence to establish de- fendant's insanity can be considered only to show general insanity, the test of re- sponsibility is the capacity of the defend- ant to distinguish between right and wrong at the time of and with respect to the criminal act. State v. Mewhinney (Utah) 1916C-537. 3. The mere fact that a maternal aunt of accused, relying on insanity, is insane, and confined in an insane asylum, may not be shown in support of the defense of in- sanity, unaccompanied by any evidence of the nature, extent, duration, or symp- toms of her mental disorder. James T. State (Ala.) 1918B-119. (Annotated.) 4. Opinions of witnesses acquainted with the relatives of accused, relying on insan- ity, that insanity runs in the family, are incompetent, because mere conclusions. James v. State (Ala.) 1918B-119. (Annotated.) 5. That the mother of accused and a maternal aunt were sent to the asylum may not be shown in defense of the insan- ity of accused, in the absence of anything to show the sort of asylum they were sent to, or why they were sent, and what their mental condition was at the time. James y. State (Ala.) 1918B-119. (Annotated.) 6. Insanity of Relatives. Evidence nf the insanity of one or more members of accused's family, immediate or collateral, is not admissible, except in connection with other evidence directly showing that accused is insane. James v. State (Ala.) 1918B-119. (Annotated.) 7. Inheritable Nature of Insanity. The court judicially knows as an established truth of medical science that many forms of insanity are inheritable, and may recur in various individuals collaterally de- scended from a common source. James v. State (Ala.) 1918B-119. 8. Burden of Proof as to Insanity. A charge requiring the acquittal of accused, if the evidence leaves in the mind of the jury any reasonable doubt of his sanity, was properly refused. James v. State (Ala.) 1918B'-119. 9. Insanity as Defense. There is a legal presumption of sanity. State v. Mewhin- ney (Utah) 1916C-537. 10. A charge that if the jury believe that, at the time accused shot decedent, Ms conduct and acts were such that he was so mentally unbalanced that he did not know the consequences, that fact should be considered in determining the verdict, is properly refused, as misleading, and as singling out evidence for the con- sideration of the jury without stating any proposition of law. James v. State (Ala.) 1918B-119. 11. Condition on Prior Occasion. That accused, relying on insanity produced by intoxication, was on another occasion, when drunk, in such condition that no one could do anything with him, is properly excluded as irrelevant. James v. State (Ala.) 1918B-119. 12. Hearsay. Testimony by those hav- ing personal knowledge as to the transac- tions between deceased and accused, who claimed to have killed as the result of in- same delusions, is admissible, but hearsay as to the transactions is not. Ryan v. People (Colo.) 1917C-605. 13. Conclusions of Witness. That the mind of accused, relying on insanity, had not been very strong since he had a fever a year before the offense, was properly ex- cluded, as the mere opinion of the father of accused, seeking to so testify. James v. State (Ala.) 1918B-119. 14. A nonexpert witness, testifying to the insanity of accused, must state what acts of accused he has seen, and then give his opinion as to his sanity, but cannot testify that he has seen acts of insanity. James v. State (Ala.) 1918B-119. 15. Suicide as Evidence. Sanity is pre- sumed, and the taking of one's own life does not, in itself, establish insanity. Ledy v. National Council (Minn.) 1916E- 486. ' (Annotated.) Notes. Suicide as evidence of insanity. 1916E- 488. Admissibility, on issue of sanity, of evidence of insanity of ancestors or kin- dred. 1918B-124. 2. INQUISITION OF INSANITY. 16. Present Insanity Time When Issue may be Tried. Kirby's Ark. Dig. 4003, providing for insanity inquests by the pro- bate court, was enacted solely for the pur- pose of protecting the civil and property rights of insane persons, and has no refer- ence to determining the question of the sanity of one who has been convicted ami sentenced to be executed for a criminal offense. Ferguson v. Martineau (Ark.) 1916E-421. (Annotated.) Note. Time or stage in criminal proceedings when question of insanity of defendant may be determined by inquisition or other- wise. 1916E-424. 446 DIGEST. 1916C 1918B. 3. MAINTENANCE OF INSANE PER- SON AND HIS ESTATE. 17. Keeping Up Life Insurance. In an action against the estate of an insane per- Bon to recover the cost of his maintenance, the court has power to order the invest- ment of a part of the estate and the use of the income to pay the premiums on existing policies of insurance on the life of the insane person. Depue v. District of Columbia (D. C.) 1917E-414. 18. Liability of Estate for Maintenance. Under the Act of Congress of Feb. 23, 1905 (3 Fed. St. Ann. (2d ed.) 613), if a person committed to the government hos- pital for the insane as a charge on the District of Columbia has or comes into the possession of an estate, the District is en- titled to recover therefrom the cost of his maintenance. Depue v. District of Colum- bia (D. C.) 1917E-414. (Annotated.) 4. CRIMINAL, RESPONSIBILITY. 19. Instructions as to Insanity. On a trial for murder, defended on the ground of insanity, where the evidence can be considered only to show general insanity, and the court properly defines the test thereof, its failure to enlarge upon differ- ent phases of insanity and mental weak- ness is not prejudicial to defendant. State v. Mewhinney (Utah) 1916C-537. 20. Test of Irresponsibility Knowledge of Consequences. That accused was, at the time of the killing of decedent, so mentally unbalanced as not to know the consequences of his act, is not per se a palliation of murder, under a plea of not guilty, nor an excuse therefor, under a plea of insanity. James v. State (Ala.) 1918B-119. 21. Drunkenness. Insane conduct or mania resulting from present intoxication of accused, charged with murder, does not excuse the crime; and where there was no evidence to show any fixed insanity, re- sulting from drunken habits or otherwise, abnormal conduct and conditions of ac- cused, associated with present drunken- ness, may not be shown. James v. State (Ala.) 1918B-119. 22. A witness for accused, relying on the defense of insanity produced by in- toxication, may not testify that while ac- cused is drinking his reason is dethroned, or that he then displays acts of insanity, or is not responsible for what he does. James v. State (Ala.) 191SB-119. 23. Irresistible Impulse. A person who , is so diseased in mind as to be incapable of distinguishing right and wrong, or be- ing able to so distinguish, has suffered such an impairment as to destroy the will power, is not accountable, and sueh insan- ity may be manifested by insane delusions. Ryan v. People (Colo.) 1917C-605. (Annotated.) '24. Insane Delusions. "Insanity" is a disease of the mind, while a "delusion," which is a symptom of the disease, is a false conception and a persistent belief, unconquerable by reason, of what has no existence in fact; hence an instruction that an insane delusion to alone suffice to establisn the defense of insanity must be of such a. character that, if things were as the person possessed of such delusion imagined them to be, it would justify the act springing from the delusion is, in a prosecution for homicide, where the de- fense was insanity and accused claimed to have been laboring under an insane delu- sion that he believed deceased, while act- ing as his attorney, had betrayed him, financially ruined him, and denounced him to the world as a leper and a drunkard, prejudicially erroneous, for it takes from the jury the question of insanity evi- denced by delusions, and requires them to find that the delusion was sufficient, if true, to have justified the killing. Ryan y. People (Colo.) 1917C-605. Note. Irresistible or uncontrollable impulse as defense to criminal charge. 1917C-609. INSOLVENCY. See Assignment for Benefit of Creditors; Bankruptcy; Banks and Banking, 13- 22, 17, 67-74; Receivers; Creditors' Bills. Accepting deposits while insolvent, see Banks and Banking, 13-22. Set-off of deposit against debt, see Banks and Banking, 48-53. Effect, see Building and Loan Associations, 5. Of fellow subscriber as release of subscrip- tion, see Corporations, 66. Of corporations, see Corporations, 144-149. Insurance premiums trust for creditors, see Receivers, 11. INSPECTION. Right of, see Carriers of Goods, 1. Duty to inspect cars, see Carriers of Pas- sengers, 20. Right to inspect books, see Corporations, 104-114. State inspection as affecting interstate commerce, see Interstate Commerce. 6, 7. Of meat, city regulation, see Municipal Corporations, 89, 90. Of grain, see Weights and Measures, 1-3. INSPECTION LAWS. Police power, see Constitutional Law, 36. INSTRUCTIONS. 447 INSTRUCTIONS. 1. In General, 447. 2. Construction, 448. 3. Form, 448. 4. Requests to Charge, 448. 5. Repetition, 449. 6. Ignoring Evidence, 450. 7. Cautionary Instructions, 450. 8. Weight and Sufficiency of Evidence. 450. 9. Instructions Unsupported by Evidence, 451. 10. Instructions Assuming Fact in Issue, 451. 11. Advising Jury to Disregard Argument of Counsel, 451. 12. Argumentative Instructions, 451. 13. Instructions as to Abandoned Issue, 451. 14 Presumption, 452. See Assault, 9; Automobiles, 47-51; Civil Damage Acts, 3. See Conversion, 8; Damages, 23-25; Death by Wrongful Act, 33-43; Extortion, 3; False Imprisonment, 7; False Pre- tenses, 19; Fires, 5; Homicide, 60-72; Insanity, 10, 19-24; Malicious Prose- cution, 27-28; Negligence, 112-121; Prostitution, 7-9, 11, 13; Eape, 12, 15, 17; Robbery, 4; Trespass, 9. Satisfaction beyond reasonable doubt, see Accident Insurance, 27. Rulings brought up on appeal, see Appeal and Error, 94. Waiver of error by requesting charge, see Appeal and Error, 184. Presumptions on appeal, see Appeal and Error, 197-198. Charge on punitive damages harmless, see Appeal and Error, 215. Cure of error in admitting evidence, see Appeal and Error, 242-248. Harmless and prejudicial error, see Ap- peal and Error, 282-317. Record must show error, see Appeal and Error, 349, 350. Necessity of exception to error, see Ap- peal and Error, 377-383. Sufficiency of objections for review, see Appeal and Error, 404-419. In action against attorney for negligence, SOP Attorneys, 71. In actions to enforce negotiable paper, see Bills and Notes, 88, 89. In breach of promise suit, see Breach of Promise of Marriage, 14. In actions against carriers, see Carriers of Goods, 38-40. In actions for injury to passengers, see Carriers of Passengers, 81-83. In criminal cases, see Criminal Law, 75- 97. In shock damage cases, see Electricity, 24. In condemnation proceedings, see Emi- nent Domain, 89-91. As to conveyance by insolvent debtor, see Fraudulent Sales and Conveyances, 13. In prosecutions under liquor laws, see Intoxicating Liquors, 106. Duty of jury to follow instructions, see Jury, 43. As to privilege, see Libel and Slander, 58. In proceedings under Employers' Liability Act, see Master and Servant, 90-92. In proceedings under Workmen's Compen- sation Act, see Master and Servant, 356-361. In action against master for negligence of servant, see Master and Servant, 369. In prosecution under Sherman Act, see Monopolies, 24-26. Burden of proof in negligence action, see Negligence, 115. Care requisite in self-defense, see Negli- gence, 116. New trial for giving instructions in ab- sence of counsel, see New Trial, 13. In malpractice actions, see Physicians and Surgeons, 40-44. Using mails to defraud, see Postoffice, 5, 6. In action for breach of warranty, see Sales, 43, 46. Action by fireman for injury in going to fire, see Streets aad Highways, 38. In action for delay in telegram, see Telegraphs aad Telephones, 33. In action against promoters of entertain- ment for personal injury, see Thea- ters and Amusements, 6. Instruction amounting to direction of verdict, see Verdicts, 35. In action for flood damage by embank- ment, see Waters and Watercourses, 33. In reference to testamentary capacity, see Wills, 89-96. 1. IN GENERAL. 1. Duty to Declare Law. The court, in its instructions, must declare the law to the jury. Osteen v. Southern R. Co. (S. Car.) 1917C-505. 2. Eulings Sustained. The trial court committed no error in its charge to the jury or in its rulings on the admission of evidence. Wising v. Brotherhood of American Yeomen (Minn.) 1918A-621. 3. Instructions Approved. In the mo- tion for a new trial there are numerous exceptions to the charges of the court on the ground that there was no evidence to authorize the instructions criticized. An examination of the evidence contained in the record shows that in each case such exception is without merit. For, while as to some of the iesues covered by the instructions complained of there may have been no direct evidence, there were facts in evidence from which the jury would have been authorized to draw de- ductions which would have supported the contentions of the defendants in error relatively to those issues. Loewenherz v. Merchants, etc. Bank (Ga.) 1917E-877. 448 DIGEST. 1916O 1918B. 4. There was no error in the charge complained of in the twenty-first ground of the motion for a new trial. Button v. Ford (Ga.) 1918A-106. 5. Eulings on instructions are held not to be erroneous. State v. Cooper (W. Va.) 1917D-453. 6. An examination of the instructions discloses no error. O'Neal v. Bainbridge (Kan.) 1917B-293. 7. It is held that the court did not err in giving or refusing to give certain in- structions. Kuble v. Busby (Idaho) 1917D-665. g. In Case Tried Without Jury. In- structions are not only out of place in a lawsuit tried to the court without a jury, on an agreed case, but serve no useful office in equity. Tevis v. Tevis (Mo.) 1917A-865. 2. CONSTRUCTION. 9. Instructions Considered as Whole. The court's instructions to the jury should be considered and construed as a whole. McGregor v. Great Northern R. Co. (N. Dak.) 1917E-141. 10. Instructions Approved. Instruc- tions given by the court, when construed together, are found properly to state the law applicable to the evidence. Strahl v. Miller (Neb.) 1917A-141. 11. An instruction that it is not, as a matter of law, contributory negligence for a passenger to start to leave a car before it stops, but that that is a question for th jury, is not misleading when the instructions read as a whole are correct. Froeming v. Stockton Electric R. Co. (Cal.) 1918B-408. 3. FORM. 12. Definiteness. In an action for damages from a fire caused by defend- ant's engine, due to the alleged escape of sparks from a smokestack, an instruction requiring the jury to find that the "en- gine was the occasion for the fire" is too indefinite. Hodges v. Baltimore Engine Co. (Md.) 1917C-766. 13. Use of Word "Alibi" in Civil Case. An instruction in a civil action against the owner of an automobile, whose chauf- feur was alleged to have negligently run down plaintiff, that if defendant's plea of "alibi" was false that was a discredit- ing circumstance is erroneous, as the use of the term "alibi" and the rule stated is not appropriate in a civil action; the inducement to avert the imposition of damages not being the equivalent of the reason for making a false alibi in a crim- inal case, where the offender's life or liberty ie affected, a discrediting circum- stance. Watson v. Adams (Ala.) 1916E- 565. 14. Necessity of Defining Terms. It was not reversible error for the court to use the term "proximate cause," without otherwise defining it, in absence of a re- quest for an appropriate instruction. Mc- Gregor v. Great- Northern R. Co. (N. Dak.) 1917E-141. 15. In Language of Statute Sued on. In an action based on statute, an instruc- tion, following the language of the stat- ute, is not erroneous because it did not define all of the ordinary terms, no re- quest for a proper instruction being made. Lichtenstein v. L. Fish Furniture Co. (111.) 1918A-1087. 16. Abstract Instructions. Instructions should be concrete as to each issuable fact, and not abstract. State v. Cessna (Iowa) 1917D-2S9. 17. Expressing Qualifications of Rule in Each Instruction. Where instructions separately present every phase of the law as a whole, each instruction need not carry qualifications which are explained in the others. St. Louis etc., R. Co. v. Blay- lock (Ark.) 1917A-563. 4. REQUESTS TO CHARGE. 18. Instruction Given in Substance. The court is not bound to grant a re- quested instruction in the very language of the request. Miller v. Delaware River Trans. Co. (N. J.) 1916C-165. 19. Necessity for Request. While Const. Wash. art. 4, 16, requires the judges to declare the law, they need de- clare it only in a general sense, and a party desiring instructions on a particular phase of the case must request them. His- cock v. Phinney (Wash.) 1916E-1044. 20. Immaterial Issues. It is not error to refuse to submit immaterial issues. Gist v. Johnson-Carey Co. (Wis.) 1916E- 460. 21. Singling Out Evidence Request Properly Refused. Requested instruc- tions, directed to fragmentary and inde- cisive portions of the evidence, are rightly refused. Hanley v. Eastern Steamship Corporation (Mass.) 1917D- 1034. 22. Refusal of Request Matter Ade- quately Covered. In an action for con- spiracy to alienate the affections of a wife, where the instructions as a whole emphasized and reiterated the legal pre- sumptions in favor of defendants, the bur- den of proof on the plaintiff, and the clearness of the evidence necessary to sus- tain such burden, the refusal of the court to instruct that the jury must be guided by reasonable inferences only, not by mere conjecture, ir, reaching a verdict, is not erroneous. Ratcliffe v. Walker (Va.) 19171: -1022. INSTRUCTIONS. 449 23. Instructions Sustained. No error is found in refusing to give requested in- structions, nor is there prejudicial error in the charge as given. Manning v. St. Paul Gaslight Co. (Minn.) 1916E-276. 24. Effect of Request on Same Subject. Where plaintiff in writing requested an instruction dealing with contributory negligence, she cannot attack an instruc- tion on contributory negligence on the ground that the issue was not raised by the evidence. Smith's Admx. v. Middles- boro Electric Co. (Ky.) 1917A-1164. 25. Giving in Substance. The request of a defendant for instructions is com- plied with by giving them in substance, in a fair and comprehensive charge. Hanley v. Eastern Steamship Corporation (Mass.) 1917D-1034. 26. Time for Requesting. Under Kirby's Ark. Dig. 6196, subd. 5, provid- ing that when the evidence is concluded either party may request instructions, which shall be given or refused by the court, etc., the trial judge has discretion to require that the instructions be settled before argument, and to that end may re- quire that requests to charge be sub- mitted before the opening argument. St. Louis Southwestern K. Co. v. Mitchell (Ark.) 1916E-317. 27. Instructions Approved. It is held that the trial court properly ruled on the instructions requested by the parties hereto. Hill v. Norton (W. Va.) 1917D- 489. 28. Necessity of Requesting Instruc- tions. Where an instruction is correct as far as it goes, a party to the action who deems the same not sufficiently explicit should present requests for more specific and comprehensive instructions. Mc- Gregor v. Great Northern E. Co. (N. Dak.) 1917E-141. 29. Effect of Erroneous Request. The court may refuse an incorrect requested instruction, and is not bound to modify it or give any other instruction in its place. Katcliffe T. Walker (VaJ 1917E- 1022. 30. Request Based on Partial Statement of Evidence. A requested instruction directing a verdict for defendant if the jury should find certain facts, but based on an incomplete and partial statement of the evidence, is properly refused. Kat- cliffe v. Walker (Va.) 1917E-1022. 31. Requesting Excessive Number. Where the parties request over 100 in- structions, most of which are either not the law or are not applicable or merely repetitions, such conduct is an abuse of the privilege of requesting instructions. Lichtenstein v. L. Fish Furniture Co. (111.) 1918A-1087. (Annotated.) 29 32. Effect of Erroneous Request. In a prosecution for assault with intent to murder, where an erroneous requested in- struction on the issue, raised by the proof of defense of habitation, served to call the attention of the court thereto, the failure of the court to submit such issue to the jury under a proper instruction is error. State v. Cessna (Iowa) 1917D- 289. Note. Propriety of requesting or giving numerous or lengthy instructions. 1918A- 1091. 5. REPETITION. 33. Refusal of Requests Already Given. There is no error in refusing requested in- structions abstractedly correct, where they had already been covered by the in- structions given. Oleson v. Fader (Wis.) 1917D-314. 34. Instructions Given In Substance. There is no error in the refusal of re- quested instructions, where they are given in substance, and in so far as the facts of the case call for instructions upon the matters therein requested. Harris v. Bremerton (Wash.) 1916C-160. 35. Requests Covered by General Charge. The refusal of instructions fully covered by those given is not error. Nicoll v. Sweet (Iowa) 1916C-661. 36. The refusal of an instruction cov- ered by the charge as given is not avail- able error. Shoop v. Fidelity, etc. Co. (Md.) 1916D-954. 37. Where the court's charge is explicit and fair, and covered all the aspects of the case requiring that all the facts must be proved against defendant beyond a reasonable doubt, and defines reasonable doubt in the language of defendant's counsel, it is not error to refuse a charge that if on the whole case the jury should find that the evidence was evenly bal- anced, or they were unable to determine where the truth lay, that created a rea- sonable doubt, and defendant would be entitled to an acquittal. Kaufman v. United States (Fed.) 1916C-466. 38. In a father's action for loss of ser- vices from the negligent death of a minor employee, a requested charge was refused that the burden was upon plaintiff to es- tablish that the falling of the slate from the roof that caused the boy's death was not one of the dangers incident to the employment. The court submitted whether it was defendant's duty to in- spect the roof at the place where the boy was working, and instructed that plaintiff could recover only if the jury found that defendant owed such duty to the boy and failed to perform it, and that if it was the boy's duty to inspect the roof of the 450 entry, or if the entry was subject to change wrought by him and the other workmen, and its condition resulted from what they did, plaintiff could not recover. Held, that the requested charge was prop- erly refused as being substantially in- cluded in the instructions given. Carnego v. Crescent Coal Co. (Iowa) 1916D-794. 39. Though instructions requested by a party may correctly state the law, yet a judgment will not be reversed for refusal to give such instructions, if the law ap- plicable to the issues involved is correctly given in the court's charge. Farmers' National Bank v. McCoy (Okla.) 1916D- 1243. 40. The refusal of requested instruc- tions, fully covered by given instructions, is not erroneous. Kimmins v. Montrose (Colo.) 1917A-407. 41. The refusal of requests covered by the granted prayers is not error. Ameri- can Express Co. v. Terry (Md.) 1917C- 650. 42. The requests to charge, so far as they were legal and pertinent, were cov- ered by the general charge. Loewenherz v. Merchants', etc. Bank (Ga.) 1917E- 877. 6. IGNORING EVIDENCE. 43. Ignoring Admitted Tacts. Where defendant insurance company, under the issues, admits its liability on the policy for an amount less than its face, an in- struction requested by it, which ignored the admitted liability, is properly refused. Shoop v. Fidelity, etc. Co. (Md.) 1916D- 954. 7. CAUTIONARY INSTRUCTIONS. 44. Cautionary Instruction as to Mat- ter Stricken Out. Where all reference to city ordinances in an action for the death of an employee, which was based on de- fendant's failure to furnish fire escapes as required by statute, was stricken, the jury need not be informed that they can- not find defendant guilty for violating ordinances. Lichtenstein v. L. Fish Fur- niture Co. (111.) 1918A-1087. 45. As to False Testimony. An instruc- tion to disregard false testimony must be conditioned on the witness wilfully or knowingly swearing falsely, and the omis- sion of the qualifying words "wilfully and corruptly" is error. Babb v. State (Ariz.) 1918B-923. 8. WEIGHT AND SUFFICIENCY OF EVIDENCE. 46. Credibility of Witness. An instruc- tion on the credibility of witnesses is not erroneous as invading the province of the jury because it states that the jury DIGEST. 1916C 1918B. "should" consider the interest of the wit- nesses, rather than that they "may" con- sider such interest. Pittsburgh, etc. R. Co. v. Chappell (Ind.) 1918A-627. 47. Falsus in TJno. It was proper ta charge that the jury are the sole judges of the weight and credibility of the wit- nesses, but that, if they find and believe that any witness had wilfully sworn falsely to any material facts, they may disregard the whole or any part of his testimony. Hall v. Manufacturers' Coal, etc. Co. (Mo.) 1916C-375. 48. Statement That There has Been Per- jury at Trial. An instruction that "there has been manifest perjury by witnesses who have testified in this case, as counsel for both sides have claimed in their argu- ment. They, of course, differ as to which witnesses have testified falsely. It is for you to determine from all of the evidence, which includes the appearance of the wit- nesses when testifying as well as what they said, what evidence you credit" held erroneous, as violative of section 2994, N. Mex. Comp. Laws 1897, which forbids comment by the court upon the weight of the evidence. State v. Chavez (N. Mex.) 1917B-127. (Annotated.) 49. Weight Deposition as Compared With Oral Testimony. The weight and credibility of the testimony of witnesses whether oral or by deposition, having by proper instructions been entirely left to the Jvy, instructing them to give to the testimony of one testifying by deposition the same credence and weight as if he were present and testifying in open court, is not error. Hillis v. Kessinger (Wash.} 1917D-757. (Annotated.) 50. Instruction as to Credibility Sing- ling Out Particular Witness. In prosecu- tion for horse stealing, instruction that if testimony of a witness, naming him, had been attacked through bias, and that if beyond a reasonable doubt such witness testified truthfully, his testimony should have the same weight and credence as that of any other witnesses, is erroneous and prejudicial as singling out the testimony of a single witness and giving undue prom- inence to an isolated fact. Babb Y. State- (Ariz.) 1918B-925. 51. Invasion of Province of Jury Posi- tive and Negative Testimony. In prosecu- tion for horse stealing, instruction that positive evidence of one credible witness is entitled to more weight than the tes- timony of several witnesses who testify negatively or to collateral circumstances is erroneous, as invasive of the jury's province to determine the weight of evidence. Babb v. State (Ariz.) 1918B-925. 52. Manner of Stating Issues Reading Pleadings. In an action for death of a railroad employee, where the trial court, instead of stating the issues of fact to- INSTRUCTIONS. 451 the jury, reads a portion of the declara- tion of the plaintiff, and directs the jury to find in favor of the plaintiff if the greater weight of the evidence is on that side on any one or more of the five counts, such charge is error, certain averments of negligence not being supported by the proof, and no proof being offered as to some of the matters charged. Nashville, etc. Ey. v. Anderson (Tenn.) 1917D- 902. 53. Comment on Weight of Evidence. Under our law a trial judge is not per- mitted to comment on the evidence, or to give to the jury his views of its weight. Florida East Coast R. Co. v. Carter (Fla.) 1916E-1299. 9. INSTRUCTIONS UNSUPPORTED BY EVIDENCE. 54. In a striking employee's action for damages sustained from his eviction from a house occupied by him as part compen- sation for his services, where there is no evidence as to the use of excessive force, plaintiff is not entitled to go to the jury on that issue. Lane v. Au Sable Electric Co. (Mich.) 1916C-1108. 55. There was no evidence in the case that plaintiff was employed by parties other than defendants, and a submission of that question to the jury was error. Lufkin v. Harvey (Minn.) 1917D-583. (Annotated.) 56. Instruction not Applicable to Evi- dence Prejudicial Effect. In a prosecu- tion for involuntary manslaughter com- mitted by reckless driving of automobile, where there is no claim and no evidence of any intent to kill, an instruction that intent may be proved by direct testimony, etc., although having no place in the case, cannot mislead the jury. People v. Falk- ovitch (111.) 1918B-1077. 57. Operation of Engine Causing Fire. In an action for damages by a fire set by defendant's engine, an instruction on the theory that defendant had taken over a contract under which a third person had theretofore operated the engine is errone- ous, where the evidence showed that de- fendant was operating the engine under its own contract with the plaintiff. Hodges v. Baltimore Engine Co. (Md.) 1917C-766. 58. Action for Personal Injury. In an action for the death of a licensee engaged in repairing a coal-laden steamer at de- fendant's discharging dock, killed by coal which dropped from the buckets, an in- struction as to decedent's dullness of hear- ing is properly refused, where it does not appear that it had anything to do with the injury, and where, others present of sound hearing and in a position to hear did not hear defendant's alleged warnings. Tay- lor v. Northern Coal, etc. Co. (Wis.) 1916C- 167. 59. Limitation to Evidence. The charges to the jury should be confined to the evi- dence in the case. Florida East Coast B. Co. v. Carter (Fla.) 1916E-1299. W. INSTRUCTIONS ASSUMING FACT IN ISSUE. 60. Instructions Disapproved. Certain excerpts from the charge were open to the criticism that they were not properly ad- justed to the facts of the case. Peagler v. Davis (Ga.) 1917A-232. 61. Confining Charge to Issues. An in- struction authorizing verdict for defend- ant if it was not proved true that plaintiff was a hypocrite was not within the issues; the answer merely denying that the pub- lished cartoon was susceptible of the im- putation that he was a hypocrite. Newby v. Times-Mirror Company (C'al.) 1917E- 186. 62. Applicability to Issues. In an ac- tion at law for breach of contract, wherein defendant set up the alteration of the con- tract, but there was no evidence that de- fendant retained any benefit received under the contract as changed, with knowl- edge of the change, instructions touching ratification by reason of such retention are inapplicable because not within the issues. Smith v. Barnes (Mont.) 1917D- 330. 11. ADVISING JURY TO DISREGARD ARGUMENT OF COUNSEL. 63. "Where, in an action for injuries at a railroad crossing, a controversy arises during the argument over a statement made therein that defendant's offer to com- promise was an admission of liability, de- fendant is then entitled to request and have the court give an instruction that such was not the effect thereof. St. Louis Southwestern R. Co. v. Mitchell (Ark.) 1916E-317. 12. ARGUMENTATIVE INSTRUCTIONS. 64. Argumentative instructions should not be given. American Bauxite Co. v. Dunn (Ark.) 1917C-625. 13. INSTRUCTIONS AS TO ABAN- DONED ISSUE. 65. Necessity of Instructing. Where, in an action for the conversion of electrical machinery, sold to a contractor to be placed in an electrical plant for defendant, the case was tried on the theory that the selling price was competent proof as to the value of the machinery, it cannot be said that it was error not to instruct more definitely on the question of the reasonable value of the machinery, or that the trial theory was erroneous, in the absence of any request therefor. Allis-Chalmers Co. v. Atlantic (Iowa) 1916D-910. 452 14. PRESUMPTION. 68. Presumption frdm Failure to Produce Evidence. It is proper to instruct that as a matter of law the failure of the plaintiff DIGEST. 1916C 1918B. erty insured by a policy issued by its agent, authorized to issue policies, was owned by a corporation of which he was a stockholder, did not ratify the act of the agent by making no objection to the re- . _ ., A _ BiKV*B* -/ J 111CHYJ. JJ >i 11U \J U I C ^ U J. \J JJ. IrV V**W * ^ to produce a material witness creates t f ' h h fa u was presumption that his testimony if pro- duced would be unfavorable to the plain- tiff. Carmody v. Capital Traction Co. (D. C.) 1916I>-706. INSTRUMENTS. See Alteration of Instruments. INSULTING LANGUAGE. By conductor to passenger, actionable, see Carriers of Passengers, 25. INSUEABLE INTEREST. See Fire Insurance, 7; Life Insurance, 1-15. Under industrial policy, see Insurance, 61. INSURANCE. 1. Insurance Agents and Brokers, 452. a. In General, 452. b. Liability to Insured, 452. c. Liability to Insurer, 453. 2. Statutory Regulations, 453. 3. Construction and Validity of Policy Generally, 453. 4. Commencement of Risk, 454. 5. Warranties and Representations, 454. 6. Waiver of Provisions, 454. 7. Forfeiture or Suspension of Policy, 454. 8. Fidelity Insurance, 455. 9. Liability Insurance, 456. a. Construction of Contract, 456. b. Actions, 456. 10. Animal Insurance, 457. 11. Automobile Insurance, 457. a. Construction of Contract, 457. b. Adjustment of Loss, 457. c. Actions, 457. 12. Credit Insurance, 457. 13. Hail Insurance, 458. 14. Burial Insurance, 458. 15. Tornado Insurance, 458. 16. Industrial Insurance, 458 1 . See Accident Insurance; Beneficial Asso- ciations, 1-7; Fire Insurance; Life In- surance. Construction of Standard Policy Law, see Accident Insurance, 9. Action against insurer's attorney for neg- ligence, see Negligence, 3-65, 69. Insolvency, premiums trust fund, see Re- ceivers, 11. Rights of insurer against tortfeasor, see Subrogation, 1-6. 1. INSURANCE AGENTS AND BROKERS. a. In General. 1. An insurance company, having no knowledge until after a loss that the prop- issued, made shortly after its issuance. Riverside Development Co. v. Hartford Fire Ins. Co. (Miss.) 1916D-1274. (Annotated.) 2. Insurance by Agent of Property of Corporation of Which Agent is Stock- holder. An agent authorized to issue in- surance policies cannot bind his principal by issuing a policy on property owned by him or in which he has an interest ad- verse to that of his principal, or on prop- erty owned by a corporation of which he is a stockholder, though the rate of premium is fixed, and though he acted in good faith in issuing it. Riverside Development Co. v. Hartford Fire Ins. Co. (Miss.) 1916D- 1274. (Annotated.) Note. Validity of insurance policy issued by agent on property of corporation of which agent is stockholder. 1916D-1275. b. Liability to Insured. 3. Failure to Procure Insurance. In a petition in which it is substantially alleged that a broker or agent undertook to pro- cure insurance on certain property of an owner in some responsible company and where the parties agreed on the total amount of insurance, the amount to be placed on each class of the property to be insured, and that the premium should be taken from a certain fund provided by the owner, but that the broker neglected to procure the insurance, and in reply to an inquiry of the owner had assured him that the insurance had been obtained, and the property is thereafter destroyed by fire, a cause of action against the broker is stated, and certainly sufficient as against an objection of the defendants to the in- troduction of any evidence. Rezac v. Zima (Kan.) 1918B-1035. (Annotated.) 4. A broker or agent who undertakes to procure insurance for another is bound to exercise reasonable diligence to obtain it on the terms and conditions agreed upon and to give timely notice to his principal in case he is unable to procure it on the agreed terms and conditions, and if he fails to carry out his agreement and a loss re- sults through his inattention, incapacity or fraud he will be liable to the extent and for the amount that would have been re- coverable upon the insurance he had agreed to procure. Rezae v. Zima (Kan.) 1918B-1035. (Annotated.) Note. Liability of insurance agent to owner of property for failure to procure insur- ance. 191SB-1037. INSURANCE. 453 c. Liability to Insurer. 5. Unauthorized Issuance of Policy. An insurance agent who issues a policy of insurance in violation of the instruc- tions of his company is liable to the com- pany for the amount of insurance paid and expenses incurred by the company on account of a loss under the policy. In- surance Co. v. Baer (Kan.) 1917B-491. (Annotated.) 6. An insurance agent cannot defeat his liability to his company for issuing a pol- icy in violation of his instructions by showing that the company might have es- caped liability on the policy by litigation. Insurance Co. v. Baer (Kan.) 1917B-491. (Annotated.) 7. Failure to Collect Premium. Where an insurance company's agents failed to comply with the company's demand that they either cancel a policy or collect an additional premium, and such demand con- tinued for several months and until a loss occurred nearly six months after issu- ance of the policy, and where the com- pany knew during such time that the policy was oustanding and made no un- conditional demand for its cancellation, the liability of the agents is limited to the amount of. the additional premium, and they are not liable for the sum paid by the company in settlement of the loss. Phoenix Ins. Co. v. Banks (Ark.) 1916D- 649. Notes. Liability of agent to insurance com- pany for failure to collect premium. 1916D-651. Liability of agent to insurance com- pany for issuing policy in violation of instruction. 1917B-493. 2. STATUTOEY REGULATIONS. 8. The standard form of insurance pol- icy prescribed by N. Car. Revisal 1905, 4760, in making provision for subroga- tion, is declaratory of existing principles. Powell & Powell v. Wake Water Co. ending on the cir- cumstance of each case. Simmcns v. Na- tional Live Stock Ins. Co. (Mich.) 1917D- 42. (Annotated.) Note. Animal insurance. 1917D-45. 11. AUTOMOBILE INSURANCE. a. Construction of Contract. 45. 'Condition Against Carrying Passen- gers for Hire. A clause in a policy of in- surance on a motor car, providing that the car should not be "rented or used for pas- senger service of any kind for hire," does not authorize a forfeiture, where the car was used by the owner's chauffeur with- out his knowledge upon a single occasion to carry persons, for hire; the car being destroyed while in the exclusive possession of the owner and after the forbidden use had ceased. Crowell v. Maryland Motor Car Ins. Co. (N. Car.) 1917D-50. (Annotated.) 46. A clause in a policy of insurance of a motor car, providing that the car should not be "rented or used for passenger ser- vice of any kind for hire," implies more than a single act of renting or using, and refers to the business of carrying passen- gers for hire. Crowell v. Maryland Motor Car Ins. Co. (N. Car.) 1917D-50. (Annotated.) Notes. Automobile insurance. 1917D-53. Insurance against liability of automo- bile owner. 1917D-61. b. Adjustment of Loss. 47. Contract for Settlement Effect. Plaintiff's auto, insured by defendant for $2,500, was burned, and plaintiffs filed claim for total loss, and defendant dis- puted it, and offered to settle it for $2,000, or to ship the car for repairs, and plain- tiffs elected to accept the proposition for repairs, stating that defendant must make the car as good as before the fire, and not delay too long, and defendant then wrote plaintiffs that it had made arrangements to ship the car and would at once proceed with the repairs, and that it estimated that it would take about four weeks for repairs. It is held that a settlement con- tract arose, terminating all rights under the policy contract, so that the only rem- edy thereafter was for breach of the new contract. Gaffey v. St. Paul Fire and Marine Ins. Co. (N. Y.) 1918B-1041. (Annotated.) c. Actions. 48. Error in the admission on defend- ant's cross-examination of testimony tend- ing to show that defendant was indemni- fied against liability by an insurance com- pany is highly prejudicial. Watson v. Adams (Ala.) 1916E-565. (Annotated.) 49. Proof that Defendant is Indemnified. The admission on cross-examination of de- fendant, whose chauffeur is alleged to have negligently run down plaintiff, of testimony tending to show that counsel appearing for defendant represents an in- demnity insurance company is error, as defendant's liability is not affected by the fact that he is indemnified nor does it affect his credibility. Watson v. Adams (Ala.) 1916E-565. ' (Annotated.) 12. CREDIT INSURANCE. 50. Construction of Credit Insurance Bond. Credit insurance bonds, like other insurance policies, if ambiguous in their language, are to be construed strictly against the insurer, by whom they were framed. Philadelphia Casualty Co. v. Fechheimer (Fed.) 1917D-64. (Annotated.) 51. The losses to which such clause re- lates are to be determined by the terms of the first bond, and not of the renewal, and the insurer is liable for a loss which comes within the terms of the first, although it is of a class not insured against by the renewal. Philadelphia Casualty Co. v. Fechheimer (Fed.) 1917D-64. (Annotated.) 52. Renewal Bond Losses Covered. A credit insurance policy, or "bond," insur- ing against loss of accounts due the in- sured from customers for goods shipped during the calendar year 1903, contained a clause providing that, "if this bond is renewed on or before the date of termina- tion thereof by the issuance of a new bond, the losses occurring during the term of the renewal on goods shipped during 458 DIGEST. 1916O 1918B. the term of this bond shall be included in the calculation of losses under said re- newal the same as if the goods had been shipped during the term of such renewal bond." December 4, 1903, a second bond was issued, differing in some of its provi- sions, covering the term from October 1, 1903, to September 30, 1904. The only reference therein to the previous bond was a provision that losses occurring on goods shipped on and after October 1, 1903, should not be included under the first bond, but under the second. It is held that the second bond was a renewal of the first within the meaning of the quoted clause of the first, and covered losses aris- ing on shipments made during the term of the first bond previous to October 1, 1903. Philadelphia Casualty Co. v. Fechheimer (Fed.) 1917D-64. (Annotated.) 53. Computation of Total Sales by In- sured. Where goods shipped by insured were returned, no sale was consummated which can be computed in making up the total sales under the bonds. Philadelphia Casualty Co. v. Fechheimer (Fed.) 1917D- 64. (Annotated.) 54. Each bond provided that on sales not exceeding $450,000 during its term losses to the aggregate amount of $5,000 should constitute an initial loss to be borne by the insured, the insurer being liable only for an excess of loss above that sum, and that, if the sales exceeded $450,000, the initial loss should be propor- tionately increased. It is held that the fact that losses on sales made during the term of the first bond, but occurring dur- ing the term of the second, were payable under the latter, did not entitle the in- surer to carry over the sales of the first term, and add them to those of the second, for the purpose of increasing the amount of the initial loss thereunder. Philadel- phia Casualty Co. v. Fechheimer (Fed.) 1917D-64. (Annotated.) 55. Notice of Loss. That a preliminary notice of loss required and given the in- surer incorrectly stated that the debtor had been adjudged bankrupt, whereas in fact he had been closed on execution, is immaterial, where no objection was made on that ground, and the insurer was lia- ble in either case. Philadelphia Casualty Co. v. Fechheimer (Fed.) 1917D-64. 56. When Effective. Although the re- newal bond was not executed until Decem- ber 4, 1903, a clause therein providing that "losses occurring on goods shipped on and after October 1, 1903," should be included thereunder, and not under the first bond, made the second bond effertive for all purposes from that date. Phila- delphia Casualty Co. v. Fechheimer (Fed.) 1917D-64. (Annotated.) Note. Credit insurance. 1917D-75. 13. HAIL INSURANCE. 57. Time for Payment of Loss. A pro- vision, in a hail insurance policy issued by a mutual company, that the loss should not be payable until a fixed time, is waived by a denial of all liability by the company. Schultz v. Des Moines Mutual Hail, etc. Ini. Assoe. (S. Dak.) 1917D-78. (Annotated.) 58. Officers of a mutual hail insurance company have authority to waive the pro- vision of the by-laws deferring the pay- ment of losses by denying liability on the policy. Schultz T. Des Moines Mutual Hail, etc. Ins. Assoc. (S. Dak.) 1917D-78. (Annotated.) Note. Hail insurance. 1917D-81. 14. BURIAL INSURANCE. 59. Burial Contract. Contracts under which an undertaker agreed, in consider- ation of the payment of monthly interest on so-called mutual notes issued by him during the lives of the makers, that he would provide them with respectable funerals, are contracts of insurance, ren- dering the undertaker, in the transaction of such insurance business, subject to regulation by the insurance department, under Ohio Gen. Code, 670. Renschler v. State (Ohio) 1916C-1014. (Annotated.) Note. Burial insurance. 1916CI-1016. 15. TORNADO INSURANCE. 60. An insurance company, joining with insured in th appointment of appraisers to appraise a loss, as required by a tor- nado insurance policy declaring that such appraisal shall affect no other question under the policy, does not thereby waive his right to object to the validity of the policy on the ground that the agent issu- ing it was a stockholder of the corpora- tion owning the property covered thereby. Riverside Development Co. v. Hartford Fire Ins. Co. (Miss.) 1916D-1274. (Annotated.) 16. INDUSTRIAL INSURANCE. 61. Insurable Interest. Payment by the insurance company which issued a policy of "industrial insurance," the purpose of which is to provide a reasonable fund with which insured may alleviate his last sickness and secure decent burial, to in- sured's aunt, his beneficiary, who cared for him in his sickness and buried him, is permissible under the usual "facility of payment" clause in such a policy, provid- ing that payment may be made to the beneficiary or any person equitably en- titled, etc., though the mint has no in- surable interest in insured's life. Metro- INTEMPERANCE INTEREST. 459 politan L. Ins. Co. v. Nelson (Ky.) 1918B- 1182. (Annotated.) Note. Industrial insurance. 1918B-1186. INTEMPERANCE. See Intoxicating Liquors. Defined, see Public Officers, 48. INTENT. See Adultery, 2; Adverse Possession, 1; Prostitution, 17. As essential to crime, see Criminal Law, 8. As essential to dedication, see Dedication, 4, 5. Presumption as to, see Evidence, 132. Inference from act, see Homicide, 61. Effect on validity of marriage, see Mar- riage, 2. Information of partnership, see Partmer- ship, 3, 10. Of legislature in construction of statutes, see Statutes, 48-55. As essential to fraud in use of name, see Trademarks and Tradenames, 7. As governing signature, see Wills, 10. As governing construction of will, see Wills, 145-152. INTENTIONAL INJURY. Effect on recovery under accident policy, see Accident 'insurance, 14. INTEREST. 1. Eight to Recover- 2. Computation of Interest- 3. Waiver. See Usury. On attorneys' fees, see Attorneys, 31. Allowance of interest on forfeited bond, see Bail, 1. On bank deposit, see Banks and Banking, 25, 71. On county indebtedness, see Counties, 7. Interest as disqualification, see Judges, 9-14. Of juror, as disqualification, see Jury, 19, 20. On city warrants, see Municipal Corpora- tions, 36, 120-128. On funds improperly collected by officers, see Pensions, 3. Interest is ordinary revenue, see Schools, 23. Personal interest of trustee, effect, see Trusts and Trustees, 26. 1. RIGHT TO RECOVER. 1. Where the payment of interest is provided for by contract, it constitutes an integral part of the debt, as much so as the principal debt itself, and an independ- ent action for its recovery may be main- tained notwithstanding payment of the principal as such has been made and ac- cepted. Alabama City, etc. R. Co. v. Gads- den (Ala.) 1916C-573. 2. Recovery Separate from Principal. The general rule is that when the princi- pal subject of a claim is extinguished by the act of the plaintiff, or of the parties acting in unison, all its incidents go with it, which rule is applicable where interest is awarded in the way of damages; it being recoverable only in an action for the principal and not constituting a dis- tinct claim. Alabama City etc. R. Co. v. Gadsden (Ala.) 1916C-573. 3. Right to Recover Admitted. Though defendant does not deny plaintiff's right to recover a certain amount, it is discre- tionary with the jury to add interest in computing its verdict, unless defendant has made a tender of an amount equal to or greater than the verdict. Shoop v. Fidelity, etc. Co. (Md.) 1916D-954. Note. Right to interest on judgment as af- fected by modification of judgment on appeal. 1917C-413. 2. COMPUTATION OF INTEREST. 4. Accrual of Cause of Action. Where such statement of indebtedness was not furnished to the seller until June 7th, he is liable for interest on his share of the indebtedness only from that date, and not from March 8th, the date of sale. Miller T. Dilkes (Pa.) 1917D-555. 5. Compounding. Where the basic prin- ciple of an accounting by a trustee can be given effect without charging him with compound interest on the amount which he has held for his cestui que trust, it is not error to refuse to make such a charge. Silver King Coalition Mines Co. v. Silver King Consol. Min. Co. (Fed.) 1918B-571. 3. WAIVER. 6. Acceptance of Principal. Where the plaintiff was unlawfully removed from one office and installed in another at a lower salary and he continuously objected and protested to the reduction in salary and receipted for his salary only as on account and never in full, and upon judg- ment in his favor ordering the payment of the difference in his salary receipted for the amounts paid only as on account and not in full, his acts did not show a waiver of the interest, and he is entitled to recover the same upon the salary with- held. Shepard v. New York (N. Y.) 1917C-1062. (Annotated.) 7. The evidence is held to show such demand for the payment of principal of salary withheld as to fulfill the condition 460 DIGEST. 1916C 1918B. that, the interest being only recoverable as damages for the nonpayment of the principal when due, it is necessary for plaintiff to prove a timely demand for the principal. Shepard T. New York (N. Y.) 1917C-1062. (Annotated.) INTEREST IN LAND. See Frauds, Statute of, 5, 10. INTERFERENCE WITH BUSINESS. Action for, see Torts, 2. INTERFERENCE WITH CONTRACT RELATIONS. See Labor Combinations. INTERMEDIATE APPELLATE COURTS. Jurisdiction and powers, see Appeal and Error, 15-24. Review of judgments, see Appeal and Er- ror, 157, 158. INTERNATIONAL LAW. See Treaties; Ambassadors and Consuls; Conflict of Laws. INTERNMENT. Of alien enemies, see War, 7. INTERPLEADER. See Pleading. INTERPRETATION. Of defamatory language, see Libel and Slander, 22-23. INTERPRETATION OF STATUTES. See Statutes, 47-115. INTERROGATORIES. See Discovery. INTERRUPTION OF STATUTE. See Limitation of Actions, 33-42. INTERSTATE COMMERCE. 1. What Constitutes Interstate Commerce. a. In General. 2. Regulation of Interstate Commerce. a. Power of Congress. b. Power of States. (1) Police Power in General. (2) Effect of Nonaction by Con- gress. 3. Interstate Commerce Act. See Carriers, 1-3. Inspection of grain as interfering, see Weights and Measures, 2. 1. WHAT CONSTITUTES INTERSTATE COMMERCE. a. In General. 1. Commerce within the federal consti- tution is commercial intercourse between nations and the states, and includes not only navigation and transportation, but the purchase, sale, and exchange of com- modities, and hence the Mass. Foreign Corporation Tax Law of 1909 (St. 1909, c. 490, pt. 3), imposing an excise upon foreign corporations, does not apply to those engaged in foreign commerce, al- though it be a commercial business. Mar- coni Wireless Tel. Co. v. Commonwealth (Mass.) 1916C-214. 2. The sending of means of education by correspondence through the mails is commerce. Marconi Wireless Tel. Co. v. Commonwealth (Mass.) 1916C-214. 3. Where a Connecticut corporation maintained a Boston office, the sale and delivery of goods to citizens of Connecti- cut through the local office is not inter- state commerce for that reason. Marconi Wireless Tel. Co. v. Commonwealth (Mass.) 1916C-214. 4. "Dealer" Meaning of Term Manu- facturer Selling Product. Plaintiffs manufactured soft drinks in Ohio, and Bold some of their goods in Newport, Ky., upon orders from retail dealers in New- port, by means of solicitors or through the drivers of their wagons acting as solicitors. When a retail dealer had theretofore purchased goods from them, they would place their goods upon their wagons and send them into Newport, and there expose them for sale to such dealer, and sell and deliver such goods as he might desire. If any person other than a former customer desired to buy goods while the wagons were in Newport, the Bale would be made, and the goods then and there delivered to him. Held that, while some of the transactions constituted interstate commerce, some of them were intrastate transactions, and, whether the sales were made in the original packages or not, plaintiffs were doing business in Newport as wholesale dealers in soft drinks, and were subject to a license tax imposed by that state upon parties doing the business of a wholesale dealer in such goods. Newport v. Wagner (Ky.) 1917A-962. (Annotated.) 2. REGULATION OF INTERSTATE COMMENCE. a. Power of Congress. 5. Interstate Commerce Exclusiveness of Federal Power. The power to regulate commerce between states, delegated to the federal government, makes its exercise of such power supreme, to the exclusion of the powers of state governments. Van Winkle v. State (Del.) 1916D-104. INTERURBAN RAILWAYS INTERVENTION. 461 b. Power of States. (1) Police Power in General. 6. The Ohio inspection act, in so far as the same affects interstate commerce, contravenes clause 2, section 10, article 1 of the federal constitution and is uncon- stitutional and void for the reason that it imposes a burden on such commerce, by way of fees, largely in excess of the ex- penses necessary for executing the in- spection law. Castle v. Mason (Ohio) 1917A-164. (Annotated.) 7. Commerce between states may be af- fected by local inspection or police regu- lations without the latter becoming in- valid on that account; for when the local police regulation has real relation to the suitable protection of the people of the state and is reasonable in its require- ments, it is not invalid because it may incidentally affect interstate commerce. State v. McKay (Tenn.) 1917E-158. 8. Goods in Interstate Transit. Goods delivered to a common carrier at a point without the state, consigned to a pur- chaser at his residence within the state, are exempt from state regulations during the course of transportation. Newport v. Wagner (Ky.) 1917A-962. 9. Requiring Precautions at Crossings. The provision of the Ga. Civil Code (1910), 2675, which requires the en- gineer of a locomotive to check the speed thereof on approaching a public road crossing, so as to stop in time should any person or thing be crossing the railroad track on said road, is not unconstitutional as applied to a railway train while en- gaged in interstate commerce, under the conditions set forth in paragraph 23 of the defendant's answer, on the ground that, as thus applied, the statute is a regulation of interstate commerce and repugnant to the provisions of the consti- tution of the United States that "the Con- gress shall have power to regulate com- merce^ with foreign nations and among the several states." The statute is an exercise of the police power of the state, though to some extent it may indirectly affect interstate transportation. Sea- board Air-line Ry. v. Blackwell (Ga.) 1917A-967. (Annotated.) Note. State regulation of railroads as interfer- ence with interstate commerce. 1917A- 973. (2) Effect of Nonaction by Congress. 10. Trade in Illegal Articles. The com- merce clause of the federal constitution excludes state control only over interstate commerce in articles which are legitimate subjects of trade, and not over articles which are inherently unworthy of com- merce and unfit for use of the people and which the state, in the absence of con- gressional legislation covering the subject, has declared are not legitimate subjects of trade. American Express Co. v. Beer (Miss.) 1916D-127. 3. INTERSTATE COMMERCE ACT. 11. Rates Fixed by Commission. The fact that plaintiff railroad company made a mistake in computing the freight charge and failed to discover it until six months afterward cannot constitute a waiver or estoppel precluding recovery of the cor- rect amount, since the rate filed with the Interstate Commerce Commission is the lawful, arbitrary, and immutable rate; all parties concerned being charged with knowledge of it and its unescapable force. Pennsylvania E. Co. v. Titus (N. Y.) 1917C-862. 12. The rate filed with the Interstate Commerce Commission being the only legal rate and not variable by the act of the parties, payment of part of the freight charge by the consignee of goods can, under no circumstances, relieve him from full payment. Pennsylvania R. Co. T. Titus (N. Y.) 1917C-862. INTERURBAN RAILWAYS. See Street Railways. INTERVENING CAUSE. When a defense, see Homicide, 3. INTERVENTION. See Costs, 6. 1. Pleading Intervemer's Plea. Wnere, in an action involving the title to the bed of a lake, the state intervenes and claims title, but does not allege whether the lake is navigable or unnavigable, it is properly required to make its complaint in inter- vention more specific, even though, as claimed, it might claim the bed of the lake because of either condition, since pleading contradictory facts, either directly or inferentially, by failing to al- lege either fact, is not a compliance with the statutory requirement that the com- plaint shall contain a plan and concise statement of "facts." Bernot v. Morrison (Wash.) 1916D-280. * 2. In garnishment proceedings to reach funds deposited in bank in the name of the judgment debtor, the intervener's plea that the funds held by the garnishee were not the depositor's property, but the prop- erty of the intervener, is a statement of fact, and not a statement of a legal con- clusion. Home Land, etc. Co. v. Routh (Ark.) 1917C-1143. 3. Intervention by Owner of Garnished Funds Plea Sufficient. In garnishment 462 DIGEST. 1916C 1918B. proceedings to reach funds deposited in bank by the judgment debtor, the plea of the intervener, stating that the funds held by the garnishee bank were not its de- positor's property, but that they were the intervener's property, is a sufficiently definite allegation touching the ownership of the funds, which did in fact belong to the intervener, the depositor having their custody as his agent, it being unnecessary to set out the evidence upon which the intervener's claim of ownership was based. Home Land, etc. Co. v. Eouth (Ark.) 1917C-1143. INTEB VTVOa See Gifts, 1-10. INTESTACY. Construction of will to avoid, see Wills, 160. INTESTATES. Actions concerning property of, see Descent and Distribution, 9. INTOXICATING LIQUORS. 1. Power to Eegulate and Control, 462. 2. What are Intoxicating Liquors, 463. 3. Validity of Regulations, 463. a. In General, 463. b. Regulating Sale to Indians, 465. c. Qualification of Dealers, 465. d. Conflict Between Statute and Ordi- nance, 466. e. Annulment of License, 467. f. Regulating Transportation, 467. g. The Webb-Kenyon Act, 467. 4. Licenses, 468. a. Operation and Effect of Statute, 468. b. Consent to Granting of License, 469. c. Liquor Dealer's Bond, 469. 5. Offenses, 469. a. Distribution by Social Club, 469. b. Sale by Physician, 470. c. Importation of Liquor, 470. d. Persons Liable, 470. 6. Prosecutions, 470. a. Duty of Arresting Officer, 470. b. Indictment, 470. c. Evidence, 471. (1) Admissibility, 471. (2) Sufficiency, 471. (3) Presumptions and Burden of Proof, 472. d. Instructions, 472. e. Punishment, 472. 7. Abatement of Liquor Nuisance, 472. See Civil Damage Acts, 1-6; Conflict of Laws, 1-3; Disorderly Houses, 1, 2; Local Option. Review of order revoking license, see Appeal and Error, 31. Provisions against use in insurance con- tract, see Beneficial Associations, l. Unlawful sale as peace breach, see Breach, of Peace, 5-8. Arrest of sober passenger by mistake, lia- bility, see Carriers of Passengers, 28. Effect of intoxication on confession, see Confessions, 2. Prohibition amendment, self executing, see Constitutional Law, 91. Liquor contract void for illegality, see Contracts, 25. Criminal liability of corporations, see Corporations, 22. Opinion evidence as to intoxication, see Evidence, 78-81. Presumption as to sobriety, see Evidence, 140. Intoxication as bearing on intent, see Homicide, 32-34, 63. Drunkenness in homicide cases, see Homi- cide, 32-34, 62, 63. Drinking by jurors, effect, see Jury, 36, 37. Intoxication of defendant as mitigating damages, see Libel and Slander, 159. Granting of license not compellable, see Mandamus, 3. Intoxication of servant, effect under ' Workmen's Compensation Act, see Master and Servant, 231-234. Liability of officers for destroying liquor, see "Militia. 5-10. State regulation in cities, see Municipal Corporations, 20. Intoxication as evidence of contributory negligence, see Negligence, 82. Drunkenness, removal from office, see Pnb- lic Officers, 47-49. Duty of sheriff to enforce liquor laws, see 'Sheriffs and Constables, 5, 16, 17. Sales to members of incorporated club, see Societies and Clubs, 2. Title of Hazel Law, see Statutes, 8. Title of prohibition act, see Statutes, 14. Construction of statutes in pari materia, see Statutes, 85. Intoxication as affecting testamentary ca- pacity, see Wills, 69, 94. 1. POWER TO REGULATE AND CON- TROL. 1. A state may, consistently with the due process of law clause of U. S. jConst. 14th Amend. (6 Fed. St. Ann. 416). for- bid all shipments of intoxicating liquor, whether intended for personal use or otherwise. James Clark Dist. Co. v. West- ern Md. R. Co. (U. S.) 1917B-845. 2. Conditions to Issuance of License Power to Prescribe. As the authority to sell liquor is a mere privilege which the state may grant or withhold, at its pleas- ure, it may require those desirous of per- mission to sell intoxicating liquor to pro- cure a petition signed by a majority of the adult white inhabitants of the locality, as prescribed by the Going Act. Wade v. Horner (Ark.) 1916E-167. 3. The former charter of the city of Duluth limited the control of the city over the liquor traffic so that the city could ri-giilate but not prohibit such traffic; but INTOXICATING LIQUORS. 463 the present charter, after continuing in force all powers previously possessed by the city, granted, in addition thereto, "All municipal power ... of every name and nature whatsoever." Held, that "all muni- cipal power" includes all powers generally recognized as powers which may properly be exercised by municipal corporations, and that the liquor traffic may be prohib- ited under the grant of such power. State v. Duluth (Minn.) 1918A-683. 4. It is not contrary to the public policy of the state to give the power to prohibit such traffic to a city of the first class, and such power may be given to a city of that class by a home-rule charter. State v. Duluth (Minn.) 1918A-683. 5. Prohibition of Sale. The power to prohibit the sale of intoxicating liquor within its limits may be given to a city by its charter. The general laws regu- lating the liquor traffic imposed regula- tions and restrictions more stringent than those theretofore existing, which the muni- cipalities of the state could not abrogate or lessen; but such municipalities were free to impose any further restrictions au- thorized by their respective charters or other laws. State v. Duluth (Minn.) 1918A-683. 6. Const. Tex. art. 16, 20, authorizing the prohibition of the sale of intoxicating liquor, is not an implied limitation on legislative power, and the legislature has not only the authority but must pass all laws necessary and appropriate to prevent illegal sales. Longmire v. State (Tex.) 1917A-726. (Annotated.) 7. Regulation of Transportation of Liquor. As with the shipment and deliv- ery of intoxicating liquor wholly within the state, the legislature alone has author- ity to deal, and, in so far as it may be necessary to protect the public health, morals, and welfare, its will, as expressed in statutes, is final. Longmire v. State (Tex.) 1917A-726. (Annotated.) 8. The legislature can, in the exercise of its police powers as an aid to the enforce- ment of the law against the sale of liquor, regulate shipments of liquor, and thereby prohibit acts which in themselves are harm- less. Bird v. State (Tenn.) 1917A-634. (Annotated.) Notes. Eight to prohibit possession of intoxi- cating liquor for personal use. 1916E-780. State ' regulation of transportation of intoxicating liquors. 1917A-622. 2. WHAT ARE INTOXICATING LIQUORS. 9. Medicinal Preparation. A medicinal preparation containing alcohol, but which will not intoxicate by immorl rate use be- cause one using it "would become siek long before he becomes intoxicated" is not "intoxicating liquor" forbidden to be de- livered within the state by S. Car. Act Feb. 20, 1915 (29 St. at Large, p. 140). Geer Drug Co. v. Atlantic Coast Line R. Co. (S. Car.) 1917C-908. (Annotated.) 10. "Near Beer." "Near beer" is a bev- erage intended as a substitute for beer, and is in reality a malt liquor. Howard v. Acme Brewing Co. (Ga.) 1917A-91. Notes. Medicinal or toilet preparation contain- ing alcohol as within purview of intoxi- cating liquor statute. 1917C-909. Regulation of alcoholic, spirituous, malt or vinous liquor as including or excluding nonintoxicating liquor. 1917A-94. 3. VALIDITY OP REGULATIONS, a. In General. 11. The authority given the agent to refuse delivery of a shipment of intoxicat- ing liquor when intended for unlawful use does not confer upon him judicial power. State v. Missouri Pacific R. Co. (Kan.) 1917A-612. (Annotated.) 12. Provisions of the act relating to shipments within the state and the deliv- ery of liquor to minors do not affect this prosecution and cannot be invoked for the purpose of building up the defense that the statute is unconstitutional. State v. Missouri Pacific R. Co. (Kan.) 1917A-612. (Annotated.) 13. State Regulation of Transportation. The requirements concerning statements in writing to be made or taken and filed with the county clerk do not violate the provisions of sections 15 anfl 20 of the In- terstate Commerce Act as amended (Fed. St. Ann. 1912 Supp. pp. 119, 125).' State v. Missouri Pacific R. Co. (Kan.) 1917A- 612. (Annotated.) 14. Validity of Prohibition. Wash. Ini- tiative measure No. 3 (Laws 1915, p. 2), prohibiting the manufacture, keeping, sale, and disposition of intoxicating liquors, ex- cept in certain cases, approved by popular vote at general election of 1914, does not violate the equal privileges and immunities provisions of the federal or state consti- tutions. Gottstein v. Lister (Wash.) 1917D-1008. 15. Such initiative measure does not vio- late the equal protection of the laws pro- visions of the state and federal constitu- tions. Gottstein v. Lister (Wash.) 1917D- 1008. 16. Objection to Validity. The ordi- nance is valid so far as it prohibits the sale of intoxicating liquor at retail, and, as relator seeks a license to sell at retail only, whether the ordinance is valid so far as it prohibits sales at wholesale is 464 not involved herein. State v. (Minn.) 1918A-683. 17. Confiscation of Liquor Unlawfully Kept. Construing these Ga. prohibitory laws in connection with the existing laws, liquors of the prohibited classes cannot be kept at all in certain places, cannot be kept in excess of limited quantities any- where, and cannot be sold; and where such liquors are kept in excess of the quantities allowed, the keeping or possessing of them is unlawful. The qualities of property theretofore existing in them were taken away, and it is competent for the legis- lature to declare that they may be seized, condemned, and destroyed upon order of the judge of the court having jurisdiction; and such provision is a valid exercise of the police power of the state, and not un- constitutional on the ground that it does not provide for a hearing. Delaney v. Plunkett (Ga.) 1917E-685. 18. Prohibition of Possession for Per- sonal Use. The restriction as to amount of intoxicating liquors that a citizen is allowed to keep in a building used solely as a dwelling or residence is not uncon- stitutional. Delaney v. Plunkett (Ga.) 1917E-685. (Annotated.) 19. These laws are not ex post facto in their character nor retroactive. Delaney T. Plunkett (Ga.) 1917E-685. 20. These prohibitory laws are not un- constitutional on the ground that they hinder, impede, and interfere with the power of Congress to regulate interstate commerce. Delaney v. Plunkett (Ga.) 1917E-685. 21. The acts of the general assembly, aoproved November 17, and November 18, 1915, hereinafter called the prohibitory laws or statutes (Georgia Laws Ex. Sess. 1915, pp. 77, 90), being acts to prohibit the manufacture, sale, keeping, etc., of in- toxicating liquors, and containing, among other provisions, an inhibition against keeping intoxicating liquors in any place of business or public place, and also against the keeping of such liquors in ex- cess of given quantities in any place what- soever, are a valid exercise on the part of the legislative body of the police power. Delaney v. Plunkett (Ga.) 1917E-685. 22. Presumption of Unlawful Use. The N. Car. search and seizure law (Acts 1913, c. 44), making the possession of more than one gallon of spirituous liquor prima facie evidence of keeping it for sale in viola- tion of law, is constitutional. State T. Eandall (N. Car.) 1918A-i38. 23. Purpose of Prohibition. The main purpose of the prohibition amendment to the constitution is to prohibit the manu- facture and sale in the state of intoxi- cating liquor, and the provision prohibit- ing the manufacture and sale in the state DIGEST. 1916C 1918B. Duluth is valid, though the provision prohibiting the introduction into the state of intoxi- cating liquor is invalid as interfering with interstate commerce. Gherna v. State (Ariz.) 1916D-94. (Annotated.) 24. Validity of Statute Bringing Liquor into Dry Territory. The provision of Hazel Law (27 Del. Laws, c. 139J 6, that no person, in quantities greater than one gallon in 24 hours, shall bring intoxicating liquors into local option territory from any point within the state, bears a substantial relation to the sale of intoxicating liquor in prohibited territory, and therefore is a proper exercise of the police power of the state, and not an abridgment of the privi- leges of citizens, guaranteed by Const. U. S. Amend. 14. Van Winkle v. State (Del.) 1916D-104. 25. Validity of Exception Physicians and Druggists. The Hazel Law (27 Del. Laws, c. 139) provides by section 5 that it shall not apply to the shipment or de- livery to physicians or druggists of such liquors in unbroken packages not exceed- ing five gallons at any one time, and by section 6 prohibits any person from bring- inf into local option territory any liquor greater than one gallon within 24 hours. Const. Del. art. 13, 1, provides for an election to determine whether the sale of liquors in certain districts shall be licensed or prohibited, and that, after a vote against license, no person shall thereafter manufacture or sell liquors except for medicinal or sacramental purposes. The Prescription Act (26 Del. Laws, c. 147) re- quires all prescriptions for intoxicating liquors for medicinal purposes to be writ- ten by practicing physicians. Held, in view of the recognized necessity of liquor as a drug, and therefore readily to be ob- tained by those authorized to prescribe or sell it, that the discrimination in favor of physicians and druggists was reasonable, and that the Hazel Law did not deny the equal protection of the laws. Van Winkle v. State (Del.) 1916D-104. 26. Validity of Prohibitory Law. The state, in the exercise of its police power, may prohibit the manufacture and sale in the state of intoxicating liquors. Gtferna v. State (Ariz.) 1916D-94. 27. Effect of Prohibitory Amendment. The Ariz, prohibition amendment to the constitution annuls existing laws permit- ting the manufacture and sale of intoxi- cants under licenses or other restrictions. Gherna v. State (Ariz.) 1916D-94. 28. Validity of Prohibitory Amendment. The Ariz, prohibition amendment to the constitution does not deprive liquor deal- ers of their property without due process of law, and does not discriminate against citizens of other states, though it may de- prive dealers of the right to pursue the business which was previously la svf ul and INTOXICATING LIQUORS. 465 diminish the ralue of the property de- voted to the business. Gherna v. State (Ariz.) 1916D-94. 29. The Ariz, prohibition amendment to the constitution is not an ex post facto law, in so far as it prohibits the sale of liquor in existence at the time of its adop- tion. Gherna T. State (Ariz.) 1916D-94. Note. Validity of statute forbidding bringing of liquor into prohibition territory. 1917A 740. b. Eegulating Sale to Indians. 30. Shipments of Liquor into Indian Territory. Act March 1, 1895, c. 145, 8, 28 Stat. 697 (3 Fed. St. Ann. 424), which inter alia prohibits the carrying of intoxi- cating liquors into Indian Territory, was enacted as a part of the recognized guard- ianship by the United States of the Indians as a separate but independent people, and in the exercise of the constitu- tional power of Congress to regulate com- merce with the Indian tribes, and was not repealed by the Enabling Act of Okla- homa, and the admission of the state there- under, as to importation from paits of the state not within the former Indian Terri- tory, and an indictment for conspiracy to violate said act by carrying liquor into such territory need not allege that it was to be imported from without the state of Oklahoma. Joplin Mercantile Co. v. United States (Fed.) 1916C-470. 31. In none of the legislation of Con- gress prohibiting the introduction of liquor into the Indian country have state lines been recognized, but the acts prohibited have always been held unlawful whether the liquor was introduced from points within the same state or from without. Joplin Mercantile Co. v. United States (Fed.) 1916C-470. c. Qualification of Dealers. 32. Where names signed to a statement of consent to the sale of intoxicating liquors were spelled differently from the names in the poll books, but the names would be pronounced the same, the doc- trine of idem sonans will apply, and the names must be counted. Kiley v. Litch- field (Iowa) 1917B-172. 33. Proceeding for Permission to Sell. A proceeding under the mulct law for per- mission to sell intoxicating liquors pursu- ant to a statement of consent, though spe- cial, is at law. Kiley v. Litchfield (Iowa) 1&17B-172. 34. Mode of Trial. Iowa Code, 2450, providing for the filing of statements of consent to the sale of intoxicating liquors, and authorizing any aggrieved party to appeal from the decision of the bo?.rd of Bupervisors to the district court, where the 30 matter shall be tried de novo, requires a trial in the district court as though not previously heard. Eiley v. Litchfield (Iowa) 1917B-172. 35. Signatures Conformity to Poll Book. Where the names on a statement of consent to the sale of intoxicating liquor and on the poll books are the same, the identity of the signers with the elec- tors whose names are on the poll books is presumed, but the presumption may be overcome. Eiley v. Litchfield (Iowa) 1917B-172. 36. Signature by Incorrect Name. Where persons signing a statement of consent to the sale of intoxicating liquor testified that the names signed by them were not their true names, but that the change in the signatures was to make the names con- form with those on the poll books, and not to deceive, but there was nothing to show that other persons resided in the city bearing the names appearing on the poll books, the names must be disregarded in determining the number of signers on the statement. Eiley v. Litchfield (Iowa) 1917B-172. 37. Where "C. A. Oppelt" signed a state- ment of consent as "E. A. Oppelt," the name appearing on the poll book, and he testified to having resided in the city and to having voted at the last preceding elec- tion and that there was no one living in the city by the name of "Oppelt" except- ing himself and son, and that the son had never voted, but did not know whether a person by the name of "E. A. Oppelt" voted, the person signing as "E. A. Op- pelt" was "C. A. Oppelt," and his name must be counted. Eiley v. Litchfield (Iowa) 1917B-172. 38. Where persons signing a statement of consent to the sale of liquor testified that the names signed by them were not their true names, evidence that the change in signatures was to make the names con- form with those on the poll books and not to deceive, and that all of them were reg- istered in their true names, but none of their true names appeared on the poll books, is admissible as against the objec- tion that the evidence varied or explained the names on the poll books. Eiley v. Litchfield (Iowa) 1917B-172. 39. Where electors signing a statement of consent to the sale of liquor, on dis- covering that their true names were not on the poll books, signed the names to the statement corresponding with those on the poll books, supposed to have been written for them by the judges of election, pursu- ant to advice of canvassers to procure signatures to a statement of consent, the canvassers are not chargeable with in- ducing electors to sign names other than their own. Eiley v. Litchfield (Iowa) 1917B-172. 466 40. Affidavit to Signatures. pose of Iowa Code, 2452, declaring that the signing of a name of another to any statement of consent shall be punishable as forgery, and every statement shall be accompanied by affidavit of some repu- table person showing that these persons personally witnessed the signing of each name thereon, and any false statement in the affidavit shall be punishable as per- jury, is that each signer shall be identified as the person named, so that a genuine statement may form the basis of subse- quent proceedings, and a canvasser who procured over 200 signatures to which he made affidavit, and who admitted that he did not know over half of them, and had never seen them before or since the sign- ing of the petition, and only knew their names because attached to the statement, is guilty of perjury in the performance of his work and is not a reputable person, and the signatures procured by him must be excluded. Biley v. Litchfield (Iowa) 1917B-172. 41. Effect of Death or Removal of Signer. Iowa Code, 2448, 2452, provid- ing that a statement of consent to the Bale of intoxicating liquors signed by a. majority of the voters as shown by the poll list shall, if found sufficient, be effec- tual, and that no name shall be counted that is not signed within thirty days prior to the filing of the statement, imply that all signing within thirty days prior to the filing shall be counted, and fired the period during which signatures may be procured, and the thirty days mentioned is that period, and a name signed within that time and while a resident of the municipality must be counted, though he has since that time removed from the city or has died. Eiley v. Litchfield (Iowa) 1917B-172. 42. Qualification of Signers. The poll list of the electors is conclusive evidence of those who voted at the election in de- termining whether a statement of consent to the sale of liquor 'has been signed by the requisite number of electors, and the law does not contemplate an investigation as to who had the right to vote, but it is sufficient that the name appeared on the poll lists. Eiley v. Litchfield (Iowa) 1917B-172. 43. Withdrawal of Signature. Electors signing a statement of consent may re- voke withdrawals not filed, and may file revocation of withdrawals prior to the tak- ing effect of withdrawals. Eiley v. Litch- field (Iowa) 1917B-172. 44. Validity of Local Option Law. As the colored electors are entitled to vote on the question whether the sale of intoxi- cants shall be licensed, which is submitted at the biennial general state elections, and may present a petition for the suppression of the sale of intoxicants, under the Ark. DIGEST. 1916C 1918B. The pur- Three Mile Local Option Law (Kirby's Dig. 5128-5132), it cannot be held that thev are unlawfully deprived of any voice in the suppression of liquor traffic by the Going Act, which requires a petition, signed by a majority of white electors, as condition to the granting of a license. Wade v. Horner (Ark.) 1916E-167. (Annotated.) 45. The Ark. Going Act does not deprive colored citizens of the right of remon- strance against the issuance of a license; such persons having the same right to make themselves parties to a proceeding for the issuance of a license as any other elector, and to present their remonstrances in the same manner. Wade v. Horner (Ark.) 1916E-167. (Annotated.) 46. Validity of Statute Discriminating Against Eace. The Going Act (Acts Ark. 1913, p. 180), providing that whrn a ma- jority of the adult white inhabitants of a city or town petition the county court, asking that a license for the sale of in- toxicants be issued, the court may issue such license, if the majority of the votes cast at the last election was in favor of license, merely prescribes a condition pre- cedent to the issuance of a license, and is not invalid under either the state or fed- eral constitution, as providing for an elec- tion from which electors of African de- scent were illegally excluded. Wade v. Horner (Ark.) 1916E-167. (Annotated.) Note. Validity of intoxicating liquor statute which makes distinction between races with respect to granting of license or otherwise. 1916E-170. d. Conflict Between Statute and Ordi- nance. 47. Regulation of Transportation. An ordinance which attempts to regulate the transportation of intoxicating liquors within the city for legal purposes, and to prohibit such transportation for illegal purposes, but which does not permit the transportation of such liquors for all of the purposes recognized as legal by the law of the state, is invalid; and a judg- ment quashing a complaint drawn under such an ordinance will be sustained. Kan- sas City v. Jordan (Kan.) 191SB-273. (Annotated.) 48. Club House System as Nuisance. Under statutory power to declare what shall be nuisances and abate them, a town cannot, by ordinance, make the clubhouse locker system of receiving and using in- toxicating liquors in an orderly way a nuisance. Cortland v. Larson (111.) 1916E- 775. (Annotated.) 49. The ordinance was not within the town's police power for the orderly recep- INTOXICATING LIQUORS. 467 tion, keeping, and use of intoxicating liquors by private individuals, and does not affect the public welfare or health. Cortland v. Larson (111.) 1916E-775. (Annotated.) 50. Prohibition of Possession for Per- sonal Use. Under charter power to "regu- late, prohibit and license the selling of in- toxicating liquors," a town cannot enact an ordinance prohibiting club members from receiving ana keeping intoxicating liquors for their individual use in club- house lockers. Cortland v. Larson (HI.) 1916E-775. (Annotated.) e. Annulment of License. 51. The Ariz, prohibition amendment to the constitution does not impair the obli- gation of contracts, though prohibiting the sale of liquor by existing licensed dealers. Gherna v. State (Ariz.) 1916D-94. 52. The prohibition amendment to the constitution is not invalid as confiscating the license money paid by liquor dealers, or because depreciating lease rentals and stocks of liquor, for these have no bearing on the right to sell liquor after the revo- cation of a license. Gherna v. State (Ariz.) 1916D-94. 53. Revocation of Licenses by Statute. The state, in the exercise of its police power, may revoke liquor licenses, and whether the law is confiscatory may be litigated, provided the state permits the bringing of an action against it for that purpose. Gherna v. State (Ariz.) 1916D- 94. f. Regulating Transportation. 54. Under the laws of Kansas cities of the first class have power to pass ordi- nances regulating the transportation of intoxicating liquors for legal purposes and prohibiting such transportation for illegal purposes. Kansas City v. Jordan (Kan.) 391SB-273. (Annotated.) 55. Such an ordinance as is mentioned in section 1 of this syllabus is a law of this state within the meaning of the United States Constitution, and of the Webb-Kenyon Act (Part 1, 37 U. S. Stat. at Large, c. 90, p. 699, 4 Fed. St. Ann. (2d ed.) 593). Kansas City v. Jordan (Kan.) 1918B-273. (Annotated.) 56. Such an ordinance as is mentioned in section 1 of this syllabus is not an un- lawful regulation of interstate commerce. Kansas City T. Jordan (Kan.) 1918B-273. (Annotated.) 57. A city ordinance regulating the transportation of intoxicating liquors for legal purposes, and prohibiting such trans- portation for illegal purposes, is consis- tent with the law of this state regulating the transportation and delivery of intoxi- cating liquors. Kansas City v. Jordan (Kan.) 1918B-273. (Annotated.) g. The Webb-Kenyon Act. 58. The Webb-Kenyon Act (Part 1, 37 U. S. Stat. at Large, e. 90, p. 699, Fed. St. Ann. 1914 Supp. p. 208), removing the in- terstate character and protection from in- toxicating liquor shipped into a state for the purpose of use in violation of its laws, is a valid exercise of the commerce power vested in Congress by the Constitution. State v. Missouri Pacific E. Co. (Kan.) 1917A-612. 59. The act is not void as a delegation of power over interstate commerce, but is a legitimate exercise of such power. State v. Missouri Pacific E. Co. (Kan.) 1917A- 612. 60. State Regulation of Transportation. The Hahin Act (Laws Kan. 1913, c. 248) is not void as an attempt to regulate in- terstate commerce, but, complementary to the Webb-Kenyon Act, is a valid enact- ment concerning the bringing into the state of intoxicating liquors for unlawful nse here. State v. Missouri Pacific E. Co. (Kan.) 1917A-612. (Annotated.) 61. There is nothing repugnant to the due process of law clause, of U S. Const. 5th Amend. (9 Fed. St. Ann. 288), in the provisions of the Webb-Kenyon Act of March 1, 1913 (37 Stat. at L. 699, c. 90, Fed. St. Ann. 1914 Supp. p. 208), upder which an interstate shipment of intoxi- cating liquor, though intended for personal use, may be subjected to the state pro- hibitory laws. James Clark Dist. Co. v. Western Md. E. Co. (U. S.) 1917B-845. (Annotated.) 62. Congress did not exceed its power under the commerce clause in enacting the provision of the Webb-Kenyon Act of March 1, 1913 (37 Stat. at L. 699, c. 90, Fed. St. Ann. 1914 Supp. p. 208), forbid- ding the interstate shipment or transpor- tation of intoxicating liquor which is in- tended by any person interested therein to be received, possessed, sold, or in any manner used, either in the original pack- age or otherwise, in violation of any law of the state into which the liquor is trans- ported. James Clark Dist. Co. v. Western Md. E, Co. (U. S.) 1917B-845. (Annotated.) 63. Validity and Effect of Webb-Kenvon Law. Any immunity from the prohibi- tions of W. Va. Code 1913, c. 32A, as amended by Laws 1915, c. 7, 7. Laws 1915, 2d Ex. Sess. p. 660, 34, against the shipment from without the state of intoxi- cating liquors intended for personal use, and the receipt and possession of liquors so transported, which the interstate char- acter of such a shipment might otherwise give, is taken away by the provisions of 463 DIGEST. 1916C 1918B. the Webb-Kenyon Act of March 1, 1913 (37 Stat. at L. 699, c. 90, Fed. St. Ann. 1914 Supp. p. 208), forbidding the inter- state shipment or transportation of intoxi- cating liquor which is intended by any person interested therein to be received, possessed, sold, or in any manner used, either in the original package or other- wise, in violation of the law of the state to which the liquor is transported, al- tnough individual use may not have been prohibited by the West Virginia law. James Clark Dist. Co. v. Western Md. R. Co. (U. S.) 1917B-845. (Annotated.) 64. The Webb-Kenyon law, prohibiting the transportation of liquors from one state into another, to be received, kept, or used jn violation of the law of the lat- ter state, thereby divesting intoxicating liquors of their interstate character in so far as the power of the state to regulate the sale or disposition thereof and ship- ments into the state for that purpose is concerned, is valid. Gottstein v. Lister (Wash.) 1917D-1008. 65. Effect on State Legislation, Such initiative measure is not invalid as an in- terference with interstate commerce, since the Webb-Kenyon act (Act March 1, 1913, c. 90, 37 Stat. 699 [4 Fed. St. Ann. 2d ed. 593]) divests intoxicating liquors of their interstate character in so far as the power of the state to regulate the sale and dis- position thereof and the shipment into the state for that purpose is concerned. Gott- stein' v. Lister (Wash.) 1917D-1008. 66. Prohibition of Importation. The May-Mott-Lewis Act (Laws Miss. 1914, c, 127) 2, 7, and 11, par. 2, making it unlawful for any person to order and have shipped to him, or for him to receive from without the state, intoxicating liquors in excess of one gallon, though imposing a direct burden on interstate commerce, is authorized by the Webb-Kenyon Act (Act March 1, 1913, c. 90, 37 Stat. 699), divest- ing intoxicating liquor of its interstate character, when it is intended by any per- son interested therein to be received in violation of their busi- ness, evidence as to the standing and repu- tation of one of the plaintiffs and of his family in the community is immaterial, since injury to the reputation and feel- ings of either partner, as an individual, is not an issue. Wilson v. Sun Pub. Co. (Wash.) 1917B-442. 109. Malice How Proved. Malice in fact may be proved, not only by evidence that defendant made the alleged untrue defamatory statements out of hatred for plaintiff, but by evidence that defendant under circumstances of privilege went outside the privilege. Doane v. Grew (Mass.) 1917A-338. 110. Proof of Time and Place. The plaintiff, in an action for slander, should not be held to strict accuracy in his proof of the time of publication, so long as the variance between his proof and the alle- gation does not bring the case within the statute of limitations, or mislead defend- ant to his injury, or amount to a palpa- ble fraud on the court. Anderson v. Shockley (Mo.) 1918B-500. 111. Where the petition, in an action for slander, charges that the defamatory words were spoken at a certain place, on a certain date, in the presence and hear- ing of a certain witness, plaintiff cannot recover, unless the evidence shows that the words were spoken as charged, though it appears that the same words were spoken to other parties at different times and places. Anderson v. Shoekley (Mo.) 1918B-500. e. Trial. 112. Amendment as Ground for Con- tinuance. In an action for libel, a trial amendment by a specific allegation that the publication was false presented no new issue, where the complaint averred the opposite of the published charges and the answer alleged their truth, so that the defendant's motion for a continuance is properly denied. Wilson v. Sun Pub. Co. (Wash.) 1917B-442. 113. How Urged at Trial. In slander action, the question of qualified privilege, although not expressly urged upon the trial judge, is properly raised by motion for directed verdict for defendant, as such motion presented the question of lia- bility upon the entire record. Southern Ice Co. v. Black (Tenn.) 1917E-695. 516 DIGEST. 1916C 1918B. f. Evidence. (1) Presumptions and Burden of Proof. 114. Burden of Proof as to Malice. Where defendant pleads privilege as a de- fense to slander, the burden is on plain- tiff to prove malice, and not on defendant to show that the words were privileged, for which she was not answerable. Doane v. Grew (Mass.) 1917A-338. 115. Right of Recovery Nominal Dam- ages Presumed. Plaintiffs, in an action for the publication of words actionable per se, are at least entitled to nominal damages, unless the published charges were true. Wilson v. Sun Pub. Co. (Wash.) 1917B- 442. 116. Malice Imputation as Between Editor and Publisher. Where the editor and publisher of a newspaper were both sued for libel, and it did not appear that they had entered into a conspiracy, proof of actual malice on the part of one of them will not be imputed as to the other; for one might have published the libel in good faith, while the other was actuated by malice. Egan v. Dotson (S. Dak.) 1917A-296. 117. Burden of Proving Truth of Charge. In a libel case the defendant has the bur- den of proving the truth of the charges. Egan v. Dotson (S. Dak.) 1917A-296. 118. Judicial Notice of Unions. The court will take notice that union labor constitutes a large, influential, and well- organized body of the laboring people of the state and country, that the wage- earners, including those who are members of the union, compose a large part of the population, and that labor unions have adopted and promulgated rules and regu- lations for the protection and guidance of labor, which are carefully observed by the members. Axton Fisher Tobacco Co. v. Evening Post Co. (Ky.) 191SB-560. (Annotated.) 119. Malice Avoiding Privilege Bur- den of Proof. In slander action, where defendant has a qualified privilege, the burden of proof is on the plaintiff to show that the words were used to express malice toward him. Southern Ice Co. v. Black (Tenn.) 1917E-695. 120. Presumption of Damages. The law presumes damages resulting from the ut- terance of insulting words, made action- able by the statute, as it does where the words are actionable per se; so that, to recover, proof of actual or pecuniary loss is unnecessary. Boyd v. Boyd YVa.) 1916D-1173. 121. Presumption Against Malice. In addressing such a petition to the munici- pal authorities, the petitioners are pre- sumed to act without malice-, the burden being on the party complaining to show the contrary. McKee v. Hughes (Tenn.) 1918A-459. (Annotated.) 122. The presumption of knowledge of the law cannot be made the basis of im- puted bad faith on defendants' part in presenting such petition to the board for the abatement of a condition not a nui- sance per se which could be legally abated only by judicial proceedings. McKee v. Hughes (Tenn.) 1918A-459. (Annotated.) (2) Admissibility of Evidence. 123. Reputation of Plaintiff Receiving Proof Out of Order. In an action for slander plaintiff was permitted over de- fendant's objections to offer evidence in chief of her reputation and character. Held, that the evidence was not admissi- ble in chief, but since it only tended to prove a fact which the law will presume, its admission was not material. Conrad v. Roberts (Kan.) 1917E-891. 124. Republication by Others. In an action against a newspaper for libel, evi- dence that the alleged libelous article was republished by other newspapers is not admissible, and is not rendered so be- cause the same reporter who reported to defendant also reported it to the other papers. Age-Herald Publishing Co. v. Waterman (Ala.) 1916E-900. (Annotated.) 125. Evidence as to Damages Inadmissi- ble. In such action, evidence that one of the plaintiffs had bought his half interest for $6,500, and that the latter, when he sold, received "for the whole outfit" $3,500, without indicating whether that represented one-half of the sale price or the whole sale price, is inadmissible, espe- cially where it appeared that, prior to the publication, plaintiffs' business was already falling off at a rate not accel- erated by the publication. Wilson v. Sun Pub. Co. (Wash.) 1917B-442. 126. Relevancy Justification of Reflec- tion of Chastity of Female. On a trial for delivering to a 15-year old girl an anony- mous letter reflecting on her integrity, chastity, etc., evidence that on the night before the delivery of the letter accused was seen hugging and kissing such girl is properly excluded, in the absence of any showing that this was with her con- sent or permission, as otherwise such con- duct would not have' reflected on her. Bradfield v. State (Tex.) 1917C-696. 127. Identity of Person Libeled Evi- dence Testimony of Readers as to Their Understanding. In case of doubt as to the person intended by the writer of a libel, it is competent to show the under- standing of persons to whom it was pub- lished as to the person referred to; the question being not what person the writer LIBEL AND SLANDER. 517 in his own mind intended to mention, but what person the readers of the libel were reasonably caused to understand was therein intended. Garrison v. Newark Call Printing, etc. Co. (N. J.) 1917C-33. (Annotated.) 128. Such understanding may be shown by the testimony of the persons to whom the libel was published. Quaere, whether it may be shown by evidence of their declarations. Garrison T. Newark Call Printing, etc. Co. (N. J.) 1917C-33. (Annotated.) 129. On this point it was competent to show that plaintiff, claiming to have been libeled as to her matrimonial fidelity, found it necessary to appear oftener with her husband in public than ordinarily would have been required. Garrison v. Newark Call Printing, etc. Co. (N. J.) 1917C-33. 130. Evidence of Damage. In an action of libel, evidence otherwise competent and tending to show that by reason of the publication plaintiff became the sub- ject of an unsavory publicity is proper. Garrison v. Newark Call Printing, etc. Co. (N. J.) 1917C-33. 131. Previous Discussion of Subject- matter of Libel. On the question of dam- ages for a newspaper libel, it was compe- tent to show that a scandal with which the libel connected plaintiff had been a matter of public notoriety and newspaper comment when it first occurred. Garrison v. Newark Call Printing, etc. Co. (N. J.) 1917C-33. 132. Other Publications. Where defend- ants assert that their charges concerning plaintiff, a candidate for office, were privi- leged, because made in good faith and under a belief of truth, evidence showing other publications of the charge should be received not only in mitigation of damages, but in support of the claim of privilege. Egan v. Dotson (S. Dak.) 1917A-296. 133. Where, in an action for slander, the court instructed that, to entitle plain- tiff to recover, the evidence must show that the defamatory words stated in the petition were spoken by defendant of and concerning plaintiff at the time and place and in the presence of the witness alleged, the refusal of an instruction that evidence of defendant's having spoken concerning plaintiff, at a different time and place and in the presence of others, defamatory words similar to those charged, could be considered as tending to prove express malice, required reversal of a judgment for defendant. Anderson y. Shockley (Mo.) 1918B-500. Note. Admissibility of testimony of readers or hearers of libel or slander as to their understanding of identity of person de- famed. 1917C-36. (3) Sufficiency of Evidence. 134. Malice Evidence too Eemote. In an action for alleged slander, evidence that plaintiff, on applying for a position as nurse to certain persons, and referring them to defendant for character, received word in each case that her services were not required, was too remote to show de- fendant's state of mind toward plaintiff. Doane T. Grew (Mass.) 1917A-338. 135. Evidence of Malice Sufficient. In an action for slander, in which defendant claimed privilege, evidence held to require submission of the question of defendant's malice to the jury. Doane v. Grew (Mass.) 1917A-338. 136. Repetition by Initial Libeler. In an action for libel, a repetition by de- fendant of the libelous words is evidence of malice, and may thereby aggravate the damages. Age-Herald Publishing Co. T. Waterman (Ala.) 1916E-900. 137. Evidence of Damage Insufficient. In an action for a newspaper libel charg- ing plaintiffs' partnership cafe was hot, dirty, unsanitary, and poorly ventilated, evidence considered and held not to show any actual damages to plaintiffs' busi- ness. Wilson v. Sun Pub. Co. (Wash.) 1917B-442. 138. Evidence of Malice Conclusive- ness. That defendants disliked plaintiff, a candidate for public office, whom they charged with offenses and moral turpi- tude, does not show malice, although it is competent evidence on that question. Egan v. Dotson (S. Dak.) 1917A-296. 139. Truth as Justification Charge of Hypocrisy. Evidence in libel that at plaintiff's request to frustrate fraud of a party, satisfaction of judgment against whom plaintiff had just entered, the clerk marked out the satisfaction, is insufficient to sustain any implied .finding that plain- tiff was a hypocrite or in the habit of altering public record-s, but merely shows he was in error as to the lawful method of correcting the attempted fraud. New- by v. Times-Mirror Companv (Cal.) 1917E-186. g. Province of Court and Jury. 140. The question of good faith and malice is one for the jury. Dwyer v. Libert (Idaho) 1918R-973. (Annotated.) 141. Words Used in Qualified Sense Question for Jury. The sense in which actionable words were used, when the utterance thereof has been attended by facts and circumstances indicating their use in a qualified sense, so as to make 518 DIGEST. 1916C 1918B. them convey, to those who heard them, a meaning different from the one ordi- narily accorded them, is a question for jury determination. Alderson v. Kahle (W. Va.) 1916E-561. 142. Question for Jury Truth of Libel Conflicting Evidence. In an action for a newspaper libel, where there was con- flicting evidence as to the truth of the charges set up in justification, their truth is a question for the jury. Wilson v. Sun Pub. Co. (Wash.) 1917B-442. 143. Exceeding Privilege Question for Jury. On an issue as to whether slanderous words were in excess of a privileged occa- sion, the question for the jury in each case depends or may depend on the form in which the defamatory words have been put by the defendant, taken in connection with the knowledge or information which defendant had as to the defamatory state- ments. Doane v. Grew (Mass.) 1917A- 338. h. Instructions. 144. In an action against a newspaper for libel, it is error to charge, "I charge you .that under the law of Alabama this defendant, the Age-Herald Publishing Company, is responsible for the publica- tion of any libel which may result in ac- tionable injury", since it authorized a recovery for publications made by other newspapers than defendant. Age-Herald Publishing Co. v. Waterman (Ala.) 1916E- 900. (Annotated.) 145. Repetition of Libel. In the ab- sence of evidence that one to whom de- fendant spoke slanderous words repeated them to any other person, requested in- struction precluding recovery for repeti- tion by such person is properly refused. Viss v. Calligan (Wash.) 1918A-S19. 146. As to Privilege. In an action by a candidate for office for libel published concerning him, instructions that defend- ants, who pleaded privilege, set up in their answer various grounds which did not constitute a defense, but might be considered in mitigation of damages, and that any evidence which does not prove the truth of the charge can be considered only in mitigation of damages, being con- trary to other instructions and to the rule of law which makes such a communication privileged if made in good faith on rea- sonable grounds, are prejudicial. Egan v. Dotson (S. Dak.) 1917A-296. (Annotated.) 147. Instruction as to Malice Mislead- ing. An instruction that, to constitute actual or express malice, which plaintiff, a candidate for office, who claimed to have been libeled, must show to recover, he must establish that in publishing the ar- ticles the defendants made use of the privilege which is accorded to all news- papers to discuss the moral character of candidates for a public office as governor as a cover for publishing false statements, is misleading. Egan v. Dotson (S. Dak.) 1917A-296. 148. Assumption of Fact. An instruc- tion in a libel case which assumed the falsity of the publication was erroneous. Egan v. Dotson (S. Dak.) 1917A-296. 149. Privilege of Political Criticism. In an action for slander, where defendant claims that the statements were privileged comment on plaintiff's qualifications as a candidate for office, an instruction that every man has a right honestly and truth- fully to comment about any person, that public interest demands that the qualifi- cations of candidates may be openly dis- cussed, but that the privilege does not protect false statements maliciously made, or untrue accusations uttered for the pur- pose of character injury, or false charges of dishonesty in the man's profession made with reckless indifference as to its truth and a desire to injure, is suffi- ciently favorable to defendant. Pattan- gall v. Mooers (Me.) 1917D-689. 150. Requested Instructions Covered by Charge. In an action for slander, the court refused defendant's request charg- ing that it was for the jury to determine whether the words were spoken concern- ing plaintiff's profession as an attorney at law, remarking that he had covered that point, and informing the jury that they should construe the slanderous charge ac- cording to its ordinary meaning. Defend- ant further requested charges that the > fact that plaintiff was a candidate for office rendered the communication made with reference to such candida'cy quali- fiedly privileged, and plaintiff could re- cover only by showing actual malice, and that plaintiff could not recover if defend- ant spoke the words in good faith. In passing on these requests the court re- marked that the jury had heard the testi- mony and arguments of counsel upon the request, and that it was for them to show under the instructions given how those words were spoken and for what purpose. It is held that, in view of the other in- structions and the remarks of the court, the refusal of defendant's request was not error. Pattangall v. Mooers (Me.) 1917D- 689. 151. Mitigation of Damages. Instruc- tions given in an action for slander so drawn as to limit the effect of mitigating circumstances to the inquiry as to the ex- istence of actual malice, deprive the de- fendant of the benefit of the considera- tion of such facts by the jury in the ascertainment of the amount of the damages and are erroneous. Alderson v. Kahle (W. Va.) 1916E-561. ' 152. Ignoring Defense of Privilege. Where, in an action for libel, there were LIBEL AND SLANDER. 519 special pleas by defendant alleging that the matter was privileged and evidence to support them, charges to find for plain- tiff if the jury were reasonably satisfied that plaintiff had been injured in the manner averred in the complaint are erro- neous. Age-Herald Publishing Co. v. Waterman (Ala.) 1916E-900. 153. Newspaper Cartoon as Libel. An implied finding that a newspaper cartoon would not to an ordinary reader bear the meaning that plaintiff in libel was a hypo- crite posing as a reformer is unwarranted, it being headed, "And These are Our Leading 'Eeformers,' " below it being, "All hypocrites are sinners, but, thank God, all sinners are not hypocrites," and the persons, other than plaintiff, shown, being portrayed as engaged in transac- tions disreputable, dishonest, or ridicu- lous, and plaintiff with a sinister expres- sion. Newby v. Times-Mirror Company (Cal.) 1917E-186. (Annotated.) i. Damages. 154. Mental Distress, Mental distress resulting from the speaking of words actionable per se is a proper element of general damages. Viss v. Calligan (Wash.) 1918A-819. 155. Excessiveness of Damages. There is no exact rule by which general dam- ages for libel or slander can be measured, and the amount must be left largely to the judgment of the jury, so that, unless the damages are so large that the court can say that the jury was actuated by passion or prejudice, the amount found by the jury will not be disturbed. Viss v. Calligan (Wash.) 191SA-819. 156. Libel Causing Defeat of Candidate. The only damages plaintiff can recover are those contemplated by S. Dak. Code, 29, defining libel as a false unprivileged com- munication, exposing a person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned, or which tends to injure him in his occupation, and a libeled candidate for office cannot recover damages because the charges prevented him from receiving the nomination. Egan v. Dotson (S. Dak.) 1917A-296. 157. Mitigation of Damages Bad Repu- tation of Plaintiff. In an action for slan- der, defendant may in mitigation of dam- ages show that plaintiff's reputation as a man of integrity was bad. Pattangall v. Mooers (Me.) 1917D-689. 158. In an action for slander, where defendant desired to show the bad repu- tation of plaintiff in mitigation of dam- ages it must be proven by testimony as to his general reputation, and not by evi- dence of specific accusations of miscon- duct. Pattangall v. Mooers (Me.) 1917D- 689. 159. Intoxication as .Mitigation. In such cases, intoxication of the defendant at the time of his use of the slanderous words is a mitigating circumstance, proper for the consideration of the jury in esti- mating the damages. Alderson v. Kahle (W. Va.) 1916E-561. (Annotated.) 160. Provocation as Mitigation. Pro- vocation by the plaintiff, inducing the ut- terance of the slanderous words, is a miti- gating circumstance also. Alderson v. Kahle (W. Va.) 1916E-561. 161. Damage to Partnership Business. In an action for a libelous newspaper pub- lication relating to a cafeteria conducted by plaintiffs as copartners, where there is little evidence of injury to the reputation of either partner, as an individual, and no evidence as to the injury of the sep- arate business of either, the only damages recoverable are such as resulted in injury to the partnership business itself and to the partners in their joint capacity. Wil- son v. Sun Pub. Co. (Wash.) 1917B-442. 162. Punitive Damages When Allowed. Punitive or exemplary damages are not re- coverable, except where specifically au- thorized by statute. Wilson v. Sun Pub. Co. (Wash.) 1917B-442. Notes. Intoxication as justification or mitiga- tion of slander. 1916E-564. Loss of election or appointment to office as element of damages for libel or slander. 1918B-1130. j. Appeal and Error. 163. Physical Effect of Libel on Plain- tiff Evidence Held Harmless. Evidence that the plaintiff was rendered "nervous" as a result of a libel held not harmful, in view of its being restricted at the trial and in the instructions to the jury, to mental agitation and disturbance. Gar- rison v. Newark Call Printing, etc. Co. (N. J.) 1917C-33. 164. Harmless Error in Instruction. Where the controversy is as to whether slanderous words were spoken, an instruc- tion that, if the words were material or relevant to any issue involved in the trial during which they were spoken, there could be no recovery, is not prejudicial, even if erroneous. Viss v. Calligan (Wash.) 1918A-819. (Annotated.) 5. CRIMINAL LIABILITY, a. Actionable Words. 165. Anonymous Letters Criminal Lia- bility for Sending What Constitutes Sending. Pen. Code Tex. 1911, art. 1182, providing that if any person shall send, or cause to be sent, deliver, or cause to be delivered, to any other person any anony- 520 DIGEST. 1916C 1918B. mous letter reflecting upon the integrity, chastity, virtue, etc., of such person or any other person, the person so "sending" the letter shall be guilty of a misde- meanor, is violated where the writer of the letter himself delivers it to the person to whom it is addressed, in view of Code Cr. Proc. 1911, art. 25, requiring its pro- visions to be liberally construed to attain the object intended; Rev. St. 1911, art. 5502, subd. 6, requiring the court to look to the intention of the legislature; Pen. Code 1911, art. 9, requiring that code and all other criminal laws to be construed according to the plain import of the lan- guage without regard to the usual distinc- tion between penal and other laws; and article 10, providing that words specially defined shall be understood in that sense, and other words in the sense in which they are understood in common language. Bradfield v. State (Tex.) 1917C-696. (Annotated.) b. Indictment. 166. Description of Letter Sent by Ac- cnsed. Under Tex. Pen. Code 1911, art. 1182, making it a misdemeanor to send an anonymous letter "reflecting" on the in- tegrity, chastity, etc., of any person, a complaint and information charging the sending of a letter which "reflects" upon a person named is not defective. Brad- field v. State (Tex.) 1917C-696. 167. A complaint and information for sending an anonymous letter reflecting upon a person's integrity, chastity, etc., need not contain the letter, in view of Tex. Code Cr. Proc. 1911, art. 453, requir- ing only such certainty as will enable ac- cused to plead the judgment in bar of an- other prosecution; article 460, providing that it shall be sufficient to charge the offense in ordinary and concise language and with such certainty as will give de- fendant notice of the offense charged and enable the court to pronounce judgment; and article 474, providing that it is suffi- cient to use other words conveying the same meaning as the words used in a stat- ute or including the sense of the statutory words. Bradfield v. State (Tex.) 1917C- 696. 6. SLANDER OF TITLE. 168. Slander of Title Malice as Es- sential. "Slander of title" being defama- tion of title to property by one who falsely and maliciously disparages it, thereby causing its owner some special pecuniary loss or damages, one taking a deed of property as security, merely care- lessly relying on the grantor's false rep- resentation that he had an interest therein, is not liable for such slander; malice being lacking. Fearon v. Fodera (Cal.) 1916D-312. (Annotated.) LICENSE. Eevocation of license to sever, see Fix- tures, 6, 7. Liability of railroad for injury to en- gineer's guest, see Master and Ser- vant, 367. Injury to licensee on wharf, see Negli- gence, 14-16, 21. Duty toward licensee, see Railroads, 78-81. Rights of ticket holder, see Theaters and Amusements, 5. 1. Owners of Premises Licensees Chil- dren. A child of an employee of a cotton mill, falling into a drain into which the mill discharged the hot waters from the boilers when' cleaning them, is a licensee, where the drain is situated in an open square, made by the buildings and em- ployees' tenement houses, in which the employees and children are wont to con- gregate, though the drain is obscured by slag and briars. Thompson v. Alexander City Cotton Mills Co. (Ala.) 1917A-721. LICENSES. See Automobiles, 6-14; Hawkers and Ped- dlers, 2; Intoxicating Liquors, 2, 16, 44-46, 51-53, 70-75; Physicians and Surgeons, 3, 12, 13. Dog licenses, see Animals, 10. Practicing without license, see Attorneys, 6, 7. Conducting auction without license, see Auctions and Auctioneers, 3. Tax on foreign corporations, see Corpora- tions, 160. Excessive penalty, see Fines and Penal- ties, 1. Hunting licenses, see Fish and Game, 4-9,' 15, 18. Itinerant food venders, see Food, 8-12. Wholesale dealer in soft drinks, see Inter- state Commerce, 4. Dealer, meaning of, see Junk Dealers and Junk Shops, 1, 2. Colorable license as sale, see Monopolies, 9. Recovery of fee paid by mistake, see Pay- ment, 12. Payment of taxes as prerequisite to li- cense, see Taxation, 86. 1. Discretionary Power of Legislature Discrimination. The state has a wide dis- cretionary power in imposing license taxes, and unless there can be no substantial basis for discriminations made in classifi- cations and in fixing the amount of license taxes, so that such discriminations must be regarded as purely arbitrary and un- reasonable under every conceivable con- dition in practical affairs, the courts will not interfere with legislative regulations of such matters. State v. Philips (Fla.) 1918A-238. 2. Occupations Subject to Tax Extract- ing Turpentine. Miss. Laws 1912, c. 110, LICENSES. 521 levying a "privilege tax" or "occupation fee" upon persons pursuing the business of extracting turpentine from standing trees amounting to one-fourth of one cent each year for each cup or box, is in effect a "property tax," and violates Const. 1890, 112, declaring that taxation shall be uni- form and equal throughout the state, and that property shall be taxed in propor- tion to its value. Thompson v. McLeod (Miss.) 1918A-674. (Annotated.) 3. Transient Merchants' License Tax Validity. Acts 35th Gen. Assem. c. 62, imposing license taxes upon transient mer- chants, declares that, upon complaint to the county auditor that any person is do- ing business as a transient merchant in any city or tofwn of such county, the au- ditor shall require of such merchant and he shall furnish a bond in the sum of $1,000, conditioned that, if he do not continue business for the period of a year, he shall pay the license fee and all claims against him growing out of such business, but that, if he shall continue to conduct the particular business for the period of one year, he shall be held to be a perma- nent merchant not subject to the tax. There was no provision as to who might make the complaint, as to its verification, nor was hearing, notice, or opportunity of defense provided for. It is held that, while "due process of law" does not neces- sarily mean judicial proceedings, it always means some prescribed course of legal pro- ceedings, and hence the act is bad as tending to take property without due pro- cess of law, for any merchant upon the complaint of*any person might be required to give a bond or pay the license tax, and in such case to avoid payment of the li- cense tax could not dispose of his business within a year. State v. Osborne (Iowa) 1917E-497. (Annotated.) 4. Iowa Acts 35th Gen. Assem. e. 62, de- claring that, whenever it appears that a stock of goods has been brought into any county by a person who has not previously conducted a merchant business therein and it is claimed that such stock is to be closed out at reduced prices, such fact shall be prima facie evidence that such person is a transient merchant, is discrimi- natory in so far as it does not apply the same test to merchants if the merchant has ever in the past conducted a business in the county, and thus may impose a li- cense tax on one transient merchant, and not on the other. State v. Osborne (Iowa) 1917E-497. (Annotated.) 5. While the legislature may impose oc- cupation taxes upon merchants of a par- ticular class, Iowa Acts 35th Gen. Assem. c. 62, which attempted to impose license taxes upon transient merchants only when doing business in cities and towns, is bad because unequal. State T. Osborne (Iowa) 1917E-497. (Annotated.) 6. Iowa Acts 35th Gen. Assem. c. 62, 2, 5, 8, imposing license taxes upon transient merchants and including all per- sons, firms, and corporations, both princi- pal and agent, who do and transact any temporary or transient business in one lo- cality or more, or by traveling from place to place sell goods, wares, or merchandise, expressly excepts from its operation the selling of goods by commercial travelers and by "selling agents" in the usual course of business, and also the selling of farm and garden products. No standard is fixed by which the officer issuing the li- cense may differentiate between the agent who by sections 2 and 5 is forbidden to transact a temporary business without a license and the selling agent who by sec- tion 8 is exempted from such obligation. It is held that the statute is bad because making an unauthorized delegation of legislative powers to the license officer, for an agent employed by a traveling or tran- sient merchant to sell his goods is cer- tainly a "selling agent." State v. Osborne (Iowa) 1917E-497. (Annotated.) 7. Iowa Acts 35th Gen. Assem. c. 62, 2, requiring any transient merchant de- siring to do business in any county to first procure a license, and in sections 1 and 5 limiting its scope to transient merchants seeking to do business in cities and towns, and who for the purpose of carrying on such business hire, lease, or occupy a building, structure, or car for the exhibi- tion and sale of goods, is bad, as discrimi- natory, because not applying to the sim- ilar merchants selling goods from vacant lots, etc. State v. Osborne (Iowa) 1917E- 497. (Annotated.) 8. The manner and method provided for the enforcement of an act providing for license taxes must, whether it be intended to raise revenue or establish a police reg- ulation, be consistent with due process of law. State v. Osborne (Iowa) 1917E-497. 9. Under the bill of rights, guarantee- ing all persons the right to acquire, pos- sess, and enjoy property, license taxes upon merchants cannot be upheld under guise of the police power, where they are so exorbitant as to deprive owners of property of the right to dispose of it. State v. Osborne (Iowa) 1917E-497. 10. Where a license tax imposed under guise of the police power is intended to raise revenue or accomplish some ulterior motive, the courts will hold it unauthor- ized and void. State v. Osborne (Iowa) 1917E-497. 11. A license fee enacted as a police regulation for an occupation of a harmless nature must have some fair relation to the cost of issuing the license and ex- pense of police supervision. State v. Os- borne (Iowa) 1917E-497. 12. Excessive License Taxes. Where li- cense taxes are imposed upon an occupa- DIGEST. 1916C 1918B. tion of harmless character tinder the guise of the police power, the license fee must not be so exorbitant or oppressive as to prohibit the occupation or create a mono- poly for the benefit of a few. State v. Osborne (Iowa) 1917E-497. 13. Necessity of Uniformity of License Taxes. Where the classification of occupa- tions subjected to license taxes is valid, the taxes must, under Iowa Const, art. 1, 1, 6, and art. 3, 30, be uniform and bear equally upon each individual or per- son subjected to the tax. State v. Osborne (Iowa) 1917E-197. 14. Power to Classify Occupations. While the legislature has discretion to se- lect and classify the occupations or differ- ent kinds of business for which license fees shall be' exacted, the classification should not be unnatural or unreasonable. State v. Osborne (Iowa) 1917E-497. 15. Peddler's License Tax Validity. An ordinance imposing a license on ped- dlers having no regular place of business in the city, but who solicit therein orders for the sale and future delivery of tea, coffee, spices, etc., cannot be sustained as an exercise of the police power. Ideal Tea Co. v. Salem (Ore.) 1917D-684. 16. Power of Municipality Discrimina- tion Against Nonresidents. Iowa Const, art. 1, 20, forbidding laws granting to any citizen or class of citizens privileges or immunities which on the same terms shall not equally belong to all citizens, re- stricts the legislature and is a limitation on the common council of a city, and pre- vents any discrimination against nonresi- dents of a city in occupation or license taxes. Ideal Tea Co. v. Salem (Ore.) 1917D-684. 17. Employment Agencies Validity of Regulation. The enforcement by the at- torney general and county prosecuting at- torney of the provisions of the Washing- ton employment agency law (Wash. Laws 1915, c. 1), making it criminal to collect fees from workers for furnishing them with employment or with information leading thereto, may be restrained by a court of equity at the instance of persons conducting employment agencies under municipal licenses who assert that their business \vill be destroyed, contrary to U. S. Const. 14th Amend. (9 Fed. St. Ann. 392) by the enforcement of such statute. Adams v. Tanner (U. S.) 1917D-973. (Annotated.) 18. Prohibition, not regulation, is what is accomplished by the provisions of the Washington agency law (Wash. Laws 1915, c. 1), making it criminal to collect fees from workers for furnishing them with employment or information leading to such employment, although fees may still be collected from those seeking work- ers. Adams v. Tanner (U. S.) 1917D-973. (Annotated.) 19. The right of the individual under U. S. Const. 14th Amend. (9 Fed. St. Ann. 392) to engage in a useful and lawful business is unwarrantably infringed by the provisions of the Washington employ- ment agency law (Wash. Laws 1915, c. 1), ' enacted in the purported exercise of the police power, which make it criminal to demand or receive, either directly or in- directly, from any person seeking employ- ment, or from any person on his or her behalf, any remuneration or fee for fur- nishing such person with employment or with information leading thereto. Adams v. Tanner (U. S.) 1917D-973. (Annotated.) 20. Trading Stamps Imposition of Li- cense Tax Validity. There is such a dif- ference between the selling of goods ac- companied by coupons, profit-sharing cer- tificates, or other evidences of indebted- ness or liability redeemable in premiums, and the selling of goods without such in- ducements to purchasers, that the imposi- tion upon the former business of an addi- tional license tax for each place in each and every county in which said business is conducted, as is done by Florida Laws 1913, c. 6421, 35, does not offend against the equal protection of the laws clause of the federal constitution. East v. Van Deman, etc. Co. (U. S.) 1917B-455. (Annotated.) 21. The permission, if any, granted by the amendment" of the Act of July 1, 1902 (32 Stat. at L. 715, c. 1371, 3 "Fed. St. Ann. 748), 2, to U. S. Rev. Stat. 3394, to inclose in packages of tobacco redeemable coupons, profit-sharing certi- ficates, etc., does not extend to retail sales of such packages within a state so as to invalidate state restrictions upon such sales. East v. Van Deman, etc. Co. (U. S.) 1917B-455. (Annotated.) 22. The delivery by a Florida mer- chant of coupons, profit-sharing certifi- cates, or other evidence of indebtedness or liability redeemable in premiums, in con- nection with sales of merchandise at re- tail, is not interstate commerce so as to be protected against the imposition of a state license tax, although the coupons may have been inserted in the retail pack- ages by the manufacturer or shipper out- side the state, and are redeemable outside the state, either by such manufacturer or shipper, or by some other agency outside the state. East v. Van Deman, etc. Co. (U. S.) 1917B-455. (Annotated.) 23. Detectives Bond of Private Detec- tiveRight of Third Person to Sue. Un- der Mass. Rev. Laws, c. 108, 36, 37, respectively, providing for the licensing of private detectives and the giving of a bond for the proper discharge of the services which they may, by virtue of such licenses, have, making it a misdemeanor to engage in the business of private detec- LICENSES. 523 tive work without license, the bond is solely for the benefit of the detective's employees, and a third person, with no contractual relations with the detective, cannot recover against his bondsman. Frost v. American Surety Co. (Mass.) 1917A-583. (Annotated.) 24. "Wholesale Vender" Meaning of Term. A person engaged in the business of purchasing cattle, slaughtering them, and selling the beef and other products from the slaughtered animals to dealers, is a "wholesale vender" of merchandise, within the Pa. Act of May 2, 1899 (P. L. 184), which imposes a mercantile license tax on wholesale venders. Common- wealth v. Consolidated Dressed Beef Co. (Pa.) 1917A-966. 25. "Dealer" Meaning of Term. A purchaser of material for resale is a "dealer" within the Pa. Act of May 2, 1899 (P. L. 194), providing for the imposi- tion of a mercantile license tax upon dealers in goods, wares, and merchandise. Commonwealth v. Consolidated Dressed Beef Co. (Pa.) 1917A-966. (Annotated.) 26. Complaint for Violation of Act Negativing Exceptions. The fact that the complaint upon which applicant was con- victed contained an allegation that de- fendant (applicant) was not an ex soldier or sailor of the United States honorably discharged does not warrant the granting of the writ of habeas corpus, since, as the proviso relating to such persons does not relieve them from payment of the state license tax imposed by the act, but merely from local license fees, such allega- tions are mere surplusage. Matter of Gil- strap (Cal.) 1917A-1086. 27. Necessity of Uniformity. The pro- visions of the constitution requiring all taxes to be uniform and to be levied and collected under general laws, which shall prescribe such regulations as shall insure a just valuation of all property, refer to taxation according to the commonly ac- cepted meaning of that term, and do not apply to license or registration fees. Matter of Kessler (Idaho) 1917A-228. 28. Occupations Subject to Hotel or Lodging-house. The business of keeping a hotel, lodging-house, or rooming-house is one so far affecting the public health, morals, or welfare that it is competent for the legislature, in the exercise of the police power, to authorize municipal authorities to require persons conducting such a business to obtain a license. Cut- singer v. Atlanta (Ga.) 1916C-280. (Annotated.) 29. The conferring by the legislature, in general terms, of the power to grant or refuse licenses of the character mentioned in the preceding headnote, in the discre- tion of the municipal council, without pre- scribing the bounds of such discretion, will not ipso facto render the grant of power void, as being an effort to confer arbitrary power, but will be treated as authorizing the municipal authorities to exercise a reasonable discretion in the grant or refusal of such licenses. Cut- singer v. Atlanta (Ga.) 1916C-280. (Annotated.) 30. After the thirteenth section of the Ga. act approved August 19, 1912 (Acts 1912, pp. 562, 573), had provided that the keepers of hotels, lodging-houses, and rooming-houses in Atlanta should apply to the mayor and general council for a license, which might be granted or re- fused in the discretion of that body, if by the further provision that "their action in the premises shall be final" it was in- tended to confer arbitrary power upon the mayor and general council, by declaring that even for an arbitrary or capricious use of such power there could be no re- sort to the courts for relief, it would be violative of the Fourteenth Amendment to the constitution of the United States, and also of the clause of the state constitution which declares that no person shall be de- prived of life, liberty, or property except by due process of law. If it be construed to mean that the municipal officers can use a reasonable administrative discretion in regard to the granting or refusing of the licenses mentioned (which are licenses under the police power), and that their action shall be final in the sense that no appeal lies to any other body or court for the purpose of reviewing their y^tion, the provision will not be riolative of the clauses of the state and federal constitu- tions mentioned. Applying the rule that where an act of the legislature is susceptible of two con- structions, under one of which it would be unconstitutional and under the other constitutional the latter is to be pre- ferred, the construction last hypotheti- cally stated in the preceding note will be placed upon the clause of the act under consideration. Cutsinger v. Atlanta (Ga.) 1916C-280. (Annotated.) 31. Blue Sky Law. The equal protec- tion of the laws is not denied by the- pro- visions of Ohio Gen. Code, 6373-1 to 6373-24, forbidding dealing in corporate or quasi corporate securities without a license, by reason of the fact that the statute discriminates between cases where more or less than 50 per cent of an issue of bonds is included in a sale to one per- son; between securities which have and those which have not been authorized by the state public service commission; be- tween securities issued by certain corpora- tions organized under the state laws and those which are not; between an owner who sells his securities in a single trans- action and one who disposes of them in 524 successive transactions; between a or trust company that sells at a commis- sion of not more than 2 per cent and one which sells at a higher commission; be- tween securities which have and those which have not been published in regular market reports; between single sales of $5,000 or more and smaller transactions; between securities upon which there has and has not been a default as to principal or interest; between cases where the in- formation required is or is not contained Ln a standard approved manual; between cases in which the vendor proposes to sell securities for which he has and those for which he has not paid 90 per cent of his selling price; and discriminates against securities when any part of the proceeds is to be applied in payment for patents, services, good will, or for property outside of the state; against securities issued by taxing subdivisions of other states; against securities which have not from time to 'time for six months been pub- lished in the regular market reports or the news columns of a daily newspaper of general circulation in the state; and dis- criminates where the securities are or are not of manufacturing or transportation companies in the hands of bona fide pur- chasers on a specified date if such com- panies were on that date and at the time of sale going concerns; where the disposal is or is not made for a commission of less than 1 per cent by a licensee who is a member of a stock exchange and who is conducting an. established and lawful business in the state, regularly open for public patronage; where the securities are or are not those of a common carrier or of a company organized under the state laws and engaged principally in the business of manufacturing, transportation, etc., and the whole or a part of the property upon which securities are based is located within the state; and provides for such delays in the issue of a license and in the subsequent conduct of business thereunder as to hinder substantially, and in many oases to prevent, sales. Hall v. Geiger- Jones Co. (U. S.) 1917C-643. (Annotated.) 32. Congressional inaction leaves the state' free to impose such an indirect or incidental burden upon interstate com- merce as may result from the provisions of Ohio Gen. Code, 6373-1 to 6373-24, forbidding dealers from disposing or offer- ing to dispose of corporate or quasi cor- porate securities "within the state" with- out first having obtained a license from a specified state official. Hall v. Geiger- Jones Co. (U. S.) 1917C-643. (Annotated.) 33. Dealing in corporate or quasi cor- porate securities without first securing a license from a specified state official, ob- tainable only upon an application setting DIGEST. 1916C 1918B. bank t>ut certain information respecting the applicant's business, with references estab- lishing good repute, may be forbidden by a state, in the exercise of its police power, as is done by Ohio Gen. Code, 6373-1 to 6373-24, notwithstanding the declara- tions of U. S. Const. 14th Amend. (9 Fed. St. Ann. 416, 538), that no person shall be deprived of his life, liberty, or prop- erty without due process of law, or denied the equal protection of the laws. Hall v. Geiger-Jones Co. (U. S. 1917C-643. (Annotated.) 34. Dealers in corporate securities can- not successfully urge against the validity of the provisions of Ohio Gen. Code, 6373-1 to 6373-24, making a license a condition precedent to dealing in corpo- rate or quasi corporate securities, that while the statute in form prohibits sales, it at the same time necessarily prevents purchases, and thereby shields contemplat- ing purchasers from the loss of property by the exercise of their own defective judgment, and puts them, as well as the sellers, under guardianship. Hall T. Geiger-Jones Co. (U. S.) 1917C-643. (Annotated.) 35. Merchants Validity of Regulation. The Wash. Commission Merchants' Law (Kern. & Bal. Code, 7024-7035) is not invalid because requiring a small license fee from such person; the fee not being oppressive. State v. Bowen & Co. (Wash.) 1917B-625. (Annotated.) 36. Failure to Pay License Fee Injunc- tion Against Continuing Business. Where it appeared that the manager of the de- fendant telegraph company had been con- victed for not paying the city license as required, and it was not shown wherein an action at law to recover the license would prove ineffective, a bill to enjoin the company from carrying on intrastate business from that office until payment of the license is without equity, and should be dismissed. Postal Telegraph-Cable Co. v. Montgomery (Ala.) 1918B-554. 37. Provisions for Eevocation Validity. Section 6346-1 et seq., General Code (106 Ohio Laws, p. 281), is a constitu- tional exercise of police power by the gen- eral assembly of Ohio. The provision in section 6364-2 of said act, in so far as it relates to the revocation of a license issued pursuant to the act, is reserved for future consideration in cases in which such question may properly be raised. Wessell v. Timberlake (Ohio) 1918B-402. (Annotated.) 38. Construction of Statute. If the body of an act relating to occupation licenses is in its terms broad enough to cover county as well as territorial licenses, the fact that one proviso attached thereto is limited to territorial licenses does not require the limitation of a second proviso LICENSE TAXES LIENS. 525 which is general in its terms. In re Kalana (Hawaii) 1916D-1094. Notes. Validity of statute or ordinance licens- ing or regulating hotels, lodging or room- ing houses, or the like. 1916C-290. Private detectives. 191TA-584. Meaning of "deal" or "dealer"." 191 7 A- 949. Bight of person entitled to license or evidence thereof to do act for which, license is required. 1917B-145. State or municipal regulation of tran- sient merchants. 1917E-505. Validity of license tax imposed on owner of premises for extracting mineral or turpentine therefrom or cutting timber thereon. 1918A-678. LICENSE TAXES. See Licenses. LIENS. See Mechanics' Liens. Of attorneys, see Attorneys, 36-42. Effect of bankruptcy, see Bankruptcy, 16. Of chattel mortgage, see Chattel Mort- gages, 15-28. Of execution, see Executions, 6, 7. Discharge of lien by minor's disaffirmance, see Infants, 14. Innkeeper's lien, see Innkeepers, 11. Judgment lien, see Judgments, 23-29. No jury as of right in suit to enforce, see Jury, 8. Rights of owner of land subject to lien, on paying lien, see Subrogation, 10, 11. Liens for taxes, see Taxation, 87-89. Of special assessments, priority, see Taxa- tion, 124, 125. Vendor's lien, see Vendor and Purchaser, 16-19. 1. For Advancements Subsequently Acquired Property. Advancements made on the faith of certain property may give rise to an equitable lien, and such a lien may attach to property to be created, and not in being at the time of the agreement, and does not depend upon possession, but may exist by implication growing out of facts and circumstances creating the equitable right. Sieg v. Greene (Fed.) 1917C-1006. 2. Fine and Costs. Kirby's Ark. Dig. 2467, providing that the real and per- sonal property of one charged with a criminal offense shall be bound from the ' time of his arrest or the finding of an indictment against him, whichever shall first happen, for the payment of all fines and costs which he may be adjudged to pay, creates a lien upon such property, not only in the hands of accused, but in the hands of any other person possessing or holding it, after the arrest or indictment found, until accused is discharged or fines and costs adjudged against him are paid, which lien also attaches to the accused's after-acquired property. Western Tie, etc. Co. v. Campbell (Ark.) 1916C-943. 3. Failure to Record Subjection to Subsequent Liens. Under Kirby's Ark. Dig. 2467, binding the property of an accused from the time of his arrest or the finding of an indictment against him to the payment of fines and costs adjudged against him, and section 5396 providing that every mortgage shall be a lien on the mortgaged property from the time it is filed in the recorder's office for record, the state after indictment had a valid lien for fines and costs prior to a mortgage of property of accused, executed after the indictment, but not recorded until several months after execution. Western Tie, etc. Co. v. Campbell (Ark.) 1916C-943. 3J. Removal of Property Subject to Lien Validity of Statute. Section 5140 of the Idaho Revised Codes, which provides for the recovery of damages from any one who eloigns certain property on which -a lien exists for labor performed, is consti- tutional and valid. Anderson v. Great Northern R. Co. (Idaho) 1916C-191. 4. A statute (Idaho Rev. Codes, 5125) which confers a lien in favor of laborers who perform work upon or aid in obtain- ing or securing "sawlogs, spars, piles, cordwood, or other timber," is sufficiently broad and comprehensive to confer a lien in favor of persons who work upon or as- sist in obtaining or securing railroad ties, and the words "other timber" are suffi- ciently comprehensive to include ties. Anderson v. Great Northern R. Co. (Idaho) 1916C-191. (Annotated.) 5. The purpose and intent of section 5140 of the Idaho Revised Codes is to ren- der every person who injures, destroys, or removes any of the property therein described on which a lien exists liable for the amount of the claim held against the property, or, if the property be of less value than the lien claimed, then it al- lows the claimant the damages which he has sustained by reason of the removal or destruction of the particular property. Anderson v. Great Northern R. Co. (Idaho) 1916C-191. 6. Persons Furnishing Supplies Valid- ity of Statute. Chapter 226, Idaho Sess. Laws 1911, giving a lien on logs in favor of a person furnishing supplies, groceries or feed to a contractor or board to an employee is invalid, void, and inoperative, for the reason that it does not provide for any notice to the owner of the prop- erty on which the lien is to attach, and affords him no means or method of pro- tecting himself against such claim, and does not provide a method of procedure 526 for taking his property for such claim by "due process of law," and does not give such property owner the "equal pro- tection of the law." Anderson v. Great Northern E. Co. (Idaho) 1916C-191. 7. The statute (Rev. Idaho Codes, 5125), confers the same lien in favor of every person "performing labor upon" sawlogs, etc., as it confers on every per- son who assists in "obtaining or securing" such material. Anderson v. Great North- ern R. Co. (Idaho) 1916C-191. (Annotated.) 8. Logger's Lien Persons Entitled. Section 5125 of the Idaho Revised Codes, which provides that "every person per- forming labor upon, or who shall assist in obtaining or securing, sawlogs, spars, piles, cordwood, or other timber, or in ob- taining or securing the same," is suffi- ciently broad and comprehensive to confer a lien upon laborers who work in the employ of a contractor in moving a large quantity of railroad ties a distance of a couple hundred feet from the place where they were piled upon the railroad com- pany's right of way and loading them upon cars for transportation. Anderson v. Great Northern R. Co. (Idaho) 1916C- 191. (Annotated.) 9. Loan of Purchase Money. A lien upon land is acquired by one who lends money for its purchase, under a promise that he is to receive a mortgage, and in the meantime is given the undelivered deed to hold as security for the perform- ance of that agreement. Warren Mort- gage Co. v. Winters (Kan.) 1916C-956. Notes. By whom and for what labor or services logger's lien may be claimed. 1916C-198. Priority as between purchase-money mortgage and other lien or claim. 1916C- 945. LIFE ESTATES. Acceleration of remainder, see Remain- ders and Reversions, 18. 1. Eight to Recover for Injury to In- heritance. While the life tenant may recover for injury by negligence of a stranger not only to the life estate, but to the remainder, it is not on the theory of waste, but of trusteeship. Rogers v. Atlantic, etc. Co. (N. Y.) 1916C-877. (Annotated.) 2. Eight of Life Tenant to Recover for Taxes and Improvements. Where the sur- viving spouse is tenant for life of the homestead of the deceased spouse and also administrator of her estate, he can- not charge the estate with taxes paid by him upon the homestead nor with the value of improvements placed by him thereon. Nordlund v. Dahlgren (Minn.") 1917B-941. (Annotated.) DIGEST. 1916C 1918B. 3. Duty to Pay Taxes. It is the duty of a tenant for life in possession, and en- joying the rents and profits of land, to pay the taxes thereon. Jinkiaway v. Ford (Kan.) 1916D-321. 4. Conveyance by Life Tenant. A life tenant's purported conveyance of a fee is effective to pass the life interest of the grantor. Vidmer v. Lloyd. (Ala.) 1917A- 576. (Annotated.) 5. The recognized exception to the prin- ciple that provisions against alienating life interests are void is in the case of a conveyance for the benefit of a married woman for her separate estate. Lee v. Gates (N. Car.) 1917A-5H. Notes. Validity of conveyance of life estate. 1917A-579. Right of life tenant to recover damages for injury both to life estate and to in- heritance. 1916C-881. LIFE INSURANCE. 1. Insurable Interest, 526. 2. Payment of Premiums, 528. 3. Warranties and Representations, 528. 4. Construction of Policy, 628. a. In General, 528. b. Beneficiaries, 528. c. Incontestable Clause, 529. d. Cause of Death, 530. e. Control of Policy, 530. 5. Proof of Death, 531. 6. Assignment of Policy, 531. a. In General, 531. b. Assignee Having No Insurable Interest, 532. 7. Action on Policy, 532. a. Pleading, 532. b. Findings, 532. c. Defenses, 532. Interest in policy as asset of bankrupt, see Bankruptcy, 10. Contracts of associations, see Beneficial Associations, 1-7. Maintaining policy of lunatic, see Insan- ity, 17. 1. INSURABLE INTEREST. 1. Insurable Interest Necessity. One who has no insurable interest in the life , of another cannot be the beneficiary in a' policy issued upon his life and cannot collect the insurance upon the insured's death. Metropolitan L. Ins. Co. v. Nelson (Ky.) 1918B-1182. 2. Insurable Interest of Creditor. A creditor, to the extent of his debt, has an insurable interest in the life of his debtor. Metropolitan L. Ins. Co. v. Nelson (Ky.) 1918B-1182. 3. Payment of Premiums by Beneficiary Lack of Insurable Interest. Where LIFE INSURANCE. 527 there was no understanding between in- sured procuring a life policy, and the beneficiary having no insurable interest at the time of the issuance of the policy, the beneficiary, paying some of the premiums until the death of insured, can recover on the policy as against the objection that it was a watering contract. Langford v. National Life, etc. Ins. Co. (Ark.) 1917A- 1081. (Annotated.) 4. Necessity Policy Taken Out by In- sured. One may take out a life policy on his life and make it payable to one having no insurable interest in his life. Lang- ford v. National Life, etc. Ins. Co. (Ark.) 1917A-1081. 5. Where a person procures insurance upon the life of another, it is the general rule that he must prove an insurable in- terest in such life in order to recover upon such policy; but, where a person insures his own life and appoints another to re- ceive the proceeds of such insurance, the appointee establishes a prima facie right to recover by proving the contract of in- surance and the happening of the event upon which it is to become payable. If facts exist which preclude such recovery they are matters of defense. Christenson v. Madson (Minn.) 1916C-584. (Annotated.) 6. Necessity and Nature of Insuralle Interest. One taking out a policy of in- surance in the life of another person for his own benefit must have an interest in the continuance of the life of the insured; an "insurable interest" being such an in- terest arising from the relations of the parties as will justify a reasonable ex- pectation of advantage or benefit from *he continuance of the insured's life though it is not necessary that such ad- vantage be capable of pecuniary estima- tion. Crismond's Admx. v. Jones (Va.) 1917C-155. 7. Son-in-Law and Father-in-Law. A son has an insurable interest in his father's life, so that the father's assign- ment of a policy in consideration that the ?on assume the payments thereon, prior to Va. Code, 1904, 2859a, permitting assign- ment of a policy for a valuable considera- tion without regard to the assignee's iu- surable interest, is valid; but a son-in-law has no insurable interest in his father-in- ln\v'r, life, and hence the assignment of a policy to him in consideration that he assume the payments thereon is invalid, except in so far as acquiesced in by the adult children of insured uniting with him in the- assignment. Crismond's Admx. v. Jones (Va.) 1917C-155. (Annotated.) 8. As Between Spouses or Parent and Child. Based exclusively upon affinity, a wife has an insurable interest in her bun- band and the husband in his wife; and based exclusively upon consanguinity, a father has an insurable interest in his child and a child in the life of its father. Crismond's Admx. v. Jones (Va.) 1917C- 155. 9. As Between Husband and Wife. In such case the wife is entitled to reim- bursement from the proceeds of the policy for the amount of the premiums paid by her with interest; the benefit thereof hav- ing been obtained by the husband in con- sideration of and by reason of the mar- riage. Schauberger v. Morel's Admr. (Ky.) 1917C-265. (Annotated.) 10. Divorce Between Insured and Bene- ficiary Effect. -Under Ky. St. 2121, pro- viding that upon final judgment of divorce from the bond of matrimony the parties shall be restored, such property not dis- posed of at the commencement of tho ac- tion as either obtained from or through the other before or during the marriage in consideration thereof, and Civ. Code Prac. 425, requiring every such judg- ment to contain an order restoring such property, where a husband procures a life insurance policy on his own life naming his wife as beneficiary, but reserving to himself the right to change the bene- ficiary, and the parties are afterward aivorced by a judgment of a court of competent jurisdiction, the wife is there- by divested of all interest in the policy, and cannot claim the proceeds upon the husband's death, though all of the prem- iums thereon were paid by her. Schau- berger v. Morel's Admr. (Ky.) 1917C- 265. (Annotated.) 11. Effect of Divorce. Where a woman, after the termination of her insurable in- terest by divorce from her husband, never- theless continued until his death to pay premiums on a policy on his life in which she had been beneficiary, she is entitled, on his death, to recover from the insur- ance company only the amounts paid by her as premiun.s, with interest. Western, etc. Life Ins. Co. v. Webster (Ky.) 1917C- 271. 12. Where a woman, living with a man as his wife under a formal but illegal marriage, had him procure a policy on his life containing a change of bene- ficiary clause and she paid the premiums therefor, a judgment annulling her mar- riage as void ad initio terminates her insurable interest in his life; Ky. St. 2121, as to restoration of property to either spouse upon divorce' "from the bond of matrimony," not applying. Western, etc. Life Ins. Co. v. Webster (Ky.) 1917C- 27L 13. What Relationship Creates Interest. "Insurable interest" is no> de- pendent upon who pays the premiums, but solely upon the relationship which the parties bear toward each other, w)-ich must be such as will justify a reasonable 528 expectation of advantage or "benefit, to the party obtaining the insurance, from the continuance of the insured life. West- ern, etc. Life Ins. Co. v. Webster (Ky.) 1917C-271. 14. What Constitutes Insurable Interest Putative Wife. Where a man and woman life together as husband and wife, either has an insurable interest in the life of the other irrespective of whether there is a valid marriage. Western, etc. Life Ins. Co. v. Webster (Ky.) 1917C-271. (Annotated.) 15. Wagering Contracts. A policy taken out on the life of another; by one who pays all the premiums, is void unless the person taking it out has at that time an insurable interest in the life of the other, since otherwise it would be a wagering contract and against public policy. West- ern, etc. Life Ins. Co. v. Webster (Ky.) Notes. Relationship by affinity as supporting insurable interest in life. 1917C-158. Effect of divorce upon rights of bene- ficiary in insurance. 1917C-269. Selection by insured of beneficiary not having insnrable interest in former's life as against public policy. 1916C-587. Eight of insurance beneficiary having no insurnble interest in life of insured to keep contract alive for his own bene- fit. 1917A-1085. 2. PAYMENT OP PREMIUMS. 16. Effect of Failure to Pay Premiums. The obligation of a life insurance con- tract, in the absence of contract or stat- ute otherwise providing, is conditional upon the payment of premiums as they become due, and if the policy be allowed to lapse, no recovery can be had thereon. Burke v. Prudential Ins. Co. (Mass.) 1917E-641. 3. WARRANTIES AND REPRESENTA- TIONS. 17. "Serious Illness." A representation by insured in his application that he has not had any "serious illness" means more than an illness which is temporary in its duration and not attended or likely to be attended by a permanent impairment of the health or the constitution, and more than an illness which was thought to be serious at the time of its occurrence and might have resulted in permanently im- pairing the health. Schas v. Equitable Life Assurance Soc. (N. Car.) 1918A-679.. (Annotated.) 18. Where, in an action on a life in- surance policy, the defense is that in- sured's statement in his application that DIGEST. 1916C 1918B. he had not had any serious illness was false, and the evidence was conflicting on whether he had been a victim of self- pollution, causing his health to be seri- ously impaired at the time of making the application, the question whether he mis- stated the condition of his health is for the jury. Schas v. Equitable Life Assur- ance Soc. (N. Car.) 1918A-679. (Annotated.) 19. Fraudulent Misrepresentation As to Interest of Beneficiary Question for Jury. Whether insured, procuring a life policy payable to one having no insurable interest, perpetrated a fraud on insurer in his application stating that the bene- ficiary was a relative, held under the evi- dence for the jury. Langford v. National Life, etc. Ins. Co. Ark. 1917A-1081. 20. Misstatement of Age of Applicant. Under the express provisions of Code 1906, 2676, a misstatement in a contract of life insurance, certificate, or policy of insured's age does not invalidate the con- tract, but merely limits the recovery to the amount which the premiums paid would have purchased at insured's actual age, reckoning according to the rate tables of the company. Coplin v. Wood- men of the World (Miss.) 1916D-1295. Notes. Meaning of term "severe" or "serious" illness in application for life insurance policy. 1918A-682. Misstatement of name in application for insurance as avoiding policy. 1916D- 1297. 4. CONSTRUCTION OF POLICY, a. In General. 21. Construction of Policy Against In- surer. Ambiguous provisions of a life in- surance policy will be construed most strongly against the insurer, and in favor of the insured. Krebs v. Philadelphia Life Ins. Co. (Pa.) 1917D-1184. b. Beneficiaries. 22. Beneficiary Persons Included in Term "Family." The deceased member was the stepfather of plaintiff, the desig- nated beneficiary; they were members of the same household, when the certificate issued and at the time of the member's death; and he had voluntarily assumed to contribute to the support of the house- hold. It is held that plaintiff was a proper beneficiary as one of the family of the deceased member and within the class of permitted beneficiaries under the Illinois statute. Anderson v. Royal League (Minn.) 1917C-691. (Annotated.) 23. Defendant's by-law is not more re- strictive than the statute, and, given a LIFE INSURANCE. 529 liberal construction, its designation of an adopted child as a proper beneficiary em- braces a stepdaughter who is of the same household with the member. But even were it held restrictive, the evidence shows the by-law to have been waived and defendant estopped from asserting that it excludes plaintiff. Anderson v. Eoyal League (Minn.) 1917C-691. (Annotated.) 24. Change of Beneficiary. Under a life insurance policy reserving to insured the right, without the consent of the bene- ficiary, to change the beneficiary, the beneficiary had no vested right, but only a mere expectancy during the lifetime of insured, and insured's control over the policy was, subject to its terms, as com- plete as if he himself had been the bene- ficiary. Mutual Benefit Life Ins. Co. v. Swett (Fed.) 1917B-298. 25. Under an ordinary policy of life in- surance, in which there is no reservation of the right to cut off or modify the in- terest of the beneficiary, the policy and the money to become due thereunder be- long, from the time it is issued, to the person named in it as the beneficiary, and insured is without power by deed, assign- ment, will, surrender of the policy for a new one, or by any other act of his, to transfer to any other person the interest of the person so named as beneficiary. Mutual Benefit Life Ins. Co. v. Swett (Fed.) 1917B-298. Note. Persons included within the term "family" when used to designate bene- ficiaries in insurance policy or benefit certificate. 1917C-694. c. Incontestable Clause. 26. Incontestable Clause Application to Suicide Time from Which Incontestable Clause Operates. Where a life insurance policy, dated October 1st, had an indorse- ment written thereon by the company's secretary, stating that the amount of the insurance would be carried as tem insur- ance from August 1st to October" 1st, all the provisions of the policy not incon- sistent with that writing must be read into the contract for term insurance, since the writing was not a complete con- tract in itself, and, if any of the provi- sions are read into it, all consistent ones must be, so that the year during which by the terms of an incontestable clause the company did not assume the risk of suicide by the insured began to run from the date of the term insurance, not from October 1st, and after the lapse of one year from that date the suicide of the insured is no defense. Krebs v. Philadel- phia Life Ins. Co. (Pa.) 1917D-1184. (Annotated.) 34 27. Eisks Included Legal Execution of Insured. An ordinary life policy, which contained a provision that it should be incontestable within two years after date of issue, provided premiums have been paid, and except for fraud, does not cover death of insured as the result of execu- tion for crime, though such risk was not excepted. .Scarborough v. American National Ins. Co. (N. Car.) 1917D-1181. 28. Effect of Incontestable Clause. A clause in an ordinary life policy, provid- ing that it should be "incontestable" after two years from its date, except for fraud, providing premiums have been paid, merely means that the provisions of the policy will not be contested, and is not a waiver by the insurance company of the right to defend against a risk, as that of execution of insured for crime, which was never assumed. Scarborough v. American National Ins. Co. (N. Car.) 1917D-1181. (Annotated.) 29. Effect Fraud of Insured. A pro- vision in a life policy that it shall be in- contestable after one year from its date, except for nonpayment of premiums and except as otherwise provided in the policy, does not expressly or impliedly except an action or defense based on fraud by insured, though the policy pro- vides that, in the absence of fraud, all statements in the application shall be deemed representations and not warran- ties, and no such, statement shall avoid the policy unless contained in the writ- ten application. Dibble v. Reliance Life Ins. Co. (Cal.) 1917E-34. 30. Words and Phrases "All Con- tracts." Cal. Civ. Code, 1688, providing that "all contracts" which have for their object the exemption of anyone from re- sponsibility for his own fraud are against the policy of the law, includes life insur- ance policies, but does not render invalid a clause declaring that a policy shall be incontestable after one year from its date, though construed to preclude the defense of fraud by insured, for the object of the clause is only to provide a shorter term for maintaining a claim on the ground of fraud than is prescribed by limitations. Dibble v. Eeliance Life Ins. Co. (Cal.) 1917E-34. (Annotated.) 31. Effect Breach of Warranty. A provision in a life policy that it shall be incontestable after one year from its date, except for nonpayment of premiums, pre- cludes any defense after the stipulated period on account of false statements war- ranted by insured to be true, though the statements were fraudulently made, unless fraud is expressly or impliedly exceoted from the effect of the provision. Dibble v. Reliance Life Ins. Co. (Cal.) 1917E- 34. 32. Illness of Insured at Issuance of Policy. A provision in a life policy that 530 DIGEST. 1916C 1918B. it shall not be contested after one year from its date, except for nonpayment of premiums, prevents insurer from contest- ing the policy after one year, on the ground that insured, when applying for insurance and at all times thereafter, was seriously ill, though the policy also pro- vides that it shall not take effect until the premium is paid, while insured is in good health, and the policy shall have been duly issued. Dibble v. Reliance Life Ins. Co. (Cal.) 1917E-34. 33. Policy Issued to Employee of In- surer. An incontestable clause in a life policy issued to a trusted employee of in- surer is as binding on insurer as if the policy had been issued to a stranger, for the parties sustain the same relation as in the ordinary case of life insurance. Dibble v. Reliance Life Ins. Co. (Cal.) 1917E-34. 34. Defense Based on Fraud. A clause in a policy of life insurance, providing that "this policy is incontestable from its date, except for nonpayment of pre- miums," precludes any defense after the stipulated period on account of false state- ments in the application for the policy, even though they were fraudulently made. Duvall v. National Ins. Co. (Idaho) 1917E-1112. (Annotated.) 35. Statute Making Policy Incontesta- ble Modification by Contract. Under the provisions of section 42, Idaho Sess. Laws 1911. p. 748, as amended by Laws of 1913, p. 406, 22, it is provided that an insurance policy, so far as it relates to life or endowment insurance shall be incontestable after two years from the date of issue, except for nonpayment of premiums and except for violation of the conditions of the policy relating to mili- tary or naval service in time of war, etc. That provision of the statute does not prohibit the parties from contracting that the period of contestability shall be less than two years, nor from agreeing that the policy shall not be contestable after its delivery. Duvall v. National Ins. Co. (Idaho) 1917E-1112. 36. Effect on Attack for Fraud. Where a life policy provides that it shall be in- contestable, except for nonpayment of premiums, after one year from date, the insurer, after the expiration of the year, cannot maintain a suit against the in- sured and the beneficiary to cancel the policy for the defendant's alleged fraud in procuring it. Philadelphia Life Ins. Co. v. Arnold (S. Car.) 1916C-706. (Annotated.) 37. Validity. A life policy, providing that it shall be incontestable, except for nonpayment of premiums, after one year from its date, is not objectionable as in conflict with the state statute of limita- tions, but is valid. Philadelphia Life Ins. Co. v. Arnold (S. Car.) 1916C-706. Notes. Effect of incontestable clause in life in- surance policy in case of legal execution of insured. 1917D-1183. Effect of incontestable clause in life policy on provision against suicide. 1917D-1186. d. Cause of Death. 38. A fraternal benefit certificate pro- vided that, if the holder died in conse- quence of the violation of the laws of the state, the certificate should be void. In an action on the policy the defense was interposed that the holder came , to his death by a gunshot wound inflicted by another in self-defense when attacked by the insured. It was disputed who fired the first shot and who brought on the difficulty, and whether assured acted in self-defense. It is held that, under the evidence, the question as to whether de- ceased met his death in consequence of a violation of the state's criminal laws was for the jury. Bounds v. Sovereign Camp (S. Car.) 1917C-589. (Annotated.) 39. Violation of Law. Under a certifi- cate of fraternal life insurance void if the member die in consequence of a vio- lation of the state laws, if the facts are admitted, the question whether death was so caused is one of law; but, if the facts are denied or disputed, the question is one of fact. Bounds v. Sovereign Camp (S. Car.) 1917C-589. (Annotated.) 40. Effect of Suicide on Liability of Association Meaning of "Suicide." Un- der the laws of Missouri (Rev. St. 1909, 69-io) providing that, in all suits upon policies of life insurance issued by any company doing business in that state to citizens of that state, it shall be no de- fense that insured committed suicide, un- less it is shown that he contemplated suicide when applying for the policy, "suicide" is not used in its technical sense, but in its popular meaning of death by one's own hand, irrespective of mental condition, and includes all cases of self- destructifra. Travelers' Protective Assoc. v. Smith (Ind.) 1917E-1088. Note. Death while engaged in violating law within exception in life insurance policy. 1917C-592. e. Control of Policy. 41. Where a life policy, taken out by a father on the life of his minor son, was made payable to the executors, adminis- trators or assigns of the son, the father and mother, as guardians by nature, are not authorized to consent to a cancella- tion of the policy or to a change to a paid-up policy, before forfeiture for non- LIFE INSURANCE. 531 payment of premiums. Burke v. Pruden- tial Ins. Co. (Mass.) 1917E-641. (Annotated.) 42. By Parent on Life of Child Eight to Control Policy. Under a policy taken out by a father on the life of his minor son, payable to the "executors, adminis- trators or assigns of the insured," the son is the person insured and the beneficiary, with the right to custody of the policy in the father. Burke v. Prudential Ins. Co. (Mass.) 1917E-641. (Annotated.) Note. Eight of parties in case of insurance procured by parent on life of minor child. 1917E-643. 5. PROOF OF DEATH. 43. Waiver of Defects. Where, after plaintiff's husband had been absent from home for more than seven years, she stated the case to the fraternal death benefit association of which he was a member as a proof of his death, such association not objecting to the proof as unsatisfactory or insufficient until it was offered in evidence on trial, the board of directors having rejected plaintiff's clai-m generally, and not having specifically pointed out any defect in the proof, any defect in such proof is waived when the board received and retained it, giving no notice that it was not satisfactory, calling for no further proof, and rejecting the claim in toto upon the proof made, since defendant's right to a proof of loss such as was required by its contract of insur- ance was one it could and did waive by pursuing a line of conduct justifying the conclusion that it was not intending to insist on a full compliance with the re- quirements. Werner v. Fraternal Bank- ers' Reserve Soc. (Iowa) 1918A-1005. 44. Waiver of Proofs of Loss By Denial of Liability. A beneficiary certifi- cate provided that no action upon it should be brought until proofs of death and of claimant's claim have been filed and passed upon by the executive com- mittee of the order, nor unless brought within one year from the date of such action by the committee. Where the wrongful act of defendant dispenses with such proofs and there is accordingly no action by the committee, the contract pro- vision has no application. Denial of lia- bility in a pleading in a former action did not operate to set the contract limitation in motion. Dechter v. National Council (Minn.) 1917C-142. 6. ASSIGNMENT OF POLICY, a. In General. 45. Necessity That Assignee Have Tn- surable Interest. The assignee of a policy of life insurance or of the proceeds there- of must have an insurable interest in the life of the insured. Crismond's Admx. v. Jones (Va.) 1917C-155. 46. Assignment by Wife of Insurance In Her Favor. As a wife designated as bene- ficiary in a policy on her husband's life, which reserved to the husband the right to change the beneficiary, had no vested right, but a mere expectancy only, she did not, by joining in her husband's assign- ment of the policy as security for his in- debtedness, become a surety for him; the absolute right to assign the policy being lodged in him, and it was not necessary that she should receive a consideration for joining in the assignment in order to bind her. Mutual Benefit Life Ins. Co. v. Swett (Fed.) 1917B-298. (Annotated.) 47. Power to Make Second Assignment. Where, though an assignment of a $15,000 life insurance policy as security for a debt recited that it was to secure an indebted- ness of $15,000, it was the intention to protect the assignee as to insured's entire liability to it, a letter subsequently writ- ten the assignee by him, directing that in case of his death the proceeds, after the satisfaction of a $10,000 note, should be applied to relieve an accommodation indorser from liability on account of an- other note for $6,000, was explanatory and confirmatory of the original intent, and passed by way of assignment what- ever value the policy possessed after the delivery of the first assignment, as in- sured was not restricted to a single as- signment of the policy, which by its terms was assignable. Mutual Benefit Life Ins. Co. v. Swett (Fed.) 1917B-298. 48. Distinction Between Assignment and Change of Beneficiary. An "assignment" of a life insurance policy and a "change of beneficiary" are different things, as an "assignment" is the transfer by one of his right or interest in property to another, and rests upon contract, and, generally speaking, the delivery of the thing as- signed is necessary to its validity, while the power to change the beneficiary is the power to appoint, and must be exercised in the manner agreed upon in the contract of insurance. Mutual Benefit Life Ins. Co. v. Swett (Fed.) 1917B-298. 49. Right of Assignee to Reassign. "Where insured, who had assigned the policy to secure an indebtedness to the as- signee, wrote the assignee, directing it, in case of his death, to apply the proceeds in payment of a $10,000 note, and the balance to relieve an accommodation in- dorser from liability on another $6,000 note, such letter was sufficient authoriza- tion to the assignee to assign an interest in the policy to the executors of the ac- commodation indorser, who had been com- pelled to pay the note on which they were 532 DIGEST. 1916C 1918B. liable, and they thereby acquired such a. title as was necessary to enable them to hold the policy as collateral security for the debt which they had paid, and to sustain an action upon the policy. Mutual Benefit Life Ins. Co. v. Swett (Fed.) 1917B-298. 50. Where a policy was assigned to secure certain notes held by the assignee, an assignment of an interest therein to the executors of an accommodation in- dorser on one of the notes, who were required to pay the note, was valid and binding on the beneficiary, in the absence of any authorization from insured to make such assignment; the policy having re- served the right to insured to change the beneficiary. Mutual Benefit Life Ins. Co. v. Swett (FedJ 1917B-298. 51. Eenewal of Notes Secured by As- signment Effect. Where a life insurance policy was assigned to a bank to secure insured's notes held by it, the renewal of such notes did not destroy the assign- ment, in the absence of any intention on the part of the insured and the bank that the renewal should have that effect. Mutual Benefit Life Ins. Co. v. Swett (Fed.) 1917B-298. 52. Validity of assignment Consent of Insurer Right of Third Person to Urge Nonconsent. Where, after the assign- ment of an insurance policy to secure an indebtedness, insured wrote the assignee relative to the disposition of the proceeds of the policy in case of his death, such letter, considered as an additional assign- ment, was not ineffective as against a beneficiary, though neither it nor a copy of it was filed with or assented Jo by the company, as required by the policy, as the provision in the policy requiring notice to the company was for its protection, and could not be set up by any one else to defeat an assignment made without compliance therewith. Mutual Benefit Life Ins. Co. v. Swett (Fed.) 1917B-298. Note. Validity and effect of assignment by wife of insurance in her favor on life of husband. 1917B-302. b. Assignee Having no Insurable In- terest. 53. Effect of Want of Insurable Inter- est Good Faith. While an assignment of a policy of insurance must, in any case, be characterized by good faith, yet good faith alone is not sufficient to sustain a policy of insurance, taken out upon the life of another by one who has no interest in the continuance of such life. Cris- mond'a Admz. v. Jones (Va.) 1917C-155. o4. Assignee Without Insurable Inter- est. The rule of insurance law relative to insurable interest applies with equal force after a life policy is issued, and the beneficiary is changed by assignment or otherwise as it does to the naming of the beneficiary at the time of procuring the insurance. Metropolitan L. Ins. Co. T. Nelson (Ky.) 1918B-1182. 7. ACTION ON POLICY. a. Pleading. 55. Sufficiency. A count, in an answer in an action on a life policy which denies the issuance of the policy in consideration of an annual premium, is good as against a demurrer. Dibble v. Reliance Life Ins. Co. (Cal.) 1917E-34. b. Findings. 56. Immoral Eelation Between Insured and Beneficiary. Under the evidence in this case, the court did not err in refusing to find that immoral relations existed be- tween the insured and his beneficiary. Christenson v. Madson (Minn.) 1916C- sa*. c. Defenses. 57. Suicide While Insane. Where in- surer, when sued on a life policy, proved the suicide of insured while sane, the beneficiary could prove that insured was insane when committing suicide, and thereby defeat the defense of suicide. Security Life Ins. Co. v. Dillard (Va.) 1917D-1187. 68. The defense of suicide of insured while sane is based on public policy, and cannot be waived intentionally or unin- tentionally by stipulations or defects in pleadings. Security Life Ins. Co. v. Dil- lard (Va.) 1917D-1187. (Annotated. 59. Effect of Suicide of Insured. Sui- cide of insured while sane defeats a re- covery on the policy by the beneficiary, his wife, whether the suicide was or was not in contemplation of, or in any way dealt with by, the parties as a risk cov- ered by the policy. Security Life Ins. Co. v. Dillard (Va.) '1917D-1187. (Annotated.) LIGHT AND AIR. Extinguishment of right, see Easements, 6. LIGHTING COMPANIES. See Electricity; Gas. LIMITATION OF ACTIONS. 533 LIMITATION OF ACTIONS. 1. Nature, Validity and Construction of Statutes, 533. 2. What Law Governs, 533. 3. Statutes Applicable to Particular Ac- tions, 534. 4. Computation of Time, 534. a. When Statute Begins to Eun, 534. (1) In General, 534. (2) Fraud or Concealment, 535. (3) Trover, 535. (4) Action to Recover Property Given in Consideration of Marriage, 535. (5) Action for Continuous Ser- vices, 535. (6) Action to Enforce Trust, 535. (7) Action for Libel or Slander, 536. (8) Action for Breach of Agree- ment to Devise, 536. (9) Stockholder's Action, 536. '10) Action to Recover Usurious Interest, 536. (11) Action on Judgment, 536. b. Suspension or Interruption of Operation of Statute, 536. (1) Absence from State, 536. (2) Nonresidence of Party, 537. (3) Commencement of Action. 537. 5. Re-rival of Causes of Action, 537. a. Acknowledgment or New Promise. 537. b. Part Payment, 537. 6. Actions, 538. a. Pleadings of Plaintiff, 538. b. Pleadings of Defendant, 538. 7. Who may Plead Statute, 568. See Death by Wrongful Act, 10-13: Quiet- ing Title, 3, 4. Contract limiting time for suit, see Acci- dent Insurance, 6, 7.. Statute inoperative against grantee when, see Adverse Possession, 29. Acknowledgment of debt for fees, see At- torneys, 35. Action against bailee for loss, see Bail- ment, 5. Contracts fixing time, see Beneficial Asso- ciations. Stockholder's action against corporation, see Corporations, 25. Action against director for negligence, see Corporations, 44. Stockholder's liability, see Corporations, 135, 136. Stockholder's suit, see Corporations, 140- 141. Actions against foreign corporations, see Corporations, 178. Interruption by conveyance, see Ease- ments, 12. Against executors and administrators, see Executors and Administrators, 90-92. Foreclosure of mechanics' liens, see Mechanics' Liens, 41, 42. 1. NATURE, VALIDITY AND CON- STRUCTION OF STATUTE'S. 1. Effect of Bar Statutory Eight of Action. Where a right of action is given by statute, which further provides that suit shall be commenced within a specified time, or the right of action shall be ex- tinguished, the right to recover depends on the action being commenced within the time limited, and, if it is not, not only the remedy but the right is extinguished. Osborne v. Grand Trunk R. Co. (Vt.) 1916C-74. 2. Retroactive Amendment of Statute Validity. It is within the power of the legislature to amend a statute of limita- tion by shortening the time in which an existing cause of action may be barred, provided a reasonable time is given for the commencement of an action before the bar takes effect. Milbourne v. Kelley (Kan.) 1916D-389. (Annotated.) 3. Retroactive Operation. A statute of limitation operates prospectively, unless a legislative intent to give it a retro- spective operation is clear. State T. Gen- eral Accident, etc. Assurance Corp. (Minn.) 1918B-615. 4. The postponement of the time when a limitation statute becomes effective evi- dences an intent to make it of retrospec- tive operation. State v. General Acci- dent, etc. Assurance Corp. (Minn.) 191SB- 615. 2. WHAT LAW GOVERNS. 5. Civ. Code Quebec, 1053, provides that every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect, or want of skill, and article 17, 11, declares that the word "person" includes bodies politic and corporate. The laws of Que- bec also provide that an action for in- juri-es under such statute shall be brought within one year. Held, that the limita- tion -applied to the right as well as to the remedy, and hence, where plaintiff sued in Vermont under the statute for an injury occurring in Quebec, the action was gov- erned by the lex loci, and, if not brought within the time specified, was unsustain- able. Osborne v. Grand Trunk R. Co. (Vt.) 1916C-74. 6. Limitations Applicable Statutory Cause of Action. It is not essential that a limitation affecting a statutory right of action not existing at common law should be incorporated in the act creating the right; but it is sufficient if the limitation in another statute is so directed to the new liability so specifically as to warrant the conclusion that it qualifies the right. Osborne v. Grand Trunk R. Co. (Vt.) 1916C-74. 534 DIGEST. 1916C 1918B. 7. Nature of Action Bill in Nature of Bill of Review. Where, after the death of the life beneficiary of a trust, her heirs, without notice to complainant, who was her husband, obtained a decree terminating the trust and directing distribution of the trust fund to them, a subsequent bill brought by complainant to set aside such decree and to recover the property on the ground that it was distributable to him, alleging that he had no knowledge of the existence of the trust and had not been made a party to the prior proceedings be- cause of fraudulent concealment on the part of the beneficiary's heirs of the fact that she died leaving a living husband, and that, on discovering the facts, he pro- ceeded diligently to take action, is not a bill of review, but a bill in the nature of a bill of review, and is therefore not ob- jectionable because not filed within a year from the entry of the final decree. Quinn v. Hall. (R. I.) 1917C-373. 8. Recovery of Excessive Allowance to Executor. Where an executor resigned in 1899 and was discharged of all liability on account of the estate, the owner of the residuary estate learning in March, 1909, that excessive commissions, costs, and al- lowances had been awarded the executor by the surrogate upon his yearly account- ings, which the executor received in good faith, such owner's action to recover such excessive allowances is not one "to pro- cure a judgment, other than for a sum of money, on the ground of fraud, in a case which, on the thirty-first day of Decem- ber, 1846, was cognizable by the court of chancery," which N. Y. Code Civ. Proc. 382, subd. 5, provides is not barred until six years after the discovery by the plain- tiff of the facts constituting the fraud, since, as the executor acted in good faith, the surrogate's decrees, if void in respect to the illegal allowances, are so, not be- cause procured by fraud, but only because beyond the surrogate's jurisdiction. Spallholz v. Sheldon (N. Y.) 1917C-1017. 3. STATUTES APPLICABLE TO PAR- TICULAR ACTIONS. 9. Time to Attack Conveyance. Under Ky. St. 1911, providing that all fraudu- lent and preferential transfers shall be subject to the control of courts of equity, upon petition filed wthin six months, where more than six months elapsed be- tween the sale and transfer of corporate securities and the institution of an action by the assignee of the judgment creditor of the transferor, such sale and transfer cannot be thereafter attacked by the assignee. Husband v. Linehan (Ky ) 1917D-954. 10. Action to Set Aside Fraudulent Conveyance. Plaintiff, who loaned monoy to defendant in 1892, and who, after fore- closure and purchase of the property for $200 in 1897, recovered judgment for the balance, and whose suit to set aside the judgment debtor's alleged fraudulent con- veyance to his wife made in 1895, and confirmed by deed in 1S98, was not brought until eleven years after judgment, is barred, either by the ten-year statute of limitations, N. Car. Revisal 1905, 391, 399. or the three-year statute, sec- tion 395, subsec. 9. Ewbank v. Lyman (N. Car.) 1917A-272. 11. Trespass. The right of action for trespass is barred in six years. Rollins v. Blackden (Me.) 1917A-875. 12. Action on Benefit Certificate. The statutes governing the time of bringing suits upon policies of insurance have 'no apjlii'ation in determining whether a suit upon a death benefit certificate of a fra- ternal society was prematurely bro.ifeht. Werner v. Fraternal Bankers' Reserve Soc. (Iowa) 1918A-1005. 13. Action for Assault With Felonious Intent. A civil action for assault with in- tent to rape is an action for damages for an assault and battery with circumstances of aggravation which must, under section 13 of the code, be begun within one } ear after the cause of action accrued. Bor- chert v. Bash (Neb.) 1917A-116. (Annotated.) Notes. Application of statute of limitations as between trustee and. beneficiary of ex- press trust. 1917C-1018. What is civil action for assault within statutory limitation applicable thereto. 1917A-118. 4. COMPUTATION OF TIME. a. When Statute Begins to Run. (1) In General. 14. N. Y. Code Civ. Proc. 388, requir- ing actions not otherwise specially pro- vided for to be commenced within teu years after the cause of action accrues, applies to every form of equitable action. Ford v. Clendenin (N. Y.) 1917A-658. (Annotated.) 15. When Statute Begins to Run. Utah Comp. Laws 1907, 3490, provides that an action is pending from its commence- ment until final determination upon \p- peal, "or until the time for appeal has passed, unless the judgment is sooner satisfied"; section 3307 provides that an appeal from a judgment or order direct- ing the payment of money does not stay execution, unless a written undertaking be given; and section 3320 provides for restitution in case judgment is reversed or modified on appeal after its enforce- ment. Held, that a judgment became final so as to start the eight-year limitation against an action thereon from the time LIMITATION OF ACTIONS. 535 it was rendered, where no appeal was taken, and not from expiration of the six months within which an appeal might have beun taken; actions remaining pend- ing after judgment only for the purpose of enforcing them or to institute proceed- ings to review. Sweetser v. Fox ^Utah) 1916C-6:W. (Annotated.) 16. A cause of action arises the moment an action may be maintained to enforce the legal right so that the statute of limitation then begins to mn. Sweetser v. Fox (Utah) 1916C-620. (Annotated.) (2) Fraud or Concealment. 17. Record as Constructive Notice of Fraud. While the mere registration of the judgment debtor's deed, alleged to have been made in fraud of creditors, will not usually be constructive knowl- edge, yet where the deed under which the grantee claims to hold has been on the registry for more than eleven years before the action was commenced, the creditor who has herself foreclosed a deed of trust on the part of the debtor's property, and who has not been able to collect her judgment for the balance, and who knew of the debtor's embarrassed financial con- dition, is negligent in not having sooner examined the record and discovered the conveyance. Ewbank v. Lyman (N. Car.) 1917A-272. (Annotated.) 18. Bight to Sue Necessity of Prior Equitable Belief. That equitable relief must be secured before the party entitled thereto can sue at law does not of itself suspend the running of the six year stat- ute of limitations (N. Y.) Code Civ. Proc. 382, subd. 5), providing that a cause of action "other than for a sum of money, on the ground of fraud, in a case which, on the thirty-first day of December, 1846, was cognizable by the court of chancery," is not deemed to have accrued until the discovery by the plaintiff of the facts con- stituting the fraud. Spallholz v. Shel- don (N. Y.) 1917C-1017. 19. Discovery of Fraud. N. Car. Re- visal 1905, 395, subsec. 9, providing that actions for relief on the ground of fraud or mistake shall be barred in three years, applies to an action to set aside a judg- ment debtor's alleged fraudulent convey- ance, and the provision that the action is not to be deemed to have accrued until the discovery of the facts constituting the fraud, etc., means until the impeaching facts are known or should have been dis- covered in the exercise of reasonable business prudence. Ewbank v. Lyman (N. Car.) 1917A-272. Note. Record of instrument as constructive notice of fraud. 1917A-267. (3) Trover. 20. When Cause of Action Accrues. The right of action in trover for the con- version of money deposited by an agent with the principal's consent does not ac- crue, within the meaning of the statute of limitations, until there is a demand of the agent for the money and a refusal by him. Williams v. Williams (Me.) 1916D- 928. (4) Action to Eecover Property Given in Consideration of Marriage. 21. Limitations do not begin to run against the rights of a husband to recover real estate conveyed for the benefit of his wife in consideration of marriage until judgment of divorce is entered. Anheier v. De Long (Ky.) 1917A-1239. (5) Action for Continuous Services. 22. Where plaintiff agreed to board de- cedent in return for his promise to leave her realty, and, when plaintiff moved to another home, the contract was not mutually abandoned, plaintiff can recover, on the special contract, for her services in boarding decedent up to the time she moved, as the three-year statute of limi- tations does not bar her cause of action, which did not accrue until decedent's death. McCurry v. Purgason (N. Car.) 1918A-907. (Annotated.) 23. Continuing Contract. A contract binding one to rear and maintain an- other's child until the child's maturity is a continuing one, and the compensation under it becomes due and payable at the termination of the child's minority within the statute of limitations. Myers v. Saltry (Ky.) 1916E-1134. 24. In an action against an estate to recover for services to decedent, where the services extended over a period of more than five years preceding the filing of the claim, but were continuous up to within a year of the commencement of the action, the services rendered more than five years before filing of the claim are not barred by the statute of limita- tions, since under such circumstances the statute did not begin to run. Estate of Oldfield (Iowa) 1917D-1067. (6) Action to Enforce Trust. 25. Running of Limitations Against Trustee Termination of Trust. Where an executor resigned in 1899,' his letters being revoked and the estate transferred to his successors, the surrogate court awarding him excessive costs, allowances, and fees, which he retained without actual fraudulent intention, the owner of the residuary estate being aware of the .termination of the trust, her cause of ac- tion against the executor on the ground 536 DIGEST. 1916C 1918B. that he was a constructive trustee for her (10) as to the excessive fees retained by him was barred in 1909, whether the six or the ten year statute of limitations ap- plied, since, where a trust ends, and the trustee yields the trust to a successor, the statute of limitations begins to run in his favor, though, where a trustee sub- sists and has not been renounced, the stat- ute does not run. Spallholz v. Sheldon (N. Y.) 1917C-1017. % (Annotated.) 26. The six years' limitation prescribed by Minn. Laws 1905, 4076, for actions to enforce a trust, does not begin to run against a suit by a monastic brotherhood to enforce its equitable ownership under the constitution of the Order in the gains and acquisitions of a member until the latter's death, where there is no repudia- tion of the trust during his lifetime. Order of St. Benedict v. Steinhauser (U. S.) 1917A-463. (7) Action for Libel or Slander. Note. Bunning of statute of limitations against action for libel or slander. 1917C-64. (8) Action for Breach of Agreement to Devise. 27. Breach of Agreement to Devise. Where services are to be performed for another in consideration of an oral agree- ment by the terms of which the person is to be compensated by a devise in the will of the person for whom the services have been or are to be performed, the cause of action does not accrue until the death of the promisor and his failure to make the devise according to the terms of the con- tract. Gordon v. Spellman (Ga.) 1918A- 852. 28. Agreement to Compensate by Will. Where plaintiff, in return for decedent's agreement to leave her realty, agreed to board him, and thereafter left her home and moved to another, the contract being mutually abandoned by the parties, any cause of action in the nature of a quantum meruit accrues to plaintiff at the time of the abandonment, and her action for ser- vices rendered will be barred in three years therefrom. McCurry v. Purgason (N. Car.) 1918A-907. (Annotated. 1 ) (9). Stockholder's Action. 29. Action by Stockholder for Divi- dends. The obligation of a corporation to pay a declared dividend to a stockholder is not subject to limitations until there has been a demand on the corporation and a refusal to pay. Yeanian v. Galveston City Co. (Tex.) 1917E-191. Action to Recover Usurious In- terest. 30. Recovery of Usurious Interest When Bight of Action Accrues. The mere assignment of a usurious obligation does not set the statute of limitations running against an action to recover back payment of usurious interest because it is the same usurious obligation, and no transaction occurred sufficient to make a novation which could be deemed a payment of the obligation. Taulbee v. Hargis (Ky.) 1918A-762. 31. Recovery of Usurious Payments When Cause of Action Arises. The cause of action for the- reclamation of usurious interest arises when it has been paid. Taulbee v. Hargis (Ky.) 1918A-762. (11) Action on Judgment. 32. When Statute of Limitation Begins to Run, Utah Comp. Laws 1907, 2874, requiring an action on a judgment to be commenced within eight years, means eight years from the time the cause of ac- tion has arisen. Sweetser v. Fox (Utah) 1916C-620. (Annotated.) Notes. When statute of limitations begins to run against action on judgment. 1916C- 625. Running of statute of limitations against action for services performed in consideration of oral agreement to com- pensate by will. 1918A-912. b. Suspension or Interruption of Opera- tion of Statute. (1) Absence from State. 33. Absence from Jurisdiction, Under N. Y. Code Civ. Proc. 401, providing that, if when a cause of action accrues against a person he is without the state, the action may be commenced within the time limited therefor after his return to the state, with certain exceptions as to designations by foreign corporations, there is no distinction between a limita- tion prescribed by statute and one pre- scribed by contract. Comey T. United Surety Co. (N. Y.) 1917E-424. 34. Pa. Act May 22, 1895 (P. L. 112), providing that defendant, becoming a non- resident after the cause of action has arisen, shall not have the benefit of any statute for the limitation of actions dur- ing the period of such residence without the state, contemplates that, where a resi- dent of the state incurs an indebtedness and becomes a nonresident so that he can- not be served with process, limitations do not run in his favor. Hunter v. Bremer (Fa.) 1918A-152-. LIMITATION OF ACTIONS. 637 35. Absence as Question of Fact. In an action on notes, whether defendant at the time the cause of action arose had been a resident in this state under Pa. Act May 22, 1895 (P. L. 112), and whether he sub- sequently abandoned it, and, if so, for how long, are questions for the jury. Hunter T. Bremer (Pa.) 1918A-152. 36. Absence of Creditor. N. Car. Be- visal 1905, 366, referring to the absence of the debtor from the state beyond the jurisdiction of the court and its process, has no application to the absence of a creditor, since he may go into the terri- tory of the debtor's residence and sue in the courts whenever he may desire. Ewbank v. Lyman (N. Car.) 1917A-272. (2) Nonresidence of Party. 37. Words and Phrases "Besidence." In action on notes, an instruction as to right of a nonresident defendant to the benefit of the statute of limitations, to the effect that residence did not necessarily involve the idea of an intention of re- maining at the place of his residence, is construed, with reference to its context, to mean and to have been understood as if the word "permanently" had been used therein before the word "remaining" and as so construed is held to be correct. Hunter v. Bremer (Pa.) 1918A-152. (Annotated.) (3) Commencement of Action. 38. Amendment of Pleading. In an ac- tion for the death of an employee in- cinerated when defendant's premises burned, a count in the original declaration averred that defendant negligently ob- structed the passageway to the only fire escape. Other allegations were made in combination with such averments. It is held that the count defectively stated a cause of action under the 111. Factory Act, 14, requiring adequate fire escapes to be furnished in mills, mercantile establish- ments, etc., and so an additional count, correctly stating a cause of action under the act, was not subject to plea of limita- tion. Lichtenstein v. L. Fish Furniture Co. (HI.) 1918A-1087. 39. Action for Slander Effect of Amendment Introducing New Cause of Action. In action for slander, an order sustaining demurrer to the complaint sub- stantially found that the words were not actionable per se. After demurrer to the amended complaint was sustained, plain- tiff again amended, charging specific words actionable per se, but such amend- ment was filed eighteen months after the alleged slander. It was held that the. ac- tion was barred by limitations. Irvine v. Barrett (Va.) 1917C-62. 40. Where an action for wrongful death, was instituted against a railroad com- pany within the one-year limitation period prescribed by 20 Del. Laws, e. 594, by fil- ing a praecipe, and the declaration filed against that deceased was an employee of the defendant company, the cause of ac- tion stated by an amended declaration, filed after the expiration, of the year, alleging that he was an employee of the Pullman Company, and charging the de- fendant company with the duties owed to a stranger, was not barred by such stat- ute; an action at law being commenced in this state, so as to stop fhe running of limitations, by praecipe, and not by the plaintiff's declaration, as in many states. Philadelphia, etc. B. Co. v. Gatta (Del.) 1916E-1227. (Annotated.) 41. In an action against a newspaper for libel, an amendment to the complaint setting up a republication of the libelous article by other newspapers, and charging that they were induced or caused by de- fendant, states a different cause of action, and hence, being filed more than a year after the publication, is expressly barred by Ala. Code 1907, 4840. Age-Herald Publishing Co. v. Waterman (Ala.) 1916E-900. 42. Tolling Statute of Limitations Ef- fect of Subsequent Slander. Words to the effect that plaintiff stole $1,500 are so dissociated from those that defendant's business was short $1,500 for which he could not account, when not alleged to have been spoken at the same time or to the same person, as to constitute a new cause of action and do not toll the statute of limitations as to the original cause of action, Irvine v. Barrett (Va.) 1917C-62. (Annotated.) 5. KEVIVAL OF CAUSES OF ACTION. a. Acknowledgment or New Promise. 43. Listing of Debt by Executor. An affidavit for probate made by an executor, containing a list of the debts of the tes- tator is not such an acknowledgment of a claim included therein as will remove the bar of the statute of limitations. Lloyd v. Coote & Ball (Eng.) 1916E-434. b. Part Payment. 44. Tolling Statute Payment by One of Several Makers. A payment of inter- est on a past due note by one of two makers without the knowledge or consent of the other will start the statute of limi- tations- running anew as to the latter. Macaulay v. Schurmann (Hawaii) 1916E 1 - 1206. (Annotated.) 45. Payments made on a note either of interest or principal before the note is barred by limitations tolls the statute as to the party making the payment and starts the statute afresh from the date of payment. Nicholas v. Porter (Ind.) 1916D-326. 538 DIGEST. 1916C 1918B. 46. Payment by Principal Effect on Liability of Surety Consent by Surety. Payment of interest by the principal debtor with the knowledge and consent of the surety tolls the statute of limitations as to the surety. Nicholas v. Porter (Ind.) 1916D-32. (Annotated.) Note. Part payment by principal with consent of surety as suspending statute of limita- tions as to surety. 1916D-327. 6. ACTIONS, a. Pleadings of Plaintiff. 47. Continuing Publication. Under Bern. & Bal. Wash. Code, 160, providing that an action for libel must be com- menced within two years after the cause of action accrues, a complaint charging continued publication up to the time oi' the commencement of the action is not vulnerable to a demurrer raising the bar of the statute; each publication constitut- ing a separate libel. Dick v. Northern Pacific R. Co. (Wash.) 1917A-638. 48. Effect of Amendment Raising Question by Demurrer. Demurrer to a plea of limitations to a count as amended presents the question of law whether the cause of action set up by the amended count was other and different than that set up by the original count. Wende v. Chicago City E. Co. (HI.) 1918A-222. b. Pleadings of Defendant. 49. Where, in an action for injuries un- der a provision of the Canadian Code, de- fendant pleads generally that the action is barred by the laws of the province of Quebec requiring that the action be brought within a year, on which plaintiff joins issue, he cannot thereafter object that the plea was insufficient because it did not set out verbatim the statute re- lied on, though, if a demurrer had been filed to the plea, it would probably have been sustained. Osborne v. Grand Trunk B. Co. (Vt.) 1916C-74. 50. Overruling demurrer to a plea of limitations to an amended count of the declaration is a holding that the amended count set up another and different cause of action than that in the original count. Wende v. Chicago City E. Co. (111.) 1918A-222. 51. Necessity of Pleading Statute. De- fendant has a right to waive the statute of limitations if he desires to do so, and if he would avail himself of lapse of time as a peremptory bar to an action against him, he must interpose the statute by plea. Taulbee v. Hargis (Ky.) 1918A-762. 7. WHO MAY PLEAD STATUTE. 52. Action by Administrator. Since an administrator succeeds to the rights of his intestate, derives his title from him, and in an action endeavors to enforce a right which belonged to the intestate, the bar of limitations, if available against the intestate, is ordinarily available against the administrator. Causey v. Seaboard Air Line B. Co. (N. Car.) 1916C-707. LIMITATION OF LIABILITY. Under Employers' Liability Act, see Mas- ter and Servant, 73. LIMITING LIABILITY. See Carriers, 18; Carriers of Goods, 11-14; Carriers of Livestock, 3; Master and Servant, 38, 39. LIQUIDATED DAMAGES. See Contracts, 63-73, 75. LIQUOBS. See Intoxicating Liquors. US PENDENS. 1. Scope of Lis Pendens Statute. Such statute does not apply to a case where a person sells, leases, or encumbers realty not his own and which he never had owned. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. 2. Effect of Suit In Federal Court. Ky. St. 2358a, providing that no action in which the title or possession of realty is involved, nor any order or judgment therein, or sale thereunder, shall affect the right or title of any subsequent purchaser for value and without notice thereof, ex- cept from the time there shall be filed in the office of the clerk of the county court in which the realty lies a memorandum stating the style and number of the ac- tion, the court in which it is pending, the name of the person whose interest is in- volved, .and a description of the realty, must be followed in order that the action, sale, or judgment may affect the title or interest of a subsequent purchaser, etc., of realty situated in the state involved in a suit in the federal court. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. LIVESTOCK. See Animals; Carriers of Livestock. LOAN ASSOCIATIONS. See. Building and Loan Associations. LOAN BBOKEBS. See Brokers, 14; Pawnbrokers. LOANS LOST INSTRUMENTS. 539 LOANS. See Banks and Banking, 57-60; Building and Loan Association, 3, 4; Fawn Brokers; Pledges. Obtaining loan, see False Pretenses, 5. To infant, validity, see Infants, 6. LOATHSOME DISEASE. As defense to action, 'see Breach of Promise of Marriage, 1, 5-8. LOCAL AND TRANSITORY ACTIONS. Jurisdiction, see Courts, 5-7. LOCAL ASSESSMENT. Special assessments for improvements, see Taxation, 116-145. LOCAL OPTION. 1. Election Presumption of Regularity. Where an election adopting prohibition in a county was not contested within the statutory time, the court must conclu- sively presume, on a trial for violating the prohibition law, that all the steps taken to enact prohibition in the county were legal. Longmire v. State (Tex.) 1917A-726. 2. Local Option Election Proof of Re- sult Record Book. Under 111. Anti- Saloon Territory Act (Laws 1907, p. 297), 7, providing that the clerk shall record in a well-bound book, to be kept in his office by himself and his successor, the result of the vote on the proposition of the political subdivision becoming anti- saloon territory, and such result may be proved by such record or by the official certificate of the clerk, and, where it shows that a majority of the votes were "yes," it shall be prima facie evidence that the political subdivision has become anti-saloon territory, it is not necessary to make such record proof that it be shown that it was in the exclusive posses- sion of the clerk. People v. Elliott (111.) 1918B-391. 3. Effect of Vote Village Included Within Town. Under the local option statutes, if a town votes upon the license question and a village located within the town and not separated therefrom for all purposes has not voted thereon as an in- dependent municipality, the vote of the town determines the question for all the territory of the town, including that within the village; but if the village itself as an independent municipality votes upon the question, the vote of the village determines such question for the ferritory within the village regardless of the vote of the town. State-White (Minn.) 1917C- 510. (Annotated.) Note. Territory affected by adoption of local option law. 1917C-512. LODGING-HOUSES. Bee Innkeepers; Licenses. LOGGER'S LIEN. See Liens, 6-8. LOGGING. See Trees and Timber, 22-25. LOGS AND LUMBER. See Trees and Timber. LOOKOUT LAW. See Railroads, 52, 53. LOSS OF ARM. What constitutes, see Master and Servant, 205. LOSS OF EYE. What constitutes, see Master and Servant, 204. LOSS OF FINGER. What constitutes, see Master and Servant, 203. LOSS OF HAND. Includes, loss by amputation, see Accident Insurance, 19. LOSS OF SERVICES. Parent's action for child's services, see Parent and Child, 3. LOST INSTRUMENTS. Parol proof, see Evidence, 126-128. Sufficiency of proof, see Evidence, 154. Parol proof of lost memorandum, see Frauds, Statute of, 24. 1. Actions Loss of note. When it is proven that a note declared on has subse- quently been lost, secondary evidence of its contents is admissible. Austin v. Galloway (W. Va.) 1916E-112. 2. Loss of a note, occurring after it has been declared on, does not abate the suit or require amendment of pleadings. Aus- tin v. Galloway (W. Va.) 1916E-112. 3. A court of law has jurisdiction of an action to recover upon a lost note, when it is clearly established that plaintiff had title to such note and that its loss occurred after it became payable. Austin v. Gal- loway (W. Va.) 1916E-112. 540 DIGEST. 1916C 1918B. 4. Actions Effect of Discovery of In- strument. If after diligent and unavail- ing search therefor plaintiff sues, when allowable, in equity, upon a lost bond, its discovery and production thereafter is im- material upon his right to relief in a suit then pending. Clark v. Nickell (W. Va.) 1917A-1286. 5. Jurisdiction of Action on Lost Instru- ment. Equity has jurisdiction to enforce the liability of the obligors on the lost bond of a defaulting bank cashier. Clark T. Nickell (W. Va.) 1917A-1286. (Annotated.) Note. Jurisdiction of action on lost instru- ment. 1917A-1289. LOST PROPERTY. 1. Eights of Finder of Mislaid Property. Plaintiff, who rented a safe deposit box, while using the customer's private room, discovered an envelope lying on the corner of the desk containing bills to the amount of $180, and delivered it to the officers of the company, and after diligent effort by them and failure to find the rightful owner, brought suit for its return. It is held that the money, when discovered by plaintiff, was in the possession of the deposit com- pany, which owed a duty towards it, and which, as against plaintiff, was entitled to its possession and custody subject to the rights of the real owner. Foster v. Fidel- ity Safe Deposit Co. (Mo.) 1917D-798. (Annotated.) 2. Rights of Finder of Lost Property. The finder of lost property is entitled to possession against every one but the true owner. Foster v. Fidelity Safe Deposit Co. (Mo.) 1917D-798. 3. Distinction Between Lost and Mislaid Property. Property to be "lost" must have been unintentionally or involuntarily parted with, and money discovered in the highway or on the ground or the floor will be considered as having been casually and unknowingly dropped, and thus lost; but where it is intentionally put down, as in a drawer or on a table, and the owner for- gets where he left it and cannot find it, it is not in a legal sense lost. Foster v. Fidel- ity Safe Deposit Co. (Mo.) 1917D-798. (Annotated.) 4. Rights of Parties as to Mislaid Prop- erty. Where a person goes into another's public place of business to transact busi- ness with him and places his money on a table or desk and comes away, forgetting that he has done so, it is left in the pos- session of the owner, or within the pro- tection of the house or place, and in the legal sense is not lost. Foster v. Fidelity Safe Deposit Co. (Mo.) 1917D-798. 5. Mo. Rev. St. 1909, 8268 et seq.. de- fining the duty of persons finding lost prop- erty, relates only to the duties of a finder of lost property who does not know the true owner, and provides a method for the acquisition of title, and is inappli- cable to a safety deposit company ob- taining constructive possession of money placed by a customer on a desk provided by the company for the use of its custom- ers, and it is the lawful custodian of the money for the true owner, and must exer- cise due care to discover him and deliver the property to him. Foster v. Fidelity Safe Deposit Co. (Mo.) 1917D-798. (Annotated.) Note. Rights of parties with respect to mislaid property as distinguished from lost prop- erty. 1917D-803. LOTTERY. Defined, see Gaming, 2. LUMBER. See Trees and Timber. See Insanity. LUNATICS. LYIN& IN WAIT. Meaning, see Homicide, 60. MACHINIST. Aa within Federal Employers' Liability Act, see Master and Servant, 52. MACHINIST'S HELPER. As within Employers' Liability Act, see Master and Servant, 64. MAILABLE MATTER. See Postoffice, 1, 2. MAIL CARRIES. Status, see Public Officers, 7. See Postoffice. MAILS. MAINTENANCE. See Champerty and Maintenance. MAJORITY. Power to bind firm, see Partnership, 18-20. MALICE. Charging malice, see Indictments and In- formations, 12, 13. In civil action for libel, see Libel and Slander, 8-12, 103, 109, 114, 116, 119, 121, 122, 133, 134, 136, 138, 140, 147. MALICE AFORETHOUGHT MALICIOUS PROSECUTION. 541 Malice essential for liability, see Malicious Prosecution, 7.. Giving redelivery bond as evidence, see Replevin, 11. As essential to assault, see Trespass, 4, MALICE AFORETHOUGHT. Defined, see Bobbery, 1. MALICIOUS ACT. Defined, see Torts, 2. MALICIOUS INTERFERENCE WITH CONTRACT. Procuring discharge of servant, see Torts, 6-9. MALICIOUS MISCHIEF. Charging malice, see Indictments and In- formations, 12, 13. MALICIOUS MOTIVE. As affecting liability, see Torts, 4. MALICIOUS PROSECUTION. 1. Nature and Grounds of Liability, 541. a. In General, 541. b. Termination of Prosecution, 541. c. Malice, 541. d. Probable Cause, 542. (1) In General, 542. (2) Advice of Counsel, 542. 2. Actions, 542. a. Pleading, 542. b. Admissibility of Evidence, 542. c. Sufficiency of Evidence, 542. d. Questions for Jury, 543. e. Instructions, 543. f. Damages, 543. g. Verdict, 544. h. Defenses, 544. Excessireness of verdict, see Damages, 54, 55. 1. NATURE AND GROUNDS OF LIA- BILITY. a. In General. 1. Nature of Prosecution Proceeding to Abate Nuisance. An action for malicious prosecution will not lie for the malicious filing of a complaint under the E'ng. Public Health Act against the occupier of prem- ises to compel the cleaning and disinfect- ing thereof. Wiffen v. Bailey (Eng.) 19L6E-489. (Annotated.) 2. Elements of Tort. The elements nec- essary to support an action for malicious prosecution are the institution of proceed- ings without probable cause, with malice, that they have terminated in plaintiff's favor, and that she suffered damage there- from. Mclntosh v. Wales (Wyo.) 1916C- 273. 3. Writs Damages on Dissolution. Dam- ages will not be allowed on the dissolu- tion of ordinary conservatory writs, in the absence of statutory authority there- for. Harvey v. Gartner (La.) 1916D-900. 4. What Constitutes Bankruptcy Pro- ceeding. A petition in bankruptcy filed by bona fide creditors, without malice, with- out libelous and slanderous charges, with reasonable grounds for believing the alle- gations contained in the petition, with probable cause, and upon legal advice, al- though not successfully prosecuted, will not sustain an action for damages in the courts of the state. Harvey v. Gartner (La.) 1916D-900. (Annotated.) Notes. Liability as for malicious prosecution of one advising or procuring third person to institute proceeding. 1918A-485. Liability as for malicious prosecution of one who states facts to magistrate, public prosecutor or executive officer. 1918A- 492. Instituting bankruptcy or insolvency proceeding as ground for action for mali- cious prosecution. 1916D-909. Institution of proceeding to abate nui- sance as ground for action for malicious prosecution. 1916E-493. b. Termination of Prosecution. 5. Dismissal. Where defendants fur- nished information under oath, on which a justice of the peace issued a warrant charg- ing plaintiff with cattle theft, the fact that the prosecuting attorney thereafter caused the proceedings to be dismissed without submitting any evidence does not render such dismissal any the less a ter- mination of the proceedings in plaintiff's favor. Mclntosh v. Wales (Wyo.) 1916C- 273. 6. Plaintiff, by showing the dismissal of the prosecution, establishes a prima facie case of want of probable causa, but, if such case is overcome by proof of probable cause, the issue of malice becomes imma- terial, as proof of probable cause is a com- ple'te defense. Hightower v. Union Sav- ings, etc. Co. (Wash.) 1918A-489. c. Malice. 7. Distinction Between Malice and Want of Probable Cause. Probable cause, to "justify a criminal prosecution, may exist, though the prosecuting witness acts ma- liciously, if the charge is true, and, even if not true, if the witness acts honestly and in good faith, basing his charge on facts which he in good faith believes to be true, and which afterward turn out to be false; "probable cause" not depending on the guilt or innocence of accused in fact, but on the honest and reasonable be- 542 lief of the party commencing the prosecu- tion. Mclntosh v. Wales (Wyo.) 1916C- 273. d. Probable Cause. (1) In General. 8. Probable Cause Question for Court. What facts, and whether particular facts, constitute probable cause, is for the court. Williams T. Pullman Co. (Minn.) 1916E- 374. 9. Necessity of Affirmative Proof. The want of probable cause cannot be inferred from the existence of malice, but must be expressly shown, so that evidence of malice is inadmissible to show the want of prob- able cause. Hightower v. Union Savings, etc. Co. (Wash.) 1918A-489. 10. Probable Cause as Question of Law or Fact. The existence of the facts ne^es- sary to establish probable cause is a ques- tion for the jury, but the facts necessary to establish probable cause are for me courtj and if the existence of facts suffi- cient to establish probable cause is not disputed or is sufficiently shown, there is no question for the jury, and the court should hold, as a matter of law, that there is probable cause and dismiss the action. Hightower v. Union Savings, etc. Co. (Wash.) 1918A-489. Note. Advice of magistrate or layman as de- fense to action for malicious prosecution. 1918A-498. (2) Advice of Counsel. 11. Defendant, who was sued for ma- licious prosecution, cannot testify that he was not actuated by malice, where he did not consult an attorney before instituting the prosecution, but merely submitted the facts to a magistrate's clerk, who was an attorney at law, and the representations to the clerk were not shown, for there was no foundation for the testimony. Morin v. Moreau (Me.) 1918A-497. 12. Advice of Magistrate. Where a complainant consults an attorney at law, making a full, fair, and truthful disclosure, and solicits his deliberate opinion, and the advice obtained is favorable to a prosecu- tion, such advice will go far, in the absence cf other facts, to show probable cause and to negative malice in an action for ma- licious prosecution, but it does not negative malice or show probable cause that the de- fendant consulted a magistrate or a magis- trate's clerk, who was an attorney at law, before beginning a prosecution. (Morin v. Moreau (Me.) 1918A-497. (Annotated.) 13. Details of Statement to Counsel. Where defendant, in an action for mali- cious prosecution, desires to show that he acted upon the advice of counsel to nega- DIGEST. 1916C 1918B. tive malice and show probable cause, the details of the statement he made to his counsel before instituting the prosecution are admissible. Morin v. Moreau (Me.) 1918A-497. 2. ACTIONS. a. Pleading. 14. Joinder of Causes of Action, Two causes of action, each for malic. ous prose- cution, held to arise out of transactions connected with the subject of action, and each to affect all the parties to the action, and therefore to be'properly united in one complaint. Price v. Minnesota etc. R. Co. (Minn.) 1916C-267. b. Admissibility of Evidence. 15. Reputation of Plaintiff. In such suits, the bad reputation of the now plain- tiff is a circumstance bearing on the state of mind of the defendant going to show that the prosecutor had reasonable grounds and acted in good faith. Calhoun v. Bell (La.) 1916D-1165. (Annotated.) 16. Evidence of Damages Injury to Credit. Where, in an action for malicious prosecution, plaintiff claimed that her credit was injured at a bank by her ar- rest, such injury can be proved by plaintiff as well as by the bank officials. Mcintosh v. Wales (Wyo.) 1916C-273. 17. Defendant's Wealth. Where, in an action for malicious prosecution, plaintiff claims that defendant, J., had instituted the prosecution in order that he might get plaintiff and her husband out, of the coun- try, and so have freer access to a range for his cattle, and plaintiff prays to re- cover punitive damages, evidence of J.'s financial condition and the extent of his land holdings, etc., is admissible. Mc- intosh v. Wales (Wyo.) 1916C-273. 18. Evidence Hearsay. In an action for malicious prosecution, testimony of the prosecuting attorney as to what had been hold him by the officers of the bank and others concerning transactions between the bank's manager and the plaintiff, and that, in his opinion, the plaintiff was guilty of grand larceny, is not within the hearsay law, but is admissible on the issues of good faith and probable cause. Hightower v. Union Savings, etc. Co. (Wash.) 1918A-489. Note. Admissibility of evidence of plaintiff's character in action for malicious prosecu- tion. 1916D-1167. c. Sufficiency of Evidence. 19. Proof of Want of Probable Cause Acquittal. In an action to recover dam- ages for malicious criminal prosecution, proof of an acquittal upon a trial for the crime charged is not prima facie evidence MALICIOUS PROSECUTION. 543 of want of probable cause for the institu- tion of the prosecution. Williams v. Pull- man Co. (Minn.) 1916E-374. (Annotated.) 20. Evidence Insufficient. The facts in this case upon plaintiff's own testimony do not prove want of probable cause for his arrest and prosecution upon the charge of drunk and disorderly. Williams v. Pull- man Co. (Minn.) 1916E-374. 21. Want of Probable Cause Termina- tion of Original Prosecution as Evidence. Dismissal of a criminal prosecution against plaintiff at the instance of the prosecuting attorney without submitting any evidence, while admissible to show a termination of the proceedings in plaintiff's favor, is not evidence of malice or want of probable cause. Mclntosh v. Wales (Wyo.) 1916C- 273. 22. Evidence Sufficient. The determina- tion of the trial court and jury that there was no probable cause is held correct. Price v. Minnesota, etc. R. Co. (Minn.) 1916C-267. 23. Proof of Want of Probable Cause Insufficient. Where, in an action for ma- licious prosecution, one of defendants was plaintiff's uncle, and had known her in the community from childhood, and there was other proof that plaintiff's reputation for honesty and integrity was good, and she testified that she never had stolen any calves from defendants or either of them, as alleged, the proof is sufficient to raise a prima facie case of want of probable cause. Mclntosh v. Wales (Wyo.) 1916C- 273. 24. Inference of Malice. Malice may be inferred from a showing of want of prob- able cause, but want of probable cause will not be inferred from proof of malice alone. Mclntosh v. Wales (Wyo.) 1916C- 273. 25. Persons Liable Instigating Prosecu- tion by Third Person. That defendant in a malicious prosecution suit, not only coun- tenanced and approved, but in fact insti- gated, the prosecution, and caused the arrest of plaintiff, his tenant, for taking away a cotten crop, when there had been no settlement, and in fact there was no rent due him, and there was enough cotton on the place to pay any balance claimed by him, warrants a verdict for plaintiff. Gordon v. McLearn (Ark.) 1918A-482. (Annotated.) Note. Acquittal in criminal prosecution as evi- dence, in action for malicious prosecution, of want of probable cause. 1916E-376. d. Questions for Jury. 26. The defense of advice of counsel was properly for the jury to determine, and the evidence sustains the verdict on this issue. Price v. Minnesota, etc. R. Co. (Minn.) J916C-S67. e. Instructions. 27. Probable Cause Question of Law or Fact. The existence of facts tending to show probable cause for the institution of a criminal prosecution is for the jury, but their legal effect is for the court, and in- structions advising the jury with respect thereto should be given. Carroll v. Parry (D. C.) 1916E-971. 28. Trial Instructions Approved. There was no prejudicial error in the rulings on evidence, in the charge or in the refusal to give requested instructions. Price v. Minnesota, etc. R. Co. (Minn.) 1916C-267. f. Damages. 29. Elements of Damage Recoverable. The circumstances of aggravation, bodily pain, mental anguish, and injury to reputa- tion, and expenses of litigation less tax- able costs, are proper elements of damages for malicious prosecution. Seidler v. Burns (Conn.) 1916C-266. 30. Excessiveness of Damages. Where plaintiff suing for malicious prosecution shows that he was arrested about 5 o'clock in the afternoon and taken through the public streets lo the police station, where he was kept in a cell until the next morn- ing, that his case was then adjourned until the following day when he was acquitted, and there is evidence that the acts of de- fendant were wanton and malicious, a ver- dict of $500 will not be disturbed as ex- cessive. Seidler v. Burns (Conn.) 191 6C- 266. (Annotated.) 31. The damages are not excessive with- in the rule guiding this court .jn cases of this kind. Price v. Minnesota, etc. R. Co. (Minn.) 1916C-267. (Annotated.) 32. Punitive Damages. Where there is evidence of actual malice in an action for .malicious prosecution, plaintiff may recover punitive damages. Mclntosh v. Wales (Wyo.) 1916C-273. 33. Recovery of Attorney's Fee. In a prosecution for malicious prosecution, plaintiff may recover a reasonable attor- ney's fee for services rendered in procur- ing her release from the prosecution. - Mc- lntosh v. Wales (Wyo.) 1916C-273. 34. Compensatory or Punitive Damages. Where the jury finds that defendant in a malicious prosecution suit has acted will- fully, in a wanton and oppressive manner, and in conscious disregard of his civil obligations 'and of plaintiff's rights, it m >y properly assess punitive damages. Gordon v. McLearn (Ark.) 1918A-482. 35. No punitive damages in a malicious prosecution suit may be assessed, unless compensatory damages are also ass"?s"d, although punitive damages may largely ex- ceed the compensatory damages. Gordon v. McLearn (Ark.) 1918A-182. 544 g. Verdict. 36. The finding of the jury that there was malice is sustained by the evidence. Price v. Minnesota, etc. R. Co. (Minn.) 19160-267. 37. Judgment Against One Defendant Only. In an action for malicious prosecu- tion against two defendants, alleging that they conspired to cause the arrest of the" plaintiff on a false charge, the individual liability of a single defendant does not de- pend upon the proof of the existence of a conspiracy, and a verdict for one defendant does not discharge the other from liability. Gordon v. McLearn (Ark.) 1918A-482. Note. What is excessive or inadequate verdict in action for malicious prosecution. 1916C 250. h. Defenses. 38. Original Proceeding Jurisdiction and Process. In suits for damages for malicious prosecutions and false arrest, it is not material that the plaintiff was pros- ecuted on an insufficient process, or be- fore a court without jurisdiction. Cal- houn v. Bell (La.) 191&D-1165. 39. Insufficiency of Original Complaint. Where plaintiff was actually arrested and held under a warrant issued on a sworn complaint, the fact that such complaint did not in fact state a criminal offense is no defense to an action for malicious pros- ecution. Mclntosh v. Wales (Wyo.) 1916C-273. 40. Persons Liable Statement of Facts to Public Prosecutor. That defendant in an action for malicious prosecution made to the prosecuting attorney a full and true statement of all the facts concerning the crime within his knowledge, and acted upon the attorney's advice that a prosecu- tion be instituted, or made the disclosure, and the prosecuting officer himself insti- tuted the prosecution, constitutes a good defense. Hightower v. Union Savings, etc. Co. (Wash.) 1918A-489. (Annotated.) MALPRACTICE. See Physicians and Surgeons, 19-45. MANAGER. Authority of bank manager, see Banks and Banking, 11, 12. MANDAMUS. 1. Nature and Grounds of Relief, 544. 2. Nature of Acts Compellable, 544. a. Exercise of Discretionary Powers, 544. b. Acts' of Judicial Officers, 545. (1) In General, 545. (2) Compelling Action. 545. (3) Ministerial or Arbitrary Acts, 545. DIGEST. 1916C 1918B. c. Right to Office, 545. d. Acts of Private Corporation, 545. e. Issuance to Private Person, 546. f . Ministerial Acts, 546. g. Duty Imposed by Law, 546. h. Useless Act, 546. 3. Procedure. 546. a. Jurisdiction, 546. b. Who may Obtain Writ, 546. c. Parties Defendant, 547. d. Abatement, 547. e. Pleading, 547. f. Fiat for Writ, 547. g. Peremptory Wtrit, 547. h. Appeal and Error, 547. To compel refund of taxes erroneously col- lected, see Taxation, 108. 1. NATURE AND GROUNDS OF RE- LIEF. 1. Effect of Existence of Statutory Rem- edy. The remedy given by section 39, chapter 39, W. Va. Code 1899, against a sheriff, for failure to pay county orders drawn on him, that remedy not being as competent to afford relief on the very subject-matter, and one equally as con- venient, beneficial, and effective, is not ex- clusive of the remedy by mandamus; it is cumulative only of that common-law rem- edy. Eureka Pipe Line Co. v. Riggs (W. Va.) 1918A-995. 2. S. Dak. Laws 1911, c. 239, provides that when a judge of the supreme court, not legally resident at the 'state capital, shall have changed his actual residence thereto, there shall be paid to such judge, for his increased expenses, the fixed sum of $50 a month, payable on the certified vouchers of such judge. The state auditor refused to issue warrants to the members of the supreme court covering the amounts claimed by them to be due under the stat- ute for a certain month and the presiding judge of such court sought mandamus therein to compel issuance to him. An ac- tion at law by the judge against the state, under Code Civ. Proc. 25, could not have been prosecuted to final judgment prior to a date when the appropriation for the pay- ment would have lapsed. It is held that the relief by ordinary suit at law was not plain, adequate, and speedy, since such remedy, to prevent mandamus, must be equally convenient and beneficia*!, and as effective as mandamus, placing the relator in the same position he would have occu- pied had the duty sought to Tbe roerced been performed. (McCoy v. Handlin (S. Dak.) 1917A-1046. 2. NATURE OF ACTS COMPELLABLE. a. Exercise of Discretionary Powers. 3. Subjects of Belief Denial of Liquor License. Mandamus will not lie to control or restrict the discretion given to a city council in respect to the issuance of a liquor license, but in the present case it MANDAMUS. 545 sufficiently 'appears that the license was refused solely because its issuance had been prohibited by an ordinance adopted under the initiative provisions of the city charter, and not in the exercise of the dis- cretion reposed in the council. State T. Duluth (Minn.) 1918A-683. (Annotated.) Note. Mandamus to control issuance of liquor license. 1918A-687. b. Acts of Judicial Officers. (1) In General. 4. Where an applicant for registration as a trained nurse appealed from the de- cision of the state board of nurse exam- iners to the state association of 'graduated nurses as authorized by Mont. Laws 1913, c. 50, 11-, she cannot thereafter ask man- damus against the board, even though the association acted capriciously and without the full hearing required in denying relief to her, since the board cannot be held re- sponsible for the failure of the association to do its duty. State v. District Court (Mont.) 1917C-164. 5. Right to Eemedy Controlling Action of Licensing Board. Under Mont. Laws 1913, c. 50, providing for the registration of nurses, the state board of examiners for nurses is a public board and cannot be compelled by mandamus to certify an ap- plicant to the governor for registration, since the determination of the qualifica- tions of applicants is a quasi-judicial func- tion, which, if honestly exercised, cannot be subject to judicial review, though the honest performance of such duty can be commanded. State v. District Court (Mont.) 1917C-164. (2) Compelling Action. 6. Where a judge is incompetent, on statutory or common-law grounds, to try a cause pending before him, mandamus is the proper remedy to compel him to certify his incompetency as a preliminary to the selection of a qualified judge in his stead. McConnell v. Goodwin (Ala.) 1917A-839. 7. The fact that a relator, who allege;! that her application for registration as a nurse was rejected by the board arbitrarily and not in the exercise of its honest judg- ment, asked for mandamus to compel the board to certify her name to the governor, does not prevent the court from issuing mandamus to compel the board to .pass upon her qualifications according to its honest judgment. State v. District Court (Mont.) 1917C-164. % (3) Ministerial or Arbitrary Acts. 8. To Court Exceeding Jurisdiction. Mandamus is the proper remedy where a federal district court has exceeded its 35 power by ordering that the execution of a sentence to imprisonment imposed by it upon a plea of guilty be suspended in- definitely during good behavior upon con- siderations wholly extraneous to the con- viction. Ex parte United States (U. S.) 1917B-355. 9. Grounds for Relief To Compel Dis- missal of Action. Where, under the stat- utes, defendant is entitled to dismissal of plaintiff's action for want of prosecution, mandamus to compel the lower court to order dismissal will not be denied on the ground that the writ is discretionary, and will not be issued where it will cause in- justice. Larkin v. Superior Court (Cal.) 1917D-670. c. Eight to Office. 10. Enforcement of Preferential Right to Appointment. Mandamus is not the proper remedy to enforce the appointment by the governor of an honorably discharged sol- dier to a position on the board of public health and medical examiners, under S. Dak. Pol. Code, 3242, providing that in every public department and upon all pub- lic works, honorably discharged Union soldiers shall be preferred for appointment, since a disregard of such statute does not violate the legal rights of any particular person so as to enable him to maintain civil proceedings in his own behalf. Phelps v. Byrne (S. D.) 1918B-996. 11. Restoration to Office. A petition for mandamus is appropriate to compel the restoration to office of a rightful incum- bent who has been wrongfully removed. Chaee v. City Council (R. I.) 1916C-1257. 12. Subjects of Relief Reinstatement of Teacher. In such, case, mandamus is avail- able as a remedy, for reinstatement. Rich- ards v. District School Board (Ore.) 1917D- 266. 13. Preventing Removal from Office. Mandamus is an appropriate remedy to compel the mayor of a city to refrain from attempting to remove the commissioner of public safety from his office without au- thority, as the commissioner's tenure and removal so intimately affect the public ser- vice and municipal interest that the writ may be invoked to secure the proper exe- cution of the laws. Cunningham v. Mayor (Mass.) 1917C-1100. d. Acts of Private Corporation. 14. Corporations Election of Officers Mandamus to Test Validity. Mandamus affords the appropriate relief to test the validity of an election to offices in a Mas- sachusetts business corporation, though it is not the purpose of the court to extend the writ into new fields. Longyear v. Hardman (Mass.) 1916D-1200. 15. Contractual Duty to Municipality. A city, by ordinance, leases land owned by 546 it to a private corporation for a wharfage business, and therein reserves the right, within a period specified, to purchase all buildings and appliances constructed and used by the lessee in the business, the price thereof to be fixed by appraisers, two chosen by each of the contracting parties and the fifth by those thus selected. The city, within the time limited, elects to purchase, and, after due notice, appoints two appraisers to act on its behalf; but the lessee declines to make any selection of appraisers or to consummate the pur- chase. Held, mandamus is not the proper rem- edy to compel compliance by the lessee with the provisions of the ordinance and contract relating to such purchase by the city. Huntington v. Huntington Wharf, etc. Co. (W. Va.) 1918A-913. (Annotated.) e. Issuance to Private Person. 16. Duties Enforceable Contract Obli- gation. Mandamus does not He to enforce purely contractual obligations. Hunting- ton v. Huntington Wharf, etc. Co. (W. Va.) 1918A-913. Note. Mandamus as remedy in behalf of mu- Enicipality to compel performance of con- tractual obligation. 1918A-915. t. Ministerial Acts. 17. Mandamus to Compel Return. The duty of t^e county canvassing board, inde- pendently of the Wis. Law of 1911, is purely ministerial; it is required to obtain possession of the district returns witnin the time specified; it may have a remedy by mandamus to enable it to do so, if necessary, and may be compelled by man- damus, if necessary, to complete its work within the required time. State v. Board of State Canvassers (Wis.) 1916D-159. 18. Enforcing Payment of Allowance to Judge. S. Dak. Laws 1911, c. 239, pro- vides that where a supreme court judge, not a legal resident of the state capital, ihall remove thereto he shall be paid $50 monthly in consideration of increased ex- penses incident to the removal. The state Midi tor refused to issue warrants to the members of the supreme court for the amount for a certain month, and the pre- siding judge of the court sought mandamus therein to compel the issuance of such a warrant to him under Code Civ. Proc. 764, providing that the writ of mandamus may be issued by the supreme court to any in- ferior tribunal, board, or person to compel the performance of an act specially en- joined as a duty resulting from an office, trust, or station. The auditor contended tbat the plaintiff's remedy was by action at law a?ai"St the state in the supreme court, as Code Civ. Proc. 25 et seq., pro- DIGEST. 1916C 1918B. vide that any person aggrieved by the re- fusal of the state auditor to allow any just claim may sue the state in the supreme court. It is held that since there was n dispute as to the amount to be paid, if any- thing, the payment was a ministerial duty, imposed by statute, involving no discre- tion, and the writ of mandamus was the proper remedy as the procedure under sec- tion 25 et seq., was to determine the amount of claims disputed as to amount, not a means to compel payment of those a? to which the state does not dispute- the amount. McCoy v. Handlin (S. Dak.) 1917A-1046. g. Duty Imposed by Law. 19. A mandamus will lie to compel a railroad company to make the necessary repairs to its road running through the streets of a city or town, so as to keep- the same free for the use of the public, and clear of all obstructions. La. Rev. St. 691, as amended by Acts No. 204 of 1902, p. 395, and No. 157 of 1910, p. 236; Act No. 193 of 1912, p. 381. State v. Louis- iana, etc. E. Co. (La.) 1916C-1170. (Annotated.) 20. Under Iowa Code, 4341, providing for writ of mandamus to compel an inferior body or tribunal to execute a duty imposed by law, a writ of mandamus is the proper remedy to compel the board of supervisors to perform a duty imposed by law. Com- mercial Nat. Bank v. Board of Supervisors (Iowa) 1916C-227. h. Useless Act. 21. To Compel Canvass of Votes. Man- damus will not issue to compel a city coun- cil to canvass votes at a city election, where the ballots were void for uncer- tainty; since the writ will not issue to compel the performance of an act which can accomplish no useful purpose. Wilson v. Blake (Cal.) 1916D-205. 3. PROCEDURE, a. Jurisdiction. 22. Issuance in Vacation. The writ of mandamus and incidental prohibition, be- ing peremptory in character, is void when issued in vacation, and was properly quashed, and the fiat under which the writ was issued by the clerk was void for the same reason. McConnell v. Goodwin (Ala.) 1917A-839. b. Who May Obtain Writ. 23. Persons Entitled to Apply for Writ Enactment of Statute. One having a special interest in tMe publication of a legislative act may institute mandamus against the secretary of state to compel its publication amone the acts of the legis- lature. Arkansas State Fair Assoc. v t Hodges (Ark.) 1917C-829. MANDATORY AND PERMISSIVE STATUTES MANUFACTURER. 547 c. Parties Defendant. 24. A rule to show cause why mandamus should not issue where a federal district court has exceeded its power by ordering that the execution of a sentence to im- prisonment imposed by it upon a plea of guilty be suspended indefinitely during good behavior upon considerations wholly extraneous to the legality of the conviction is properly directed to the judge, to com- pel the vacation of the order of suspen- sion, rather than to the clerk of the court, to compel him to issue a commitment. Ex parte United States (U. S.) 1917B-355. d. Abatement. 25. Against Officer Effect of Expiration of Term, A suit in mandamus against a sheriff by the holder of such order of ex- oneration, to compel the former to repay him excess of taxes collected, does not abate by the officer's death, resignation, or expiration of his term, if it be shown that, by the fault of the county court, or other- wise, he has failed to pay such order, and at the expiration of his term he has paid over to his successor the money which he should have paid to relator, and such sum has gdne into the treasury to the credit of the county fund, the district fund, and to the boards of education. In such case the suit may be revived, and the incumbent in office cited into court and required to respond to the writ, as upon original pro- cess. Eureka Pipe Line Co. v. Eiggs (W. Va.) 1918A-995. (Annotated.) 26. The facts in this case call for the proper application of the rule of practice just seated. Eureka Pipe Line Co. v. Eiggs (W. Va.) 1918A-995. (Annotated.) Note. Abatement of mandamus by termination of respondent's office. 1918A-1000. e. Pleading. 27. Application for Writ Allegations on Information and Belief. Where it is obvious that the reason for the action of the council is not within the personal knowledge of the relator, he may allege such reason upon information and belief. State v. Duluth (Minn.) 1918A-683. f. Fiat for Writ. 28. Definiteness. A fiat to the circuit clerk of a county, directing him to issue mandamus "or other remedial writ" re- quiring the judge of probate to certify his disqualification, is bad, in that it leaves the selection of the appropriate writ to the discretion of the clerk, a judicial authority which cannot be thus delegated. McConnell r. Goodwin (Ala.) 1917A-839. g. Peremptory Writ. 29. Eight to Peremptory Writ Alterna- tive Writ Erroneous in Part. The rul that where an alternative writ is awarded for a purpose, partly proper and partly improper, the court will not grant per- emptory mandamus, is not an iron-bound one, but is to be applied with principles of justice. Larkin v. Superior Court (Cal.) 1917D-670. , 30. Where one of several defendants de- faulted, and the others were entitled to dismissal for want of prosecution, and the defendants who answered moved for a dismissal as to them, their application for a writ of mandamus to compel the trial court to order dismissal will not be denied under the rule that a petitioner for mandamus is concluded by the terms of the alternative writ, and, as the alter- native writ prayed a dismissal of "the action," it was not wholly authorized. Larkin v. Superior Court (Cal.) 1917D- 670. h. Appeal and Error. 31. Findings of Fact. The supreme court is not bound by the findings of fact made by its commissioner in mandamus, and will examine the facts when chal- lenged, whether formal exceptions are filed or not. State v. Jost (Mo.) 1917D- 1102. MANDATORY AND PERMISSIVE STATUTES. See Statutes, 18-20. MANDATORY INJUNCTION. See Injunctions. MANIA. Defined, see Wills, 59. MANN ACT. See Prostitution, 14, 15, 21. MAN OF STRAW. Liability for deficiency judgment, see Mortgages, 28. MANSLAUGHTER. See Automobiles, 63; Homicide. MANUFACTURER. Liability for injuries, see Automobiles, 58-62. Liability for explosion of gasoline light- ing' system, see Negligence, 90, 99. 548 DIGEST. 19160 1918B. MAPS. As evidence, see Evidence, 91, 92. Parol proof to explain, see Evidence, 12L MARINE INSURANCE. See Insurance; Snips and Shipping. 1. Action Joinder of Underwriters. Where a number of underwriters insure a vessel by a contract expressly declaring that they bound themselves severally, and not jointly, for its performance, the in- sured cannot maintain a single action against all the insurers to recover an ag- gregate amount of the policy. Fish v. Vanderlip (N. Y.) 1916E-150. 2. Constructive Total Loss Frustration of Voyage. A vessel which is, at the breaking out of war, bound to a port of one of the belligerents and is warned that capture is inevitable if an attempt is made to reach that port, may put into a friendly port, and the owners may there abandon the ship and cargo to the under- writers and claim a constructive total loss, if the policy insures against capture or "restraint of princes." British, etc. Marine Ins. Co. v. Sanday (E'ng.) 1916D- 876. (Annotated.) Note. Frustration of voyage because of exist- ence of war as constructive total loss within marine insurance policy. 191 6D- 884. MARITIME EMPLOYEES. As within Workmen's Compensation Act, see Master and Servant, 243-217, 262. MARK. As a signature, see Wills, 14, 16-18. MARKET PRICE. Meaning, see Sales, 4. MARRIAGE. 1. Nature and Validity, 548. a. Statutory Regulation, 548. b. Rights and Obligations of Parties, 54&. c. Validity, 548. (1) Prohibited Degrees of Rela- tionship, 548. (2) Prior Existing Marriage, 549- (3) Common-law Marriage, 549. 2. Sufficiency of Evidence, 549. 3. Annulment. 549. a. Grounds, 549. b. Jurisdiction, 549. c. Evidence, 549. Bee Adultery; Alimony and Suit Money; Bigamy; Breach of Promise of Mar- riage; Divorce; Husband and Wife; Incest; Polygamy. Expatriation by marriage, see Aliens, 15. 16. Effect of bigamy on first marriage, see Bigamy, 1. How proved, see Husband and Wife, 71- 74. Sufficiency of proof, see Incest, 1. Cohabitation after statute forbidding marriage, see Incest, 2. As affecting widow's compensation under Workmen's Compensation Act, Bee Master and Servant, 278. Ground for removal of teacher, see Schools, 32. As revocation of will, see Wills, 106-110. Testamentary provisions in restraint, see Wills, 229-236. 1. NATURE AND VALIDITY, a. Statutory Regulation. 1. 'Tather" Meaning of Term Step- father not Included. Under X. Car. Re- visal 1905, 2088, providing that, where either party to a .proposed marriage is un- der 18 and resides with the father, mother, uncle, etc., the register of deeds shall not issue a license for such marriage until the consent in writing of the Delation with whom the infant resides shall be de- livered to him, while the consent of the persons named, and in the order named, must be obtained, and where the infant is living with the father and mother the written consent of the father is necessary, where the infant is living with her mother and stepfather, the mother's con- sent is sufficient, and the stepfather's consent is not required, since the words "father" and "stepfather" are in general use and well understood, the difference in the relationship and the marked distinc- tion between their duties and liabilities are well known, and the word "father" does not include a "stepfather," defined as the husband of one's mother, who is not one's father. Owens v. Munden (N. Car. 1917B-1117. (Annotated.) b. Rights and Obligations of Parties. 2. Intent not to Perform Marital Obli- gations. The statement of a man at the time of his marriage that he would not live with the woman does not render the marriage void. Wimbrough v. Wim- brough (Md.) 1916E-920. (Annotated.) c. Validity. (1) Prohibited Degrees of Relationship. 3. Persons Related Within Prohibited Degree Validity. S. Car. Civ. Code 1912, 3743, declares that no man shall marry his sister's daughter, and that no woman shall marry her mother's brother. Section 3752 provides that either party to a mar- riage, the validity of which is doubted, may institute a suit to determine the MARRIAGE. validity. Section 3753 provides that the court of common pleas may determine any issue affecting the validity of contracts of marriage. Defendant in 1882 married the daughter of his half-sister. It is held that the statute included relatives of the half blood; that the marriage was not void, but voidable, the distinction being that a "void marriage" is one not good for any legal purpose, the invalidity of which may be maintained in any proceeding be- tween any parties, while a "voidable mar- riage" is one where there is an imperfec- tion which can be inquired into only dur- ing the lives of both of the parties in a proceeding to obtain a sentence declaring it void, so that until set aside it is prac- tically valid, and when set aside is ren- dered void from the beginning. State v. Smith (S. Car.) 1917C-149. (Annotated.) Note. Whether marriages within prohibited degrees of relationship voidable or void. 1917C-151. (2) Prior Existing Marriage. 4. Validity Within Proscribed Time After Divorce. Where a man and woman, within six months after his divorce, left Washington for Canada only to have a marriage performed, immediately return- ing, having had no intention to change their domicil, the marriage ceremony is void in law, and its issue illegitimate. Peerless Pacific Co. v. Burckhard (Wash.) 1918B-247. (3) Common-law Marriage. 5. N. Y. Laws 1907, c. 742, repealing Laws 1901, c. 339, 6, declaring invalid marriages contracted otherwise than as therein provided, renders common-law marriages valid again, although Laws 1901, c. 339, 2, requiring solemnization by certain persons, was not repealed. Ziegler v. P. Cassidy's Sons (N. Y.) 19J7E-248. (Annotated.) 6. Prior to 1901 common-law marriages were valid in New York. Ziegler v. P. Cassidy's Sons (N. Y.) 1917E-248. (Annotated.) 7. N. Y. Laws 1901, c. 339, 2, providing that marriages must be solemnized by cer- tain persons, and section 6, providing that no marriages contracted otherwise than as provided shall be valid, rendered common- law marriages invalid, although section 2 alone would have been insufficient for that purpose. Ziegler v. P. Cassidy's Sons (N. Y.) 1917E-248. (Annotated.) 8. Statutory provisions, requiring writ- ten contracts of marriage to be acknowl- edged a certain way; that the marriage statutes shall not invalidate marriages among Quakers, etc., nor should failure to procure a license invalidate them, do not, by necessary implication', render common- law marriages void. Ziegler v. P. Cassidy's Sons (N. Y.) 1917E-248. (Annotated.) 9. The fact that the marriage law pro- vision, recognizing marriages contracted in the manner theretofore used, was stricken out when common-law marriages were prohibited and not reinserted when the common-law marriage prohibition was repealed, does not indicate a legislative intent to continue the prohibition of com- mon-law marriages. Ziegler v. P. Cas- sidy's Sons (N. Y.) 1917E-248. (Annotated.) 10. A statute will not be construed to prohibit common-law marriages where the interpretation is doubtful. Ziegler v. P. Cassidy's Sons (N. Y.) 1917E-248. (Annotated.) 2. SUFFICIENCY OF EVIDENCE. 11. Evidence Insufficient. In a habeas corpus proceeding to obtain the release of a juvenile delinquent from the custody of the superintendent of the state industrial school, evidence held insufficient to estab- lish any legal marriage between the de- linquent and plaintiff. Stoker v. Gowans (Utah) 1916E-1025. 3. ANNULMENT, a. Grounds. 12. Duress Marriage to Escape Prose- cution. Where a man marries to escape arrest or imprisonment for seduction or bastardy he cannot avoid the marriage on the ground of duress, nor is a marriage in- duced by threats of lawful prosecution, arrest, or imprisonment, to redress or punish a wrong, open to impeachment on that ground. Wimbrough v. Wimbrough (Md.) 1916E-920. b. Jurisdiction. 13. Annulment Power of Equity. Though Md. Code Pub. Civ. Laws, art. 62, 14, provides that circuit courts and the superior court of Baltimore city upon petition, and the circuit courts and the criminal court of Baltimore on indictment, may inquire into the validity of any mar- riage and declare any marriage contrary to that article, or any second marriage, the first subsisting, null and void, the authority of courts of equity to determine the validity of a marriage charged to have been procured by abduction, terror, fraud, or duress, rests upon their general juris- diction to set aside contracts affected by fraud, etc. Wimbrough v. Wimbrough (Md.) 1916E-920. c.' Evidence. 14. The jurisdiction of equity to set aside a marriage for fraud, duress, etc., should be exercised with extreme caution, and only on clear, distinct, and satisfac- torv evidence. Wimbrough v. Wimbrough (Md.) 1916E-920. 550 DIGEST. 1916C 1918B. 15. Evidence of Duress Insufficient. In a husband's action to annul a marriage, evidence held insufficient to show duress on the part of the wife's father, justify- ing the annulment of the marriage. Wimbrough v. Wimbrough (Md.) 1916E- 920. MARRIED WOMEN. Liability for husband's negligence, see Automobiles, 24, 32. Liability for injury caused by herself, see Automobiles, 25) 49. Renewal of note after disability removed, effect, see Bills and Notes. 38. Contracts of, see Husband and Wife, 1-13. Conveyance by of life estate, see Life Estates, 5. MARSHALING ASSETS. See Equity, 6. On foreclosure of mortgage, see Mortgages and Deeds of Trust, 29, 31. MARTIAL LAW. See Militia. 1. Power to Declare Scope of Military Power Suppression of Newspaper. By virtue of the authority vested in the gov- ernor by the constitution and laws of the state, he has authority as commander in chief of the military forces, pending the existence of martial law covering any por- tion of the state's territory, to cause to be arrested and imprisoned, until peace is restored, any person whom he has good reason to believe is aiding or encouraging disorder and rioting; and he may also temporarily suppress any newspaper pub- lished in the state, having a circulation in the martial zone, and containing arti- cles which he has reason to believe will encourage a continuation of the disorder therein. Hatfield v. Graham (W. Va.) 1917C-1. MASONIC BENEFIT SOCIETIES. Sec Benevolent Associations. MASSEURS. See Physicians and Surgeons, 12, 13. MASTER AND SERVANT. 1. Contract of Employment, 551. a. Duration of Hiring, 551. b. Discharge, 551. (1) Question of Law or Fact, 551. (2) Admissibility of Evidence, 551. c. Compensation, 551. d. Credentials, 551. 2. Liability of Master for Injury to Ser- vant, 551. a. Duty to Furnish Safe Place to "Work, 551. (1) In General, 551. b. (2) Railroad Cars and Premises, 552. Duty to Furnish Safe Appliances and Machinery, 552. (1) In General, 552. (2) Guarding Machinery, 552. (3) Work Animals, 552. Duty to Warn and Instruct Ser- vant, 553. Promulgation of Rules, 553. Violation of Statute, 553. Acts of Fellow Servants, 553. (1) Who Are, 553. (2) Nature of Liability, 553. (3) Effect of Statutes, 553. Assumption of Risk, 553. (1) Violation of Statute. 553. (2) Promise to Repair, 554. (3) Assumption by Contract, 554. Contributory Negligence, 554. (1) In General, 554. (2) Violation of Rules, 554. (3) Questions of Law and Fact, 554. Limiting Liability by Contract, 554. Employers' Liability Acts, 555. (1) Nature and Scope, 555. (2) Constitutionality, 555. (3) Injuries Arising "Out of" and "In Course of" Employment, 556. (4) Employees Within Federal Employers' Liability Act, 556. (5) Employers Within Act, 558. (6) Contributory Negligence, 558. (7) Negligence of Fellow Servant, 558. (8) Assumption of Eisk, 558. (9) Limitation of Recovery, 559. (10) Persons Entitled to Sue, 559. (11) What Law Governs, 559. (12) Pleading, 560. (13) Evidence, 560. (14) Instructions, 560. (15) Damages, 561. (16) Verdict, 561. (17) Review, 561. Workmen's Compensation Acts, 562. (1) Nature and Purpose, 562. (2) Constitutionality, 562. (3) Construction Generally, 568. (4) Operation Without State, 570. (5) Election Under Optional Act, 570. (6) Exclusiveness of Remedy, 571. (7) "Accident" and "Personal In- jury," 571. (8) Injuries Arising "Out of" and "In Course of" Employ- ment, 573. (9) Serious and Wilful Miscon- duct of Employee, 575. (10) Notice to Employer, 575. (11) Employees Within Act, 576. (12) Dependents, 579. (13) Compensation, 579. (14) Proceedings Under Act, 581. (15) Effect of Settlement, 583. MASTER AND SERVANT. 551 (16) Increase of Award, 583. (17) Review, 58a. 1. Actions for Injuries, 585. (1) Pleading, 585. (2) Presumptions and Burden of Proof, 585. (3) Admissibility of Evidence. 586. (4) Sufficiency of Evidence, 586. (5) Defenses, 586. (6) Questions for Jury, 586. (7) Instructions, 588. (8) Verdict, 588. 3. Liability of Master for Acts of Ser- vant, 589. a. Existence of Eelation, 589. b. Nature and Extent of Liability, 589. c. Pleading, 589. See Independent Contractors. Servant's admission of negligence, see Admissions and Declarations, 7. Evidence, res gestae, see Admissions and Declarations, 16. Authority to engage physician for injured servant, see Agency, 12. Fellow-servant doctrine inapplicable to attorneys, see Attorneys, 70. Liability of owner for acts of chauffeur, see Automobiles, 23. Compulsory insurance, see Constitutional Law, 112. Injunction to prevent breach of employ- ment contract, see Injunctions, 12. Kelation of landlord and tenant distin- guished, see Landlord and Tenant, 1. Privileged communication to prospective employer, see Libel and Slander, 66- 68. Action under Federal Liability Act, see Removal of Causes, 1. Liability for wrongfully procuring dis- charge of servant, see Torts, 6-9. 1. CONTRACT OF EMPLOYMENT, a. Duration of Hiring. 1. Renewal of Contract Continuing in Service. As plaintiff after his original em- ployment for the year 1910 continued in the service of defendant without further contract and received one increase of salary, whether he was employed by the month or by the year in 1914, when he left plaintiff's service, is held to be for the jury. Conrad v. Ellison-Harvey Co. (Va.) 1918B-1171. (Annotated.) 2. The fact of plaintiff's subsequent em- ployment implies some sort of a contract, from the continuance in service, depend- ing upon the intention of the parties, and there is a rebuttable presumption that he was again employed for a like term. Con- rad v. Ellison-Harvey Co. (Va.) 1918B- 1171. (Annotated.) Note, Term of employment and rate of com- pensation of one continuing in service after termination of contract. 1918B- 1176. b. .Discharge. (1) Question of Law or Fact. 3. Question for Jury. In a discharged bookkeeper's action on the common counts in assumpsit for salary, the question whether the plaintiff was discharged or quit the service of defendant of his own accord is held to be for the jury. Conrad v. Ellison-Harvey Co. (Va.) 1918B-1171. (2) Admissibility of Evidence. 4. Plaintiff is entitled to show the cir- cumstances and negotiations under which he began his original term of service, to be considered with the original contract itself in determining the probable inten- tion of the parties to continue in the rela- tion after the first year expired. Conrad v. Ellison-Harvey Co. (Va.) 1918B-1171. (Annotated.) 5. Action for Discharge Contract for Previous Term. The original written con- tract of employment for one year is ad- missible to show the terms of the original hiring. Conrad v. Ellison-Harvey Co. (Va.) 1918B-1171. c. Compensation. 6. Seaman's Wages "Loss of the Ship" Detention by Enemy. The seizure and detention of a vessel in the enemy's port at the outbreak of war is not a "loss of the ship" within the E'ng. Merchant Ship- ping Act of 1894 which will terminate a seaman's right to wages. Horlock v. Beal (Eng.) 1916D-670. (Annotated.) 7. On the ground of impossibility of performance of the contract, the seaman's right to wages terminate by the seizure of the ship. Horlock v. Beal (Eng.) 1916D- 670. (Annotated.) Notes. What constitutes "loss" within meaning of statute terminating seamen's wages upon loss of vessel. 1916D-688. Tips as part of earnings or wages. 1918B-1122. d. Credentials. 8. Duty to Furnish Certificate of Char- acter. In the absence of statute, there is no legal duty on the part of an employer to furnish a servant discharged or leaving his service with any certificate of char- acter. Dick v. Northern Pacific R. Co. (Wash.) 1917A-638. 2. LIABILITY OF MASTER FOR IN- JURY TO SERVANT. a. Duty to Furnish Safe Place to Work. (1) In General. 9. It has always been the law that it is the master's duty to furnish his servant 552 a safe place to work, and if for any rea- son the place was unsafe the master is liable for resultant injuries. Kimbol v. Industrial Accident Commission (Cal.) 1917E-312. 10. Duty as Qualified or Absolute. Ex- cept where the law absolutely enjoins the doing of a thing as a duty, it is the mas- ters duty to exercise reasonable care to furnish his . servant a reasonably safe place to work and reasonably safe ap- pliances; but, when the statute enjoins the doing of things absolutely, his duty is imperative. Correll v. Williams, etc. Co. (Iowa) 1918A-117. (2) Railroad Cars and Premises. 11. Negligence of Eailroad Company Dangerous Obstruction Near Track. A railroad company is guilty of actionable negligence to its employees in operating a train upon its own track or one belonging to another road past an obstruction located dangerously near the track, if it knew, or by the exercise of ordinary care could have known, of the dangerous ob- struction. Devine v. Delano (111.) 1918A- 689. 12. Such rule applies where the dan- gerous obstruction is alongside the track on the premises of a manufacturing plant. Derine v. Delano (111.) 1918A- 689. 13. Unnecessary Dangers. Where no necessity exists for the operation of a railroad under dangerous conditions, and where it only requires care and skill to make such conditions safe, the road's em- ployee may not be subjected to such dan- gers, wholly unnecessary to the- proper operation of the road's business, because railroad work is inherently dangerous. Devine v. Delano (HI.) 1918A-689. 14. Negligence of Eailroad Company Post Near Track. A railroad daily oper- ating trains along a switch track, running into a manufacturing plant dangerously near which a post stood, which had been in the same position for a year and a half before it injured a switchman, was chargeable with knowledge of the post's dangerous proximity to the track. Devine v. Delano (111.) 1918A-689. 15. A railroad was liable for the death of its switchman, killed by being struck, when riding on a train, by a post stand- ing, to the road's knowledge, in dangerous proximity to a switch track. Devine v. Delano (111.) 1918A-689. 16. A railroad, which operated trains on a switch track past a post dangerously near thereto, was guilty of negligence in so doing, if it knew, or should have known, the dangerous proximity, that its switchman was not informed of the fact, and it failed to inform him. Devine V; Delano (111.) 1918A-689. DIGEST. 1916C 1918B. 17. Liability for Injury Diversion from Employment Going for Drink. Where deceased, employed by one railroad as a switching fireman, is killed by an engine of the defendant railroad while he is away from his engine, though in the yards, he is not a trespasser or licensee, but is at the time engaged in his employ- ment, so that the defendant owes him the duty of active care, although he has gone across the yards to get some milk, and is returning to his engine when struck. Ingram's Admx. v. Rutland E. Co. (Vt.) 191SA-1191. (Annotated.) Notes. Effect on relation of employee as such of his stopping work temporarily for his own purposes. 1918A-1194. Location of mail crane near railroad track a actionable negligence. 1916E- 717. b. Duty to Furnish Safe Appliances and Machinery. (1) In General. 18. Negligence Safe Appliances Mari- time Employee. Where a stevedore re- turning to work in the hold of a ship was required to pass down the ladder from a hatchway so located that he had to take hold either of the hatch coaming, or of a rope just above it, which rope was ap- parently firmly fixed to stanchions, and on his taking hold of such rope one of the stanchions pulled loose, it cannot be said as a matter of law that the master was free from negligence in having the rope less secure than it appeared to be. Shaughnessy v. Northland Steamship Co. (Wash.) 1918B-655. (2) Guarding Machinery. 19. Duty to Guard Dangerous Machin- ery Statute Effect of Noncompliance. Under Iowa Code Supp. 1913, 4999a2, requiring every owner, agent, superin- tendent, etc., in charge of any place where machinery is used to furnish bftlt shifters, and, wherever possible, loose pulleys, and requiring that all saws, machinery, etc., shall be properly guarded, it is the mas- ter's affirmative duty to provide such pro- tection, and his failure to do so is action- able negligence. Correll v. Williams, etc. Co. (Iowa) 1918A-117. (3) Work Animals. 20. Where an animal is used by an em- ployer to carry on work under his direc- tion, he is bound to use reasonable dili- gence to provide a safe animal, and is bound by what he knew or with reason- able diligence might have known as to the docility of the animal. Marks v. Colum- bia County Lumber Co. (Ore.) 1917A-306. (Annotated.) MASTER AND SERVANT. 553 Note. Duty and liability of master to servant with respect to animal furnished by him to servant. 1917A-309. c. Duty to Warn and instruct Servant. 21. Though ordinarily it is a miner's duty to look after the safety of the roof of the room in which he works and the employer is only required to furnish props necessary for propping the roof, where its foreman undertakes to make an inspection as to the safety or soundness of the roof, it is the employer's duty to exercise or- dinary care to ascertain the true condi- tion of the roof and inform the miner of the facts that an ordinarily careful in- spection would have revealed. Hall v. Manufacturers' Coal, etc. Co. (Mo.) 1916C- 375. d. Promulgation of Rules, 22. Habitual Disregard of Rule. Habit- ual violation of a rule of a railroad com- pany with its knowledge and acquiescence abrogates it, regardless whether the ser- vants charged with its enforcement con- sented or acquiesced. St. Louis, etc. E. Co. v. Blaylock (Ark.) 1917A-563. 23. Duty to Inform Servant. It is the duty of the master to make known its rules to the employee, and there is no affirm- ative duty upon the employee to ascertain their existence. St. Louis, etc. B. Co. v. Blaylock (Ark.) 1917A-563. e. Violation of Statute. 24. Delegation of Statutory Duty. A master delegating the discharge of his statutory duties to his servants cannot thereby escape liability for a failure of the agent to perform such duty, nor by his discharge of such duty in a negligent or careless manner. Correll v. Williams, etc. Co. (Iowa) 1918A-117. f. Acts of Fellow Servants. (1) Who Are. 25. Engineer and Track Repairer. Ex- cept as modified by statute, an engineer and a track repairer, though in different de- partments of the railroad company, are fel- low servants engaged in the same common work or enterprise, and where such track repairer, while riding on the engine in charge of such engineer to the place where such track repairer has to work, received injuries by reason pf the negligence of such engineer in operating the engine, there can be no recovery by the track repairer against the railroad company, the engineer not sustaining a representative relation, such as vice principal, to the defendant company. Ingram-Dekle Lumber Co. v. Geiger (Fla.) 1918A-971. (2) Nature of Liability. 26. At the common law where the master himself has performed his duty, he is not liable to one of his servants for personal injuries received by such servant in the course of his employment, through the neg- ligence of a fellow servant or employee of such servant, when engaged in the same undertaking or common-work or enterprise, unless such fellow servant or eoemployee sustains a representative relation, such as vice-principal, to the master. Tais com- mon-law principle is in force in this state, except as modified by sections 3148, 3149, 3150, of the Fla. General Statutes of 1906, and chapter 6521 of the Acts of 1913. In- gram-Dekle Lumber Co. v. Geiger (Fla.) 1918A-971. (Annotated.) (3) Effect of Statutes. 27. Abrogation of Fellow-servant Doc- trine Railroads. A corporation or com- pany engaged in the operation of a sawmill, and as an incident to such business oper- ates a steam railroad about six or seven miles long, commonly known as a log road, is not "a railroad company" within the term and meaning of sections 3148, 3149 and 3150 of the Fla. General Statutes of 1PO&. Ingram-Dekle Lumber Co. v. Geiger (Fla.) 1918A-971. 28. What Constitutes "Superintendence." Ala. Code 1907, 3910, subd. 2, makes em- ployers liable for injuries to employees caused by the negligence of any person in the employer's service who has any super- intendence intrusted to him while in the exercise of such superintendence. In a railway employee's action for injuries the evidence showed that B., a mechanic, was sent to F. to repair a locomotive; that plaintiff was sent by his foreman to help 13. work on the engine; that his duties did not include work of this character, but required his service about a coal shute and in the transfer of baggage; and that B. directed plaintiff to do certain things connected with the repair of the engine. It is held that the evidence did not make a prima facie case of B.'s superintendence, as "superintendence," within the statute, is the creature of power or authority con- ferred by the master, and, though there are positions in a master's service naturally importing a character of superintendence reposed in the employee serving in that position, B.'s service or station was not of t'n at type. Louisville, etc. E. Co. v. Carter (Ala.) 1917E-292. g. Assumption of Eisk. (1) Violation of Statute. 29. Breach of Statutory Duty of Master. Under Iowa Code Supp. 1913. 4999a2, re- quiring owners, etc., of places where ma- 554 DIGEST. 1916C 1918B. chinery is used to guard all saws, machin- ery, etc., and section 4999a3 providing that where the master's machinery or appliauces are defective, and where it is his duty to furnish reasonably safe machinery and place for work, the servant by continuing the work shall not assume the risk growing out of such defects of which he may have had knowledge when the master also knows of such defect, except when it is the ser- vant's duty to remedy defects, and that under such conditions the servant shall not be deemed to have waived the negligence, if any, unless the danger is so imminent that a reasonably prudent man would not have continued in the work, and that trie statute shall not be construed to include risks incident to the employment, the con- ditions referred to are those created by the master's negligence, and which it is the duty of the servant in the ordinary course of his employment to remedy, so that when the master fails in his duty, the servant does not assume the risk by continuing in the work, except when it is his duty to remedy the defects, and even then he does not assume the risk, unless the danger is so imminent that a reasonably prudent per- son would not continue therein. Correll v. Williams, etc. Co. (Iowa) 1918A-117. (Annotated.) (2) Promise to Repair. 30. Liability of Automobile Owner to Chauffeur. Where, in a chauffeur's action for injuries sustained while replacing a punctured automobile tire, in consequence of a defect in the iron retaining ring, which blew out while the tire was being pumped, the evidence was conflicting as to whether the defendant owner had notice of the defect and promised to correct it, the question of assumption of risk is for the jury. Eichardson v. Flower (Pa.) 1916E- 1088. (Annotated.) (3) Assumption by Contract. 31. Validity of Contract. A clause of a switchman's contract of employment, whereby he assumed the risk of the great danger of his duty, was contrary to public policy, so far as purporting to charge the switchman with assuming any risk or dan- ger caused by the road's negligence. De- vine v. Delano (111.) 1918A-689. h. Contributory Negligence. (1) In General. 32. Contributory Negligence of Miner. Where the danger of the roof of a mine falling is not so obvious and glaring that a reasonably prudent man would not have continued to work there, a miner is not negligent as a matter of law in continuing work in reliance upon his foreman's assur- ance that the roof is safe. Hall v. Manu- facturers' Coal, etc. Co. (Mo.) 1916C-375. (2) Violation of Rules. 33. Using Hand Car at Night. Plain- tiff's evidence showed that his intestate, a section foreman, was negligently killed at night by defendant's engine running with- out lights, which 'struck the intestate while riding on his hand car returning from a neighboring town where he had been on business. There was nothing in plaintiffs evidence to show that such use of the hand car was improper, but defendant's evidence showed that it was in violation of a rule of the company against the use of hand cars at night. It is held that a nonsuit on the ground of contributory negligence was im- properly granted, since such judgment can be entered only where contributory negli- gence clearly appears from plaintiff's evi- dence. Home v. Atlantic Coast Line K. Co. (N. Car.) 1918A-1171. (3) Questions of Law and Fact. 34. Question for Jury. Where deceased, employed as a fireman by one railroad, was at the station to get a drink, and hearing a call from his engine started to run a the unlighted yard to it, and was struck by the car of the defendant railroad, it is a fair inference that he saw the approaching car, but judged its speed erroneously owing to darkness and the fact that the car bore no lights, and, as an error of judgment does not necessarily show lack of care, the question of his care is for the jury. In- gram's Admx. v. Rutland R. Co. (Vt.) 1918A-1191. 35. Engine Without Headlight. Conced- ing that the intestate was negligent in using the hand car in violation of such rule, the case should be submitted to the jury on the question of proximate cause, since though he was wrongfully on the tiack, defendant owed the intestate the duty to have a headlight on the engine whereby he might have seen it approach- ing in time to avoid injury. Home v. At- lantic Coast Line R. Co. (N. Car.) 1918A- 1171. (Annotated.) 36. Contributory Negligence. The ques- tion whether plaintiff's contributory neg- ligence was proven by defendant's evidcn >e is held to have been exclusively for the jury. Home v. Atlantic Coast Line R. Co. (N. Car.) 1918A-1171. 37. In such case, it could not be said as a matter of law that the servant was guilty of contributory negligence in using the rope for support. Shaughnessy v. North- land Steamship Co.. (Wash.) 1918B-655. i. Limiting Liability by Contract. 38. A contract between an employer and an employee, which nullifies or lessens any legal duty that the employer owes to the employee relative to safeguarding the life, limb, safety, health or welfare of the lat- MASTER AND SERVANT. 555 ter, is contrary to public policy, and, there- fere, null and void. Such void contract be- tween employer and employee is not vali- dated by any subsequent assignment, whereby the assignee is relieved or ac- quitted from liability for any or all negli- gent acts causing death or any personal injury to said employee, though with full knowledge of all the facts to all the par- ties. Pittsburgh, etc. R. Co. v. Kinney (Ohio) 1918B-286. (Annotated.) 39. Mary Kinney, a car cleaner, entered into a contract of employment in writing with the Pullman Company, in which con- tract it was provided, among other things, that Mary Kinney, in consideration of har employment and wages therefor by the Pullman Company, would assume all risks of accident or casualty incident to such employment and would release the Pullman Company from all liability therefor. Said contract further recited that the Pullman Company had a contract of carriage with the railway company, whereby the Pullman Company had promised and agreed to pro- tect the defendant railway company from any and all liability arising out of the neg- ligence of the defendant railway company, or its employees', in causing death or in- juries to any of the employees of the Pull- man Company. Said contract between Mary Kinney and the Pullman Company recited the substantial terms of such re- lease in the contract between the railway company and the Pullman Company, and further contained the provision that the Pullman Company might assign its release on the part of Mary Kinney to any rail- road company carrying the Pullman Com- pany's cars. Held: Said contract between Mary Kinney and the Pullman Company, so far as it undertook to release the latter, or any railroad company, from negligent acts causing death or injury to said Mary Kinney, was invalid because contrary to public policy. Pittsburgh, etc. R. Co. v. Kinney (Ohio) 1918B-286.. (Annotated.) Note. Liability of master to domestic servant. 1917D-499. j. Employers' Liability Acts. (1) Nature and Scope. 40. Scope of Act. Ore. Employers' Lia- bility Act 1910 is not limited to construc- tion work but applies also to factories and mills, including failure of owners to pro- tect dangerous machinery. Cameron v. Pa- cific Line, etc. Co. (Ore.) 1916E-769. 41. Application to Railroad. Ore. Em- ployers' Liability Act March 2, 1911 (Laws 1911, c. 88), which by section 1 is made to apply to employers of five or more persons engaged in business, trade, or commerce, applies to railroads; "business" being that^ which occupies the time, attention, or labor of man for the purpose of profit, or im- provement as their principal concern, while "commerce" is traffic, including the means and vehicles by which traffic is accom- plished, and also intercourse, or transporta- tion, though there was already in force a statute fixing the liability of railroads to their employees. Vandalia Railroad Co. v. Stillwell (Ind.) 1916D-258. 42. Statutes Repealed. Ore. Employers' Liability Law of 1910 (Laws 1911, p. 16) does not in terms repeal the factory in- spection act (Laws 1907, p. 302), but only so much thereof as is inconsistent with the employers' liability law, the primary pur- pose of the factory inspection act being to safeguard dangerous machinery, the lia- bility provided in section 8 thereof being based on the neglect of the employer to safeguard any machinery or the use of it after receipt of notice to guard it, but when the injury is the proximate result of an omission to guard, and there is a liabil- ity concerning matters in conflict with the Employers' Liability Act, the latter con- trols, and the limitation of liability con- tained in the factory inspection act has no application. Cameron v. Pacific Lime, etc. Co. (Ore.) 1916E-769. (Annotated.) Note. What statutes are impliedly repealed by State Employers' Liability or Workmen's Compensation Act. 1916E-773. (2) Constitutionality. 43. Employers' Liability Act. Whether Ind. Employers' Liability Act March 2, 1911 (Laws 1911, c. 88) 7, providing that all questions of assumption of risk, negli- gence, or contributory negligence shall be for the jury, unless the case is tried with- out a jury, when they shall be questions of fact for the court, is invalid as depriv- ing courts of judicial functions, would not be determined, where under the first para- graph of the complaint the evidence maae a question for the jury as to negligence, while under the second paragraph there was no question of defendant's liability. Vandalia Railroad Co. v. Stillwell (Ind.) 1916D-258. (Annotated.) 44. The statute creates no liability on the part of an employer where there is no negligence, and hence does not deprive em- ployers of liberty or property without due process of law. Vandalia Railroad Co. v. Stillwell (Ind.) 1916D-258. 45. Ind. Employers' Liability Act March 2, 1911 (Laws 1911, c. 88), is not invalid as denying the equal protection of the laws because it applies only to employers of five or more persons, since there is some basis in reason for distinguishing between an employer of a large number of employees and one employing but a few employees, and it cannot be said that it was unreason- able to separate employers into those em- pioyiug five or more persons and those em- 556 DIGEST. 1916C 1918B. ploving less than fire. Vandalia Kailroad Co. v. Stillwell (Ind.) 1916D-258. (Annotated.) (3) Injuries Arising "Out of" and "In Course of" Employment. 46. The Federal Employers' Liability Act (Fed. St. Ann. 1909 Supp. p. 584) does not permit recovery upon a mere showing that the employee was injured while engaged in interstate commerce, regardless of whether it was in the course of his employment or rot, but the usual rules for such recovery apply. Byram v. Illinois Central R. Co. (Iowa) 1918A-1067. (Annotated.) 47! Liability to Injured Servants-Acts Outside Course of Employment. The evi- dence is held to show that the acts in do- ing which the plaintiff servant was injured were not within the course of his employ- ment, so that the master .was not liable. Byram v. Illinois Central E. Co. (Iowa) 1918A-1067. 48. An accident arises out of the employ- ment of an injured servant, where it is something the risk of which might have been contemplated by a reasonable person when entering the employment as incident to it. Byram v. Illinois Central E. Co. (Iowa) 1918A-1067. 49. An engine hostler has by virtue of his position no implied authority to call as- sistance in the absence of an emergency, so that a fireman who responded to such a call could not recover for injuries re- ceived while rendering the assistance asked. Byram v. Illinois Central E. Co. (Iowa) 1918A-1067. 50. If a servant voluntarily undertakes the performance of a duty for which he was not employed, he acts at his own peril, and cannot recover for injuries. Byram v. Illinois Central E. Co. (Iowa) 1918A- 1067. Note. Necessity that servant be acting In course of employment when injured in or- der to recover under Employers' Liability Act. 1918A-1070. (4) Employees Within Federal Employ- ers' Liability Act. 51. Car Repairer.. An injury received by a car repairer, while raising a fallen draw- head to standard 'height during the tempo- rary stoppage of the car for that purpose while in interstate transit, falls within the Federal Employers' Liability Act (Act April 22. 1908, c. 149, 35 Stat. 65 [Fed. St. Ann. 1909 Supp. p. 584]), regulating the li- ability of interstate carriers to employees. Lorick v. Seaboard Air Line Ry. (S. Car.) 1917D-920. 52. Machinist In Repair Shop. Under the Federal Employers' Liability Act April 22, 1908, c. 149, 35" Stat. 65 (Fed. St. Ann. 1909 Supp. p. 584), making every common carrier by railroad engaged in interstate commerce liable in damages to any person injured while he is employed by such carrier in such commerce from the negligence of the carrier's officers, agents, or employees, or from any defect in its appliances and equipments, an employee of a railroad which was engaged in interstate and intra- state commerce working as a mechanic principally in running a machine where he shaped parts to be used in the repair of locomotives in immediate need of repair, and generally, but not exclusively, in the repair of locomotives used in interstate commerce, while engaged on Sunday in moving the countershaft, which supplied power to the shaping machine, and whose hand, while over the rail on a girder which he was drilling, was cut off by the wheels of a traveling crane moving on the girders, is not employed in interstate commerce, and cannot recover. Shanks v. Delaware, etc. E. Co. (N. Y.) 1916E-467. 53. Carpenter Extending Repair Shop. "Where the partition between the extension of railroad repair shops and the old part of the shops had been torn out and tracks laid in the extension, machinery installed, and several engines used in interstate com- merce run into it and there stored tempo- rarily, the extension was bein^ used as an instrumentality of interstate commerce, though yet incomplete; and hence a car- penter injured while working on such ex- tension is injured while working in lid of interstate commerce. Thompson v. ( 'ncin- nati, etc. Co. (Ky.) 1917A-1266. 54. Engine Mover. Moving an engine used in interstate commerce prepa 'atory to attaching it to cars is an act in inter- state commerce, so that negligence (f fel- low servants in so moving the engino will entitle the injured servant to recover un- der the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 33 Stat. L. 65 [Fed. St. Ann. 1909 Supp. p. 584]). By- rsm v. Illinois Central E. Co. (Iowa) 1918A-1067. 55. Night Watchman. A night watch- man in the employ of a railway company, injured while in the performance of his duty to guard tools and materials intended to be used in the construction of a new railway station and new tracks, is not then engaged in interstate commerce within the meaning of the Federal Employers' Liabil- ity Act of April 22, 1903 (Fed. St. Ann. 1909 Supp. p. 584), 8R57, although such station and tracks were designed for use, when finished, in interstate commerce; New York Central E. Co. v. White (U. S.) 1917D-629. 56. Effect of Suing on State Statute. As the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Fed. St. Ann. 1909 Supp. p. 584, 1912 Supp. p. 335]) ^uoersedes a state enactment in the same field and governs exclusively all cases fall- MASTER AND SERVANT. 557 ing within its scope, and as an employee injured under circumstances subjecting his claim for damages to the federal statute cannot properly recover therefor under counts declaring on the state statute, a defendant is entitled to general affirmative instructions in its favor with respect to such counts if the evidence shows that the employee was engaged in interstate com- merce at the time of the injury, although such defendant requested the general af- firmative charge as to a count based on the federal statute on the ground that plain- tiff, when injured, was not engaged in in- terstate commerce. Louisville, etc. R. Co. v. Carter (Ala.) 1917E-292. (Annotated.) 57. Employee Repairing Locomotive. A railroad employee injured while assist- ing in repairing a locomotive which was being used or to be used wholly within s*ate o:r Alabama in drawing a work train engaged in repairing the railroad company's interstate track is not within the Federal Employers' Liability Act, and was entitled to sue under the state statute, since the federal act is only applicable to those in the employment of interstate carriers who at the time of the injury are engaged in work immediately related and directly contributory to inter- state commerce, and, while such relation exists when his service is in or about the maintenance or repair of agencies already devoted to or immediately capable of faci- litating some essential feature of interstate commerce, the engine in question was not an instrumentality of such commerce nor an immediately or directly applied means to the maintenance or repair of any indis- pensable feature of interstate transporta- tion, but was only brought into a second- ary relation to an interstate instrumental- ity. Louisville, etc. R. Co. v. Carter (Ala.) 1917E-292. 58. The purpose to devote in future an agency capable of use in interstate com- merce to that service will not bring it within the operation of the Federal Em- ployers' Liability Act, though the physical preparation of the agency for immediate use in such commerce may suffice. Louis- ville, etc. R. Co. v. Carter (Ala.) 1917E-292. 59. Maritime Employees. Congress did not establish a rule of liability with re- spect to injuries received by an employee on an ocean-going ship plying between ports of different states, owned and oper- ated by a corporation which is also an in- state railway carrier, by enacting the pro- visions of the Employers' Liability Act of ! April 22, 1908 (35 Stat. at L. 65. c. 149, 'Fed. St. Ann. 1909 Supp. p. 584). giving a right of recovery against interstate car- riers by railroad for the death or injury of employees while engaged in interstate commerce, caused by the negligence of the carriers' officers, agents, or employees', or by any defect or insufficiency, due to its negligence, in its "cars, engines, appli- ances, machinery, track, roadbed, works, boats, wharves, or other equipment." The word "boats" in the statute refers to ves- sels which may be properly regarded as in substance part of a railroad's extension or equipment, as understood and applied in common practice. Southern Pacific Co. v. Jensen (U. S.) 1917E-900. 60. Employee of Interstate Railroad. The operation of the Federal Employers' Liability Act of April 22, 1908 (35 Stat. L. 65, c. 14&, Fed. St. Ann. 1909 Supp. p. 584), governing the liability of interstate railway carriers for the death or injury of their employees while employed in inter- state commerce, cannot be interfered with, by a state either by putting the carriers and their employees to an election betweon the provisions of that statute and a state workmen's compensation act, as is at- tempted by N. S. Laws 1911, c. 95, or by imputing such an election to them by a statutory presumption. Erie R. Co. v. Winfield (U. S.) 1918B-662. (Annotated.) 61. Engineer of Switch Engine. An em- ployee of an interstate railway carrier in charge of a switch engine who is killed while leaving the yards after his day'a work, which includes employment in both interstate and intrastate commerce is em- ployed in interstate commerce within the meaning of the Federal Employers' Liabil- ity Act of April 22, 1908 (35 Stat. L. 65, c. 149, Fed. St. Ann. 1909 Supp. p. 584), governing the liability of such carriers for the death or injury of their employees when employed in interstate commerce. Erie R. Co. v. Winfield (U. S.) 1918B-662. 62. Existence of Relation. The Federal Employers' Liability Act (Act April 22, 190.8, c. 149, 35 Stat. 65 [Fed. St. Ann. 1909 Supp. p. 584]) has no application to an employee who incurs an injury whilo not engaged in interstate commerce, or an injury incurred by a person who is not an employee of the railroad at the time. Chesapeake, etc. R. Co. v. Harmon's Adm'r. (Ky.) 1918B^41. (Annotated.) 63. Student Fireman. A "student" fire- man, who receives no wages or other re- turn, except information, for his services, performed by virtue of a permit authoriz- ing him to ride on the engine only of de- fendant's trains at his pleasure, although an employee and entitled to a reasonably safe place to work in places where he must necesssarily be while performing the duties contemplated by the arrangement, is not an "employee" within the Federal Employ- ers' Liability Act, when killed in a rear- end collision while in the caboose after having abandoned his duties temporarily. Chesapeake, etc. R. Co. v. Harmon's Adm'r. (Ky.) 1918B-41. (Annotated.) 64. Machinist in Roundhouse. A ma- chinist's helper, engaged, while making re- pairs in the roundhouse, upon an engine 558 DIGEST. 1916C 1918B. which had been used in hauling over the railway company's lines freight trains carrying both intrastate and interstate require employers of five or more persons to exercise a higher diligence than those _ _ of less than five, since at common law it freight," and which was used in the same is the employer's duty to furnish or exer- way after the accident, is not then em- cise ordinary care to see that tools, im- pioyed in interstate commerce within the plements, or places of work are reason- meaning of the Federal Employers' Liabil- ably safe, and that rule still obtains as to ity Act of April 22, 1908 (35 Stat. L. 65, c. 149 [Fed. St. Ann. 1909 Supp. p. 584]), governing the liability of an interstate carrier for injuries to its employees when employed in interstate commerce. Minne- apolis, etc. B. Co. v. Winters (U. S.) 1918B-54. (Annotated.) 65. Clearing Wreckage from Track. An employee of an interstate railway carrier assisting in clearing up a wreck which was blocking the movement of cars in in- terstate commerce, who, while carrying blocks on his shoulder which were to be used in jacking up a wrecked car and re- placing it upon the track, stumbled over some large clinkers which were on the roadway near the track, and in stumbling struck his foot on some old cross ties, over- grown with grass, as a result of which he was seriously injured, is employed in interstate commerce within the meaning of the Employers' Liability Act of April 22, 1908 (35 Stat. L. 65, c. 149, Fed. St. Ann. 1909 Supp. p. 584), as amended by the Act of April 5, 1910 (36 Stat. L. 291, c. 143, Fed. St. Ann 1912 Supp. p. 335), giving a right of recovery against the car- rier for injury to an employee while so employed, although his primary object may have been the rescue of a fellow employee, pinned beneath the car. Southern B. Co. v. Puckett (U. S.) 1918B-69. (Annotated.) Notes. Federal Employers' Liability Act. 472. Employees entitled to protection under Federal Employers' Liability Act. 1918B- 55. Existence of relation of employer and employee under Federal Employers' Lia- bility Act. 1918B-46. Maritime employees as within purview of Workmen's Compensation Act. 191SB- 661. (5) Employers Within Act. 66. Ind. Employers' Liability Act March 2, 1911 (Laws 1911, c. 88) ~3, which by section 1 is made to apply only to employ- ers of five or more persons, providing that an employee shall not be held to have assumed the risk of any defect in the place of work or in the tool, implement, or ap- pliance furnished him by the employer, where such defect prior to the injury was, or by ordinary care might have been, known to the employer in time 'to have re- paired it, or discontinued its use, does not all employers. Vandalia Eailroa i CD. v. Stillwell (Ind.) 1916D-258. (Annotated.) (6) Contributory Negligence. 67. Contributory Negligence. In an ac- tion for injuries to a servant under Ore. Employers' Liability Act 1910, contribu- tory negligence is not a defense, but may be considered in fixing damages. Cam- eron v. Pacific Lime, etc. Co. (Ore.) 1916E- 769. 68. Contributory Negligence as -Defense Under Federal Act. Under th| Federal Employers' Liability Act (Fed. St. Ann. 1909 Supp. p. 584), which adopts the com- parative negligence doctrine, plaintiff's contributory negligence does not defeat nis action. Byram v. Illinois Central E. Co. (Iowa) 1918A-1067. (7) Negligence of Fellow Servant. 69. Assumption of Risk Negligence of Another Servant. A servant does not as- sume the risk arising out of the negligence of another employee; for against such risk he cannot guard, nor can he anticipate it. Byram v. Illinois Central E. Co. (Iowa) 1918A-1067. (8) Assumption of Eisk. 70. The Oregon Employers' Liability Act abrogates the doctrine of assumption of risk in actions coming within its scope. Marks v. Columbia County Lumber Co. (Ore.) 1917-306. 71. Whether a car repairer who con- tinued at work after complaining of the luck of a certain tool, on the master's promise to supply it, assumed the risk of working without it so as to bar an action under the Federal Employers' Liability Act (Fed. St. Ann. 1909 Supp. p. 584) is held to be for the jury. Lorick v. Seaboard Air Line By. (S. Car.) 1917D-920. (Annotated.) 72. Construction Changes in Existing Law. Ind. Employers' Liability Act March 2, 1911 (Laws 1911, c. 88) 1. makes employers of more than five per- sons liable for injuries to, or the death, of. an employee due to its negligence, or the negligence of its agents, servants, etc. Section 2 places the burden of proving that the injured employee did not use due care and diligence on the employer, and provides that no such employee shall be held negligent by reason of the assumption of the risk, where the violation of any or- dinance, statute, or rule, regulation, or MASTER AND SERVANT. 559 direction of any public officer, bureau, or commission was the cause of the injury or death; that it shall not be a defense that the dangers inherent or apparent in the employment contributed to the injury; that the employee shall not be held negligent where the injury results from his obedience to any order of the employer, or of any employee whose orders he was bound to obey, although such order was a deviation from other rules or orders previously made. Section 3 contains similar provisions as to assumption of risk, and provides that the employee shall not be held to have as- sumed the risk of any defect in the place of work, or in the tool, etc., furnished him, where the defect was prior to the injury known to the employer, or by ordinary care might have been known to him, in time to have repaired it or discontinued its use, and that the burden of proving that he did not know of such defect or was not chargeable with knowledge thereof shail be on the employer. Held, that the statute did not change the law as it form- erly existed, as to when an employee as- sumes the risk, or is negligent, or as to the burden of proof as to negligence, but did destroy the fellow-servant rule, and change the rule as to burden of proof as to knowl- edge, or constructive knowledge of the de- fect in the place, tool, or appliance. Van- dalia Railroad Co. v. Stillwell (Ind.) 1916D-258. (9) Limitation of Recovery. 73. Liability for Death by Wrongful Act Limit on Recovery Removed. Ore. Em- ployers' Liability Act 1910 (Laws 1911, p. 17) 4, removes the limitation of recov- ery in an action for death of a servant, brought under such act, prescribed in cases of wrongful death by L. O. L. 380. Cam- eron v. Pacific Lime, etc. Co. (Ore.) 1916E- 769. (10) Persons Entitled to Sue. 74. Federal Employers' Liability Act Who is "Dependent." Under the Federal Employers' Liability Act (April 22, 1908, c. 149, 35 Stat. 65 [Fed. St. Ann. 190& Supp. p. 584]) giving a right of action for wrongful death for the benefit of the de- pendent next of kin, an elder sister of a deceased employee, suing as his adminis- tratrix who is married and in comfortable circumstances, and who boarded deceased, in return for which he made monthly con- tributions for about two years prior to his death, was not "dependent" upon deceased, and cannot recover. Southern R. Co. v. Vessell (Ala.) 1917D-892. (Annotated.) 75. Illegitimacy Persons Entitled to Re- cover for Death of Illegitimate Child. Un- der the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 9, 35 Stat. 65, amended by Act April 5, 1910, c. 143, 2, 36 Stat. 291 [Fed. St. Ann. 1912 Supp. p. 335]), giving a right of action for the death of an employee for the benefit of the surviving widow, husband, children, or parents, and, if none, then of the next of kin dependent upon such employee, the next oi kin are to be determined by the law of the state in which the action is brought, and under Revisal 1905, 137, and section 1556, rule 10, providing that illegitimate children of the same mother shall be con- sidered legitimate as between themselves and their representatives, and that their personal estates shall be distributed as if they had been born in lawful wedlock, and that, in case of the death of any such child without issue, hia estate shall be distrib- uted among his mother and such persons as would he his next of kin, if all such children had been born in lawful wedlock, a suit can be maintained for the death of an illegitimate child, whose mother is dead, for the benefit of his mother's legiti- mate children, who are dependent upon him. Kenney v. Seaboard Air Line R. Co. (N. Car.) 1916E-450. (Annotated.) (11) What Law Governs. 76. Election Between Federal Act and State Law. Where the petition in a rail- road employee's action for injuries, while working on an extension of a repair shop, alleged a cause of action under the state law and also under the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Fed. St. Ann. 1909 Supp. p. 584]), the court should require plaintiff to elect under which law he will prosecute his action. Thompson v. Cincinnati, etc. Co. (Ky.) 1917A-1266. (Annotated.) 77. Effect of Federal Act Superseding State Statutes. The Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Fed. St. Ann. 1909 Supp. p. 584]) in the cases to which it allies is necessarily supreme. Howard v. Nashville, etc. R. Co. (Tenn.) 1917A-844. 78. Applicability of Federal Act. Where a railroad repair shop was used for en- gines engaged in interstate commerce, an extension thereof designed to make it more effective for such use was in aid of interstate commerce; and hen:-e a carpenter injured while working on the extension is injured while engaged in aid of interstate commerce, regardless of whether the ex- tension was itself being used as an instru- mentality of interstate commerce. Thomp- son v. Cincinnati, ec. Co. (Ky.) 1917A- 1266. 79. Where plaintiff in such action elects to proceed under the Federal Employers' Liability Act, the court should dismiss the action as against two individual defend- ants who were plaintiff's coemnloyees; no provision being made by the Federal Em- ployers' Liability Act, expressly or by im- plication, for recovery by one employee against his coemployee. Thompson v. Cincinnati, etc. Co. (Ky.) 1917A-1266. 560 DIGEST. 1916C 1918B. 80. Federal Act as Exclusive. Congress intended the Employers' Liability Act of April 22, 1908 (35 Stat. L. 65, c. 149, Fed. St. Ann. 1909 Supp. p. 584), regulating the liability of an interstate railway carrier in case of the injury or death of an em- ployee when employed in interstate com- merce, to be as comprehensive of those in- stances in which it excludes liability, i. fl., where there is no causal negligence for which the carrier is responsible, as of those in which liability is imposed, and in both classes such act is paramount to, and ex- clusive of, state regulation. Erie B. Co. v. Wlnfield (U. S.) 1918B-662. Note. Necessity of election between Federal Employers' Liability Act and state statute or common law. 1917A-1270. (12) Pleading. 81. Pleading Damage. In such action there should be pleadings averring the pecuniary losses which plaintiffs expect to prove. Nashville, etc. Ey. v. Anderson (Tenn.) 1917D-902. 82. Necessity of Pleading Federal Act. A complaint against a railroad company for injury to its fireman sufficiently states a case within the Federal Employers' Lia- bility Act (Act April 22, 1908, c. 149. 35 Stat. 65, Fed. St. Ann. 1909 Supp. p. 584), as amended April 5, 1910 (Act April 5, 1910, c. 143, 36 Stat. 291, Fed. St. Ann. 1912 Supp. p. 335), though that act is not specifically referred to, where it states that plaintiff was a resident of Wisconsin/ and that, when injured, he was employed by the defendant as a fireman on a passenger train running from Chicago to Milwaukee. Rowlands v. Chicago, etc. B. Co. (Wis.) 1916E-U4. (13) Evidence. 83. Necessity of Proving Damage. In such action there must be evidence of pe- cuniary damage to his beneficiaries before such dp "'age can be allowed. Nashville, etc. Ey. v. Anderson (Tenn.) 1917D-902. 84. Subsequent Installation of Safety Device. Where, in an action for injuries to a servant by his foot and leg becoming caught in an unguarded conveyor in a gypsum mill, the complaint alleged that the conveyor could and should have been cov- eied. without interfering with its efficiency, and would have secured protection to plain- tifif, which allegation was specifically de- nied in the answer, and the jury during the trial visited the premises, at which time the conveyor was covered, evidence that it was covered after the accident was admissible. Cameron v. Pacific Lime etc Co. (Ore.) 1916E-769. 85. Indemnitv Insurance Proof on Per- soml Injurv Tr'al Prejudice. Where, in an action for injuries to a servant, plain- tiff's counsel intentionally pursued a wit- ness on recross-examination until he ob- tained an answer disclosing that defendant carried employers' liability insurance cov- ering the accident, the admission of such evidence over objection is error. Cameron v. Pacific Lime, etc. Co. (Ore.) 1916E-769. (Annotated.) 86. Burden of Proof. In an action against a railroad company under Pa. Em- ployers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (Fed. St. Ann. 1909 Supp. p. 584), and Safety Appliance Act March 2, 1893, e. 196, 27 Stat. 531 (6 Fed St. Ann. p. 752), for death of plaintiff's hus- band, the burden is on plaintiff to prove violation of the federal statutes, and that decedent was engaged in interstate com- merce, or with its instrumentalities, at the time of the accident. Hench v. Pennsyl- vania E. Co. (Pa.) 1916D-230. (Annotated.) 87. In an action for injuries resulting in the death of a brakemau, evidence merely that from time to time cars con- taining both intrastate and interstate com- merce were received, stored, shifted, and reloaded in the ya"Vd in which the accident occurred creates no presumption that the cars being shifted at the time of the acci- dent were intended for use in interstate commerce. Hench v. Pennsylvania E. Co. (Pa.) 1916D-230. (Annotated.) 88. In an action against a railroad com- pany under federal statutes for death of plaintiff's husband, who was fatally injured while coupling cars, failure of defendant to produce records showing what particular cars were being moved in the freight yard on the night of the accident creates no presumption that the cars therein were being used in interstate commerce, where defendant's clerk, who kept certain records of cars, testifies that he has no such rec- ords. Hench v. Pennsylvania R. Co. (Pa.) 1916D-230. (Annotated.) 89. The relation of master and servant must be based upon a contract, either express or implied, and the terms and con- ditions of the contract must, in a large measure, be looked to, to determine the duties which each owes to the other, so that it may be ascertained what acts of the employer may or may not constitute negligence, as applied to the employee. Chesapeake, etc. E. Co. v. Harmon's Adm'r. (Ky.) 1918B-41. (Annotated.) (14) Instructions. 90. Elements of Damages Testimony to Support. In an action under the Federal Employers' Liability Act of April 22, 190S (Fed. "St. Ann. 1909 Supp. p. 584). for death of a railroad employee, where there was no proof as to what portion of dece- dent's earnings his widow and child might have reasonably expected to receive, charge telling the jury that they might find as MASTER AND SERVANT. 561 damages a sum equal to the entire amount of the probable earnings of decedent is er- roneous. Nashville, etc. Ry. v. Anderson (Tenn.) 1917D-902. 91. Where there is no proof as to the value of decedent's customary contribu- tions to the support of his widow and minor child, and nothing to indicate what they might reasonably have expected from him for support, there being no evidence as to proof of his personal qualities and the interest he took in his family, the sub- mission to the jury of such Matters as a basis of damages is improper. Nashville, etc. Ry. v. Anderson (Tenn.) 1917D-902. 92. Action for Injuries Instruction not Misleading. In a railway brakeman's ac- tion for injuries, in which the first para- graph of the complaint charged negligence of the engineer in backing against the car on which he was riding in the course of his duty, and the second paragraph alleged a cause of action under Ind. Employers' Lia- bility Act (Laws 1911, c. 88), and under the evidence his place of work became un- safe either through the engineer's negli- gence, or through the giving of a negligent order requiring him to be at that place, an instruction that as defendant was a corporation and could not discharge in per- son the obligation of furnishing its em- ployees a reasonably safe place to work, and appliances with which to work, but must provide some agent to take its place, the agent to whom it delegated this duty stood in its place and stead, is not mis- leading, where the charge is otherwise proper, though there is no allegation of a failure to furnish a reasonably safe place or appliances with which to work, since it was negligence, and not the place of work, which produced the injury. Vandalia Rail- road Co. v. Stillwell (Ind.) 1916D-258. (15) Damages. 93. Proof of Damage Loss of Support Amount. Where there is proof of the earn- ing capacity of decedent and his expect- ancy of life, tut nothing to show what his beneficiaries, his widow and minor child, might reasonably have expected to receive from him for their support, only a recovery for nominal damages can stand. Nash- ville, etc. Ry. v. Anderson (Tenn.) 1917D- 902. 94. Computation of Damage Life Ex- pectancy of Beneficiary. In such action damages to the widow should be calculated on the basis of her expectancy of life as urell as her husband's. Nashville, etc. Ry. T. Anderson (Tenn.) 1917D-902. (16) Verdict. 95. In such action, where there is no proof as to what portion of decedent's earnings his widow and child might reason- ably have expected to receive, it is error 36 to instruct that the jury may find damages to be the net value of his earnings after payment of his personal expenses. Nash- ville, etc. Ry. v. Anderson (Tenn.) 1917D- 902. 96. Res Judicata Action Under Federal Employers' Liability Act Effect on Other Remedy. The decision on appeal that de- cedent's administrator had no right of action for decedent's death under the Fed- eral Employers' Liability Act does not pre- clude his seeking remedy under state law if he has any. Chesapeake, etc. R. Co. v. Harmon's Adm'r. (Ky.) 1918B-41. 97. Majority Verdict Action Under Federal Statute. The requirement of U. S. Const., 7th Amend., that trials by jury be according to the course of the common law, i. e., by a unanimous verdict, does not con- trol the state courts, even when enforcing rights under a federal statute like the Em- ployers' Liability Act of April 22, 1908 (35 Stat. at L. 65, c. 149, Fed. St. Ann. 1&09 Supp. p. 584), and such courts may, therefore, give effect in actions under that statute to a local practice permitting a less than unanimous verdict. Minneapolis, etc. R. Co. v. Bombolis (U. S.) 1916E-505. (Annotated.) (17) Review. 98. Federal Employers' Liability Act Applicability Saving Question for Re- view. Error, if any, in basing a recovery in a personal injury action upon the Fed- eral Employers' Liability Act of April 22, 1908 (35 Stat. L. 65, c. 149 [Fed. St. Ann. 1909 Supp. p. 584]), does not entitle the defendant to have the judgment reversed, where such defendant in no way saved its rights to deny that the parties were en- gaged in interstate commerce at the time of the accident, or to object to the appli- cation of the federal statute, but, on the contrary, invoked and relied, without quali- fication, upon that statute and the rights that, because of that statute, it supposed itself to possess. Minneapolis, etc. R. Co. v. Winters (U. S.) 1918B-54. 99. Action Under Federal Act Review Scope of Decision Rights at Common Law. Where the only question before th v court on an appeal from an action under the Federal Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (Fed. St. Ann. 1909 Supp. p. 584), was whether an em- ployee was engaged in interstate commerce when killed, which was decided adversely, it is not necessary to decide whether a common-law right of action existed. Chesapeake, etc.'R. Co. v. Harmon's Adm'r. (Ky.) 1918B-41. 100. Review by Federal Court of State Decision Negligence Clinkers on Right of Way. The federal supreme court will not disturb the concurrent conclusion of two state courts in an action brought un- der the Employers' Liability Act of April 562 22, 1908 (35 Stat. L. 65, c. 149, Fed. St. Ann. 1909 Supp. p. 584), as amended by the Act of April 5, 1910 (36 Stat. L. 291, c. 143, Fed. St. Ann. 1912 Supp. p. 335), that there was sufficient ground for attrib- uting negligence to the railway carrier be- cause of the presence of large clinkers in the path along which an employee was called upon to pass in the course of his duty, and over which he stumbled while carrying some blocks to be used in jacking up a wrecked car. Southern B. Co. v. Puckett (U. S.) 1918B-69. k. Workmen's Compensation Acts, (1) Nature and Purpose. 101. Theory of Liability. In a case aris- ing under the N. Y. Workmen's Compen- sation Act (Consol. Laws, c. 67) the doc- trine of respondeat superior has no appli- cation, nor do the rules of employers' liability for negligence control, but com- pensation is awarded workmen injured in certain enumerated occupations. Dale v. Saunders (N. Y.) 1918B-703. 10& Commission Substituted for Em- ployer. Wash. Laws 1911, c. 74, is neither an employer's liability nor a workmen's compensation act, but an industrial insur- ance law, withdrawing from private con- troversy all phases of injury to workmen; and compensation flows from the commis- sion, which must be sued rather than the employer, if it rejects a claim. Stertz v. Industrial Ins. Commission (Wash.) 1918B- 354. 103. Scope of Act. A carpenter hired in the state of Ehode Island, and while en- gaged in the master's work in the state of Connecticut, was injured. He sought re- covery under B. I. Workmen's Compensa- tion Act (Pub. Laws 1911-12, c. 831). Ar- ticle 2, 21, declares that an employee shall, after injury, at reasonable times during the continuance of his disability, if requested by his employer, submit him- self to an examination by a physician or surgeon authorized to practice medicine under the laws of the state, and declares that, if the employee refuses to submit to such examination, his right of compensa- tion shall be suspended, and compensation during the period of suspension shall be forfeited. Article 2, 1, in broad terms gives employees compensation for personal injuries by accident arising out of and in the due course of employment, while ar- ticle 3, 16, declares that proceedings shall be brought either in the county where the employer or employee lives or has his usual place of business, and that changes of venue may be granted. Pub. Laws 1915, c. 12fiS. provides for a report of injuries. It is held that, as the act was obviously intended to furnish a comprehensive scheme for the compensation of injured employees, it governed injuries received by the employee, hired in the state, while DIGEST. 1916C 1918B. at work for the master without the state. Grinnell v. Wilkinson (E. I.) 1918B-618. (Annotated.) 104. The general purpose of the 111. Workmen's Compensation Act of 1913 is to provide a method by which injuries re- ceived by employees in certain classes of occupations may be quickly adjusted so that something shall be received according to fixed rules for determining compensation in said cases. Victor Chemical Works v. Industrial Board (111.) 1918B-627. 105. The -Workmen's Compensation Act is applicable only to those relations of em- ployer and employee which are in the legislative control of the state, untram- meled by the laws of the United States. Shaughnessy v. Northland Steamship Co. (Wash.) 1918B-655. 106. Purpose of Act. The N. Y. Em- ployers' Liability Act was intended to pro- tect and safeguard the interests of em- ployees. Whiley v. Solvay Process Co. (N. Y.) 1917A-314. 107. Basis of Liability Negligence and Contributory Negligence. Under Acts Md. 1914, c. 800, regulating workmen's compen- sation, compensation for injuries or death is not dependent on negligence of the em- ployer nor denied by reason of contribu- tory negligence. American Ice Co. v. Fitz- hugh (Md.) 1917D-33. 108. Compulsory Nature of Statute. While a compensation statute might be unduly compulsory, though professing to be wholly voluntary, and might attacn such penalties to nonacceptance as to compel acceptance by undue means, a statute which attaches no penalties for failure to accept its provisions, save taking away what may arbitrarily be taken, constitu- tionally is not exercising undue compul- sion. What the legislature may take at its will, it may allow retention of upon condition. If it may eliminate a defense at will, it does not violate the constitution to take it upon refusal to accept an arbi- tration statute. Hunter v. Colfax Consoli- dated Coal Co. (Iowa) 1917E-803. (Annotated.) 109. The act does, in essence, go beyond obtaining an agreement by acceptance of its provisions that an arbitration shall de- termine summarily and speedily that com- pensation shall be made by applying a statute schedule, and that recovery for injury shall be neither greater nor smaller than provided in said schedules. And it has never been seriously questioned that the legislature could require, or parties agree upon arbitration and upon a limit of recovery for injury or death. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) (2) Constitutionality. 110. Validity of Act. If the Mich. Workmen's Compensation Act (Pub. Acts 1912 [Ex. Sess.] No. 10) be held to apply MASTER AND SERVANT. 563 to occupational diseases, such provisions are invalid, not being within the scope of the title as required by Const, art. 5, 21, providing that no law shall embrace more than one subject, which shall be expressed in its title. Adams v. Acme White Lead, etc. Works (Mich.) 1916D-689. (Annotated.) 111. Said law does not violate the due process of law clause of the constitution by compelling compensation of workmen for injuries due to acts of third persons, against whose acts the employer should have every inducement to guard. Stertz v. Industrial Ins. Commission (Wash.) , 1918B-354. 112. It would not be a violation of the due process of law clause of the constitu- tion to make the master the insurer of the workman while on the premises. Stertz v. Industrial Ins. Commission (Wash.) 1918B-354. 113. Nor is the act special legislation within the meaning of Ky. Const. 59, since "special legislation" applies to par- ticular places or persons as distinguished from classes of places or persons. Greene v. Caldwell (Ky.) 1918B-604. (Annotated.) 114. Nor is such act unconstitutional as class legislation in violation of Ky. Const. 59, providing that the general assembly shall not pass local or special acts con- cerning a number of subjects therein men- tioned, since the classification made is reasonable. Greene v. Caldwell (Ky.) 1918B-604. (Annotated.) 115. The title to such act does not vio- late Ky. Const. 51, requiring the subject of a law to be expressed in the title. Greene v. Caldwell (Ky.) 1918B-604. (Annotated.) 116. Nor is it unconstitutional because not allowing a jury trial, since the parties accepting it thereby agree to trial with- out jury. Greene v. Caldwell (Ky.) 191SB-604. (Annotated.) 117. Such act does not violate Ky. Const. 135, forbidding establishment of courts not provided for in the constitu- tion, since the compensation board is not a "court" within the constitution, and the act provides in section 52 for appeal from its decision, so that its members are arbi- trators within Const. 250, providing that arbitrators shall be chosen by the parties, the acceptance of the act by employer and employee constituting a consent that the board act as "arbitrators." Greene v. Caldwell (Ky.) 1918B-604. (Annotated.) 118. The constitutionality of the act as a whole is not affected by the validity or invalidity of section 22 thereof, as to compensation to alien widows, children, and relatives, since this section is separa- ble from the remainder of the act. Greene v. Caldwell (Ky.) 1918B-604. (Annotated.) 119. Nor is the act invalid as making, by section 11 thereof, radical changes in the law of parent and child, since there is no constitutional restraint on such ac- tion by the legislature. Greene v. Cald- well (Ky.) 1918B-604. (Annotated.) 120. Such act is not unconstitutional as a depriving of property -without due process of law, contrary to Const. U. S. Amend. 14 (9 Fed. St. Ann. 416) because taking from a nonaccepting employer cer- tain defenses, since the employer has no vested rights in these defenses, and the legislature could take them away without giving any election at all. Greene v. Caldwell (Ky.) 1918B-604. (Annotated.) 121. Nor is the act unconstitutional un- der Ky. Const. 196, forbidding a com- mon carrier to contract for relief from its common-law liability. Greene v. Caldwell (Ky.) 1918B-604. (Annotated.) 122. The Workmen's Compensation Act of 1916 (Laws Ky. 1916, c. 33), is not un- constitutional, under Const. 54, forbid- ding limitation of amount of recovery for injuries, as being compulsory on em- ployees, since by section 74 it provides for their election to accept the provisions of the act, notwithstanding section 76b, providing that as to nonaccepting em- ployee, the employer may use the defenses of contributory negligence, fellow servant, and assumed risk. Greene v. Caldwell (Ky.) 191SB-604. (Annotated.) 123. Such act so construed is not un- constitutional as being, in effect, com- pulsory by giving an unreasonably short time from June 28th to July 1st for election by employers whether or not to come under the act. Victor Chemical Works v. Industrial Board (111.) 1918B- 627. 124. The compulsory compensation scheme of the New York Workmen's Com- pensation Act (N. Y. Laws 1913, c. 816; Laws 1914, cc. 41 and 316), which, in lieu of the common-law liability confined to cases of negligence, imposes a liability upon employers to make compensation for disabling, or fatal accidental personal injuries received by, employees in the course of their employment in certain gain/ul occupations denominated "hazard- ous employments," without regard to fault as a cause, except where the injury or death is occasioned by the employee's wil- ful intention to produce it, or where the injury results solely from his intoxication while on duty, graduating the compensa- tion for disability according to a pre- scribed scale based upon loss of earning power, having regard to the previous wage and the character and duration of 564 DIGEST. 1916C 1918B. the disability, and measuring the death benefits according to the dependency of the surviving wife, husband, or infant children, does not contravene U. S. Const. 14th Amend, as taking property without due process of law, or unwar- rantably limiting freedom of contract, whether considered from the standpoint of employer or employee, but is a valid exercise of the police power of the state. New York Central E. Co. v. White (U. S.) 1917D-629. (Annotated.) 125. The exclusion of farm laborers and domestic servants from the compulsory compensation scheme of the New York Workmen's Compensation Act (N. Y. Laws 1913, c. 816; Laws 1914, cc. 41 and 316) is not such an arbitrary classification as to contravene the equal protection of the laws clause of U. S. Const. 14th Amend., since it reasonably may be considered that the risks inherent in these occupations are exceptionally patent, simple, and familiar. New York Central B. Co. v. White (U. -S.) 1917D-629. (Annotated.) 126. The requirement of the New York Workmen's Compensation Act (N. Y. Laws 1913, c. 816; Laws 1914, cc. 41 and 316), 50, that the employer shall secure pay- ment of the compulsory compensation prescribed by that act either by (a) state insurance, (b) insurance with an author- ized insurance corporation or association, or (c) by furnishing satisfactory proof of his financial ability to pay the compensa- tion, and depositing securities for that purpose, cannot be said to contravene U. S. Const. 14th Amend., since self-insur- ance under the third method presumably is open to all solvent employers on rea- sonable terms. New York Central E. Co. v. White (U. S.) 1917D-629. (Annotated.) 127. Employers are not denied the equal protection of the laws, contrary to U. S. Const. 14th Amend, by the provisions of the Iowa Workmen's Compensation Act (Iowa Laws 35th Gen. Assem. c. 147), 5, that where both employer and employee reject the act, the liability of the em- ployer shall be the same as though the employee had not rejected it, thus leaving a rejecting employer liable, whether the employee on his part accepts or rejects the act, for personal injuries sustained by an employee arising out of and in the usual course of the employment, with no right to avail himself of the fellow*ser- vant rule or the defenses of contributory negligence or assumption of risk, while by 3b, if the employee rejects the act and the employer accepts it, the latter may avail himself of such common-law rules and defenses. Hawkins v. Bleakly (U. S.) 1917D-637. (Annotated.) 128. There is nothing repugnant to U. S. Const. 14th Amend, in the provision of the Iowa Workmen's Compensation Act (Iowa Laws 35th Gen. Assem. c. 147) that where an employee elects to reject the act he shall state in an affidavit who, if anybody, requested or suggested that he should do so, and that if it be found that the employer or his agent made such re- quest or suggestion, the employee shall be conclusively presumed to have been un- duly influenced and his rejection of the act shall be void. Hawkins v. Bleakly (U. S.) 1917D-637. (Annotated.) 129. The scheme adopted by the Iowa Workmen's Compensation Act (Iowa Laws 35th Gen. Assem. c. 147), for the adjust- ment of compensation when the employer accepts its provisions, is not in contra- vention of U. S. Const. 14th Amend, as clothing an administrative body with an arbitrary discretion inconsistent with due process of law, where the act provides the measure of compensation, the circum- stances under which it is to be made, establishes administrative machinery for applying the statutory measure to the facts of each particular case, and provides for a hearing before' an administrative tribunal, and for judicial review upon all fundamental jurisdictional questions. Hawkins v. Bleakly (U. S.) 1917D-637. (Annotated.) 130. The right to trial by jury, guar- anteed by U. S. Const. 7th Amend., cannot be said to be infringed by the Washing- ton Workmen's Compensation Act (Wash. Laws 1911, c. 74), on the theory that if such act be valid, it must be followed in the federal courts in cases that are within its provisions, where there is nothing in such act that excludes trial by jury in any private rights of action which are pre- served, and, as between employer and em- ployee, the act abolishes all right of recov- ery in ordinary cases, and therefore leaves nothing to be tried by a jury. Mountain Timber Co. v. Washington (U. S.) 1917D- 642. (Annotated.) 131. A state may consistently with U. S. Const. 14th Amend, substitute a system of compulsory compensation for disabling or fatal accidental personal in- juries received by employees in the course of their employment in certain so-called hazardous employments without regard to fault of the employer, in lieu of the existing right to maintain actions for damages in cases of the employers' negli- gence, in which the latter may assert im- munity for the negligence of a fellow servant and the defenses of contributory negligence and assumed risk. Mountain Timber Co. v. Washington (U. S.) 1917D- 642. (Annotated.) 132. The exaction, under the Washing- ton Workmen's Compensation Act (Wash. Laws 1911, c. 74), from employers in cer- tain industries denominated "extrahazard- ous," without regard to any wrongful act on their part, or to whether injuries have MASTER AND SERVANT. 565 befallen their own employees or not, of periodical contributions based upon per- centages of pay rolls to a state fund from which compensation shall be made for disabling or fatal injuries received by em- ployees in the course of their employment in such industries, is not inconsistent with the due process of law and equal protec- tion of the laws clauses of U. S. Const. 14th Amend., but such exaction is a valid exercise of the state's police power, there being no claim that the scale of compensa- tion is unduly large, and the schedule of contribution evidencing an intent to pro- portion the various percentages according to the hazard of each of the- groups into which the industries are divided, and to limit the burden to the requirements of each industry. Mountain Timber Co. v. Washington (U. S.) 1917D-642. (Annotated.) 133. The evident purpose of the Wash- ington Workmen's Compensation Act (Wash. Laws 1911, c. 74), to classify the various occupations according to the re- spective hazard of each, is a sufficient an- swer (there being no particular showing of erroneous classification) to the objec- tion, founded on U. S. Const. 14th Amend, that the statute goes too far in classifying as hazardous large numbers of occupations that are not hazardous in their nature. Mountain Timber Co. v. Washington (U. S). 1917D-642. (Annotated.) 134. The federal supreme court will not assume, in the absence of an actual deci- sion of the state court, that the provision of the Washington Workmen's Compensa- tion Act (Wash. Laws 1911, e. 74), mak- ing it unlawful for the employer to deduct any part of his compulsory contribution to the state fund created by that act from the wages or earnings of his workmen, will be so broadly construed as to bring it in conflict with the federal constitution. Mountain Timber Co. v. Washington (U. S.) 1917D-642. (Annotated.) 135. There is no denial of due process of law in the provisions of the Iowa elec- tive Workmen's Compensation Act (Iowa Laws 35th Gen. Assem. c. 147), that an employer rejecting the compensation feat- ures of that act shall not escape liability for personal injury sustained by an em- ployee arising out of, or in the usual course of, the employment, because the employee assumed the risk of the employ- ment, or because of the employee's negli- gence, unless this was wilful and with the intent to cause the injury, or was the re- sult of intoxication, or because the injury was caused by the negligence of a co- employee, and that in an action against such rejecting employer it shall be pre- sumed that the injury was the direct result of his negligence, and that he must assume the burden of proof to rebut such presumption. Hawkins v. Bleakly (U. S.) 1917D-637. (Annotated.) 136. Eights of employees under U. S. Const. 14th Amend, are not invaded by the abolition, under the Washington Workmen's Compensation Act (Wash. Laws 1911, c. 74), of private rights of ac- tion for damages in case of disabling or fatal accidental personal injuries received by employees in certain employments denominated "extrahazardous" (and in any other industry, at the option of em- ployer and employees), and the substitu- tion of a system of compensation to in- jured workmen and their dependents out of a public fund established and main- tained by contributions required to be made by the employers in proportion to the hazards of each class of occupation. Mountain Timber Co. v. Washington (U. S.) 1917D-642. (Annotated.) 137. Workmen's Compensation Act, giv- ing employer and employee an option to accept or reject it, is not unconstitutional as denying to parties who have accepted it the right of trial by jury, as under Iowa Code, 3650, providing that the right ex- ists only if it be not waived, the right to jury trial can be waived. Hunter v. Col- fax Consolidated Coal Co. (Iowa) 1917E- 803. Annotated.) 138. The Iowa Workmen's Compensa- tion Act, 26, provides that an agreement between an employer and an employee as to compensation, filed with the commis- sioner, is not to be approved unless its terms conform to the provisions of the act, and section 1, last paragraph, pro- vides that where the parties have not given notice of an election to reject, every contract of hire shall be construed as an implied agreement to accept compensation as provided by the act. It is held that the statute was not unduly coercive. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 139. Iowa Const, art. 5, 1, provides that the judicial power shall be vested in the supreme court, district court, and such inferior courts as the general assembly may establish. Iowa Workmen's Com- pensation Act, 25-35, provide for the determination of the amount of compen- sation to be awarded an injured workman by a committee of arbitration, and that there shall be no appeal on questions of fact from the decree of the district court approving the committee's award of course. It is held that the act was not unconstitutional under the rule that con- tracts by which the parties undertake to deprive themselves in toto of the right to resort to the courts to settle controversies between them are invalid. Hunter v. Col- fax Consolidated Coal Co. (Iowa) 1917E- 803. (Annotated.) 140. Cal. Const, art. 6, 1, provides that the judicial power of the state shall be vested in the senate, certain named courts, and such inferior courts as the legislature 566 DIGEST. 1916C 1918B. may establish. Const, art. 20, 21, adopted in 1911. authorizes the legislature to create and enforce a liability on the part of all employers to compensate their employees for any injury incurred by them in the course of their employment and to provide for the settlement of any disputes arising under the legislation by arbitration or by an industrial accident board, by the courts or by either or any or all of these agencies. Cal. Workmen's Compensation, Insurance and Safety Act (St. 1913, p. 279), 22, 23, 24a, 25, 26,. 73a, 78, 84, and 84c, give the industrial accident commission power to hear appli- cations by employees or their dependents, after notice is served on the other party, to issue subpoenas, take testimony, punish for contempt, make findings which are conclusive and "full power, authority, and jurisdiction to try and finally determine all proceedings for the recovery of com- pensation," subject only to a limited right of review by certiorari. It is held that the act confers on the commission judicial power, which is the power to decide and make binding orders between persons who bring cases for decision, and therefore violates article 6, 1, of the constitution unless within the authority of article 20, 21. Western Metal Supply Co. v. Pills- bury (Cal.) 1917E-390. (Annotated.) 141. Cal. Const, art. 20, 21, authoriz- ing the legislature to create and enforce a liability on the part of all employers to compensate their employees for any injury incurred by the said employees in the course of their employment and to pro- vide for the settlement of disputes aris- ing thereunder by arbitration, by an in- dustrial accident board or by the courts, when construed in the light of its purpose to substitute a system of compensation for all injuries for the common-law liabil- ity of the master for negligence, and in the light of the uniform scope of previous workmen's compensation acts, authorizes the legislature to provide for the compen- sation of those dependent on a workman killed in the course of his employment as well as to an injured employee himself, since "compensation to employees" may be fairly held to mean, not merely money payments to them, but also providing medical and surgical treatment and sup- port for those who ordinarily look to the employee for support. Western Metal Supply Co. v. Pillsbury (Cal.) 1917E-390. (Annotated.) 142. The fact that the dependants of a workman, killed in the course of his em- ployment, may be nonresidents of the state and nation, does not show that no public purpose is to be served by requir- ing such compensation to be made so as to deprive that provision of the act of its validity as an exercise of the police newer. Western Metal Supply Co. v. Pillsbury (Cal.) 1917E-390. (Annotated.) 143. Workmen's Compensation Act, tak- ing from the employer who rejects the act the defense that the servant's own negli- gence contributed to his injury, is not unconstitutional therefor, since the act has in fact added to the defense of con- tributory negligence, as under Iowa Code of 1915, Supplemental Supp. 3953a, all contributory negligence would be avail- able in mitigation only, there being, under the compensation statute, the right to plead contributory negligence in mitiga- tion, plus the right to plead certain con- tributory negligence, such as intoxication of the servant, in bar. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 144. Workmen's Compensation Act, pro- viding that the burden of proof shall rest upon the employer who rejects the act to rebut the presumption that the injury to his servant was the result of his negli- gence, is not unconstitutional, since rules as to presumptions and burden of proof have been established by the decisions of the court and can be changed or abrogated by the legislature. Hunter v. Colfax Con- solidated Coal Co. (Iowa) 1917E-803. (Annotated.) 145. Workmen's Compensation Act, abolishing, as against an employer who re- jects it, the defense that the injury to his servant was due to the negligence of a fellow servant, is not unconstitutional thereby as an illegal classification or for any other reason, since the defense, hav- ing been evolved by the courts, may prop- erly be abrogated by the legislature, as no one has a vested interest in common- law rules. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 146. Workmen's Compensation Act, abolishing, as against an employer reject- ing it, various defenses resting on risks assured by the employee, is not unconsti- tutional therefor, since as such defenses of assumption of risk have been evolved by the courts, they may be properly abro- gated by the legislature, as no one has a vested interest fh- common-law rules. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 147. Workmen's Compensation Act, abolishing the defenses of assumption of risk, contributory negligence, etc., is not unconstitutional as denying, without a re- peal of Iowa Code, 3650, providing that issues of fact in an ordinary action must be tried by jury unless the same is waived, the right, to an employer who has rejected the act. of trial by jury of issues of fact in his servant's action against him for injuries. Hunter v. Colfax Consoli- dated Coal Co. (Iowa) 1917E-803. (Annotated.) 148. The Workmen's Compensation Act, if it imposes a tax, imposes it for a public purpose sustained by the police power. MASTER AND SERVANT. 567 Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 149. There is nothing in the provision of the act with reference to insurance to be effected by the employer which unlaw- fully abridges the right to contract. Hun- ter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 150. Though the insurance provisions of the act are treated as a compulsory tax, such taxation is an authorized exercise of the police power. Hunter v. Colfax Con- solidated Coal Co. (Iowa) 1917E-803. (Annotated.) 151. If it is true that the insurance pro- visions of the statute have induced and enabled insurance associations to combine for the exaction of unduly high premiums, that will not render the statute unconsti- tutional. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 152. Iowa Workmen's Compensation Act, 25-35, provide generally for a committee of arbitration; that if a claim for review is filed, the commissioner shall revise the decision of the committee, or refer the matter back for further findings of fact; that any party in interest may present a certified copy of the order of the commis- sioner or decision of the committee or a memorandum of agreement approved to the district court, which shall render decree in accordance therewith. It is held that the specified sections do not work an improper delegation of judicial power. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 153. Provisions in effect providing for arbitration, for decree upon the award, and for a limited review of this decree upon appeal, are not necessarily a delegation of judicial power, and are at least as much a delegation of legislative as of judicial power, and may be upheld on that ground. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 154. Provisions for such arbitration and review are authorized by the police power, though they may, in a sense, clothe an ad- ministrative body with quasi-judicial func- tions in some respects, as to amount to a delegation of some judicial power, and though in some cases this operates to d^ny the right of trial by jury. Hunter v. Col- fax Consolidated Coal Co. (Iowa) 1917E- 803. (Annotated.) 155. Even if acceptance of the act con- stitute a contract to oust the courts of all jurisdiction, it would not invalidate the statute, since, while such contracts are con- demned, it is on grounds of public policy, and a contract which is expressly sanc- tioned by or effectuated through a statute cannot be against public policy, as the legislature is the supreme judge of what constitutes public policy. Hunter v. Col- fax Consolidated Coal Co. (Iowa) 1917E- 803. (Annotated.) 156. Iowa "Workmen's Compensation Act, 42, provides that every employer subject to its provisions shall insure his liability under the act in some organization ap- proved by the state department of insur- ance, while other provisions afford methods by which the insurance can be carried by mutual arrangement between the employer and employee, or under which the employer may carry his own risk, while there are various provisions as to carrying insurance, etc. It is held that the insurance scheme was not invalid as an unauthorized use of the taxing power. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 157. While the consequences of rejection of the Workmen's Compensation Act by the employer and by the employee, respect- ively, are not identical, they are suffi- ciently so as that, especially in view of the difference in situation, the difference created is not arbitrary classification. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 158. Iowa Workmen's Compensation Act, 5, provides that where both employer and employee reject the act the liability of the employer shall be the same as though the employee had not rejected. Section 3, par. "b," provides that, if the employee rejects, the employer may plead all defenses, in- cluding those at common law, and con- tributory negligence, assumption of risk, and fellow servant. Section 10 provides that compensation under the act is to be awarded only if both employer and em- ployee have accepted the act. It is held that the act was not unconstitutional as containing an improper classification and an arbitrary differentiation. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 159. The Iowa Workmen's Compensation Act is not' within the rule of cases in which statutes impairing the right freely to con- tract as to hours of labor, and statutes forbidding discharge because an employee is a member of a labor union, and the like, were held unconstitutional, because it leaves both parties at liberty to accept or reject the provisions of the act, and be- cause it is a proper exercise of the police power in so far as it regulates agreement between employer and employee. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 160. Workmen's Compensation Act, ex- cepting from its operation household or domestic servants, farm or other laborers engaged in agricultural pursuits, and casual employees, is not unconstitutional as class legislation, as the power to class- ify is primarily in the legislature, and courts accord to it the widest latitude in performing this function, so that a classi- fication adopted by it will be sustained, unless it is so palpably arbitrary as that there is no room for doubt this discretion 568 DIGEST. 1916C 1918B. has been abused; and excepting from the act household or domestic servants, farm laborers engaged in agricultural pursuits, and those in an employment f a casual nature, is no arbitrary classification, to say nothing of being palpably arbitrary. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 161. Parties other than auch employees cannot urge against the validity of a workmen's compensation act that it inter- feres with exclusive jurisdiction of fed- eral courts of actions for injury of em- ployees of railroads; and, in any event, the act guards against this very interference with federal law. Mere academic possi- bilities will not avail to make a statute unconstitutional. Hunter v. Colfax Con- solidated Coal Co. (Iowa) 1917E-803. 162. The Iowa Workmen's Compensation Act, 51, provides that part 1 of the act shall take effect from and after July 1, 1914, and parts 2 and 3 from and a'fter July 4, 1913, and that if either employer or employee serves notice to reject not less than thirty days before July 1, 1914, when part 1 takes effect, such notice shall have the same force and effect as though part 1 had taken effect July 4, 1913. Acts 3oth Gen. Assem. c. 148, provides that the Workmen's Compensation Act shall not apply to injuries sustained prior to the times when the compensation act takes effect in all its parts. It is held that the act was not unconstitutional as impairing the obligation of existing contracts, as a statute which provides expressly that ex- isting contracts are not to be affected is not open to the objection that it impairs the right of contract. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 163. Iowa Workmen's Compensation Act, 8, 13, 18, are constitutional, since the sections cited are mere guards against con- tracts to reduce the employer's liability for negligence, and statute provisions prohib- iting the making of contracts intended to evade obligations created by the statute are not an impairment of the right to con- tract, but a method of preventing evasions of contract obligations. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 164. Iowa Workmen's Compensation Act, 3, provides that if any request be made by an employer that an employee shall exer- cise his right to reject the act, there shall arise a conclusive presumption that the employee was unduly influenced. Section 19 provides that any agreement made by any employer with any employee or other beneficiary as to any claim under the act made within twelve days after injury, shall be presumed fraudulent. It is held that the act was constitutional. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-S03. (Annotated.) 165. Iowa Workmen's Compensation Act, 3, 8, 13, 18, 19, leave both the employer and the employee the liberty to accept or reject its provisions, while its require- ments in case of acceptance constitute such an exercise of the state's police power as will sustain compulsory acceptance, as the legislature in an honest exercise of the police power may validly impair the obli- gations of contracts. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 166. Iowa Workmen's Compensation Act, providing for the assessment of an injured workman's compensation by an executive board, is not unconstitutional, in that the statute violated the guaranties of the fed- eral constitution of due process of law, and equal protection of laws, and effected a wrongful abridgment of the privileges and immunities of citizenship. Hunter v. Col- fax Consolidated Coal Co. (Iowa) 1917E'- 803. (Annotated.) 167. The HI. Workmen's Compensation Act of 1911 (Laws 1911 p. 315) is consti- tutional. Devine v. Delano (111.) 191 8A- 689. Notes. Workmen's Compensation Act as appli- cable to injury received in another juris- diction. 1918B-625. Constitutionality of Workmen's Compen- sation Act. 1918B-611. (3) Construction Generally. 168. Construction, Mich. Employers' Liability and Workmen's Compensation Act (Pub. Acts, Extra Sess. 1912, No. 10), providing compensation for injuries to and death of workmen while engaged in their employment, independent of the question of negligence, is in derogation of the com- mon law, and should be strictly construed, though the act provides a remedy against a person who would not otherwise be lia- ble. Andrejwski v. Wolverine Coal Co. (Mich.) 1916D-724. 169. Construction of Act Depriving Court of Jurisdiction, The legislature, in adopting Wlash. Laws 1911, c. 74, as to workmen's compensation, having said posi- tively that jurisdiction of courts in contro- versies over injuries to employees is ended, the courts must liberally construe such pro- vision as well as other portions of the law. Stertz v. Industrial Ins. Commission (Wash.) 1918B-354. 170. Although it employs the word "acci- dent" in administrative portions of the act, it does not thereby limit the words "for- tuitous event" used in the clause granting compensation, since general intent will not control positive definitions. Stertz v. In- dustrial Ins. Commission (Wash.) 1918B- 354. 171. Effect Dispensing With Judicial Controversy. The Wash. Workmen's Com- MASTER AND SERVANT. 569 pensation Act (Laws 1911, c. 74), by omit- ting the words "accident" and "arising out of and in the course of employment," and substituting therefor "fortuitous event" and "injured in extrahazardous work," de- parts from prevailing systems and awards compensation without judicial controver- sies. Stertz v. Industrial Ins. Commission (Wash.) 1918B-354. 172. Workmen's Compensation Act as Retroactive. Where the amending statute materially changes the statute amended, making desirable a postponement of its operation to permit an adjustment to changed provisions, the argument that the limitation was intended to be retrospective is less cogent; and when such limitation, if retrospective, is radical and harsh, and the changes in the substantive provisions of the statute furnish an adequate reason for a postponement, such postponement should not be held to show an intent to make the statute retrospective. And it is held that chapter 209, Laws Minn. 1915, approved April 21, 1915, and effective July 1, 1915, amending the Workmen's Compen- sation Act of 1913 (Laws 1913, c. 467), and providing a limitation of one year after injury in which a workman may commence his action, the effect being, if the act is retrospective, to require accrued causes of action to be brought within seventy days after the passage of the statute, was not retrospective. State v. General Accident, etc. Assurance Corp. (Minn.) 1918B-615. (Annotated.) 173. Definition of Terms Elevator as "Vehicle." An elevator is not a "vehicle" within the classification of group 41 of N. Y. Workmen's Compensation Law. (Consol. Laws, c. 67), which embraces the operation "otherwise than on tracks, of cars, trucks, wagons, and other vehicles," etc. Wilson v. Dorflinger (N. Y.) 1917D-38. 174. Plant Definition of Term As Used in Employers' Liability Act. Under the N. Y. Employers' Liability Act (Consol. Laws, c. 31, 200, as amended by Laws 1910, e. 352), making an employer liable for personal injury to an employee in the exercise of due care, by any defect in the condition of the ways, works, machinery, 01 plant, connected with or used iii the business of the employer, and arising from, or not discovered and remedied owing to, the negligence of the employer or any one intrusted by him with seeing that the ways, etc., are in proper condition, the word "plant," used in connection with and relating to a business, includes everything, other than supplies and stock in trade, requisite to the carrying on of the busi- ness; whatever apparatus is used by a busi- ness man for carrying on his business not his stock in trade which he buys or makes for sale but all goods and tools, fixed or movable, which he keeps for per- manent employment in his business; any- thing regularly used in the conduct of an employer's business, without which it could not be carried on in the usual manner; and there is a "defect" when any part of the plant is not in a proper condition for the purpose for which it was intended, or when it is so incomplete that the use of the plant is dangerous by reason of the failure to furnish reasonably necessary parts for the purpose for which it is nsed. Wlhiley v. Solvay Process Co. (N. Y.) 1917A-314. (Annotated.) 175. Abolition of Defenses Assumption of Bisk. The common-law rule that an em- ployee continuing in the work of his em- ployer with full knowledge of the dangers incident thereto assumes such risks has not been changed by the N. Y. Employers' Liability Act (Consol. Laws, c. 31, 200- 204), defining the employers' liability, un- less notice is given as provided by that act, and the employee is entitled to recover under its terms. Wiley v. Solvay Process Co. (N. Y.) 1917A-314. 176. Assumption of Bisk Abolition of Defense Effect. Though some authorities hold that the defense of assumption of in- herent risks presents the claim that the employer is wholly free from blame, many more authorities define this defense of as- sumption otherwise. Since, therefore, the legislature is not obliged to hold that de- fending with assumption of inherent risk is necessarily defending with total freedom from blame, and since the one is neither necessarily nor universally held to be the equivalent of the other, the taking away of the defense of assumption is not neces- sarily an elimination of the defense of total want of fault, especially where the act expressly provides carefully worked out methods for litigating whether the master wad shown to be wholly blameless. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. 177. When at a time at which a statute is passed the authorities are greatly at variance as to what is presented by the defense that the employee assumed the risks inherent in the employment, and the statute enacted contains a well-considered provision, putting the burden of proof upon the employer that he was wholly free from fault, the statute should not be construed into taking away the defense that the em- ployer is wholly blameless, merely because the statute eliminates such assumption of risk as a defense. Hunter v. Colfax Con- solidated Coal Co. (Iowa) 1917E-803. 178. Absolute Liability. Because of the presumption that the legislature has in mind the state of the law on the subject of a statute when it enacts the same, and because at the time this statute was en- acted there was at least room for reason- able difference of opinion on whether a statute making the employer respond, when wholly free from blame, is valid, and be- cause of the rule that courts will not so construe a statute as to render it uncon- 570 etitutional, or as to raise serious doubts as to its validity, if any other construction is within the bounds of reason possible, the statute under consideration is held not to create such absolute liability. Hunter v. Coif ax Consolidated Coal Co. (Iowa) 1917E-803. Notes. Meaning of phrase "average weekly earnings" in Workmen's Compensation or similar act. 1918B-640. Workmen's Compensation Act as retro- active in operation. 1918B-617. (4) Operation Without State. 179. Injury Outside State Where Con- tract of Employment was Made. The only actions to secure workmen's compensation under a foreign statute which the courts of Connecticut cannot enforce are those where right and remedy are so united that the right cannot be enforced except in the manner and before the tribunal designated by the act. Douthwright v. Champlin (Conn.) 1917E-512. (Annotated.) 180. Pub. Acts Conn. 1913, c. 138, as to workmen's compensation, provides compen- s-tion for nonresidents as well as resi- dents, and under all contracts of employ- ment wherever' and by whomsoever made. Douthwright v. Champlin (Conn.) 1917E- 512. (Annotated.) 181. Where the act is rejected the courts are in no sense deprived of jurisdiction, although the procedure before them is changed, and certain defenses are elimin- ated. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E^803. (Annotated.) 182. If the act is accepted, there is thus a contract which takes some powers from the cdurt, but still is not an agreement to oust them of all jurisdiction. Their in- herent powers are left quite largely un- touched, even where the statute is ac- cepted. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. (Annotated.) 183. Where master and servant lived in Massachusetts, where the master's prin- cipal place of business was, and there made a contract for employment, and the servant was injured while working for the master in Connecticut, both having accepted Pub. Acts 1913, c. 138, pt. B, as to workmen's compensation, the courts of Connecticut can enforce compensation, since the Massa- chusetts act has no extraterritorial effect. and the Workmen's Compensation Act of Connecticut must be read into the contract. Douthwright v. Champlin (Conn.) 191 7E- 512. (Annotated.) (5) Election Under Optional Act. 184. Time for Election. 111. Workmen's Compensation Act approved June 23, 1913, and going into effect July 1, 1913 (Laws DIGEST. 1916C 1918B. 1913, p. 337), providing that every em- ployer enumerated in section 3, par. 6, shall be conclusively presumed to have filed no- tice of election to come under the act un- less and until notice to the contrar filed with the industrial board, and that every employer who has elected to como under the act shall be bound by it until January of the next succeeding year, but may elect to withdraw from the operation of the act after the end of such year by filing notice with the board at least sixty days prior to the end of the year, is held to have given employers not affirmatively filing notice to come under the act at least until November, 1913, to withdraw from the same by giving notice. Victor Chem- ical Works v. Industrial Board (HI.) 1918B-627. 185. Necessity Nonhazardous Employ- ment. 111. Workmen's Compensation Act, 1 (Hurd's Rev. St. 1913, c. 48, 126), gives to all employers in the state the right to elect to pay compensation to their employees according to the provisions ot the act. Section 3 (section 128) provides that in certain enumerated extrahazardous occupations, it shall be presumed that the employer has elected to come under the act, and if he elects not to do so, he is denied the defenses of assumption of risk, contributory negligence, and negligence of fellow servants in actions by his employees for injuries. It is held that the voluntary election under section 1 applies to all em- ployees in any branch of the employer's business, but the presumed election under section 3 applies only to those employees engaged in an extrahazardous occupation, so that a farm band employed on the farm of a corporation which had made no elec- tion under the act and which operated a warehouse and office in the city cannot re- cover compensation for injuries received while doing ordinary farm work, though the corporation's employees in the city might be within the terms of the act. Vaughan's Seed Store v. Simonini (111.) 1918B-713. (Annotated.) 186. Eight of Election, Neither the master nor the servant has any right of election whether he will come under the 111. Workmen's Compensation Act (Laws 1911, p. 345 [Eem. Code 1914, 66041 to 6604 32]), if engaged in the kind of work wEich falls thereunder, and neither can exempt himself from the burdens imposed, nor waive the benefits. Shaughnessy v. Northland Steamship Co. (Wash.) 19i8B- 655. 187. Effect of Failure to Accept De- fenses Abolished, The 111. Workmen's Compensation Act (Acts 35th Gen. Asiem- c. 147) provides that the rejecting em- ployer, in suit against him by a servant for personal injuries, may not avail him- self of the defenses of assumption of ri^k. or that the employer used reasonable care in employing reasonably competent em- MASTER AND SERVANT. 571 ployees, or that the injury was caused by the negligence of a fellow servant. An employer which had rejected the act and was sued for personal injuries was not per- mitted to present to the jury the defense that the injury was due to the employee's negligence. It is held that the provision of the act establishing the presumption that the injury was the result of the employer's negligence did not abolish the defense of contributory negligence; it merely forcing the employer to show affirmatively that he ie blameless. Hunter v. Colfax Consoli- dated Coal Co. (Iowa) 1917E-803. 188. Election to Reject Authority of Receiver. Where the United States court J'or the eastern district of Missouri, by the order appointing receivers for a railroad, authorized them "to run, manage, main- tain, and operate said railroads and property wheresoever situated or found, whether in this state, judicial circuit, or elsewhere, and to use, manage, and conduct such business in such manner as in their judgment will produce the best results, and to this end exercise the authority and franchise of said railroad company and discharge all the public duties obligatory upon it, and manage and operate said rail- roads and property according to' the re- quirements of the valid laws of the various states in which the same are situated, and in the same manner that the defendant railroad company would be bound to do if in possession," the receivers had author- ity to reject the Workmen's Compensation Act in the southern district of Illinois without obtaining a special order of court for that purpose, since a court in a prin- cipal railroad receivership action has gen- eral authority over the entire system, even as to parts not within the district in which the court sits, while the authority of the receivers under the order was ample. De- vine v. Delano (111.) 1918A-689. (Annotated.) 189. Bight to Compensation of Minor Employes Effect on Rights of Parent. The 111. Workmen's Compensation Act (St. 1911, c. 751), while intended to take away from injured employees, who shall become subject to its provisions, all common-law rights of action, does not affect the right of action of the parent of a minor ser- vant, who was injured, for the injury not only gives rise to one cause of action in favor of the minor, but to another in f avor of his parents, and the parent's action is in no way consequential on that of the minor, being based on loss of services dur- ing minority and expenses necessitated by the injury. King v. Viscoloid Company (Mass.) 1916D-1170. (Annotated.) (6) Exclusiveness of Remedy. 190. The provision of the 111. Workmen's Compensation Act (St. 1911, c. 751) that the right of action of an injured employee chall be waived, unless he gives notice that he claims his common-law rights, shows that the employee cannot, if he be a minor, waive his parent's right of action for the same injuries. King v. Viscoloid Company (Mass.) 1916D-1171. (Annotated.) 191. The right of action of a parent of an injured minor servant is not barred by an allowance to the servant under the Mass. Workmen's Compensation Act (St. 1911, c. 751), on the theory that the compen- sation is really a payment of wages to which the parent is entitled, for part 2, 11, clearly shows that the allowance, though based on salary, is also for perma- nent injuries. King v. Viscoloid Company (Mass.) 1916D-1170. (Annotated.) 192. The provision in the Mass. Work- men's Compensation Act (St. 1911, c. 751, pt. 2, 5) that the insurer shall pay part of the medical expenses incurred does not, where there is no issue of estoppel, affect the right of action of the parent of an in- jured minor servant against the master, although the parent could not recover for expenses paid by another. King v. Visco- loid Company (Mass.) 1916D-1170. (Annotated.) Notes. Award to minor under Workmen's Com- pensation Act as affecting right of action by parent. 1916D-1172. Eight to and effect of election with re- spect to acceptance of provisions of Work- men's Compensation Act. 1918B-715. (7) "Accident" and "Personal Injury." 193. Disease as Accident Typhoid from Impure Drinking Water. Under Wis. Workmen's Compensation Act (St. 1913, 23841-239431), 23943, declaring that liability for the compensation pro- vided for in" lieu of other liability shall exist against an employer for any personal injury accidentally suffered by an em- ployee, where an employee is performing a service growing out of and incidental to his employment, the right to compensation for the death of an employee resulting from typhoid fever caused by the furnish- ing of polluted drinking water falls wuhin the act; the disease being incurred as an incident to the employment. Vennen v. New Dells Lumber Co. (Wis.) 1918B-293. (Annotated.) 194. Where an employee contracts ty- phoid fever by reason of impure drinking water furnished by the master, his death from the disease is an "accident," within Wis. St. 1913, 2394 3, making the em- ployer liable for injuries proximately caused by accident; the term "accident" being used in its popular significance, as including injuries produced by negligence. Vennen v'. New Dells Lumber Co. (Wis.) 1918B-293. (Annotated.) 572 DIGEST. 1916C 1918B. 195. What Constitutes Accident Occu- pational Disease. Mich. Workmen's Com- pensation Act (Pub. Acts 1912 [Ex. Sess.] No. 10), providing for compensation for the accidental injury to, or death of, em- ployees provides, in part 1, 5, subd. 2, that every person having any one in his service who, prior to the time of the acci- dent to the employee, shall have elected to become subject to the provisions of the act, and shall not have effected a with- drawal, is subject to the act. By Pub. Acts 1911, No. 245, the legislature created a commission to provide for compensation for accidental injuries or death of work- men in their employment, and the Work- men's Compensation Act as prepared by the committee was adopted without change. Held that, as an accident is an unforeseen event occurring without design, the Work- men's Compensation Act does not apply to occupational diseases, which are diseases arising from causes incident to certain oc- cupations and do not occur suddenly, this conclusion being strengthened by the re- quirements of part 3, 17, that the em- ployer give notice to the industrial acci- dent board within ten days after the oc- currence of accident; for in the case of ar occupational disease the employer might uot be able to give the notice because not informed that a workman who had left his employ was afflicted with an occupational disease. Adams v. Acme White Lead, etc. Works (Mich.) 1916D-689. (Annotated.) 196. What Constitutes Injury. Section 3 providing that "injury refers only to injury resulting from fortuitous event as distinguished from contraction of disease," all injuries are intended to be compensated tor unless wilfully incurred, since only disease is excluded. Stertz v. Industrial Ins. Commission (Wash.') 1918B-354. (Annotated.) 197. Disease as Accident. No compensa- tion can be recovered under the Workmen's Compensation Act by the dependents of a workman who, having sustained an acci- dental injury, became insane from de- spondency over his slow recovery and com- mitted suicide, there being no direct causal connection between the insanity and the injury. Withers v. London, etc. R. Co. (Eng.) 1918B-341. (Annotated.) 198. Where a hack driver in the employ- ment of defendant stable company, which had elected to become subject to the Work- men's Compensation Act (Pub. Laws E. I. 1912, c. 831), was pitched from his seat by the motion of the hack while driving and while helpless from dizziness or un- consciousness, occasioned by a disease from which he was suffering, he is entitled to compensation for the resulting injuries, since his fall was an "accident arising out of his employment" within the meaning of article I, 1, of the act. Carroll v. What Cheer Stables Co. (E. I.) 1918B-3I6. (Annotated.) 199. Accident in Course of Employment Disobedience of Orders. A workman in- jured while engaged in performing a duty of his employment is none the less within the Workmen's Compensation Act because in entering on that work he disobeyed an order to perform first another duty. Wil- liams v. Llandudno Coaching, etc. Co. (Eng.) 1918B-682. 200. What Constitutes Accident Rheu- matism. Rheumatism contracted by a workman as the result of an emergency employment wherein he was required to stand for several hours in water, is an acci- dent arising out of and in the course of the employment within the meaning of a workmen's compensation act. Glasgow Coal Co. v. Welsh (Eng.) 1916E-161. (Annotated.) 201. Proof of Accidental Injury Suffi- ciency. Proof that a workman engaged in an employment wherein accidental bruises and abrasions were of frequent occurrence came to work apparently without injury and later in the day he was seen to limp and to complain of a bruised knee which on a subsequent day showed abrasion, is sufficient, after the death of the workman from blo'od poisoning, to sustain a finding that the injury was received accidentally in the course of the employment. Hay- ward v. Westleigh Colliery Co. (Eng.) 1917D-877. 202. What Constitutes Accident Wilful Act of Third Person. That a night watch- man was killed while discharging his duties by the wilful act of a third person, does not show that his death was not accidental within the Workmen's Compensation Act. Western Metal Supply Co. v. Pillsbury (Cal.) 1917E-390. 203. What Constitutes Loss of Finger. E. I. Laws 1911-1912, c. 831, art. 2, 12, subd. "c," provides that for loss by sever- ance at or above the second joint of two or more fingers, including thumbs, or toes, compensation consisting of one-half of the average weekly wages or salary, but not more than $10, nor less than $4, for a period of twenty-five weeks, shall be al- lowed; while subdivision "d" authorizes similar compensation for a period of twelve weeks for tue loss by severance of at least one phalange of a finger, thumb, or toe. Plaintiff's thumb was injured so that a small piece of the bone was lost from the side and pieces of tendons and flesh were also destroyed. It is held that as the thumb itself was not severed, compensa- tion was properly awarded under subdi- vision "d" instead of subdivision "c." Weber v. American Silk Spinning Com- pany (E. I.) 1917E-153. 204. What Constitutes "Loss" of Eye. Where a servant's right eye is impaired so that he possesses only twenty per cent of the natural vision, but his vision can be improved by the introduction of an arti- MASTER AND SERVANT. 573 ficial pupil, and the fields of vision are normal, he is not entitled to compensation as for "loss of use of the eye," which is equivalent to a loss of the eye. Boscarino v. Carfagno & Dragonette (N. Y.) 1918A- 530. (Annotated.) 205. What Constitutes "Loss" of Arm. Wis. St. 1913, 23949, in the first sub- divisions provides generally for compen- sation to injured employees. Subdivision 5 provides for specific payments for named injuries, which includes the loss of forearm and hand, but does not specifically include the impairment of the arm. It is held that as the statute provided that paralysis of a member shall be equivalent to a loss, it did not include a mere impairment, and an award for an injury impairing the use of the arm could not be made under that subdivision. Northwestern Fuel Co. v. Industrial Commission (Wis.) 1918A-533. (Annotated.) Notes. What constitutes "loss" of limb or part thereof within Workmen's Compensation Act. 1918A-536. What is "injury" or "personal injury" within meaning of Workmen's Compensa- tion Act. 1918B-362. Disease as an accident. 1918B-297. (8) Injuries Arising "Out of" and "In Course of" Employment. 206. Evidence Excluding Presumption. Evidence that a helper of the injured ser- vant and two 1 other witnesses were present at the time and place of the alleged in- juries to the servant, and that they did not see any accident happen to him, and that they did not see a cake of ice fall upon him, and of physicians who examined decedent that there were no bruises, dlseol- orations, or abrasions on the surface of his body, is sufficient to overcome the statu- tory presumption of N. Y. Workmen's Compensation Law (Laws 1914, c. 41), 21, which provides that it shall be pre- sumed, in the absence of substantial evi- dence to the contrary that the claim comes within the provisions of the law. Carroll v. Knickerbocker Ice Co. (N. Y.) 1918B- 540. 207. Injury .in Course of Employment Working in Forbidden Manner. A work- man whose duty is to walk ahead of a mov- ing car as a lookout is not acting within his employment when instead of so doing he rides on the buffer of the car, and he is not entitled to compensation for an injury received while so engaged. Herbert v. Samuel Fox & Co. (Eng.) 1916D-578. (Annotated.) 208. Injury by Third Person. Under said law, if the workman is injured on the premises from the act of a third person he has the absolute right of compensation from the fund provided; but, if so injured off the premises, he must elect whether to sue the third person or claim from the fund. Stertz v. Industrial Ins. Commis- sion (Wash.) 1918B-354. 209. The law does not, by providing com- pensation only for workmen injured in hazardous or extrahazardous employments, imply that compensation shall be made only for injuries arising out of the work. Stertz v. Industrial Ins. Commission (Wash.) 1918B-354. 210. Said law provides compensation to workmen injured on the premises by inter- vention of third persons, since it covers every fortuitous event regardless of fault. Stertz v. Industrial Ins. Commission (Wash.) 1918B-354. 211. Injury in Course of Employment Absence from Plant. Section 5 of said act providing compensation for each workman injured whether on the premises or at the plant or, he being in the course of his em- ployment, away from the plant, the words "in the course of employment" qualify only when away from the plant. Stertz v. In- dustrial Ins. Commission (Wash.) 1918B- 354. 212. Effect of Disease. Whether in such a case the accident arose "out of" the em- ployment within meaning of Laws R. I. 1912, c. 831, art. I, 1, is to be determ'ned by ascertaining whether the proximate cause of the injuries received was an ele- ment of, or arose out of, the employment, as disassociated from the fact that s'icn proximate cause was set in motion or au.ed by petitioner's diseased condition as the remote cause. Carroll v. What Cheer Sta- bles Co. (R. I.) 1918B-346. (AnmKa:ed.) 213. Injury Arising Out of Employment Watchman. A watchman employed in a planing mill, whose employees would, in- dependent of election, fall within 111. Workmen's Compensation Act (Laws 1913, p. 339, 3b), and be entitled to compen- sation, if injured while protecting the property at the plant from suspected per- sons, receives an injury arising out of an employment within such section, and i9 entitled to compensation. Chicago Dry Kiln Co. v. Industrial Board (111.) 1918B- 645. 214. Meddling. A workman was em- ployed to polish small metal arti les on a buffing machine, to which was attached an exhaust pipe containing a fan to carry away dust from the work. The exhaust system was entirely separate from the buffing machine and in charge of a special responsible man. The workman disre- garded his instructions not to meddle with the exhaust system, and took off a cover on the pipe near the fan and reached down to recover a metal piece he had accident- ally dropped into the system below the buffing wheel, and was cut on the hand by the fan. It is held that the accident 574 DIGEST. 1916C 1918B. was not incidental to the work in which he was employed, and he could not recover compensation. Eugene Dietzen Co. v. In- dustrial Board (111.) 1918B-764. (Annotated.) 215. An employee is engaged in the course of his employment when injury oc- curs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or is engaged in doing something incidental to it. Eugene Dietzen Co. v. Industrial Board (111.) 1918B-764. (Annotated.) 216. The scope of a servant's duties is determined by what he was employed to do and what he actually did with his em- ployer's knowledge and consent, and an employee injured when performing the ser- vices he was in the habit of performing is not a volunteer in performing such duties. Eugene Dietzen Co. v. Industrial Board (111.) 1918B-764. (Annotated.) 217. A master is not liable for injuries to a servant unless the servant was at the time in the performance of some duty for which he was employed; and a "volunteer" is one who introduces himself into matters which do not concern him, and does, or undertakes to do, something which he ; s not bound to do or which is not in pur- suance or protection of any interest of the master, and which is undertaken in the absence of any peril requiring him to act as in an emergency. Eugene Dietzen Co. v. Industrial Board (111.) 1918B-764. (Annotated.) 218. Where a servant voluntarily and without direction from the master, and without his acquiescence, goes into haz- ardous work outside of his contract of hir- ing, he puts himself beyond the protec- tion of the master's implied undertaking, and, if injured, must suffer the conse- quences. Eugene Dietzen Co. v. Industrial Boaid (111.) 1918B-764. (Annotated.) 219. Where a servant is employed to do a certain service and is injured in the performance of a different service volun- tarily undertaken, the master is not liable. Eugene Dietzen Co. v. Industrial Board (111.) 1918B-764. (Annotated.) 220. Under 111. Workmen's Compensation Act, 1 (Kurd's Rev. St. 1915-16, c. 48, 126), providing for compensation for ac- cidental injuries "arising out of and in the course of the employment," it is not sufficient that the injury occurs in the course of the employment, but it must also arise out of the employment; that is, it must be an accident resulting from a risk reasonably incidental to the employment. Eugene Dietzen Co. v. Industrial Board (111.) 1918B-764. (Annotated.) 221. Fall of Wall on Adjacent Premises. Where a person working in a shed is in- jured by the fall thereon of a wall on adjacent premises not belonging to the employer, the accident is one arising out of and in the course of the employment within the Workmen's Compensation Act. Thorn v. Sinclair (Eng.) 1917D-188. (Annotated.) 222. Returning from Work. Where a workman on a vessel leaving at the end of a day's work crosses a private dock which he is permitted to use for that pur- pose and in so doing falls off the dock and is drowned, the accident is one arising out of and in the course of the employment within the meaning of a workmen's com- pensation act. John Stewart & Son v. Longhurst (Eng.) 1917D-196. (Annotated.) 223. Temporary Interruption of Employ- ment. An accident to a railroad employee does not arise out of and in the course of his employment within the meaning of a workmen's compensation act where, while waiting at a station for a train to take him to his place of work, he goes out to get water for a meal, and, being free to choose his route, attempts to pass under the trucks of a standing train, by a move- ment of which he is killed. Lancashire, etc. B. Co. v. Highley (Eng.) 1917D-200. (Annotated.) 224. Injury Caused by War. An engi- neer on a steam trawler injured by the vessel striking a mine laid by the enemy, is entitled to compensation, and his right is not affected by the fact that the skip- per took the vessel into an area which he had been warned by the naval authorities to avoid. Risdale v. S. S. Kilmarnock (Eng.) 1917C-757. (Annotated.) 225. Necessity of Causal Connection. Within Cal. Workmen's Compensation Act (St. 1913, p. 2S3), 12, an injury arises out of the employment if there is a causal connection between the working conditions and the injury, but not in the absence of such connection, nor if the injury is com- mon to persons regardless of the work. Kimbol v. Industrial Accident Commission (Cal.) 1917E-312. (Annotated.) 226. Dishwasher. A restaurant dish- washer, upon whom, while at work, the ceiling falls, due to overload of stored goods on the upper floor, over which the master has no control, receives an injury "arising out of the employment." Kimbol v. Industrial Accident Commission (Cal.) 1917E-312. (Annotated.) 227. If the employment necessarily ac- centuates and increases the danger to a higher degree than that to which persons generally are subjected, then it may fairly be held that there was such special expos- ure to such danger as warrants a conclu- sion that the accident arose out of the employment, even though unexpected or unusual and in no way actually anticipated. Kimbol v. Industrial Accident Commi-sion (Cal.) 1917E-312. (Annotated) MASTER AND SERVANT. 575 228. Under the old law the employer's exemption from liability where he was not negligent existed solely because he was not negligent, and not because the injury did not arise out of the employment, and even ucder Workmen's Compensation Act the injury, to create liability, must result from a risk reasonably incident to the work. Kimbol v. Industrial Accident Commission (Gal.) 1917E-312. (Annotated.) 229. In determining whether injury arises out of the employment, it is imma- terial whether the danger was anticipated, or the employer was free from fault, or the injury resulted from the act of a third party. Kimbol v. Industrial Accident Commission (Cal.) 1917E-312. (Annotated.) 230. Street Accident. If an employee is sent into the street on his employer's bu i- ness, an accident there occurring whereby he is injured arises out of and in the couisa of his employment within the Workmen's Compensation Act, though the risk is one to which all persons using the street are equally subject. Dennis v. A. J. White & Co. (Eng.) 1917E-325. (Annotated.) Notes. What is accident arising out of and in course of employment within meaning of W'orkmen's Compensation Act. 1918B- 768. Workmen's Compensation Act as appli- cable to injury arising from war. 1917C- 760. (9) Serious and Wilful Misconduct of Employee. 231. Effect of Intoxication of Workman. Where a workman sustains an accidental injury causing his death, while actually engaged in the performance of his duties and from a risk incident to his employ- ment, his dependents are entitled to com- pensation under the Workmen's Compensa- tion Act though the proximate cause of the accident was the intoxication of the work- man. Williams v. Llandudno Coaching, etc. Co. (Eng.) 1918B-682. (Annotated.; 232. Under Md. Workmen's Compensa- tion Act, 14, providing the circumstances under wbich if injuries occur compensation shall be made, if the deceased workman died in an accident while in the employ of another, in the course of his employ- ment, and death was not due to self- inflicted injury or wilful misconduct or in- toxication, compensation must be made, and it is presumed, in the absence of sub- stantial evidence to the contrary, that death did not occur from wilful intention or solely from intoxication. American Ice Co. v. Fitzhugh (Md.) 1917D-33. 233. Under such statute, the right to compensation is cut off by intoxication only if the intoxication was the sole cause cf the injurv. American Ice Co. v. Fitz- hugh (Md.) 1917D-33. Note. Intoxication of employee as precluding recovery under Workmen's Compensation Act. 1918B-686. (10) Notice to Employer. 234. Notice of Claim Time for Giving. In proceedings for compensation under tue 1913 111. Workmen's Compensation Act, evidence of formal notice of claim and cor- respondence in regard to settlement is bald to show claim made within six months after accident as required by section 21; the statute being silent as to how such claim shall be made. Victor Chemical Works v. Industrial Board (111.) 1918B- 627. 235. Excuse for Failure to Give Actual Notice. Under Mich. Workmen's Compen- sation Act, pt. 2, 18, providing that want of written notice shall not be a bar to proceedings under the act, if it be shown that the employer had notice or knowledge of the injury, where a street employee was injured and informed the superintendent cf public works of the city, who had charge of work on the streets, the latter men- tioning the matter to the board of public works, so that all city officials had notice of the injury, the employee is not barred from obtaining compensation under the act by his failure to give written notice with- in three months. Purdy v. Sault Ste. Marie (Mich.) 1917D-881. (Annotated.) 236. Effect of Failure to Give. Evidence in an employer's action to set aside an award in favor of an injured employee is held to sustain a finding that the em- ployer was not prejudiced by the claim- ant's failure to give the statutory notice of injury. Pellett v. Industrial Commis- sion (Wis.) 1917D-884. (Annotated.) 237. Waiver. Under the express pro- vision of Wis. St. 1915, 2394 11, notice of injury is waived by the employer's pay- ment within thirty days of the injury ot" the sum of $2 for loss of time thereby caused. Pellett v. Industrial Commission (Wis.) 1917D-884. (Annotated.) 238. In an employee's action to set aside an award in favor of an injured employee, evidence that the employee the day after his injury told one of his employers how he fell, and that he was hurt, places upon the employer the burden of showing that he was, in fact, misled by the failure to receive written notice of the injury. Pel- lett v. Industrial Commission (Wis.) 1917D-884. (Annotated.) 239. Necessity. The Minn. Workmen's Compensation Law is remedial in its nature "and must be given a liberal construction to accomplish the purpose intended. R la- tor's mavor and street commissioner had 576 DIGEST. 1916C 1918B. actual knowledge of the injury to the re- spondent immediately after the occurrence thereof. The knowledge of the mayor is the knowledge of the city. Held that where the employer has actual knowledge of the occurrence of the injury, the in- jured employee is not required to give a written notice thereof. State v. District Court (Minn.) 1917D-866. (Annotated.) 240. Failure to Give Want of Prejudice Burden of Proof. Though the burden is on an employee who fails to give timely written notice of an injury as required by the Workmen's Compensation Act, to show that no prejudice resulted to the employer, if it is shown that when the employer learned of the accident he made a full inquiry and there is no evidence sug- gesting that an earlier inquiry would have been more fruitful, it is sufficient to cast on the employer the burden of showing prejudice, or to sustain a finding of want of prejudice in case of his failure so to do. Hayward v. Westleigh Colliery Co. (Eng.) 1917D-877. (Annotated.) Note. Notice of injury under Workmen's Com- pensation Act. 1917D-867. (11) Employees Within Act. 241. Who is Workman Casual Em- ployee. Under such act it is not part of claimant's prima facie case to show he was not within the class of casual employees excepted by section 5, par. 2, thereof ; such exception being matter of defense. Victor Chemical Works v. Industrial Board (111.) 1918B-627. 242. Municipal Employee. A fireman of the city of Duluth was killed while in the performance of his duty. His dependents are entitled to recover under the Minn. Workmen's Compensation Act. State v. District Court (Minn.) 1918B-635. 243. Maritime Employees as Within Act. Although Kern. Wash. Code 1915, 6604 2, includes in the Workmen's Compensation Act as extrahazardous steamboats, tugs, and ferries, such provision does not require that the law be construed to include in- juries on ships lying in navigable waters, since there are inland lakes over whioh the state has sole jurisdiction to which such provision may apply. Shaughne^sv v. Northland Steamship Co. (Wash.) 1913B- 655. (Annotated.) 244. Minor Illegally Employed. Under Wis. Workmen's Compensation Law (St. 1915, 23941 to 239431), 23947, subd. 2, declaring that the term "employee" as used in the law sha'.l include every per- son in the service of another under any contract of hire, including minors who are. legally permitted to work under the laws of the state, who for the purposes of sec- tion 2394 8, relating to election by em- ployee?, shall be considered the same and have the same power of contracting as adult employees, plaintiff, who was under sixteen years of age at the time of his employment and injury, and who had not obtained a written permit authorizing his employment under St. 1915, 1728a, subd. 1, forbidding the employment of children between fourteen and sixteen in any fac- tory, etc., unless there is first obtained from the commissioner of labor, etc., a written permit authorizing the employment of such child, is not an "employee" whose claim for injury is governed by the Work- men's Compensation Law. Stetz v. F. Mayer Boot, etc. Co. (Wis.) 1918B-675. 245. Maritime Employees. Rem. Wash. Code 1915, 66041, withdraws from pri- vate controversy all phases of workmen's compensation to the exclusion of every other remedy, proceeding, or compensation, and all civil actions and civil causes of ac- tion for personal injuries, and all jurisdic- tion of the courts of the state thereover is abolished. Section 6604 2 provides that the act shall apply to all inherently hazard- ous work within the jurisdiction of the state, and that the term "extrahaza:dous" embraces work about steamboats, tugs, and ferries. Section 6604 27 provides that if any employer shall be adjudicated to be outside the lawful scope of the act, the act shall not apply to him, or to his work- men. It is held that a stevedore injured while working in the hold of a ship in the navigable waters of Puget Sound was not within the act, and that his other rights and remedies remained unimpaired. Shaughnessy v. Northland Steamship Co. (Wash.) 1917B-655. (Annotated.) 246. Since an employer whose employees are engaged in maritime service is not re- quired to contribute to the accident fund of the state, his employees so engaged can- not lawfully claim compensation from that fund. Shaughnessy v. Northland Steam- ship Co. (Wash.) 1918B-655. (Annotated.) 247. Where a servant was injured while working in the hold of a ship lying in the navigable waters of Puget Sound, the question of his compensation is subject to controversy in admiralty in the federal courts, regardless of state law, although he was assisting only in unloading the ship, and not in its navigation. Sbaughnessv v. Northland Steamship Co. (Wash.) 191SB- 655. (Annotated.) 248. Where an employer hires the ser- vices of his team and employee to another to haul sand, the employee is still work- ing for the original employer when he is loading sand in a pit for the purpose of hauling it, and therefore is entitled to com- pensation from the employer. Dale v. Saunders (N. Y.) 191SB-703.' (Annotated.) 249. Who is "Employee" Within Act. The word "employee" as specificallv d '- fined in N. Y. Workmen's Compensation MASTER AND SERVANT. 577 Act, 3, subd. 4, means a person who is engaged in a hazardous employment in the service of an employer carrying on or con- ducting the same upon the premises or at the plant, or in the course of his employ- ment away from the plant of his employer. Dale v. Saunders (N. Y.) 1918B-703. (Annotated.) 250. To construe 111. Workmen's Com- pensation Act, 3 (Kurd's Rev. St. 1913, 128), as applying to all the business of an employer, any part of whose business was extrahazardous, would render the act unconstitutional as discriminating against him in that part of his business not extra- hazardous. Vaughan's Seed Store v. Sim- onini (111.) 1918B-713. 251. Existence of Relation of Master and Servant. Plaintiff visited an office of defendant, -seeking employment, and was directed by the person in charge thereof to go to defendant's camp near a designated town to begin work. When he reached the town, he went to defendant's logging train, and was there directed by the engi- neer to place his baggage on the pilot of the engine and get aboard. He rode on the pilot to the logging camp. Before leav- ing the immediate vicinity of the train, he was injured. He did not do any work or receive any compensation from defend- ant prior to the accident. It is held that the relation between the parties was that of passenger and carrier, and not of em- ployee and employer, within the Ore. Workmen's Compensation Act. Susznik v. Alger Logging Co. (Ore.) 1917C-700. 252. Employees of Interstate Railroad. The entire subject of the liability of in- terstate railway carriers for the death or injury of their employees while employed by them in interstate commerce is so com- pletely covered by the provisions of the Federal Employers' Liability Act of April 22, 1908 (35 Stat. at L. 65, c. 149, Fed. St. Ann. 1909 Supp. p. 584), as to prevent any award under the New York Workmen's Compensation Act (N. Y. Laws 1913, c. 816; Laws 1914, cc. 41, 316), where an employee was injured or killed without fault on the railway company's part while he was engaged in interstate commerce, although the federal act gives the right of recovery only when the injury results in whole or in part from negligence attribu- table to the carrier. New York Central B. Co. v. Winfield (U. S.) 1917D-1139. (Annotated.) 253. Municipal Corporation. The Mich. Workmen's Comnensation Act (Pub. Acts Ex. Sess. 1912, No. 10) is entitled "An act to promote the welfare of the people of this state, relating to the liability of em- ployers for injuries or death sustained by their employees, providing compensation for accidental injury to or death of em- ployees and methods for the payment of . . . same, establishing an industrial acci- 37 dent board defining its powers providing for a review of its awards, making an ap- propriation to carry out the provisions ot' this act, and restricting the right to compensation or damages in such cases to buch as are provided (for) by this act," and provides, in part 6, 5, that it ex- pressly repeals "all acts and parts of acts inconsistent with this act," and "replaced by this act." It is held that the charter provisions of cities with respect to claims which may be made under the compensa- tion act are superseded by its provisions, the title of the act being broad enough to include municipal corporations that are employers. Purdy v. Sault Ste. Marie (Mich.) 1917D-881. 254. Who is Workman Casual Labor for Municipality. An employee of the city of Northfield was injured while loading gravel used by the city for improving and re- pairing its streets. Though the employ- ment may have been casual, it was in the usual course of the business of the city, and the Minn. Workmen's Compensation Law applies. State v. District Court (Minn.) 1917D-866. 255. Truck Driver. Md. Acts 1914, e. 800, 32, enumerating the extrahazardous employments, for death or injury in which the act provides compensation, includes that of driving a horse-drawn truck, though it does not expressly enumerate it, since subsection 43 makes the act appli- cable to all extrahazardous employments not specifically enumerated, and the words "or other power," as applied to propulsion of vehicles in subsection 41, includes horse power. American Ice Co. v. Fitzhugh (Md.) 1917D-33. (Annotated.) 256. Farmer Erecting Building. The 111. Workmen's Compensation Act (Hurd's Rev. St. 1913, c. 48, 126-152h); Laws 1913, p. 335, by Section 1, provides that any employer may elect to provide and pay compensation for accidental injuries and thereby relieve himself from all fur- ther liability. Section 3, par. "b," declares that the section shall apply only to an em- ployer engaged in the occupations, enter- prises, or businesses of building, maintain- ing, repairing, or demolishing any struc- ture, of construction, of excavation or elec- trical work, of carriage by land or water and loading and unloading in connection therewith, of warehousing, of mining, of enterprises in which explosives are manu- factured or handled, of enterprises wherein n;olten metal or explosive or injurious gases, etc., are manufactured or used, and of enterprises in which statutory or mu- nicipal ordinance regulations shall be im- posed for the guarding of machinery, eash of which occupations, enterprises, or busi- nesses is declared to be extrahazardous. Section 5 defines an employee as every per- son in the service of another under any contract of hire, but not including any person whose employment is but casual, or 578 DIGEST. 1916C 1918B. is not engaged in the usual course of the trade, business, profession, or occupation of his employer. A farmer engaged a car- penter to build a corncrib, and the car- penter was injured by a metal splinter which flew off of his hammer. The car- penter was engaged for no particular time, but it appeared that he was to continue work until the building was fully com- pleted. It is held that as the farmer was not engaged in the business or occupation of building, and as the construction of the corncrib could not be classed as an enter- prise which is an undertaking of hazard, nor could it be considered as an extra- hazardous business, the statute is not ap- plicable; the farmer not having elected to come within its provisions, which did not include the occupation of farming. Up- hoff v. Industrial Board (111.) 1917D-1. (Annotated.) 257. Hazardous Employments Elevator Operator in Store. The business of selling glassware is not "hazardous," and an em- ployee injured operating an elevator in such business cannot recover under the N. Y. Workmen's Compensation Law. Wilson v. Dorflinger (N. Y.) 1917D-38. (Annotated.) 258. Janitor in Office Building. A jan- itor in an office building was injured while scrubbing down the walls and floors of the elevator shaft beneath the cage. The elevator was operated by electricity. The Workmen's Compensation Act (3 Hem. & Bal. Wash. Code, 6604 1 et seq.) pro- vides, in section 2, that the act shall apply to all inherently hazardous employments, including factories, mills, and workshops where machinery is used. Section 3 de- fines a workshop as a room or place where- in power-driven machinery is employed and manual labor is exercised by way of trade for gain or otherwise. It is held that though the elevator was operated by electricity, the shaft could not be consid- ered a workshop, and the janitor's rights were not governed by the statute. Rem- snider v. Union Savings, etc. Co. (Wash.) 1917D-40. (Annotated.) 259. Where neither the work of a janitor in an office building nor employment about an elevator shaft had been classified as extrahazardous by the Industrial Insurance Department as authorized by Wash. Wo:k- men's Compensation Act, 2, an injury to n. person engaged in such employment is not governed by the statute. Remsnider v. Union Savings, etc. Co. (Wash.) 1917D- 40. (Annotated.) 260. Employments Included Policeman. The Kan. Workmen's Compensation Act (Laws 1911. c. 218, as amended by Laws 1913, c. 216) does not apply to the case of a police officer of a city who is killed in the d'scharsre of his duties. Griswold v. Wichita (Kan.) 1917D-31. (Annotated.) 261. Policeman as "Workman." A police officer of a city of the first class is not a "workman" as defined by the compensation act. Griswold v. Wichita (Kan.) 1917D- 31. 262. Maritime Employees. The applica- tion to an injury sustained by a longshore- man while he was unloading in a New York port an ocean-going steamship owned by a nonresident corporation, and plying between ports of different states, of the provisions of the New York Workmen's Compensation Act (N. Y. Laws 1913, c. 816; Laws 1914, cc. 41, 316), which, in lieu of the common-law liability enforceable by suit in cases of negligence, imposes a liability upon employers, enforceable with- out judicial action, to make compensation for disabling or fatal accidental injuries to employees, without regard to fault as a cause, graduating compensation for dis- abilities according to a prescribed scale based upon loss of earning power, and measuring death benefits according to the dependency of the surviving wife, hus- band, or infant children, renders the stat- ute, to that extent, invalid as conflicting^ with U. S. Const, art. 3, 2 (9 Fed. St. Ann. 74), extending the judicial power of the United States to all cases of admiralty and maritime jurisdiction, U. S. Const, art. 3, 8 (8 Fed. St. Ann. 674), giving Con- gress power to make all laws necessary and proper to carry into execution the powers vested in the federal government, and U. S. Judicial Code, 24, 256 (4 Fed. St. Ann. (2d ed.) 838; 5 Id. 921), giving federal district courts exclusive judicial cognizance of all civil causes of admiralty and maritime jurisdiction, saving to suit- ors in all cases the right to a common-law remedy where the common law is compe- tent to give it, being also inconsistent with the policy of Congress to encourage investments in ships, manifested by U. S. Rev. Stat. 4283-4285, 4 Fed. St. Ann. 839, Act of June 26, 1884 (23 Stat. at L. 57, c. 121, 4 Fed. St. Ann. 852), 18, which declare a limitation upon the liability of their owners. Southern Pacific Co. v. Jen- sen (U. S.) 1917E-900. (Annotated.) 263. Who is Employer Workman Em- ployed by Several Persons. Where a night watchman is employed by six different firms each acting independently of the others in making its agreement with the watchman, they do not compose a volun- tary association employing him within Cal. Workmen's Compensation Act, 13. West- ern Metal Supply Co. v. Pillsbury (Cal.) 1917E-390. 264. Under the Cal. Workmen's Compn- sation Act of 1913, section 13 of which defines an "employer" as every person, firm, voluntary association, and private corporation who has any person in service under any appointment or contract of hire, and section 14 of which defines "employee" MASTER AND SERVANT. 579 as every person in the service of an em- ployer under any appointment or contract of hire, even if the relation is the same as that of master and servant under Civ. Code, 2009, defining a "servant" as one who is employed to render personal service to his employer otherwise than in the pur- suing of an independent calling and who in such service remains entirely under the control and direction of the latter, a night watchman, who was employed by six dif- ferent firms each acting independently of the other, is an employee of the one on whose premises he was killed while in the discharge of his duties. Western Metal Supply Co. v. Pillsbury (Cal.) 1917E-390. Notes. Occupations or employments within pur- view of Workmen's Compensation Acts. 1917D-4. Who is "workman" within meaning of Workmen's Compensation Act. 1918B 704. Eailroad employees as within purview of Workmen's Compensation Act. 1918B- 664. Person employed in violation of law as entitled to compensation under Workmen's Compensation Act. 1918B-679. (12) Dependents. 265. Beneficiaries Nonresident Allen. The 111. Workmen's Compensation Act of 1913, entitled "An act to promote the gen- eral welfare of the people of this state by providing compensation" for workmen, and by section 5 defining the term "employee," as used in the act, to include aliens, ap- plies to nonresident alien dependents claiming as beneficiaries thereunder; for the general welfare of the people of the state might well be promoted by providing compensation for accidental injuries or death suffered by aliens, as well as citi- zens, in the course of employment within the state, since many alien dependents re- side in the state, and the people of the state would be interested in not having aliens, as well as citizens, become charges upon the community by reason of injuries suffered in employment. Victor Chemical Works v. Industrial Board (111.) 191SB- 627. (Annotated.) 266. Who is Dependent. Mere ability to earn a livelihood will not prevent one from being considered a "dependent" under the Workmen's Compensation Act, even though the person furnishing the support possesses less income than the alleged de- pendent; the test being whether the al- leged dependent relied upon contributions of the employee, wholly or partially, for living expenses necessary and proper to the class and position in life of the claim- ant. Blanton v. Wheeler, etc. Co. (Conn.) 1918B-747. (Annotated.) 267. Under the Conn. Workmen's Com- pensation Act, a dependent cannot be said to be one who has sufficient means at hand for supplying present necessities according to the class and position in life of the al- leged dependent. Blanton v. Wheeler, etc. Co. (Conn.) 1918B-747. (Annotated.) 268. A married daughter living with her husband and supporting herself with his aid is not "dependent" upon her father, where she received no contributions from him for six months prior to his death. Blanton v. Wheeler, etc. Co. (Conn.) 1918B-747. (Annotated.) 269. Dependency is to be determined in accordance with the fact as the fact may be at the time of the injury. Blanton v. Wheeler, etc. Co. (Conn.) 1918B-747. (Annotated.) Notes. Who is "dependent" within Workmen's Compensation Act. 1918B-749. Residence of beneficiary as affecting right to compensation under Workmen's Compensation Act. 1918B-635. (13)' Compensation. 270. Although the employer is required to report whether injury arose out of and in the course of employment of the in- jured person, that does not restrict compen- sation to injuries so arising. Stertz v. In- dustrial Ins. Commission (Wash.) 1918B- 354. 271. Average Weekly Earnings Compu- tation. That a workman had been in the service of an employer but seven weeks when he was injured and that the service in question was in the winter when shorter . hours were worked make it proper to com- pute his "average weekly earnings" on the average earnings of others in the same employment and not on his actual earn ngs in that employment. Cox v. Trollope (Eng.) 1918B-637. (Annotated.) 272. Effect of Receipt of Other Benefits. The fact that deceased was a member of the Duluth Firemen's Relief Association and that his dependents draw benefits therefrom, does not bar recovery of com- pensation nor reduce the amount thereof. State v. District Court (Minn.) 1918B- 635. (Annotated.) 273. Average Weekly Wages How De- termined. Compensation provided for by Mich. Employers' Liability and Workmen's Compensation Act (Pub. Acts, Extra Ses?. 1912, No. 10), being based on the average weekly wages of the injured or deceased employee, 50 per cent of which is to b3 paid weekly to him or his dependents for various periods of time, according to the nature of the injury or the length of the disability, the average weekly wages ot the employee must always be determined by dividing his average earnings by 52. 580 DIGEST. 1916C 1918B. Andrejwski v. Wolverine Coal Co. (Mich.) 1916D-724. (Annotated.) 274. Mich. Employers' Liability and Workmen's Compensation Act (Pub. Acts, Extra Sess. 1912 No. 10), 11, pt. 2, pro- vides (1) that the term "average weekly wages," as used in the act, means one fifty-second part of the average annual earnings of the employee; and (2) if he has not worked in the employment in which he was working at the time of the accident during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of 300 times the average daily wage or salary which he has earned in such employment during the days when so employed ; and (3) if he has not worked in such employment during substantially the whole of such im- mediately preceding year, his average earnings shall consist of 300 times the average daily wage or salary which an employee of the same class, working sub- stantially the whole of such immediately preceding year in the same or similar em- ployment in the same or neighboring place, would have earned during the days when so employed; and (4) in eases where the foregoing methods of arriving at the aver- age annual earnings cannot reasonably and fairly be applied, such earnings shall be such sum as, having regard to the previous earnings of the injured employee, and of others of the same or most similar class, etc., shall reasonably represent the annual earning capacity of the injured employee at the time of the accident. It is held, that the term "average annual earnings" means the employee's average annual earn- ings in the employment in which he was engaged at the time of the injury, and that the first three classes applied to em- ployments wherein operations are carried en for substantially the entire year, and hence where the employment is of such a character that operations are conducted during only a portion of the year, and the employee is compelled to seek other em- ployment during the balance, compensation for his death must be determined under the fourth subdivision. Andrejwski v. Wolverine Coal Co. (Mich.) 1916D-724. (Annotated.) 275. Mich. Employers' Liability and Workmen's Compensation Act (Pub. Acts, Extra Sess. 1912, No. 10), 11, pt. 2, pro- vides (4) that, where the average annual earnings of an employee cannot be arrived at by the methods provided in the three preceding paragraphs, such annual earn- ings shall be taken as such sum as, having regard to the previous earnings of the injured employee, and all other employees ot the same or similar class, working in the same or similar employment, in the same or neighboring locality, shall reason- ably represent the annual earning capacity of the injured employee at the time of the accident, in the employment in which he was working at the time. Decedent, when injured, was working as a coal miner. During the years 1909 to 1912 the average number of days the mines were operated in the district was 211, and from 1904 to 1911 the wages paid to decedent amounted to $5,175.21. It is held, that the average annual earnings of deceased, taken as a basis for his compensation under (4), was $575.02, though, during the time he was not engaged in mining, he was otherwise employed. Andrejwski v. Wolverine Coal Co. (Mich.) 1916D-724. (Annotated.) 276. "Average Weekly Earnings" Cas- ual Laborer. Where an injured employer has been for over three years employed as a casual laborer by the person in whose service he was injured, but has during that time also worked casually for others, his "average weekly earnings" are to be cal- culated on the average of the earnings of similar laborers in the employment in which he was injured, and not by aggre- gating his earnings in all employments. Cue v. Port of London Authority (Eng.) 1916C-887. (Annotated.) 277. Average Weekly Earnings Tips of Railroad Porter. In computing the aver- age weekly earnings of a railroad porter for the purpose of awarding compensation under the Workmen's Compensation Act the tips received by him as an incident of his service are to be included as a part of his earnings. Great Western R. Co. v. Helps (Eng.) 1918B-1120. (Annotated.) 278. Termination of Allowance Mar- riage of Beneficiary. Under Md. Work- men's Compensation Law (Acts 1914, c. 800, 35, fixing compensation for partly dependent persons, and providing for de- termination of questions of dependency according to the facts existing at the time of the injury resulting in death to the em- ployee, section 42, providing that on mar- riage of a dependent widow her compen- sation shall cease, and section 53, giving the commission power to change or modify former findings or orders, the subsequent marriage of a partly dependent sister of a deceased employee does not determine her right to compensation awarded her by the commission and authorize the commis- sion to abate it. Adleman v. Ocean Acci- dent, etc. Corp. (Md.) 1918B-730. (Annotated.) 279. Eights of Beneficiary Vesting of Award. An award of compensation from the state insurance fund, under section 35 or the Workmen's Compensation Act (103 O. L. 72). to a wholly dependent person vests in the dependent when the award is made; so that, in case of the death of such dependent, his or her personal repre- sentative is entitled to the balance, if any, remaining unpaid. State v. Industrial Commission (Ohio) 1917D-1162. (Annotated.) 2,80. Commutation of Award. The word "commute," as employed in Ohio Work- MASTER AND SERVANT. 581 men's Compensation Act (103 O. L. 88), 40, providing that the board of awards, under special circumstances, may commute periodical payments to one or more lump payments, means that the board may pay the defendant something less than he other- wise would receive. State v. Industrial Commission (Ohio) 1917D-1162. 281. Total Disability Effect of Previous Partial Disability. Mich. Pub. Acts, Ex. Sess. 1912, No. 10, pt. 2, 9, provides that, while the incapacity for work resulting from an injury is total, the employer shall pay a weekly compensation equal to one- half of the employee's wages, but not to exceed $10. Section 10 declares that, while the incapacity is partial, the injured employee shall be entitled to compensation equal to one-half the difference between his average weekly wages before the in- jury and those he is able to earn there- after, that for the loss of an eye he shall recover as compensation fifty per cent of the average weekly wages during one hun- dred weeks, and that the loss of both eyes or both legs shall constitute a total and permanent disability. The claimant had in a previous accident lost one eye. There- after he lost his remaining eye. It is held that the injury could not be considered as a total disability, and he was entitled only to one-half of his weekly wages for one hundred weeks. Weaver v. Maxwell Motor Co. (Mich.) 1917E-238. (Annotated.) 282. Average Annual Earnings Work- men Employed by Several Persons. Under the Cal. Workmen's Compensation Act of 1913, which provides as compensation for the death of a workman a percentage of the average annual earnings of the de- ceased employee, and section 17 of which prescribes the rules for computing earn- ings of employees, and in several of its subsections contemplates the payment of awards not based on earnings received from the employer in whose service the employee was injured, the earnings of a night watchman independently employed by six different firms is the amount he re- ceived from all of the firms, not the amount he received from the employer in whose service he was killed. Western Metal Supply Co. v. Pillsbury (Cal.) 1917E-390. 283. Right to Compensation Injury not Impairing Earning Capacity. Under R. I. Workmen's Compensation Act, (art. 2, 11) an employee is entitled to compen- sation only when actually incapacitated, and a permanent physical injury does not of itself warrant compensation. Weber v. American Silk Spinning Company (R. I.) 1917E-153. (Annotated.) Notes. Total disability under Workmen's Com- pensation Act. 1917E-240. Lump sum award under Workmen's Com- pensation Act. 1918B-694. Bight to compensation under Workmen's Compensation Act as dependent on loss of earning capacity. 1917E-156. Award or right to compensation under Workmen's Compensation Act as vesting in beneficiary. 1917D-1169. Receipt of insurance or other benefit as affecting right to compensation under Workmen's Compensation Act. 1918B-635. (14) Proceedings Under Act. 284. Rules of Evidence. Under N. Y. Workmen's Compensation Law, 68, pro- viding that technical rules of evidence or procedure are not required, but the commis- sion in making an inquiry, or conducting a hearing, shall not be bound by common law or statutory rules of evidence, hearsay testimony is admissible, and the award of the commission cannot be overturned on account of any alleged error in receiving evidence. Carroll v. Knickerbocker Ice Co. (N. Y.) 1918B-540. 285. Such statute does not, however, affect the probative force to be given such testimony, but, as further therein provided, the commission must ascertain the substan- tial rights of the parties, and to sustain an award there must be legally sufficient evidence. Carroll v. Knickerbocker Ice Co. (N. Y.) 1918B-540. 286. Declaration of Employee as to Cause of Injury. Hearsay testimony of state- ments of deceased servant while in nervous condition suffering from delirium tremens in hospital that he was injured when a heavy cake of ice fell upon him is insuffi- cient to overcome positive evidence of wit- nesses that no ice fell upon him, being in fact no evidence. Carroll v. Knicker- bocker Ice Co. (N. Y.) 1918B-540. (Annotated.) 287. Dependency Sufficiency of Evi- dence. In proceedings under the 111. 1913 Workmen's Compensation Act evidence is held to support a finding of the board that deceased left parents, to whose support he had within five years contributed. Vic- tor Chemical Works v. Industrial Board (111.) 1918B-627. 288. Applicability of Rules by Legal Pro- cedure. A proceeding for compensation under the 111. Workmen's Compensation Act of 1913 is not a proceeding at law, and is not altogether governed by the rules of legal proceedings. Victor Chemical Works v. Industrial Board (111.) 1918B-627. 289. Evidence Admissible Verdict of Coroner's Jury. In such proceedings "the verdict of the coroner's jury impaneled to inquire into the death is proper evidence, since such proceedings take the place of the ordinary action on the case for negli- gence, in which such evidence was proper. Victor Chemical Works v. Industrial Board (111.) 1918B-627. 582 290. Medical Referee Duties. ical referee sitting as an assessor with the judge hearing a claim under the Work- men's Compensation Act should not be per- mitted to cross-examine witnesses or other- wise take part in the conduct of the hearing. Earwicker v. London Graving Dock Co. (Eng.) 1918B-665. 291. Medical Examination of Workman. An application by the employer for a medi- cal examination of an injured workman claiming the benefit of the Workmen's Compensation Act is not a nullity because it was not made until the hearing, and while it may be that the trial judge may in his discretion deny an application made at that time, he must rule on it. Accord- ingly where no note of the proceeding was taken, and no ruling on the application ap- pears, a new trial must be granted. Ear- wicker v. London Graving Dock Co. (Eng.) 1918B-665. (Annotated.) 292. Absence of Dependents Award to State. The failure of the court, after find- ing claimant was not a dependent of a deceased employee, to award the sum of $750 to the state treasurer can be ob- jected to only by the state, and not by the claimant. Blanton v. Wheeler, etc. Co. (Conn.) 1918B-747. 293. Stipulation as to Cause of Injury. Where a molder was injured by a splash of molten iron into his right eye, and after ample opportunity for investigation an agreement as to compensation was en- tered into between him and a casualty com- pany insuring the employer's liability un- der the Mich. Workmen's Compensation Act (Pub. Acts 1912 [Ex. Sess.] No. 10), in which it was recited that the nature and cause of injury and ground of claim was molten iron splashed into right eye, causing a bad burn in the corner of the eye, such agreement, when approved by the industrial accident board, and an order for compensation entered in accordance therewith, were conclusive as to the cause of the injury, so that in a subsequent pro- ceeding to terminate compensation, it could not be successfully claimed that the defect in the eye at the time of the order was the result of senile cataract. Estate of Beckwith v. Spooner (Mich.) 1916E- 886. (Annotated.) 294. Collusiveness of Findings. Find- ings of the industrial accident board that an injured employee's condition was the result of injury and not of senile cataract could not be set aside on petition for re- view, unless the court could say from the whole record as a conclusion of law that the board must have found from the evi- dence as a conclusion of fact that the cataract in the eye was senile and not traumatic. Estate of Beckwith v. Spooner (Mich.) 1916E-886. (Annotated.) 295. Where compensation was granted to an injured employee under an agreement DIGEST. 1916C 1918B. A med- providing that he had sustained an injury to the eye as the result of traumatism, evidence on a petition to terminate the ccmpensation held not to require the in- dustrial accident board as a matter of law to find that the condition was not trau- matic, but senile. Estate of Beckwith v. Spooner (Mich.) 1916E-886. (Annotated.) 296. Applicability of Rules of Judicial Procedure. While the Mich. Workmen's Compensation Act (Pub. Acts [Ex. Sess.] 1912, No 10) contemplates the prompt adjustment of controversies by summary proceedings under a simplified procedure, unhampered by the technical forms and in- tervening steps of regular litigation, it in- dicates clearly an intent that the funda- mental principles of a judicial inquiry shall be observed. Eeck v. Whittlesberger (Mich.) 1916C-771. 297. Admissibility of Evidence Declara- tions of Injured Workman as to Cause of Injury. In a proceeding under the Mich. Workmen's Compensation Act (Pub. Acts [Ex. Sess.] 1912, No. 10), hearsay evidence should not be admitted and made the basis of findings of fact and accordingly a self- serving declaration by an injured work- man as to the cause of his injury is not admissible. Eeck v. Whittlesberger" (Mich.) 1916C-771. (Annotated.) 298. Report by Employer to Commission Effect as Evidence. In a proceeding un- der the Mich. Workmen's Compensation Act (Pub. Acts [Ex. Sess.] 19.12, No. 10), a report to the industrial accident board by the employer, made before the death of the employee, and at a time when he had ample opportunity to investigate, and all sources of information were fresh and available, stating that the employee was injured by running a nail into his hand while throwing wood into a furnace, and a second report after the death stating that he was injured by scratching his hand on a nail, constitutes prima facie evidence that the accident and injury oc- curred as reported, and supports a finding of the board that such injury arose out of, and in the course of, the employment. Keck v. Whittlesberger (Mich.) 1916C- 771. 299. Finding as to Dependency. A find- ing that a claimant for compensation un- der the Conn. Workmen's Compensation Act (Pub. Acts 1913, c. 138) relied upon sums sent her by a deceased employee "for expenses" is not equivalent to a find- ing that she relied on them for living ex- penses necessary and proper for her class and station in life. Blanton v. Wheeler, etc. Co. (Conn.) 1918B-747. 300. Motion to Recommit. Upon appeal from award of compensation commissioner, a motion that the finding and award be recommitted with direction should be in writing, where it appears that neither side will produce evidence. Blanton v. Wheeler, etc. Co. (Conn.) 1918B-747. MASTER AND SERVANT. 583 301. Notice of Hearing Form and Requisites. Under Wis. St. 1915, 2394 16, providing that the industrial commis- sion shall cause notice of the hearing em- bracing a general statement of the claim to be given to each party interested, either a copy of the application for compensation should be attached to the notice, or else it should contain a statement of the time, place, and general nature of the injury claimed to have been received. Pellett v. Industrial Commission (Wis.) 1917D-884. 302. Reopening of Hearing Procedure Evidence Previously Taken. Where a pro- ceeding for compensation under the Wis. Workmen's Compensation Act (St. 1915, 2394 1 et seq.) is opened to allow the employer to cross-examine the claimant and to introduce evidence in chief, no er- ror is committed by not compelling the claimant to put in his evidence anew, as the commission may let such evidence stand and supplement it by that taken on the second hearing, having in such matter of procedure a wide field of discretion. Pellett v. Industrial Commission (Wis.) 1917D-884. 303. Vacation of Award What Consti- tutes Fraud False Testimony by Claim- ant. Under Wis. St. 1915, 239419, pro- viding that an award of the industrial commission may be set aside on the ground that it was procured by fraud, construed with reference to the report of and the discussions before the committee drafting the Wtorkmen's Compensation Act, false testimony on the part of the claimant and his concealment of facts material to the issue before the commission is no ground for setting aside an award. Pellett v. In- dustrial Commission (Wis.) 1917D-8S4. 304. Construction of Finding. In a pro- ceeding by an employee to obtain com- pensation for personal injuries, the court made a finding that as a result the em- ployee was totally incapacitated for his work up to April 1st, and that on and after that date he had not been and was not, either totally or partially, incapaci- tated for work, but from that date and at present had been able to perform his work and receive from his employer the same amount of wages as before the injury. It is held that the finding should be con- strued, not that the employee was capable of performing all sorts of work, but that he was not incapacitated from resuming his former duties. Weber v. American Silk Spinning Company (R. I.) 1917E-153. 305. Duration of Incapacity Finding Sustained. In a proceeding by an em- ployee to recover compensation for per- sonal injury, the evidence is held to war- rant a finding that he had not been in- capacitated after the time fixed by the court's finding. Weber v. American Silk Spinning Company (R. I.) 1917E-153. Notes. Increase, decrease, termination or sus- pension of allowance under Workmen's Compensation Act. 1916E-889. Admissibility in proceeding under Work- men's Compensation Act of statement by injured employee respecting cause of in- jury. 1916C-775. Increase, decrease, termination or sus- pension of allowance under Workmen's Compensation Act. 1918B-733. Provisions in Workmen's Compensation Acts respecting medical examination of workmen. 1918B-670. (15) Effect of Settlement. 306.. Effect of Settlement Rights of Workman Against Third Person, A settle- ment between plaintiff and his employer under the Workmen's Compensation Act, by which the employer was released from all claims on account of the injury to plaintiff, did not operate as a settlement or release of any claim for malpractice which plaintiff might have against the physicians who treated him. Viita v. Fleming (Minn.) 1917E-678. (Annotated.) (16) Increase of Award. 307. Allowance for Injury not Originally Claimed for. Under Cal. Workmen's Com- pensation Act (St. 1913, p. 293), 25 (d), providing that the industrial accident commission shall have power to "rescind, alter or amend" any order or award, in view of sections 25 (e), 81, 82, the com- mission, having awarded claimant com- pensation for an injured leg, cannot more than six months thereafter award such claimant compensation for injuries to a lung suffered in the same accident, which injuries had not been previously reported, since the six months' limitation prescribed by section 16 applies, except where indem- nity has been paid or agreed upon as pro- vided by section 16 (c). Ehrhart v. In- dustrial Accident Commission (Cal.) 1917E-465. (Annotated.) 308. Development of Injury. If a ser- vant is denied compensation for loss of use of an eye on the ground that he can still see and his vision subsequently be- comes further impaired, the industrial com- mission has power to reconsider its award. Boscarino v. Carfogno & Dragonette (N. Y.) 1918A-530. (17) Review. 309. Change in Law Effect on Pending Proceedings, That after appeal is taken from the award of the workmen's compen- sation commission such commission is su- perseded by the industrial commission does not affect any of the questions involved. Carroll v. Knickerbocker Ice Co. (N. Y.) 1918B-540. 584 DIGEST. 1916C 1918B. 310. Lump Sum Award. An appeal from a judgment rendered under the Workmen's Compensation Act, awarding compensation in a lump sum to a dependent upon a workman whose death resulted from per- sonal injuries sustained in a hazardous em- ployment, dismissed for want of merit. McCracken v. Missouri Valley Bridge & Iron Company (Kan.) 1918B-689. (Annotated.) 311. Findings Conclusive. Where, in an action by the driver for such injuries, the evidence showed that the fall from the hack was partly the result of a positive pitching of the driver from his seat by the motion of the vehicle, and not the mere inert collapse of an unconscious man, the finding of the court below that peti- tioner "received a personal injury by an accident arising out of ... said employ- ment," will not be disturbed, since the act provides that findings of fact in the ab- sence of fraud shall be conclusive. Car- roll v. mat Cheer Stables Co. (R. I.) 1918B-346. (Annotated.) 312. Review of Facts. On appeal from a judgment dismissing the petition for compensation under the R. I. Workmen's Compensation Act (Pub. Laws 1911-12, c. 831), where the trial justice made no findings of fact upon the evidence ad- duced, the supreme court has jurisdiction only to determine the proposition of law on which dismissal was had, and cannot determine the facts. Grinnell v. Wilkin- son (R. I.) 1918B-618. 313. Certtorari to Eevlew. Whether legal evidence is offered to support the decision of the industrial board as shown by the record of proceedings, where such evidence is agreed upon or reported by stenographer, is a question of law review- able by certiorari. Victor Chemical Works v. Industrial Board (111.) 1918B-627. 314. Under this section the circuit court by certiorari may review the decision of the industrial board for errors of law. Victor Chemical Works v. Industrial Board (111.) 1918B-627. 315. Objection First Made on Appeal. Such defense cannot be considered for the first time on appeal. Victor Chemical Wiorks v. Industrial Board (HI.) 1918B- 627. 316. Review of Findings of Industrial Board. The decision of the industrial board that an employee was injured by accident arising out of the employment, if there is competent or legal evidence to support it, cannot be reviewed, as it is not the court's province to pass upon weight or sufficiency of evidence. Chicago Drv Kiln Co. v. industrial Board (111.) 1918B- 645. (Annotated.) 317. If it is clear upon the facts found by the industrial board that as a legal conclusion an injury was not accidental or that it did not arise in the course of the employment, a contrary conclusion awarding compensation will not be allowed to stand. Eugene Dietzen Co. y. Indus- trial Board (111.) 1918B-764. 318. While the industrial board's findings of fact are conclusive on the supreme court, the legal conclusions of that board, based on their findings, are subject to that court's supervision. Eugene Dietzen Co. v. Industrial Board (111.) 1918B-764. 319. On petition to review an order of the industrial accident board denying an application to stop compensation, the es- sentials leading up to the award or its equivalent are to be taken as res judicata, except the physical condition of the in- jured employee, which remains open to in- quiry. Estate of Beckwith v. Spooner (Mich.) 1916E-886. (Annotated.) 320. Under the Mich. Workmen's Com- pensation Act (Pub. Acts [Ex. Sess.] 1912, No. 10) p. 3, 12, providing that the find : ings of fact by the industrial accident board acting within its powers, shall, in the absence of fraud, be conclusive, but that the supreme court may review ques- tions of law, the facts found to be con- clusive must be based on competent legal evidence, and not on bare supposition, guess, or conjecture, nor on rumor or in- competent evidence; as to so determine the rights of the parties would be to act outside the authority conferred by the statute, and without jurisdiction. Reck v. Whittlesberger (Mich.) 1916C-771. 321. As provided by N. Y. Workmen's Compensation Act, 20, the decision of the workmen's compensation commission is final as to questions of fact, and the court, on appeal from its ruling^ is limited to review of questions of law. Dale v. Saun- ders (N. Y.) 1918B-703. 322. Hearing of Appeal Right to Open and Close. Under Md. Workmen's Com- pensation Act (Acts 1914, c. 800), 55, giving any person aggrieved by a ruling cf the industrial accident commission the right to appeal, such appealing party, hav- ing the -burden of overcoming the deci-ion which is prima facie correct, has the right to open and close the evidence and the arguments. American Ice Co. v. Fitzhugh (Md.) 1917D-33. 323. Proceedings to Secure Compensa- tion Record on Appeal. In a proceeding for workmen's compensation, the findings of the commissioner must contain all facts essential to the case, and on appeal be- come a part of the record, so that it is not essential that his findings be specifi- cally made a part of the record. Douth- wright v. Champlin (Conn.) 1917E-512. 324. Collusiveness of Decision Want of Jurisdiction. Decision of the industrial toard under the 111. Workmen's Compensa- tion Act is conclusive only when it is MASTER AND SERVANT. 585 within its jurisdiction. Uphoff v. Indus- trial Board (111.) 1917D-1. 325. Review of Award. In a proceeding under the Workmen's Compensation . Act (Laws R. I. 1911-1912, c. 831), a finding of fact by the superior court, based on evidence, is conclusive on appeal. Weber v. American Silk Spinning Company (R. I.) 1917E-153. 326. Who Entitled to Attack Statute- Person not Aggrieved. On an appeal, con- testing the constitutionality of the Work- men's Compensation Act by an employer who has rejected it, he cannot urge a grievance of the employee, since it must appear that contestant was deprived of a constitutional right. Hunter v. Colfax Consolidated Coal Co. (Iowa) 1917E-803. 327. Review of Facts on Appeal. Under the Workmen's Compensation Act of 1913, 19, par. "f," providing that the decision of the industrial board, acting within its powers, in the absence of fraud, is conclu- sive, but that the supreme court shall have power to review questions of law involved therein, the decision of the board upon questions of fact is conclusive, if founded upon competent or legal evidence. Victor Chemical Works v. Industrial Board (111.) 1918B-627. Note. Eeview of facts on appeal under Work- men's Compensation Act. 1918B-647. L Actions for Injuries. (1) Pleading. 328. Injury to Minor Illegally Employed Complaint Sufficient. A complaint for damages for the death of a boy which alleged that deceased was under 14 years of age, that he was struck by one of de- fendant's tram cars while he was in the discharge of his duties, and that his death was proximately caused by reason of de- fendant's employing him in violation of Code 1907, 1035, which prohibits the em- ployment of boys under 14 years of age in mines, states a cause of action under that section of the Code. Cole v. Slogs-Sheffield Steel, etc. Co. (Ala.) 1916E-99. 329. Contributory Negligence of Infant Plea Insufficient. In an action for dam- ages for the death of a boy under the age of 14 years, a plea which relies upon the boy's contributory negligence in riding upon a tram car in violation of his em- ployer's rules, but which does not aver that he had sufficient capacity to appreciate the danger or risk, is defective. Cole v. Sloss- Sheffield Steel, etc. Co. (Ala.) 1916E-99. 330. Liability for Injury to Domestic Servant. Where the complaint, in an ac- tion for injuries to a cook from the ex- plosion of a gas stove, alleged that the explosion was due to defects in the stove, evidence that the burners had been lighted at least 20 minutes before the explosion did not authorize a recovery by plaintiff; it being incumbent on plaintiff, not only to establish the happening of the accident, but also that it happened on account of the negligence alleged in the complaint. Holmberg v. Jacobs (Ore.) 1917D-496. (Annotated.) 330%. Sufficiency of Averment of Neg- ligence. In an action whereby it is sought to recover damages for personal injuries alleged to have been occasioned by the negligence if a railroad company or corporation, a count in the declaration alleging "that the said track and rails were wet, and the said locomotive engine and tender leaked in such a way the water therefrom fell upon the rails of said track, and the sand box on said locomotive en- gine was in such a defective condition that sand would not fall therefrom upon the rails of said track by reason whereof the said locomotive engine upon which plaintiff was riding could not be stopped and collided with the said derailed loco- motive engine," is not demurrable for fail- ing to allege the acts or omissions of the defendant which caused the plaintiff's in- juries. Ingram-Dekle Lumber Co. v. Gei- ger (Fla.) 1918A-971. (2) Presumptions and Burden of Proof. 331. Injury to Railroad Employee Pre- sumption of Negligence. The statutory presumption of negligence on the part of a railroad company, under Kirby's Ark. Dig. 6773, applies to all employees of railroad companies who receive injuries by the running of trains, except those who are engaged in the actual running of the train which caused the injury. St. Louis, etc. E. Co. v. Blaylock (Ark.) 1917A-563. 332. Allegations that defendant railroad negligently shoved cars upon the track where plaintiff was repairing a car, strik- ing it and running it over him, with proof that his injuries were so produced, are sufficient, under Kirby's Ark. Dig. 6773, creating a presumption of negligence on the part of a railroad company, to place the burden of proof upon defendant to show that the injury was not caused through its negligence. St. Louis, etc. B. Co. v. Blaylock (Ark.) 1917A-563. 333. Presumption as to Competence and Care of Servant. There is no presumption one way or the other as to the skill or want of skill of the driver of a vehicle, when all of the facts and circumstances out of which a charge of negligence arose are before the jury, and whether the driver of the vehicle was a reasonably careful and skilful driver, and exercised that de- gree of care and skill which an ordinarily careful and skilful driver would have ex- ercised under the circumstances, is a mat- ter of proof, and hence, in an action for the death of a person struck by defend- 586 DIGEST. 1916C 1918B. ant's automobile truck, it is error to charge that the law presumed, in the absence of evidence to the contrary, that the driver of the trnck was a reasonably careful and skilful driver, and that if plaintiff had failed to prove that he was not a reason- ably careful and skilful driver, defendant was entitled to the presumption that he was reasonably careful and skilful in such work. Devine v. Brunswick-Balke-Collen- der Co. (HI.) 1917B-887. 334. Burden, of Proof. An administra- tor suing a railroad for death of his dece- dent, a switchman, killed in service, as it was charged, by being struck by a post standing dangerously near the track, had the burden to prove that decedent had not been warned of the dangerous proximity of the post. Devine v. Delano (111.) 1918A-689. (3) Admissibility of Evidence. 335. Action for Negligence Rules of Master. In an action for injuries sus- tained by a car repairer, evidence that when repairs were made on cars outside the repair tracks it was the duty of the foreman to put out a blue flag was admis- sible in rebuttal of testimony that in such case the blue flag rule required the re- pairers to put out the flag themselves. St. Louis, etc. E. Co. v. Blaylock (Ark.) 1917A-563. 336. Intoxication of Servant. In a ser- vant's action for injury from a blast fired near him, wherein the master contended that the servant was drunk and fell off an embankment into a deep cut and was injured, evidence that the servant was drunk when he left his boarding place to go to work along the way where he was injured is material and admissible. Amer- ican Bauxite Co. v. Dunn (Ark.) 1917C- 625. 337. Changes Made After Accident. Evidence of conditions or changes made after the accident is not admissible to show negligence, pr an admission of negligence, at the time of the accident. Korab v. Chicago, etc. E. Co. (Iowa) 1916E-637. 338. Where, in an action for a railroad brakeman's death by catching his foot in the unblocked space between main and guard rails, defendant claimed that since the custom of blocking or not blocking such space was not uniform, neither method would have been negligence, evidence was admissible in rebuttal for plaintiff whether the guard rails had been blocked on cer- tain part of defendant's line after the acci- dent, though not admissible as an admis- sion of negligence. Korab v. Chicago, etc E. Co. (Iowa) 1916E-637. 339. Negligence Evidence Intention of Injured Servant. In an action against a railroad for death of its switchman in service, where the conductor of the switch- ing crew has testified that it was not deceased's duty to throw a certain switch, it is competent to show by such conductor that at the last time he saw decedent alive he did not know, as a matter of fact, that decedent was not planning to throw such switch. Devine v. Delano (111.) 1918A- 689. (4) Sufficiency of Evidence. 340. Evidence that a horse had been in use about the plant for some time, and that the foreman in charge had ample opportunity to observe his conduct when plaintiff was hurt as well as on former occasions, is sufficient to carry to the jury the question whether the master knew, or with reasonable diligence should have known the nature of the horse. Marks v. Columbia County Lumber Co. (Ore.) 1917A- 306. (Annotated.) 341. Negligence Failure to Block Guard Bail. Negligence by an employer cannot be determined, as a matter of law, upon the opinion of experts as to whether a given course of conducting a business is negligence, where the question involves matters as to which common knowledge and observation has evidential weight, such evidence being entitled to the jury's consideration, along with the other evi- dence on the question; and hence, in an action against a railroad company for the death of a brakeman by catching his foot in the unblocked space between the guard and main rail, it could not be said that defendant was not negligent in not guard- ing the space between rails by blocking it, because some qualified railroad men testi- fied that blocking such space did not make it safer and was not done on their roads, while others testified that blocking the space between rails was safer. Korab v. Chicago, etc. E. Co. (Iowa) 1916E-637. (Annotated.) 342. Proof of Knowledge of Danger. In determining the question of want of knowledge of a danger by an employee sustaining a personal injury, it is proper to consider all the facts proved, and it is not necessary that proof be made by di- rect evidence, and it is only where the evidence points neither one way nor the other that plaintiff must fail "for want of affirmative proof. Cincinnati, etc. E. Co. v. McCullom (Ind.) 1917E-1165. (5) Defenses. 343. Affirmative Defenses. Assumption of risk and contributory negligence when available are affirmative defenses. King v. Cooney-Eckstein Co. (Fla.) 1916C-163. (6) Questions for Jury. 344. Ala. Code 1907, 3910, subd. 3, rrakes employers liable for injuries to em- ployees caused by the negligence of any MASTER AND SERVANT. 587 person in the service or employment of the master or employer to whose orders or directions the servant or employee was bound to and did conform, if such injuries resulted from his having so conformed. In an action for injury to a railway employee assisting a mechanic to repair an engine, there was evidence that B. directed plain- tiff what to do, that he was cutting a bar of metal with a hammer and chisel; that plaintiff's directed part in the work was to hold the bar still by putting his foot on it and hold a light so that B. could see to do the work; that the cutting of the bar threw off pieces of metal; that one of such pieces struck plaintiff in his right eye; and that he could not hold the light as directed without turning his face towards and into the line of flight of the pieces of metal. It is held that this evi- dence made a question for the jury as to plaintiff's right to recover. Louisville, etc. E. Co. v. Carter (Ala.) 1917E-292. 345. Negligence Safety of Miner's Working Place. In a miner's action for injuries caused by rock falling upon him, where there is evidence that he asked the foreman if he thought any more of the roof would fall, that the foreman took a pick, and, after testing the part of the roof which subsequently fell, assured plain- tiff that it was sound and safe, that plain- tiff was somewhat inexperienced and not familiar with the character of rock in the roof, and, relying on the foreman's assur- ance of safety, continued to work there until injured, and that if a proper inspec- tion had been made when the foreman made his inspection it could have been dis- covered that the rock was loose and liable to fall, it is a question for the jury whether the employer was negligent, though plain- tiff's evidence tends to show that ordinar- ily it was his own duty to look after the safety of the roof of his own room. Hall v. Manufacturers' Coal, etc. Co. (Mo.) 1916C-375. 346. Assumption of Risk Failure to Give Signals. In an action for injuries to plaintiff when the car which he was re- pairing was struck by another car, evi- dence held to justify submission to the jury of the issue of assumption of risk in relying upon foreman to place signals. St. Louis, etc. E. Co. v. Blaylock (Ark.) 1917A-563. 347. Contributory Negligence. In an ac- tion for injuries to plaintiff when the car which he was repairing was struck by another car, evidence held to justify the submission to the jury of the issue of plaintiff's contributory negligence in rely- ing upon the foreman to put out a blue flag. St. Louis, etc. E. Co. v. Blaylock (Ark.) 1917A-563. 348. In an action against a railroad com- pany for injury to a fireman who was struck by the arm of a mail crane stand- ing near the track, whether he assumed the risk or was guilty of contributory negligence is held, under the evidence, a jury question. Eowlands v. Chicago, etc. B. Co. (Wis.) 19-16E-714. (Annotated.) 349. Negligence Switching Unlighted Car Without Warning. Where the defend- ant railway switched an unlighted car at a speed of ten miles an hour in an un- lighted yard, having no guard on the car, nor giving any warning, the question of its negligence as to one rightfully on the track is for the jury. Ingram's Adm'x. r. Eutland E. Co. (Vt.) 1918A-1191. o >v Negligence Blasting. On the evi- dence in a servant's action for injury from a blast fired near him without warning, it is held that whether the master should have reasonably expected the servant, who did not work where the blasting was done, to be within range of the explosion, and should have given warning before the blast was fired, was for the jury. American Bauxite Co. v. Dunn (Ark.) 1917C-625. 351. Whether Servant was Warned. In an administrator's action against a railroad for death of its switchman charged to have been killed in service by being struck by a post in dangerous proximity to the track, whether the conductor of the switch- ing crew warned the switchman of the dangerous condition is held to be for the jury under the evidence. Devine v. Delano (111.) 1918A-689. 352. In an administrator's action against a railroad for death of its switchman charged to have been killed in service by being struck by a post in dangerous prox- imity to the track, it was a question for the jury whether the road's act in giving H list of nonclearanee points on the line to the switchman was a sufficient discharge of the road's duty to warn him of the post. Devine v. Delano (111.) 1918A-689. 353. Contributory Negligence Railroad Employee Post Near Track. In an ad- ministrator's action against a railroad for death of its switchman in service, ques- tion whether the switchman met his death, in striking a post dangerously near the track, by means of the negligence of the road and while he was using due care, is held to be for the jury under the evi- dence. Devine v. Delano (111.) 1918A- 689. 354. Negligence Failure to Furnish Tool. In an employee's action for injury on the ground that a failure to furnish a punch for making holes through steel hoops was a defect in the condition of the employer's ways, works, machinery, and plant, held on the evidence that whether the plant was defective for that reason was for the jury. Whiley v. Solvay Pro- cess Co. (N. Y.) 1917A-314. 355. Whether Servant Assumed Risk. In an action against a railroad for death of its switchman in service, the submission of 588 an interrogatory as to whether the de- ceased assumed the risk or danger which resulted in his injury, which the jury an- swered in the negative, is not prejudicial to defendant, charged in a count of the declaration with having rejected the Work- men's Compensation Act. (Devine v. De- lano (111.) 1918A-689. (Annotated.) (7) Instructions. 356. Instruction as to Negligence and Contributory Negligence. An instruction that if plaintiff was employed by defend- ant in its mine and under the control and direction of its foreman, who had author- ity to direct the, work and the manner in which plaintiff was engaged at the time of the injury, and if it was plaintiff's duty to obey his orders and directions, and if while so engaged the foreman negligently directed plaintiff to clean up the rock and DIGEST. 1916C 1918B. struction that though he knew, or by the exercise of ordinary care could have known, that the place where he was work- ing was not safe, this did not defeat a recovery if he was negligently ordered into such place by the foreman and assured ttat the rock would not fall, and if the danger from such rock was not of such a glaring and dangerous nature as to threaten immediate injury in case he obeyed the order, is erroneous, as it did not require a finding that plaintiff relied upon such assurance of safety. Hall v. Manufacturers' Coal, etc. Co. (Mo.) 191&C- 375. 359. Assumed Risk. Where the instruc- tion requested by defendant in an action for railroad brakeman's negligent death did not in terms place the burden of prov- ing assumed risk on defendant, which the instruction given by the court on the subject properly did, it was not error to other debris in a room, and prior to such ubject properly < 1 had assured olaintiff when in- "fuse the requested instruction. Korab command had assured plaintiff when in- quired of whether it was safe to work there on account of overhanging rocks, that it was safe, and if plaintiff, relying upon such assurance, went to work there and was injured by a slab of rock falling upon him, he was entitled to recover, is erroneous, where negligence on the part of the foreman in giving such assurance as to the safety of the roof was relied upon as a ground of recovery and not merely as relieving plaintiff ffom the effect of contributory negligence or assumption of risk, since it undertakes to cover the whole case so far as defendant's action- able negligence is concerned, and does not require a finding that the assurance as to the safety of the roof was negligently given, but makes the employer an insurer as to the correctness of the information furnished plaintiff. Hall v. Manufactur- ers' Coal, etc. Co. (Mo.) 1916C-375. 357. The error in such instruction is not cured by a further instruction that if the rock which fell upon plaintiff was in a loose and dangerous condition, and if the foreman inspected and sounded it and found it to be in a loose and dangerous condition and liable to fall, or if by the exercise of ordinary care he could have discovered such condition, and if he as- sured plaintiff that it would not fall and ordered him to work beneath such rock, then such order was negligently made and such assurance negligently given within the meaning of the instructions, since it merely defines "negligent assurance." a term not used in the instruction author- i/.ing a recovery, and. moreover, it was an attempt to supply facts which should have been required to be found by the main in- struction and the incorporation of which in a separate instruction would merely con- fuse the jury. Hall v. Manufacturers' Coal, etc. Co. (Mo.) 1916C-375. 358. In a miner's action for injuries caused by rock falling upon him, an in- v. Chicago, etc. E. Co. (Iowa) 1916E-637. 360. Instruction Properly Refused. Un- der Iowa Code Supp. 1913, 4999a2, 4999a3, where plaintiff, a woodworker, was injured while working with a combined machine on which there was then a ripsaw which was not guarded, defendant's re- quested instruction that if the danger in using the unguarded saw was so imminent that a reasonably prudent person would not have continued in the work, the ser- vant by continuing in his work waived the master's negligence, and assumed the risk, is properly refused, as it does not differentiate between conditions existing when the servant in the ordinary course of bis employment had a duty to remedy the defects and conditions existing when no such duty rested on him. Correll v. Will- iams, etc. Co. (Iowa) 1918A-117. 361. Effect of Election Defenses Ex- cluded. In an action against a railroad for death of its switchman in service, the court's action in permitting the defenses of assumption of risk and contributory negligence to be submitted to the jury as to one count of the declaration, and in excluding them as to the other, which charged that the road had rejected the Workmen's Compensation Act, is not preju- dicial to defendant. Devine v. Delano (HI.) 1918A-689. (Annotated.) (8) Verdict. 362. Negligence of Foreman Dangerous Method of Work. Where, in a carpenter's action against a railroad company for in- juries received while working on an exten- sion to repair shops, it appeared that de- fendant's subforeman, who was directing the work, caused a section of the extension to be raised when there was a strip of tim- ber nailed to it making it impossible for it to be placed in position, and that, though knowing that plaintiff was in a MASTER IN CHANCERY MATERIALMAN. 589 dangerous position, he directed another employee to prize one end of the section loose, in consequence of which it swung ^against and injured plaintiff, sufficient neg- ligence is shown to render it erroneous to direct a verdict for defendant. Thompson v. Cincinnati, etc. Co. (Ky.) 1917A-1266. 363. Railroads Mail Crane Near Track. In an action against a railroad company for injury to a fireman who was struck by the arm of a mail crane standing near the track, evidence held to warrant a find- ing of negligence in maintenance of the crane. Rowlands v. Chicago, etc. B. Co. (Wis.) 1916E-714. (Annotated.) 3. LIABILITY OF MASTER FOR ACTS OF SERVANT. a. Existence of Relation. 364. Liability to Third Person for Act of Servant Starting Fire. Railroad labor- ers who are living in bunk cars provided by the railroad company, and who, when off duty, build a fire upon the right of way to heat water to wash their clothes, are not acting within the scope of their em- ployment in building such fire, so as to render the railroad liable for their negli- gence to the owner of adjoining property destroyed by fire communicated therefrom. Excelsior Products Mfg. Co. v. Kansas City So. R. Co. (Mo.) 1917B-1047. (Annotated.) b. Nature and Extent of Liability. 365. Fire Insurance Patrol Liability for Tort. A board of underwriters organized under St. Wis. 1913, 1922, authorizing the formation of such boards, is not a char- itable corporation free from liability for the negligence of its employees, because engaged in protecting life and property from fire through its patrols, since such furtherance of the public interest is merely incidental to the selfish motive of reducing the fire risks of its members as under- writers. Sutter v. Milwaukee Board of Fire Underwriters (Wis.) 1917E-682. (Annotated.) 366. Liability to Third Persons Scope of Employment. A master is liable for tne negligent acts of his servant only when those acts are within the scope of his em- ployment, but where the servant fails to perform a clear duty imposed on him by his employment, the master is liable for such failure. Lovejoy v. Denver, etc. R. Co. (Colo.) 1916E-1075. 367. Person on Locomotive by Permis- sion of Engineer Liability for Injury. I Where an engineer, in sole charge of an engine and cars, placed a five year old boy on the engine to give him a ride and then started the engine without taking proper precautions for the boy's safety, so that he was thrown off and injured, even if the act of placing the boy on the engine was outside the scope of the engineer's employ- ment so as not to render the company liable therefor, it was liable for the en- gineer's failure to perform the duty im- posed on him by his employment to keep children off the engine. Lovejoy v. Den- ver, etc. R. Co. (Colo.) 1916E-1075. (Annotated.) Note. Liability of fire insurance patrol in tort. 1917E-684. c. Pleading. 368. Action for Negligence. A complaint, which alleges that a railroad engineer in charge of a switching train, placed a five year old boy upon his engine and then started it without taking proper precau- tions for the boy's safety, does not allege that the railroad had failed to employ a competent engineer. Lovejoy v. Denver, etc. R. Co. (Colo.) 1916E-1075. 369. Care and Skill of Servant. In an action for the death of a person struck by an automobile truck, an instruction that if the driver of the truck was a person of ordinary and reasonable skill in the busi- ness in which he was engaged, and if he exercised the ordinary judgment and skill of a reasonably careful and prudent driver at and just before the time of the injury, the jury should find defendant, the driver's employer, not guilty is proper. Devine v. Brunswicke-Balke-Collender Co. (111.) 1917B-887. 370. Damages What Law Governs. Where plaintiff sues in Vermont for in- juries sustained while working on defend- ant's railroad in Quebec, plaintiff's dam- ages, if any, are to be assessed in accord- ance with the law of that province, and hence it is proper to refuse to charge that pain and suffering is not an element of damage, and submit the Canadian law on that branch of the case to the jury. Osborne v. Grand Trunk B. Co. (Vt.) 1916C-74. MASTER IN CHANCERY. Review of findings, see Appeal and Error, 154. Powers, see Referees, 2. Compensation, see Referees, 8. MATERIAL ALTERATION. See Alteration of Instruments, 4, 5. MATERIALITY OF ERROR. For reversal, see Appeal and Error, 209- 211. MATERIALMAN. Denned, see Mechanics' Liens, 10. Right to lien, see Mechanics' Liens, 11. 590 DIGEST. 1916C 1918B. MAXIMS. Expressio unius est exclusio alterius, see Appeal and Error, 463. Id certura est, quod certum reddi potest, see Deeds, 47. Sic utere tuo ut alienum non laedas, see Constitutional Law, 39. Salus populi suprema lex, see Jury, 13. Fulsus in uno, falsus in omnibus, see Wit- nesses, 89. MEASURE OF DAMAGES. See Damages, 4-16. MEASURES. See Weights and Measures. MECHANICS' LIENS. 1. Validity and Construction of Statutes, 590. 2. Contract Under Which Lien Acquired, 590. 8. Persons Entitled to Lien, 591. a. Contractor or Subcontractor, 591. b. Materialman, 592. 4. Lienable Claims, 592. 5. Property Subject to Lien, 592. 6. Notice or Statement of Claim, 592. a. Necessity, 592. b. Sufficiency, 593. c. Mailing, 594. nd success. Laughlin v. Portland (Me.) 1916C-734. 24. Authorized and Implied Powers. A municipal corporation can exercise only such power as is conferred on it exnrcssly, or such as arises by necessary implication as incidental to powers exn ; ;ted, or such as are indispensable to the pur- pose of its creation. Akron v. McElligott (Iowa) 1916E-692. 25. Express Grant as Negativing Pre- existing Power. The passage of a statute expressly conferring power on a muni i: al corporation does not necessarily preclude the pre-existence of the power. Hopkins v. Richmond (Va.) 1917D-1114. 26. Any fair, reasonable doubt of the existence of a power of a municipal cor- poration is resolved by the courts against the corporation, and the power is denied. Hopkins v. Richmond (Va.) 1917D-1114. 27. Implied Powers of Municipality. A municipal corporation has the rowers granted to it in express words, an 1 the MUNICIPAL CORPORATIONS. 615 powers necessarily implied or incident to the power expressly granted, and the pow- ers absolutely essential to the declared object and purpose of the municipal cor- poration, and not simply convenient, but indispensable, and those granted by stat- ute to such corporations generally. Hop- kins v. Richmond (Va.) 1917D-1114. 28. Validity of Grant. The charter pow- ers of a municipality have their origin in the police powers of the state. State v. Merchants' Exchange (Mo.) 1917E-871. 29. Limited to Express or Implied Grant. Municipalities are legal entities for local governmental purposes, and they can exercise only such authority as is conferred by express or implied provisions of law. The existence of authority to act cannot be .assumed, but it should be made to appear. Malone v. Quincy (Fla.) 1916D-208. 30. Where particular powers are ex- pressly conferred upon a municipality, and there is also a general grant of power, such general grant by intendment includes all powers that are fairly within the terms of the grant and are essential to the pur- poses of the municipality, and not in con- flict with the particular powers expressly conferred. The law does not expressly grant powers and impliedly grant others in conflict therewith. Malone v. Quincy (Fla.) 1916D-208. 31. If reasonable doubt exists as to a particular power of a municipality it should be resolved against the city. Ma- lone v. Quincy (Fla.) 1916D-208. 32. When there are both special and general grants of power to municipal cor- porations to pass ordinances, those given under the special grant, as a general rule, can only be exercised in the cases and to the extent as respects those matters al- lowed by the charter or incorporating act; and the powers given under the, general grant do not enlarge or annul those con- ferred by the special grant in respect to its subject-matters, but give authority to pass ordinances, reasonable in their char- acter, upon all other matters within the scope of the municipal authority not re- pugnant to the constitution and laws of the state. Malone v. Quincy (Fla.) 1916D- 208. 33. A general clause conferring power upon a municipality can give no authority to abrogate the limitations contained in special provisions. Malone v. Quincy (Fla.) 1916D-208. 34. When authority and powers with ref- erence to particular subjects are expressly conferred in specific terms upon municipal- ities, other authority and powers that in their nature or extent would materially increase or be inconsistent with the pow- ers that are expressly given in specific and limited terms, are not to be implied, par- ticularly when the powers expressly given do not include all the authority that may have been conferred with reference to the designated subjects. Malone v. Quincv (Fla.) 1916D-208. 35. When to accomplish a general mu- nicipal purpose authority and powers are expressly conferred upon a city, and it does not appear that only the powers ex- pressly given are to be exercised, other authority and powers that are incident to or consistent with those expressly given, may be implied when necessary to fully effectuate the express powers and the gen- eral purposes designed, if such implication may fairly arise from the language used and the object desired. Malone v. Quincv (Fla.) 1916D-208. Note. Power of municipality to compel rail- road or street railway to repair bridge within municipal limits. 1916C-1171. b. Power to Contract. 36. In the absence of constitutional or statutory inhibition, municipal corpora- tions may contract for the payment of in- terest on warrants drawn to cover or- dinary debts. Alabama City, etc. B. Co. v. Gadsden (Ala.) 1916C-573. (Annotated.) c. Power to Operate Public Utilities. 37. Power to Operate Ice Plant. La. Const, art. 224, provides that the tax- ing power may be exercised by the gen- eral assembly for state purposes and by parishes and municipal corporations and public boards, under authority delegated by the general assembly for parish, mu- nicipal and local purposes "strictly" public in their nature. Held, that the word "strict" was used in the sense of exact; accurate; precise; undeviating; governed or governing by exact rules; and "strictly" as in a strict manner; closely, precisely, rigorously; stringently; positively; and that the construction and maintenance of a municipal ice plant by a small city oper- ating a municipal waterworks and electric lighting system was not "strictly" a public activity, and could not be maintained by the exercise of the taxing power. Union Ice, etc. Co. v. Euston (La.) 1916C-1274. (Annotated.) 38. Operation of Electric Lighting Plant Competition With Citizen Sale of Fix- tures. Under Mich. Const, art. 8, 23, authorizing municipalities to own and operate public utilities for supplying water, heat, etc., and Mich. Comp. Laws 1897, 3258, 3269, and 3270, authorizing mu- nicipalities to acquire and operate gas and electric light plants, a city which operates its own electric light plant is entitled to do all those things naturally connected with and belonging to the running of such 616 a business, and so may sell, if necessary, light fixtures. Andrews r. South Haven (Mich.) 191SB-100. (Annotated.) 39. Sale of Fuel to Inhabitants. Me. Eev. St. c. 4, 87 (Laws 1903, c. 122), authorizing and empowering any city or town to establish and maintain a perma- nent wood, coal, and fuel yard, for the purpose of selling, at cost, wood, coal, and fuel to its inhabitants, is not unconstitu- tional, it being a public nse for which tax- ation is permissible, since the furnishing of fuel to its citizens is a matter of public necessity, convenience, or welfare with which it is difficult for the citizens to pro- vide themselves, due to the existence of monopolistic combinations. Laughlin v. Portland (Me.) 1916C-734. (Annotated.) 40. Telephone System. S. Dak. Laws 1907, c. 88, authorizing cities to acquire, construct, equip, and operate a telephone system is not in violation of Const, art. 13, 1, declaring that neither the state nor any county or municipality shall loan its credit, make donations in the aid of indi- vidual corporations, or become the owner of the capital stock of any such corpora- tion, nor shall the state engage in any work of internal improvement; for the constitution merely prohibits cities from becoming interested in public utilities owned by private persons. Spangler v. Mitchell (S. Dak.) 1918A-373. (Annotated.) 41. S. Dak. Const, art. 13, 4, as orig- inally adopted, provided that the debt of any county, city, or other subdivision should never exceed five per cent of the assessed value of the taxable property. Thereafter the section was amended, and now declares that the debt of no county, city, or other subdivision shall exceed five per cent of the assessed valuation of the taxable property, provided that any county may incur additional indebtedness not exceeding ten per cent of the assessed val- uation for the purpose of providing water- works, etc., and that cities having a popu- lation of 8,000 or more may incur indebt- edness not exceeding eight per cent of the assessed valuation for the purpose of constructing street railways or other light- ing plants, but that no county, city, or other subdivision shall be included within such district without a majority vote in favor thereof, and no such debt shall ever be incurred for any of the purposes provided, unless authorized by a majority vote of the electors. It is "held that a city may incur indebtedness up to the five per cent limit for purposes not mentioned in the constitution, as the purchasing and equipping of a telephone system subject to the qualification that it may not issue bonds without a majority vote in favor thereof according to S. Dak. Pol. Code, 1229, subd. 5. Spangler v. Mitchell (S. Dak.) 1918A-373. (Annotated.) DIGEST. 1916C 1918B. 42. Right to Construct Improvement Jointly With Railroad Company. Denver Charter Amendment, May 20, 1913, 355, created a tunnel commission to construct a railroad tunnel through the Rocky Moun- tains to transport freight, passengers, water, and electricity, provided that ii th.; tunnel should be originally constructed for the transportation of freight and passen- gers, that right should not be destroyed or needlessly interrupted by the extension of the use for the passage of water, elec- tricity, etc. The amendment also pro- vided that two thirds of the cost of the tunnel shpuld be paid by a bond issue of the city; that the other third should be paid by a railroad company, which should have the right to operate trains through the tunnel, the title to which should be in the city, but with the right of the railroad company to purchase the same. The city had not declared its intention to build a water system, power plant, or any public utility of which the tunnel was to form a part, nor by which it was to be of any use to the city whatsoever. It was to have the perpetual right to use the tunnel free of rent as an aqueduct, and to install conduits therein to bring water into the city, to operate a pipe line, and an elec- tric line through the tunnel, and to use it for drainage if it so desired, also to have full benefit of any ore that might be found in driving the tunnel, and the right to subject it and the tracks herein to use of any other railroad desiring the same on terms which would be exceedingly onerous to any other railroad. Held, that the ordinance was violative of Const, art. 11, 1, 2, prohibiting a city from lend- ing its credit to any company or corpora- tion for any purpose, and from making a donation of money or bonds in further- ance of a work jointly with any person, company, or corporation, etc. Lord v. Denver (Colo.) 1916C-893. (Annotated.) Notes. Power of municipality to enter into partnership contract for construction of improvement. 1916C-909. Right of municipality to enter into busi- ness competition with citizen. 1918B-104. Power of municipality to construct and operate municipal telephone system. 1918A-380. Power of municipality to engage in busi- ness of furnishing fuel to inhabitants. 1916C-742. Power of municipality to operate plant for purpose of furnishing ice to inhabi- tants. 1916C-1287. d. Power to Regulate Rates. 43. The right to regulate rates is a mat- ter of general concern, and does not per- tain solely to municipal affairs. Wood- MUNICIPAL CORPORATIONS. 617 burn v. Public Service Commission (Ore.) 1917E-996. 44. Since the right to regulate rates is an inherent element of sovereignty, such right can be delegated to a municipality only by clear and express terms, and all doubts must be resolved against the mu- nicipality. Woodburn v. Public Service Commission (Ore.) 1917E-996. (Annotated.) e. Power Outside Limits. 45. Validity of Statute. The legislature had power to enact Utah Comp. Laws 1907, 206, subd. 15, which gives to a city, to protect from pollution the streams from which its public water supply is taken, jurisdiction over the stream for ten miles above the point from which the water is taken. Salt Lake City v. Young (Utah) 1917D-1085. f. Power to Convey Property. 46. Eight to Object Federal Govern- ment. That the federal government had appropriated money to construct buildings for a commercial exposition, held on prop- erty belonging to a city, did not entitle it to object to the conveyance of the property by the city for private purposes to a pri- vate corporation, though a few of the buildings yet remained on the premises and were occupied by a museum. Board of Trustees of Phila. Museums v. Trustees of Univ. of Pa. (Pa.) 1917D-449. g. Power as to Nuisances. 47. Where express specific power is con- ferred upon a municipality to regulate a common utility, a continuance of its use is contemplated; and the power given to regulate the use does not authorize a pro- hibition of a lawful use in any part of the city. If the use degenerates into a nuisance it is within the power of the city to abate the nuisance or prohibit the use. Malone v. Quincy (Fla.) 1916D-203. 5. ORDINANCES AND RESOLUTIONS. a. Nature and Adoption. 48. Subject and Title. The ordinance attacked contains but one subject, and that subject is clearly expressed in the title. Kansas City v. Jordan (Kan.) 1918B-273. 49. Effect as Law. An ordinance prop- erly enacted has all the force of a law within the limits of the municipality. Hopkins T. Richmond (Va.) 1917D-1114. 50. Supplementing Statute. It is no ob- jection to municipal ordinances, under Ala. Pol. Code, 1907, 1251, giving municipal- ities full power to pass ordinances, that they afford additional regulations comple- mentary to the end state legislation would effect, if they are not in contravention of any state enactment. Borok v. Birming- ham (Ala.) 1916C-1061. 51. Force and Effect. City ordinances, authorized and duly enacted within the municipal power, have the same local force and effect as a statute. Prest-o-lite Co. v. Skeel (Ind.) 1917A-474. 52. Ordinance as "Law." An ordinance is a "law," within Mo. Rev. St. 1909, 6155, 6177, governing elections in cities empowered to enact ordinances, making it a crime to vote more than once at any such election, including one to pass on a public proposition submitted to vote by "law." In re Siegel (Mo.) 1917C-684. (Annotated.) 53. Effect of Title and Preamble. The title and preamble are parts of an ordin- ance, as they are of a statute. Duquesne Light Co. v. Pittsburgh (Pa.) 1917E-534. Ordinance as Note, 'law." 1917C-687. 54. Power to Lease Limitation not Retroactive. Ordinances and statutes lim- iting the period for which the city may lease property, not being retroactive, do not affect renewals under a prior valid lease by the city of New York for 21 years, with covenant for renewals in per- petuity. Burns v. New York (N. Y.) 1916C-1093. b. Validity. (1) In General. 55. Preventing Injury to Public. Any regulation, whatsoever its character, which is instituted for the purpose of preventing injury to the public, and which tends to furnish the desired protection, is consti- tutional. State v. Starkey (Me.) 1917A- 196. 56. Reasonableness of Ordinance. A municipality can enact reasonable ordin- ances only, and the ccurt will annul or- dinances which are unreasonable, illegal or repugnant to law. State v. Starkey (Me.) 1917A-196. 57. Restraining Injurious Business. Though all by-laws made in restraint of trade, or which tend to create a monopoly, are void, yet a city or town, by leasonable general provisions, by ordinance, may regulate and restrain all noxious and in- jurious callings within its limits. State v. Starkey (Me.) 1917A-196. 58. Validity of Ordinance. Such ordin- ance was referable to the police power, and was not invalid on the ground of its r.n reasonableness. St. Louis v. Nash (Mo ) 191SB-134. (2) Segregation of Races. 59. Segregation of Races Validity. A municipal ordinance prohibiting any white or colored person from moving into and 618 occupying as a residence or place of abode, or to establish and maintain as a place of public assembly any house upon any block upon which a greater number of houses are occupied by persons of the opposite race, denies due process of law in viola- tion of Const. U. S. Amend. 14 (9 Fed. St. Ann. 416), as property owners are denied the right to dispose of their property by prohibiting the occupation of it for the gole reason that the purchaser is a person of a particular race intending to occupy the premises as a place of residence. Buch- anan v. Warley (U. S.) 1918A-1201. (Annotated.) 60. The race segregation ordinance of the city of Louisville which prohibits any colored person from occupying as a resi- dence or place of assembly for colored people a building in any block in which* the greater part of the houses are occu- pied by white persons, and vice versa, but which provides that it shall not affect the location of residences or places of assem- bly made previous to its enactment, nor prevent any person who has theretofore acquired a building for a residence or place of assembly from exercising such right, does not take away the right of alienation, but is merely a restriction on alienation by taking away the probability of alienation to certain classes of purchas- ers, and, as such, cannot be held to de- prive the owner of a vested right. Harris v. Louisville (Ky.) 1917B-149. (Annotated.) 61. That ordinance does not conflict with the Bill of Rights, Const. 1, recognizing inherent and inalienable rights, section 2 providing that absolute power over the life and property of a man does not exist in a republic, and section 26 providing that the rights secured by the Bill of Eights shall remain inviolate, or Const. U. S. Amend. 14 providing that no person shall be deprived of liberty or property without due process of law, since all these guaran- ties are not absolute, but are subject to the right to impose reasonable restraints on the use of property. Harris v. Louis- ville (Ky.) 1917B-149. (Annotated.) 62s The fact that the ordinance would have the effect of excluding colored people from the more desirable parts of the city does not deprive them of liberty or prop- erty without due process of law contrary to the Fourteenth Amendment, since they can improve their sections of the city until they are equal to those of the whites. Harris v. Louisville (Ky.) 1917B-149. (Annotated.) 63. That ordinance is a valid exercise of the police power of the municipal legis- lature as a reasonable measure for the public welfare, in view of the settled pub- lic policy of the state to secure the sfia- ratif-n of races. Harris v. Louisville (Ky.) 1917B-149. (Annotated.) DIGEST. 1916C 1918B. 64. The invalidity of so much of an or- dinance providing for the segregation of the races as limits the rights of any white or colored person to occupy property of which he was the owner at the time the ordinance went into effect does not render invalid so much of the ordinance as ap- plies to persons whose rights as owners or tenants accrued since the passage of the ordinance. Hopkins v. Richmond (Va.) 1917D-1114. (Annotated.) 65. An ordinance making it unlawful for any white person to occupy as a residence any building on any street on which a greater number of houses are oc- cupied as residences by colored people than by white people, and making it un- lawful for any colored person to occupy as a residence any house on any street on which a greater number of houses are occu- pied as residences by white people than by colored people, is constitutional in so far as it applies to persons whose rights aa owners or tenants have accrued since the passage of the ordinance, and is in- valid only so far as it restricts the right of any white or colored person to move into and occupy property of which he was the owner at the time of the going into effect of the ordinance. Hopkins v. Rich- mond (Va.) 1917D-1114. (Annotated.) 66. An ordinance making it unlawful for any white person to occupy as a resi- dence any house on any street on which a greater number of houses are occupied as residences by colored people than are occupied by white people, and making it unlawful for any colored person to occupy as a residence any house on any street on which a greater number of houses are occu- pied as residences by white people than by colored people, is prospective only in its application, and does not deprive any person of his rights or property existing at the time of its passage. Hopkins v. Richmond (Va.) 1917D-1114. (Annotated.) 67. An ordinance providing for the seg- regation of the races within a munici; a does not deny to any person the equal protection of the laws, for there is no dis- crimination between the races, and it oper- ates alike on all persons and property un- der the same circumstances and conditions. Hopkins T. Richmond (Va.) 1917D-1114. (Annotated.) 68. An ordinance making it unlawful for any white person to occupy as a resi- dence any building on any street on which a greater number of houses are occupied as residences by colored people than are occupied by white people, and making it unlawful for any colored person to occupy as a residence any house on any street on which a greater number of houses are occu- pied as residences by white people than by colored people, does not depend on any MUNICIPAL CORPORATIONS. 619 subsequent action or consent of any one, but becomes effective on its passage, and there is no delegation of authority by the legislative body. Hopkins v. Richmond (Va.) 1917D-1114. (Annotated.) 69. Under Va. Code 1904, 1038, con- ferring on cities and towns the right to preserve the peace and good order within their limits, a town has the implied and in- cidental power to pass an ordinance segre- gating the white and colored races, if it tended to promote peace and good order, under the exercise of the "police power," which includes the inherent sovereignty, which is the right and duty of the govern- ment, or its agents, to exercise whatever public policy demands for the benefit of society at large, to guard its morals, safety, health, and order, or to insure such eco- nomic conditions as an advancing civiliza- tion requires. Hopkins v. Richmond (Va.) 1917D-1114. (Annotated.) 70. Ordinances providing for the segre- gation of the races, when intended to operate as bona fide police regulations and reasonably necessary for that purpose, operate reasonably, without unduly inter- fering with private rights, and a*re con- stitutional. Hopkins v. Richmond (Va.) 1917D-1114. (Annotated.) 71. Sections 1 and 2 of the ordinance of the city of Atlanta, adopted June 16, 1913, and the corresponding sections of an amendment thereto, adopted November 3, 1913, prohibiting white persons and col- ored persons from residing in the same block, deny the inherent right of a person to acquire, enjoy, and dispose of prop- erty, and for this reason are violative of the due process clause of the federal and state constitution. Carey v. Atlanta (Ga.) 1916E-1151. (Annotated.) (3) Regulation of Dogs. 72. The regulation of dogs, a branch of its police power which the state may dele- gate to a city, is not limited to dogs run- ning at large, but extends to the keeping of dogs. McPhail v. Denver (Colo.) 1916E- 1143. (4) Regulating Presentation of Claims. 73. A municipality cannot by ordinance impose on its creditors the duty of pres- entation of claims as a condition to the bringing of suit. Alabama City, etc. R. Co. v. Gadsden (Ala.) 1916C-573. (5) Prohibiting Earth Closets. 74. An ordinance forbidding the use of earth closets in designated portions of the city of Quincy, without reference to whether such closets are a nuisance, is not authorized by the charter act, chapter 5844, Fla. Acts of 1907; and a judgment of the municipal court imposing a penalty for a violation of sucn ordinance is invalid and may be quashed on certiorari. Ma- lone v. Quincy (Fla.) 1916D-208. (Annotated.) 75. The express authority given the city "to regulate the construction, location and arrangement of earth closets" in the con- nection used in the charter act of Quincy, chapter 5844, Fla. Acts of 1907, has refer- ence to the location of such closets as they are used on property in the city, and does not authorize a prohibition of the proper use of earth closets in any part of the city. Nor does the express author- ity to issue bonds for construction and maintaining waterworks and a "system of sewerage" give the city power to'prohibit the use of earth closets. Malone v. Quincy (Fla.) 1916D-208. (Annotated.) 76. If earth closets in a city for any rea- son become a nuisance or otherwise unlaw- ful, the municipality may by reasonable regulations abate them or otherwise deal with them as the charter powers may au- thorize. Malone v. Quincy (Fla.) 1916D- 208. (Annotated.) 77. When the use of earth closets is contemplated by a municipal charter, and express limited authority is given to regu- late the use of them, their proper use as such is not unlawful and cannot be pro- hibited by the municipality in the absence of express authority to do so, or unless such closets become a nuisance or their use is otherwise unlawful and within the power of the city to abate or prohibit. Malone v. Quincy (Fla.) 1&16D-208. (Annotated.) 78. Power of a municipality to prohibit the use of earth closets within its limits cannot be implied merely from authority expressly given to regulate their use; and power to prohibit the use of earth closets in a city is not conferred by general pow- ers given to conserve the public health and general welfare, when the authority to regulate the use of earth closets is ex- pressly conferred in definite terms limited in their scope and purpose. Malone v. Quincy (Fla.) 1916D-208. (Annotated.) Note. Validity of statute or ordinance regu- lating out-of-door closets or privies. 1916D-212. (6) Regulating Keeping of Animals. 79. Regulation ot Keeping of Cattle. Beaumont City Ordinance, art. 991, pro- vides that it shall be unlawful to estab- lish or maintain any stock pens within. 300 feet of any hotel or private residence in the city without a permit from the city council. Other provisions declare that the words "stock pen" shall include any lot wherein more than six head of cattlo are kept. It is held that the ordinance was a proper exercise of the city's police power, 620 DIGEST. 1916C 1918B. and was not unconstitutional because the objectionable council might act arbitrarily, since it would be presumed that it would not do 30, and, if it did, the person aggrieved would have an adequate remedy by man- damus. Ex parte Broussard (Tex.) 1917C- 919. (Annotated.) Note. Validity of ordinance regulating keeping of cattle within municipal limits. 1917E- 929. businesses are permitted within the same district. Hadacheck v. Sebastian (U. S.) 1917B-927. (Annotated.) (7) Regulating Electricians. 80. Regulation of Electricians. Iowa Code, 680, 695, 711, empowering munici- pal corporations to adopt ordinances to carry into effect duties conferred, and to make regulations against danger from ac- cidents by fire or electrical apparatus, etc., does not authorize a town owning an elec- tric light plant to require electric wire men to procure a license, and to execute a bond conditioned on their indemnifying the town and the superintendent of public works from liability for any damage aris- ing from any negligence in doing their work. Akron v. McElligott (Iowa) 1916E-692. (Annotated.) (8) Regulating Wiring. 81. A town owning an electric light plant may make all reasonable rules as to the method of doing the work of wir- ing, and provide for inspection prior to connection with its system, and require conformity to standards reasonably neces- sary to safety and efficiency. Akron v. McElligott (Iowa) 1916E-692. (Annotated.) (9) Regulating Manufacture of Bricks. 82. Ordinance Prohibiting Manufacture Validity. A municipal ordinance en- acted in good faith as a police measure, prohibiting brick-making within a desig- nated area, does not take, without due process of law, the property of an owner of a tract of land within the prohibited district, although such land contains valu- able deposits of clay suitable for brick- making which cannot profitably be removed and manufactured into brick elsewhere, and is far more valuable for brickmaking than for any other purpose, and had been acquired by him before it was annexed to the municipality, and had long been used by him as a brickvard. Hadacheck v. Sebastian (U. S.) 1917B-927. (Annotated.) 83. Prohibiting by municipal ordinance the manufacture of brick within a desig- nated area cannot be said to deny the eq ial protection of the laws to the owner of a brickyard within the prohibited district, where the record does not show that brick- yards in other localities within the munici- pality where the same conditions exist are not regulated or prohibited, or that other (10) Regulating Charities. 84. City ordinances creating a municipal charities commission and prohibiting beg- ging in the public streets, while regulating the soliciting of contributions for char- itable purposes, the last of which gave the commission arbitrary power to forbid any person from soliciting for charity regard- less of his personal worth or fitness, not establishing any standard of character by which the commission should be guided in giving permits, merely requiring that it should find that the "object of said solici- tation is worthy and meritorious," are unconstitutional so far as giving such ar- bitrary power, and in provisions imposing a penalty upon any one soliciting contribu- tions for charitable purposes without a permit and prohibiting the sale of any goods donated to charity without the solic- itor first having obtained a similar permit. Matter of Dart (Cal.) 1917D-1127. (Annotated.) Note. Validity of statute or ordinance regu- lating solicitation of funds for private charity. 1917D-1133. 85. Police Power Regulation of Private Charity. The occupation of soliciting con tributions for charitable purposes may be regulated by laws or ordinances providing for reasonable supervision of the persons engaged, and for the application or use ot the contributions received to the purposes intended, to prevent unscrupulous persons from obtaining money or other things un- aer the pretense that they are to be ap- plied to charity, to prevent the wrongful diversion of such funds to other uses, and 10 secure them against waste. Matter ot Dart (Cal.) 1917D-1127. (Annotated.) (11) Regulating Use of Property. 86. Police Power Restriction on Use of Property. A municipal corporation, in- vested by its charter or by general statute with power to preserve the peace and health, may restrict the use of private property in the interest of the public, pro- viding the restriction is reasonable. Hop- kins v. Richmond (Va.) 1917D-1114. (12) Prohibiting Pollution of Water. 87. Police Regulations Pollution of "Water Supply Pasturing Horses Validity of Ordinance. A complaint by Salt Lake City, which charged that defendant unlaw- fully and wilfully and continuously for ten days and more permitted twenty-seven head of horses to be at all times access- ible to the stream from which thf city secured its water supply, to pasture along MUNICIPAL CORPORATIONS. 621 its banks, to wade in the stream, and to run at large upon defendant's tract of land comprising about fifteen acres along the stream, contrary to a city ordinance, charges defendant with acts which the city may by its ordinance prohibit and is not demurrable. Salt Lake City v. Young (Utah) 1917D-1085. (Annotated.) (13) Making Facts Prima Facie Evi- dence. 88. An ordinance providing that certain C]rcumstances, when established by evi- dence, should raise a prima facie presump- tion of guilt, which promulgates the same rule as the Fuller Bill (Acts Sp. Sess. Ala. 1909, p. 63), infracts no constitutional provision. Borok v. Birmingham (Ala.) 1916C-1061. (Annotated.) Note. Validity of ordinance providing that cer- tain state of facts shall constitute prima facie evidence of violation thereof. 1916C-1062. (14) Regulation of Meat Dealers. 89. Inspection Provision for Expense. An ordinance of the town of Houltou, re- quiring meat offered for sale in the town . to be inspected by an official inspector, was not invalid, because the expense of the inspection was not provided for there- in. State v. Starkey (Me.) 1917A-196. 90. Regulation of Meat Dealers. An or- dinance of the town of Houlton, providing that no carcasses of neat cattle, slieep, cr swine, wherever slaughtered, shall be sold or offered for sale in the town, unless inspected at the time of the slaughter by an official inspector, etc., was a proper exercise of the police power of the state as delegated by Me. Rev. St. c. 4, 93, cl. 3, providing that towns, cities, and villages may make and enforce ordinances respecting infectious diseases and health. State v. Starkey (Me.) 1917A-196. (Annotated.) Note. Statutory or municipal regulation of meat dealers. 1917A-198. (15) Regulating Smoke. 91. Smoke Ordinance Reasonableness. Where the evidence of expert marine en- gineers showed that there was no known appliance which could be used upon marine boilers to prevent the emission of smoke, an ordinance, declaring that the emission of dense, black or gray smoke from any smokestack used in connection with any steam boiler in any boat, etc., within the city limits should be a public nuisance per se, and that the owners of any steamboat and the general manager, fireman or other employee having charge of any steamboat within the city permitting it to emit such smoke should be guilty of creating a public nuisance and of a violation of tho ordin- ance, is unreasonable and invalid; though its invalidity is not a bar to a future pros- ecution thereunder if practical and efficient appliances may be had, or to liability for a common-law nuisance. People v. De- troit, etc. Ferry Co. (Mich.) 1918B-170. (Annotated.) c. Construction. 92. Reasonableness of Ordinance Ju- dicial Review. Whether an ordinance is unreasonable, and hence void, is for the court; but, in determining the question, it must regard the circumstances of the mu- nicipality, and the objects sought to be attained, and the necessity existing for ti.e ordinance. Hopkins v. Richmond (Va.) 1917D-1114. 93. Interpretation of Ordinance Opin- ions of Members of Council. Where a city ordinance embodies a contract between the municipality and street railways, the court, in construing it, should look solely to its text and the situation existing between the railways and the city when the ordin- ance was passed, and not to the letters, statements, and opinions of the aldermanic body that passed it, since justice to the street railways who accepted the contract demands that the intention of tha city council be determined from a consideration of the enactment itself. People v Chicago R. Co. (111.) 1917B-821. (Annotated.) 94. A city ordinance embodying a con- tract between the municipality and street railways could be construed only in the light of its text, and not in the light of let- ters, statements, and opinions as to its meaning of members of the local transpor- tation committee of the city council which it did not appear were brought to the attention of the council itself at large when the ordinance was submitted to it for passage, since it is the intention of the city council which the courts must en- deavor to determine, not the intention of - committee members, in construing an or- dinance. People v. Chicago R. Co. (111.) 1917B-821. (Annotated.) 95. Reasonableness of Ordinance Evi- dence of Extrinsic Facts. In certiorari to review a judgment based upon a city or- dinance, evidence as to its reasonableness as applied to the subject-matter or local condition? is admissible. People v. Gibbs (Mich.) 1917B-830. 96. Motives of Municipal Council. Since courts will not inquire into the motives which actuate the members of the legis- lative body in passing an ordinance, whether an ordinance regulating public auctions was passed to benefit special in- terests cannot be considered. People v. Gibbs (Mich.) 1917B-830. (Annotated.) 97. Presumption of Reasonableness. City licensing and regulation ordinances 622 DIGEST. 1916C 1918B. are primarily presumed to be reasonable unless the contrary appear on their face, but if the inherent character of their pro- visions appear to be unreasonable, the courts must declare such provisions void. People v. Gibbs (Mich.) 1917B-830. 98. Reasonableness of Ordinance Ju- dicial Review. Whether an ordinance- is reasonable, and within the discretionary power of the municipal authorities, is a judicial question. People v. Gibbs (Mich.) 1917B-830. 99. Applicability of Rules of Statutory Construction, The rules for the construc- tion of a city ordinance are the same as those applied in the construction of a stat- ute. People v. Chicago B. Co. (111.) 1917B- 821. Notes. Opinions, acts, etc., of members of coun- cil as aid to interpretation of ordinance. 1917B-829. Judicial inquiry into motives prompting enactment of legislative ordinance. 1917B- 834. d. Time of Taking Effect. 100. When Effective. Under Kurd's 111. Eev. St. 1915-16, c. 24, 64, making appro- priation ordinances take effect ten days after publication, and Kurd's Eev. St. 1915-16, c. 131, 1, and c. 100, 6, provid- ing that time shall be computed by exclud- ing the first and including the last day, an appropriation ordinance published Jan- uary 29, becomes effective February 8 and a tax levy ordinance passed that day is valid. People v. Snow (111.) 1917E-922. e. Prosecutions for Violations. 101. Offense Under Ordinance Negativ- ing Exceptions. In charging an offense under a city ordinance, it is not necessary to plead any of the exceptions named in the ordinance, where such exceptions are not contained in the clause which creates the offense. Kansas City v. Jordan (Kan.) 1918B-273. 102. Nature of Proceeding. Action against a railroad company tor violation of a city ordinance requirin.-j the sprinkling of tracks, in which the railroad company was sentenced to pay a fine of $109. is criminal in. character. People v. Pacific Gas, etc. Co. (Cal.) 1917A-328. (Annotated.) 103. Right of Appeal. A legislative act granting the state the right to appeal does not by imnli cation grant the same right to municipalities existing under stata law. The right of the sovereign to appeal must be authorized. Oklahoma City v. Tucker (Okla.) 1917D-984. (Annotated.) 104. (a) The right of the state to appeal from an adverse judgment rendered in a criminal prosecution is controlled by stat- ute, and exists only by specific statutory authority. (b) The right of the state to appeal on a question reserved by the representatives of the state in the trial court is based on section 5990, Okla. Revised Laws of 1910; but this statute does not confer the same right on municipalities. Oklahoma City v. Tucker (Okla.) 1917D-984. (Annotated.) Notes. Nature of action or proceeding for vio- lation of municipal ordinance. 1917A- 330. Right of municipality to appeal from judgment in prosecution for violation of ordinance. 1917D-986. f. Repeal. 105. Implied Repeal. Where a later or- dinance contains no repealing clause, it will not repeal a former ordinance unless the later one is clearly intended as a sub- stitute for the earlier, or there is an irrec- oncilable conflict between them, and then only so far as the inconsistency extends. Walsh v. Bridgeport (Conn.) 1917B-318. 6. APPROPRIATIONS. 106. The electors of a municipality voted to appropriate a sum of money to pay the cost of the construction of certain portions of a proposed sewer. The layout by the board of street commissioners was rejected by the court of common council, under the starter, which gave it plenary powers over the layout for sewers, and a new layout made. It is held that an assessmem for the sewer as newly laid out was valid, not- withstanding the appropriation had not been apportioned, for until the assessment was made the court of common council had the right to discontinue the origin > I pro- ceeding, and the appropriation could bo used only for the construction of the s wer on the original layout. Dellaripa's Appeal (Conn.) 1917B-862. (Annotated.) 107. Diversion. An appropriation of public moneys for one object cannot, be used for another. Dellaripa's Apreal (Conn.) 1917B-862. (Annotated.) 108. Reasonableness Judicial Review. The reasonableness of the appropriation demanded by Mo. Rev. St. 1909, 9787 et seq., for the support of the metropolitan police system for Kansas City, is for the legislature and not for the courts. State v. Jost (Mo.) 1917D-1102. Note. Right to use public funds for purpose other than that of appropriation. 1917B- 864. 7. FISCAL MANAGEMENT. a. Power to Borrow Money and Issue Bonds. 109. Repeal of Authorizing Statute Effect on Pending Proceedings. The omis- MUNICIPAL CORPORATIONS. 623 sion of sections 372 to 3S1, Okla. Compiled Laws of 1909, from the Revised Laws of 1910 does not operate to abate a proceed- ing pending under said sections prior to the date when said Revised Laws of 1910 went into effect. In re Application of State, etc. (Okla.) 1916E-399. (Annotated.) Note. Authority of public officer to complete bond issue after repeal of statute author- izing issue. 1916E-406. b. Submission of Question to Voters. 110. Authorization Majority Vote Wl:at Constitutes. S. Dak. Po'l. Code, 1229, subd. 5, declaring that no bond shall be issued by city council unless the legal voters of the city by a majority shall have determined in favor of issuing the bonds, warrants the issuance of bonds upon a majority vote in favor thereof, though the majority cast in favor of issuance is not a majority of the voters of the city. Span- gier v. Mitchell (S. Dak.) 1918A-373. c. Debt Limit. 111. Debt Limit Statute Construed. Sec- tion 2218, N. Dak. Compiled Laws 1913, construed, and held not to authorize the making of the contracts in question. The evident purpose of that statute was to limit the public officers from incurring lia- bilities (within the constitutional debt limit) to such sum as may 'be liquidated during the current or subsequent years oht of the revenues- which may be raised within the maximum tax rate permitted by law. It does not purport to, nor could it legally, authorize the incurring of lia- bilities exceeding the constitutional debt li.nit. Anderson v. International School District (N. Dak.) 1918A-506. 112. Municipal Resources Anticipating Eevenues. In ascertaining whether the constitutional limit has been exceeded, funds in the treasury available for meeting the district's liabilities may be considered, also taxos levied and uncollected, but the district officers havo no ri^ht to antir-i'-ate revenues to be derived from tax levies to be made in future years. Anderson v. International School District (X. Dak.) 1918A-506. 113. Amount of Debt Computation Aggregation of Deferred Payments. Da- fondant school district, whose debt limit V.T.S nbout $16,000, entered into a contract on May 27, 1913, with defendant Bartel- son for the erection of a schnolhonse at the agreed price of $24.000. Eighty-five per cent of the labor and materials furnished was payable monthly uoon estimates of the architect, and the balance within a short time after the completion of the building, whir-h was to be completed on or before October 15, 1913. It also in July and August, 1913, entered into two other con- tracts, one for heating and ventilating the building, and the other for limiting the same, which contracts called for the pay- ment of $3,679 aud $599.95, respectively, at the completion thereof. Held, that these contracts created a present debt against the district at the date they were entered, into, which debt, after deducting available funds in the treasury applicable to the payment there- of, greatly exceeded the constitutional dabt limit; and to the extent of such excess the contracts are void, and further pay- ments thereon are enjoined. Anderson v. International School District (N. Dak.) 1918A-506. (Annotated.) 114. Executory Contract as Creating Debt. The purpose of section 1S3 of our N. Dak. state constitution in limiting the debt of certain municipalities, including school districts, to five per cent upon the assessed valuation of the taxable property therein, is to prevent such municipalities from improvidently contracting debts for other than ordinary current expenses of administration, and to restrict their bor- rowing capacity, -and ths word "debt," as therein employed, should receive a broad meaning so as to cover liabilities created under executory contracts for public im- provements, although nothing is due there- under until the same are executed in part or in whole. Anderson v. International School District C N - Dak.) 1918A-506. (Annotated.) 115. Expenditure Assessed Against Prop- erty. Though the charter of a municipal- ity provided that the common council should not order any public work requiring an expenditure of more than $10,000, un- less approved by a majority at a city meeting, the board of street commissioners ir.ay make a valid assessment for the con- struction of a sewer, costing much more than $10,000, before any appropriation has been made, for until the amount of the special assessment has been laid, the por- tion to be paid by the city cannot be determined. Dellaripa's Appeal (Conn.) 1S17B-862. 116. Provision for Debt Limit Notice of Provision Imputed. One dealing with a municipality must take notice of its debt limit provision. German National Bank v. Ccvington (Ky.) 1917B-189. 117. Street Improvement Bonds. "vVTiere a city having power to make a street im- provement, but without power to have the cost assessed against the abutting prop- erty in exceFS of fifty per cent of the value thereof, contracted for street improve- ments, the cost of -which exceeded fifty per cent of the value of the abutting prop- erty, and issued bonds fo^ the cost of the work and pledged its credit for their pay- ment, and the bond issue was taken over by th contractor, who completed the work, the obligation incurred by the city is an 624: DIGEST. 1916C 1918B. indebtedness within Ky. Const. 157, lim- iting municipal indebtedness; and, where the debt created exceeds the debt limit, any holder of the bonds cannot recover from the city thereon. German National Bank v. Covington (Ky.) 1917B-189. (Annotated.) 118. Where street improvement bonds are not payable wholly out of a special fund from assessment on the property ben- efited, but the faith and credit of the city are pledged for their payment, they are within Ky. Const. 157, limiting municipal indebtedness. German National Bank v. Covington (Ky.) 1917B-1S9. (Annotated.) 119. Improvement Assessed Agaiust Property Benefited. Contracts for local improvements, the cost of which is to be borne wholly by the property benefited, do not create any "municipal indebtedness" within Ky. Const. 157, limiting municipal indebtedness. German National Bank v. Covington (Ky.) 1917B-189. (Annotated.) Notes. Interest on municipal bonds as factor in determining whether municipality has ex- ceeded constitutional debt limit. 1918B- 598. Right of municipality to contract for local improvement with special assessment against persons benefited where cost ex- ceeds authorized debt linyt. 1917B-192. d. City Warrants. 120. Where a resolution of the mayor and aldermen authorizes the clerk to issue interest-bearing warrants to plaintiff cov- ering the amounts then due only, the ac- tion of the clerk in issuing interest-bearing warrants for debts subsequently accruing does not bind the city. Alabama City, etc. R. Co. v. Gadsden (Ala.) 1916C-573. 121. Authorization of Warrants Future Indebtedness. A resolution of the mayor and aidermen that interest-bearing war- rants "be issued covering the amounts due" plaintiff applies only to warrants thpn dua and outstanding, and not to future indebt- edness. Alabama City, etc. Co. v. Gads- den (Ala.) 1916C-573. 122. Agreement for Interest. A resolu- tion of the mayor and aldermen that in- terest-bearing warrants be issued to plain- tiff lighting company whose claims were past due, which was entered in the min- utes and carried into effect by the clerk's interlineation of the provision for interest in the then outstanding warrants, is to be construed as an agreement to pay inter- est in consideration of plaintiff's continu- ing to furnish light to the city. Alabama City, etc. R. Co. v. Gadsden (Ala.) 1916C- 573. (Annotated.) 123. Interest on Warrants. "Where no date for payment of interest-beaiiug city warrants was stipulated, interest on the interest due should be allowed from the date of bringing suit, which event fixed the time when the interest became due and payable. Alabama City, etc. Co. v. Gads- den (Ala.) 1916C-573. (Annotated.) 124. Where a resolution of the mayor and aldermen provided for the issuance of interest-bearing warrants to plaintiff, whose claims were past due, which was curried into effect by the clerk's inter- lineation of the interest provision in out- standing warrants, plaintiff was entitled to interest for the time payment was there- after further deferred. Alabama City, etc. Co. v. Gadsden (Ala.) 1916C-573. (Annotated.)' 125. A payment to the holder of city warrants having been accepted as a pay- ment of the principal, with the understand- ing that the right to more interest tiian paid should be settled in court, the ques- tion whether the amount so paid shoulu bd applied first to the payment of interest was eliminated from the ease. Alabama City, etc. R. Co. v. Gadsden (Ala.) 1916C- 573. (Annotated.) 126. Where a city being confessedly un- able to pay plaintiff's warrants, after nego- tiations with plaintiff agreed to pay in- terest so as to effect a postponement of payment, such negotiations and agreement were equivalent to a presentation for pay- ment. Alabama City, etc. R. Co. v. Gads- den (Ala.) 191GC-573. (Annotated.) 127. Ordinarily city warrants draw in- terest, if at all, only after presentation, to the disbursing officer and denial of pay- ment for want of funds, since a municipal corporation, unlike a private person, is not: bound to seek its creditors. Alabama City, etc. R. Co. v. Gadsden (Ala.) 1916C-573. (Annotated.) 128. Ala. Code 1907, 1205, providing that, if no interest is stipulated to be raid on municipal warrants, they shall draw the legal rate after presentation, recog- nizes a municipality's power to contract to pay interest, but it did not require fur- ther presentation of warrants upon which the city agreed to pay interest, upon de- mand made prior to the enactment of the statute. Alabama City. etc. R. Co. v. Gadsden (Ala.) 1916C-573. (Annotatsd.) Note. Interest on city warrants. 1916C-576. 8. LETTING OF CONTRACTS. 129. Deposit With Bid Effect of With- drawing Bid. Under Baltimore City Char- ter, as amended by Md. Laws 1903. c. 363, providing: that a contract for supnlies or work shall be awarded to the lowest re- sponsible bidder; that bids when filer] shal] be irrevocable; that each bid shall b~ ac- companied by a certified check of $500f MUNICIPAL CORPORATIONS. 625 and that the successful bidder ? failing to execute the contract and furnish a bond, shall forfeit his check as liquidated dam- ages one may not withdraw his bid, even before the opening of the bids, and so ( being refused permission to do so, and re- fusing to sign the contract, on it being awarded him, he cannot recover the amount of his check. Baltimore v. J. L. Robinson Construction Co. (Md.) 1916C-425. (Annotated.) 130. Necessity for Readvertisement. "Where the lowest bidder to whom contracts for paving have been awarded acknowl- edged his inability to give satisfactory security, as required by the city charter, the contracts may be awarded to the next lowest bidder without readvertisement. Leitz v. New Orleans (La.) 1916D-1188. (Annotated.) Notes. Eights of parties with respect to cer- tified check or other deposit made with bid. 1916C-427. Implied liability of municipality under contract let contrary to statute requiring competitive bidding. 1917A-1263. Necessity for readvertisement where bid- der to whom municipal contract is awarded fails to comply with conditions or aban- dons work. 1916D-1189. 9. OFFICERS. a. Appointment. 131. Failure to Announce and Certify Appointment. Where the result of a baliot of the common council of a city electing a person as city attorney was declared and recorded, the person elected was not de- prived of his office by the mayor's failure to declare him elected, or by the failure of the city clerk to comply with Wis. St. 1913, 925 29a, providing that to the per- son appointed to any office the city clerk shall issue a certificate that such person has qualified for such position, since the duty of the clerk was ministerial and no part of the appointing power, and an ap- pcintment is made when the last act re- quired of the person vested with the power has been performed. State v. Tyrrell (Wis.) 1916E-270. 132. Wis. St. 1913, 4971, providing that words purporting to give a joint authority to three or more public officers or other persons shall be construed as giving such authority to a majority of such officers or other persons unless otherwise expressly declared, does not apply to the election of a city attorney under Lake Geneva charter (Laws 1885, c. 322) 7, providing tbat the common council may elect a city attorney, as the authority is not a joint authority given to the aldermen and the mayor, but an authority given to the com- mon council in its collective capacity as 40 common council. State v. Tyrrell (Wis.) 1916E-270. (Annotated.) 133. Election by Council Effect of Bis- regarding Valid Ballot. Where a ballot taken by the common council of a city for city attorney, resulting in three votes for one person, two votes for other persons, and one blank ballot, elected the person receiving the three votes, the election is not invalidated by the fact that the mem- bers of the council mistakenly held that he was not elected, nor by their vote to defer action upon the election of a city attorney. State v. Tyrrell (Wis.) 1916E- 270. 134. Reconsideration of Appointment. After the election of a city attorney by the common council of a city and his acceptance and qualification, the council had no power to reconsider their action and elect another person. State v. Tyrrell (Wis.) 1916E-270. b. Compensation. 135. Right to Compensation Failure to Approve Bond. Under Rem. & Bal. Wash. Code, 7722, requiring the marshal in towns of the fourth class, before entering upon his official duties, to execute a bond to the town, and providing that the bond shall be approved by the council, a marshal appointed, giving bond and oath and entering upon and performing the duties of his office is entitled to salary as marshal de jure, notwithstanding failure of the council to approve his bond. Barth- olomew v. Springdale (Wash.) 1918B-432. 136. Officer De Jure Eight to Compen- sation Payment to De Facto Officer. The rule that an officer de jifre cannot recover from a municipal corporation salary for the period he was deprived of his office where it was paid to an officer de facto applies to a police operator, declared by the city charter to be an officer; it being immaterial that he was an appointive offi- cer, and that he was wrongfully dis- charged. Thompson v. Denver (Colo.) 1918B-915. (Annotated.) c. Removal. 137. Removal Failure to Enforce Laws. The state may impose upon the local offi- cers of the city of Tulsa specific duties in the matter of the enforcement of the laws of the state having force and effect with. in the city, and may provide penalties for failure to discharge such duties, and in respect to the duties so imposed the mu- nicipality and its officers are the agents of the state, and subject to its command and control at all times, and may be re- moved for a failure to enforce such laws. State v. Linn (Okla.) 1918B-139. (Annotated.) 138. Procedure for Removal Charter Remedy not Exclusive. The provisions in 626 DIGEST. 1916C 1918B. the charter of the city of Tulsa for the removal of the chief of police of such city are not exclusive, but such authority is cumulative to and concurrent with the jurisdiction vested in the district court by the general laws of the state. State v. Linn (Okla.) 1918B-139. 139. Grand Eapids Charter, tit. 2, 11, requiring a two-thirds council vote for re- moval, refers to members who attended and heard all the evidence, and a reading thereof by an unofficial stenographer does not empower those who have been absent to vote. Hawkins v. Grand Eapids (MiciO 1917E-700. (Annotated.) 140. The city council is held not to hare given an officer a fair trial, where several oouncilmen intimated their opinion of his guilt prior to the hearing, and the vote 1 amoving him followed an all-night ses- sion, and denial of accused's request to later present evidence. Hawkins v. Grand Kapids (Mich.) 1917E-700. (Annotated.) 141. A council committee which formu- lated the removal charges is not thereby disqualified from voting on them in the council. Hawkins v. Grand Eapids (Mich.) 1917E-700. (Annotated.) 142. Nature and Requisites of Proceed- ing for Removal Fairness and Impartial- ity. Eemoval proceedings under Grand Rapids Charter, title 2, 11, are of a quasi judicial character, and must insure a fair trial. Hawkins v. Grand Eapids (Mich.) 1917E-700. (Annotated.) 143. Procedure for Removal Necessity of Prescribing Rules. Under Grand Rap- ids Charter, title 2, 11, supra, and title 3, 11, authorizing the council to enact rules of procedure in removal cases, ic is held that proceedings complying with titla 2 are not void because no rules of pro- cedure had been prescribed under titl^ 3. Hawkins v. Grand Eapids (Mich.) 1917E- 700. 144. Removal for Acts During Previous Term, Where a city officer succeeds him- self, he may be removed for misconduct during the preceding term. Hawkins v. Grand Eapids (Mich.) 1917E-700. 145. Title 2, 11, supra, was not im- pliedly repealed by Mich. Pub. Acts 1915, No. 145, authorizing the governor to re- move elective city officers, for the removal power is concurrent. Hawkins v. Grand Eapids (Mich.) 1917E-700. 146. Grand Rapids City Charter, tit. 2, 11, governing the council removal of city officers for misconduct, is not unauthorized by the constitution of 1850, article 15, 13, 14, and article 4, 38, conferring general legislative control over municipal- ities, include such authority. Hawkins v. Grand Rapids (Mich.) 1917E-700. 147. Officers Power to Remove. A mu- nicipal corporation has inherent power to remove its officers. Hawkins v. Grand Ifapids (Mich.) 1917E-700. 148. Power to Remove Officer Milk In- spector. B. I. Act March 14, 1870, c. 829, provided that the mayor and aldermen of any city and town council of any town might annually appoint one or more milk inspectors for their respective places, and Laws 1912, c. 863, required the election of a milk inspector in the city of Providence obligatory. Laws 1896, c. 333, 1, au- thorized inspectors to employ, subject to the approval of the town council and the mayor and aldermen, one person as col- lector of samples, which collector, on being employed, is required to be engaged to the faithful discharge of his duties before the city or town clerk, who was required to keep a record thereof, and should re- ceive such salary as the mayor and alder- rjcen or town council should determine. Laws 1900, c. 785, 1, provides that the inspector may at any time dismiss such collector, and, subject to the same ap- proval, may appoint another person in his stead. Held that, since boards of alder- men and town councils are expressly au- thorized to act as local boards of health, and the city council of the city of Provi- dence is vested .with such jurisdiction by its charter, a milk sample collector ap- pointed pursuant to such statutes in the city of Providence was not a state or public officer, but was an employee whom the city council could remove for cause, and whom the council might suspend from service pending the determination of charges. Chace v. City Council (B. I.) 1916C-1257. d. Personal Liability. 149. Though the mayor and councilmen of a city receive no comper.sation for such services, they are liable for injuries re- ceived by reason of a defective way, where, with notice of the detects, they do not repair them, although authorized by the charter to do so. Pullen v. Eugene (Ore.) 1917D-933. (Annotated.) 150. Defective Condition of Street. The charter provision that a city should not be liable to any person for injuries caused by defects in sidewalks or streets unless the mayor, the chairman of street com- mittee, or the street commission shall have had actual notice and reasonable oppor- tunity to repair the defect, and that iu no case shall more than $100 be recovered as damages from the city, is not in violation of Ore. Const, art. 1* 10, declaring that every person shall have remedy by due process of law for injuries done his per- son, property or reputation; for. as the city council is given power to repair the streets and sidewalks, one injured by rea- son of defects may maintain an action against the city officers for their breach of official duty. Pullen v. Eugene (Ore.) 1917D-933. (Annotated.) MUNICIPAL CORPORATIONS. 627 10. COUNCIL MEETINGS AND PRO- CEEDINGS THEKEAT. 151. Power of Majority of Quorum. Un- der Lake Geneva Charter (Laws Wis. 1885, c. 322) 1, providing that all offi- cers other than elective officers shall be appointed by the common council, section 7 providing that the common council at its first meeting may elect a city attorney, St. 1P13, 925 49, providing that the mayor and aldermen of cities shall constitute the common council, and that whenever a majority or certain proportion of the mem- bers is required to take action or form a quorum the mayor shall not be counted, and that he shall have no vote except in case of a tie, and section 925 51, provid- ing that two-thirds of the members shall constitute a quorum for the transaction of business, where the mayor and the six aldermen were present when a ballot was taken for city attorney, resulting in three votes for one person, two votes for other persons, and one blank ballot, the person receiving the three votes was elected, as in the absence of any statute to the con- trary the majority of a quorum is suffi- cient to elect, and a majority of the votes cast where all the aldermen are present is sufficient, though some do not vote, and whether, accurately speaking, the common council elects or appoints a city attorney, the power is to be exercised by the common council as a collective body, acting in its capacity as common council. State v. Tyrrell (Wis.) 1916E-270. (Annotated.) 152. Action of Council Eight to Vote Effect of Personal Interest. A member of a governing body cannot vote on any ques- tion involving his own character or con- duct, or his right as a member, or his pecuniary interest, if that be immediate, particular, and distinct from the pub ic in- terest; and hence a borough councilman is disqualified from voting for a resolution accepting his resignation from the coun- cil. Commonwealth v. Raudenbush (Pa.) 1917C-517. (Annotated.) Notes. Legality of action by majority of quor- um of municipal council. 1916E-274. Right of member of municipal council to vote on matter involving his personal interest. 1917C-518. 11. MUNICIPAL BOARDS. 153. Where an ordinance enacted by a city under Pa. Act April 25, 1903 (P. L. 314), authorizing cities to establish cer- tain institutions with power to acquire property, authorized a board of trustees created by the city to manage certain prop- erty, to hold property for the purposes comprised in the object of the board's creation, with the powers and subject to the restrictions prescribed by such stat- ute, but made no other change in the board's status and did not provide ior a transfer of the property to it, the board remains merely the city's administrative agent with respect to the property. Board of Trustees of Phila. Museums v. Trustees of Univ. of Pa. (Pa.) 1917D-449. 154. Property Powers of Administra- tive Board, A board of trustees created by a city as its administrative agent to manage a museum and the premises on which the museum buildings were located cannot, in the absence of a clear intent, shown by ordinance, to create a distinct entity as depository of the legal title or of any legal transfer to the board, question the city's right to convey the property. Board of Trustees of Phila. Museums v. Trustees of Univ. of Pa. (Pa.) 1917D-44&. 12. RECORDS. 155. Necessity of Record. An informal agreement by the mayor and aldermen that interest should be paid on plaintiffs claims, which was not entered in the min- utes of the board for fear other creditors would demand interest, is of no eff ;ct. Alabama City, etc. R. Co. v. Gadsden (Ala.) 1916C-573. 156. The law requires a record of the proceedings of the mayor and aldermen, so that those acting under it may have no occasion to look beyond it, to avoid leav- ing such proceedings to be proved by parol evidence, and to make certain that rights shall not depend on the mere recollection of witnesses. Alabama City, etc. R. Co. v. Gadsden (Ala.) 1916C-573. 13. FIRE AND POLICE DEPART- MENTS. a. Authority to Maintain. 157. The law creating a metropolitan police system for Kansas City is not un- constitutional because of the flexible pro- visions in Mo. Rev. St. 1909, 9787, by which the determination of the population and the number of police districts is left to the police commissioners. State v. -lost (Mo.) 1917D-1102. (Annotated.) 158. Census As Sole Source of Infor- mation Construction of Statute. The law requiring an "estimate" of population "from the best known source," for the pur- pose of fixing the number of patrolmen for a metropolitan police system, does not re- fer to the federal census as the only source of information; a "census" being a finding of the population and not an "esti- mate." State v. Jost (Mo.) 1917D-1102. 159. The creation of a metropolitan po- lice system for Kansas City by Mo. Rev. St. 1909, 9787 et seq. is within the power of the state, though the city acts under a special charter adopted under Const, art. 9, 16; such charters being subservient to general laws. State v. Jost (Mo.) 1917D- 1102. (Annotated.) 628 DIGEST. 1916C 1918B. 160. Police Department Metropolitan Police Legislative Power to Establish. The peace and safety of its citizens being a matter of general state concern, the state can provide a metropolitan police system for cities and compel them to pay the expenses thereof. State v. Jost (Mo.) 1917D-1102. (Annotated.) Note. Validity of statutes creating metropol- itan police. 1917D-1112. b. Compensation. 161. Fulton City Charter (Laws N. Y. 1902, c. 63), 119, providing that call men sball be entitled to the same privileges as are accorded by the laws of tlie state to volunteer firemen, applies not only to the provision of Gen. Municipal Law, 205, as amended by Laws 1914, c. 400 (McKinney's Consol. Laws, Book 23, p. 128), for pay- ment of a certain sum to a volunteer fire- man totally disabled while in the discharge of his duties, but to its further provision for payment to his representatives if such injuries result in death. Hammond V. Ful- ton (N. Y.) 1917C-1137. 162. Bridgeport City Ordinance March 15, 1909, 134, provides for the regulation oi the fire department of the city by a board of fire commissioners, prescribes the manner of paying their salaries, and de- clares that the board may continue the sal- ary of a member of the department unable to perform his duties by reason of inca- pacity received while performing the usual duties of the department. In April, 1910, the city adopted an ordinance by which members of the fire department were di- vided into three classes, section 2 of which provided the yearly salaries of each grade, but made no reference to the method of compensation, the time when it was to be paid, or the power of the commissioners to continue the salary of a member when in- capacitated from service. It is held that snch later ordinance did not operate as an implied repeal of the former, so as to war- rant payment of salary to a fireman while absent from duty because of illness not contracted in the service of the depart- ment. Walsh v. Bridgeport (Conn.) 1917B- 318. 163. Pay of Fireman Absence on Ac- count of Sickness. Bridgeport City Ordi- nance March 15, 1909. 134, provides that the board of fire commissioners may con- tinue, in their discretion, the salary of any officer or member of the fire department who shall have received any injury while in the performance of his duty, iueapnc.-at- ing him from performing his usual duties in the department. It is held that such provision gives rise to a conclusive infer- ence that firemen will not be entitled to salary during absence because of inra"a- city to perform their duties not received while in the performance of duty. Walsh v. Bridgeport (Conn.) 1917B-318. C. Compensation for Injury. 164. Compensation to Injured Fireman Validity of Statute. Provision of N. Y. General Municipal Law (Consol. Laws, c. 24), 205, as amended by Laws 1914, e. 400 (McKinney's Consol. Laws, Book 2,1, p. 128), for payment of a certain sum by a city to the representatives of a volunteer fireman dying from injuries re- ceived in the performance of his duties, extended by City of Fulton Charter (Laws 1902, c. 63) 119, to its call men, being part of their contract of employment, is in the nature of insurance, part of the com- pensation agreed to be paid, and so does not contravene Const, art 8, 10, inhibit- ing appropriation of public money to private purposes. Hammond v. Fulton (N. Y.) 1917C-1137. (Annotated.) d. Status of Call Men and Volunteers. 165. Privileges of Call Men Construc- tion of Statute. Fulton City Charter (Laws N. Y. 1902, c. 63), 119, providing that its call men shall be entitled to the same privileges as "are accorded" by the laws of the state to volunteer firemen, in- cludes privileges under laws subsequently enacted; General Construction Law (Con- sol. Laws, c. 22), 48, 100 (McKinney'a Consol. Laws, Book 21, pp. 63, 85), pro- vides that words in the present tense in- clude the future, unless the general ob- ject of the statute or the context of the language used indicates that a different meaning is intended. Hammond v. Fulton (N. Y.) 1917C-1137. 166. Fire Department Privileges and Exemptions of Volunteers "Call Men." The word "privileges" in City of Fulton Charter (Laws N. Y. 1902, c. 63), 119 providing that the "call men" of the fire department shall be entitled to the same privileges and exemptions as are accorded by the laws of the state to volunteer fire- men, is used in the sense of rights, and so includes any right to payment in case of injury. Hammond v. Fulton (N. Y.) 1917C-1137. 14. TORTS. a. Public or Governmental Functions or Duties. 167. Liability for Personal Injury . Parks. In establishing, caring for and maintaining streets, highways and public parks, municipalities act in their govern- mental and not in their proprietary capa- city. Ackeret v. Minneapolis (Minn.) 1916E-897. (Annotated.) 168. Cities and villages are liable for injuries resulting from dangerous condi- tions in their streets; but, with this single MUNICIPAL CORPORATIONS. 629 exception, municipalities are not liable in damages for negligence in performing their governmental functions, unless such lia- bility has been imposed by statute. Ackeret v. Minneapolis (Minn.) 1916E-897. (Annotated.) 169. A municipality is not liable to a pedestrian injured by a door on private premises which opens outwards into the street, in the absence of a regulation for- bidding such a construction which it has neglected to enforce. Evans v. Edinburg (Eng.) 1916E-455. (Annotated.) 170. Wharves Personal Injury from De- fect Liability. Where a city maintained a floating public dock for the landing of launches and small water craft by day and night, and extended an implied in- vitation to the public to use it, plaintiff's failure to pay the required wharfage for landing his launch, does not make him a trespasser, so as to affect his right of ac- tion against the city for personal injury from alleged negligent maintenance of the dock. Harris v. Bremerton (Wash.) 1916C-160. (Annotated.) b. Private, Local or Corporate Functions or Duties. % 171. Operation of Electric Plant Lia- bility for Personal Injury. A city, owning and operating an electric plant, as au- thorized by Acts Tenn. 1891, c. 207, and Acts 1901, c. 11, though only to light its streets and municipal buildings, is en- gaging in performing a private function; and hence the rule of respondeat superior applies to it, so as to render it liable for negligent construction and maintenance of a heavily charged wire, which by coming in contact with a guy wire attached to a telephone pole caused the death of a line- man employed by the telephone company. Sp.ulman v. Mayor, etc. (Tenn.) 1916C- 1254. (Annotated.) 172. Liability for Acts of Agents Busi- ness Function Operating Filtration Plant. Where a city undertakes to construct and operate a filtration plant to supply water to its inhabitants, it is exercising a busi- ness, as distinguished from a governmental, function, and the maxim respondeat su- perior applies to the acts of its officers and agents in exercising such functions; and therefore it cannot avoid liability for the wrongful acts of its servants in hold- ing what they believe to be the city's property. Armstrong v. Philadelphia (Pa.) 1917B-1082. 173. Liability for Tort in Cleaning Street. The duty of keeping the streets of a municipality free from matter which, if allowed to remain, would affect the health of the public is a governmental function, the exercise of which would ex- empt the municipality from liability to a suit for damages to an employee with- out fault, who is injured by reason of a defective cart in which he is hauling "the sweepings of the streets" of such muni- cipality, and which has been furnished him for that purpose by the agents of the municipality. (a) This court will take judicial cogni- zance that the sweepings of the streets of a municipality contain matter which, if allowed to remain in the streets, will in- juriously affect the health of the citizens of such municipality. (b) And this is so notwithstanding peti- tion describes "the sweepings of the streets" as "dirt and trash." Mayor, ete. T. Jordan (Ga.) 1916C-240. (Annotated.) Note. Liability of municipality for tort com- mitted in cleaning streets or in removal of garbage, ashes, or other refuse. 1916C- 242. . Torts of Officers, Agents and Em- ployees. 174. A city that constructs and main- tains walks and footpaths in its parks which are used as thoroughfares in pass- ing from one part of the city to another is liable for injuries resulting from dan- gerous conditions in such walks caused by the negligence of its employees. Ac- keret v. Minneapolis (Minn.) 1916E-897. (Annotated.) d. Notice of Claim. 175. Presentation of Claims Necessity. Ala. Code 1907, 1191, providing that claims against a municipality must be presented within a certain time or they shall be barred, is a statute of nonclaim, and presentation within its provision is not prerequisite to the bringing of suit. Alabama City, etc. K. Co. v. Gadsden (Ala.) 1916C-573. ^ 176. Injury from Defect Notice of Claim Amendment. Under the Seattle charter providing that all claims against the city for damages shall contain all items of damage claimed, where a claim for per- sonal injuries made no claim for damages on account of the employment of a nurse, though such damage was known when the claim was filed, it is error to permit an amendment of the claim at the trial by including such damages, as the provision requiring the filing of a claim is statutory in its nature and there can be no amend- ment without statutory authority. Wag- ner T. Seattle (Wash.) 1916E-720. 177. Failure to File Claim Infancy as Excuse. N. Y. General Village Law (Consol. Laws, e. 64) 341, provides that nc action shall be maintained against a village for injuries by reason of tbe negli- gence, etc., unless commenced within one year after the cause of action accrued, 630 DIGEST. 1916C 1918B. nor unless, within 60 days thereafter, a written verified statement, etc. shall be filed with the village clerk. Held that, where a child of five was injured by the alleged negligence of a village, the fact of infancy did not incapacitate the infant from bringing a suit at once under Code Civ. Proc. 468, providing that an infant's right of action shall not be deferred on account of infancy; and hence the cause of action accrued at the time of the in- jury, and not from the date of the subse- quent appointment of a guardian ad litem. Murphy v. Fort Edward (N. Y.) 1916C- 1040. (Annotated.) 178. Where an infant five years of age was injured by the alleged negligence of a village on September 28, 1910, its right of action is not barred because it did not file the notice required by N. Y. General Village Law, 341, within the 60 days re- quired by such section, nor until August 5, 1912, under the rule that the law does not seek to compel a man to do that which he cannot possibly perform; the fail- ure of the father or mother to file the notice not being chargeable to the infant. Murphy Y. Fort Edward (N. Y.) 1916C- 1040. (Annotated.) 179. Purpose of Requirement of Notice. The purpose of the notice required by Iowa Code 1897, 3447, subd. 1, requiring ac- tions founded on injuries to the person because of defects in sidewalks to be brought within three months, unless writ- ten notice of the time and place of injury be served within 60 days from the injury, is to inform the city authorities of the location of the defect and the circum- stances attending the accident, so as to enable them to investigate the city's lia- bility while the facts are fresh, and ascer- tain the character of the defect and in- juries while witnesses are obtainable. Palmer v. Cedar Kapids (Iowa) 1916E- 558. 180. Injury to Wife or Child. Iowa Acts 22d Gen. Assem. c. 25, 1, enacted in 1888, provided that, in cases of personal injury from defective streets, etc. no suit shall be brought against a municipal cor- poration after 6 months from the time of irjury, unless written notice specifying th - place and circumstances of the injury shall be served upon it within 90 days nfter the injury, which provision was, in different language, carried into Code 1897, 3447, which provides that an action may be brought within the times herein limited after they accrue, and not afterwards; subdivision 1, those actions "founded on" j in jury to the person on account of defect- ive streets within 3 months, unless written notice specifying the time, place, and cir- cumstances of the injury be served upon the municipality within 60 days from the happening of the injury; subdivision 3. those "founded on" injuries to the person or reputation, including injuries to rela- tive rights, whether based on contract or tort, or for a statutory penalty, within two years. Held, that section 3447, subd. 1, was applicable to an action for dam- ages for the loss of the services, etc., of plaintiff's minor son by injuries from a defective sidewalk, so that an action could not be maintained, if notice of injury was not given as required thereby; the words "founded on" meaning to serve as a base or basis for, and not necessarily contem- plating a direct injury to the person suing. Palmer v. Cedar Rapids (Iowa) 1916E- 558. (Annotated.) 181. Notice of Claim by Parent for In- jury to Child Sufficiency. A notice given by a parent of a claim for injuries sus- tained by his minor child which contains the essential information required by the statute is sufficient, although it fails to state specifically that the parent claims damages on his own account and also as the statutory representative of his child, and fails to make an apportionment be- tween the two of the amount claimed. Ackeret v. Minneapolis (Minn.) 1916E- 897. 182. Officer to Whom Notice must be Given. , Under such statute, the fact that plaintiff pointed out to the legal officers of the municipality the place of her in- juries and gave them verbal notice there- of, does not excuse a failure to give the written notice, the purpose of the act being to provide written notice to the mayor and municipality, and it not appearing that the law officers of the municipality were authorized to waive such notice. White v. Nashville (Tenn.) 1917D-960. (Annotated.) 183. Actions for Personal Injury Re- quirement of Notice of Injury Validity. Tenn. Acts 1913, c. 55, entitled "An act to prescribe the method of bringing suits and to limit the time of bringing suits agai.ist municipal corporations on account of in- juries to persons or property resulting from the negligence of the officers or employees of such corporations," and declaring that no suit shall be brought agninst any mu- nicipal corporation on account of per- sonal or property injuries resulting from defective conditions of any street, alley, sidewalk, or highway unless within 90 days after such injury has been inflicted, a written notice shall be served upon the mayor of the municipality, stating the time and place where such injury was received and the general nature of the injury, and that failure to give notice shall be a valic 1 defense against any and all liability. It is held that as the act is general in its application and the classification is not unreasonable or capricious, the act is not invalid under Const, art. 11. S. or Const. U. S. Amend. 14, 1 (9 Fed. St. Ann. 392) a? class legislation. White v. Nashville (Tenn.) 1917I>-960. MUNICIPAL ELECTRIC LIGHTING PLANT NAMES. 631 184. Amendment of Notice. In an ac- tion against a city for personal injuries, the error in permitting the claim filed with the city to be amended to include damages not specified therein is harmless, where there was no attempt to prove such dam- ages. Wagner v. Seattle (Wksh.) 1916E- 720. 185. Sufficiency of Notice Address of Claimant. Under Rem. & Bal. Wash. Code, 7995, a claim against a city of the first class for injuries to a person who had resided at 208 Twenty-first avenue for six years was not defective, though it stated her street address as 218 Twenty-first ave- nue, where she was well known to the resi- dents of 218 Twenty-first avenue and proper inquiry there would have disclosed her residence, as the purpose of provisions requiring the filing of claims is to insure such notice to the city as will enable it to investigate the cause and character of the injury; and where there is a bona fide attempt to comply with the law and the notice filed actually accomplishes its pur- pose of notice, it is sufficient, though de- fective in some particulars. Wagner v. Seattle (Wash.) 1916E-720. (Annotated.) 186. Under Rem. & Bal. Wash. Code, 7995, requiring claims for damages against any city of the first class to con- tain a statement of the actual residence of the claimant by street and number at the date of filing the claim and for six months immediately prior thereto, in an action for personal injuries the court has no power to permit an amendment of the claim as filed to state a different street ad- dress than that therein stated. Wagner v. Seattle (Wash.) 1916E-720. 187. Scope of Notice Injuries Provable. While a claim against a city for personal injuries cannot be amended at the trial to include items of damage known at the time of the filing of the claim, but not included therein, injuries not specifically mentioned in the claim, but which natu- rally and proximately flow from the in- juries described in the claim, are provable. Wagner v. Seattle (Wash.) 1916E-720. Notes. Sufficiency of statutory notice of claim against municipality with respect to name and address of claimant. 1916E-722. Notice to municipality as prerequisite to action for injury to wife or child of plaintiff. 1916E-560. Infancy or other disability of claimant as suspending limitation of time for filing claim against municipality. 1916C-1042. e. Pleading. 188. Petition Insufficient. The petition was subject to general demurrer, and should have been dismissed. Mayor, etc. v. Jordan (Ga.) 1916C-240. MUNICIPAL ELECTRIC LIGHTING PLANT. See Municipal Corporations, 38. MUNICIPAL ICE PLANT. See Municipal Corporations, 37. MUNICIPAL TELEPHONE SYSTEM. See Municipal Corporations, 40, 41. See Homicide. MURDER. MUTUAL ACCOUNTS. See Accounts and Accounting. MUTUAL BENEFIT INSURANCE. See Benevolent Associations. MUTUALITY. Eemedy denied for lack of mutuality, see Specific Performance, 1. MUTUALITY OP CONTRACT. See Vendor and Purchaser, 4. MUTUAL TELEPHONE COMPANY. See Telegraphs and Telephones, 1. NAMES. See Trademarks and Tradenames. Effect of misstatement in application, see Beneficial Associations, 7. Omission of name of grantor, see Deeds, 20. Naming of grantee, see Deeds, 21, 22. Misspelling of name in notice, effect, see Depositions, 2. Idem sonans applied signatures on qualify- ing consent, see Intoxicating Liquors, 33. Variance, see Pleading, 97. Injunction to restrain use, see Societies and Clubs, 3, 4. Effect of name given statute on construc- tion, see Statutes, 107. 1. Where an indictment alleges the lar- ceny of a cow belonging to A. B., and the proof showed it to belong to A. B., Jr., there is no fatal variance; the addition of "Jr." to a name being a mere matter of description. Harris v. State (Wyo.) 1917A-1201. (Annotated.) 2. Where a given name is written, the mid-lle name or letter may be disregarded in identifying the person. Riley v. Litch- field (Iowa) 1917B-172. 3. Disregarding Middle Name or Initial. Where two or more Christian names are 632 DIGEST. 1916C 1918B. used, the middle name or names or letter i" generally disregarded. Eiley v. Latch- field (Iowa) 1917B-172. 4. Presumption That Letter Constitutes Name. A person's name is composed of the Christian name and a surname, and a Christian name may consist of letters only, and there is no presumption that letters are not themselves Christian names, and where a letter or letters appear before a surname they are treated, in the absence of any showing to the contrary, as the Christian name assumed by the person. Eiley v. Litchfield (Iowa) 1917B-172. (Annotated.) 5. Change l>y Judicial Proceeding Dis- cretion of Court. Under the statute re- quiring sufficient and reasonable cause for a change of name, a decree is not a mat- ter of right, but of judicial discretion. Neb. Rev. St. 1913, c. 53. In re Tamino- Bian (Neb.) 1917A-435. (Annotated.) 6. Variance Between "Wood" and "Woods." The evidence is held to be suffi- cient to warrant a finding by the jury that defendant and deceased were as well ki-own by the name "Wood," used in the indictment, as by their true name, "W'oods," preventing a fatal variance. Woods v. State (Ark.) 1918A-348. (Annotated.) 7. Idem Sonans Omission of Final "S." The names "Wood" and "Woods" are not idem sonans. Woods v. State (Ark.) 1918A-348. (Annotated.) Notes. Validity and construction of statute au- thorizing change of name by individual. 1917A-437. Effect of use of "Sr." or "Jr." in con- nection with name. 1917A-1211. Addition or omission of final "s" as affecting application of doctrine of idem sonans. 1918A-351. NATIONAL BANKS. See Banks and Banking, 77-80. NATIONAL FOEEST EESEEVES. See Trees and Timber, 21. NATIONAL GUAED. See Militia. NATIONAL PUEPOSES. Gift for, see Charities, 8. NATURAL HEIRS. Meaning, see Deeds, 41, 42. NATURALIZATION. Bee Aliens, 11-14. NAVIGABLE WATERS. See Waters and Watercourses, 1-4, 26-29. NEAR BEER. What i, see Intoxicating Liquors, 10. NECESSARIES. Wife's right to pledge husband's credit for, see Husband and Wife, l, 2. Liability of husband, see Husband and Wife, 38-40. Contract of infant, see Infants, 7. Professional services of attorney, see In- fants, 7, 22. Liability of parent, see Parent and Child, 4. Defined, see Taxation, 56. NEGATIVE PEEGNANT. See Pleading, 6, 16-18. NEGATIVE TESTIMONY. Weight, see Evidence, 155-157. NEGLIGENCE. 1. Actionable Negligence, 633. a. In General, 633. b. Degrees of Care Defined. 633. c. Duty of Person Furnishing Accom- modations of Public Nature, 634. d. Duty to Invitee, 634. e. Condition of Premises, 634. (1) In General, 634. (2) Injuries to Customers oa Business Premises, 635. (3) Attractive Nuisances, 635. (4) Dangers Near Highway, 638. (5) Stationary Engines, 636. f. Violation of Statute, Q56. g. Proximate Cause, 636. 2. Contributory Negligence, 637. a. In General, 637. b. Doctrine of Last Clear Chance, 637. c. Contributory Negligence of Minors, 637. d. Attempt to Save Life, 638. e. Imputable Contributory Negligence, 638. (1) Negligence of Driver of Ve- hicle, 638. I (2) Custodian to Child, 638. 8. Actions, 638. a. Pleading, 638. (1) Complaint or Declaration, 638. (2) Plea or Answer, 639. (3) Amendments, 639. (4) Variance, 640. b. Evidence, 640. (1) Presumptions and Burden of Proof, 640. (2) Admissibility of Evidence, 640. (3) Sufficiency of Evidence, 641. . Province of Court and Jury, 41. d. Instructions. 642. e. Verdict or Findings, 644. NEGLIGENCE. 633 See Automobiles, 16-26, 29, 31, 32-35, 36- 62; Explosions and Explosives; Inde- pendent Contractors; Streets and Highways, 37-47. Care required in excavating, see Adjoining Landowners, 9. Care required of owner to protect his prop- erty, see Adjoining Landowners, 10, 11. Liability of attorney, see Attorneys, 70-74. Liability of bailee of animals, gee Bail- ment, 4, 5. Carriers' duties to passengers, see Carriers of Passengers, 15-46. Liability of hospital, see Charities, 26. Negligent confusion, see Confusion, 7. Nonsuit proper when, see Dismissal and Nonsuit, 2. In wiring and supply of current, see Elec- tricity, 10-24. Liability for injury, see Elevators, 1-5. Negligence of insured as defense, see Fire Insurance, 8, 19. In laborers' kindling fire near railway track, see Fires, 6-9. Liability of coca-cola bottler for illness caused by decomposed mouse, see Food, 22-24. Liability for escape of gas, see Gas and Gas Companies, 2-4. Liability of innkeeper to guest, see Inn- keepers, 3-10. Use of "proximate cause" without denn- ing, see Instructions, 14. Liability of ditch owner for damage from seepage, see Irrigation, 11, 12. Liability of landlord, see Landlord an* Tenant, 17-19. Eemedy of life tenant, see Life Estates, 1. As affecting compensation under "Work- men's Compensation Act. See Master and Servant, 107, 187. Action against attorney by attachment bondsmen, see Parties to Actions, 4. Duty toward workman by physician em- ployed by master, see Physicians and Surgeons, 16. Malpractice, see Physicians and Surgeons, 19-45. Care required of physician, see Physicians and Surgeons, 23-27. Leaving sponge in wound, see Physicians and Surgeons, 37, 38. Complaint for personal injuries, see Plead- ing, 5. Demurrer to complaint, see Pleading, 40. In operating hand car see Railroads, 52, 68. Care at grade crossing, see Eailroads, 64- 66. Contributory negligence at crossings, see Railroads, 69-77. Contributory negligence in accident on right of way, see Railroads, 85-87. Liability of school district, see Schools, 5-8. Liability of sheriff for negligence, see Sheriffs and Constables, 8-10. Liability for collision, see Ships and Ship- ing; 2. Liability of street railway companies, see Street Railways, 20-43. In sending message, see Telegraphs and Telephones, 27, 28. Of operators of "Ocean Wave," see The- aters and Amusements, 8. In damage to riparian land by floating logs, see Trees and Timber, 25. Liability of warehouseman for damage by tides, see Warehouses, 3, 4. Liability of water company for failure to furnish water for fire, see Waterworks and Water Companies, 10. 1. ACTIONABLE NEGLIGENCE. a. In General. 1. What Constitutes Negligence Breach of I>uty Essential. Actionable negligence arises only from breach of a legal duty. Fusselman v. Yellowstone Valley Land, etc. Co. (Mont.) 1918B-420. 2. Liability of Manufacturer to Con- sumer. The manufacturer of chewing to- bacco is not liable for injury to the ulti- mate consumer, a purchaser from a re- tailer, for injury from a bug imbedded in a plug, the manufacturer having no knowl- edge or notice of its presence and the con- sequent danger of using the tobacco. Lig- gett etc. Tobacco Co. v. Cannon (Tenn.) 1&17A-179. Notes. Liability as for negligence of person obstructing highway under statutory or municipal authority. 1917A-1003. Liability as for negligence of person who irjures bystander while acting in self- defense. 1916C-1150. Liability for injury to infant stealing ride on vehicle. 1917D-379. b. Degrees of Care Defined. 3. Degrees of Negligence. There is a distinction between the degrees of negli- gence, as being slight, ordinary, or gross. Massaletti v. Fitzroy (Mass.) 1918B-1088. 4. Degrees of Negligence Gratuitous Undertaking. Justice requires that, to make out liability in case of a gratuitous undertaking, plaintiff ought to prove a materially greater degree of negligence than where defendant is to be paid for doing the same thing. Massaletti v. Fitz- roy (Mass.) 1918B-1088. 5. Wall Abutting on Street. In an ac- tion against a railroad company for in- jury to an infant from being struck, while playing in the street, by a stone which fell from a railroad wall, an instruction that defendant was required to use "that degree and amount of care which is within the range of human precaution and fore- sight to keep the wall in such condition as not to cause injury to a person upon the public highway" is erroneous; the de- 634 DIGEST. 1916C 1918B. fendant being required to exercise only that reasonable care required of the or- dinary prudent man under similar circum- stances. Soriero v. Pennsylvania B. Co. (N. J.) 1916E-1071. e. Duty of Person Furnishing Accommo- dations of Public Nature. 6. A child six years old going on a county public dock with an elder brother visiting the dock to receive a newspaper is not a trespasser, but is legally thereon connected with a purpose for which it was intended, and the county cannot es- cape liability for injury to the child on the ground that he was a trespasser. Gregg v. King County (Wash.) 1916C-135. (Annotated.) 7. A county maintaining a public dock for public use and convenience is charge- able with notice that it may be used as a public street or other public place by any member of the public, including young children, especially in view of the pres- ence of a confectionery store on the dock constituting an implied invitation to chil- dren and others to visit the dock, and it cannot escape liability for injuries to a child on the dock on the theory that it could not anticipate the presence of the child thereon. Gregg v. King County (Wash.) 1916C-135. (Annotated.) d. Duty to Invitee. 8. Owners of Premises Liability for Injury. An invitation not accepted or acted on creates no legal relationship so as to be the basis for a charge of negli- gence. Fusselman v. Yellowstone Valley Land, etc. Co. (Mont.) 1918B-420. o. Condition of Premises. (1) In General. 9. Wharves Personal Injury from De- fect Liability. The degree of care re- quired by a county maintaining a public dock for public use and convenience must be considered with reference to the uses and purposes for which the dock wa? con- structed, maintained, and operated, and open to all classes of people, includ'fig children, who may be drawn there by curiosity or interest in the arrival of boats or who may be sent there on errands for their parents. Gregg v. King County (Wash.) 1916C-135. (Annotated.) 10. The common-law rule of liability of lessees who have control or occupancy of a wharf, for injuries caused by the de- fective or dangerous condition of the prem- ises where such defective or dangerous condition reasonably should have been known to and remedied by the occupying tenant, is in f : rce in this state. King v. Cooney-Eckstein Co. (Fla.) 1916C-163." (Annotated.) 11. The liability of the lessee in dam- ages for injuries to others caused by uii- s&fe premises is grounded upon his duty in being the occupant to keep the wharf in reasonably safe condition for those who go thereon by express or implied invitation. King T. Cooney-Eckstein Co. (Fla.) 1916C- 163. (Annotated.) 12. At common law the tenant and occu- pier of a wharf is boun,d, as between him- self and the public, to keep the premises in such condition that they will be rea- sonably safe for persons who go lawfully upon the premises, by express or implied invitation; and such tenant or occupier is prima facie liable for damages caused by defects in or dangers on the premises that reasonably could have been avoided by appropriate care taken by the tenant or occupier. This is the law even though the lessor covenanted to keep the premises in repair. King v. Cooney-Eckstein Co. (Fla.) 1916C-163. (Annotated.) 13. A county maintaining a public dock under Bern. & Bal. Wash. Code, 8114, for public use and convenience, must exercise reasonable care for the safety of the pub- lic and all persons having occasion to use it. Gregg v. King County (Wash.) 1916C- 135. (Annotated.) 14. Defendant dock company, knowing that the employee of a shipbuilding com- pany, a licensee, was engaged in repair work on the side of the steamer under its discharging rig, and that coal often dropped when the rig was in operation, and which did not notify decedent when the rig was started, is guilty of actionable negligence. Taylor v. Northern Coal. etc. Co. (Wis.) 1916C-167. (Annotated.) 15. In such case the defendant comnany is bound to refrain from acts of affirma- tive negligence unnecessarily increasing the danger to decedent or rendering the premises more dangerous, at least without notifying him of such increased danger. Taylor v. Northern Coal, etc. Co. (Wis.) 1916C-167. (Annotated.) 16. Decedent, the employee of a ship- building company, engaged in repairing a coal-laden steamer which defendant com- pany is discharging at its dor-k, who is authorized to be there, and whose presence is known to defendant, which makes no objection is not a trespasser, but is enti- tled to the privileges and protection of a licensee. Taylor v. Northern Coal, etc. Co. (Wis.) 1916C-167. (Annotated.) 17. Duty of Landowner Extinguishing Fire Started by Another. An owner of premises, who discovers fire thereon for which he is not responsible, must use or- dinary care to prevent it from spreading to adjoining property. Excelsior Produr-ts Mfg. Co. v. Kansas "City So. E. Co. (Mo.) 1917B-1047. 18. Duty to Licensee. Where plaintiff goes on defendant's land at the place NEGLIGENCE. 635 where she is injured, along a path which defendant has permitted the public to use, she is not an invitee, but merely a licensee, as to whom defendant owes no duty, except not to injure her by wilful, wanton, or reckless conduct. Romana v. Boston Ele- vated E. Co. (Mass.) 1917A-893. Notes. Liability of proprietor for injuries re- ceived in turnstiles, revolving door, or swinging door. 1916D-1235. Injuries to persons on or about wharves, docks, or piers. 19160-139. Liability of owner for injuries caused by collapse of building. 1917A-478. (2) Injuries to Customers on Business Premises. 19. The owner of a store, to which en- trance was had through a swinging door, is not liable for an injury to a customer occasioned by the negligence of another customer, who jammed the .door on the first one's hand. Smith, v. Johnson (Mass.) 1916D-1234. (Annotated.)' 20. Stores Customer Injured in Swing- ing Door Liability of Owner. Where plaintiff, in entering defendant's store through a swinging door, put out her hand to guard her face from the door, which was swinging in her direction, and it was crushed between the door and the jamb, defendant was not liable; such door being in good condition and similar to those gen- erally used, and there being no such crowd as would require the keeping of a doorman. Smith v. Johnson (Mass.) 1916D-1234. (Annotated.) 21. Wharves Personal Injury from De- fect Liability. In an action for injuries by falling into a hole in the wharf of defendant transportation company, to which plaintiff had gone to receive an ex- pected shipment on defendant's vessel, the evidence is held to sustain a finding that plaintiff was impliedly invited by defend- ant, on the particular occasion, to go to the river end of the wharf, where ha was injured. Miller v. Delaware Eiver Trans. Co. (N. J.) 1916C-165. 22. Bathing Resorts Liability of Keeper Failure to Provide Life Lines. Under the laws of this state an action may be maintained against a person who operates or maintains a bathhouse where bathing suits are furnished for hire, at the seaside resorts hi the state, for negligence in fail- ing to maintain proper and safe life lines and life rafts for the protection of his patrons, when the patrons who are not guilty of contributory negligence are in- jured as a proximate result of the negli- gence of such operator or his agents. Mc- Kinney v. Adams (Fla.) 1917B-326. (Annotated.) Note. Duty to patrons of proprietor of bathing resort or beach. 1917B-333. (3) Attractive Nuisances. 23. Railroad Engine. The doctrine that one who leaves an attractive and danger- ous machine on his premises thereby in- vites children to play with it, and must use due care to protect such children from injury, does not apply, where a railroad engineer placed a five year old boy on his engine and then put it in motion without taking proper precautions for the boy's safety. Lovejoy v. Denver, etc. E. Co. (Colo.) 1916E-1075. 24. Unguarded Mill Race Death of Trespassing Child. The owner of a mill race is not liable for the death of a child who, trespassing upon premises and play- ing upon the banks of the mill race, fell in and was drowned, though it was sometimes resorted to by children for amusement and was not protected by fence or guard. Biggie v. Lens (Ore.) 1916C-1083. (Annotated.) 25. Electricity Escaping from Pole. That defendant suffers its premises to be in such condition as would be likely to at- tract people to use a path thereon, and it did attract plaintiff, who in traversing the path was injured by electricity escap- ing from one of defendant's poles, does not constitute even an implied invitation to plaintiff to use the path. Romana v. Boston Elevated E. Co. (Mass.) 1917A- 893. 26. Liability to Trespassing Infant. Th basis of the doctrine of liability to a tres- passing infant, injured through the dan- gerous condition of the premises, is im- plied invitation. Fusselman v. Yellow- stone Valley Land, etc. Co. (Mont.) 1918B- 420. 27. Though a dangerous thing may not be an attractive nuisance, yet where it is left exposed, so that children are likely to come in contact with it, and where their getting in contact with it is obviously dangerous to them, the persons exposing the dangerous thing should reasonably an- ticipate the injury that is likely to hap- pen to them, and are bound to take rea- sonable pains to guard it, so as to prevent injury. Thompson v. Alexander City Cot- ton Mills Co. (Ala.) 1917A-721. (Annotated.) 28. Pool of Water Liability. A drain to take off the hot water of the boilers of a cotton mill, the waters being dis- charged only once a day for two nours, difficult to approach at its head by reason of slag and briars, ana greatly obscured, though situated in a square in which em- ployees' and other children are wont to congregate, is not an attractive nuisance. 636 DIGEST. 1916C 1918B. Thompson T. Alexander City Cotton Mills Co. (Ala.) 1917A-721. (Annotated.) Note. Liability of landowner for injury to trespassing child on account of unguarded pond, pool, well, etc. 1916C-1085. (4) Dangers Near Highway. 29. Coal Hole Personal Injuries Lia- bility of Abutting Owner. A lot owner who maintains a coal hole in a city pave- ment as an appurtenance, whether con- structed by him or not, must exercise rea- sonable care in keeping it in a reasonably safe condition for use by the public as part of the sidewalk. Whatever the pub- lic safety reasonably requires is the meas- ure of diligence to be exercised by him. Hill v. Norton (W. Va.) 1917D-489. (Annotated.) 30. If he knows, or by th exercise of reasonable diligence would know, the grat- ing over a coal hole in the sidewalk in front of his property is defective, and fails to repair it, he is liable for an injury resulting therefrom to a pedestrian law- fully using the sidewalk. Hill v. Norton 1 (W. Va.) 1917D-489. (Annotated.) 31. He remains liable for injuries to a pedestrian resulting from a defective coal hole grating in a pavement, when appur- tenant to the premises, whether occupied in whole or in part by tenant, if the de- fect therein existed at the date of the demise. Hill v. Norton (W. Va.) 1917D- 4S9. (Annotated.) 32. Door Opening Outward Into Street Liability. The owner of premises on which is a door opening outward into the street is not liable to a pedestrian who is in- jured by being struck by reason of the sudden opening of the door by a third person, the injury resulting from the neg- ligent use of the door and not from the manner of its construction. Evans v. Edinburg (Eng.) 1916E-455. (Annotated.) Notes. Liability of owner of building for in- jury to pedestrian resulting from eroction of scaffold for repairing or painting build- ing. 1916C-123. Liability for injuries caused by door or gate opening outwards in street. 1916E 458. Legal liability for injuries sustained by pedestrian from coal hole in sidewalk. 1917D-494. (5) Stationary Engines. 33. Stationary Engine. Whnt corsti- tutes ordinary care, in action for damages by fire from engines, depends upon the circumstances of the particular case, and the greater the danger of communicating fire to the property of others, the more pre- cautions will be required. Hodges v. Bal- timore Engine Co. (Md.) 1917C-766. (Annotated.) Note, Liability for fire caused by stationary engine, furnace, or the like. 1917C-771. f . Violation of Statute. 34. Though the violation of a penal stat- ute constitutes negligence per se, it is not actionable, unless it is the proximate cause of the injury for which the action is brought. Prest-o-lite Co. v. Skeel (Ind.) 1917A-474. 35. Where a standard of duty is fixed and its measure defined by law, the omis- sion of such duty is negligence per S3, rendering the violator liable for injuries proximately caused by such violation, irre- spective of the questions of care or pru- dence. Prest-o-lite Co. v. Skeel (Ind.) 1917A-474. 36. The violation of any statutory or valid municipal regulation, established for the purpose of protecting persons or prop- erty from injury, is sufficient to prove suoh a breach of duty as will sustain a private action for negligence, if the other elements of actionable negligence concur. Hoopea T. Creighton (Neb.) 1917E-847. g. Proximate Cause. 37. Res Ipsa Loquitur When Doctrine Applies. For a presumption from the fact of an accident to make out a prima facie case of negligence under the doctrine of res ipsa loquitur, it must appear that the instrumentality which involved the injury was one which, in the ordinary experience of mankind, would not have happened, un- less from the negligence of the defendant or of others for whose negligence he is legally responsible. Prest-o-lite Co. v. Skeel (Ind.) 1917A-474. 38. Where a pedestrian is struck by a falling cornice, the doctrine of res ipsa loquitur places upon the owner of the building the burden of establishing his freedom from negligence. Nicoll v. Sweet (Iowa) 1916C-G61. 39. Fall of Wall. Where an infant eight or nine years of age, while playing upon a pile of railroad ties, resting against a r&ilroad wall, upon a public street, was irjured by the falling of a stone from th* wall, and there vras testimony from which it was inferable that the stones in the wall were loose and the wall in need of renair, held, that the defendant was prima facie guilty of negligence in maintaining tha wall "in a dangerous condition to persons lawfully upon the street. Soriero v. Penn- sylvania E. Co. (N. J.) 1916E-1071. (Annotated.) NEGLIGENCE. 637 40. Starting of Motor Truck Left Unat- tended, While there must be reasonable evidence of negligence, yet where the thing to be shown is under- the management of the defendant or his servants, and the accident is one which does not happen in the ordinary course of things, the happen- ing of the accident affords reasonable evi- dence of negligence. American Express Co. v. Terry (Md.) 1917C-650. Note. Application of doctrine of res ipsa loqui- tur to injury to person in highway caused by fall of wall or portion thereof. 1916E- 1073. 2. CONTEIBUTORY NEGLIGENCE, a. In General. 41. Forgetfulness of Known Danger. Momentary forgetfulness of a danger so hidden as not of itself to be a reminder of its existence to one coming within its presence does not, as a matter of law, con- stitute contributory negligence. Harris v. Bremerton (Wash.) 1916C-160. 42. Pedestrian on Highway. A person lawfully in a public highway may rely upon the exercise of reasonable care by drivers of vehicles to avoid injury. Fail- ure to anticipate omission of such care does not render him negligent. A pedes- trian is not bound, as a matter of law, to be continuously looking or listening to ascertain if automobiles or other vehicles are approaching, under penalty that if he fails to do so and is injured, his own neg- ligence will defeat recovery of damages sustained. Deputy v. Kimmell (W. Va.) 191GE-656. 43. A pedestrian is not guilty of con- tributory negligence solely because he steps on a coal hole grating in a public sidewalk. Hill v. Norton (W. Va.) 1917D- 489. (Annotated.)* 44. Statutory Changes in Common Law. In actions for the recovery of damages to a person or his property, alleged to have been occasioned by the negligence of the defendant, the common-law principle which prevents a recovery if the plaintiff's own negligence contributed proximately to his injuries has not been modified or changed, except as modified by sections 3148, 3149, 3150, of the Tla. General Statutes of 1906, and chapter 6521 of the Acts of 1913. Ingram-Pekle Lumber Co. v. Geiger (Fla.) 1918A-971. (Annotated.) 45. Leaving Vehicle in Dangerous Place. The more placing of a team across a street railroad track, or such placing of the team and going to and across the sidewalk to lead a barrel, for instance, are not negli- gence per se. Pollica v. Twin State Gas. etc. Co. (Vt.) 1917C-1240. (Annotated.) b. Doctrine of Last Clear Chance. 46. Contributory Negligence of Pedes- trian. The mere negligent act of one per- son will not excuse negligent injury to him by another. If, therefore, a person who negligently places himself in a situ- ation of imminent danger is injured by one who by the exercise of reasonable care could have avoided such injury, the negli- B^nce of the former will not bar recovery, eputy v. Kimmell (W. Va.) 1916E-6G6. 47. Running into Truck Left on Street. Where plaintiff's employee was negligent in placing his delivery wagon in such a position that it might be struck by a pass- ing street car, the street car company is nevertheless liable if the motorman saw the signal made by plaintiff's employee, but failed to stop his car in time. David- son Bros. Co. v. Des Moines City R Co. (Iowa) 1917C-1226. (Annotated.) c. Contributory Negligence of Minors. 48. In the absence of evidence to the contrary, a child of six or seven years of age is presumptively incapable of contrib- utory negligence. Gregg v. King County (Wash.) 1916C-135. 49. Causal Relation to Injury Child Playing in Street. The fact that the in- fant was playing upon the ties did not charge it with contributory negligence, since the ties were upon a public street, and the fall of the stone, and not the act of playing upon the ties, was the proxi- mate cause of the injury and, under the testimony in no wise connected therewith as a causal factor in the accident. Soriero v. Pennsylvania R. Co. (N. J.) 1916E-1071. 50. Child of Five. A boy five years of age is presumed to be unconscious of the danger of riding on a locomotive, and is not contributorily negligent in permitting the engineer to place him thereon for the purpose of giving him a ride. Lovejoy v. Denver, etc. R. Co. (Colo.) 1916E-1075. 51. Contributory Negligence of Children. In determining the question of contribu- tory negligence, the conduct of children should not be judged by the same rules which govern that of adults. Ordinary caution for them is that degree of care and prudence which children of the same age are accustomed to exercise under like circumstances. Deputy v. Kimmell (W. Va.) 1916E-656. 52. Whether a child who has reached the age of discretion exercised the degree of care and caution that persons of similar age, judgment, and experience usually ex- ercise is generally for the jury. Solomon v. Public Service R. Co. (N. J.) 1917C- 356. 53. Care Demanded of Child. The de- gree of care required of a child who has 638 reached the age of discretion and is con- sidered "Bui juris will be no higher as a matter of law than such as is usually exercised by persons of similar age, judg- ment, and experience. Solomon v. Public Service B. Co. (N. J.) 1917C-356. d in painting buildings is irrelevant and in- admissible. Weilbacher v. J. W. Putts Co. (Md*) 1916.C-115. 80. Evidence of Subsequent Conditions. A witness cannot testify that at some in- definite and unlooated time after the elec- tiocution of deceased he saw that the in- sulation was worn off of the wires which came from the pole to the top of the Vv-i::dow and into the building where the death occurred. Smith's Adm'x. v. Mid- dlesboro Electric Co. (Ky.) 1917A-1164. 81. Other Causes. In an action for dam- ages by fire from defendant's engine, de- fendant may show that the fire originated from other causes. Hodges v. Baltimore Engine Co. (Md.) 1917C-766. 82. Intoxication. The fact that a person is intoxicated when he is injured doe? not of itself show such contributory negli- gence as will defeat his recovery for such in.iury, but may be considered in deter- mining whether his intoxication contrib- uted to his injury. American Bauxite Co y. Dunn (Ark.) 1917C-625. NEGLIGENCE. 641 83. Conduct of Parties. Where, in an action against the landlord by a tenant's guest for injuries from falling in an un- hghted hallway, the lease did not appear to have been in writing and there was no direct evidence as to its terms, evi- dence of the conduct of the landlord and the tenant, so far as it was open and notorious, is admissible to show what were the terms of the tenancy, as to lighting the hallway, within contemplation of the contracting parties. Gallagher v. Murphv (Mass.) 1917E-594. (Annotated.) (3) Sufficiency of Evidence. 84. Contributory Negligence at Crossing. Where on a dark morning the view was so obstructed that when deceased was cross- ing the track in a wagon his horses were on the track at the time he could first have seen the engine, and the train ap- proached the crossing without sounding a bell or whistle at a high rate of speed, while a passing freight train, and also an automatic crossing signal~bell, out of order and ringing continuously, were making considerable noise, deceased was free from contributory negligence as a matter of law, since reasonable care by deceased in looking and listening would not have en- abled him to detect the approach of the engine in time to escape collision. Ham- ilton v. Erie E. Co. (N. Y.) 1918A-928. 85. Fall on Stairway. Evidence in an action for injuries received by plaintiff from a fall in the dark hallway of defend- ant's tenement house as she left the apart- ment of her son is held to sustain a find- ing that she was in the exercise of due care. Gallagher v. Murphy (Mass.) 1917E- 594. 86. Leaving Vehicle in Dangerous Place. In an action for damages to plaintiff's de- livery wagon while unloading goods by being struck by defendant's street car, the evidence is held to be sufficient to jus- tify the submission to the jury of the question of the driver's contributory negli- gence in placing the wagon where the car cculd not clear it. Davidson Bros. Go. v. Des Moines City E. Co. (Iowa) 1917C- 1226. (Annotated.) 87. Child Coasting in Street. It does not appear from the evidence that plain- tiff's intestate was guilty of negligence as a matter of law. Terril] v. Virginia Brew- ing Co. (Minn.) 1917C-453. 88. Child Falling into Drain. In an ac- tion for injuries to a child, killed by fall- ing into a drain into which the hot water of boilers of a cotton mill was discharged, evidence held sufficient to sustain a verdict for defendant. -Thompson v. Alexander City Cotton Mills Co. (Ala.) 1917A-721. (Annotated.) 89. Finding Sustained. In such action evidence was held to sustain a finding that 41 decedent was not guilty of contributory negligence. Taylor v. Northern Coal, etc. Co. (Wis.) 1916C-167. (Annotated.) 90. Liability of Manufacturer Manu- facturer Installing Plant. Evidence in a n action for death from explosion of gas from a gasoline lighting system in de- ceased's house Jield to warrant a finding that, as between deceased and defendant, the manufacturer, defendant, and not a kcal agency, sold and undertook to install the system, and so could be held liable in that capacity, and not merely as manu- facturer. Mahlstedt v. Ideal Lighting Co (111.) 1917D-209. 91. Sparks from Sawmill. In an action for damages to plaintiff's timber by fire, evidence is held to be sufficient to go to the jury on the issue whether the fire started from a spark from tbe smokestack of defendant's engine operating a sawmill on plaintiffs premises. Hodges v. Balti- more Engine Co. (Md.) 1917C-766. (Annotated.) 92. Stationary Engine. In an action for damages to plaintiff's timber by fire set by defendant's engine, which was used to run a sawmill on plaintiff's land, evidence ia held to be sufficie'nt to go to the jury on the issue whether defendant was oper- ating such engine. Hodges v. Baltimore Engine Co. (Md.) 1917C-766. (Annotated.) 93. Owners of Premises Canal Injury to Trespassing Child. Evidence in an ac- tion for drowning of a child in the canal of an irrigation company is held to be in- sufficient to support a verdict on the the- ory that it fell in where the canal crossed a street, and should have been, but was not, covered; it being equally consistent with it having fallen in at another point. Fusselman v. Yellowstone Valley Land, etc. Co. (Mont.) 1918B-420. (Annotated.) c. Province of Court and Jury. 94. In an action for personal injuries by the patron of an amusement device at a state fair against the fair association, its* general concessionary, and the latter's sub- concessionary, where plaintiff's ticket pur- ported to be issued by the general con- cessionary, the question whether he or the subconcessionary was the immediate oper- ator of the device is for the jury. Hart- man v. Tennessee State Fair Assoc. (Tenn.) 1917D-931. (Annotated.) 95. Expert Evidence Subjects of Opin- ion Evidence Ultimate Issue in Case. Where witnesses stated that it is not gen- erally necessary to erect barriers on the sidewalk to prevent persons from using it when painting from a suspended stage, and that he had never seen a man fall from a stage, his opinion as to whether the sus- pension of the stage above the sidewalk made the sidewalk dangerous or more dan- 642 DIGEST. 1916C 1918B. gerous is incompetent, since it is the very' question the jury has to decide on all the evidence in the case. Weilbacher v. J. W. Putts Co. (Md.) 1916C-115. 96. Negligence in Running Sawmill. In an action for damages to plaintiff's timber from the fire caused by deiendant's engine while running a sawmill OB the premises, evidence is held to require the submission of defendant's negligence to the jury. Hodges v. Baltimore Engine Co. (Md.) 1917C-766. (Annotated.) 97. Contributory Negligence. Where reasonable men, acting within the limits prescribed by law, could reach different conclusions from the admitted or estab- lished facts, questions of contributory neg- ligence are for the jury. Mahlstedt v. Ideal Lighting Co. (111.) 1917D-209. 98. The question of contributory negli- gence becomes one of law for the review- ing court only when the undisputed evi- dence is so conclusive that it is clearly seen that the accident resulted from the negligence of the injured person, and could have been avoided by the use of reasonable precautions. Mahlstedt v. Ideal Lighting Co. (111.) 1917D-209. 99. Whether deceased, killed by explo- sion of gas from a gasoline lighting system sold to him and installed in his house by defendant, was guilty of contributory neg- ligence in not covering the carburetor, and in lighting a match in the cellar, is held to be, under the evidence, a question for the jury. Mahlstedt v. Ideal Lighting Co. (111.) 1917D-209. 100. When the evidence in regard to contributory negligence is such that dif- ferent minds may reasonably draw differ- ent conclusions, either as to the facts or the conclusions to be drawn from the facts, then the question of contributory negligence is one of fact to be determined by the jury. McGregor v. Great Northern E. Co. (N. Dak.) 1917E-141. 101. The fact that plaintiff attempted to drive along a street which was open for travel and was the one he usually used, upon which a steam roller was standing, and that after his horse shied at the roller he attempted to lead it past, does not show contributory negligence, as a matter of low, but it is a question for the jury whether his acts were those of a reason- able man under the circumstances. Tan- ner v. Cnlpeper Construction Co. (Va.) 1917E-794. 102. Shooting in Self-defense. Ordinar- ily, where a person, in lawful self-defense, shoots at an assailant, and, missing him, ac- cidentally wounds an innocent by-stander ? he is not liable for the injury, if guilty of no negligence; and the question of negligence is for the jury. Shaw v. Lord (Okla.) 1916C-1H7. (Annotated.) 103. Capacity of Injured Plaintiff to- Work. The value of evidence, in a per- sonal injury action, that plaintiff is unable to do as much and as hard work since as before the injury is for the jury, though plaintiff is also shown to have a pulmonary disease. Miller v. Delaware Eiver Trans Co. (N. J.) 1916C-165. 105. Wharves Personal Injury from De- fect Liability. Whether a countv main- taining a public dock was negligent in leaving a fender pile loose and insecure,, contrary to its own plan of construction adopted three or four years before an ac- cident to a person on th'e dock, held for the jury. Gregg v. King County (Wash.) 1936C-135. (Annotated.) 106. In an action for personal injury from falling into the open space between the two floats constituting a public muni- cipal dock, it is held that the city's negli- gence was for the jury. Harris v. B emer ton (Wash.) 1916C-160. (Annotated.) 107. Evidence, in an action for falling into opening in municipal dock, held to make the plaintiff's contributory negli- gence a question for the jury. Harris v. Bremerton (Wash.) 1916C-160 (Annotated.) 108. Negligence Question for Jury. Wnere the facts are such that reasonable men may differ as to whether an act wa& negligent, the question is for the jury. Jonas v. South Covington, etc. St. B. Co. (Ky.) 1916E-965. 108a. The question of negligence is for the jury where minds of reasonable men may differ as to its existence. Gregg v. King County (Wash.) 1916C-135. 109. In an action by one hurt when he was attempting to change the course of a runaway motor truck, the question of plain- tiff's negligence is held to be for the jury. American Express Co. v. Terry (Md.> 1917C-650. (Annotated.) 110. When the question is whether a per- son has been guilty of negligence, i. e., whether he has used due care under the circumstances, or has acted as a prudent man would have acted, or whatever the- form or phrase may be, the evidence is to be addressed to the jury, for them to de- termine, and in the absence of some error or mistake, their verdict will not be dis- turbed. Boylan v. New Orleans B. etc. Co. (La.) 1918A-287. 111. The credibility of plaintiff's testi- mony on -whether she was in the exercise of d'ue care at the time of her injury is held to be for the jury, though it was shaken bv cross-examination. Gallagher v. Murphy (Mass.) 1917E-594. d. Instructions. 112. In an action against the operator of a scenic railway, where the court charged NEGLIGENCE. 643 that it was bound to exercise the highest degree of care as were common carriers, defendant, if fearful that the jury might apply tests of care applicable only to steam or electric railways, should request explan- atory charges. Best Park etc. Co. v. Rol- lins (Ala.) 1917D-929. (Annotated.) 113. Failure to Submit Matters not Proved. In an action for damages sus- tained in an automobile collision, the court submitted the special question whether de- fendant wantonly, wilfully, and malici- ously ran his automobile upon and against plaintiff's automobile, and in this connec- tion charged that it was plaintiff's conten- tion that defendant suddenly turned his steering wheel and ran into plaintiff, and defendant's contention that plaintiff's car struck defendant's car without defendant's fault; that there was nothing showing that the collision happened in any other way; that it was conceded that, if plaintiff's claim was correct, then the only conclu- sion drawn from that was that defendant wilfully, intentionally, and maliciously ran his car against that of plaintiff; and that this was the meaning ot the question sub- mitted. The evidence supported the state- ment that, if the accident happened as plaintiff claimed, the only conclusion that could be drawn was that defendant acted wilfully, intentionally, and maliciously. Held, that the instruction was not erron- eous because of the failure to tell the jury what would constitute gross negligence; there being no necessity for any abstract discussion of gross negligence. Dishmaker v. Heck (Wis.) 1917A-400. 114. Presumption of Negligence from In- jury. An instruction that injury from the operation of a car raises a presumption of negligence on the part of the company, and that the burden is on the company to prove itself free from negligence and to show contributory negligence of the passenger, is correct. Froeming v. Stockton Electric R. Co. (Cal.) 1918B-408. 115. Burden of Proof. Under the rule that, where plaintiff's evidence establishes his contributory negligence, the burden of proving it is removed from defendant, an instruction merely that if the jury found "from the evidence" that plaintiff was con- tributorily negligent sufficiently indicates that all evidence, plaintiff's as well as de- fendant's should be examined on that ques- tion. Froeming v. Stockton Electric R. Co. (Cal.) 1918B-408. 116. Injuring Bystander While Acting in Self-defense. It is error to instruct the jury in effect that one who, in his lawful self-defense, at close range shoots at an assailant, and, missing him, accidentally wounds a bystander, who, at the time, is 1o one side of the line of true aim at such assailant, and a few feet away from him, is, in an action for damages, liable to such bystander if he knew or is chargeable with knowledge of the presencb of such by- stander, as if this, of itself, constituted ' want of due care, and therefore was, per Be, actionable negligence. Shaw v. Lord (Okla.) 1916C-1147. (Annotated.) 117. Falling Coal Bucket. The refusal to submit to the jury the question whether ordinary care or the precaution usually ex- ercised upon the dock, was exercised, and' whether decedent knew that the rig had started, and that coal was being hoisted before the hoisting of the particular bucket from which coal fell and killed him is not erroneous, where they do not cover any facts put in issue by the pleadings. Tay- lor v. Northern Coal, etc. Co. (Wis.) 1916C-167. (Annotated.) 118. Fall Into Elevator Shaft Contribu- tory Negligence. In an action for injuries to plaintiff's wife caused by a fall as she was entering an elevator in a store where, under the evidence, it is not clear whether she exercised a proper degree of care, this question is properly submitted to the jury. Blair v. Seitner Dry Goods Co. (Mich.) 1916C-882. 119. Misstatement of Fact Reference to Speed of Truck as "Great." Plaintiff was injured in trying to change the course of a motor truck, which, when the driver dis- mounted to deliver a parcel, had started and was runnning down a slight grade at the rate of three or four miles an hour. The speed was accelerating, and the truck was pointed towards wagons, behind which were men and horses. It is held that a charge that if the defendant negligently permitted the truck to drive itself at a "great" rate of speed, in such a manner as to endanger the lives and property of per- sons, and plaintiff, because of such con- duct, while acting in a reasonable manner, was injured, verdict should be for plain- tiff, was warranted under the question, the expression "great" being used in its com- parative sense, and not as indicating un- usual rapidity. American Express Co. v. Terry (Md.) 1917C-650. 120. Assumption of Facts. An instruc- tion that, if the jury believe deceased, while in the exercise of ordinary care for her own safety, lost her life "by and tbrough the negligence of defendant as charged in the declaration," they should find defendant guilty, does not assume that defendant was so guilty of negligence, and submit only the question of whether de- ceased lost her life by and through such negligence. Wende v. Chicago City R. Co. (111.) 1918A-222. 121. Last Clear Chance Doctrine. In an action for injuries to plaintiff's delivery wagon by being struck by defendant's street car, an instruction that it was the duty of defendant's employees in charge of the car to exercise ordinary care to deter- mine whether plaintiff's wagon was in a place of danger and that, if they knew it v.as in such place of danger, defendant was 644 negligent if it failed to stop the car in time to avoid injury, is not an instruction upon the last fair chance doctrine. David- eon Bros. Co. v. Des Moines City R. Co. (Iowa) 1917C-1226. (Annotated.) e. Verdict or Findings. 122. The rule that the existence of neg- ligence cannot be left entirely to conject- ure does not conflict with the rule that a verdict should not be disturbed where rea- sonable men may fairly differ on the ques- tion of negligence. Adams Express Co. v. Allendale Farm (Va.) 1916D-894. 123. Infant Stealing Bide on Vehicle. Where, in an action for injuries to a thir- teen year old child from jumping or falling from defendant's moving wagon, it appears that he was endeavoring to steal a ride, and there is evidence that the driver struck or struck at him with the whip to make him get .off, and that in doing so the child fell and was injured, it is error to direct a verdict for defendant. McCabe v. Kain (Pa.) 1917D-378. (Annotated.) NEGOTIABILITY. See Bills and Notes, 20-27. NEGOTIABLE INSTRUMENTS. See Bills and Notes; Checks; Letters of Credit. NEGOTIATE; Meaning, see Bills and Notes, 7. NEGOTIATED. Meaning, see Bills and Notes, 28. NEGROES. See Colored Persons. NEUTRALITY. Right to bring prize to neutral port, see War, 2-4. Right of belligerent to requisition neutral property, see War, 5. NEWLY DISCOVERED EVIDENCE. As ground for review, see Equity, .".9. Ground for new trial, see New Trial, 19-26. NEWSPAPER. See Libel and Slander, 5, 23, 29, 30, 37, 65, 77. 86. 116, 124, 144, 153. Liberty of the press, see Constitutional Law, 82, 83. Comment as contemptuous, see Contempt, 4-6. Judicial notice of publication, see Evi- dence, 8. DIGEST. 1916C 1918B. Preventing publication of false political matter, see Injunctions, 8. Reading papers as disqualifying juror, see Jury, 17, 18. Peading by jurors as error, see Jury, 40. Suppression of paper as military measure, see Martial Law, 1. Publication in german paper insufficient, see Trees and Timber, 2. Prejudicial articles as ground for continu- ance, see Trial, 10, 11. Derogatory article as ground for change of venue, see Venue, 4. 1. What Constitutes Single Edition of Newspaper. A noon edition of the Chicago Evening Post containing substantially the same editorial and general news matter as its other six daily editions and sold gen- erally at news stands, hotels, etc., is a "newspaper of general circulation" within Kurd's Rev. St. 1915-16, c. 100, 5, re- quiring certain notices to be published in such a newspaper. People v. Snow (111.) 1917E-992. (Annotated.) Note. Publication in single edition of news- paper as sufficient publication. 1917E- 994. NEW TRIAL. 1. Power of Court, 644. 2. Grounds, 645. a. In General, 645. b. Newly Discovered Evidence, 646. (1) In General, 646. (2) Materiality of Evidence, 646. (3) Impeaching Evidence, 646. (4) Diligence, 646. (5) Discretion of Court, 646. 3. Motion for New Trial, 647. a. Time of Motion and Hearing, 647. b. Notice, 647. c. Petition or Affidavit, 647. d. Amendment of Motion, 647. e. Evidence, 647. f. Order, Form and Contents, 648. g. Effect of Limitation, C4S. h. Review of Decision, 648. Motion cannot be made in appellate court, see Appeal and Error, 8. Appeal from decision on motion, see Ap- peal and Error, 35, 36. Necessity of exception to ruling, see Ap- peal" and Error, 389-392. Sufficiency of specification of error for re- view, see Appeal and Error, 432. Grant of new trial by appellate court, see Appeal and Error, 462-469. As of right, see Ejectment, 7-10. Prohibition to prevent reconsideration of order, see Prohibition, 1. Computation of time for filing motion, sea Time, 3. 1. POWER OF COURT. 1. Discretion as to Grant of Motion. A motion for new trial on the ground of newly discovered evidence is addressed NEW TRIAL. 645 largely to the sound judicial discretion of the trial court, and the appellate court will not interfere unless a manifest abuse of such discretion is shown. McGregor v. Great Northern B. Co. (N. Dak.) 1917E- 141. 2. Power of Court to Grant on Own Mo- tion. Where the court discovers that it erroneously sustained a demurrer to the answer, it may at any time while it has jurisdiction of the cause grant a new trial on its own motion. Pullen v. Eugene (Ore.) 1917D-933. Note. Power of court to open or vacate order determining motion for new trial. 1917C- 1151. 2. GROUNDS, a. In General. 3. Effect of Statute Specifying Grounds. L. O. L. 174, prescribing grounds for granting new trial, does not restrict the court to the grounds specified. Pullen v. Eugene (Ore.) 1917D-933. 4. Error of Law. On motion for new trial, the court can only re-examine the facts, and should not consider errors of law. Pullen v. Eugene (Ore.) 1917D-933. 5. Erroneous Admission of Secondary Evidence. In an action for merchandise sold and delivered, the error in permitting, over proper objection, the seller to intro- duce in evidence copies of invoices which he claimed he had sent to the buyer is sufficient to support the discretion exer- cised in granting a new trial after verdict for the seller. Herman & Ben Marks v. Haas (Iowa) 1917D-543. (Annotated.) 6. Erroneous Admission of Evidence. Where the propriety of admitting evidence in favor of the successful party is at least doubtful, the doubt should be resolved in support of the action of the trial court granting a new trial. Herman & Ben Marks v. Haas (Iowa) 1917D-543. (Annotated.) 7. Grant as of Right Scope of Statute Joining Cause of Action not Within Stat- ute. Burns' Ind. Ann. St. 1908, 1110, per- mitting a new trial as of right in a suit to recover real estate, in an action to quiet title to real estate, and in a partition pro- ceeding wherein the title to the property was involved, does not apply where two or more substantive causes of action proceed to judgment in the same cause, one en- titling the losing party to a new trial as of right, and the other not; and a motion for a new trial without cause will be de- nied. Gilchrist v. Hatch (Ind.) 1917E- 1030. 8. Under such statute plaintiff, in an ac- tion to cancel a deed of land obtained from him by defendant's fraud and to quiet title in himself, setting out the con- tract for the purchase of shares in a com- pany in payment for which the conveyance was made merely to show the deception practiced upon him and not to establish? any rights thereunder, is entitled to a new trial as a matter of right, though there is no such right in an action brought merely to enforce or cancel a lien on realty or a contract in relation thereto. Gilchrist v. Hatch (Ind.) 1917E-1030. 9. In a cause where plaintiff sought to cancel a deed obtained from him by the fraud of defendants, and to quiet title in himself, and in which the ultimate issue was that of title, and where a defendant filed, a cross-complaint seeking to quiet his title to the land in controversy and for possession and damages recoverable by a landlord against a defendant wrongfully holding over, plaintiff's right to a new trial, under Burns' Ind. Ann. St. 1908, 1110, giving a new trial as of right in ac- tions to recover realty or quiet title, is not abridged by the form of the issues or barred by the cross-complaint setting up the landlord's suit, as to which no such right to a new trial exists. Gilchrist v. Hatch (Ind.) 1917E-1030. 10. Granting New Trial on Single Issue. To reverse and grant a new trial on the issue of damages only does ntft deprive ap- pellant of property without due process of law. Yazoo, etc. B. Co. v. Scott (Miss.) 1917E-880. (Annotated.) 11. To reverse and grant a new trial on the issue of damages only does not violate Miss. Const. 1890, 31, making the right of trial by jury inviolate. Yazoo, etc. B. Co. v. Scott (Miss.) 1917E-880. (Annotated.) 12. Disqualification of Juror As Ground for New Trial. In a prosecution for mur- der, the fact that a juror on the day be- fore the trial stated that "he had heard much a*bout the case and he thought it was a bad case" is insufficient to authorize a new trial on the ground that the juror was disqualified from acting because of any opinion he had formed as to defendant's guilt. Chilton v. Commonwealth (Ky.) 1918B-851. 13. Necessity of Giving in Open Court Prejudice. Where the judge in chambers after submission of the cause instructed the jury in writing at their request, in the absence of parties and counsel, as to a matter which was not then or since dis- closed, except that the judge considered the question immaterial, such action is error requiring a new trial, not being within the provisions of St. 1913, c. 716, 1, providing that no new trial shall be granted for any error in pleading or pro- cedure if, in the opinion of the judge, on motion for new trial, the error did not in- juriously affect substantial rights of the 646 parties. Lewis v. Lewis (Mass.) 1917A- 395. (Annotated.) 14. Verdict Sustained. It is held that the court did not err in denying appel- lant's motion for a new trial, and that the evidence is sufficient to support the ver- dict of the jury and judgment of the court. McAlinden v. St Maries Hospital Associa- tion (Idaho) 1918A-380. 15. Argument of Counsel. "When counsel in his argument to the jury assumes that prior remarks of opposing counsel justify and make necessary the reply which he is making thereto, opposing counsel may by objection take the ruling and instructions of the court thereon. If he makes no ob- jection and appears to acquiesce in the as- sumption of counsel, he will not after ver- dict ordinarily be granted a new trial be- cause of alleged impropriety of his oppo- nent's argument. Kriss v. Union Pacific R. Co. (Neb.) 1918A-1122. (Annotated.) 16. Statements of counsel in argument to the jury are held not to warrant the granting of a new trial. Northern Trust Co. v. Bruegger (N. Dak.) 1917E-447. 17. Prejudicial Error. Where prejudicial errors are committed on the trial against each party, either can obtain a new trial in case of an adverse verdict. Herman & Ben Marks v. Haas (Iowa) 1917D-543. 18. Insufficiency of Evidence. Where the evidence warrants the submission of issues of fact to the jury, the trial court will not, on motion for new trial, disturb the ver- dict because against the evidence, though the preponderance is against the verdict. Philadelphia, etc. R. Co. v. Gatta (Del.) 1916E-1227. Notee. Conduct of counsel in getting inadmis- sible evidence before jury as ground for new trial. 1917A-441. Admission of incompetent evidence as ground for granting of new trial By trial court. 1917D-545. Bias of judge existing prior to trial as ground for reversal in absence of showing of prejudice at trial. 1917E-954. Allowing recreation to jury during trial as ground for new trial. 1918B-855. b. Newly Discovered Evidence. (1) In General. 19. Where plaintiff sought to recover en account of defendants' charges that he had made a criminal assault upon a woman, newly discovered evidence that plaintiff had received replies to letters making in- quiries concerning the woman warrants a new trial, where plaintiff testified that he received no such replies, and that the woman was a mere dummy. Egan v Dot- son (8. Dak.) 1917A-296. DIGEST. 1916C 1918B. (2) Materiality of Evidence. 20. Showing Insufficient. The showing for a new trial on affidavits, on the grounds of surprise and newly discovered evidence, is held to be insufficient. Northern Trust Co. v. Bruegger (N. Dak.) 1917E-447. (3) Impeaching Evidence. 21. Matter of Impeachment. Under Code Cr. Proc. 465, subd. 7, forbidding a new trial for newly-discovered evidence im- peaching or discrediting a witness, that witness for the state signed affidavits while intoxicated inconsistent with his tes- timony on the trial, which he repudiated by counter affidavits, is not ground for new trial. People v. Becker (Kan.) 1917A-600. (4) Diligence. 22. Diligence Insufficient. A carrier against which a judgment had been ren- dered for the loss of freight sought a new trial for newly discovered evidence, and showed that the loss was reported in De- cember, 1913, and that an investigation was at once started to find the article de- scribed in the bill of lading, as a "model plow"; that the agents of the carrier looked for something like a plow and could not find it; that the traveling claim ad- juster after the trial found in unclaimed freight packages, in a warehouse between the initial and terminal stations, a small box which contained the model plow. When delivered for shipment the box was plainly marked, "Model Plow or Soil Pul- verizer." It is held that denial of new trial was within the court's discretion. St. Louis, etc. R. Co. v. Dague (Ark.)' 1917B- 577. 23. Newly Discovered Evidence Show- ing of Diligence. An affidavit, presented to show diligence, in support of a motion for new trial on the ground of newly dis- covered evidence, should specifically state the acts performed in order that the court may determine what diligence was used, and mere general assertions of diligence are insufficient, as they constitute only the opinions or conclusions of the affiant. Mc- Gregor v. Great Northern R. Co. (N. Dak.) 1917E-141. 24. A new trial should not be granted to admit alleged newly discovered evidence, when it develops on the trial of the motion tl'at the witnesses whose testimony is pro- posed to be offered in evidence on a second trial could have been produced on the first trial, and that the defendant knew tha* the witnesses were in possession of the facts, if they were facts, to which they propose to testifv on a second trial. State v. Pailet (La.) 1918A-102. (5) Discretion of Court. 25. Whether a new trial shall be granted to let in after-discovered evidence is a mat- NEW TRIAL. 647 ter for the trial court, whose ruling will rot be reversed unless for clear abuse of discretion. Hunter v. Bremer (Pa.) 1918A- 152. 3. MOTION FOR NEW TRIAL, a. Time of Motion and Hearing. 2.6. Time for Filing Motion. On the trial the jury made special findings of fact without rendering a general verdict. The court discharged the jury, with consent of the parties, and took the case under ad- visement. The plaintiff excepted to the special findings, and immediately filed a motion to set them aside and for a new trial. After considering the matters of law for some days, the court rendered a judgment in substance as requested by .the defendant. Plaintiif within three days filed a motion for a new trial. Held, that such motion was in time, and was a suffi- cient compliance with the rule. Dinneen v. American Ins. Co. (Neb.) 1917B-1246. 27. Waiver of Failure to File Motion in Time. Consent or waiver by the people as to filing a motion for new trial after the time limited by Comp. Laws, 11963. is immaterial; such statute making jurisdic- tion to grant a new trial dependent on sea- sonable filing of the motion. Nichols v. Houghton Circuit Judge (Mich.) 1917D- 100. 28. Effect of Failure to File in Time Power of Court of Own Motion, Comp. Laws, 11963, providing that the court in which an indictment has been tried may, "at the same term or at the next term thereafter," on motion of defendant, grant a new trial for any cause for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done, gives such court no power to grant a new trial on its motion at a time later than defendant has a right to file a motion. Nichols v. Houghton Cir- cuit Judge (Mich.) 1917D-100. b. Notice. 29. Sufficiency of Notice. Notice of in- tention, though in terms to more the court to vacate the judgment, instead of the de- cision, and to grant a new trial, is suffi- cient. Fearon v. Fodera (Cal.) 1916D-312. c. Petition or Affidavit. 30. Statement of Grounds. In a motion foi a new trial it is sufficient to set forth the grounds in the language of the statute, and where such a motion recites "errone- ous rulings" as one of its grounds, appel- lant can have a review of any ruling made or. the trial respecting the admission of evidence. Spadra-Clarksville Coal Co. v. Nicholson (Kan.) 1916D-652. 31. Proof of Misconduct of Jury Con- flicting Affidavits. Where a motion for a new trial is supported by an affidavit of certain jurors that the jury commented On the defendant's failure to testify, but nine other jurors make affidavit that the only mention was a statement by one juror, after the reading of the instructions, that they could not consider the failure to tes- tify, the motion for new trial is properly overruled. Mason v. State (Tex.) 1917D- 1094. 32. Showing Required. Where a motion for a new trial is based on fhe ground of newly discovered evidence, such motion must, in addition to the affidavit of the ap- plicant, be supported by the affidavits of the new witnesses, which must set forth the newly discovered evidence and the facts to which such witnesses will testify, or a satisfactory excuse must be given for not obtaining such affidavits. State v. Klasner (N. Mex.) 1917D-824. 33. Affidavit in Motion Newly Dis- covered Evidence Diligence. It is not enough for the affidavit for a new trial for newly discovered evidence to allege diligent inquiry before trial; but the par- ticular efforts made must be stated. Fus- selman y. Yellowstone Valley Land. etc. Co. (Mont.) 1918B-420. 34. Newly Discovered Evidence Affi- davit Showing Diligence Necessity. In a prosecution for murder, where a new trial is sought for newly discovered evidence, the defendant must file his own affidavit stating that he did not know, and by the exercise of reasonable diligence could not have known, of the existence of the newly discovered evidence until after the trial was concluded. Chilton v. Commonwealth (Ky.) 1918B-851. d. Amendment of Motion. 35. An amendment of a motion for new trial, setting up a new ground is a motion for new trial within Comp. Laws, 11963, limiting the time for filing it. Nichols v. Houghton Circuit Judge (Mich.) 1917D- 100. (Annotated.) Note. Amendment of motion for new trial. 1917D-104. e. Evidence. 36. Hearing of Motion Oral Testimony. Ky. Civ. Code Prac. 340, subsec. 2, pro- vides for new trial for the misconduct of the jury. Section 343 declares that the application must be by motion, and that the ground must be sustained by affidavits. Held, that as the statute did not authorize the taking of evidence, and as the court extended the time for the unsuccessful party to procure affidavits, the denial of her motion for permission to call witnesses and examine them orally to show miscon- duct of the jury, cannot be held an abusa of discretion. Smith's Adm'x. v. Middles- boro Electric Co. (Ky.) 1917A-1164. 648 DIGEST. 1916C 1918B. f. Order, Form and Contents. 37. That the statute in force prior to Miss. Code 1906, 800, providing that every new trial granted shall be on such, "terms" as the court shall direct, read "terms and conditions," is immaterial, as the words are synonymous; "terms" mean- ing propositions, limitations, or provisions stated or offered, and a "condition" is that which limits or modifies the existence or character of something; a restriction or qualification. Yazoo, etc. R. Co. v. Scoit (Miss.) 1917E-880. (Annotated.) 38. Under Miss. Code 1906, 800, relating tc circuit courts, but made applicable by sections 4909 and 4919 to the supreme court, providing that every new trial granted shall be on such terms as the court shall direct, and section 4919, empowering the supreme court to render judgment such as the trial court should have rendered, unless necessary that damages be assessed by a jury, and that on remand the trial court shall proceed according to directions of the supreme, court, the supreme court has power to award a new trial on the issue of damages only. Yazoo, etc. R. Co. v. Scott (Miss.) 1917E-880. (Annotated.) g. Effect of Limitation. 39. Evidence Admissible on Retrial. Where the court on appeal remands a case on the issue of damages only, evidence as to liability is inadmissible on the new trial. Yazoo, etc. E. Co. v. Scott (Miss.) 1917E-880. h. Review of Decision. 40. Discretion of Trial Court. The grant or denial of a motion for a new trial for misconduct of jury is discretionary with the judge, and unless the discretion is abused, or there has been palpable error, or the trial court refused to consider the evi- dence by which its determination should be guided, such finding will not be re- viewed, and each application must be de- termined solely by its own peculiar facts, with a view not so much to the attainment of justice in the particular case as to the ultimate effect of the decision on the ad- ministration of justice in general. Sales v. Maupin (S. Dak.) 1917C-1222. 41. Motion for Nevr Trial to Review Or- der Denying Motion. The office of a mo- tion for a new trial and of a petition for a new trial is the same; and a motion for a new trial to review the order of the court denying such motion or petition is unauthorized by statute and unnecessary, and does not have the effect of extending the time within which the trial court can reconsider its order denying a petition for a new trial beyond the term at which the same was made. Owen v. District Court (Okla.) 1917C-1147. (Annotated.) 42. Burden of Proving Abuse of Discre- tion. A party appealing from an order granting a new trial after verdict in his fevor has the burden of showing abuse of the trial court's discretion, and must show that the record is free from error as against the adverse party. Herman & Ben Marks v. Haas (Iowa) 1917D-543. 43. Discretion of Trial Court. The granting of a new trial rests largely in the discretion of the trial court, and will not be disturbed on appeal, except for an abuse of discretion. Herman ft Ben Marks v. Haas (Iowa) 1917D-543. 44. New Trial Improperly Denied. The court erred in refusing a new trial. Sharpe \. Denmark (Ga.) 1917B-617. NEXT FRIEND. See Guardian and Ward. NIGB7T WORK. Limiting hours of employment, see Labor Laws, 3-5. NOMINAL DAMAGES. Bee Libel and Slander, 115; Replevin, 10. NON-MAILABLE MATTER,. See Post-office, 1, 2. Espionage Act, see War, 19-25. NON-NEGOTIABLE INSTRUMENTS. See Bills and Notes, 55. NON-RESIDENCE. Tolling statute, see Limitation of Actions, 37. NON-RESIDENTS. See Aliens. Right of non-resident counsel to appear, see Attorneys, 4. Automobile tax on, see Automobiles, 10. Personal judgment against, see Judgments, 6. Succession taxes on estates of, see Taxa- tion, 178. NONSUIT. See Dismissal and Nonsuit. Appealability of order, see Appeal and Error, 27, 28. Review of order, see Appeal and Error, 156. Ruling on wrons: ground sustained, see Appeal and Error, 454. NON-TRADING ASSOCIATIONS. See Societies and Clubs. NORMAL SCHOOLS NUISANCES. 649 NOEMAL SCHOOLS. See Schools. NOTARY PUBLIC. See Public Officers, 6. Acknowledgment of corporate deed before stockholder notary, see Acknowledg- ments, 2. Powers as conservators of the peace, see Breach of Peace, 9. Power to issue warrant of arrest, see Pro- cess, 2. Eligibility of woman, see Public Officers, 28. NOTICE. See Judicial Notice. Notice of accident, see Accident Insurance, 20-22. Notice of appeal, see Appeal and Error, 42-45. Motion to dismiss appeal, see Appeal and Error, 82. Award void, no notice of hearing, see Ar- bitration and Award, 2. To surety to produce principal, see Bail, 2,3'. Of dishonor, see Bills and Notes, 33, 34. To passenger of change of cars, see Car- riers of Passengers, 32. Of hearing, see Certiorari, 4. Of stockholders' meeting, see Corporations, 85-93. Of taking deposition, see Depositions, 2-4. To owner in condemnation, see Eminent Domain, 59-63. Judicial notice, see Evidence, 1-19. Effect of failure to notify administrator of finding will, see Executors and Ad- ministrators, 9-11. Of defalcation to surety on indemnity bond, see Insurance, 36. Of claim for fidelity insurance, see Insur- ance, 38. Notice of termination of lease, see Land- lord and Tenant, 45, 46. Notice to quit, see Landlord and Tenant, 47. Of claim to employer under Workmen's Compensation Act, see Master and Servant, 234-240. Of hearing under Workmen's Compensation Act, see Master and Servant, 301. Of claim of lien, see Mechanics' . Liens, 18-28. Of claim against city, see Municipal Cor- porations, 175-187. Publication, see Newspapers, 1. Motion for new trial, see New Trial, 29. Sufficiency of notice of pauper aid, see Poor and Poor Laws, 5-7, 10. Record as notice, see Recording Acts, 6-10. To city of defect in street, see Streets and Highways, 40. By creditor of breach, see Suretyship, 15. Of time for redemption, see Taxation, 111- 114. To owner of special assessment, see Tax- ation, 134-136. When necessary as prerequisite to expul- sion of trespasser, see Trespass, 2. To non-residents on probate of will, see Wills, 119. 1. Necessity of Writing. The general rule is that notice required by law to be given is notice in writing, and whenever by statute or ordinance a duty is imposed on an individual, for the neglect of which he is subject to a penalty, notice is re- quired before liability arises, unless the contrary is expressly provided. McPhail v. Denver (Colo.) 1916E-1143. (Annotated.) Note. Necessity that notice required or au- thorized by law be in writing. 1916E- 1147. NOTORIOUS. Meaning, see Descent and Distribution, 5. NOVEL IMPRESSION. No presumption against remedy, see Ac- tions and Proceedings, 4. NUISANCES. 1. What Constitutes, 650. a. In General, 650. b. Power to Define by Statute or Or- dinance, 650. c. Specific Nuisances, 650. 2. Actions, 650. a. Eight to Belief, 650. b. Abatement by Injunction, 651. c. Pleading, 651. d. Estoppel to Object, 651. Appeal from judgment, see Appeal and Error, 29. Driving unregistered auto, see Automo- biles, 27. Cemetery as nuisance, see Cemeteries, 1-3. Bunk cars on right of way as nuisance, see Fires, 6. Eestraining public nuisance, see Injunc- tions, 27-29. Validity of ordinance making club house system a nuisance, see Intoxicating Liquors, 48-50. Abatement of blind tiger, see Intoxicating Liquors, 110. Abatement of saloon, see Intoxicating Liquors, 111. Suit to enjoin, see Laches, 2. Malicious action to abate, see Malicious Prosecution, 1. Open shafts of prospector on public lands, see Mines and Minerals, 11. City regulation, see Municipal Corpora- tions, 47, 74, 91. Attractive nuisances, see Negligence, 23- 28. Special assessment for abatement, see Tax- ation, 117. 650 1. WHAT CONSTITUTES, a. In General. 1. Definition. A private nuisance is anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. Whittemore v. Baxter Laun- dry Co. (Mich.) 1916C-818. b. Power to Define by Statute or Ordin- ance. 2. Statute Defining Exclusiveness. Kurd's 111. Eev. St. 1913, e. 38, 22, de- claring certain acts to be public nuisances, is merely declaratory of the common law as to those acts, and does not exclude other common-law nuisances not enumer- ated therein from being classed as public nuisances. People v. Clark (111.) 1916D- 785. Note. Validity of smoke ordinance or statute. 1918B-173. c. Specific Nuisances. 3. Fertilizer Mixing Plant as Nuisance. A fertilizer mixing plant is not a "nui- sance per se," that is, a nuisance any- where and under all circumstances, but, if a nuisance at all, is a "nuisance per acci- dens," that is, by reason of its location and other circumstances, such as the com- munity in which it is located or the man- ner in which it is constructed or conducted. Woods v. Eock HOI Fertilizer Co. (S. Car.) 1917D-1149. (Annotated.) 4. What Constitutes. Telephone Wires Erected Over Highway Without Permis- sion. Under Me. Eev. St. c. 55, 17, pro- viding that telephone lines shall not be constructed upon or along highways or public roads without written permission from the selectmen of towns, etc. specify- ing the method of locating the wires, and declaring wires so erected to be legal structures, but not declaring those other- wise maintained to be nuisances, the wires of an unauthorized company and of pri- vate individuals maintaining lines to con- nect therewith, running eighteen to twenty- two feet above the ground, and not inter- fering with public travel, do not consti- tute a nuisance, and will not be enjoined. Mt. Vernon Tel. Co. v. Franklin Farmers', etc. Tel. Co. (Me.) 1917B-649. 5. Storage of Gasoline. For defendant to sink storage tanks on the extreme edge of its property and within a few feet of complainant's residence, in which over 20,000 gallons of gasoline were to be stored, constitutes a private nuisance, in view of the dangerous character of gaso- line and the liability to explosion. Whit- temore v. Baxter Laundry Co. (Mich.) 1916C-818. (Annotated.) 6. Fruit Stand in Street. The establish- ment of a fruit stand in a public street, on the outside of a portion of two sides DIGEST. 1916C 1918B. of a building in violation of ordinances in a city is a nuisance per se, and the maintenance thereof a public offense which the police authorities of the city may sum- marily abate. Pastorino v. Detroit (Mich.) 1916D-768. (Annotated.) 7. What Constitutes Public Nuisance Permitting Street Cars to be Overcrowded. The act of a street railway company in permitting its cars to be overcrowded does not constitute a nuisance within a statuta (R. S. Can. c. 146, 221) defining a com- mon nuisance as "an unlawful act or omis- sion to discharge a legal duty which act or omission endangers the lives, safety, health, property or comfort of the public or by which the public are obstructed in the exercise or enjoyment of any right common to all His Majesty's subjects" since the overcrowding does not affect the public but only those persons who have obtained a license from the company to enter its cars. Toronto B. Co. v. Rex. (Eng.) 1918A-991. (Annotated.) 8. Brick Kiln as Nuisance. The opera- tion of a brick manufacturing plant, so as to seriously affect the property and health and enjoyment of persons living in the neighborhood by the escape of smoke and soot, creates a nuisance, which equity may perpetually enjoin, by enjoining the burn- ing of any of the kilns in such a way as to cause dense soot or smoke to fall on the neighboring property, or operating the kilns immediately adjoining the neighbor- ing property with any other than smoke- less fuel. Face v. Cherry (Va.) 1917E- 418. (Annotated.) 9. A bill to enjoin the operation of a brick manufacturing plant as a nuisance, injuriously affecting plaintiffs' property and health and the enjoyment of their home, which alleges that the smoke, soot, etc. affects plaintiffs' dwelling and "other property in the neighborhood," complains only of a private nuisance, within the rule that nuisances of a private nature occur, in the erection of structures obnoxious or hurtful to buildings used for residence and business, purposes, and that a business which imperils the comfort or health of inmates of neighboring dwellings may be enjoined. Face v. Cherry (Va.) 1917E- 418. . (Annotated.) Notes. Brick kiln as nuisance. 1917E-420. Fruit stand or similar structure on public highway as nuisance. 1916D-773. Storage of gasoline or other explosive as nuisance. 1916C-820. Place for storing or mixing fertilizer as nuisance. 1917D-1152. 2. ACTIONS. a. Eight to Relief. 10. Public Nuisances Bight of Individ- ual to Enjoin. To prevent multiplicity of NUISANCE PER ACCIDENS OBTAIN. 651 actions, promote justice, and secure the public tranquillity, courts refuse to enter- tain private actions to remedy purely pub- lic nuisances, which may and should be remedied through the public process of in- dictment. Woods v. Rock Hill Fertilizer Co. (S. Car.) 1917D-1149. 11. Where a public nuisance affects some members of the public in a different man- ner and inflicts upon them injury of a different kind from that suffered "by the general public, it is, as to them, a private nuisance for which they have the private remedy of an action. Woods v. Rock Hill Fertilizer Co. (S. Car.) 1917D-1149. b. Abatement by Injunction. 12. Obstruction of Highway Eight of Individual to Injunction, Relief by an injunction against a nuisance by which the highway is obstructed need not be sought by an abutting owner, but may be. had by any individual who can show special dam- age to himself. Memphis St. R. Co. v. Rapid Transit Co. (Tenn.) 1917C-1045. 13. Where statute authorizes the regula- tion of jitneys, and prohibits their opera- tion, except upon conditions named, and those conditions are not fulfilled, but many jitneys are operated with consequent dan- ger to persons and property, they consti- tute a nuisance, and may be enjoined on the bill of a private individual who can show special damage to himself. Memphis St. R. Co. v. Rapid Transit Co. (Tenn.) 1917C-1045. (Annotated.) c. Pleading. 14. In an individual action for damages from a fertilizer mixing plant, prima facie only a private nuisance, it is not necessary to the sufficiency of the complaint that it allege injury to plaintiff differing in kind from that suffered by others who may have been affected. Woods v: Rock Hill Fer- tilizer Co. (S. Car.) 1917D-1149. (Annotated.) 15. Unnecessary Averments Injury to Third Persons. In an action for damages from defendant's fertilizer mixing plant near plaintiff's residence, the allegation that plaintiff's mother and sister lived with her and suffered from the odors, noises, etc. though not strictly necessary to the statement of plaintiff's cause of action, is not irrelevant thereto, because tending to show the nature and extent of plaintiff's damages. Woods v. Rock Hill Fertilizer Co. (S. Car.) 1917D-1149. 16. That which is per se or prima facie a public nuisance is presumed to affect all the public alike, though it may not affect all to the same extent, and one complain- ing of such a nuisance must allege some injury to himself differing in kind and not merely in degree from that suffered by the general public, and, if he fails to do so, shows no cause of action. Woods v. Rock Hill Fertilizer Co. (S. Car.) 1917D-1149. d. Estoppel to Object. 17. Estoppel to Object Consent to Structure. Where the owner of apartment houses consented to and encouraged the construction of private garages in the rear of such buildings, securing the preference for his tenants, he cannot subsequently seek an injunction on the ground that the noises and smells from such garages prove a nuisance by reason of the residential nature of the neighborhood. Mahoney Land Co. v. Cayuga Investment Co. (Wash.) 1916C-1234. (Annotated.) Note. Acquiescence in or consent to erection of structure as precluding objection thereto as nuisance. 1916C-1235. NUISANCE PEE ACCIDENS. See Nuisances, 3. NUMBEE PLATES. Display of, see Automobiles, 6, 8. NUNO PEO TUNG. Amendment of judgment, see Judgments, 51. NUNCUPATIVE WILL. See Wills, 37-39, 45. NURSES. State regulation, see Physicians and Sur- geons, 8-10. OMISSION. Construction to supply, see Wills, 174. OBITEE DICTA. As precedent, see Courts, 36; Stare Decisis, 10. OBJECTIONS. Sufficiency of, see Trial, 37-45, 56. OBLIGATION. Meaning, see Assignments, 14. OBSTEUCTION OF WATEECOUESE. Liability for flood, see Waters and Water- courses, 24. OBTAIN. Meaning, see False Pretenses, 5. 652 DIGEST. 1916C 1918B. OCCUPANCY. OPTION. Of property selected, see Homestead, 4, 5, Executor's power to sell no power to give 7. option, see Executors and Administra- Implies agreement to pay rent, see Land- tors, 42. To terminate lease, see Landlord and Ten- ant, 45, 46. When creates a vested, when a contingent estate, see Perpetuities, 3. Taxation of, see Taxation, 49. Defined, see Vendor and Purchaser, 2. lord and Tenant, 32. OCCUPATION TAX See Licenses; Taxation, 86, 145-170. OCEAN WAVE. Amusement device as carrier of passengers, OB. see Theaters and Amusements, 8. Construed as "and," see Wills, 198. OFFER AND ACCEPTANCE. ORDER OF COURT. See Contrite, 1; Sales, 2; Vendor and Pur- Meaning> 8ee Judgm ents, 2, 11. OFFERING BRIBE. See Bribery, 2, 3. OFFICE. Defined, see Public Officers, 7. OFFICERS. Defined, see Public Officers, 2. OFFICERS OF CORPORATIONS. See Corporations, 30-55. OFFICIAL BONDS. See Public Officers, 67-75. OIL LANDS. No partition in kind, see Partition, 5. OIL LEASE. Nature, see Landlord and Tenant, 2, 3. OLOORAPHIC WILL. See Wills, 13, 40, 46. ORDER. See New Trial, 37, 38. Appealable judgments and orders, see Ap- peal and Error, 26-39. ORDINANCES. See Municipal Corporations, 48-108. ORDINARY. Defined, see Schools, 25. ORIGINAL CONTRACTOR. Defined, see Mechanics' Liens, 10. OTHER. Meaning, see Statutes, 68. OTHER ACTIONS PENDING. See Actions and Proceedings, 14, 15. OTHER CRIMES. Proof of, admissibility, see Criminal Law, 58, 59. OTHERS. OPENING STATEMENT. Meaning, see Wills, 197. When improper, see Argument and Conduct of. Counsel, 4, 9. OTHER TIMBER. OPEN SHAFT. See Liens 4 - Liability of prospector for loss of cattle, OTHERWISE. Defined, see Public Officers, 23. see Mines and Minerals, 10. OPINION. As disqualifying juror, see Jury, 21. OPIUM. Federal regulation, see Food, 20. OUTCRY. Bee Rape, 1, 16, 17. OUTLAW. Unregistered auto, see Automobiles, 23. PARENT AND CHILD. 653 OUT OF AND IN COURSE OF EMPLOY- MENT. Under Workmen's Compensation Act, see Master and Servant, 206-230. OUTSTANDING TITLE. Purchase of, see Adverse Possession, 37, 38. OVERHEARD CONVERSATION. Effect on privilege, see Libel and Slander, 56, 57. OVERSEER OF POOR. See Poor and Poor Laws, 4, 7. OWNERSHIP. Proof of, see Evidence, 77. Presumption as to, see Evidence, 138. OWNERS OF PREMISES. See License, l. Collapse, liability, see Buildings, 9. Liability of canal owner for drowning of child, see Negligence, 93. Liability to invitees, see Negligence, 8, 23-28. Duty to extinguish fires, see Negligence. 17. Duty toward licensees, see Negligence, 14- 16, 18. Injury by swinging door see Negligence, 19, 32. Abutting highway, duty to public, see Negligence, 29-32. PARADES. Prohibition of red or black flags, see Flags, 1,2. PARALYSIS. As affecting testamentary capacity, see Wills, 57. PARDONS. Effect on disbarment, see Attorneys, 62. Contract to procure parole, see Contracts, 26. Detention of pardoned convict, see False Imprisonment, 2. 1. When Effective. A pardon is effect- ive upon delivery and acceptance. Weigel v. McCloskey (Ark.) 1916C-503. 2. Where a contractor of convict labor delegates his custody of the convicts to a warden appointed by him and confirmed ' by the court under the statute, it is the 'duty of the warden, on delivery ' of a pardon to him, to himself examine the books to see if the pardon covers all the offenses for which the convict was com- mitted if he would escane liabilitv for false imprisonment in holding the convict. Weigel v. McCloskey (Ark.) 1916C-503. 3. Parole. The parole of a convicted criminal does not wipe out the conviction, but merely suspends its operation by re- mitting for the time being the confinement at hard labor, until the end of the term or an unconditional pardon is granted; the offender in the meantime being subject to prison discipline and to be taken into cus- tody on violation of any of the conditions as though the parole had not been granted. In re Sutton (Mont.) 1917A-1223. 4. Right to Impose Condition. In the granting of a pardon, the governor is au- thorized, by Const, art. 7, 9, and Mont. Rev. Codes, 9556, to impose conditions without restriction, so long as they are neither illegal, immoral, nor impossible of performance. In re Sutton (Mont.) 1917A- 1223. PARENT AND CHILD. 1. Nature of Relation, 653. 2. Rights of Parent, 653. a. Earnings of Child, 653. b. Action for Loss of Services, 654. 3. Liability of Parents for Support of Child, 654. 4. Emancipation, 654. 5. Contracts Inter Se, 654. See Adoption of Children; Seduction. Liability of bastard's father for support, see Bastardy, 9, 10. Legitimacy, see Conflict of Laws, 6. Measure of damages for death of child, see Death by Wrongful Act, 47-50. Measure of damages for death of parent, see Death by Wrongful Act, 52, 53. Proof of paternity, see Evidence, 41. Conveyance by father for support, valid- ity, see Fraudulent Sales and Convey- ances, 2. Liability of parent for alienation, see Husband and Wife, 48, 49. Insurable interest inter se, see Life Insur- ance, 8. Married daughter as dependent under Workmen's Compensation Act, see Master and Servant, 268. Parent's right to release minor, tee Militia. 1-3. Imupted negligence of parent, see Negli- gence, 56, 57. 1. NATURE OF RELATION. 1. Respective Rights of Parents. Under the law of Iowa the rights of parents in relation to their children are equal. Cain v. Garner (Ky.) 1918B-824. 2. RIGHTS OF PAKENT. a. Earnings of Child. 2. Contract by Parent for Services of Child. A contract whereby the father of an infant undertook to bind him to work for plaintiff as a stable boy and race rider for three years for a fixed compensation, to be paid to the father, signed by the father, 654 DIGEST. 1916C 1918B. the son, and the plaintiff, all the covenants to show undue influence. of which purported to be the covenants of the infant, whether regarded as executed directly by him or by his father, is the contract of the infant. Cain v. Garner (Ky.) 1918B-824. (Annotated.) Note. Contract by parent for services of minor child, as binding latter. 1918B-827. b. Action for Loss of Services. 3. Action Parties Plaintiff. A father who is supporting the family may main- tain an action for loss of the services of a minor child without joining the mother as a party plaintiff. Ackeret v. Minne- apolis (Minn.) 1916E-897. 3. LIABILITY OF PAKENTS FOB SUP- PORT OF CHILD. 4. Liability of Parent Necessaries Fur- nished Child. Parents are bound to pro- vide a minor child with necessaries. If they neglect to so provide, they may be- come liable to a third person who furnishes necessaries even without their consent. Where they are ready to so provide, a third person can claim liability only on ground of contract, express or implied. This action is for necessaries supplied to a minor son, and it is based upon an im- plied contract. Lufkin v. Harvey (Minn.) 1917D-583. 4. EMANCIPATION. 5. Sufficiency of Evidence. Defendants rely on a claim that their son had been emancipated, and hence a contract on their part to pay should not be implied. Eman- cipation may be complete, in which case it relieves the minor from custody and control of the parents and destroys the filial relation, or it may be partial. The evidence shows no more than a gift to the son of his earnings and the right to make contracts of employment. Complete eman- cipation cannot be inferred from such evi- dence. If the earnings given are sufficient to supply the son with all necessaries, the parents are under no further liability: if not, the parents remain liable for any necessaries which the wages are not suffi- cient to supply. Lufkin v. Harvey (Minn.) 1917D-583. (Annotated.) Note. Sufficiency of evidence to show eman- cipation of "infant. 1917D-585. 5. CONTRACTS INTER SE. 6. Presumption and Burden of Proof. No presumption of undue influence in the case of a conveyance by a parent to a child, in consideration of support of the grantor, arises from the mere relation of the parties, and. therefore, the burden is upon the party attacking the conveyance Soper v. Cisco (N. J.) 1918B-452. (Annotated.) 7. Services by Adult Child Right to Compensation. A child remaining in the family alter becoming of age is not enti- tled to pay for services rendered unless the services were performed pursuant to a prior agreement for compensation there- for; but where such services are performed pursuant to a prior agreement for com- pensation, they constitute a valid consid- eration for a conveyance of real estate. Thysell v. McDonald (Minn.) 1917C-1015. 8. Services by Adult Child Agreement for Compensation. The evidence sustains the finding that the services in question were performed pursuant to an agreement for compensation, and that the son was a good-faith purchaser of the land. Thysell v. McDonald (Minn.) 1917C-1U15. PAEJ MUTUEL. See Gaming, 1. See Pardons, 3. PAROLE. PARTIAL INVALIDITY. Of contracts, see Contracts, 42, 43. PARTIAL INVALIDITY OF STATUTES. Effect, see Statutes, 28-46. PARTIES TO ACTIONS. 1. In General, 655. 2. Joinder of Plaintiffs, 655. 3. Joinder of Defendants, 655. 4. Manner of Raising Objection, 656. See Conversion, 3, 4; Death by Wrongful Act, 14 ; Indictments and Informations, 17; Mandamus, 24; Public Lands, 1. On appeal, see Appeal and Error, 40. Nonjoinder harmless, see Appeal and Er- ror, 218. Harmless error in striking out, see Appeal and Error, 326. Attorney's lien on cause of action, joining attorney, see Attorneys, 42. In actions to enforce negotiable paper, Bills and Notes, 56-62. Stockholder's suit, see Corporations, 139. To offenses, see Criminal Law, 10. Action for wrongful burial at sea, see Dead Body, 11. To actions by executors and administra- tors, see Executors and Administra- tors, 72. In alienation suits, see Husband and Wife, 56, 57. Persons concluded by judgment, see Judg- ments, 66-71. Action for insurance, joinder of underwrit- ers, see Marine Insurance, 1. In foreclosure of mechanics' liens, see Me- chanics' Liens, 43-56. PARTIES TO ACTIONS. 655 On foreclosure of mortgage, see Mortgages and Deeds of Trust, 26 ; 27. In partition suit, see Partition, 6, 7. Demurrer for nonjoinder, see Pleading, 41. Amendment by adding parties, see Plead- ing, 74. Amendment by changing capacity of party, see Pleading, 75. Amendment by changing names, see Plead- ing, 76. Breach of warranty, see Sales, 34. In action under Bulk Sales Act, see Sales, 70. Stipulation by one not a party, effect, see Stipulations, 1. Eight of subrogated insurer to sue in his own name, see Subrogation, 4. Joinder of several insurers in action against tortfeasor, see Subrogation, 5. Action on surety bond, see Suretyship, 21, 22. On foreclosure of tax lien, see Taxation, 88. Absence of party as ground for continu- ance, see Trial, 8, 9. In suit to reinvest trust property, see Trusts and Trustees, 36. To proceeding to contest will, see Wills, 122-126. 1. IN GENEEAL. 1. Defect of Parties Waiver. Under the express provision of Wyo. Comp. St. 1910, 4383, an objection to a defect of parties not appearing on the face of the petition is waived, unless taken by answer, except only the objection to the jurisdic- tion of the court, and that the facts stated are not sufficient to constitute a cause of action. Becker v. Hopper (Wyo.) 1916D- 1041. 2. Effect of Omission of Party. In the federal courts, a suit in equity may pro- ceed without any necessary or proper party, who is not an indispensable party, if his presence would oust the jurisdiction of the court. An "indispensable party" is one who has such an interest in the subject-matter of the controversy that a final decree cannot be rendered between the other parties to the suit without radically and injuriously affecting his interest, or without leaving the controversy in such a situation that its final determination may be inconsistent with equity and good conscience. The original debtor is not an indispen- sable party to a suit in equity by his cred- itor on the promise of the grantee of the debtor to pay the creditor's claim. Silver King Coalition Mines Co. v. Silver King Consol. Min. Co. (Fed.) 1918B-571. 2. JOINDEE OF PLAINTIFFS. 3. Bill for Contribution Parties. Where some, but not all, of the members of an insolvent firm, by written agreement, rati- fied by the chancery court, appointed trus- tees to close the partnership affairs, all the partners should be made parties to a bill to compel one member who signed the agreement to pay his pro rata share of debts, for he is entitled to an accounting. Webb v. Butler (Ala.) 1916D-815. 4. Action for Negligence of Attorney. Where one claimant against a debtor as- signed his claim to another, so that one suit -could be brought on both claims, and both claimants signed the attachment bond, and were required to pay the amount thereof, both are proper parties plaintiff in an action against the attorney who brought the former suit for negligence which resulted in their being compelled to pay the amount of the attachment fund. Noziska v. Aten (S. Dak.) 1916C-589. 3. JOINDEE OF DEFENDANTS. 5. Joinder of Parties Persons Inter- ested in Realty to be Charged. On a bill to charge the estate of a decedent with a sum alleged to be the property of his sur- viving children to which they were enti- tled upon his death, as part of the pro- ceeds of their mother's estate, where an exhibit filed with the bill showed that two of the children of complainants' deceased mother were married, the joinder of such children and their husbands and wives is required to bind their interest, if the prop- erty is to be treated as realty. Henderson v. Harper (Md.) 1917C-93. 6. Husband and Wife Action for Res- toration of Property Parties. In an ac- tion by a divorced husband for property conveyed for the benefit of the wife in consideration of marriage, the children are not necessary or proper parties, though under the conveyance they have an inter- est in the property. Anheier v. De Long (Ky.) 1917A-1239. 7. Successor of Official. In a suit for an injunction against officers of certain tabor unions and others, it is error to grant personal relief by injunction against per- sons who, pending the suit, were chosen to succeed some of the original defendants as officers of such unions, but who were not served with process and did not ap- pear, on the ground that they were before the court by representation, as there is no such privity between the holder of an office in a voluntary association and his suc- cessor as to bind the latter by process issued against the former, and the suit was not a representative one within equity rule 28 (198 Fed. xxix, 115 C. C. A. xxix), pro- viding that when a question is one of com- mon or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole. Hitohman Coal, etc. Co. v. Mitchell (U. S.) 1918B-461. 8. Injunction in Individual Capacity Only. In a suit to enjoin certain persons 656 DIGEST. 1916C 1918B. individually and as officers of labor onions, the error, if any, in enjoining them only in their individual capacities, and not in their official capacities, may not be com- plained of by them. Hitchman Coal, etc. Co. v. Mitchell (U. S.) 1918B-461. 9. Improper Inclusion of Persons in In- junction. In a suit for injunction against officers of labor unions, a clause in the de- cree, enjoining as confederates all present and future members of the unions, is not a matter of which the defendants may com- plain. Hitchman Coal, etc. Co. v. Mit- chell (U. S.) 1918B-461. 10. Injunctions Protection of Property Proper Parties. Where an owner of a city lot makes a contract of sale, and, upon payment of a part of the purchase money, executes a bond for title, and places the purchaser in possession, the obligor and the obligee are proper parties to a suit against the city to enjoin an illegal inter- ference with the possession of the prop- erty. Carey v. Atlanta (Ga.) 1916E-H51. 4. MANNER OF RAISING OBJECTION. 11. Remedy for Nonjoinder. In an ac- tion for damages to land resulting from seepage, defendant is not entitled to a directed verdict because the land was mortgaged and the mortgagee not made a party, the remedy being to ask to have the mortgagee joined as a party. North Ster- ling Irrigation District v. Dickman (Colo.) 1916D-973. PARTIES TO CRIME. See Robbery, 3. PARTITION. 1. By Act of Parties. 2. By Judicial Proceedings. a. Jurisdiction. b. Who may Maintain Action. c. Property Subject. d. Parties. e. Actual Division of Property. f. Sale of Land. g. Determination of Legal Title and Right to Possession. See Remainders and Reversions, 1-3. App alability of judgment, see Appeal and Error, 34. 1. BY ACT OF PARTIES. 1. By Agreement What Constitutes. Cotenants may make any agreement they choose in respect to the use by each other of the common property, but such agree- ments do not constitute a partition there- of unless they provide or contemplate that title to specific portions thereof shall vest in such cotenants in severalty. Hunt v. Merker County Abstract, etc. Co. (Minn ) 1916D-925. 2. Agreement Impliedly Suspending Right to Partition. Such right may be suspended for a limited time by express agreement, or by acquiring the property for, or devoting it to, some purpose which will be defeated by a partition; but such right is not suspended by the existence of an interest in the property, or of a right to occupy or use it, which may continue and be given effect notwithstanding the partition. Hunt v. Meeker County Ab- stract, etc. Co. (Minn.) 1916D-925. (Annotated.) 2. BY JUDICIAL PROCEEDINGS. a. Jurisdiction. 3. Service by Publication. Under N. J. Chancery Act, 10, 11 (1 Comp. St. 1910, p. 413), providing that a suit in equity may proceed against a defendant by n^me and his heirs where complainant is unable to ascertain whether defendant is dead and is unable to ascertain the names or resi- dences of his heirs, provided notice as is required by law to be published against absent defendants is given, the court of chancery has jurisdiction on notice by pub- lication to nonresident owners and persons believed to be dead, their heirs, devisees or personal representatives, to decree a par- tition or a sale in lieu of partition and make good title thereto by decree for actual partition or through deed by a mas- ter in chancery in pursuance of a decree for sale. Cona v. Henry Hudson Co. (N. J.) 1916E-999. (Annotated.) Note. Validity of service by publication in action for partition. 1916E-1002. b. Who may Maintain Action. 4. Right to Partition. A cotenant has the right to compel a partition of the common property unless such right has been suspended or waived by some agree- ment, in respect to the property, made by himself or by one through whom he claims. Hunt v. Meeker County Abstract, etc. Co. (Minn.) 1916D-925. c. Property Subject. 5. Known oil lands, like mines, cannot bo judicially partitioned in kind, at the suit of one of the co-owners; or by a cred- itor of a co-owner. Gulf Refining Co. v. Hayne (La.) 1917D-130. (Annotated.) Note. Partition of mining interests and min- ing rights. 1917D-135. d. Parties. 6. Proceeding to Validate Inurement of Title. Though the purchaser from the ex- ecutor was not made a party, the execu- PAETIES TO CRIME PAETNERSHIP. 657 tor's title, having been perfected, inured to the benefit of the purchaser; no relief against him being sought. Giover v. Brad- ley (Fed.) 1917A-921. 7. Virtual Representation. In a parti- tion suit, where actual appearance of minor children in interest of certain lega- tees could have been enforced, their in- terest cannot be bound by the judgment on the theory of virtual representation. Chambers v. Preston (Tenn.) 1918B-428. (Annotated.) e. Actual Division of Property. 8. Mining Property Power to Partition in Kind. A lessee under a mineral con- tract may not contest the title of his lessor as an owner in indivision with others, and compel him and his co-owners to make a judicial partition in kind of the property leased. Gulf Refining Co. v. Hayne (La.) 1P17D-130. (Annotated.) f. Sale of Land. 9. Testamentary Restriction on Right Sale Subject to Restriction. Where one willed a farm in fee to his wife, directing tnat his daughter should have a home thereon, though the daughter acquired no interest in the land, a charge thereon was created in her behalf; and where the mother died intestate, and a partition sale of the land would not secure to the daugh- ter the full benefit of the provision made for her, a sale would not be decreed at the suit of other children of the mother, the effect of which woul'd deprive the daughter of possession, but a sale may be ordered, subject to her possessory rights. Chew v. Sheldon (N. Y.) 1916D-1268. (Annotated.) g. Determination of Legal Title and Bight of Possession. 10. Under and pursuant to a contract made at the time of the construction of the building in controversy, plaintiff is in possession of the second floor thereof and defendant of the first floor thereof. It is held that their respective rights of occu- pancy under this contract may exist after partition the same as before, and that plaintiff may compel a partition, but that such partition will be subject to such rights of occupancy. Hunt v. Meeker County Abstract, etc. Co. (Minn.) 1916D- 92 ( 5. ' (Annotated.) PARTNERSHIP. 1. The Partnership Belation, 657. a. In General, 657. b. What Constitutes a Partnership, 658. 2. Partnership Property, 658. 3. Bights and Liabilities Inter Se, 658. 42 a. Accounting Between Partners, 658. b. Competition by Partner, 659. c. Power of Majority, 659. d. Contribution, 659. 4. Liability to Third Parties, 659. a. Nature of Liability, 659. b. Authority to Bind Firm, 659. c. Discharge of One Partner from Lia- bility, 660. d. Firm and Individual Creditors, 660. e. Actions, 660. 5. Transfer of Partner's Interest, 660. 6. Betirement of Partners, 660. 7. Dissolution, 660. a. Dissolution by Death, of Partner, 660. b. Bights of Partners to Capital on Dissolution, 661. c. Jurisdiction in Equity to Adjust Bights, 661. d. Contribution, 661. Authority of partner to withdraw firm de- posit, see Banks and Banking, 43. Partnership as disqualification, see Judges, 14. Action by partner for libel of firm, see Libel and Slander, 71, 86. Partnership of city and railroad company, see Municipal Corporations, 42. 1. THE PAETNEBSHIP BELATION. a. In General. 1. Intent as Essential to Creation of Partnership. Persons may form a part- nership, though not intending so to do, since a partnership may be implied by agreement, whereby persons assume a re- lation in law constituting a partnership. Freeman v. Huttig Sash, etc. Co. (Tex.) 1916E-446. (Annotated.) 2. Definition of Partnership. By express provision of Cal. Civ. Code, see. 2395, a partnership is the association of two or more, for the purpose of carrying on busi- ness together, and dividing its profits be- tween them. Westcott v. Oilman (Cal.) 1916E-437. 3. Knowledge of Parties as to. Status. It is not necessary, as regards liability to third persons, that parties know th.tt their contract in law creates a partnership; but it is enough that by contract, or eon- duet, or both, they have in law engaged in a partnership venture. Westcott v. Gil- man (Cal.) 1916E-437. (Annotated.) 4. Partnership for Single Adventure. A partnership may be for the prosecution of one or two adventures, and need not be for the conduct of a general and continu- ous business. Westcott v. Gilman (Cal.) 1916E-437. 5. The existence, or not, of a partnership cannot be determined by dissecting the whole relationship, and considering each fragment as though it were the complete whole; but, especially as to third persons, it is to be determined by the contract, taken with the conduct and the dealings 658 DIGEST. 1916C 1918B. with the world of the parties to it. West- cott v. Oilman (Cal.) 1916E-437. 6. While the element of profit sharing does not alone and of itself establish a partnership, it is essential to a partner- ship. Westcott v. Oilman (Cal.) 1916E- 437. Note. Intent as essential to creation of part- nership. 1916E-440. b. What Constitutes a Partnership. 7. Sufficiency of Agreement to Create Partnership. That the agreement between 0. and P. for obtaining fruit by purchase or on consignment, and shipping and sell- ing it, while making G. the buyer, gives 1'., the seller, the right to veto prospective purchases if the price is not satisfactory to it, does not prevent the contract being oue of partnership, at least as concerns third persons. Westcott v. Oilman (Cal.) 1916E-437. 8. That by the agreement between G. and P. for procuring, shipping, and selling fiuit G. is to devote his service to procur- ing the fruit, while P. is to devote its ser- vices to handling and selling it, each with- out charges; does not prevent the existence of a partnership between them. Westcott v. Gilman (Cal.) 1916E-437. 9. Scope of Firm Business. The busi- ness agreed to be done by and between G. and P. is not limited to mere shipping, the contract, in the form of a letter from P. accepted by G., being: "We will do a joint account business with you on equal division of profits and losses. The busi- ness is to be the shipping of oranges and lemons, which you are to secure without any expense to the joint account, on con- signment, or if any purchases are made, it shall only be done with our consent . . . when the amount of purchase exceeds $100. You are to furnish the packing house and are entitled to $5 per car for each car packed. We will furnish the funds re- quired to handle the business and do the selling free of expense to the joint' account, all legitimate packing house expenses are to be charged against the joint account." Westcott v. Gilman (Cal.) 1916E-437. 10. Creation Intention as Essential. A partnership agreement executed to pro- tect one of the parties thereto in respect to money loaned by him to the other and with no intention that it shall become operative according to its terms does not create a partnership. Kelly, Douglas & Co. v. Sayle (Brit. Col.) 1916E-444. (Annotated.) 2. PARTNERSHIP PROPERTY. 11. Firm Realty Equitable Conversion. Whether real estate bought by the mem- bers of a partnership and standing in the name of one or both partners constitutes personal assets of the firm depends largely on what funds were used in the purchase, what use was to be made of the property, and the intentions of the partners at the time. Sieg v. Greene '(Fed.) 1917C-1006. 12. Real estate which belongs to a part- nership is treated in equity as personal property only so far as it may be needed to pay the debts of the partnership and adjust the equities of the partners. Sieg v. Greene (Fed.) 1917C-1006. 3. EIGHTS AND LIABILITIES INTER SB. a. Accounting Between Partners. 13. Evidence. There being no evidence that the apparent overdraft in a firm's bank account, when one of the partners left the business in the hands of others, represented any partnership loss, and was not met by deposits with the bank's east- ern correspondent of the proceeds of stock shipped east by the firm, as in the ordinary course of business it would be, the other partners were not entitled to be credited as against their partner, on a final account- ing, with the amount of such apparent overdraft on the final overdraft, all the rest of which, at least, represented a mis- appropriation by them. Gorman v. Mad- den (S. Dak.) 1916D-842. 14. That among the checks of the part- ners, with whom a firm's business was left by the partner, which checks created an overdraft of the firm's bank account, was one for the amount of the purchase price of a horse bought for the firm before the settlement of the previous year's business, does not show that the horse was paid for with such check, so as to entitle such part- ners to credit therefor on an accounting with their partner; the balance of the overdraft, at least, being a misappropria- tion by them. Gorman v. Madden (S. Dak.) 1916D-842. 15. Though the answer, in action by one of the partners against the others for an accounting of the affairs of the firm of M. & G., engaged in buying and selling live stock, alleges that during the course of said partnership plaintiff engaged in a business "contrary to the provisions of this said partnership," yet it alleging that he "bought and sol i live stock as such part- ner," from which business he has made profits of which he has made no account- ing to defendants, defendants may there- under show that plaintiff, as representa- tive of the firm of M. & G., under an agree- ment between the members thereof that he should do so, engaged in such other busi- ness as partner with others; so that the firm of M. & G. was entitled to his share of the profits in such other business. Gor- man v. Madden (S. Dak.) 1916D-842. PARTNERSHIP. 6li9 b. Competition by Partner. 16. Right of Partner to Engage in Com- peting Business. A partner, without the consent of his copartners, cannot carry on a business of the same nature and compet- ing with that of the firm, and, if he does so, equity may enjoin its continuance. Crownfield v. Phillips (Md.) 1916E-991. (Annotated.) 17. Where after disagreement between partners, and pending dissolution, the out- going partner sets up a competing busi- ness which seriously interferes with the business of the firm, the continuing part- ner is entitled to a preliminary injunction restraining the continuance of such com- peting business pending settlement of the partnership affairs. Crownfield v. Phi.l.ps (Md.) 1916E-991. (Annotated.) Note. Eight of partner to carry on business in competition with firm. 1916E-993. c. Power of Majority. 18. Power of Majority of Partners. In case of a diversity of opinion regarding the internal affairs of a partnership, part- nerships act by a majority, and such a ma- jority, when acting in good faith and within the scope of the partnership busi- ness, binds the firm. Reirden v. Stephen- son (Vt.) 1916C-109. (Annotated.) 19. A majority of the members of a part- nership engaged in manufacturing butter tubs which had sold its plant and most of its personal property, but which still had some personal property and some debts due it, and which so far as appeared had not gone out of business, have implied author- ity to employ a person to examine the books and affairs of the partnership and ascertain its financial standing and to fix his compensation either before or aftpr the work is completed. Eierden v. Slephenson (Vt.) 1916C-109. (Annotated.) 20. In an action against a partnership by a person employed by a majority of the members to examine its books and affairs and ascertain its financial standing, where, though it appeared that it had sold most cf its property, there was no finding that it had gone out of business, or that the firm was not to continue, this cannot be as- sumed in order to hold a judgment for plaintiff erroneous on the ground that such members of the firm had no authority to bind it. Eierden v. Stephenson (Vt.) 1916C-109. 'Annotated.) Note. Power of majority of partners to bind firm. 1916C-110. d. Contribution. 21. Where a firm of attorneys acting honestly and in good faith, but under a mistaken conception of the law, rendered services in the settlement of the estate of a testator contrary to the terms of the will and obtained compensation therefor, and the court directed the attorneys to re- fund the same to the estate, a partner mak- ing the refund was entitled to contribution from a copartner as against the objection that the attorneys were wrongdoers. Es- tate of Eyan (Wis.) 1916D-840. (Annotated.) 22. Illegal Transaction. The rule that there can be no contribution between wrongdoers is subject to the modification that a claim for contribution by one part- ner against a copartner will not be re- jected unless the firm is an illegal one, or unless the act relied on as the basis of the claim was not only illegal, but the illegal- ity was such that it must or ougbt'to have been known to the partners claiming con- tribution. Estate of Eyan (Wis.) 1916D- 840. (Annotated.) 23. For Finn Debts. A partner forced to pay firm debts may require contribution from his copartners. Webb v. Butler (Ala.) 1916D-815. (Annotated.) 24. Liquidation of Assets Agreement as to Method. Where defendant, who was one of several banking partners, signed an agreement appointing trustees to admin- ister the firm property, and the agreement was confirmed by the chancery court, he cannot, by demurrer, question a bill to compel him to pay his pro rata part of the debts, the firm being insolvent, on the ground that the statute provided the only method of settling the affairs of the bank. Webb v. Butler (Ala.) 1916D-815. 4. LIABILITY TO THIED PAETIES. a. Nature of Liability. 25. Liability of New Firm. An agree- ment of a new firm, formed from an old one by the addition of a new member, to pay debts of the original firm, must be consented to by all the' members of the new firm. Webb v. Butler (Ala.) 1916D- 815. 26. Incoming Partner Liability for Past Debts. One becoming a partner of a go- ing firm does not thereby become liable for debts previously incurred, in the absence of an agreement, express or implied, to that effect, but the presumption is against the assumption of liability. Freeman v. Hut- tig Sash, etc. Co. (Tex.) 1916E-446. b. Authority to Bind Firm. 27. Where two of three partners, en- gaged in forming a corporation, to take over land on which they had an option, as- sure purchasers of interests therein that the partnership will attend to the detail work and bear the expense of forming a corporation to take over the land, such 660 DIGEST. 1916C 1918B. agreement is within the scope of the firm business and is binding upon the third partner. Tanner v. Sinaloa Land, etc. Co. (Utah) 1916C-100. 28. A partner may bind the firm when acting therefor within the scope of the partnership business. Keirden v. Stephen- son (Vt.) 1916C-109. e- Discharge of One Partner from Liabil- ity. 29. Bight to Hold Single Partner. Cred- itors may discharge one partner and re- cover against another, because the credit is extended to the firm on the individual liability of each. Webb T. Butler (Ala.) 1916D-815. d. Firm and Individual Creditors. 30. Lien of Creditor on Partnership Property. A creditor of a firm acqui.es no hen on the property of a new firm created by a third person acquiring the interest of a partner in the former firm. Freeman v. Huttig Sash, etc. Co. (Tex.) 1916E-446. e. Actions. 31. Action Continuation in Name of Survivors. It was not error to strike out the names of two deceased partners as plaintiffs and permit the action to proceed to judgment under the names of the sur- viving partners. Sweetser v. Fox (Utah) 1916C-620. 5. TRANSFEB OF PARTNER'S INTER- EST. 32. Incoming Partner Liability for Past Debts. Where a purchaser of a partner's interest in a firm became a partner with the copartners in a new firm, the pur- chaser, as partner, was liable for goods ordered by the firm before the purchase and delivered thereafter, and for goods or- dered and delivered after the purchase, but was not liable for goods ordered and de- livered before the purchase. Freeman v. Huttig Sash, etc. Co. (Tex.) 1916E-446. 33. A purchaser of a partner's interest in a going firm is not liable for existing firm debts for goods purchased merely be- cause the new firm receives and uses them for its own benefit. Freeman v. Huttig Sash, etc. Co. (Tex.) 1916E-446. 34. The purchase of a partner's net in- terest in a going firm is not of itself suffi- cient to create an assumption of his in-, dividual liability for existing firm debts. Freeman v. Huttig Sash, etc. Co. (Tex.) 1916E-446. 35. The purchaser of a partner's interest in a going firm is not personally liable for existing firm debts merely because he rec- ognized that the firm property was subject thereto, and did not expect to obtain the partner's interest free from the debts, but expected that a corporation, to be formed, should pay them in taking over the firm property, and though he advised a copart- ner to apply proceeds of sales of firm goods to the payment of firm debts, irrespective of the time of their creation. Freeman v. Kuttig Sash, etc. Co. (Tex.) 1916E-446. 36. A purchaser of a partner's interest in a going firm did not intend to enter the firm and there was no agreement that he should become a partner, but it was the purpose of the purchaser and the remain- ing partners that the business should be incorporated. The formation of the cor- poration was unavoidably deferred, and it, in fact, was never formed, and, while the purpose to form it remained, the business went on under the firm name under the management of a copartner as before. Held, that the purchaser became a p.-rtner in a new firm composed of himself and the remaining partners in the old firm. Free- man v. Huttig Sash, etc. Co. (Tex.) 1916E- 446. (Annotated.) 37. Mode of Determining Value. The assets must for the purposes of such a pur- chase be valued by appraisal and the an- nual accounting and balance sheet of the firm is not conclusive. Wood v. Gauld (Can.) 1917C-939. 38. Valuation of Assets Inclusion of Good W 11. In valuing the assets of a partnership for the purpose of a purchase by the survivor of the interest of a de- ceased partner, the value of the good will of the firm is to be included, though the annual balance sheets of the firm took no account of it. Wood v. Gauld (Can.) 1917C-939. Note. Right of surviving partner to purchase deceased partner's interest. 1917C-946. 6. RETIREMENT OF PARTNERS. 39. Liability of Betiring Partner. A re- tiring partner is not released from liability to the creditors, unless they agree with the new fi'm for such release. Webb v. But- ler (Ala.) 1916D-815. 40. Change in Personnel Effect. Every change in the personnel of a partnership works a dissolution. Webb v. Butler (Ala.) 1916D-815. 7. DISSOLUTION, a. Dissolution by Death of Partner. 41. Bights of Surviving Partner Pur- chase of Interest of Decedent Preferen- tial Right. A preferential right of the sur- viving partner to purchase the interest of u deceased partner will be implied from provisions in the articles of partnership that the interest of the decedent shall not be withdrawn for a year and for an arbi- tration of disputes between the surviving PART PAYMENT PATENTS. 661 partner and the representatives of the de- cedent as to the value of the assets. Wood v, Gauld (Can.) 1917C-939. (Annotated.) b. Bights of Partners to Capital on Dis- solution. 42. Time to File Claims Against Estate. Under Wis. St. 1913, 3844, providing that every claim against an estate not presented for allowance within the time fixed by the order limiting the time for the presenta- tion of claims shall be barred, and section 3860, declaring that if a claim shall accrue after the expiration of the limited time.it may be presented and proved at any time within one year after accrual, a claim by an attorney for contribution against the estate of his deceased partner based on a judgment rendered after expiration of the time limited by order for presentation of claims and that payment thereof by the at- torney is not barred when presented within one year after the judgment. Estate of Byan (Wis.) 1916D-840. Note. Eight of contribution between partners. 1916D-820. c. Jurisdiction in Equity to Adjust Bights. 43. Accounting. In a suit to dissolve a partnership, a court of equity will force an accounting, though the accounts were not complicated. Webb y. Butler (Ala.) 1916D-815. d. Contribution. 44. The partners, who overdrew the part- nership account for their personal benefit, are, in the absence of partnership assets to meet the same, personally liable for the amount of the overdraft, on an accounting after dissolution, to the other partner who alone repaid the bank. Gorman v. Mad- den (S. Dak.) 1916D-842. (Annotated.) 45. Where two of the partners drew out for their personal benefit funds from the firm's bank account, the third partner, on an accounting after dissolution, is entitled to recover a third of such account from the other partners' share of the partnership assets remaining, or, in the absence of such assets from them personally. Gorman v. Madden (S. Dak.) 1916D-842. (Annotated.) 46. Between Partners. On dissolution of a partnership, the partner, who, in accord- ance with partnership agreement, advanced money for the business, is entitled, as against the other partners, to be repaid the same from the partnership assets. Gor- man v. Madden (S. Dak.) 1916D-842. (Annotated.) PABT PAYMENT. Bar of statute removed by, see Frauds, Statute of, 7. As removing bar, see Limitation of Ac- tions, 44-46. PABT PEBFOBMANCE. Of oral agreement, see Frauds, Statute of, 19, 20. PABTT-WALLS. See Adjoining Landowners, 2-6. Kegulation of, see Buildings, 2. Termination of rights by destruction, see Easements, 8. PAB VALUE. Meaning, see Counties, 11. PASSENGEB DEPOT. Meaning, see Bailroads, 48. FASSENGEB FOB HIRE. Person attending live stock, see Carrieus of Passengers, 13. PASSENGERS. Who are, see Carriers of Passengers, 11-14. Carriers' duties toward, see Carriers of Passengers, 15-46. PATENTS. 1. Power of Patentee to Impose Condi- tions on Use Restriction as to Materials. The owner of a patent may not, under U. S. Rev. Stat. 4884 (5 Fed. St. Ann. 419), giving him the exclusive right to use the invention, restrict its use by a purchaser, by a notice attached to the machine em- bodying the patent, to specific materials necessary to its operation, but which are no part of the patented machine, and are not themselves patented, nor can he, by such notice, make the use of the machine subject to further conditions as to use or royalties that may be imposed thereafter in his discretion. "Motion Picture Patents Co. v. Universal Film Mfg. Co. (U. S.) 1918A-959. (Annotated.) 2. The exclusive right to use the inven- tion or discovery granted by U. S. Rev. Stat, 4884 (5 Fed. St. Ann. 419), to the patentee, his heirs or assignees, did npt invest the assignee of the Latham patent No. 707,934, who had licensed another to make and sell a motion picture exhibiting machine embodying the invention, with the power to limit, by a notice attached to the machine, its use by a purchaser or the latter's lessee to films containing the in- 662 DIGEST. 1916C 1918B. vention of tlie reissued Edison patent No. 12,192, BO long as the assignee continues to own such patents, nor by such notice to condition the use upon other terms to be fixed by such assignee and complied with bj the user while the machine is in use and while the assignee owns the patents. Motion Picture Patents Co. v. Universal Film Mfg. Co. (U. S.) 1918A-959. (Annotated.) PAUPERS. See Poor and Poor Laws. PAWNBROKERS. Loan brokers, see Brokers, 14. 1. Constitutional Law Regulation of Loan Brokers Validity. Cal. St. 1909, p. 969, amended by St. 1911, p. 978, which by section 1 declares that one engaged in loaning or advancing money on the secur- ity of chattel mortgages, or personal prop- erty, or on security of a lien or assign- ment of, or power of attorney relating to, wages, shall be deemed a "personal prop- erty broker," sections 2 and 3 of whicu al- low such brokers to charge and receive 2 per cent a month, and section 5 of which requires such brokers, on making any loan or advancement, to give the borrower a memorandum showing the name of the lender, the nature of the security, etc. and which declares the failure to give such memorandum to be a misdemeanor, is not in conflict with Const, art. 1, 11. declar- ing .that all laws of a general nature shall have a uniform operation, nor with section 21, forbidding the granting of special privileges and immunities to any class of citizens, which on the same terms are not given to all, since such business is peculiar and well known and capable of classifica- tion. Matter of Stephan (Cal.) 1916E- 617. (Annotated.) 2. Such act is not within the meaning of Cal. Const, art. 4, 25, subd. 23, forbidding special laws "regulating the rate of inter- est on money." Matter of Stephan (Cal.) 1P16E-617. (Annotated.) Note. State or municipal regulation of personal property loan brokers. 1916E-618. PAYMENT. 1. What Constitutes Payment. 2. Application of Payments. a. In General. 1 b. Application by Debtor. c. Application by Third Party. 3 Proof of Payment. 4. Recovery of Voluntary Payment. Assignment of, see Assignments, 19. Liability of bank for unauthorized pay- ments, see Banks and Banking, 56. Of negotiable paper, see Bills and Notes, 35-37. Check as payment, see Escrow, 3. 7. Removing bar by part payment, see Frauds, Statute of, 7. Application in order of priority, see Me- chanics' Liens, 40. Payment of note held by third party as defense to foreclosure of mortgage, see Mortgages and Deeds of Trust, 24. Payment in full as prerequisite to subro- gation, see Subrogation, 7. Sufficiency of part payment to import new contract, see Sundays and Holidays, 4. Recovery of taxes erroneously exacted or paid, see Taxation, 101-106. Recovery of taxes erroneously collected un- der 'Foreign Corporation Tax Act, see Taxation, 170. 1. WHAT CONSTITUTES PAYMENT. 1. Note as Payment Question of Law or Fact. Whether defendant's note in suit was given by him and accepted by plain- tiff in lieu of cash as payment and satis- faction pro tanto of part of the purchase price under a conditional sale of chattels is a mixed question of law and fact. Nor- man v. Meeker (Wash.) 1917D-462. 2. Note as Payment Effect of Negotia- tion by Payee. The negotiation by the payee of a note evidencing a debt does not operate as a payment of the debt so as to discharge the lien of a conveyance made by way of collateral security. Moody v. Stubbs (Kan.) 1917C-362. (Annotated.) Note. Negotiation of note of debtor as consti- tuting payment of original debt. 191 7C- 364. 2. APPLICATION OF PAYMENTS. a. In General. 3. In the absence of an agreement pro- viding otherwise payment upon a debt for salary of a municipal employee consisting of principal and interest not actually ap- plied by the debtor or creditor is first ap- plicable to the interest due and then to the principal. Shepard T. New York (N. Y.) 1917C-1062. (Annotated.) b. Application by Debtor. 4. The debtor may elect to have all his payments upon the indebtedness treated as payments, first upon the legal interest and principal, in which case no usury can be sued for until the entire debt has been paid. Taulbee v. Hargis (Ky.) 191SA- 762. 5. Evidence of Proper Application. A surety company guaranteed payment for materials used by a construction company in paving certain streets, another construc- tion company, with the same officers and the same general manager, had a contract for paving certain other streets, and each PEACE PENSIONS. 663 company purchased its materials from plaintiff. Held, that the evidence is suffi- cient to support a finding that certain checks signed by the first construction company and delivered to plaintiff by the manager of both companies, with direction to credit the same to the account of the second company, were properly applied as directed, and that under the circumstances in evidence the surety company cannot complain. Wyandotte Coal, etc. Co. v. Wyandotte Paving etc. Co. (Kan.) 1917C- 580. c. Application by Third Party. 6. Right of Third Person to Control. Third persons, such as guarantors, sureties, indorsers, and the like, secondarily liable on one of several debts, cannot control the application which either the debtor or the creditor makes of a payment, and neither the debtor nor the creditor need apply the payment in the manner most beneficial to such persons. Wyandotte Coal, etc. Co. v. "Wyandotte Paving etc. Co. (Kan.) 1917C- 580. (Annotated.) Note. Eight of third person to control applica- tion of payment. 1917C-582. 3. PROOF OF PAYMENT. 7. Payment Evidence for Jury. In an action on notes admittedly received as col- lateral, the question whether the principal obligation had been paid is held to be for the jury. Estate of Philpott (Iowa) 1917B-839. 8. By Third Person Evidence Failure to Present to Payee. In an action for de- ceit in the sate of a ship and her freight, which were encumbered by a disbursement draft, evidence that the draft was never presented for payment to the bank to which it was first indorsed and by which it was indorsed to another, and that the next time the cashier saw it it was in the hands of plaintiffs attorney, is admis- sible as tending to show that plaintiff paid the draft. Corry v. Sylvia Y Cia (Ala.) 1917E-1052. 9. That evidence is not objectionable as not being the best evidence of the payment of the draft. Corry v. Sylvia Y Cia (Ala.) 1917E-1052. 10. Possession of Draft by Third Person. Where defendant sold a ship and its fre.ght to plaintiff without informing the latter of a disbursement draft which was made a lien on the freight and the ship, posses- sion by plaintiff's agent of the draft is prima facie evidence, in an action for the deceit, that plaintiff had paid it. Corry v. Sylvia Y Cia (Ala.) 1917E-1052, 4. RECOVERY OF VOLUNTARY PAY- MENT. 11. Mistake of Law Recovery Back Payment by Officer. Where the officers of a township, under a mistake of law, wrong- fully pay over road and bridge funds to the treasurer of a city whose corporate limits are within the township, the town- ship may recover the amount of such funds from the city. Lamar Township v. Lamar (Mo.) 1916D-740. (Annotated.) 12. Payment to Secure License Right to Recover Back. Where a Tillage council re fused to issue licenses until the applicants had paid a certain sum to the village treas- ury under an invalid ordinance, and the applicant, without seeking redress in the courts, made the payment to protect the value of his property, there was no duress, and the payments cannot be recovered. Baldwin v. Chesaning (Mich.) 1918B-512. (Annotated.) Note. Payment to prevent apprehended injury to business as payment under duress. 1918B-516. PEACE. See Breach of Peace. PECUNIARY INTEREST. See Interest. PEDDLERS. gee Hawkers and Peddlers. PEDESTRIANS. Duties and rights, see Automobiles, 22. Injury to, see Independent Contractors, 15. Duty toward vehicles, see Negligence, 42. PENALTIES. See Fines and Penalties; Forfeitures. PENALTY. Notice a prerequisite to liability, see No- tice, 1. PENDING ACTION. See Actions and Proceedings, 8. When action is pending, see Limitation of Actions, 15. Effect of repeal of statute, see Statutes, 125. PENDING APPEAL. See Appeal and Error, 47. PENSIONS. 1. Soldiers' Home Nature of Institution. The Michigan Soldiers' Home, established by Mich. Pub. Acts 1885, No. 152, is an eleemosynary institution for the purpose of dispensing a charity to a favored but dependent class, intended to furnish a home to honorably discharged veterans, disabled by disease, wounds, etc. from earning their living, and having no ade- 664 DIGEST. 1916C 1918B. quate means of support, who would other- wise become objects of common charity. Mason v. Board of Managers (Mich.) 1916C-848. 2. Effect of Admission to Soldiers' Home. Mich. Pub. Acts 1885, No. 152, establish- ing the Michigan Soldiers' Home, by sec- tion 2, vested the general government in a board of managers, by section 8, required the board to prepare a system of govern- ment, by section 11, declared that all hon- orably discharged and disabled soldiers and sailors otherwise dependent on charity should be admitted, subject to the regula- tions of the managers. Pub. Acts 1905, No. 313, provided that money accumulated in the post fund of the home might be used to benefit the home and its inmates, and Pub. Acts 1911, No. 102, that pensions of residents might be taken for disciplinary purposes to be held in trust for them. Held, that one whose pension was adequate for his support was not entitled to ad- mission, and that a regulation imposed as a condition of admission that residents transfer their pensions in excess of $12 per month, to be permanently retained and ultimately turned over to a general state fund, was beyond the power of the board, and that the amounts so retained were held in trust, to be accounted for accord- ing to Act No. 102. Mason v. Board of Managers (Mich.) 1916C-848. (Annotated.) 3. In such accounting the amounts due to discharged or deceased soldiers, as to whom the trust had terminated, were pay- able, with interest at 5 per cent per annum from the time of death or discharge; but, as to money held by the board under the disciplinary regulation, no interest was re- coverable unless the board had received interest thereon. Mason v. Board of Man- agers (Mich.) 1916C-848. (Annotated.) Note. Effect with respect to pension of pen- sioner becoming inmate of soldiers' home. 1916C-854. PER CAPITA OR PER STIRPES. Construction of bequest, see Wills, 214, 215. PEREMPTORY CHALLENGES. See Jury, 23, 24. PEREMPTORY MANDAMUS. gee Mandamus, 29, 30. PERFECTION OF APPEAL. See Appeal and Error, 46. PERFORMANCE OF CONTRACTS. See Contracts, 45-53. PERJURY. Charging perjury in instructions, gee In- structions, 48. As ground for vacating award under Work- men's Compensation Act, see Master and Servant, 303. PERMANENT ALIMONY. See Alimony and Suit Money, 1-8. PERMANENT INJUNCTIONS. See Injunctions. PERMISSIVE WASTE. Defined, Bee Waste, 1. PERPETUATING TESTIMONY. See Depositions, 1. PERPETUITIES. See Charities, 18, 19. Covenant for perpetual renewa 1 ., see Land- lord and Tenant, 50-52. 1. Trust for Maintenance of Estate. A will appointing the income of a fund to preserve, maintain, and improve real es- tate, the fee of which was bequeathed to trustees to hold for the benefit of a minor during her minority, and upon her reach- ing the age of twenty-one years to convey the same to her in fee, discharged of all trust, and in the event of her prior decease giving the fee to two trustees and the sur- vivor with a gift over to another in case of the decease of both trustees, is an in- valid attempt to appoint the fund in per- petuity for the maintenance of a private estate to be used and occupied as such. Thorp v. Lund (Mass.) 1918B-1204. 2. Definitions. As commonly understood, though not technically exact, a "perpetu- ity" is something which may last forever, and the "rule against perpetuities" is a rule that prevents certain existing condi- tions from continuing for an indefinite time and promotes alienability by destroy- ing future interest. Barton v. Thaw (Pa.) 1916D-570. 3. Vested and Contingent Estates. Where the event on which an estate is to arise is an option to purchase, which is so uncertain that it may expire at some time in the future or may not expire at all, the interest created at the option is not "vested," but is "contingent" and within the rule against perpetuities. Barton v. Thaw (Pa.) 1916D-570. (Annotated.) 4. Indefinite Option. A covenant in a deed conveying coal'underlying land, pro- viding that if the grantee, his heirs or assignees, shall at any time desire to pur- chase any of the land, the grantors will sell same to them at a certain price, being PERQUISITE PERSONAL REPRESENTATIVES. 665 a mere option to purchase, which under its terms can be exercised at any time in the future, ia void under the rule against per- petuities. Barton v. Thaw (Pa.) 1916D- 570. (Annotated.) 5. Application of Rule Against Perpetu- ities. The statute against perpetuities (Iowa Code, 2901) does not apply to gifts for charitable uses. Wilson v. First Na- tional Bank (Iowa) 1916D-481. 6. Gift of Remainder to Charity. A will provided that testator's bank stock should he kept in his name, and the dividends paid to his brother and sister during their lives, and on their death "the said stock is to be turned over" to a training school, for the establishment of which testator devised certain funds in trust, and the will elsewhere provided that on the death cf the brother and sister the bank stock should be Transferred to the board of di- rectors of the training school. Held that, since the title of the stock was in the trustee or in the corporation from the death of the testator, subject to the charge in favor of his brother and sister, it could not be claimed that the gift to the train- ing school was invalid as against the stat- ute of perpetuities on the ground that it was in the nature of a gift over after the lapse of a prior gift. Wilson v. First National Bank (Iowa) 1916D-481. 7. Certainty of Vesting. To prevent a future interest in property from being in- valid under the rule against perpetuities, it is not enough merely that it will in all probability vest within the limitations specified, but it must necessarily so vest. Barton v. Thaw (Pa.) 1916D-570. 8. Construction of Grant Lives in Being. A deed to one and his heirs and on his death without issue to another is not a violation of the rule against per- petuities, as "dying without issue" means, under the express terms of N. Car. Eevisal 1905, 1581, a dying without having issue, living at the time of death of the grantee. Lee v. Gates (N. Car.)) 1917A-514. 9. Defeasible Remainder. A provision giving property in trust for a daughter for life, and at her death to pay over the same to her issue, but, if she left none surviv- ing, then to testator's heirs at law, does not violate the statute against perpetu- ities; the remainders over vesting at tes- tator's death, though defeasible in the con- tingency named. Allen v. Almy (Conn.) 1917B-112. 10. Scope of Rule Against Perpetuities Gift to Public Charity. N. Y. Personal Property Law (Consol. Laws, c. 41), 12, providing that no gift or bequest to char- itable uses which shall, in other respects, be valid under the laws of the state shall be deemed invalid by reason of the in- definiteness or uncertainty of the bene- ficiaries, and that if the instrument grant- ing such a gift names a trustee the legal title shall vest in him, and if no person is named as trustee shall vest in the su- preme court, which shall have control over such gifts and power to administer them to effect the purpose of the instrument, sanctions the creation of charitable trusts, and relieves such trusts from the operation of the statutes against perpetuities, and restores the law of charitable trustees as recognized in England prior to the Revo- lution. Matter of MaeDowell (N. Y.) 1917E-853. Note. Option to purchase realty as violating rule against perpetuities. 1916D-577. PERQUISITE. Meaning, see Judges, 4. PERSON. Includes corporation, see Limitation of Ac- tions, 5. PERSONS. See Public Officers, 26. PERSONAL INJURY. Of attorneys, see Attorneys, 69-74. Measure of damages, see Damages, 6, 1&- 14. Excessiveness of verdict, gee Damages, 29- 33. Of executors and administrators, see Ex- ecutors and Administrators, 21, 22. Of governor for official acts, see Governor, 1, 2. Of guardian, see Guardian and Ward, 15, 16. To minor, actions for, see Infants, 24, 25. Liability of innkeeper to guest, see Inn- keepers, 4, 5, 8-10. Landlord's liability, see Landlord and Tenant, 17-19. Proceedings under Employers' Liability Act, see Master and Servant, 40-100. Of servant under Workmen's Compensa- tion Act, see Master and Servant, 101- 364. Of mortgagor on foreclosure, see Mortga- ges and Deeds of Trust, 2, 28. Of city officers, see Municipal Corporations, 149, 150. Of officers, see Public Officers, 61-66. Of receiver for attorney fees, ee Receiv- ers, 6. For special assessment, see Taxation, 139- 141. PERSONAL PROPERTY. See Property. PERSONAL REPRESENTATIVES, gee Executors and Administrators. 666 PETITIONS. See Pleading. Sufficiency on motion for new trial, New Trial, 31-34. PETROLEUM PEODUCTS. Power to regulate, see Constitutional Law, 42. PETTY OFFENSES. Right to jury trial, see Jury, 7, PHARMACISTS. See Drugs and Druggists. PHOTOGRAPHS. As evidence, see Evidence, 113. PHYSICAL EXAMINATION. Statute requiring examination of pupils, see Schools, 33-38. 1. Impartial Physicians. In an action for malpractice, while the court may re- quire plaintiff to submit to the examina- tion by impartial physicians, she cannot be required to submit to examination by physicians selected by defendant. Just v. Littlefield (Wash.) 1917D-705. 2. Physical Examination of Party Dis- cretion of Court. Where plaintiff had been examined by two physicians representing defendant company prior to the trial of an action for personal injuries, and there was no evidence that she or her physicians deceived the examining doctor, it is not an abuse of discretion to refuse request by defendant for examination of plaintiff at the time of the trial. Cohen v. Phila- delphia Rapid Transit Co. (Pa.) 1917D- 350. (Annotated.) Note. Power of court to compel submission to physical examination. 1917D-351. PHYSICIANS AND SURGEONS. 1. Nature of Right to Practice, 666. 2. Validity of Statutes, 666. 3. Construction of Statutes, 667. 4. What Constitutes Practice of Medicine Without License, 667. 5. Compensation, 668. 6. Contract to Render Medical Service, 663. 7. Liability for Malpractice, 668. a. In General, 668. b. Degree of Care Required, 668. c. Actions, 669. (1) Pleading, 669. (2) Evidence, 669. (3) Instructions, 670. (4) Questions for Jury, 671. Authority to engage physician to attend injured employee, see Agency, 12. DIGEST. 1916C 1918B. Harmless error in admitting evidence, see Appeal and Error, 235, 236. Malpractice, excessiveness of verdict, see Damages, 49-52. Expert testimony of nurse as to illness, see Evidence", 60. Expert testimony as to possibility of Cure, see Evidence, 61. Medical books as evidence, see Evidence, 94, 95. Hospital chart as evidence, see Evidence, 105-107. Liability of hospital for surgeon's malprac- tice, see Hospitals and Asylums, 1. Validity of prescription exception, see Intoxicating Liquors, 25. Right to sell liquor, see Intoxicating Liquors, 80. Duties of medical referee under Work- men's Compensation Act, see Master and Servant, 290, 291. Physical examination of plaintiff in mal- practice trial, see Physical Examina- tion, 1, 2. Compensation for treatment of pauper, 863 Poor and Poor Laws, 1. Communications with patient as privileged, see Witnesses, 27-29. 1. NATURE OF RIGHT TO PRACTICE. 1. What Constitutes Practice of Medi- cine Chiropractic. Under' Utah Laws 1911, c. 93, providing that any person shall be regarded as practicing medicine who shall diagnose, treat, operate upon, pre- scribe, or advise for any physical or men- tal ailment or any abnormal mentil or physical condition of another after having received or with intent to receive any com- pensation, or who shall hold himself out as a physician or a surgeon, a "chiroprac- tor," one professing a system of manipu- lations which aims to cure disease by the mechanical restoration of displaced or subluxated bones, especially the vertebrae, to their normal relation, who advertises as a "Graduate Chiropractor. No drugs, or ' surgery, or osteopathy. Try chiropractic" and who endeavors not so much to cure ailments as to permit the natural "vital forces of the body," impeded by luxation cf vertebrae, to proceed unhindered to any diseased part upon readjusting th dis- placed vertebrae with his bare hands, for which he receives compensation, is "prac- ticing medicine" within the statute, since he "diagnosed" the symptoms of his patients by recognizing the presence of disease from its signs or symptoms in de- ciding as to its character, and thereafter treated them for compensation. Board of .Medical Examiners v. Freenor (Utah) 1917E-1156. (Annotated.) 2. VALIDITY OF STATUTES. 2. Injunction Against Unlawful Practice. Under Utah Comp. Laws 1907, 1737, pro- viding that any persons practicing medi- cine, surgery, or obstetrics within the PHYSICIANS AND SURGEONS. 667 state contrary to law may, at the instance of the board of medical examiners, be en- joined from practicing until lawfully ad- mitted to practice, the district court has equitable jurisdiction, on complaint of the medical examiners, to grant injunction against a chiropractor practicing medicine, as the legislature has power to change, abolish, or enact rules of equity, as in the instant case by authorizing restraint of a public offense. Board of Medical Exam- iners v. Freerior (Utah) 1917E-1156. 3. Requirement of License Validity. Iowa Code, 2580, providing that it shall be a misdemeanor for any person to prac- tice medicine, surgery, or obstetrics in the state without having first obtained and filed for record a certificate from the state board of medical examiners, is not re- pugnant to the bill of rights, the constitu- tion of the United States, or the constitu- tion of the state. State v. McAninch (Iowa) 1918A-559. 4. Ophthalmologists. The exemption in favor of duly licensed physicians and sur- geons, which is made by Oal. Laws 1913, c. 598, confining to registered optometrists who have passed the prescribed examina- tion the right to employ means other than the use of drugs to measure the rang3 of human vision, and the accommodative and refractive states of the human eye, does not deny the equal protection of the laws guaranteed by U. S. Const. 14th Amend. (9 Fed. St. Ann. 416), to a regularly graduated ophthalmologist who employs clrugless means for such purposes. Mc- Naughton v. Johnson (U. S.) 1917B-801. (Annotated.) 5. Regulation of Optometrists Validity. A. state may, in the exercise of its police power, confine to registered optometrists who have passed the examination pre- scribed by Gal. Laws 1913, c. 598, the right to employ means other than drugs to meas- ure the range of human vision, and the accommodative and refractive states of the human. eye. McNaughton v. Johnson (U. S.) 1917B-801. (Annotated.) 6. Drugless Practitioners. The state's police power extends to requiring, as is done by Cal. Laws 1913, c. 354, as amended by Laws 1915, c. 105, that drugless prac- titioners employing faith, hope, and the processes of mental suggestion and men- tal adaptation in the treatment of disease shall have completed a prescribed course of study and passed an examination. Crane v. Johnson (U. S.) 1917B-796. (Annotated.) 7. The exemption in favor of persons treating the sick by prayer from the ap- plication of Cal. Laws 1913, c. 354, as amended by Laws 1915, c. 105, which pro- vides that persons may not practice drug- less healing unless holding a "drugless practitioner certificate," obtainable only upon completion of a prescribed course of study and after an examination, does not render the statute invalid as denying the equal protection of the laws guaranteed by U. S. Const. 14th Amend. (9 Fed. St. Ann. 416), to one who does not emnloy piayer in his treatment of disease, but does use faith, hope, and the processes of men- tal suggestions and mental adaptation, a form of treatment in which skill enhanced by practice is to be exercisecf. Crane v. Johnson (U. S.) 1917B-796. (Annotated.) 8. State Regulation of Nurses. The fact that the state association of graduated nurses, to which an appeal may be taken from the decision of the state board of nurse examiners under Mont. Laws 1913, c. 50, 11, is a voluntary association, does not render that section unconstitutional. State v. District Court (Mont.) 1917C- 164. (Annotated.) 9>. The state can require such qualifica- tions as it deems necessary for the prac- tice of a profession which is potent for harm if practiced by ignorant, incapable, or corrupt persons, and may prescribe the ireans for determining such qualifications without judicial proceedings, since "due process of law" is not necessarily judicial process. State v. District Court (Mont.) 1917C-164. (Annotated.) 10. Mont. Laws 1913, c. 50, 11, provid- ing for an appeal from the rejection of any application for registration as a nurse to the state association of graduated nurses whose decision shall be final, is not unconstitutional as depriving a citizen of the right to follow a lawful profession without a hearing in the courts, since the act expressly provides that it does not apply to gratuitous nursing nor to any person nursing for hire who does not as- sume or pretend to have special training and does not pretend to be a registered nurse. State v. District Court (Mont.) 1917C-164. (Annotated.) Notes. State regulation of practice of nursing. 1917C-168. Special regulation of Christian Science or other drugless treatment of disease. 1917B-798. Special regulation of persons treating ocular diseases. 1917B-803. 3. CONSTRUCTION OF STATUTES. 11. Utah Laws 1911, c. 93, prohibiting practicing medicine without a license, does not concern systems of treatments, but merely prohibits anyone from treating dis- eases who has not the requisite qualifica- tions. State Board of Medical Examiners v. Terrill (Utah) 1918B-1117. (Annotated.) 4 WHAT CONSTITUTES PRACTICE OF MEDICINE WITHOUT LICENSE. 12. What Constitutes Practice of Medi- cine Massage Treatment. The evidence 668 DIGEST. 1916C 1918B. is held to show that defendant practiced medicine without a license, as he under- took to examine, diagnose, and prescribe for all ailments, as well as to do general massaging. State Board of Medical Ex- aminers v. Terrill (Utah) 1918B-1117. (Annotated.) 13. A decree, enjoining defendant from diagnosing, treating, operating on, pre- scribing, or advising for any person afflicted with any mental or physical ail- ment or condition, from which he expects or does receive a pecuniary compensa- tion, or from practicing medicine within the state until he shall have received a certificate permitting him to practice medicine, does not prevent him from doing the business of an ordinary masseur, since it is in the words of Utah Laws 1911. c. 93, prohibiting practicing medicine with- out a license. State Board of Medical Examiners v. Terrill (Utah) 1918B-1117. (Annotated.) 5. COMPENSATION. 14. Making Bight Contingent on Suc- cess Agreement Construed. Where a sur- geon advised a patient to seek other more celebrated surgeons, but on the patient's objection said that, if she was willing to take a chance with him, he was willing to take a chance with her, such statement does not show that the surgeon agreed to demand compensation only in event of a successful operation. Harvey y. Rich- ardson (Wash.) 1918A-881. 6. CONTKACT TO BENDER MEDICAL SERVICE. 15. Failure to Attend Patient Defenses. Tt is no excuse for a physician, who agreed to treat one person that at the time treat- ment became necessary he could not leave another patient. Hood v. Moffett (Miss.) 1917E-410. 16. Relation Between Physician and Pa- tient Workman Treated at Company Hos- pitaL Plaintiff's employer had an arrange- ment with defendants, physicians, who operated a hospital in Cloquet, by which the employer deducted a certain sum each month from the pay of each employee, and turned over the sums so deducted to defendants, who agreed, for such compen- sation, to care for and treat all injured employees which the employer should send to them. Plaintiff was injured and was taken to defendants' hospital and treated by them under this arrangement. It is held that the relation of patient and physician existed between plaintiff and de- fendants, and that the latter owed plain- tiff the duty to exercise ordinary care and skill in treating him. Viita v. Fleming (Minn.) 1917E-678. 17. Necessity of Consent to Operation. Where a patient voluntarily submits to an operation by making no objection, though she knows it is about to be per- formed, her consent thereto will be pre- sumed, unless it is made reasonably clear that she was the victim of a false and fraudulent representation. Barfield v. South Highlands Infirmary (Ala.) 1916C- 1097. (Annotated.) 18. Degree of Responsibility. Unless BO provided by an express contract, a phys- ician or surgeon does not warrant that he will effect a cure, or that he will restore the patient to the same condition as be- fore the necessity for treatment arose, or that the result of the treatment will be successful. Barfield v. South Highlands Infirmary (Ala.) 1916C-1097. Note. Consent as affecting right to perform surgical operation. 19160-1105. 7. LIABILITY FOR MALPRACTICE. a. In General. 19. What Constitutes. It is not negli- gence for a physician or surgeon to reduce a fracture by the method generally recog- nized by surgeons as proper. Craghead v. McCullough (Colo.) 1916C-1075. 20. For What Injuries Liable. For mal- practice in treating an injury, a surgeon is liable only for results from his negli- gence, and not for those from the original injury. Cranford v. O'Shea (Wash.) 1916C-1081. 21. Erroneous Diagnosis. While a phys- ician is liable for the results of improper treatment administered through negligence, he is not ordinarily liable for damages consequent upon an honest mistake or error of judgment in making a diagnosis, where there is reasonable doubt. Just v. Littlefield (Wash.) 1917D-705. (Annotated.) 22. Failure to Make Test Before Opera- tion. That a surgeon, who was operating for goiter, did not take a blood test ot" the patient before the operation, will not, though the patient died prevent him from recovering his fee; it not appearing that it was the custom in fhat locality to take blood tests, or that the failure injured the patient, for a physician or surgeon does not guarantee to cure his patient, or that his treatment will be successful. Harvey v. Richardson (Wash.) 1918A-S81. (Annotated.) Notes. Failure of surgeon to make test before operation as malpractice. 1918A-883. Liability of phvsician for malpractice in making wrong diagnosis. 1917D-708. b. Degree of Care Required. 23. A physician or surgeon, possessing the requisite qualifications and applying PHYSICIANS AND SURGEONS. 669 his skill and judgment with ordinary care and diligence to the diagnosis and treat- ment of the patient, is not liable for an honest mistake or error of judgment in making a diagnosis or prescribing a mode of treatment, where there is ground for reasonable doubt as to the practice to be pursued. Barfield v. South Highlands In- firmary (Ala.) 1916C-1097. (Annotated.) 24. In the absence of a special contract, tbe law implies that a surgeon employed to treat an injury contracts to exorcise reasonable and ordinary care to accomplish the purpose for which he is employed, but he does not warrant a cure and is not responsible for want of success unless it results from a failure to exercise ordinary care or from want of ordinary skill. Crag- head T. McCullough (Colo.) 1916C-1075. 25. Degree of Care and Skill Required. The law requires a physician and surgeon to possess the skill and learning which is ordinarily possessed by the average mem- ber of such profession in good standing, and requires him to apply such sk 11 and learning in a given case with ordinary and reasonable care. McAlinden v. St. Maries Hospital Association (Idaho) 1918A-380. 26. Whether errors of judgment will or will not make a physician and surgeon liable for damages in a given case, depends not merely upon the circumstance that he may be ordinarily skilful as such physician and surgeon, but also upon the fact of whether he has exercised in the treatment of such case the degree of reasonable skill and diligence that is ordinarily exercised in his profession. McAlinden v. St. Maries Hospital Association (Idaho) 1918A-380. 27. Whether a physician and surgeon in a given case possessed and exercised that degree of skill and learning possessed by the average member of the medical and surgical professions in good standing in the community, and used that reasonable care and diligence according to his best judgment in the treatment of an injured patient that the average member of such professions would have used, are quest ; ons of fact exclusively for the jury to deter- mine. This rule is not changed by the fact that men learned in the sciences of medicine and surgery have given conflict- ing testimony touching the required and approved treatment of an injury. McAlin- den v. St. Maries Hospital Association (Idaho) 1918A-380. c. Actions. (1) Pleading. 28. Certainty. A complaint in an action against a physician for malpractice, which merely averred that he did not use the usual test to ascertain plaintiffs preg- nancy, is subject to motion to make more definite and certain, as medical men might differ on what was the usual test. Just v. Littlefield (Wash.) 1917D-705. \ (2) Evidence. 29. Evidence as to Experience. Where a surgeon sued for malpractice testified as an expert, evidence as to his age, the ex- tent of his practice, and his place of resi- dence and other similar matters is admis- sible, as the jury were entitled to be in- formed of his opportunities for observation and experience in his line, and to know what manner of man he was, and it was immaterial that testimony as to the-e mat- ters was given by another witness rather than by defendant. Barfield v. South Highlands Infirmary (Ala.) 1916C-1097. 30. Necessity of Consent to Operation. If a patient was incapacitated to consent to the amputation of a leg, and if the necessity therefor was extremely urgent to save her life, a surgeon treating her had a right to consult with her mother and to act upon her mother's consent as the implied consent of the patient; and hence, where there was evidence of these facts, it was not error to admit evidence, in an action for malpractice, thit the mother consented and stated that the patient had consented. Barfield v. South Highlands Infirmary (Ala.) 1916C-1097. (Annotated.) 31. In an action against a surgeon for amputating plaintiff's leg without her con- sent, evidence that plaintiff's mother and a nurse told defendant that plaintiff was willing to have the leg amputated, though felling tn the general class of hearsay, i admissible as bearing upon defendant's good faith. Barfield v. Siuth Highlands Infirmary (Ala.) 1916C-1097. (Annotated.) 32. Admissibility of Evidence. In an ac- tion for amputating plaintiff's leg without her consent and for so negligently and unskilfully treating it as to make its am- putation necessary, where there was no suggestion in the declaration or the evi- dence that defendant was guilty of any negligence or lack of skill in treating plaintiff after the amputation, evidence as to matters occurring after the amputation is properly excluded. Barfield v. South Highlands Infirmary (Ala.) 1916C-1097. 33. Amount of Charge. In an action against a surgeon for malpractice, a ques- tion asked a witness as to the surgeon's charge for his treatment was properlv ex- cluded, the amount of the charge n^t being in issue, defendant beig morally and legal'y bound to exercise the same degree of care, diligence, and skill whether his charge was large or small, and no inference of wrong or negligence arising from the fact that the charge was unreasonable, especially &s his charge was shown by other evidence. Barfield v. South High- lands Infirmary (Ala.) 1916C-1097. 670 34. Failure of Another to Cure, action against a surgeon for amputating plaintiff's leg without her consent, and Jor so negligently and unskilfully treating it as to make its amputation necessary, the fact that another physician or surgeon had failed in an attempt to treat the leg is proper for the consideration of the jury on the question of defendant's alleged negligence and the alleged wrongful am- putation, and an instruction that such fact, if it was a fact should not be considered is properly refused. Barfield v. South Highlands Infirmary (Ala.) 1916C-1097. 35. Negligence Established. In an ac- tion against a physician and surgeon, evi- dence held sufficient to support a jury finding of negligence in connection with the treatment of a fractured collar bone. Craghead v. McCullough (Colo.) 1916C- 1075. 36. Proof of Negligence Res Ipsa Lo- quitur. A surgeon's failure to exercise or- dinary care in treating a fracture is not established by proof of the result alone, but must be shown by other evidence, traghead v. McCullough (Colo.) 1916C- 1075. 37. Leaving Sponge in Surgical Wound. "Where an action is 'brought to recover damages on account of the wrongful, neg- ligent, and careless leaving of a sponge in the abdomen of a patient, and on ac- count of the negligence of defendant in permitting said sponge to remain in said patient's abdomen an intestinal obstruc- tion was created, resulting in a partial closing of a portion of the intestinal canal, and causing a partial paralysis and ob- structions thereof, and by reason of such wrongful and negligent acts, and for no other reason, and as a direct result thereof the patient died, it is incumbent upon the plaintiff to prove said allegations by a pre- ponderance of the evidence, and show that the presence of said sponge in the abdo- men of the patient was the direct and proximate cause of the death of the patient. Euble v. Busby (Idaho) 1917D- 665. (Annotated.) 38. It is held that the evidence is suffi- cient to show that the adhesive condition of the intestines of the patient caused her death, and that such adhesive condition was not caused by the presence of a sponge, and that the evidence is sufficient to sup- port the verdict of the jury. Ruble v. Busby (Idaho) 1917m665. (Annotated.) 39. Sufficiency of Evidence. Assuming that the relation of patient and physician existed between plaintiff and defendants, tte evidence was sufficient to justify the jury in finding that the physician failed to exercise towards the patient that de- gree of care and skill which the law re- quires. Viita v. Fleming (Minn.) 1917E- 678. DIGEST. 1916C 1918B. In an (3) Instructions. 40. In an action against a surgeon for amputating plaintiff's leg without her con- sent, an instruction, justifying the ampu- tation without plaintiff's affirmative con- sent if an emergency demanding the opera- tion, and "not produced by defendant," existed, sufficiently excludes an emergency superinduced by defendant's own negli- gence or lack of skill, or voluntarily brought on by him, where plaintiff did not consider the matter of sufficient import- ance to call the court's attention directly to the supposed deficiency. Barfield v. South Highlands Infirmary (Ala.) 1916C- 1097. (Annotated.) 41. In an action against a surgeon for amputating plaintiff's leg without her con- sent, where it was admitted that plaintiff refused for a long time to consent, -but de- fendant's testimony tended to show that she freely consented shortly before the operation, an instruction that, if she was in imminent danger of losing her life, and was ad-vised to have her leg amputated to save her life, it was her right and privi- lege to refuse to consent, and if she did refuse, and defendant cut off the leg with- out her consent, it was wrongful, is mis- leading, and properly refused. Barfield v. South Highlands Infirmary (Ala.) 1916C- 1097. (Annotated.) 42. Such instruction is also properly re- fused because it ignored evidence tending to show that she was wholly incapacitated to consent, justifying defendant in acting upon a consent to be implied on considera- tions of custom, humanity, and reason. Barfield v. South Highlands Infirmary (Ala.) 1916C-1097. (Annotated.) 43. Damages Suffering. It is held that the court correctly instructed the jury to the effect that in awarding plaintiff dam- ages, if any were awarded, it would not be proper to allow him anything for the accident which he sustained, nor for the pain, suffering, and anguish therefrom ac- cruing to him; but that the award of dam- ages must be confined solely to those which had accrued by reason of the negligence of defendant and its agents. McAlinden v. St. Maries Hospital Association (Idaho) 1918A-380. 44. As to Care and SkilL The trial court refus-ed to instruct the jurv as re- quested that defendant was bound to possess and exercise only the reasonable degree of care and skill possessed and ex- ercised by physicians and surgeons in sim- ilar localities to that in which defendant practiced, and is protected from the charg.- of negligence if he adopts and uses in performing an operation the methods in use among competent surgeons in the local- ity in which the operation takes place: Tn its gene-a 1 charg? the court instructed th j jury the defendant was required to exer- PLANT PLEADING. 671 else such reasonable care and skill as an ordinary physician or surgeon in good practice would exercise under like circum- stances, and that among the circumstances to be .considered was the location of the physician in Cloquet, rather than in Du- luth, St. Paul, or some other place. It is held that the court, in refusing to give the requested instructions, and giving, in- stead, the instructions quoted, committed no reversible error. While the jury was being selected de- fendant's attorney testified that a certain company was interested in the defense of the case. Defendant was then sworn and asked if this was true. Held that it was not prejudicial error to overrule an ob- jection to this question, but the conduct of plaintiff's counsel in asking the ques-' tion is disapproved. Viita v. Fleming (Minn.) 1917E-678. (4) Questions for Jury. 45. In an action for malpractice, the question whether defendant physician is negligent in making an incorrect diagnosis of plaintiff's condition and in operating is held to be for the jury. Just v. Little- field (Wash.) 1&17D-705. (Annotated.) PLANT. Meaning within Workmen's Compensation Act. See Master and Servant, 174. PLEA. See Pleading, 16-33. PLEADING. 1. Construction of Pleadings, 672. 2. Complaint or Declaration, 672. a. In General, 672. b. Joinder of Causes, 673. c. Ad Damnum Clause, 673. d. Cure of Defects by Answer, 673. e. Raising Questions of Sufficiency, 673. 3. Plea or Answer, 673. a. In General, 673. b. Pleas in Abatement, 675. 4. Demurrer, 675. a. Eequisites, 675. , b. Grounds of Demurrer, 675. c. Admissions by Demurrer, 675. d. Ruling on Demurrer, 676. e. Waiver of Objections, 676. f. Standing by Demurrer, 677. 5. Reply, 677. 6. Rejoinder, 677. 7. Amendment of Pleadings, 677. a. Allowance of Amendment, 677. b. Subject of Amendment. 677. c. Time of Amendment, 678. d. Effect of Amendment. 678. e. Trial Amendments, 678. 8. Issues and Variance, 679. 9. Motions, 680. 10. Filing; Pleadings, 680. 11. Verification, 680. See Alteration of Instruments, 17; Auto- mobiles, 36, 57; Bills and Notes, 48, 59, 63-67; Conspiracy, 17; Contracts, 56, 57; Conversion, 5, 6; Damages, 17; Divorce, 32, 33; Fire Insurance, 41- 44; Fires, 10, 11; Forcible Entry and Detainer, 7- Fraud, 9-12; Frauds, Statute of, 23; Habeas Corpus, 9, 10; Indictments and Informations; In- junctions, 5, 36; Intervention, 1-3; Life Insurance, 55; Mandamus, 27; Quieting Title, 5; Quo Warranto, 4; Replevin, 12, 13; Sales, 51, 60; Specific Performance, 8; Trespass, 6, 7. Complaint in action on open account, see Accounts and Accounting, 1. Joinder of causes, see Actions and Pro- ceedings, 9-12. Splitting causes of action, see Actions and Proceedings, 13. Admissions in pleading, see Admissions and Declarations, 14. Pleading over, waiver of error, see Appeal and Error, 177. Presumptions on appeal, see Appeal and Error, 193. Harmless error in rulings, see Appeal and Error, 217-231. Record must show error in ruling, see Ap- peal and Error, 352. Necessity of exception to ruling, see Ap- peal and Error, 362-368. Sufficiency of objection for review, see Appeal and Error, 425-427. Amendment after remand, see Appeal and Error, 476, 477. Pleading to merits, general appearance, see Appearances, 3, 4. Complaint for disbarment, see Attorneys, 51. Action against attorney for neglect, see Attorneys, 73. In actions for benefits, sec Beneficial Asso- ciations, 33. In action on bond, see Bonds, 2. In action for injury to passenger, see Car- riers of Passengers, 55-59. Complaint under Civil Damage Act, see Civil Damage Acts, 5. Actions against foreign corporations, see Corporations, 179. Eequisites of bill, see Creditors' B : lls, 3. In election contests, see Elections, 83, 84. In condemnation proceedings, see Eminent Domain, 68-75. Bill in equity, see Equity, 7-14. Demurrer, see Equity, 20. Cross-bill, see Equity, 15, 16. In actions by executors and administrators, see Executors and Administrators, 80, 82, 83. Truth of charge not in issue, see False Im- prisonment, 3. Pleading and proof of foreign law, see Foreign Laws, 2. Action for injury by escape of gas, see Gas and Gas Companies. 4. Proceedings for appointment of guardian, see Guardian and Ward, 6, 7. 672 DIGEST. 1916C 1918B. Action for necessaries furnished infant, see Infanta, 18. In action by guardian ad litem, see In- fants, 21. Instructions assuming issues, see Instruc- tions, 60-62, 65. Conformity of judgment to pleadings,. see Judgments, 17. Judgment on pleadings, see Judgments, 21. Motion to remove cause as affecting ex- tension of time to plead, see Judg- ments, 50. Complaint for blacklisting, see Labor Com- binations, 4, 6-8. Variance, see Larceny, 6-8. Complaint in actions for defamation, see Libel and Slander, 79-102. Answer in actions for defamation, see Libel and Slander, 102. Amendment, effect of limitations, see Lim- itation of Actions, 38-42. Sufficiency of complaint, see Limitation of Actions, 47, 48. Pleading bar of statute, see Limitation of Actions, 49-51. Joinder of causes, see Malicious Prosecu- tion, 14. Actions against master for negligence of servant, see Master and Servant, 368. Under Employers' Liability Act, see Mas- ter and Servant, 81, 82. In proceedings under Workmen's Compen- sation Act, see Master and Servant, 328-330. Charging offense under ordinance, see Mu- nicipal Corporations, 101. In tort action against city, see Municipal Corporations, 188. Separate counts in negligence complaint, see Negligence, 59. Complaint under "turntable doctrine," see Negligence, 62. Complaint or declaration for negligence, see Negligence, 58-65. Answer in negligence cases, see Negli- gence, 66-68. Plea of contributory negligence, see Negli- gence, 66-68. Amendment in negligence action, see Neg- ligence, 69. Variance in negligence action, see Negli- gence, 70, 71. Ruling on demurrer as ground for new trial, see New Trial, 2. Complaint for damages, see Nuisances, 14 16. Waiver of defect of parties, see Parties to Actions, 1. Joinder of plaintiffs, see Parties to Ac- tions, 3, 4. Joinder of defendants, see Parties to Ac- tions, 5-10. Remodv for nonjoinder of parties, see Par- ties to Actions, 11. Complaint for malpractice, see Physicians and Surgeons, 28. Variance, see Eeferees, 3. Suit to rescind contract, see Rescission, Cancellation and Reformation, 27. In action on sheriff's bond, see Sheriffs and Constables, 10, 11. Action for injury by defect in highway, see Streets and Highways, 42. In action on surety bond see Suretyship, 20. In action for delay of telegram, see Tele- graphs and Telephones, 31. Trial amendments, effect, see Trial, 59. In action for penalty for usury see Usury, 25. In proceedings to contest will, see Wills, 126-128. 1. CONSTRUCTION OF PLEADINGS. 1. Pleadings are liberally construed after verdict and judgment to sustain the judgment, and any formal defect is deemed cured. Myers v. Saltry (Ky.) 1916E- 1134. 2. Construction Against Pleador. The language used in equity pleadings is to be given its ordinary meaning, and to be con- strued when ambiguous against the pleader and hence a bill averring that plaintiffs' land was bounded on the west by lands of named persons, that a river flowed along the westerly portion of plaintiffs' land, and that portions of plaintiffs' land were dam- aged by logs floating in the river, is insuffi- cient to show that plaintiffs owned any of the bed of the stream. Boutwell v. Champlain Realty Co. (Vt.) 1918A-726. 3. Statement of Conclusions. The best pleading is that which states facts and not conclusions of law, leaving no room for conjecture as to any fact upon which the right of recovery is based. Stonegap Colliery Co. v. Hamilton (Va.) 1917E-60. 2. COMPLAINT OR DECLARATION. a. In General. 4. Averment of Ultimate Facts. A dec- laration should contain sufficient allega- tions of all the facts that are necessary to state a cause of action. As a general rule, only ultimate facts need be alleged. Ingram-Dekle Lumber Co. v. Geiger (Fla.) 1918A-971. 4%. Averment of Venue Sufficient. Venue laid in the margrin. not repeated in the body of the declaration, is sufficient, though the action be local. Henry v. Spit- ler (Fla.) 1916E-1267. 5. Declaration for Personal Injury Requisites. In judging of the sufficiency of a declaration in a suit for damage? for personal injuries, the essentials of such a declaration set forth in the case of German-American Lumber Co. v. Brock, 55 Fla. 577, 46 South. Rep. 740, are ap- proved and applied. Florida East Coast R. Co. v. Carter (Fla.) 1916E-1299. 6. Negative Pregnant. In an action against a collector of internal revenue to PLEADING. 673 recover back a part of the exciss tax col- lected from a corporation on the ground that the corporation was not doing busi- ness during a part of the year for which the tax was collected, allegations of the petition that there were no earnings of the corporation from March 18th to Decem- ber 31st, "subject to tax" on account of a lease of the corporation's property, and on account of its property being turned over to the lessee, was a negative preg- nant, from which it was to be implied that the corporation did receive an unnamed amount of income, but that in the opinion of the pleader, such amount should be ex- cluded from consideration in computing the amount of the tax. Blalock v. Georgia E., etc. Co. (Fed.) 1917A-679. (Annotated.) b. Joinder of Causes. 7. Penalties. Under Ariz. Civ. Code 1901, pars. 1280 and 1291, providing that the complaint may contain several differ- ent causes of action, and that only such causes of action may be joined as are capable of the same character of relief, actions ex contractu, not 'being joinable with actions ex delicto, and actions to re- cover for injuries to the person, to prop- erty, or to character not being joinable, where the state sues to recover the pen- alty assessed upon any electric light or power company, by Laws 1912, c. 50, that should permit any employee about its plant, to be on duty more than 8 hours in 24, under penalty of $100 fine for each day's violation of the act, the statute pro- viding that the suit for such penalty may be instituted in any court of the state having competent jurisdiction, the recov- ery sought being for 15 violations, sepa- rately stated in the complaint, the supe- rior court has jurisdiction of the suit, since the several penalties sued for are grounded in the same right, the parties and the causes of action the same, and each capa- ble of the same character of relief. Miami Copper Co. v. State (Ariz.) 1916E-494. 8. Joinder of Counts. A declaration may contain any number of counts, pro- viding it does not violate the rule against vexatious pleading, and each count pre s sents a separate and distinct cause of ac- tion, which is appropriate to the form of action pleadad. Philadelphia, etc. E. Co. T. Gatta (Del.) 1916E-1227. c. Ad Damnum Clause. 9. Damages Pleading Special Damage. A paragraph in a complaint for personal injuries which alleges that the plaintiff's expenses for physician and surgeon and medicine were "$ " is defective. Grif- fin v. Eussell (Ga.) 1917D-994. 10. Averments Sufficient to Warrant Ex- emplary Damages. Where the general alle- gations of a complaint are sufficient to 43 show that the wrong complained of was inflicted with malice or ppprcssion, or li^e circumstances, the complaint will be suffi- cient to authorize the infliction of exem- plary damages. Dwyer v. Libert (Idaho) 191SB-973. d. Cure of Defects by Answer. 11. Omission in Declaration Cured by Plea. Matters of substan-ce omitted from a declaration may be cured by plea. Nash- ville, etc. Ey. v. Anderson (Tenn.) 1917D- 902. 12. Cure of Defect in Contract Admis- sion in Pleading. In such case the admis- sion in the defendant's answer of the cor- rectness of the description of the property set forth in the complaint, as being the same that was intended by the contract removes the objection as to defective de- scription, and makes the pleadings an agreement supplying any defect of descrip- tion in the contract. Drennen v. Williams (Colo.) 1917A-664. e. Eaising Questions of Sufficiency. 13. Sufficiency Failure to Object Promptly. Where no objection to the sufficiency of the complaint is made until the introduction of evidence, it is entitled to all the intendments in its favor, which could be invoked after a decision on the merits of the controversy. Cooper v. Hillsboro Garden Tracts (Ore.) 1917E- 840. 14. Formal Objection^ Waiver by Fail- ure to Demur. If a defendant in an action of replevin conceives that the declaration filed therein is defective in failing to specify the county in which the property which forms the subject-matter of the con- troversy is detained, he should test the sufficiency of the declaration by demur- ring thereto. Henry v. Spitler (Fla.) 1916E-1267. 15. Insufficiency Time for Objection. While the objection that the petition does not state a cause of action must be con- sidered at any stage of a case and sus- tained if well taken, it will be received with greater favor and permitted a wider field of operation if raised in due time by motion or answer than when interposed after the labor, expense, and delay of a trial. Carter v. Butler (Mo.) 1917A-483. 3. PLEA OE ANSWER. a. In General. 16. Negative Pregnant. Where it clearly appears from other parts of the answer that the allegations technically admitted by a negative pregnant are in fact denied, the answer will be held good, and, inas- much as a general denial puts in issue every allegation in the complaint, there 674 can be no negative pregnant in such case. Drennen v. Williams (Colo.) 1917A-664. (Annotated.) 17. In an action for specific perform- ance of a contract to convey land, wherein the answer sets up and specifies fraudulent representations inducing defendant to en- ter into the contract, and wherein plaintiff replies, denying that he had set about to defraud the defendant or his wife or son out of their prbperty, as alleged in said amended answer, the denial of plaintiff's motion at the trial to strike out the words "as alleged in said amended answer" is improper, since the defendant could not have been misled by the pleading. Dren- nen v. Williams (Colo.) 1917A-664. (Annotated.) 18. In a suit for breach of a contract to purchase motor cars, a denial that the minimum profit was and is $100 per car is a negative pregnant and admits that the profit was $99.99 per car. Thompson v. Hamilton Motor Co. (Cal.) 1917A-677. (Annotated.) 19. Answer Held Insufficient. It is held under the facts of this case that the court did not err in sustaining the demurrer to the answer and entering judgment in favor of the plaintiff. Duvall v. National Ins. Co. (Idaho) 1917E-1112. 20. Eight to Plead Inconsistent De- fenses. Inconsistent defenses may be sep- arately pleaded. Dibble v. Reliance Lite Ins. Co. (Cal.) 191.7E-34. 21. Necessity of Answer. Where a bill seeking a recovery of part of advance pre- mium paid for surety bond on ground of insured's death at expiration of half of period raises questions of estoppel and waiver which the demurrer does not reach," such questions require an answer. Crouch v Southern Surety Co. (Tenn.) 1916C-1220. 22. Answer To Separate Counts. The defendant must make separate answer to each count, where the declaration contains several proper counts. Philadelphia, etc. K. Co. v. Gatta (Del.) 1916E-1227. 23. Affidavit of Defense Sufficiency. An affidavit which does not set forth the nature of the defense interposed after the overruling of a demurrer to the declara- tion, but which refers to the notice of special matter, which sets forth the nature of the defense, sufficiently complies with Miss. Code 1906, 755, providing that a plea shall not be admitted, unless defend- ant makes an oath that he has a good de- fense, setting forth the nature thereof, and the court properly permitted the filing of the plea and notice. Riverside Develop- ment Co. v. Hartford Fire Ins. Co. (Miss.) 1916D-1274. . 24. Necessity of Pleading Justification Specifically. Under Mont. Rev. Codes, 6540. uhd. 2. providing that the answer must contain a statement of any new mat- DIGEST. 1916C 1918B. ter constituting a defence or counterclaim, .the defense of justification for an illegal act must be specifically pleaded, as at common law. Herlihy v. Donohue (Mont.) 1917C-29. 25. Inconsistent Defenses. Defenses are not inconsistent when they may all be true, and are only inconsistent when some of them must necessarily be false if others are true, and in such a case they cannot be united. Susznik v. Alger Logging Co. (Ore.) 1917C-700. (Annotated.) 26. In an action for injuries based on the theory of the relation of passenger and carrier between plaintiff and defendant, ar answer setting up the Ore. Workmen's Compensation Act as affording the reme- dies for plaintiff, and alleging that plain- tiff was* guilty of negligence, does not set forth inconsistent defenses, though alle- gations in the first defense that plaintiff was riding on the train without the con- sent or knowledge of defendant, and of plaintiff's negligence, are irrelevant, be- cause under the Workmen's Compensation Act such questions are eliminated. Susz- nik v. Alger Logging o. (Ore.) 1917C 700. (Annotated.) 27. Inconsistent defenses being allowed by Cal. Code Civ. Proc. 441, one sued on a guaranty may show that the contract was procured by fraud, and, as a separate defense, that, if valid, no liability had arisen under it by reason of the fact that no indebtedness had been incurred covered by its terms. American National Bank v. Donnellan (Cal.) 1917C-744. (Annotated.) 28. Under the law of Iowa inconsistent defenses, as denial of contract, postpone- ment of performance, and mitigation of damages, may be joined. Parsons v. Trow- bridge (Fed.) 1917C-750. (Annotated.) 29. It is held that it was the duty of the trial court, under the pleadings in this case, either to have granted respondent's motion to strike out all of paragraph 3 on page 3 of appellants' first alleged further answer and defense and all of paragraph 3 ; beginning at the bottom of page 5 of their second alleged further answer and defense, contained in their amended an- swer, or to have required them to elect upon which defense they intended to rely, and that the evidence upon the trial should have been confined to the defense upon which they elected to stand. Harsh- barger v. Eby (Idaho) 1917C-753. (Annotated.) 30. Under section 4187, Idaho Re". Codes, a defendant may set forth by an- swer as many defenses and counterclaims as he may have, and the same may, to a certain extent, be inconsistent with each ether, but they must not be so inconsistent that the proof of one defense would nec- essarily disprove the other; and, where the allegations of an amended answer are in- consistent, the defendant will be bound PLEADING. 675 by those against him. Harshbarger v. Eby (Idaho) 1917C-753. (Annotated.) 31. Striking Out as Sham General De- nial. Although a general denial to the allegations of the complaint may, if falsely pleaded, be characterized as sham, yet an inquiry in advance of the trial cannot be entertained by the court as to the good faith of the defendants in pleading it, nor can it be stricken out as sham on an ^application of the plaintiffs. The defend- *ant has the right, by a general denial, 'to put the plaintiff to the proof of his de- mand. Kline v. Harris (N. Dak.) 1917D- 1176. (Annotated.) 32. An answer, toy way of a general de- nial, is the equivalent of and substitute for the general issue under .the common-law system of pleading. It gives to the de- fendant the same right to require the plaintiff to establish by proof all the ma- terial facts necessary to show his right to a recovery as was given by that plea. Under the common-law system the general issue could not be stricken out as sham, although shown by affidavit to be false. Kline v. Harris (N. Dak.) 1917D-1176. (Annotated.) 33. Admission of Sufficiency Replica- tion. By filing a replication plaintiff con- ceded that the allegations of the answer operated as a bar to the relief sought, un- less the new allegations of the replication were sufficient to avoid the legal effect of the answer's allegations as a bar to the ause of action originally stated. People v. Chicago R. Co. (111.) 1917B-821. Notes. Striking out general denial as sham or frivolous. 1917D-1177. Inconsistent defenses within rules of pleading. 1917C-704. Service of new answer to amended bill or complaint. 1918A-205. Negatives pregnant. 1917A-668. b. Pleas in Abatement. 34. Actions Parties Nonexistence of Plaintiff as Defense. Upon judgment for defendant on his plea in abatement that there was no such person as the alleged plaintiff in the suit, the proper judgment is to quash the writ. Baldauf v. Nathan Eussell (N. J.) 1917D-1191. (Annotated.) 35. The defense that the plaintiff is a fictitious person attacks the capacity of the plaintiff to commence or continue the HatCb (fadt) although a previous demurrer to the peti- 191 /E 1030. ^ on na( j t, een considered and overruled. 48. Scope. A demurrer for want of facts does not reach a defect of parties plaintiff. Pittsburgh, etc. R. Co. v. Home Ins. Co. (Ind.) 1918A-828. 49. Construction as Against Demurrer. Under the N. Car. Code rule that pleadings are to be liberally construed, a demurrer cannot 'be sustained to a complaint if in any portion of it or to any extent it pre- sents facts sufficient to constitute a cause of action, or if facts for that purpose can be fairly gathered from it, however in- artificially it may have been drawn or how- ever uncertain, defective, or redundant may be its statements. Hoke v. Glenn (N. Car.) 1916E-250. 50. Scope and Effect of Demurrer. A de- murrer is addressed to a plea as an en- tirety, and questions its legal sufficiency as the statement of a defense. Johnson v. Florida East Coast R. Co. (Fla.) 1916C- 1210. 51. If considered as a whole, a plea does not in substance sufficiently present all of the essential elements of a valid de- fense to the declaration or to a designated count thereof, to which it is directed, a de- murrer thereto should be sustained. John- son v. Florida East oast R. Co. (Fla.) 1916C-1210. 52. Matters Considered. Allegations of the complaint cannot be considered in pass- ing on a demurrer to a plea to the jurisdic- tion. Meixell v. American Motor Car Sales Co. (Ind.) 1916D-375. 53. Plea to Jurisdiction Presumptions. On demurrer to a plea to the jurisdiction by a d?fendant non-resident corporation, nothing could be supplied in a plea by in- Marney T. Joseph (Kan.) 1917B-225. 57. Action Equivalent to Ruling. Four years after the death of plaintiff's intes- tate additional counts were filed to which defendant pleaded limitations. To this plea plaintiffs demurred, but the record did not disclose any ruling on the demur- rer. It is held that where the original declaration was entirely eliminated and the court proceeded with the trial sustain- ing the cause of action on the additional counts, no complaint that the ruling on the demurrer was not had could be sustained, the action of ths court being equivalent to a ruling on the demurrer. Lichtenstein v. L. Fish Furniture Co. (HI.) 1918A-1037. 58. Supplemental Pleading Relation to Original. A complaint and supplemental complaint must -be considered as a single pleading when tested by demurrer. Cin- cinnati, etc. R. Co. v. McCullom (Ind.) 1917E-1165. e. Waiver of Objections. 59. The trial court cannot relieve the de- fendant from the waiver of his demurrer by giving him permission to replead with- out prejudice, the remedy, if it was de- sired to preserve the questions raised for appeal without suffering judgment, being bnder the statute authorizing the passing of cases to the supreme court before final judgment. Citizens Sav. Bank, etc. Co. v. 'Northfield Trust Co. (Vt.) 1918A-891. 60. Waiver by Pleading to Merits. A demurrer in a civil case at law is waived by pleading to the merits aft"r th" de- murrer is overruled. Citizens Sav. Bank, etc. Co. v. Northfield Trust Co. (Vt.) 1918A-S91. PLEADING. 677 f. Standing by Demurrer. 61. A party cannot elect to stand by his demurrer, and at the same time be given the benefit he would have received, had he elected to abandon the demurrer and plead over. Wende v. Chicago City E. Co. (111.) 1918A-222. 62. On plaintiff electing to stand by her demurrer, which had been overruled, to the plea of limitations to an amended count of the declaration, the court should render judgment for defendant as to the entire count as amended. Wende T. Chicago City E. Co. (111.) 1918A-222. 5. EEPLY. 63. In Court Exercising Powers of Jus- tJce of Peace. Since the only pleading re- quired in the county court when exercising the jurisdiction of a justice of the peace is a bill of particulars, and the reply in the district court on appeal was to new matter in the answer and was not inconsistent with the petition, it should not have been stricken. Berryman v. Childs (Neb.) 1918B-1029. 64. Reply to Counterclaim Waiver. Where a decree for complainants is ren- dered dismissing the cross-complaint for want of prosecution and is afterwards opened on defendant's motion and testi- mony heard and the cause tried as if the issues had been made up by the pleadings and tried on the merits, defendant thereby waives complainant's failure to answer the counterclaim. Streudle v. Leroy (Ark.) 1917D-618. (Annotated.) 65. New Matter In Reply. Where an em- ployer, in an action by an employee for personal injuries, relies on a release, alle- gations of the reply that the employer dis- regarded his promise to employ the em- ployee, forming a part of the consideration of the release, and discharged the em- ployee, are allegations of new matter, and under Ore. L. O. L. 95, controverted as on direct denial. "Vasquez v. Pettit (Ore.) 1917A-439. 6. REJOINDER. 66. Reply Necessity of Denial. Iowa Code 1897, 3576, provides there shall be no reply except when new matter is al- leged, or some matter is alleged in the answer to which plaintiff claims to have a defense because of a fact avoiding it. Sec- tion 3577 declares that an allegation in the reply of new matter in avoidance shall not be treated as a waiver of the denial of the allegations of the answer implied by law. It is held that plaintiff, whose reply avoided some of the allegations of the an- swer, need not deny the others in order to claim the benefit of the statute. Schworm v. Fraternal Bankers Reserve Soc. (Iowa) 1917B-373. 7. AMENDMENT OF PLEADINGS, a. Allowance of Amendment. 67. Effect of Standing on Demurrer. Plaintiff, by electing to stand by her de- murrer to the plea of limitations to an amended count of the declaration, after the demurrer was overruled, forfeited right to amend the amended count, either by restor- ing it to its original form, or otherwise changing it so as to remove tne objection raised by the plea. Wende v. Chicago City R. Co. (111.) 1918A-222. 68. Statute Permitting Amendment Construction. S. Dak. Code Civ. Proc. 150, providing that "the court may" in furtherance of justice "amend any plead- ing ... by adding or striking out the name of any party," authorizes the court to permit amendments by the parties, and does not merely authorize the judge him- self to order amendments. Hardy v. Woods (S. Dak.) 1916C-398. 69. Amendment New Cause of Action. An amended statement, which merely in- troduces an additional element of damages drawn from the circumstances alleged in the original statement in replevin, does not introduce a new cause of action and may therefore be allowed at any time. Arm- strong v. Philadelphia (Pa.) 1917B-1082. 70. Amendment Without Terms. In such action the allowance of plaintiffs' amend- ment without terms is not an abuse of the trial court's discretion. Gist v. Johnson- Carey Co. (Wis.) 1916E-460. 71. Amendment Denied. The court did not err in refusing to allow the amendment to the petition, or in excluding the evi- dence offered in support thereof. Jacob's Pharmacy Co. v. Luckie (Ga.) 1917A-1105. 72. Amendment of Pleading Cause of Action not Changed. In suit on an insur- ance policy, where the petition alleged that defendant undertook and agreed to and with the plaintiff to insure the latter, etc., an amendment by adding "and did insure," after "undertook and agreed to and with the plaintiff to insure," does not change the cause of action from one for a failure to insure as agreed, to one for the breach of a contract of present insurance, in vie\v of other allegations of the petition perti- nent only to a claim for breach of a pres- ent contract, while "contract to insure" and "contract of insurance" are used inter- changeably. Royal Ins. Co. v. Walker Lumber Co. (Wyo.) 1917E-1174. b. Subject of Amendment. 73. Under S. Dak. Code Civ. Proc. 150, authorizing the court before or after judg ment, in furtherance of justice, to amend any pleading by adding or striking out the name of the party, the court has power to 678 DIGEST. 1916C 1918B. permit such an amendment to be made. a separate action, or not. Philadelphia, Noziska v. Aten (S. Dak.) 1916C-589. etc. B. Co. v. Gatta (Del.) 1916E-1227. (Annotated.) 74. Adding New Parties Plaintiff. Where the attorney for plaintiffs, in support of a motion to amend a complaint in the name of two individuals against an attorney for negligence which resulted in plaintiffs hav- ing to pay an attachment bond which they had signed, files an affidavit showing that at the time he drew the complaint he thought the plaintiffs were partners, and that the claim on which the former suit \*as brought was a partnership claim, but that he afterwards learned that two others were partners of one of the plaintiffs, and tbat the other plaintiff had assigned his claim to the partnership for collection, the showing is sufficient to warrant the court, in its discretion, to permit the complain- ant to be amended by adding the other partners as parties plaintiff. Noziska v. Aten (S. Dak.) 1916C-589. (Annotated.) 75. Change from Representative to Per- sonal Capacity. An amendment of the complaint, in an action to quiet title ex- pressly brought as administrator alleging that the property belonged to the estate, by striking out the allegations showing that the suit was brought in a representa- tive capacity and alleging that plaintiff claimed individually as surviving devisee. is not objectionable as setting up a new cause of action and changing the issues. Hardy v. Woods. (S. Dak.) 1916C-39S. (Annotated.) 76. Change of Names of Parties. A com- plaint may be amended so as to change the names of the parties if the amendment does not prejudice the parties and is in furtherance of justice. Hardv v. Woods (S. Dak.) 1916C-398. 77. Amendment Changing Cause of Ac- tion. Though courts are liberal iu allow- ing amendments, the amendment must not introduce a substantive cause different from that declared on in the original dec- laration. Irvine v. Barrett (Va.) 1917C- 62. Notes. Eight to amend action by adding new parties plaintiff. 1916C-591. Right of plaintiff to amend so as to change capacity in which he sues from representative to individual one or vice versa. 1916C-401. c. Time of Amendment. 78. Power to Permit. Under Const. 1897, art. 4, 24. and Del. Rev. Code 1852, c. 112. 11, authorizing the superior court to allow amendments, the court in its dis- cretion may allow an amendment at any time before judgment, whether limitations would have run against the cause stated in the amendment, if made the subject of d. Effect of Amendment. 79. Pleading Anew After Amendment. A count of a declaration being amended in a material respect, defendant may plead do novo to the new count as a whole. Wende v. Chicago City R. Co. (111.) 1918A- 222. (Annotated.) 80. Effect on Original Pleading. A count of a declaration being amended in a ma- terial respect, is abandoned, and a new count substituted for it. Wende v. Chicago City R. Co. (111.) 1918A-222. 81. An answer interposed to the original complaint will stand as an answer to the complaint as thereafter amended, unless defendant elects to answer anew. Van Woert v. New York Life Ins. Co. (N. Dak.) 1918A-203. (Annotated.) 82. Amendment of Complaint Necessity of New Answer. A default judgment ren- dered in a case at issue upon the amended complaint and the answer to the original complaint may be set aside without an affidavit of merits. Van Woert v. New York Life Ins. Co. (N. Dak.) 1918A-203. (Annotated.) 83. Section 7445, N. Dak. Comp. Laws, applies only to complaints amended after a demurrer thereto has been sustained, and has no application to an amendment made in the action by order of the court, or by agreement of the parties. Van Woert v. New York Life Ins. Co. (N. Dak.) 1918A- 203. (Annotated.) 84. Effect on Previous Pleading. An amended answer supersedes the original an- swer. Dibble v. Reliance Life Ins. Co. (Cal.) 1917E-34. e. Trial Amendments. 85. Amendment at Trial Refusal Proper. Where on the third day of the trial plain- tiff sought to file an amended petition which did not change the averments of negligence contained in the original peti- tion and, like the original, was extremely general, the denial of leave to file is not an abuse of discretion. Smith's Admx. v. Middlesboro Electric Co. (Ky.) 1917A- 1164. 86. In an action for the balance due upon a contract for grading, which, after several days of trial and after the close of plaintiff's evidence, was shown to have been made and delivered on Sunday, as previously known to defendant, the allow- ance of an amendment, so as to proceed on the theory that plaintiff was entitled to recover on a quantum meruit. setting up nothing which could have surprised the defendant, who had had ample time to prepare for trial, is not an abuse of the PLEADING. 679 trial court's discretion. Gist v. Johnson- Carey Co. (Wis.) 1916E-460. 87. Code Va. 1904, 3384, authorizing amendments when a variance between pleadings and proof develops during the trial, is to be construed with liberality by the courts. 'Conrad v. Ellison-Harvey Co. (Va.) 1918B-1171. . 8. ISSUES AND VAKIANCE. 88. Where a general creditors' bill un- dertakes, in connection with general state- ments of fraud, to state in detail why the transaction is attacked, and upon what grounds it is claimed to be fraudulent, the proof will be limited to such allegation. Morgan v. Dayton Coal, etc. Co. (Tenn.) 1917E-42. 89. Evidence Held Admissible. Evi- dence received as to the financial condi- tion of the newspaper plant involved and the worthlessness of the stock of the hold- ing company owning and operating it was admissible under the issues tendered by the pleadings. Northern Trust Co. v. Bruegger (N. Dak.) 1917E-447. 90. Sufficiency of Objection. In view of Va. Code 1904, 33S4, authorizing amend- ments whenever a variance between plead- ings and proof develops during the trial, in a discharged bookkeeper's action for salary, where the declaration contained only the common counts in assumpsit and plaintiff offered in evidence his contract covering his original employment of one year, but defendant at the trial made no objection on the ground of variance be- tween the declaration and proof or upon the insufficiency or the inaptness of the evidence to sustain recovery on the com- mon counts, but his sole objection to the admission of the contract being that it was not then in force, defendant cannot on review successfully contend that plaintiff should have declared especially on his con- tract and its breach, since parties are not permitted to make one objection to evi- dence in the trial court and another and different one in the appellate court, but are regarded as having waived all objections save those specifically pointed out. Con- rad v. Ellison-Harvey Co. (Va.) 1918B- 1171. 91. Cause of Action not Pleaded. The allegata and probata must meet and cor- respond, the issues being made by the pleadings to which the proofs must be con- fined. There can be no recovery upon a cause of action, however meritorious it may be, that is in substance variant from that which is pleaded bv the plaintiff. Ingram- Dekle Lumber Co.V. Geiger (Fla.) 1918A- 971. 92. As to Express or Implied Contract. Under the rule that a case must be tried on the issues made by the pleadings, a party cannot recover upon an implied eon- tract, where he pleads and relies upon an express contract. Estate of Oldfield (Iowa) 1917D-1067. 93. Waiver By Request for Instructions on Failure to Make Issue. Where a pas- senger's action for injuries against a street railroad was tried, and evidence offered pro and con, upon the theory that contribu- tory negligence was in issue, both parties asking for instructions on the question, the supreme court will not consider whether it was properly pleaded. Kelly v. Santa Barbara Consol. E. Co. (Cal.) 1917C-67. 94. Waiver of Defect Failure to Object at Trial. An objection that proof of want of authority of the president of the plain- tiff membership corporation to contract for it could not -be made under defendant's pleadings is waived, where plaintiff not only did not urge it at the trial, but, by the introduction of evidence thereon, as- sumed the burden of proving such officer's authority. Catholic Foreign Mission Soc. v. Oussani (N. Y.) 1917A-479. 95. Pleading Waiver. Even though the complaint does not allege a waiver of proof of notice, where facts constituting the waiver are introduced by the defend- ant itself, without objection, the defendant will not be permitted to say that since there was no waiver pleaded, such evi- dence ought not to be considered. Dou- ville v. Pacific Coast Casualty Co. (Idaho) 1917A-112. 96. Estoppel Necessity of Pleading. While, as a general rule, estoppel or waiver must be pleaded, failure to do so may be waived by plaintiff by proceeding with the trial of the case without objection, as though the defense relied on had been pleaded. First Bank of Texola v. Terrell (Okla.) 1917A-681. 97. Names Variance in Chain of Title. In an action .to quiet title in which plain- tiff claimed as devisee from one who ac- quired title by bidding in the property at mortgage foreclosure sale under the name of "J. A. Hardy," evidence held to sustain a finding that such "J. A. Hardy" was the same person as "Jesse A. Hardy," through whom plaintiff claimed that his title was derived. Hardy v. Woods (S. Dak.) 1916C-398. 98. Departure Capacity in Which In- strument Sued on is Held. In an action by plaintiff bank on a check which the complaint alleges it held as unqualified owner, the answer alleges that it is held as collateral, and the reply that it was taken on deposit, defendant's contention that the complaint tenders one issue, the reply another and that the proof, which shows that the check is held as collateral, sustains neither, is not sound, since the real issue made is the quality of the bank's possession, which is determined by the evidence; a "material variance" being only one that actually misleads the adverse 680 DIGEST. 1916C 1918B. party to his prejudice in maintaining his action or defense on the merits. German American Bank v. Wright (Wash.) 1917D- 381. 99. Burden of Showing Prejudice. Un- der Kern. & Bal. Wash. Code, 299. provid- ing that no variance between pleadings and proof shall- be deemed material unless it has misled the adverse party to hia prejudice, and that, whenever it shall be alleged that a party has been so misled, the court may order the pleadings to be amended upon such terms as shall be just, the burden is upon one claiming a variance to show that he was misled thereby to his prejudice. German American Bank v. Wright (Wash.) 1917D-381. 100. Express or Implied Contract. When the plaintiff alleges an express contract as the basis for recovery, he cannot recover on an implied contract or quantum meruit, especially in the absence of any allega- tions of value. Yancey v. Boyce (N. Dak.) 1916E^258. 101. Date of Contract. An allegation that an oral contract is made in a par- ticular year may be supported by proof that it was made in a different year, where the date is not a material element in the description. Gordon v. Spellman (Ga.) 1918A-852. 102. Averment of Sale and Proof of In- ctunbrance. In an action for deceit in the sale of a ship and her freight, allegations that defendant had sold the freight to another before selling it to plaintiff are supported by proof that he had assigned the freight as security for a disbursement draft for practically the entire amount of the freight due. Corry v. Sylvia Y Cia (Ala.) 1917E-1052. 9. MOTIONS. 103. Repetition Striking Out. Upon motion, matter which is only repetition of that already pleaded may be stricken out. Eogers v. Nevada Canal Co. (Colo.) 1917C- 669. 104. Judgment on Pleadings Admissions by Motion. A motion for judgment upon, the pleadings admits the truth of all well- pleaded facts in the pleading of the oppo- site party. Yancey v. Boyce (N. Dak.) 1916E-258. 10. FILING PLEADINGS. 105. Right to Demur After Default. The defendant in an action at law, in which the office judgment has become final, but has not been entered by the court, may demur to the declaration notwithstanding the lapse of the statutory period and the finality of the judgment, and, if the de- murrer is sustained, formal judgment on the office judgment cannot be entered. In such case, the office judgment becomes a nullity, if the declaration is not amend- ed or cannot be cured by amendment. Wilson v. Shrader (W. Va.) 1916D-886. 106. Default When Final. The office judgment in an action in which a writ of inquiry is necessary does not become final on the last day of the next succeeding term of the court, and the defendant may plead to the declaration at any time be- fore execution of the writ of inquiry. Wilson v. Shrader (W. Va.) 1916D-886. 11. VERIFICATION. 107. Time to Object to Failure to Ver- ify. Under Ky. Civ. Code Prac. 138, providing that no objection shall be taken after commencement of the trial to any pleading for want of verification, want of verification to a petition alleging a mis- take in a deed will be treated as waived when not objected to. Hite v. Reynolds (Ky.) 1917B-619. PLEA IN ABATEMENT. See Pleading, 34-37. PLEA PUIS DARREIN CONTINUANCE. See Pleading, 37. PLEA TO JURISDICTION. See Pleading, 52, 53. PLEDGE. Soldier's pledge of arms, see Army and Navy, 10-12. Broker's right to pledge, see Brokers, 13. 1. Liability of Indorser on Pledged Check Necessity of Exhausting Other Security. Where a bank sues the maker and indorser of a check, pledged to it by such indorser, there was no requirement that the bank shall exhaust other security which it may hold as collateral to the in- dorser's antecedent debt, for which the check was pledged in part. German Amer- ican Bank v. Wright (Wash.) 1917D-381. 2. Note as Collateral Right to Enforce Payment of Debt. A holder of notes re- ceived as collateral is not entitled to en- force them after payment of the principal obligation. Estate of Philpott (Iowa) 1917B-839. POISONS. See Drugs and Druggists. POLICE. See Civil Service, 1. Arrests without warrant, see Arrest, 7, 8. Free transport, see Carriers of Passengers, 3. City police departments, see Municipal Corporations, 1:57-160. Status, see Public Officers, 3. POLICE POWER. 681 POLICE POWER. See Intoxicating Liquors, 7, 8, 17, 21, 24, 26; Labor Laws, 18, 32. State inspection and control, see Building and Loan Associations, 2. Generally, see Constitutional Law, 14-44. Denned, see Constitutional Law, 14. Respecting commerce, see Interstate Com- merce, 6-10. Regulation of rates, see Public Service Commissions, 28. POLICE STATION BLOTTER As evidence, see Evidence, 89. POLICY. See Insurance; Public Policy. POLITICAL CRITICISM. See Libel and Slander, 33, 37, 149. POLLING PLACE. See Elections, 21-25. POLL TAXES. See Taxation, 200. POLYGAMY. See Bigamy, 2. 1. To Show Motive. In a prosecution for polygamy, where the evidence showed that defendant lived with the plural wife lor only a few days, evidence that he stole valuable jewelry from her while living with her is admissible to show motive for the crime charged. State v. Von Klein (Ore.) 1916C-1054. POOR AND POOR LAWS. 1. Medical Services to Pauper Liability of Municipality. Burns' Ind. Ann. St. 1908, 9741 et seq., providing for the support of the poor, and requiring the overseer of the poor in each township to care for all poor persons, and in cases of necessity to promptly provide medical attendance for the poor not provided for in public institutions, etc., repeals former laws on the subject, and a township is liable for medical attendance rendered a poor per- son in an emergency without opportunity to communicate with the overseer, and a surgeon rendering services under an emer- gency demanding immediate medical atten- tion is entitled to recover the reasonable value thereof. Newcomer v. Jefferson Township (Ind.) 1916D-181. (Annotated.) 2. The provisions of Ind. Acts 1901, c. 147, embodied in Burns' Ann. St. 1908, 9741, providing for the support of the poor, are not controlled by County Re- form Law of 1899, Burns' Ann. St. 1908, 5918 et seq., referring to county expend- itures alone, without reference to the man- datory requirements of the act of 1901 as to township expenditures, except that township overseers are limited in such ex- penditures in certain cases to temporary aid not exceeding $15, except on authority of the boards of commissioners. New- comer v. Jefferson Township (Ind.) 1916D- 181. (Annotated.) 3. Who is "Poor Person," The fact that a person owned a horse and cow did not conclusively show that he was not a "poor person" in need of assistance from a town within the pauper laws. Waitsfield v. Craftsbury (Vt.) 1916C-387. (Annotated.) 4. Overseer of Poor Powers. Since the function of relieving the poor is govern- mental in its nature, the overseer of the poor is a public officer rather than a gen- eral agent of the town, and hence cannot by his conduct relieve a town from lia- bility for relief of the poor under the ordinary rules as to waiver of rights by the conduct of an agent. Waitsfield v. Craftsbury (Vt.) 1916C-387. 5. The fact that, after notice was given by plaintiff town to defendant town of the furnishing of supplies to a pauper from defendant town, the overseer of the poor, in refusing to pay for supplies, placed his refusal upon the ground that he did not consider such person a pauper would not prevent defendant from defending an ac- tion to recover for such supplies on the ground of the insufficiency of the notice prescribed by Vt. P. S. 3668. Waitsfield v. Craftsbury (Vt.) 1916C-387. 6. The fact that the overseer of the poor of a town sought to be charged with sup- plies furnished a pauper, upon receiving notice from plaintiff town, visited the pauper's family, and ascertained their financial condition, and conferred with the overseer of plaintiff town as to their con- dition, would not prevent such town from defending an action by plaintiff to re- cover for assistance furnished the pauper on the ground of the insufficiency of the notice give pursuant to Vt. P. S. 3668. Waitsfield v. Craftsbury (Vt.) 1916C-387. 7. The notice required by Vt. P. S. 3663 (Acts 1892, No. 55), providing that no ac- tion shall be commenced by a town fur- nishing assistance to a pauper until the overseer of the poor has given notice of the pauper's condition to the overseer of the town where he last resided for three \ears, and until such overseer has neglected to provide for such person for 60 days p.fter such notice, must be in writing. Waitsfield v. Craftsbury (Vt.) 1916C-387. 8. Reimbursement of Town. The right of a town to be reimbursed by another town for expenditures made in assisting pf.npers chargeable to such other town must necessarily be governed by arbitrary 682 DIGEST. 1916C 1918B. regulations. Waitsfield v. Craftsbury (Vt.) 1916C-387. 9. Duty to Furnish Aid Notice to Over- seer. Under Vt. P. S. 3665, requiring overseers of the poor to see that indigent persons are suitably supported and re- lieved at the charge of the town, an over- seer of the poor must afford such relief whenever he is informed in any manner that relief is required. Waitsfield v. Craftsbury (Vt.) 1916C-387. 10. Mere informalities in the notice given to the town of a pauper's residence by a town furnishing assistance, required to be given before commencement of an action, do not vitiate the notice. Waits- field v. Craftsbury (Vt.) 1916C-387. 11. Paupers Reimbursement of Town Furnishing Aid Notice. Vt. P. S. 3663, requiring the notice given by a town fur- nishing aid to a pauper to the town of the pauper's last residence to disclose the condition of the alleged pauper, refers to his pecuniary or financial condition. Waitsfield v. Craftsbury (Vt.) 1916C-387. Notes. Who is pauper or poor person within poor laws. 1916C-389. Liability of municipality to individual for medical attendance furnished pauper. 1916D-183. POPULATION. Classification of counties by, see Counties, 5. Judicial notice of, see Evidence, 13. POSSESSION. See Adverse Possession. Rights of tenant, see Landlord and Tenant, 8, 9, 39. POSTDATING. Effect, see Checks, 1. POST-OFFICE. Letters as evidence, see Evidence, 46, 47, 101, 102. Presumption as to receipt, see Evidence, 135, 136. Presumption as to authority to write let- ter, see Evidence, 145%. Mailing of notice of claim of lien, see Mechanics' Liens, 27. Mail carrier a public officer, see Public Officers, 7. Espionage Act, see War, 19-25. 1. Burden of Showing Mailable Char- acter of Publication. Complainant, suing to enjoin the postmaster from excluding its magazine from the mail, pursuant to an order of the postmaster general holding it non-mailable. has the burden of over- coming the presumption that the post- master general's conclusion was right, or of showing that he had exceeded his power, or exercised it wantonly or mali- ciously; and this should be done by a pre- ponderance of evidence. Masses Pub. Co. v. Patten (U. S.) 1918B-999. 2. What Matter is Non-mailable. The Espionage Act (Fed. St. Ann. Pamph. Supp. No. 11, p. 16) excludes from the mails any publication, the natural and reasonable effect of which is to encourage resistance to a law of the United States, and the words of which are used in an endeavor to persuade to resistance, though the duty to resist is not mentioned di- rectly, and the interest of the persons ad- dressed in resistance is not directly sug- gested. Masses Pub. Co. v. Patten (U. S.) 1918B-999. 3. Indictment. In an indictment, under U. S. Penal Code (Act March 4, 1909, c. 321), 215, 35 Stat. 1130 (Fed. St. Ann. 1909 Supp. p. 464), for using the mails to promote a scheme to defraud, it is not necessary to use the word "knowingly," in charging the deposit of letters in the mails by defendant, where that is neces- sarily implied from the other averments. Samuels v. United States (Fed.) 1917A- 711. 4. Claim of Medical Ability How Proved. On the trial of a defendant charged with using the mails to promote a scheme to defraud, by sending through the mail letters and circulars containing false representations as to the value of a medicine made and sold by him. and also that he was a great scientist, a book pub- lished by him, treating of the eye, was inadmissible to prove the latter claim, which could only be established by wit- nesses who were competent to testify on the subject. Samuels v. United States (Fed.) 1917A-711. 5. Instructions Approved. Instructions given in a prosecution for using the mails to promote a scheme to defraud consid- ered, and held without error. Samuels v. United States (Fed.) 1917A-711. 6. Instruction Properly Refused. In a prosecution for using the mails to pro- mote a scheme to defraud, by making representations in letters and circulars sent through the mails as to the curative properties of an article made and sold as a medicine, a vital issue is as to the intent of defendant, to which his knowledge of the truth or falsity of the representations is pertinent; and the testimony of users of the remedy as to its beneficial effect, while admissible, is not determinative of such issue, and a refusal to instruct to that effect is not error. Samuels v. United States (Fed.) 1917A-711. 7. Use of Mail to Defraud Evidence Sufficient. Evidence in a prosecution for using the mails to promote a scheme to defraud held to be sufficient to require the POVERTY PREAMBLE. 683 submission of the case to the jury. Sam- uels v. United States (Fed.) 1917A-711. 8. That a defendant charged with using the mails to defraud by sending out let- ters and circulars containing false repre- sentations as to the virtues of a medicine made and sold by him, as shown by the letters set out in the indictment, merely copied testimonials, obtained from users, containing statements as to benefits de- rived from such use, does not render the indictment insufficient, where it is alleged that he knew the representations made therein to be false. Samuels v. United States (Fed.) 1917A-711. 9. Evidence Other Offenses. In a prosecution for using the mails to pro- mote a scheme to defraud, evidence of other advertisements by the defendant be- sides those contained in the letters set out in the indictment, but of a similar nature, as also of other false claims, is admissible on the question of fraudulent intent, es- pecially when committed continuously and for a long period of time. Samuels v. United States (Fed.) 1917A-711. 10. Decoy Letters Admissibility of An- swers. In such case the fact that letters sent by defendant through the mails were in response to decoy letters sent by post- office inspectors does not render them in- admissible. Samuels v. United States (Fed.) 1917A-711. 11. Use of Mails to Defraud Sale of Heal Estate. The construction of the Federal Criminal Code, 215 (Act March 4, 1909, c. 321, 35 Stat. 1130; Fed. St. Ann. 1909, Supp. p. 464), making criminal the use of the mails in the execution of a scheme to defraud, is involved, so as to sustain a writ of error from the federal supreme court, in a decision of a district court bv which a demurrer to an indict- ment charging violations of this section was sustained on the ground that allega- tions of the employment of false repre- sentations in furtherance of a plan to sell real estate did not constitute a scheme to defraud, punishable under that section, if the land to be sold was worth the pur- chase price asked. United States v. New South Farm, etc. Co. (U. S.) 1917C-455. (Annotated.) 12. Persons employing, in furtherance of a plan to sell ten-acre farms, false representations as to climate, fertility, crops, advantages, prospective improve- ments, etc., have engaged in a "scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises," within the meaning of the Fed- eral Criminal Code, 215 (Fed. St. Ann. 1909 Supp. p. 464), making criminal the use of the mails in the execution of such scheme, although the lands to be sold may be worth as much as the purchase price asked. United States v. New South Farm, etc. Co. (U. S.) 1917C-455. (Annotated.) POVERTY. See Poor and Poor Laws. POWER COMPANIES. See Electricity. POWER OF ATTORNEY. See Powers, 1. POWER OF TAXATION. See Taxation, 1-34. POWERS. Sufficiency of signature see Landlord and Tenant, 47. Testamentary powers, construction, see Wills, 222-227. 1. Execution Necessity That Instru- ment Refer to Power. Where sons gave their father a power of attorney author- izing him for his own sole use and benefit, to sell, transfer, etc., or dispose of certain realty, and acknowledge or make any deeds, etc., to effectuate such purposes, authorizing him to collect the price and to appropriate the same to his own use, etc., and the father thereafter in convey- ing the land executed a deed, not as at- torne- for the sons, but in his own name, such deed passed title, since the father had no interest in the land except that given him under the power, since when an instrument executed under power does not mention it, but can have no operation ex- cept as an execution of it, it is treated as intended to have that effect. Bennett v. Laws (Colo.) 1917A-240. (Annotated.) POWER TO CONTRACT. See Corporations, 17, 18. PRACTICE. See Actions and Proceedings; Motions; Pleading; Trial. Liberality under Workmen's Compensation Act, see Master and Servant, 288, 296. PRACTICE OF LAW. Nature of right to practice, see Attor- neys, 1. PRACTICE OF MEDICINE. See Physicians and Surgeons. PREAMBLE. As part of ordinance, see Municipal Cor- porations, 53. Effect on enacting clause, see Statutes, 21. Effect on construction of statute, see Statutes, 113, 114. 684 PRECEDENTS. See Stare Decisis. PRE-EXISTING DEBT. As consideration, see Bills and Notes, 14, 50. Sufficiency as consideration, see Chattel Mortgages, 5. PREFERENCES. See Bankruptcy, 18-20. Bight to prefer creditor, see Fraudulent Sales and Conveyances, 1. PREFERRED STOCK. See Corporations, 59, 76-78. PREJUDICE. As disqualification of juror, see Jury, 16- 18. As affecting testamentary capacity, see Wills, 61, 63. PREJUDICIAL ERROR. Essential for reversal, see Appeal and Error, 212-334. Ground for new trial, see New Trial, 17. PRELIMINARY HEARING. See Criminal Law, 11-15, 18-22. PRELIMINARY INJUNCTION. Restraining order distinguished, see In- junctions, 37, 38. PREMATURE APPEAL. See Appeal and Error, 50. PREMEDITATION. How proved, see Homicide, 20. PREMISES OF SCHOOL. Meaning, see Intoxicating Liquors, 71. PREMIUMS. See Accident Insurance; Fire Insurance; Insurance; Life Insurance. PREROGATIVE WRITS. See Habeas Corpus; Mandamus; Prohibi- tion; Quo Warranto. PRESCRIPTION. See Adverse Possession; Limitation of Ac- tions. Inoperative against grantee when, see Adverse Possession, 29. Title how acquired, see Adverse Posses- sion, 36. DIGEST. 1916C 1918B. Effect of interruption of user, see Ease- ments, 2. Right of fruit stand in street, see Streets and Highways, 22. Prescriptive easement for poles and wires, see Telegraphs and Telephones, 8-10. 1. Essentials of Prescription. An ease- ment can be created by prescription only by an adverse use of the privilege with knowledge of the owner, or by a use so open, notorious, visible, and uninterrupted that knowledge will be presumed, exer- cised under a claim of right adverse to the owner, and acquiesced in by him for a period equal to that prescribed by stat- ute for tue acquisition of adverse title to land. Rollins v. Blackden (Me.) 1917A- 875. 2. To acquire an easement by prescrip- tion, acquiescence by the owner of the property over which it is sought to be exercised must be shown, but the adverse use of the privilege for twenty years with- out interruption or denial by the owner raises a conclusive presumption of acqui- escence, where it is shown that the owner had knowledge of the use. Bollins v. Blackden (Me.) 1917A-875. 3. Permissive Use. Where the use of an easement claimed by prescription is shown to have been permissive, no rights arise. Rollins v. Blackden (Me.) 1917A- 875. 4. Each of the elements essential to the creation of a prescriptive easement is open to contradiction and liable to be dis- proved. Rollins v. Blackden (Me.) 1917A- 875. 5. Private Way Over Railroad Right of Way. If the grantor, after conveying the strip of land to the railroad company, con- tinued to use the private way, including that part which was intersected by the strip conveyed to the railroad company, the fact that he had made such convey- ance would not prevent him from acquir- ing under the statute a private way by prescription. (a) If the railroad was constructed and the tracks were made to cross the private way by means of a trestle, the land of the railroad company at such point of inter- section was "improved land" within the meaning of the statute, and the period of prescription would be seven vears. (b) If the private way was less than fifteen feet in width, and the prescriber kept it in repair and used it as such con- tinuously for the statutory period, he would acquire a private way by prescrip- tion. Carlton v. Seaboard Air-Line Ey. (Ga.) 1917-497. PRESENTATION OF CLAIMS. See Executors and Administrators, 24-26. Against city, see Municipal Corporations, 73, 175-187. PRESENTMENT PROCESS. 685 PRESENTMENT. See Checks, 2-7. Defined, see Grand Jury, 2. PRESENTMENT AND DEMAND. See Bills and Notes, 31, 32. PRESIDENT. Of corporation, powers, see Corporations, 48-51. PRETENSES. See False Pretenses. PREVENTION OF CRIME. Duties of sheriff, see Sheriffs and Con- stables, 2-7, 16. PRICE. See Inadequacy of Price. PRINCIPAL AND AGENT. See Agency. PRINCIPAL AND SURETY. See Suretyship. PRIORITY. Of liens, see Mechanics' Liens, 39, 40. PRIVATE NUISANCE. See Nuisances. PRIVILEGE AGAINST SELF-INCRIMI- NATION. See Witnesses, 84-88. PRIVILEGED COMMUNICATIONS. See Libel and Slander, 37-68, 75, 113, 119, 152; Witnesses, 17-47. PRIVILEGES AND IMMUNITIES. See Constitutional Law, 73-79. PRIZE. See Admiralty, 2, 3. PRIZE FIGHTS. Importation of fight films, see Theaters and Amusements, 1. PROBABLE CAUSE. See Malicious Prosecution, 8-13, 19-24, 27, PROBATE COURTS. See Courts. PROBATE HOMESTEAD. See Executors and Administrators, 27-31. PROBATE OF WILLS. See Wills, 114-144. PROBATE SALES. See Executors and Administrators, 32-46. PROCEEDINGS. See Actions and Proceedings. PROCESS. 1. Necessity and Validity, 685. 2. Issuance, 685. 3. Service and Return, 686. a. On Whom Served, 686. (1) Non-resident, 686. (2) Exemption from Service, 686. b. Constructive Service, 686. (1) In General, 686. (2) By Publication, 686. (3) Leaving Copy at Place of Abode, 687. 4. Service by Fraudulent Means, 687. See Abuse of Process; Creditors' Bills; Executions; Habeas Corpus; Quieting Title, 2; Sheriffs and Constables. Waiver of service by appearance, see Ap- pearances, 4. Sufficiency of wariant, see Arrest, 2. Evasion of service, see Contempt, 2. Service on convict, see Convicts, 2. In actions against foreign corporations, see Corporations, 161, 162, 170-177. In stockholder's suit, see Corporations, 142, 143. Decree on insufficient service, validity, see Judgments, 4 6, 8-10. Service by publication in partition suit, see Partition, 3. How served on alien enemy, see War, 12. 1. NECESSITY AND VALIDITY. 1. Failure to Serve Co-party Waiver of Objection. The benefit of Ky. Civ. Code Prac. 102, providing that in an action not on contract, where part only of de- fendants have been served, plaintiff can only demand a trial at any term, as to those served, on discontinuing on the first day of such term as to the others, is waived by a defendant going to trial with- out seasonable objection. Rosenberg v. Dahl (Ky.) 1916E-1110. 2. ISSUANCE. 2. Notaries Public Power to Issue War- rant. Notaries public, by section 4, chap- ter 51, serial section 2798, W. Va. Code 1913, constituted conservators of the peace, have no authority as such to issue warrants, returnable before themselves, or before justices of the peace, for violations 686 DIGEST. 1916C 1918B. of section 16cII, chapter 144, serial sec- tion 5174, Code 1913; nor is any one un- less the wife or an agent of the West Virginia Humane Society, authorized to make such complaints. Howell v. Wysor (W. Va.) 1916C-519. 3. SERVICE AND EETUEN. a. On Whom Served. (1) Non-resident. 3. Service on Non-resident Partnership Statute Invalid. Civ. Code Prac. Ky. 51, providing that in an action against a partnership, the members of which re- side in another state, engaged in business- in the state, the summons may be served on the agent in the county where the busi- ness is carried on or where the cause of action occurs, denies due process of law when construed to justify a personal judg- ment against non-resident partners doing business in the state, where service of summons was had on their agent in the state, since a "partnership" is not a legal entity separate from the partners, and since one may do business in another state bv virtue of the federal constitution with- out subjecting his person to the jurisdic- tion of the courts of that state. Flexner v. Farson (111.) 1916D-810 (Annotated.) Note. Validity of statute providing for ser- vice on agent of non-resident partnership. 1916D-813. (2) Exemption from Service. 4. HI. Practice Act (Laws 1907, p.' 470), 126, exempting members of the general assembly from service of civil process during the sessions of the assembly, vio- lates Const, art. 4, 22, prohibiting the enactment of local or special laws grant- ing to any corporation, association, or individual any special or exclusive privi- lege, immunity, or franchise, as the con- stitutional inhibition applies, unless there is a sound basis in reason and principle for regarding the beneficiaries of the act as a distinct and separate class for the purpose of the particular legislation, and the statute is not based upon any actual, substantial difference in circumstances or condition between the members of the general assemblv and other public officials of the state who in the performance of their official duties are required to spend a portion of their time in counties in which they do not reside, especially in view of Practice Act, 66, providing for continuances until after the adjournment of the general assembly upon a showing that any party to any civil or criminal suit or proceeding is a member of either house of the general assembly. Phillips T. Browne (111.) 1917B-637. (Annotated.) 5. Exemption from Service Member of Legislature. Const, art. 4, 14. exempting senators and representatives from arrest during the sessions of the general assem- bly, did not impliedly deprive the assem- bly of power to enact Practice Act (Laws 111. 1907, p. 470), 126, exempting mem- bers of the assembly from service of civil process during sessions of the assembly; since the constitution is not a grant of power to the legislature, but a limitation upon its powers. Phillips v. Browne (111.) 1917B-637. (Annotated.) 6. HI. Const, art. 4, 14, exempting mem- bers of the general assembly from arrest, except for treason or felony, during ses- sions of the assembly, does not exempt them from service of civil process during such sessions. Phillips v. Browne (111.) 1917B-637. (Annotated.) Note. Service of civil process upon members of legislature. 1917B-641. b. Constructive Service. (1) In General. 7. Beading to Defendant Over Tele- phone. Under N. Car. Kevisal 1905, 439, providing that summons shall be served by the sheriff or other officer reading the same to the party or parties named as defendant and such reading shall be a legal and sufficient service, service cannot be made by the officer reading the sum- mons to the defendant over the telephone, though the officer may recognize defend- ant's voice and know he is talking to the proper person. S. Lowman & Co. v. Bal- lard (N. Car.) 1917B-899. (Annotated.) Note. Validity of service, notice, or other transaction by telephone. 1917B-903. (2) By Publication. 8. Sufficiency of Publication Once Each Week for Stated Number of Weeks. The orders for publication required bv chapter 4129, Fla, Laws of 1893, to be published once a week for four consecutive weeks if the defendant be stated to be a resi- dent of the United States are required to be published once a week for four weeks cf seven days each, or at least twenty- eight days from the date of the first pub- lication to the day fixed in the order for the defendant to appear. Myakka Co. v. Edwards (Fla.) 1917B-201. (Annotated.) 9. The word "for," in chapter 4129, Fla. Laws 1893, requiring that publication of process against non-residents shall be had "once a week for four consecutive weeks," means "throughout" or "during the contin- uance of" such period. Myakka Co. v. Edwards (Fla.) 1917B-201. ' (Annotated.) PRODUCTION OF DOCUMENTS PROHIBITION. 687 10. Scope of Statute Citation to Rule Day. The publication provisions of chap- ter 4129, Fla. Acts of 1893, authorizing constructive service of initial process in chancery, have reference to the appear- ance day stated in the act, and not to rule days on which defaults for failure to plead or demur may be entered under the statute and chancerv rules. Myakka Co. v. Edwards (Fla.) 1917B-201. 11. Sufficiency of Publication Once Each Week When Service Complete. Un- der chapter 4129, Fla. Acts of 1893, au- thorizing constructive service by publi- cation of initial process to acquire juris- diction of a non-resident defendant in a chancery case, where the first publication is less than four weeks or twenty-eight days prior to the appearance day fixed in the order of publication, the requirement that such publication shall be "once each week, for four consecutive weeks," is not complied with, and jurisdiction of the per- son is not acquired. Myakka Co. v. Ed- wards (Fla.) 1917B-201. (Annotated.) Note. Construction of requirement of publica- tion once per week for certain number of weeks. 1917B-209. (3) Leaving Copy at Place of Abode. 12. Leaving at Residence. Service of summons on defendant by leaving a copy "at his usual place of residence," held valid, within the meaning of that term as used in section 6& of the Neb. Code, on a record showing that the sheriff went into defendant's yard; that he handed a copy of the summons to defendant's wife, who was at the time not more than 20 feet from the house in which he resided; that he asked her to give the copy to defend- ant; that she said she would do so; and that she went into the house with it. Bursow v. Doerr (Neb.) 1916C-248. 4. SERVICE BY FRAUDULENT MEANS. 13. On a motion to set aside the return of service upon a defendant, evidence held not to show that plaintiffs fraudulently induced defendant to come into the state, so that process could be served upon him. Crandall v. Trowbridge (Iowa) 1916C-608. (Annotated.) 14. Unless the facts and circumstances show that a defendant was fraudulently induced to enter the state, so that he could be served, honesty of intent on the part of plaintiffs will be presumed. Crandall v. Trowbridge (Iowa) 1916C-608. (Annotated.) 15. A fraudulent intent to induce a de- fendant to come into the state, so that process could be served upon him, may be inferred from the acts and representations of the parties and the other facts and circumstances. Crandall v. Trowbridge (Iowa) 1916C-608. (Annotated.) 16. Where all the plaintiffs were joint makers of the notes, to cancel which the suit was brought, and were investigating the facts together, they are chargeable with the acts of each other, or of their attorney, by which a defendant was fraud- ulently induced to enter the state, so that he could be served. Crandall v. Trow- bridge (Iowa) 1916C-608. (Annotated.) 17. Service upon a defendant, whose presence within the state was procured by the fraud or trickery of the plaintiffs or those acting in their behalf, does not give the court jurisdiction. Crandall v. Trow- bridge (Iowa) 1916C-608. (Annotated.) Note. Validity of personal service of process procured by fraud or force. 1916C-612. PRODUCTION OF DOCUMENTS. See Discovery. PROFESSION. See Attorneys; Licenses; Physicians and Surgeons. PROHIBITED DEGREES OF RELATION- SHIP. See Marriage, 3. PROHIBITION. 1. Reconsideration of Denial After Ex- piration of Term. A writ of prohibition will issue to prevent a trial court from reconsidering its order denying a new trial on a motion or petition for a new trial and rehearing the same after the expiration of the trial term, since such action is an unauthorized application of judicial force and is void. Owen v. Dis- trict Court (Okla.) 1917C-1H7. (Annotated.) 2. Right to Remedy Remedy by Appeal Inadequate. Under Mont. Kev. Codes, 7228, authorizing writ of prohibition where there is not a plain, speedy, and adequate remedy at law, the remedy by appeal from a threatened peremptory writ of mandamus to do an act which may be required to be done forthwith, and the respondent therein thereby rendereJ liable for contempt while the appeal was being perfected and a stay obtained, is neither speedy nor adequate, since a "speedy rem- edy" is one which, having in mind the subject-matter involved, can be pursued with expedition and without essential det- riment to the party aggrieved, aud it is neither "speedy nor adequate" if its slow- ness is likely to produce immediate injury or mischief. State v. District Court (Mont.) 1917C-164. 688 DIGEST. 1916C 1918B. 3. Against Unwarranted Injunction, The writ of prohibition is that process by which a superior court prevents an in- ferior tribunal from exercising jurisdic- tion with which it has not been vested by law. Hence, where the chancery court at- tempts to enjoin execution of a judgment in a criminal proceeding, a writ of pro- hibition will be issued to prevent the court from exceeding its jurisdiction. Ferguson v. Martineau (Ark.) 1916E-421. 4. That a chancery court which enjoined the execution of a criminal "judgment did not propose to issue any further order ia no ground for the denial of a writ of pro- hibition, for the denial of the writ would leave the injunction in force. Ferguson Y. Martineau (Ark.) 1916E-421. 5. Courts Subject Probate Court. As the Arkansas supreme court controls in- ferior courts only through its supervisory jurisdiction over the circuit court, it can- not issue a writ of prohibition against the probate court. Ferguson v. Martineau (Ark.) I916E-421. PROHIBITION LAWS. See Intoxicating Liquors; Local Option. PROMISSORY NOTES. See Bills and Notes. Bank's payment out of maker's deposit, see Banks and Banking, 65, 66. PROMOTERS. See Corporations, 28, 29. PROPERTY. See Lost Property. Wild animals, see Animals, 20-26. Defined, see Constitutional Law, 48. In corpse, see Dead Body, 1, 2, 6. Inheritable property, see Descent and Dis- tribution, 3, 4. Promissory note as property, see False Pre- tenses, 2. Joint tenancy in personalty, see Joint Ten- ants, 7. Property consumable in use as subject of mortgage, see Mortgages and Deeds of Trust, 16. City regulation of use, see Municipal Cor- * portions, 86. Taxation of intangible property, see Tax- ation, 25, 33, 45. Right to dispose of by will, see Wills, 1-3. 1. Rents Nature as Real or Personal. Unaccrued rents are not personal property. They are incorpore'al hereditaments. They are an incident to the reversion and follow the land. Though separable from the land, they are, until such separation, part of the land. State v. Royal Mineral Associa- tion (Minn.) 191SA-143. (Anno,ated.) Note, Rent as realty or personalty, 1918A- 148. PROPERTY RIGHTS. Police power not to infringe, see Constitu- tional Law, 28. PROSECUTING ATTORNEYS. Improper remarks in bill of exceptions, see Appeal and Error, 64. Expressions as to guilt of accused, see Argument and Conduct of Counsel, 18. Expressions as to wealth of accused, see Argument and Conduct of Counsel, 19. Abusive language, see Argument and Con- duct of Cou_sel, 30. Eight to file disbarment proceedings, see Attorneys, 44, 47. Authority of report criticising prosecutor, see Grand Jury, 2. Invalid appointment, effect on indictment, see Indictments and Informations, 2. Duty to serve school board, see Schools, 15. 1. Prosecuting Attorney Fees Taxa- tion as Costs. The county attorney is en- titled to have taxed as costs a fee of $25 on each count covered by the conviction and the direction to the clerk to omit such fee from the taxation of costs was error. State v. Missouri Pacific R. Co. (Kan.) 1917A-612. 2. Trial Misconduct of Counsel Neces- sity of Objection, Where complaint is made that the solicitor general, during the trial of the case, indulged in improper remarks to the jury, but no objection was made thereto at the time, and no ruling was invoked, this will not require a new trial. Bird v. State (Ga.) 1916C-205. 3. Striking Report from Records. A prosecuting attorney may move the circuit court to expunge from its records a report of a grand jury assailing his official con- duct without serving notice of motion on any member of the grand jury. Bennett v. Kalamazoo Circuit Judge (Mich.) 1916E-223. 4. A prosecuting attorney, seeking an Or- der of the circuit court expunging from its records a report of a grand jury assailing his official conduct, should, before apply- ing to the supreme court for relief by mandamus, obtain from the circuit court a decision on his application to strike out the report. Bennett v. Kalamazoo Circuit Judge (Mich.) 1916E-223. 5. Power to Appoint Substitute. As Const, art. 9, 5, provides that the office of state's attorney shall be filled by the voters at an election, the court may not, as attempted by Acts 1905, c. 90, amend- ing S. Dak. Pol. Code, 934, be authorized to supplant such officer, when there is no real tempurary vacancy, merely because "in. PROSTITUTION. 689 the opinion of the court the ends of jus- tice would be promoted thereby," by an appointee to file an information and prose- cute the cause. State v. Flavin (S. Dak.) 19I8A-713. (Annotated.) Note. Validity of appointment of deputy or special prosecuting attorney. 1918A-718. PROSTITUTION. 1. In General, 689. 2. Deriving Support from Prostitute, 690. 3. Federal White Slave Traffic Act, 690. See Disorderly Houses, 3-6. Deportation, see Aliens, 17. Policy on bawdy house, validity, see Fire Insurance, 1. State regulation in cities, see Municipal Corporations, 20. 1. IN GENERAL. 1. Definition As Including Act of Man. Though "prostitution," in its broadest sense, means the setting one's self to sale, or devoting to infamous purposes what is in one's power, in its restricted sense, as used in Iowa Code, 4943, making it a crime to resort to a house of ill fame for the purpose of prostitution, it means the practice of a female offering herself in indiscriminate intercourse with men, and is not applicable to the conduct of men. State v. Gardner (Iowa) 1917D-239. (Annotated.) 2. That Iowa Code, 4943, makes it a crime for "any person" to resort to a house of ill fame for the purpose of prostitu- tion, does not extend the application of the section as to prostitution to men. State v. Gardner (Iowa) 1917D-239. (Annotated.) 3. Iowa Code, 4943, making it a crime to resort to a house of ill fame for the purpose of prostitution or lewdness, does not, by associating the two purposes, ex- tend the application of the section as to the former to men. State v. Gardner (Iowa) 1917D-239. (Annotated.) 4. It being settled at the time of adop- tion of Iowa Code, 4943, making it a crime to resort to a house of ill fame for the purpose of prostitution, that men could not be guilty of prostitution, that section must be strictly construed. State v. Gardner (Iowa) 1917D-239. (Annotated.) 5. Frequenting House of 111 Fame Pur- pose Error Held Prejudicial. In a prose- cution for resorting to a house of ill fame for the purpose of prostitution or lewd- ness, forbidden by Iowa Code, 4943, the error in holding that the statute punishes men for resorting to a house of ill fame for the purpose of prostitution necessitates a reversal. State v. Gardner (Iowa) 1917D-239. 44 6. Visiting House of HI Fame Purpose. While on a charge of lewd and lascivious ''conduct," that is, customary behavior, or of leading a life of lewdness, there may not be a conviction merely because there was an unlawful indulgence of the animal de- sires, where the charge is resorting for the purpose of lewdness, it is sufficient that the place was visited for the purpose of committing an act of lewdness, as the term is understood in the accepted usage of the language, that is, a lustful or las- civious act. State v. Gardner (Iowa) 1917D-239. 7. Instructions. The refusal of an in- struction in a prosecution for resorting to a house of ill fame for the purpose of prostitution or lewdness that defendant might go to a house of ill fame if his purpose was that of friendly visiting was not error, where the court charged that defendant could not be convicted unless he resorted to the house for the purpose of prostitution or lewdness. State v. Gardner (Iowa) 1917D-239. 8. Where the evidence showed that, if defendant resorted to a house of ill fame for the purpose of lewdness at all, he did so many times, it was proper to refuse an instruction that an occasional visit for such purpose will not support a conviction. State v. Gardner (Iowa) 1917D-239. 9. In a prosecution for resorting to a house of ill fame for the purpose of lewd- ness, it was not error to refuse an in- struction that it would not constitute the house one of ill fame if one woman alone therein had sexual intercourse with various men, where there was no evidence that no other woman practiced such illicit com- merce in the house. State v. Gardner (Iowa) 1917D-239. 10. Proof of Character of House Gen- eral Repute. While evidence of general reputation of a house as one of ill fame is admissible, there can be no conviction of "resorting to such a house without other evidence that the house was kept and used as a house of ill fame. State v. Gardner (Iowa) 1917D-239. 11. Instructions Refusal.,- of Request Matters Covered by General Charge. The refusal of an instruction that, while evi- dence of general reputation of a house of ill fame is admissible, there can be no conviction unless there is other evidence that the house was used for that purpose, is not error; where the court gave equiva- lent instructions. State v. Gardner (Iowa) 1917D-239. 12. Attempt to Entice Female What Constitutes "Immoral Purposa." The Don- Ian Act (Laws Mont. 1911, c. 1), 2, pro- vides that any person who shall entice or attempt to entice any girl to reside with another for "immoral purposes," etc., shall, etc. Defendant, who conducted an em- ployment agency at Butte, attempted to 690 DIGEST. 1916C 1918B. entice a seventeen-year-old girl to accept a position in a hotel in the state of Wyo- ming, informing her that the place was a sporting house, and that her duties would be to dance, play cards, drink beer, and entertain men. The evidence tended to show that the place was not one where a girl could stay for any length of time and be respectable. It is held that employ- ment to which defendant tried to entice the girl was an efficient school for special immorality covered by term "immoral pur- poses." State v. Keed (Mont.) 1917E- 783. 13. Enticement for Immoral Purpose Instruction as to Purpose. In a prosecu- tion for an attempt to entice a girl to enter employment of another for immoral purposes, an instruction defining "immoral" aa ''anything inconsistent with rectitude, ..." and "that purpose is the object, ..." and that "therefore an immoral, purpose is one which is violative of con- science or moral law inconsistent with purity, rectitude, or good morals, or hostile to the welfare of the general public," is insufficient as a definition of the words "immoral purposes," as used in the Donlan Act (Laws Mont. 1911, c. 1). State v. Eeed (Mont.) 1917E-783. Note. Whether man can be "prostitute," or guilty of resorting to house of ill fame for purpose of prostitution. 1917D-248. 2. DERIVING SUPPORT FROM PROS- TITUTE. 14. What Constitutes Acceptance. Where, pursuant to the directions of a police officer who demanded money for protection, a common prostitute paid money to a person designated, the accept- ance of the money by that person is an acceptance by the police officer of the earnings of a common prostitute. State v. Schuman (Wash.) 1918A-633. 15. Nature of Offense Intent. Where a policeman accepts money from a com- mon prostitute, which is paid in consid- eration of hisallowing her to frequent a cafe and there to solicit men for sexual intercourse, the money is paid and re- ceived with intent to aid, assist, or abet the practice of prostitution. State v. Schuman (Wash.) 1918A-633. 16. An information charging that ac- cused and another wilfully, unlawfully, and feloniously accepted the earnings of one wbc iras then a Common prostitute is suffi- cient to indicate that defendant knew the moneys were obtained by prostitution. State v. Schuman (Wash.) 1918 A- 633. 17. Accepting Earnings of Prostitute Sufficiency of Information. An informa- tion charging that defendants, and each of them, did wilfully, unlawfully, and feloniously accept the earnings of one who was then and there a common prostitute is sufficient under Rem. & Bal. Wash. Code, 2055, requiring a statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended. State v. Schuman (Wash.) 1918A-633. 18. Evidence Other Offenses Receiv- ing Earnings of Prostitute. In a prosecu- tion against a police officer for receiving the earnings of a common prostitute, which it was claimed he demanded for his protection, evidence that at the same time he demanded and received money from other prostitutes is admissible. State V. Schuman (Wash.) 1918A-633. 3. FEDERAL WHITE TRAFFIC ACT. SLAVE 19. Validity of Mann Act. Construing as applicable to transportation, unaccom- panied by the expectation of pecuniary gain, the provisions of the White Slave Traffic Act of June 25, 1910 (36 Stat. at L. 825, c. 395, Fed. St. Ann. 1912 Supp. p. 419), making criminal the transporta- tion or the causing to be transported, or the obtaining, aiding, or assisting in the transportation in interstate commerce of 1 women or girls for the purpose of prosti- tution, debauchery, or other immoral pur- poses, does not render the statute invalid as in excess of the constitutional power of Congress over interstate commerce. Cami- netti v. United States (U. S.) 1917B-1168. (Annotated.) 20. White Slave Traffic Act Scope of Act. Transportation of a woman in inter- state commerce in order that she may be debauched or become a mistress or con- cubine, although unaccompanied by the expectation of pecuniary gain, is con- demned by the provisions of the White Slave Traffic Act of June 25, 1910 (36 Stat. at L. 825, c. 395, Fed. St. Ann. 1912, Supp. p. 419), making it an offense know-, ingly to transport or cause to be trans- ported in interstate commerce any woman or girl for the purpose of prostitution or debauchery, or for any other immoral pur- pose, or with the intent or purpose to in- duce such woman or girl to become a prostitute, or to give herself up to de- bauchery, or engage in any other immoral practice. Caminetti T. United States (U. S.) 1917B-1168. (Annotated.) 21. Effect on State Legislation. An at- tempted transportation, completed before transportation was commenced, of a female to. another state for immoral purposes, is intrastate commerce, not within purview of the Mann Act (Act Cong. June 25, PKOTEST PUBLIC CONTRACTS. 691 1910, c. 395, 36 Stat. 825 [Fed. St. Ann. 1917 Supp. p. 419]), and therefore punish- able by the Donlan Act (Laws 1911, c. 1). State v. Eeed (Mont.) 1917E-783. (Annotated.) PROTEST. Liability of bank for failing to protest note, see Banks and Banking, 62-64. Payment under, see Payment. See also, Taxation, 106. Against special assessment, see Taxation, 127-130. PROVINCE OF COURT AND JURY. See Questions of Law and Fact. PROVOCATION. Effect on measure of damages, see Assault, 15-17. PROXIES. See Corporations, 99, 100. PUBLIC ACCOUNTS. See Accounts and Accounting. PUBLIC ADMINISTRATOR. See Executors and Administrators, 5, 9-11. PUBLICATION. See Libel and Slander, 5-7. Newspaper, what is, see Newspapers, 1. Of summons, see Process, 8-11. Of ordinance on Sunday, see Sundays and Holidays, 9. Of ordinance in german paper insufficient, see Trees and Timber, 2. Of wills, see Wills, 30. PUBLIC CHARITIES. See Charities. PUBLIC CONTRACTS. 1. Pfrwer to Make and Validity, 691. 2. Eights and Liabilities on Bonds, 691. 3. Actions, 692. 1. POWER TO MAKE AND VALIDITY. 1. Printing Public Contract Limita- tion to Residents Validity. Miss. Laws 1916, c. 135, 3, prohibiting the letting by boards of supervisors of counties of con- tracts to furnish the county with blank books, stationery, etc., to any bidder who is a non-resident of the state, who has not a printing plant in the state or who is not a bona fide resident of the state actually engaged in the printing business is not violative of Const. U. S. art. 1, 8 (8 Fed. St. Ann. 363), giving Congress the right to regulate commerce among the several states, since such provision of the consti- tution is not intended to affect contracts which have an indirect or remote bearing on commerce between the states, and a state in the exercise of its police power may make regulations which indirectly affect interstate commerce; it being only direct interferences with the freedom of such commerce that bring the case within the exclusive domain of federal legisla- tion. State v. Senatobia Blank Book and Stationery Co. (Miss.) 1918B-953. (Annotated.) 2. Miss. Laws 1916, c. 135, 3, is not violative of Const. 107, providing that stationery, printing, etc., used by the legis- lature and other departments of the gov- ernment shall be furnished under con- tract subject to the approval of the gov- ernor and state treasurer, since a county is not a department of the state but a political subdivision. State v. Senatobia Blank Book and Stationery Co. (Miss.) 1918B-953. (Annotated.) 3. Miss. Laws 1916, c. 135, 3, is not violative of Const. U. S. Amend. 14 (a) (9 Fed. St. Ann. 392, 416, 538), providing that no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, nor shall any state deprive any person of life, liberty, or property with- out due process of law, nor deny to any person within its jurisdiction the equal protection of laws. State v. Senatobia Blank Book and Stationery Co. (Miss.) 1918B-953. (Annotated.) 4. Miss. Laws 1916, c. 135, 3, is not violative of Const. U. S. art. 4, 2 (9 Fed. St. Ann. 158), providing that the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states, since counties are mere political subdivisions of the state for the purpose of exercising a part of its powers and may exert only such powers as are ex- pressly granted to them or necessarily im- plied from those granted, so that regula- tion of their contracts is a regulation of the contracts of the state, and no person engaged in stationery business is entitled to absolute right to contract with the state. State v. Senatobia Blank Book and Stationery Co. (Miss.) 1918B-953. (Annotated.) 2. EIGHTS AND LIABILITIES ON BONDS. 5. Sufficiency of Performance Effect of Accepting Work. Where a contractor for street paving, under a contract providing that the improvement was to be made un- der the supervision and to the satisfaction of the city engineer, gave two bonds, one lor faithful performance of the work ac- cording to the plans and specifications, and the other guaranteeing the improve- ment for seven years, in an action on the 692 guaranty bond, the city, after having ac- cepted the improvement, may attack the performance as not being in conformity with the plans and specifications, though ordinarily it could not be done if only the first bond had been given. Ottumwa v. McCarthy Improvement Co. (Iowa) 1917E- 1077. 3. ACTIONS. DIGEST. 191GC 1918B. 1. Actions Between Entrymen Neces- sity of Joining Government. The United States is not a necessary party to a suit by a prior entryman whose entry has been rejected by the Land Department in favor of a subordinate entryman, to charge the latter with a trust in his lavor, because a patent from the United States is involved. Daniels v. Wagner (U. S.) 1917A-40. 6. Failure to Require Bond Liability of Municipality to Materialman. One furnishing material to a contractor, erect- ing a scnoolhouse for a school district which neglected to exact a bond required by Ore. L. O. L. 6266, of anyone con- tracting with any school district for the construction of any building, with the additional obligation that he will promptly pay all materialmen, has a right of action against the district for damages conse- quent upon the contractor's insolvency leaving a balance due for the materials furnished. Northwest Steel Co. v. School District (Ore.) 1917B-1086. (Annotated.) Note. Liability of municipality or officer for failure to take from contractor bond for protection of laborers or materialmen. 1917B-1089. PUBLIC DOCBL Liability of county for injury to child on dock, see Negligence, 6, 7, 9. PUBLIC FUNDS. Restraining improper payment, see In- junctions, 22. PUBLIC HIGHWAYS. See Streets and Hignways. PUBLIC INTEREST. Privileged communications, see Libel and Slander, 63-65. PUBLIC LANDS. Illegality of public land contract, see Con- tracts, 29. Liability of prospector for cattle lost in open shaft, see Mines and Minerals, 10. Taxation of state land under contract of purchase, see Taxation, 26, 27, 39, 48, 49. Selection of lieu lands .in forest reserves, see Trees and Timber, 21. Federal grants of riparian lands, see Waters and Watercourses, 3. 2. Grant of Land Under Navigable Waters Restrictions in Grant. Where a grant of public lands under navigable waters contains an express restriction against interference or obstruction with the free and unrestricted ^rights of public access and use, the grantee cannot main- tain obstructions and devices in the main- tenance of an amusement park which in- terfere with such public use. People v. Steeplechase Park Co. (N. Y.) 1918B- 1093. 3. Limitations on Unrestricted Grant. A grant of public lands under navigable water containing no restrictions is held to be an unqualified grant of the fee therein, and not subject to any easement in favor of the public. People v. Steeplechase Park Co. (N. Y.) 1918B-1093. 4. Fences, barriers, platforms, pavilions, and other structures of a private amuse- ment park, constructed by the grantee on lands under navigable water between high and low water mark, although an inter- ference with the public use of. and access to, such lands cannot be enjoined, where the grant of such lands from the state was unqualified. People v. Steeplechase Park Co. (N. Y.) 1918B-1093. 5. Where the state through its land commissioners unqualifiedlv granted to de- fendant lands under navigable water be- tween high and low water marks, the ex- clusive use and right of possession vested in the grantee, and the use of such lands as an amusement park does not affect the validity of the grant. People v. Steeple- chase Park Co. (N. Y.) 1918B-1093. 6. Power of State to Make Grant. The commissioners of the land office under N. Y. Public Lands Law (Consol. Laws. c. 46), 75, and Const, art. 5. 5. 6, have authority to make unqualified, unrestricted grants of lands under water between high and low water marks. People v. Steeple- chase Park Co. (N. Y.) 1918B-1093. (Annotated.) Note. Power of state to grant title to land nnder navigable water. 1918B-1107. PUBLIC NUISANCE. See Nuisances, PUBLIC OFFICERS. 693 PUBLIC OFFICERS. 1. In General, 693. 2. Creation of Office, 694. 3. Appointment and Election, 694. 4. Qualifications and Eligibility, 695. 5. Compensation and Expenses, 696. a. In General, 696. b. Wrongful Exclusion from Office. 696. c. Neglect of Duty, 696. d. De Facto Officer, 696. <5. Duration of Term of Office, 696. 7. Termination of Term, 697. a. In General, 697. b. Kemoval, 697. (1) In General, 697. (2) Jurisdiction or Authority to Remove, 697. (3) Grounds, 697. (4) Proceedings, 698. 8. De Facto Officers, 698. 9. Civil Liability Generally, 699. 10. Official Bonds, 699. a. In General, 699. b. Actions on Official Bonds, 700. See Prosecuting Attorneys; Sheriffs and Constables. Status of attorney as officer, see Attor- neys, 2. Salary part of assets, see Bankruptcy, 3. County officers, see Counties, 20-22. Election officers, see Elections, 15-18. Misuse of public funds, see Embezzlement, 4. Presumption as to acts of, see Evidence, 133, 134. Exemption of public property, see Execu- tions, 3. Subject to writ, see Habeas Corpus, 3. Restraining improper acts, see Injunctions. 13-22. Judge as public officer, see Judges, 3. Removal, right to jury, see Jury, 9. Communications to officer, privilege, see Libel and Slander, 60-62. Communications against, privilege, see Libel and Slander, 62. Mandamus to enforce right to office, see Mandamus, 10-13. City officers, see Municipal Corporations, 131-150. School boards and officers, see Schools, 13-15. Liability of state for officers' torts, see States, 8. Sheriff as public officer, see Taxation, 196. Forest officers, acts and duties, see Trees and Timber, 19, 20. 1. IN GENERAL. 1. Who are State Officers Officer of Municipality. The general rule, in the absence of special constitutional provi- sion, is that all officers whose duties per- tain to the exercise of the police power of the state are in that sense state offi- cers, and under the control of the legis- lature, even though they may be officers of a municipality and charged with the enforcement of the local police regulations of such municipality. State v. Linn (Okla.) 1918B-139. 2. Officers Denned. "Officers" are crea- tures of the law, whose duties are usually provided for by statute. In a way they are agents; but they are never general agents in the sense that they are neither hampered by custom nor law, and in the sense that they are absolutely free to fol- low their own volition. Persons dealing with them do so with full knowledge of the limitations of their agency and of the laws prescribing their duties. They are trustees as to public money which comes to their hands. Lamar Township v. Lamar (Mo.) 1916D-740. (Annotated.) 3. Policemen Status as Public Officers. A policeman holds an office within the meaning of section 2, of art. 15, of the Kan. state constitution. Haney v. Cofran (Kan.) 1917B-660. (Annotated.) 4. Construction "Associates in Office." "Associates in office" are those who are united in action; who have a common pur- pose; who share the responsibility or au- thority and among whom is reasonable equality; those who are authorized by law to perform the duties jointly or as a body. Barton v. Alexander (Idaho) 1917D-729. (Annotated.) 5. Nature of Contract With Public. A public officer is a public servant, and his candidacy for appointment or election, his commission, his oath in connection with the law under which he serves, and the emoluments of his office constitute the contract between him and the public he serves. Cleveland v. Luttner (Ohio) 1917D-1134. 6. Notaries Public Notary as Officer. N. <^ar. Revisal 1905, 989, provides that the execution of all deeds may be proved or acknowledged before any of the "offi- cials" therein specified. Section 2347 au- thorizes the governor to appoint notaries, who shall hold their "office" for two years, and shall qualify by taking an oath of office and the oaths prescribed for officers. Section 2350 gives notaries power to take and certify the acknowledgment of deeds, to administer oaths and affirmations in matter incident to their "offices," etc., and subsequent sections refer to their "office," their "official acts," etc. It is held that the position of notary public is an "office," within Const, art. 6, 7, providing that every voter, except as in that article dis- qualified, shall be eligible to office, espe- cially as the probate of a deed is a judi- cial act, and the judicial function is per- formed by the notary, and not, as claimed, by the clerk of the court. State v. Knight (N. Car.) 1917D-517. 7. Office and Employment Distinguished. U. S. Const, art. 14, 7, provides that no person who shall hold any office or place of trust or profit under the United States or any department thereof, or under this 694 DIGEST. 1916C 1918B. state, or any other state, shall holfl or exercise any other office or place of trust or profit under the authority of the state. Postal Laws and Regulations of 1913, which provides for the appointment of rural carriers by the Postmaster General, and requires such carriers to take oath to support the Constitution and to give bond for faithful performance of their duties, fixes the terms and duties of such car- riers; it also inhibits rural carriers from holding any state, county, municipal, or township office. Const. U. S. art. 2, 2, authorizes Congress to vest the appoint- ment of inferior officers in the President alone, or in the heads of departments. It is held that, while the line between offices or places of trust and t>rofit is not clear, an "office" is a public position to which a portion of the sovereignty of the country attaches for the time being, and which is exercised for the benefit of the public, and within the constitutional provision there is no distinction between "offices" and "places of trust or profit" with respect to the inhibition against double office-hold- ing; hence a rural mail carrier was a "pub- lic officer," and his holding of a state office subjected him to the statutory penal- ties. Groves v. Barden (N. Car.) 1917D- 316. (Annotated.) 8. Status of Commissioners. That Con- gress in giving the state permission to build a bridge over a stream required that the state should by legislative enactment provide for adequate compensation to per- sons suffering injuries, does not make com- missioners appointed under Mass. St. 1911, c. 439, providing for assessment of such damages, federal officers, but such com- missioners being appointed by the state courts are officers of the state court. Brackett v. Commonwealth (Mass.) 1918B- 863. Notes. Distinction between office and employ- ment. 1917D-319. Policeman as public officer. 1917B-663. 2. CREATION OF OFFICE. 9. Power of Legislature Creation and Change of Offices. An office created by the legislature is wholly within that body's power, and it may prescribe the powers and duties of the incumbent, the mode of filling the office, and from time to time change such mode, or impose additional duties upon officers already elected or ap- pointed. Perkins v. Board of County Commissioners (111.) 1917A-27. Note. Power of body having authority to re- move public officer to appoint committee to conduct hearing. 1916C-1273. 3. APPOINTMENT AND ELECTION. 10. Veterans' Preference Acts Discre- tion of Appointing Power. The action of the governor in making appointments un- der S. D. Laws 1913, c. 109, creating the board of public health, and medical exam- iners, is not ministerial, but involves the exercise or discretion, notwithstanding Pol. Code, 3242, 3243, providing that honorablv discharged soldiers and sailors shall be preferred for appointment to pub- lic office and making a violation thereof a misdemeanor. Phelps v. Byrne (S. D.) 1918B-996. (Annotated.) 11. Anti-nepotism Law Title. The title to the anti-nepotism bill or act (Laws Idaho 1915, c. 10) is sufficiently broad to include and cover all of the provisions of said act and is not repugnant to the pro- visions of section 16, art. 3, of the state constitution. Barton T. Alexander (Idaho) 1917D-729. (Annotated.) 12. Scope of Act Political Divisions Embraced. Irrigation, drainage, improve- ment, and school districts do not come within the provisions of said act, since they are not municipal subdivisions of the state and are not specially included in said act. Barton v. Alexander (Idaho) 1917D-729. (Annotated.) 13. Appointments Prior to Act. Where appointments of persons related to officers within the prohibited degree have been made prior to the going into effect of said act, such appointees cannot legally be paid out of the public funds any salary or. wages for services rendered subsequent to the going into effect of said act, to wit, the 8th day of May, 1915. Barton v. Alexander (Idaho) 1917D-729. (Annotated.) 14. Retroactive Effect. The provisions of said act do not operate retrospectively. Barton v. Alexander (Idaho) 1917D-729. (Annotated.) 15. Construction of Act Computation of Relationship. Under the provisions of section 5705, Idaho Rev. Codes, the de- grees of kindred are computed according to the rules of the civil law, which rules are applicable to the act in question. Barton v. Alexander (Idaho) 1917D-729. (Annotated.) 16. Validity of Anti-nepotism Act. Said act is a police regulation, and its provi- sions are reasonable and enforceable and not unconstitutional. Barton v. Alexan- der (Idaho) 1917D-729. (Annotated.) 17. Appointments Prior to Act. If a person is legally appointed and eligible to hold the office to which he is appointed, the proper board or officer is not prohib- ited by said act from passing upon and allowing the claim of such appointee for salary, or wages, although such appointee may be related to such officer or a mem- ber of the board which is required under the law to pass upon such claim. Barton v. Alexander (Idaho) 1917D-729. (Annotated.) PUBLIC OFFICERS. 695 18. Effect of Act Payment of Salary After Illegal Appointment. If a person is illegally appointed under the provisions of said act, the officer of the state, district, county, city, or other municipal subdivi- sion of the state who pays out of any pub- lic funds under his control or draws or authorizes the drawing of any warrant or authority for the payment out of any pub- lic funds of the salary, wages, pay, or compensation of any such ineligible per- son, knowing him to be ineligible, is guilty of a misdemeanor and may be punished as provided in the first section of said act. Barton v. Alexander (Idaho) 1917D-729. (Annotated.) 19. Said act prohibits the omcers there- in mentioned from making appointments on agreement or promise with other offi- cers. Barton T. Alexander (Idaho) 1917D- 729. (Annotated.) 20. Said act nrohibits the officers there- in named, or boards or councils composed of such officers, from appointing any one to office related to them or to any mem- ber of such board or council within the third degree by affinity or consanguinity. Barton v. Alexander (Idaho) 1917D-729. (Annotated.) 21. The phrase "associates in office," as used in said act, refers to officers who are required under the law to act together, each having substantially equal authority in matters coming before them as boards or councils under the law. Barton v. Alexander (Idaho) 1917D-729. (Annotated.) 22. The commandant of the Soldiers' Home is not an "associate in office" of the board of trustees of the Soldiers' Home. Barton v. Alexander (Idaho) 1917D-729. (Annotated.) 23. "Otherwise" Meaning of Term. Under Ark. Sp. Laws 1911, p. 1026, pro- viding that, when any vacancy in the office of road overseer shall occur from any cause whatever or upon failure to elect by a tie vote or otherwise, the county court or judge thereof in vacation sha-i appoint an overseer for such district or to fill such vacancy, where a road over- seer elected to succeed himself died be- fore the commencement of his second term, the county judge, upon his failure to qualify for the second term, had power to appoint an overseer, since the phrase "or otherwise" should be given its broad- est and most comprehensive meaning, "in a different manner, ^n any other way," it being the intention of the legislature to authorize the county judge to appoint where there is no election or where the person elected for any reason fails to qualify. Townsley v. "Hartsfield (Ark.) 1916C-643. (Annotated.) 24. Ineligibility of Candidate Receiving Majority VDte Rights of Minority Candi- date. A minority vote for a qualified candidate does not entitle such candidate to the office, even though the candidate receiving the highest number of votes waa disqualified to hold the office and such fact was known to the voters at the time of the election. However, the failure of the qualified candidate to receive a plurality of the votes cast renders the election a nullity. Wall v. Jensen (N. D.) 1918B- 982 - (Annotated.) Note. Validity and construction of anti-nepo- tism law. 1917D-735. 4. QUALIFICATIONS AND ELIGI- BILITY. 25. Eligibility As of What Time Re- quired. Under the statute providing that, when a contestee is not eligible to the office to which he has been declared elected, etc., the question of a eontestor's eligibility was to be considered as of the time when, if elected, he entered upon the duties of the office. Neelley v. Farr (Colo.) 1918A-23. 26. Restriction to Voters Women. Under N. Car. Const, art. 6, 7, providing that every voter, except as in that article disqualified, shall be eligible to office, and section 8, providing that the classes of "persons" therein specified shall be dis- qualified for office, only a voter is quali- fied to hold office; the word "persons," in section 8, though comprehensive enough to include women, applies only to voters, as they are the only persons referred to in that article. State v. Knight (N. Car.) 1917D-517. 27. Inconsistent Offices Resignation not Legally Accepted. Under Pa. Act March 31, 1860 (P. L. 382), prohibiting any coun- cilman from being at the same time any other officer who shall receive a salary, a councilman is disqualified from holding the office of water superintendent of a borough, though he had resigned from the council, where he voted for the resolution accepting his resignation; such resolution being ineffective by reason of his illegal vote, and he being still a de jure member of the council. Commonwealth v. Rauden- bush (Pa.) 1917C-517. 28. Right of Woman to be Notary Pub- lie. As the position of notary public is an "office," the legislature cannot change its character by calling it a place of trust and profit, and N. Car. Pub. Laws 1915. c. 12, authorizing the appointment of women as notaries public, and providing that this position shall be deemed a place of trust and profit, and not an office, is invalid. State v. Knight (N. Car.) 1917D-517. (Annotated.) 29. Railroad Policemen Time for Qual- ifying. Const. 236. provides that the general assembly shall prescribe a time when the officers authorized by the consti- 696 DIGEST. 1916C 1918B. tution to be appointed stall enter upon their duties. Ky. St. 3755, provides that, if the official bond is not given and the oath of office taken within 30 days after notice of appointment, the office shall be considered vacant. Section 779a provides that railroads, on application to the gov- ernor, may have certain persons appointed to act as policemen on trains, who shall qualify by executing bond and taking the oath of office, and be paid by the railroad, which, when it no longer requires their services, may file notice to that effect. Held that, where a special railroad police- man appointed and commissioned in June, 1906, did not take the oath and execute bond until July, 1907, the date of his no- tice of his appointment should have been avowed to render evidence of his powers to act himself or by deputy admissible, and that there was a presumption that he did not execute the bond and take the oath within the prescribed 30 days after notice of his appointment, so that the office was vacant. Cincinnati etc. E. Co. v. Cundiff (Ky.) 1916C-513. Note. Bight of woman to be notary public. 1917D-534. 5. COMPENSATION AND EXPENSES, a. In General. 30. Right to Salary De Facto Officer. The salary and emoluments of a public of- fice attach to the office itself, and not to the office, except as he is an officer de jure. Jones v. Dusman (Pa.) 1916D-472. 31. Estoppel of Public Officer Receipt of Fees Under Statute. Where an officer collected fees under a statute, in force when he was elected and when he qualified, he could not dispute the validity of a pro- vision of the statute prescribing how the fees, when collected, should be disbursed. Greene County T. Lydy (Mo.) 1917C-274. (Annotated.) Notes. Estoppel of public officer to deny valid- ity of statute by accepting compensation thereunder. 1917C-284. Right to fee or allowance as between officer and deputy. 1918A-840. Neglect of duty as affecting right of public officer to salary. 1918B-435. b. Wrongful Exclusion from Office. 32. Right of De Jure Officer Salary Paid to De Facto Officer. Where a police- man is wrongfully dismissed from office, he may recover his salary from the city for the period of the wrongful ouster, less the amount otherwise earned by him in the exercise of due diligence during such period, though another has been employed in bis place and been paid the salary thereof. Cleveland v. Luttner (Ohio) 1917D-1134. (Annotated.) Note. Right of de jure officer to recover from State or municipality salary paid to de facto officer during latter's incumbency. 1917D-1137. c. Neglect of Duty. 33. Effect of Neglect of Duty. The right of a de jure officer to salary is not affected by the quantity of services ren- dered by him or even neglect to render them where such failure falls short of actual abandonment of the office. Bar- tholomew v. Springdale (Wash.) 1918B- 432. (Annotated.) 34. Effect on Right to Salary. The com- pensation of a public officer is a matter of statute, incidental to the office, and not of contract; nor does it depend on the amount or value of the services rendered. While such officer holds the office, his right to the salary is in no wise impaired by his absence from office or neglect of duty. Young v. Morris (Okla.) 1918B-450. (Annotated.) d. De Facto Officer. 35. Right of de Facto Officer to Compen- sation. A city's unqualified acceptance of services performed by one as officer estops it to invoke any rule of law to defeat pay- ment of his salary for such period. Thompson v. Denver (Colo.) 1918B-915. 6. DURATION OF TERM OF OFFICE. 36. An appointment of a policeman dur- ing good behavior under civil service reg- ulations violates the constitutional provi- sions that the legislature shall not create any office the tenure of which shall be longer than four years. Haney v. Cofran (Kan.) 1917B-660. 37. Policemen Tenure of Office. Under chapter 114 of the Kan. Laws of 1907. and amendments thereto, in cities governed by the commission form of government, the terms of police officers should be definitely fixed by city ordinance, and the terms of euch officers should expire with the term of office of the board appointing them. Haney v. Cofran (Kan.) 1917B-660. 38. Effect of Expiration of Term. Under Const. 93, providing that inferior and state officers may be appointed as pre- scribed by law for a term not more than four years and until their successors are appointed and qualified, the appointment of a special railway police officer under Ky. St. 779a, on application to the gov- ernor to serve during the railroad's pleas- ure, does not provide for a succession in euch office, go that, when the term expires either by operation of law or by the will of the railroad, the office ceases, and an- PUBLIC OFFICERS. 697 other appointee does not take it as suc- cessor. Cincinnati etc. E. Co. v. Cundiff (Ky.) 1916C-513. 39. Term of Office. Under Const. 93, providing that inferior and state officers may be appointed for a term not exceeding four years and until their successors are qualified, and Ky. St. 779a, providing for the appointment of railway police officers, to be paid by the railway and to hold of- fice during its pleasure, it was intended to create the office for the four-year-term permitted by the constitution, and the failure to fix the term as one not longer than four years does not make the statute unconstitutional. Cincinnati etc. R. Co. v. Cundiff (Ky.) 1916C-513. 40. The legislative plan for accomplish- ing the requirement mentioned in the last foregoing paragraph, as embodied in c. 5, Stats., undisturbed by c. 328, Wis. -Laws of 1911, inserted in said chapter at sec. 86, does not admit of any change which would, or might probably prevent such ac- complishment. State v. Board of State Canvassers (Wis.) 1916D-159. 41. Commencement of Term. Under sec. 1, art. 13, of the constitution, the political year of the state commences on the first Monday of January of such year and all constitutional officers elected at the November election in any year are re- quired to be circumstanced to take- up their respective offices at such time. State v. Board of State Canvassers (Wis.) 1916D-159. 7. TERMINATION OF TEEM, a. In General. 42. Vacancy Death Before Commence- ment of Term. Where an officer elected to succeed himself dies before the com- mencement of his second term, a vacancy is thereby created for the first term, but not in the second term, and one duly ap- pointed and qualified to fill the vacancy in the first term holds during the un- expired term of the deceased officer and until his successor has been elected or ap- pointed and qualified as provided by law. Townsley v. Hartsfield (Ark.) 1916C-J13. 43. Neglect of Duty Effect as Creating Vacancy. The law of this state requires that the incumbent of a public office shall devote his personal attention to the duties of the office to which he is elected or ap- pointed (article 2, 11, Okla. Const.)', but does not contemplate that such officer shall lose his title to office because he may be absent for a short period of time, for any reason, and does not, during such period of time, personally give all his time and attention to the duties of his office. While such failure of duty may furnish grounds of removal, it does not ipso facto create a vacancy. Young v. Morris (Okla.) 191SB-450. b. Removal. (1) In General. 44. Right to Bring Proceeding. The statute (Comp. Laws N. Dak. 1913, 1048) authorizing certain persons to bring, a pro- ceeding to "contest the right of any per- son declared duly elected to any office" applies to a proceeding to deprive a per- son of office for violation of the corrupt practice act. Diehl v. Totten (N. Dak.) 1918A-884. (2) Jurisdiction or Authority to Remove. 45. Officer Subject to Removal Munici- pal Officer. Though a mayor of a munici- pality be a civil officer within Const, art. 5, 5, he may, under Tenn. Pub. Acts 1015, c. 11, be ousted for misconduct in office. State v. Howse (Tenn.) 1917C-1125. (3) Grounds. 46. Failure to Enforce Law Fraud on Municipality. Defendant mayor, after be- ing elected on a law enforcement plat- form in which he announced that he could and would enforce all criminal laws, al- lowed saloons and disorderly houses to mn in open violation of state law. He also participated in a plan to evade the char- tei whereby a market house costing many thousand dollars was paid for by separate vouchers as if the work was less than $500, so that bids were rendered unneces- sary. Such market house was adjacent to the place of business of the mayor's firm, and it appeared that the mayor and others reaped benefits therefrom. The mayor also allowed subordinates to sign his name to vouchers, and the practice led to the commission of gross frauds on the treas- ury. It is held that the mayor was guilty of misconduct in office warranting his ouster under Tenn. Pub. Acts 1915, c. 11. State v. Howse (Tenn.) 1917C-1125. 47. Removal Intoxication. Where an officer of the kinds enumerated in Ala. Const. 1901, 173, 175, relating to im- peachments, is an habitual drinker, he is subject to removal under the provision of section 173 that "intemperance in the use of intoxicating liquors or narcotics to such an extent, in view of the dignity of the office and importance of its duties, as unfits the officer for the discharge of such duties," shall authorize his removal from office. State v. Pratt (Ala.) 1917D-990. (Annotated.) 48. "Intemperance," as the term is used in Const. Ala. 1901, 173, providing that such intemperance in the use of intoxicat- ing liquors or narcotics, in view of the dignity of the office and importance of its duties, as unfits the officer for the dis- charge of such duties, shall be ground for his removal from office, means such im- moderate use of intoxicants or narcotics, in view of the dignity of the office and 698 DIGEST. 1916C 1918B. of the nature and importance of its duties, as unfits the officer for the discharge of such duties, and hence must vary with the grade of the office and nature and im- portance of its duties. State v. Pratt (Ala.) 1917D-990. (Annotated.) 49. Proof that a judge of probate has been for many years during his incum- bency of the office an almost constant alcoholic drinker, that such indulgence has injuriously affected his mental and moral faculties and normal sensibilities, that his personal conduct evidences a well-nigh reckless disregard of or indifference to his own welfare and the dignity of his position, authorizes his removal from office under Const. Ala. 1901, 173. State v.. Pratt (Ala.) 1917D-990. (Annotated.) (4) Proceedings. 50. Order for Removal Directing Elec- tion of Successor. In a proceeding to oust a mayor from office, the court cannot de- cree that the board of commissioners pro- ceed to the election of a successor; that being a matter unnecessary for determina- tion. State v. Howse (Tenn.) 1917C- 1125. 51. Eemoval Hearing Right to Ap- point Committee. Where charges are filed before a city council against relator to remove him from the position of milk sample collector for cause, the fact that a joint committee is appointed to take the evidence and report findings to the council does not deprive him of a trial before council as a whole; if it meets in joint session after the report and findings of the committee are filed, and gives relator an opportunity for a hearing before it, of which he neglects to avail himself, prior to the adoption of a resolution finding him gnilty of the charges in accordance with the findings, and ordering his removal. Chace v. City Council (E. I.) 1916C-12". (Annotated.) 52. Proof of Misconduct Oral Testi- mony. While Shannon's Tenn. Code, 6272, declares that in chancery suits testimony shall be taken in writing, oral testimony may. in a proceeding to oust an unfaithful officer under Pub. Acts 1915, c. 11, declaring that proceedings shall be summary, be received, though the act declared that the ordinary chancery prac- tice should be followed. State v. Howse (Tenn.) 1917C-1125. 53. While Tenn. Pub. Acts 1913, c. 11, providing for the ouster of public officers, declares that the suits shall be triable as equitable actions conducted in accordance with procedure of courts of chancery, the defendant officers are not entitled to jury trial because in ordinary chancery cases material issues of fact may be submitted to a jury as a matter of right; the statutes declaring that the proceeding should be summary. State v. Howse (Tenn.) 1917C- 1125. 54. Right to Jury Trial. Const. 1S70, art. 1, 6, declares that the right of trial by jury shall remain inviolate. Toun. Pub. Acts 1915, c. 11, providing for the ouster of unfaithful municipal officers, de- clares that the proceeding shall be sum- mary. It is held, in view of long-estab- lished construction, that the guaranty of jury trial did not preclude summary pro- ceedings which are forms of trial in which the established course of legal proceeding is disregarded especially in the matter of trial by jury, and the legislature might validly provide that ouster proceeding? should be summary, and so an officer against whom such proceedings were had is not entitled to jury trial. State v. Howse (Tenn.) 1917C-1125. 55. Acts During Previous Term of Office. In a proceeding under Tenn. Pub. Acts 1915, c. 11, to oust a municipal officer f*r misconduct in office, evidence of his acts of malfeasance committed in a term pre- vious to the pending term is admissible, particularly where on his first election he promised to enforce the laws, while on the latter he was supported by the ele- ment not desiring law enforcement. State v. Howse (Tenn.) 1917C-1125. 56. Evidence Acts Prior to Statute. In a proceeding to oust a municipal officer brought under Tenn. Pub. Acts 1915, c. 11, evidence of acts of malfeasance done dur- ing the officer's term, but before passage of the act, is admissible; the act making nothing illegal which was not illegal be- fore. State v. Howse (Tenn.) 1917C-1125. 57. Proceedings Against Several Right to Severance. In a proceeding to oust more than one municipal officer the ques- tion of severance rests in the discretion of the trial court. State v. Howse (Tenn.) 1917C-1125. 8. DE FACTO OFFICERS. 58. The railroad, which has obtained the officer's appointment, has no right to re- gard him as a de facto officer, since it is incumbent upon it to see or know that he has qualified to act as an officer de jure before he is given employment on its trains. Cincinnati, etc. R. Co. v. Cundiff (Ky.) 1916C-513. 59. Status as De Facto Officer. A special railway police officer whose office has be- come vacant for failure to take the oath and execute his bond within the time pre- scribed by the constitution is not a "de facto officer." Cincinnati, etc. R. Co. v. Cundiff (Ky.) 1916C-513. 60. Responsibility of Railroad for Acts. In view of Ky. St. 3755, providing that, if an official bond is not given and the oath of office taken within 30 days after PUBLIC OFFICERS. 699 notice of appointment to a public office, it shall be considered vacant, a railroad employing a special police officer is not in the position of a third person who may claim that the acts of a de facto officer are valid as to him, but is responsible for his claim of right, so that for his acts thereunder it is liable. Cincinnati, etc. E. Co. v. Cundiff (Ky.) 1916C-513. Note. Eight of de jure officer to recover sal- ary from de facto officer during latter's incumbency. 1916D-474. 9. CIVIL LIABILITY GENEEALLY. 61. A bank commissioner, in the exer- cise of discretionary duties, is not respon- sible to any one receiving an injury through a breach of his official duty, unless he acts maliciously and wilfully wrong or clearly abuses his discretion to the extent of acting unfaithfully and in bad faith. State v. American Surety Co. (Idaho) 1916E-209. (Annotated.) 62. State Banking Board Personal Lia- bility of Members. Where such board takes such an action and is justified by the facts in doing so, the motives of its members are immaterial, since no liability can be based upon the performance of a clear and positive public and official duty. Youmans v. Hanna (N. Dak.) 1917E-263. 63. Liability Payment Under Invalid Law. The state auditor of public ac- counts and the state treasurer cannot be compelled to account for and restore moneys paid out, before the institution of a taxpayer's suit, pursuant to appropria- tions made by the general assembly, since their duties in issuing and paying war- rants are purely ministerial, and neither is required to decide the validity of a law apparently enacted for a governmental purpose. Fergus v. Brady (111.) 191SB- 220. 64. Payment for Purpose not Govern- mental. A public officer having only min- isterial duties may be held personally lia- ble for the payment of an appropriation for a purpose which is not governmental in its nature. Fergus v. Brady (HI.) 1918B-220. 65. Tax Sale Under Void Statute. An officer, who sells property for taxes acting under a void statute, is not liable to the purchaser of such property at the tax pale, since the rule of caveat emptor applies. Fields v. Altman (Ala.) 1918B-189. (Annotated.) 66. Recovery by De Jure from De Facto Officer. Thorfgh a de facto officer may re- tain the salary of the office as against all the world, including the municipality pay- ing it, except the de jure officer, the latter may recover from the former fees col- lected by him while he occupied the office to which the latter was entitled. Jones v. Dusman (Pa.) 1916D-472. (Annotated.) Notes. _ Personal liability of public officer for in- juries caused by defective condition of street or highway. 1917D-939. Personal liability of officer for sale of property for taxes under void statute. 1918B-190. 10. OFFICIAL BONDS, a. In General. 67. State Fund for Bonding Validity. Chapter 62, Laws N. Dak. 1915, is not vio- lative of section 11 of the state constitu- tion, which requires that all laws of a general nature shall have a uniform opera- tion. State v. Taylor (N, Dak.) 1918A- 583. (Annotated.) 68. Said chapter 62 Laws N. Dak. 1915 does not contravene section 186 of the constitution, which provides that no money shall be paid out of the state treasury ex- cept upon an appropriation, by law, and on warrant drawn by the proper officers. State v. Taylor (N. Dak.) 1918A-583. (Annotated.) 69. Said chapter 62, Laws N. Dak. 1915, does not contravene sections 175, 176, or 179 of the state constitution relating to taxation and the expenditure of moneys raised by taxation. State v. Taylor (N. Dak.) 1918A-583. (Annotated.) 70. Said chapter 62 Laws N. Dak. 1915, does not require, taxes to be levied and collected for other than public purposes, or authorize the taking of private prop- erty for private use without compensation State v. Taylor (N. Dak.) 1918A-583. (Annotated.) 71. The establishment and operation of a fund for the bonding of municipal offi- cers and the collection of premiums from the various municipalities whose officers are bonded for the purpose of creating a fund to secure the payment of losses which may result bv reason of the nonfeasance, misfeasance, or defalcation of such public officers, is a valid exercise of the police power of the state. State v. Taylor (N. Dak.) 1918A-583. (Annotated.) 72. Chapter 62, Laws N. Dak. 1915, is not invalid on account of delegating legislative power to the commissioner of insurance and state auditing board. Statp v. Taylor (N. Dak.) 1918A-583. 73. Chapter 62 of the Laws of N. Dak. 1915, establishing a state bonding fund for the purpose of furnishing official bonds for county, city, village, school district, and township officers is not unconstitu- tional, as conferring judicial powers on the state examiner and commissioner of insurance. State v. Taylor (N. Dak.) 1918A-583. (Annotated.) 74. Said chapter 62 Laws N". Dak. 1915, does not violate any express or implied constitutional guaranty of the right of 700 DIGEST. 1916C 1918B. local self-government. State v. Taylor PUBLIC RECORDS. (Annotated.) gee Eecords . (N. Dak.) 1918A-533. Note. Validity of statute establishing fund for bonding of public officers. 1918A-603. b. Actions on Official Bonds. 75. Action on Bond of Examiner Condi- tions Precedent. In an action by an in- jured party against the surety on the bond of the bank commissioner executed under section 191, Idaho Rev. Codes, for failure of said commissioner to faithfully perform his duty, it is not necessary to first pro- ceed and have the damages of the injured party adjudged against the commissioner. State v. American Surety Co. (Idaho) 1916E-209. PUBLIC PARKS. See Parks and Public Squares. PUBLIC POLICY. See Assignments, 18. Solicited contract with client, see Attor- neys, 22. Division of fee with layman, see Attor- neys, 23. Formulation of public policy, see Constitu- tional Law, 10. Agreements contrary to, see Contracts, 33- 40. Covenant void as against, see Deeds, 31. Policy on bawdy house, validity, see Fire Insurance, 1. Prohibition in cities of first class, see In- toxicating Liquors, 4. Surrender by monk of property rights, see Religious Societies, 3. 1. Where a public right is to be dis- posed of by government officers or agents, public policy forbids that one competing applicant shall contract for the extinguish- ment of another's competition, and invali- dates all contracts made for that purpose. Kuhn v. Buhl (Pa.) 1917D-415. 2. The legislature having, by Ala. Code 1907, 3867, providing that property al- ready devoted to public use shall not be taken for a different character of use unless there is an actual necessity there- for, declared the public policy of the state regarding the condemnation of land al- ready devoted to public use, courts cannot, in determining the right of a telegraph company to condemn an easement along a railroad right of way. be influenced by consideration of the public interest. Louis- ville, etc. R. Co. v. Western Union Tel. Co. (Ala.) 1917B-696. 3. The public welfare is safeguarded not only by constitutions, statutes and judicial decisions, but by sound and substantial public policies underlying all of them. Pittsburgh, etc. R. Co. v. Kinney (Ohio) 1918B-286. PUBLIC SERVICE. Meaning, see Taxation, 2. PUBLIC SERVICE COMMISSIONS. Meaning, see Taxation, 2. Fixing rates of carriers, see Carriers, 4-14. Regulation of electric companies, see Electricity, 1, 25-31. Delegation of power to, see Eminent Do- main, 57. Proceedings for condemnation before, see Eminent Domain, 121-130. Regulation of gas, see Gas and Gas Com- panies, 5-7. Control of commission, see Telegraphs and Telephones, 17-21. 1. The object of the act creating the public utilities commission is to bring under the public control for the common good property applied to a puElic use, in which the public has an interest, and the owner of such property must submit to such control to the extent of the public in- terest so long as the public use is main- tained. State Public Utilities Com. v. Bethany Mut. Tel. Assoc. (111.) 1917B-495. (Annotated.) 2. While it is not essential to a public use that its benefits should be received by the whole public, or within a large part of it, they must not be confined to specified privileged persons, but must be extended to all persons in. common upon the same terms, it being immaterial how few avail themselves of the rights so extended. State Public Utilities Com. v. Bethanv Mut. Tel. Assoc. (111.) 1917B-495. (Annotated.) 3. "Public utility," aside from its statu- tory definition, implies a public use, carry- in? with it the duty to serve the public and treat all persons alike without dis- crimination, and it precludes the idea of service which is private in its nature, whether for the benefit and advantage of a few or of many. State Public Utilities Com. v. Bethany Mut. Tel. Assoc. (111.) 1917B-495. (Annotated.) 4. The words "public use" mean of or belonging to the people at large, open to all the people to the extent that its capacity mav admit of the public use. State Pub- lic Utilities Com. v. Bethany Mut. Tel. Assoc. (111.) 1917B-495. (Annotated.) 5. Reasonableness of Order Judicial Review. The question whether an order of the state railroad and warehouse com- mission is reasonable is a judicial question. State v. Great Northern R. Co. (Minn.) 1917B-1201. 6. Under Minn, statute the district court on appeal from an order of the com- PUBLIC SERVICE COMMISSIONS. mission does not put himself in the place of the commission and substitute its find- ings for- those of the commission, nor does it set aside such an order on its own con- ception of its wisdom. The court reviews the order only so far as to determine whether or not it is unlawful and unrea- sonable. State v. Great Northern R. Co. (Minn.) 1917B-1201, 7. Review of Public Service Commission. In the consideration of a petition in error filed in this court to reverse, vacate or modify an order of the public utilities commission on the ground that it is un- lawful or unreasonable, the court will ex- amine the entire record to determine whether a finding of facts made by the commission is so involved with and de- pendent on questions of law as to be in effect a decision of the latter. Hocking Valley R. Co. v. Public Utilities Commis- sion (Ohio) 1917B-1154. 8. The 111. Public Utilities Act is not void because the right to a supersedeas on appeal from an order of the commission is restricted, for while the constitution preserves the right of an appeal or writ of error in all civil cases, the right to have the same made a supersedeas is not guar- anteed. State Public Utilities Com. v. Chicago, etc. R. Co. (111.) 1917C-50. (Annotated.) 9. The 111. Public Utilities Act, declar- ing that the findings and conclusions of the commission on questions of fact shall be taken as prima facie true on appeal, arid that no rule, regulation, or order of the commission shall be set aside, unless it appears that the findings of the commis- sion were against the weight of the evi- dence, does not invalidate the act on the theory that it deprives public utilities of their property without due process of law; only a rebuttable presumption being cre- ated. State Public Utilities Com. v. Chi- cago etc. R. Co. (111.) 1917C-50. (Annotated.) 10. In reviewing on certiorari an order of a public service commission for the ex- tension of gas mains, the court has no power to pass on the wisdom or expediency of the order or of the weight of the evi- dence on which it is based but can annul it only if it is an unlawful, arbitrary or capricious exercise of power. People v. McCall (N. Y.) 1916E-1042. 11. Review of Findings. The findings of the public service commission, having the force and effect of reports of special masters in courts of equity, are conclusive in the supreme court on appeal. Western Union Tel. Co. v. Burlington Traction Co. (Vt.) 1918B-841. 12. Judicial Power After Condemnation by Commission. The courts will enforce and protect the rights of the landowner and of the public service corporation con- demning land for placing lighting wires, etc., under Acts Vt. 1908, No. 116, 13, after the public service commission has found in favor of condemnor and awarded compensation. George v. Consolidated Lighting Co. (Vt.) 1916C-416. 13. Vt. Acts 1908, No. 116, 13, pro- viding that if a public service corporation, such as a lighting company, cannot agree with the landowner as to the necessity of taking and for public purposes or as to compensation, it may petition the public service commission, which shall, upon no- tice, determine the questions of the neces- sity and compensation and render judg- ment, is applicable in proceedings by a lighting company, the charter of which as amended by Acts 1902, No. 202, 3, pro- vided a constitutional method for the ex- ercise of the power of eminent domain granted thereby. George v. Consolidated Lighting Co. (Vt.) 1916C-416. (Annotated.) 14. Judicial Review of Order of Commis- sion Power of Court of Equity. A court of chancery, not acting as an appellate tribunal, will not interfere with the pro- ceedings and determinations of inferior boards or tribunals ot special jurisdiction, while acting within their powers or exer- cising a discretion conferred upon them by the legislature, except in special cases presenting some acknowledged and well- defined ground of equity jurisdiction. Sayers v. Montpelier etc. R. Co. (Vt.) 1918B-1050. 15. The primary interference of the courts with the administrative functions of a public service commission, being in- compatible with the proper exercise of governmental powers, although such com- missions are exercising special and limited powers, as to which nothing will be pre- sumed in favor of their jurisdiction, within the proper limits of the authority conferred upon them by the legislature, their jurisdiction is exclusive, and can be reviewed only in the manner provided by the statute. Sayers v. Montpelier, etc. R. Co. (Vt.) 1918B-1050. 16. The courts have power to prevent an abuse of discretion by a public service commission, and to require that its powers be exercised according to law and in a manner not to injure property rights un- justly. Sayers v. Montpelier, etc. R. Co. (Vt.) 1918B-1050. 17. Whether the orders of a public ser- vice commission deprive a party of a statutory ri 8ee Master and S**" 20 - CdS ' 3 RIDICULE AND CONTEMPT. RESULTING TRUSTS. Holding up to as libelous, see Libel and See Trusts and Trustees, 13-21. Slander, 26, 27. RETAINING LIEN. ^ GHT ^IKS AND DISTRIBUTEES. Of attorneys, see Attorneys, 36, 37. Meaning, see Wills, 190. 734 RIGHT OF APPEAL. See Appeal and Error, 1-7. EIGHT OF TRIAL BY JURY. Not denied by granting new trial on single issue, see New Trial, 11. RIGHTS OF WAY. See Easements, 3, 13-18; Railroads, 58-60. RIGHT TO OPEN AND CLOSE. See Argument and Conduct of Counsel, 1, 3. DIGEST. 1916C 1918B. See Mobs. RIOTS. RIPARIAN RIGHTS. See Waters and Watercourses, 4-26. RIVERS. See Waters and Watercourses. ROBBERY. 1. Elements of Offense. 2. Persons Liable. 3. Instructions. 4. Evidence. 1. ELEMENTS OF OFFENSE. 1. Assault With Intent to Rob Ele- ments of Offense. As used in the statute regarding assault with intent to rob, mak- ing malice aforethought an element of the crime, "malice aforethought" is the volun- tary and intentional doing of an unlawful act, with the purpose, means, and ability to accomplish the reasonable and probable consequence of it, done in a manner show- ing a heart regardless of social duty and fatally bent on mischief, by one of sound mind and discretion, the evidence of which is inferred from acts committed or words spoken. Gordon v. State (Ark.) 1918A- 419. (Annotated.) 2. What Constitutes Rottbery Force Re- quisite. To constitute the offense of rob- bery, the law does not require that one be beaten up before he submits. It is suffi- cient that he yields because of fear of the robber, and no one is required to resist to the uttermost. Gordon v. State (Ark.) 1918A-419. Note. Attempt to commit robbery or assault with intent to commit robbery. 1918A- 406. 2. PERSONS LIABLE. 3. Where one in an assault with intent to rob is surprised in the offense and flees, and, being overtaken, assaults his pursuer, such assault will not support the charge BO as to make one charged with aiding and abetting in the crime guilty. State v. Lewis (Iowa) 1918A-403. (Annotated.) 3.- INSTRUCTIONS. 4. Force or Intimidation. An instruc- tion in a prosecution for assault with in- tent to rob which omits to charge, that in order to make out the offense, force or in- timidation must be shown to have been employed, is erroneous, and will not sus- tain a conviction of one charged with aid- ing and abetting in the crime. State v. Lewis (Iowa) 1918A-403. (Annotated.) 4. EVIDENCE. 5. The evidence is held to show the exer- cise of sufficient force to support, not only the charge of assault to rob, but a charge of robbery. Gordon v. State (Ark.) 1918A-419. (Annotated.) 6. Assault With Intent to Commit Evi- dence Sufficiency. The evidence in a prosecution for assault with intent to rob is held sufficient to show intent to commit larceny, which is an included offense, so that one charged with aiding and abetting in the crime would be guilty if there was also an assault. State v. Lewis (Iowa) 1918A-403. (Annotated.) 7. Evidence that one entered an hotel with the intention of stealing the propriet- or's money, that he was armed with a slung-shot and revolver, and that he ap- proached the proprietor with the purpose of getting the money, is held to present a question for the jury as to whether his acts constituted an assault so as to make one charged with aiding and abetting in the crime guilty, although there was other evidence to show that accused did not in- tend to use his weapons except to scare the victim. State r. Lewis (Iowa) 1918A- 403. (Annotated.) See Patents. ROYALTIES. RULE AGAINST PERPETUITIES. See Perpetuities. RULES. Validity and enforcement, see Carriers of Passengers, 16, 47-50, 52. Patient's agreement to obey no defense to false imprisonment, see Hospitals and Asylums, 6. Promulgation of, see Master and Servant, 22, 23. Eight to promulgate, see Telegraphs and Telephones, 22, 23. Of water company, see Waterworks and Water Companies, 8, 9. RULES OF CONSTRUCTION SALES. 735 RULES OF CONSTRUCTION. 'See Statutes, 47. SABBATH. See Sundays and Holidays. SAFE APPLIANCES. Duty toward passengers, see Carriers of Passengers, 41. SAFE PLACE TO WORK. See Master and Servant, 9, 10. SAFE PREMISES. Duty toward passengers, see Carriers of Passengers, 42-46. SALARY. Bemedy for wrongful discharge, see As- suinpsit, 1. Asset of bankrupt, see Bankruptcy, 3. Division of. see Bribery, 1. Of judges, see Judges, 3-8. Payment after illegal appointment, see Public Officers, 18. De facto officer, see Public Officers, 30, 35. Eight of de jure officer salary paid to de facto officer, see Public Officers, 32. Effect of neglect, see Public Officers, 32- 34, 43. School teachers, see Schools, 31. SALES. 1. Formation of Contract, 735. 2. Construction of Contract, 735. 3. Delivery of Goods, 736. 4. Acceptance, 736. 5. When Title Passes, 736. 6. Warranties, 736. a. In General, 736. b. Remedy for Breach, 738. 7. Rights of Vendor, 739. a. Eight to Rescind, 739. b. Lien, 739. c. Stoppage in Transitu, 740. d. Actions, 740. (1) Pleading, 740. (2) Evidence, 740. (3) Questions of Law or Fact, 741. 8. Eights of Vendee, 741. 9. Conditional Sales, 741. a. In General, 741. b. Eemedies of Vendor, 741. c. Eemedies oT Vendee, 742. 10. Bulk Sales Law, 742. a. Validity, 742. b. Construction, 742. c. Actions, 742. See Frauds, Statute of, 3-9 ; Judicial Sales. Title to automobile fittings, see Accession, 1. Auction sales, see Auctions and Auction- eers, 4, 5. Sales in bankruptcy, see Bankruptcy, 23. Intoxicants, see Conflict of Laws, 1-3. Apportionment of proceeds of mass sale, see Confusion, 3. Of corporate officers, see Corporations, 54, 55. Sales of growing crop, see Crops, 2. Of executors and administrators, see Exe- cutors and Administrators, 32-46. Sale of lease of pond, fish not included, see Fish and Game, 2. Guardian's sale of ward's personalty, ee Guardian and Ward, 14. Control by vendor of resale price, see Mon- opolies, 9. Agreement to abstain on sale of business, see Monopolies, 13, 14. Restriction by vendor patentee of use of article by vendee, see Patents, 1. Receiver's sales, see Receivers, 12. Warranty in sale of ship, see Ships and Shipping, 4, 5. Trustee's sales, see Trusts and Trustees, 23-25. Liability of warehouseman to vendor after sale, see Warehouses, 2. 1. FORMATION OF CONTRACT. 1. Parties to Transaction. There is not a sale by T. to G., where G. ordered lumber of F., and F. ordered it of T., and T. de- livered it to G., and primarily billed it to F., and wrote G. to protect it, though after F. ordered it of T., G. promised T. to see that it got its money. First Na- tional Bank v. G. Geske & Co. (Wash.) 1917B-564. 2. Offer and Acceptance Acceptance of Offer Once Rejected. Where a tentative contract to buy accessories and act as the seller's agent in a certain territory was rejected by the seller and a new contract sent to the buyer, which he rejected, the seller cannot sue on the original tentative contract, as an express contract, for the price of accessories shipped to the buyer but not accepted by him. Cook v. Story (Wash.) 1917C-985. (Annotated.) 2. CONSTRUCTION OF CONTRACT. 3. Good Will Implied Transfer. As an incident of the good will, the agreement of the seller with the buyer of a business and its good will not to become a competitor passes, without formal written assignment, to one to whom the buyer sells the business and good will, which latter, without men- tion, passes with the sale of the business. Public Opinion Pub. Co. v. Ransom (S. Dak.) 1917A-1010. (Annotated.) 4. "Market Price" Selling Price Fixed by Combination. As "market price" has no hard and fast meaning, and, when the market is not open, but the selling price is fixed by a combination of dealers, mar- ket price is market value or quoted price of the dealer, where plaintiff contractor purchased cement at a stated price per 736 barrel under an agreement that he was to have a reduction or rebate if the mar- ket price fell below that named while de- liveries were biing made to him, and later the defendant quoted a lower price to the county for county roads for the advan- tage of contractors generally, the quota- tion to the county, without limitation as to quantity for the benefit of those engaged in the same kind of work as plaintiff, is a reduction in market price which entitles plaintiff to a rebate. McGarry T. Superior Portland Cement Co. (Wash.) 1918A-572. (Annotated.) Notes. DIGEST. 1916C 1918B. not be maintained, nor can the freight charges incurred after notice of cancella- tion be recovered. Hart-Parr Co. v. Fin- ley (N. Dak.) 1917E-706. 10. Title Acquired. Otherwise than by estoppel, a buyer of personal property ac- quires no better title than that of the seller from whom he buys. Howard v. Mc- Phail (R. I.) 1917A-186. 11. Delivery to Carrier. The ownership of sand sold to the defendant f. o. b. its station does not pass until its delivery. Central of Ga. E. Co. v. Southern Ferro Concrete Co. (Ala.) 1916E-376. Selling price fixed by combination or monopoly as "market price." 1918A-575. Sale of business as passing good will without mention thereof. 1917A-1015. 3. DELIVERY OF GOODS. 5. Necessity of Acceptance. To consti- tute a valid delivery on sale of personal property, there must be an acceptance of it by the purchaser or his agent. Con- structive delivery may be an exception. Hart-Parr Co. v. Finley (N. Dak.) 1917E- 706. 4. ACCEPTANCE. 6. Effect of Rejection of Offer Goods Ordered on Basis of Offer. Where the buyer ordered accessories on faith of a tentative contract made by him with the seller's agent and repudiated by the 'seller, and a new contract sent, which the buyer rejected, he is under no obligation to accept the accessories ordered. Cook v. Story (Wash.) 1917C-985. Note. Acceptance of offer once rejected as con- summating contract of sale. 1917C 987. 5. WHEN TITLE PASSES. 7. In the face of a refusal to receive delivery and the property in performance of a contract of purchase and sale, the purchaser standing on a repudiation of it declared while the contract was wholly executory, with repudiation not subse- quently waived or withdrawn, title cannot be cast upon the purchaser by operation of law. Hart-Parr Co. v. Finley (N. Dak.) 1917E-706. 8. Unless the contract stipulates the con- trary, delivery and acceptance of prop- erty and vesting of title thereunder and payment of the purchase price therefor are concurrent acts, and, until delivery and acceptance title does not vest, and the purchase price payable only on the vesting of title is not recoverable in a suit for th purchase price. Hart-Parr Co. v. Fin- ley (N. Dak.) 1917E-706. 9. The attempted delivery did not vest title, and suit for the purchase price can- 6. WARRANTIES, a. In General. 12. Consideration for Warranty. A war- ranty that there are no undisclosed lia- bilities against a company given by a part of the owners of its stock, whereby one having an executory contract of purchase thereof is induced to proceed to a con- summation of it when not legally bound to do so has consideration. Pacific Power, etc. Co. v. White (Wash.) 1918B-125. 13. Duration When Contract Executed. A contract of September 8th in terms: Articles of agreement between named per- sons witnesseth that the parties of the first part have bargained and agreed to sell and do hereby sell to the party of the second part all the stock of a certain company for $25,000, of which $1,000 is to be paid at once, and balance on or before September 17th, and on receipt of stock, and the parties of the first part agree and warrant that the company's liabilities did not on September 1st exceed $11,500, after allowing for claims then due it, and it' they do exceed it, the excess shall be de- ducted from the purchase price, and the parties of the first part will on or before September 13th furnish a statement of the liabilities, and then the party of the second part shall have privilege "of verify- ing it by books, accounts, and other papers and records of the company, so that, if possible, it may be done by September 17th is not, when an audit was furnished, an executed contract passing title, but still an executory contract, as regards consid- eration for the warranty of September 19th, that the liabilities did not exceed the amount shown by the audit, which before proceeding further with the consummation of the purchase the party of the second part required certain of the parties of the first part to execute; the party of the second part not being required to con- summate the purchase till protected in some satisfactory way against any undis- closed liabilities of the company. Pacific Power, etc. Co. v. White (Wash.) 191SB- 125. 14. Construction of Warranty Meaning of "Liabilities." "Liabilities" of a cor- SALES. 737 poratioTi, warranted in a contract of sale of its stock and in a separate warranty not to exceed a certain amount, are not limited to contractual liabilities, but in- clude those for torts. Pacific Power, etc. Co. v. White (Wash.) 1918B-125. 15. Duration Continuing Warranty. A warranty on which sale of the stock of a corporation is made against its liabilities, undisclosed or contingent or otherwise, ex- ceeding a certain amount, is continuing. Pacific Power, etc. Co. v. White (Wash.) 1918B-125. 16. Distinction Between Warranty and Guaranty. A contract inducing consum- mation of purchase of the stock of a cor- poration, whereby part of the sellers war- rant that the corporation's liabilities do not exceed a certain amount, is one of warranty, and not of guaranty, being an absolute undertaking in praesenti, as well a? in future. Pacific Power, etc. Co. v. White (Wash.) 1918B-125. 17. Seed Warranty of Germinating Power Evidence of Breach. In an action for their price, evidence by defendant that seeds received in January would not grow when planted in good soil about April, with evidence that they were not prop- erly kept after receipt, and that plaintiff had properly tested them before sending, is held not sufficient to support a verdict for counterclaim for breach of warranty of the seeds as capable of germinating. Meehan v. Ingalls (Wash.) 1918B-71. (Annotated.) 18. Waiver of Warranty not Shown, Plaintiff purchased brick from defendant under a warranty that tliey should be first- class white brick equal to sample. The brick furnished were of different color, and on being rejected for this reason, de- fendant's general manager informed plain- tiff that the reason the brick were not of the color shown by the sample was be- cause they were wet, but that they would regain their natural white color when dry, whereupon the plaintiff used them, but found that they did not become white after being dry. It is held that plaintiff's acceptance of the brick was conditional only, and did not amount to a waiver of the warranty. Jorgensen v. Gessell Pressed Brick Co. (Utah) 1917C-309. (Annotated.) 19. Good Will Implied Warranty on Sale. It is held that the good will of a business is a spacies of property subject to sale, but the vendor who sells the good will of his business guarantees nothing; for, in the nature of things, he can give no assurance that the patronage of the place will continue. Harshbarger v. Eby (Idaho) 1917C-753. 20. Sale by Simple. A contract of sale of jar caps which binds the seller to ship the goods on conditions specified, one of 47 which is that the caps will fit any Mason jar, and another that no promise is valid unless specified on the order, and another that no salesman can alter the conditions printed on the contract, is not a contract of sale by sample, though a sample was exhibited during negotiations, but is a contract containing a warranty that the caps will fit any Mason jar. Pickrell, etc. Co. v. Wilson Wholesale Co. (N. Car.) 1917C-344. (Annotated.) 21. It is not assumed that every sale where a sample is shown is a sale by sam- ple, but to be a sale by sample there must be an understanding of the parties, express or implied, that the sale is by sample. Pickrell, etc. Co. v. Wilson Wholesale Co. (N. Car.) 1917C-344. (Annotated.) 22. Where a sale is by sample, the law implies that the bulk shall correspond in kind and quality with the sample. Pick- rell, etc. Co. v. Wilson Wholesale Co. (N. Car.) 1917C-344. (Annotated.) 23. Where defendant furnishes a sam- ple brick to plaintiff, and assures him that the brick to be delivered under the contract will be first-class, wire-cut, white brick, in quality and color like the sample, such representation is not mere descrip- tion, but constitutes an express warranty. Jorgensen v. Gessell Pressed Brick Co. (Utah) 1917C-309. (Annotated.) 24. Where a sale of brick is made by a manufacturer according to sample and without any conditions, there is an im- plied warranty that the brick to be fur- nished shall be like and equal to the sam- ple. Jorgensen v. Gessell Pressed Brick Co. (Utah) 1W7C-309. (Annotated.) 25. The existence of an express war- ranty that brick to be furnished under a contract of sale shall be first-class, wire- cut, white brick corresponding to a sample does not negative an implied warranty that the brick to be furnished shall be, in all respects of quality, fitness, and colors like the sample. Jorgensen v. Gessell Pressed Brick Co. (Utah) 1917C-309. (Annotated.) 26. The question whether a sale of cot- ton by cutting and sample and an exam- ination of its external condition created an express or implied warranty as to its real condition, is held to present a proposition of law. Greenwood Cotton Mill v. Tol- bert (S. Car.) 1917C-33S. (Annotated.) 27. The law implies a warranty of sound- ness of cotton wli8n purchased by sample, where the defect is either patent or is not known to the seller, regardless of fraud or false statement or anything to mislead the buyer to accept it. Greenwood Cot- ton Mill v. Tolbert (S. Car.) 1917C-338. (Annotated.) 28. When the law implies a warranty as to the soundness of a commodity, in 738 DIGEST. 1916C 1918B. the absence of an agreement, it cannot be defeated by the action of the seller and the fact that the defect is latent or un- known to the seller, or that he was not negligent in not ascertaining it will not relieve him from liability. Greenwood Cotton Mill T. Tolbert (S. Car.) 1917C- 338. (Annotated.) 29. Waiver of Warranty Failure to Give Notice of Defect. The buyer's fail- ure to give notice of the unsoundness of the goods bought to the seller within a reasonable time after discovering it may be considered in determining whether he waived his right to insist upon the breach of warranty. Greenwood Cotton Mill v. Tolbert (S. Car.) 1917C-338. 30. Implied Warranty as to Color. Where a seller of bricks for a wall to be built by the buyer knows that both sides of the wall should be faced and of uni- form shade similar to a sample brick, which the architect accepted as of the re- quired color, and agrees to furnish bricks acccudingly, and the buyer thereupon gives an order for bricks, which is accepted, there is a sale with an implied warranty that the bricks shall correspond to the sample, within Mass. St. 1908, c. 237, 16. Gascoigne v. Cary Brick Co. (Mass.) 1917C-336. (Annotated.) 31. Waiver of Warranty Acceptance of Goods. Where a sale was made under an implied warranty that the goods delivered should conform to a sample, the accept- ance of title by the buyer does not, under Mass. St. 1908, c. 237, 49, release, as a matter of law, the seller of liability; but it is a question of fact whether the buyer waived the warranty and took the goods as he found them. Gascoigne v. Gary Brick Co. (Mass.) 1917C-336. 32. Implied Warranty Fitness for Pur- pose. Where a dealer in pumps sold grad- ing contractors a new impeller for a secondhand pump originally purchased from the dealer, there is no implied war- ranty that the new impeller would make the old pump work satisfactorily. Ferine Machinery Co. v. Buck (Wash.) 1917C- 341. 33. Implied Warranty That Article is the One Ordered. Where grading con- tractors ordered a new impeller tor their secondhand pump from the dealer who originally solu it, and who wired the fac- tory for a new impeller and installed it, the sale is by sample, and the only im- plied warranty is that the impeller fur- nished is the one ordered. Ferine Machin- ery Co. v. Buck (Wash.) 1917C-341. (Annotated.) Notes. Express or implied warranty on sale by sample. 1917C-311. Express or implied warranty on sale of iced. 1918B-72. b. Remedy for Breach. 34. Action on Warranty Necessary Par- ties. Though sale of the stock of a cor- poration is by all the stockholders, only those stockholders who execute a war- ranty against liability that the corpora- tion's liabilities do not exceed a certain amount, whereby the purchaser is induced to consummate his purchase, are necessary parties to action on the warranty. Pacific Power, etc. Co. T. White (Wash.) 191SB- 125. 35. Automobiles Proof of Value. That the value of the automobile, if in good condition, would have been the sales price of $1,350, is sufficiently proved for the buyer suing for breach of warranty, by testimony of the seller's witness that its value as received, taking into considera- tion its condition at that time, was $1,250, and that in placing that value on the car as received he had deducted $100 from the list price; thus clearly indicating that the list price would represent the value of the car in perfect condition. Studebaker Corporation v. Hanson (Wyo.) 1917E-557. 36. Making Good to Subvendee as Pre- requisite to Action on Warranty. The pur- chaser of seed warranted to be of a speci- fied variety, and which he resells to a. grower, may recover from the dealer the actual loss due to misrepresentation as to the variety although he has not liquidated his liability to the subvendee for breach of warranty. Buckbee v. P. Hohenadel, Jr., Co. (Fed.) 1918B-88. (Annotated.) 37. Where seed is sold to a dealer under a warranty that it is of a special variety, and the dealer in turn sends it to a grower, the warranty is carried forward to the ultimate purchaser, if it appears that such understanding was part of the first sale r and the measure of damages for breach of warranty is the difference in market value between the crop produced and such crop as the specified variety of seed would have produced under like condition. Buck- bee v. F. Hohenadel, Jr., Co. (Fed.) 1918B- 8S. (Annotated.) 38. Damages, In an action for breach of warranty of the quality and color of a certain brick sold to plaintiff for use in a residence, the measure of plaintiff's damage is the loss directly and naturally resulting in the ordinary course of events from the breach. Jorgensen r. Gessell Pressed Brick Co. (Utah) 1917C-309. 39. Question for Jury. Where in an ac- tion for the price of jar caps warranted to fit any Mason jar there was evidence that all Mason jars were of the same pattern and sealed in the same way, and that the caps furnished did not fit Mason jars of the Ball Bros, type carried by the buyer, and during the trial a witness for the seller sealed the Mason jars in question with the caps shipped to the buyer, the- issue of compliance by the seller with the SALES. 739 warranty is for the jury, and a charge that, if the jury believes the evidence, the verdict must be for the seller, is erroneous, for the .demonstration at the trial cannot be considered to the exclusion of the other evidence. Pickrell, etc. Co. v. Wilson Wholesale Co. (N. Car.) 1917C-344. 40. Remedies of Buyer Action for Dam- ages. Where there is a breach of war- ranty, the buyer may be entitled to re- lief by an action for damages without a rescission of the contract of sale. Green- wood Cotton Mill v. Tolbert (S. Car.) 1917C-338. 41. Right to Damages. Where a seller of bricks under an implied warranty shipped bricks which did not conform to the warranty, the buyer could recover the damages sustained. Gascoigne v. Gary Brick Co. (Mass.) 1917'C-336. 42. Measure of Damages Consequential Damage. Where a seller of bricks under an implied warranty to conform to a sam- ple delivered bricks not conforming there- to, with knowledge that the buyer would use the bricks in erecting a wall, the buyer, knowing of the defect, cannot re- cover damages caused by his use of the bricks in erecting the wall; but where he relies on the warranty, and acts with reasonable diligence in using the bricks without further inspection, and their gen- eral appearance does not disclose the de- fects, and he promptly notifies the seller of the defects, he can, under Mass. St. 1908, c. 237, 49, recover not only the dif- ference between the value of the bricks bought and those delivered, but also the expense of rebuilding the wall. Gascoigne v. Cary Brick Co. (Mass.) 1917C-336. 43. Instruction as to Damages Error Prejudicial. Where a buyer of bricks for use in constructing a wall could recover as damages for breach of warranty the expenses of taking down and rebuilding the wall, the error in an instruction that he could recover only a sum equal to the difference between the value of the brinks contracted to be sold, and the value of the bricks delivered is not cured by a further instruction that the jury could find that the difference consisted in the expense to the buyer in culling from the mass the bricks used in the reconstructed wall. Gascoigne v. Cary Brick Co. (Mass.) 1917C-336. 44. Loss of Profits. Where there was an express warranty of satisfactory per- formance by an impeller, for use in a sec- ondhand pump sold contractors for grading work, damages for breach of such war- ranty on account of lost profits on 'the grading contract are not recoverable. Ferine Machinery Co. v. Buck (Wash.) 1917C-841. 45. Rights and Duties of Buyer. Where grading contractors, who ordered by sam- ple an impeller for their secondhand pump, discover that it will not work satisfac- torily, it is their duty to return the impeller to the seller with notice. Ferine Machinery Co. v. Buck (Wash.) 1917C- 341. 46. Breach of Warranty on Sale of Auto- mobile Measure of Damages. Evidence as to damages in an action for breach of warranty in the sale of an automobile is held to be sufficient to warrant a verdict for $550, as the cost of a new engine and the installation thereof. Studebaker Cor- poration v. Hanson (Wyo.) 1917E-557. 47. Two instructions on measure of damages for breach of warranty in a sale of an automobile, varying only in using in one the term purchase price, and in the other value of the car had it been as war- ranted, are not inconsistent in fact, the evidence showing such value to be such price. Studebaker Corporation v. Hanson (Wyo.) 1917E-557. 7. BIGHTS OF VENDOB. a. Bight to Bescind. 48. Rescission, by Seller As Against Transferee. A seller may, on discovery that the contract was procured from him by fraud, rescind not only as against the original buyer but as against a transferee who is not a bona fide purchaser for value. W. G. Ward Lumber Co. v. American Lumber, etc. Co. (Pa.) 1918A-451. b. Lien. 49. Vendor's Lien Loss Transfer of Warehouse Receipt. General Business Law (Consol. Laws, c. 20, 125, McKinney's Consol. Laws, Book 19), provides that a person to whom a negotiable warehouse receipt is duly negotiated thereby ac- quires such title as the person negotiating the receipt or the person to whose order the goods were to be- delivered by the terms of the receipt had, or had ability to convey to a purchaser in good faith for value, and also the direct obligation of the warehouseman to hold possession of the goods for him according to the terms of the receipt. Section 126 provides that if the receipt is non-negotiable, the trans- feree acquires the right to notify the warehouseman of the transfer, and thereby acquire his direct obligation to hold pos- session of the goods for him according to the receipt, but that prior to such noti- fication his title and such right may be defeated by the levy of an attachment or execution by a creditor of the transferor, or by notice to the warehouseman of a subsequent sale bv the transferor. Sec- tion 133 provides that where a negotiable receipt has been issued, no seller's lien or right of stoppage in transitu shall defeat the rights of any purchaser for value in good faith to whom the receipt has been 740 DIGEST. 1916C 1918B. negotiated. N. T. Personal Property Law (Consol. Laws, c. 41, McKinney's Consol. Laws, Book 40), 135, added by Laws l&ll, c. 571, provides that the unpaid seller of goods who is in possession of them is entitled to retain possession until payment in the cases therein specified. It is held that from the moment that a nego- . tiable receipt is negotiated, or from the moment of notice of the warehouseman in the case of the negotiation of a non- negotiable receipt, the warehouseman holds possession for the transferee of the re- ceipt, and with the transmutation of pos- session the vendor's lien of the transferor is at an end. Rummell v. Blanchard (N. Y.) 1917D-109. (Annotated.) Note. Transfer of warehouse receipt as divest- ing vendor's lien. 1917D-112. c. Stoppage in Transitu. 50. Loss of Right Transfer of Ware- house Receipt. Under N. Y. Personal Property Law, 139 (Consol. Laws, c. 41, McKinney's Consol. Laws, Book 40), added by Laws 1911, c. 571, providing relative to a seller's right of stopping goods in transitu that goods are in transit from the time they are delivered to a carrier or bailee for transmission to the buyer, until the buyer takes delivery from the carrier or bailee, and that goods are no longer in transit if the buyer obtains delivery be- fore the arrival of the goods at their destination, or if, after their arrival, the carrier or bailee acknowledges to the buyer that he holds the goods on his be- half, a seller of goods, transferring a negotiable warehouse receipt therefor to the buyer, cannot thereafter regain posses- sion by the exercise of the right of stop- page in transitu, as merchandise is not in "transit" unless delivered to a bailee for the* purpose of transportation, and if the transformation of the warehouseman's pos- session, from a possession for the seller to a possession for the buyer by the transfer of the receipt was equivalent to a transit of the merchandise, the same act which marked the beginning of the transit marked also its end, and where the process of transportation has been completed and the bailee has undertaken to keep the goods as agent of the buyer,, the right of stoppage is extinguished. Rummell v. Blanchard (N. Y.) 1917D-109. d. Actions. (1) Pleading. 51. Action for Breach of Contract Com- plaint Sufficient. A complaint alleged that defendant agreed to purchase twenty- five motor cars from plaintiff, but that it purchased and paid for only four, that if it had purchased the remaining twenty-one plaintiff's profit on each car would have been $100, and that by reason of the breach he suffered damnges to the amount of $2,100, Cal. Civ. Code. 3300. declares that, unless otherwise provided, the meas- ure of damages for breach of a contract is the amount which will compensate the party aggrieved for all detriment proxi- niately caused. Section 3311 provides that a seller's damages, if the property has been resold, is the difference between the contract price and the net proceeds of the sale; and, if not resold, the difference be- tween the contract price and the value of the property to the seller. Section 3353 declares that in estimating damages the vaJue of property to a seller is deemed the price which he could have obtained in the nearest market. Held, that the com- plaint, while stating a conclusion, was sufficient as against general demurrer; for, though the seller may or may not have had the property on hand, it showed his loss. Thompson v. Hamilton Motor Co. (Cal.) 1917A-G77. (2) Evidence. 52.' Agreement not to Engage in Busi- ness Breach Proof of Damage. In an action by the purchasers of a business and the good will thereof against the seller, who had agreed not to conduct the same kind of business in the same town, plain- tiffs were bound to show, with some degree cf certainty, not only that the seller com- mitted the wrongs imputed to him. but that they produced an injury or resulted in a violation of plaintiffs' rights. Finch v. Michael (N. Car.) 1916E-332. 53. Parol Evidence of Subsequent Agree- ment. Evidence offered by the seller of a mule that after it had been delivered to the buyer, and within half an hour after a written contract of sale had been deliv- ered by the buyer to the seller, and before the seller had" handed such paper to a third person who was to keeo it for the parties, the buyer agreed that the title to the mule should remain in the seller until payment was made, is admissible if considered as made at the time of the contract as being an agreement to secure payment not incon- sistent with the contract, and if made sub- sequently to the contract the rule exclud- ing parol evidence does not anply. Brown v. Mitchell (N. Car.) 1917B-933. 54. Evidence of Damage Sufficient. In an action for breach of a contract to pur- chase automobiles, evidence held to show plaintiff's damage. Thompson v. Hamilton Motor Co. (Cal.) 1917A-677. 55. Subsequent Contract Indicating Value Admissibility of Evidence. De- fendant's offer to prove that prior to mak- ing the offer to the county it was under- stood that the contract with the county was not to be retroactive is properly re- jected, as it cannot affect plaintiffs rights. ]SI>Garry v. Superior Portland Cement Co. (Wash.) 1918A-572. SALES. 741 (3) Questions of Law or Fact. 56. In an action for the price agreed on a parol sale of stock for a price more than $200, to a buyer already in possession as pledgee, the evidence is held to make the buyer's acceptance of possession as com- plete owner a question for the jury. Wil- son v. Hotchkiss (Cal.) 1917B-570. (Annotated.) 8. EIGHTS OF VENDEE. 57. Bona Fide Purchasers Consideration Pre-existing Debt. Where lumber sold by plaintiff to a fraudulent buyer is resold to defendant in consideration of the can- cellation of a pre-existiiig debt, such con- sideration does not, under the law of Ohio, constitute defendant a bona fide purchaser for value. W. G. Ward Lumber Co. v. American Lumber, etc. Co. (Pa.) 191SA- 451. (Annotated.) 58. Set-off Expenses of Buyer. Where grading contractors, who bought an im- peller for their secondhand pump, promise to pay the seller's bill, making no objec- tion to the price or that the expressage from the factory had been charged as a part of the expense of obtaining the im- peller, they cannot claim an offset for items of expenditure upon other details of their pumping plant in endeavoring to make it work. Ferine Machinery Co. v. Buck (Wash.) 1917C-341. 59. Where grading contractors bought an impeller for their secondhand pump and notified the seller that it did not work satisfactorily, they are not authorized to expend money on other parts of the pump to perfect the plant, and then offset the expense against the seller's claim. Ferine Machinery Co. v. Buck (Wash.) 1917C- 341. 60. Of Building Pleading in Action on Contract. A complaint alleging that de- fendant, being the owner of a dwelling house situated at a certain street number, which it desired to dispose of, and have removed, sold the same to plaintiff, who owned the lot on the opposite side of the street to which he intended to remove it, for a valuable consideration then paid, and that defendant knew of plaintiff's purpose in purchasing the house, but after- wards refused to permit plaintiff to remove or take possession of it, sufficiently alleged a contract by defendant to sell the dwell- ing house and a breach, not alleging a contract for the purchase and sale of realty. Wetkopsky v. New Haven Gas Light Co. (Conn.) 1916D-968. Note. Purchaser of chattel for pre-existing debt as purchaser for yalue. 1918A-455. 9. CONDITIONAL SALES. a. In General. 61. Property Attached to Realty of Third Person. Where personalty, such as ma- chinery, is to the seller's knowledge sold to be attached to the realty of a third person other than the buyer and used for a particular purpose, in order to bind such third person by a contract of conditional sale between the buyer and seller, such as one reserving title in the seller until full payment, such third person must have ac- tual notice of the reserved title, and its rights are not affected by the contract for payment between r ,the buyer and seller without such notice. Allis-Chalmers Co. v. Atlantic (Iowa), 1916D, 910. (Annotated.) 62. What Constitutes. An instrument is a conditional sales contract where it pur- ports to be an order for a set of scales, contains shipping directions, terms of pay- ment, provides that title shall remain in seller, loss or destruction to be borne by buyer, that on failure to pay instalments whole sum shall be due, that payments made shall on default be considered rent, seller to make repairs, and that "this COD tract covers all agreements between the parties," and which also contains at the end an instalment note for the price. To- ledo Scale Co. v. Gogo (Mich.) 1917E-601. 63. The contract cannot be construed as authorizing a recovery independent of de- livery of property or vesting of title in de- fendant, but instead is a contract of purchase and sale with payment condi- tioned upon the passing of title. Hart- Parr Co. v. Finley (N. Dak.) 1917E-706. Notes. Eights of parties in case of conditional sale of property to be attached to realty of third person. 1916D-915. Eemedies of party to contract upon an- ticipatory breach thereof or prevention of performance. 1917E-712. b. Eemedies of Vendor. 64. Election by Seller Between Reme- dies. Upon default by the vendee in a conditional sale contract the vendor may either disaffirm and retake the property, or affirm, declare subsequent payments due, and sue for the purchase price; the election of one remedy barring any right under the other. Norman v. Meeker (Wash.) 1917D-462. (Annotated.) Note. Election of remedies on breach of condi- tional sale. 1917D-464. 742 DIGEST. 1916C 1918B. c. Remedies of Vendee. made the debtor's sale absolutely void, and _ . - that his creditors could apply the property 65. Remedies of Vende Warranty. Where the seller of a chattel by conditional sale seeks to reclaim it by means of an action of replevin, the buyer may defend by pleading a breach of war- to their claims, by receivership, injunc- tion, and an accounting, and on the theory of a creditor's bill or a bill in aid of execu- tion, the complainant will not be denied equitable relief, on the ground that he has * . J * *-M U1 *V* ****** | vu. L.U^ K* vsuuu *MV * mm&mm ranty by way of recoupment in dimmu- &n ad ate reme dy at law, though the .:~ n *** M-vt-: viji+i e\-r\ f\f -fho rtri/to a B nrn* ~ m tion or extinction of the price, as pro vided by the N. Y. Uniform Sales Act (Laws 1911, c. 571) 150. Peuser v. Marsh (N. Y.) 1918B-913. (Annotated.) Note. Bight of conditional vendee to recover damages for breach of warranty. 1918B- 914. 10. BULK SALES LAW. a. Validity. 66. Validity of Bulk Sales Law. The Mich. Bulk Sales Act (Pub. Acts 1905, No. 223), regulating the sale of merchandise in bulk, and making sales not in accordance therewith void as against the seller's cred- itors, is constitutional. Coffey v. Me- Gahey (Mich.) 1916C-923. b. Construction. 67. Waiver of Bights by Creditor. A creditor who knows nothing of the debtor's sale of his s^ock of goods in bulk, or that it had been made contrary to the Mich. Bulk Sales Act (Pub. Acts 1905, No. 223), by his conversation with the seller in the presence of the purchaser, cannot waive his rights under the act, since a "waiver" is an intentional relin- quishment of a known right, or such con- duct as warrants an inference of a relin- quishment of such right. Coffey v. Mc- Gahey (Mich.) 1916C-923. 68. Remedy of Creditor in Equity. Un- der Mich. Bulk Sales Act (Pub. Acts 1905, No. 223), providing that creditors upon knowledge that the requirements of the act have not bee.n followed, may apply to have the purchaser become a receiver an'd account to creditors, the rule that a credi- tor must obtain a judgment at law before resorting to equity does not apply; and, apart from the statute, the rule is subject to exceptions, where a judgment cannot be had because the debtor is dead, has ab- sconded from the state, and has no prop- erty therein. Coffey v. McGahey (Mich.), 1916C-923. (Annotated.) 69. Under Mich. Bulk Sales Act (Pub. Acts 1905, No. 223), on a bill in behalf of complainant and all other creditors of the seller upon the theory that the statute equitable remedy is not exclusive. Cof- fey v. McGahey (Mich.), 1916C-923. (Annotated.) c. Actions. 70. Action by Creditor Parties. In a suit by the creditor of one who sold mer- chandise in bulk, without a compliance with the Mich. Bulk Sales Act (Pub. Acts 1905, No. 223), regulating such sales, the seller is a necessary party. Coffey v. Mc- Gahey (Mich.), 1916(^923. Notes. Remedies of creditor for violation of bulk sales law. 1916C-928. Statutory regulation of sale of petro- leum products. 1917A-167. SALES IN BULK ACTS. See Fraudulent Sales and Conveyances, 15- 20. SALES IN PARTITION. See Partition, 9. SALOONS. See Intoxicating Liquors. SATISFACTION. See Accord and Satisfaction. Of judgment, see Judgment, 53-57. SAVINGS BANK, See Banks and Banking, 75. SAWLOGS. Meaning, see Usages and Customs, 1. SCANDALOUS MATTER. In telegram, right to refuse, see Tele- graphs and Telephones, 24. SCENIC RAILWAY. As carrier of passengers, see Theaters and Amusements, 7. SCHOOLS. 743 SCHOOLS. 1. Establishment, 743. 2. Consolidation of Schools, 743. 3. Actions Against School Districts, 743. 4. School Buildings, 743. 5. School Boards and Officers, 744. a. School Boards, 744. b. Officers of School Districts, 744. c. District Attorney, 744. 6. School Funds, 744. 7. Teachers in Public Schools, 74(5. a. Contracts with Teachers, 746, b. Compensation, 746. c. Removal, 746. 8. Pupils in Public Schools, 746. a. Admission, 746. b. Separation of Races, 747. c. Transportation of Pupils, 747. d. Exclusion from School, 747. e. Prohibition of Secret Societies, 748. Evidence on exclusion of negro from white school, see Admissions and Declara- tions, 4. Gifts to, as charities, see Charities, 4. Special assessment for improvements, see Taxation, 118-120. 1. ESTABLISHMENT. 1. Legislative Control of Schools. The educational institutions of the state are under the control of the legislature, which may create, abolish, or regulate them, and the courts cannot supervise the wisdom of disciplinary regulations by the legisla- ture. Board of Trustees v. Waugh (Miss.) 1916E-522. 2. While the establishment of separate normal schools for the education of teach- ers is not a part of the common school sys- tem, yet high schools where a normal training is given are part of the "common schools" within Ark. Const, art. 14, 3. Dickinson v. Edmondson (Ark.) 1917C-913. (Annotated.) 2. CONSOLIDATION OF SCHOOLS. 3. Discretion of Board. Under Tenn. Acts 1913, c. 4, providing generally for the consolidation of schools, the public transportation of pupils, and the employ- ment of supervisors, the consolidation of schools is not required, but is merely per- mitted, and the question how the law shall be administered in such respect is left to the discretion of the county board of edu- cation. Cross v. Fisher (Tenn.) 1916E- 1092. 4. Judicial Control. If a county board of education, acting under Tenn. Acts 1913, c. 4, providing for the consolidation of schools, the public transportation of pupils, and the employment of supervisors, in consolidating certain schools into one had ignored all reasonable rules, acting in an arbitrary manner, so as to abuse its discretion, by disregarding the wishes, welfare, and interests of the taxpayers of the district, the action of the officials would have been proper subject for cor- rection by injunction because of abuse of power. Cross v. Fisher (Tenn.) 1916E- 1092. 3. ACTIONS AGAINST SCHOOL DIS- TRICTS. 5. Liability of School District Defec- tive Condition of School Premises. The question of negligence of a school district in leaving accessible to small pupils a hori- zontal ladder seven feet above the con- crete floor, unprotected by mats, is held under the evidence, to be for the jury. Howard v. Tacoma School District (Wash.) 1917D-792. (Annotated.) 6. Bern. & Bal. Wash. Code, 951, au- thorizing action against a school district, for an injury to plaintiff's rights arising from some act or omission of the district, abrogates the common-law rule of its non- liability for negligence in the performance of governmental duties. Howard v. Ta- coma School District (Wash.) 1917D-792. (Annotated.) 7. A school district, only a quasi munici- pal corporation, and a mere arm of the state for the administration of its school system, in providing exercise ladders in a schoolhouse, is acting in a governmental capacity, the same as in providing the schoolhouse, and not performing a private or proprietary function, and so is not lia- ble, under the common law, for injury to a pupil exercising thereon, though resulting from negligence of its officers or agents in connection therewith. Howard v. Tacoma School District (Wash.) 1917D-792. (Annotated.) 8. Contributory negligence of a girl pupil six years old, in going on a hori- zontal ladder for exercise, though told by her teacher not to do so. is held under the evidence to be a question for the jury. Howard v. Tacoma School District (Wash.) 1917D-792. (Annotated.) Note. Liability of municipal corporation or school board for defective condition of public school premises. 1917D-79I. 4. SCHOOL BUILDINGS. 9. Implied Liability Under Contract Invalid for Failure to Require Bids. Where a board of trustees of a school dis- trict let a contract for work on a school- house without advertising for bids as re- quired by Cal. Pol. Code, 1617. subd. 22, the school district was not liable to the contractor on a quantum meruit, since, while a school board may under some cir- cumstances be liable upon an implied con- tract for benefits received by it, this im- 744 DIGEST. 1916C 1918B. plied liability arises only where the board has general power to contract with refer- ence to a subject-matter, but the express contract which it is assumed to enter into is rendered invalid for some mere irregu- larity or some invalidity in its execution, and it does not arise where the express contract is invalid because a statute pre- scribes the only method in which a valid contract can be made, and the adoption of such mode is a jurisdictional prerequisite to the exercise of the power to contract at all. Beams v. Cooley (Cal.) 1917A-1260. (Annotated.) 10. Municipal Contracts Necessity of Competitive Bidding. Cal. Pol. Code, 1617, subd. 22, makes it the duty of boards of trustees of school districts to let all contracts involving an expenditure of more than $200 for work to be done or materials or supplies to be furnished to the lowest responsible bidder and for the pur- pose of securing bids to publish a notice calling for bids. A board of trustees adopted plans for a school building, which the superintendent of schools refused to approve unless certain plastering was omitted. Such work was eliminated and a contract entered into, the contractor's bid being modified by making a proper de- duction for the plastering and certain other work. The board, however, later determined to have the plastering done, and under an arrangement with the con- tractor contracted with plaintiff to do the work; the price being reached by taking the price for which the contractors would have done the work under their total bid and decreasing that by several hundred dollars. Held that, the cost having amounted to more than $200, the contract should have been let as required by the code, and it was no answer to this objec- tion that the original specifications upon which the contractor's bid was made in- cluded the plastering, and hence the con- tract with plaintiff was invalid. Eeams v. Cooley (Cal.) 1917A-1260. 11. Use of School Building Lodge Meetings. Kirby's Ark. Dig. 7643, au- thorizing school directors to permit a pri- vate school to be taught in the schoolhouse while not occupied by a public school, un- less otherwise directed by the voters of the district, does not exclude other uses of school buildings, where the same do not interfere with the schools nor injure the buildings, and does not render invalid a contract authorizing a local lodge of a secret society to use a school building for a lodgeroom; the use not interfering with the school nor injuring the building. Cost v. Shinault (Ark.) 1916C-483. (Annotated!) 12. Kirbv's Ark. Dig. 7614, conferring on school directors the power to control the school affairs with the custody of the schoolhouses and grounds, and preserve the same, vests in the directors discretion in arrangements for the interest of the dis- trict and they may, with the approval of the voters of the district, permit a secret society to use the school building as a lodgeroom, where such use does not inter- fere with the school nor injure the build- ing, but is advantageous to the district in view of its financial condition. Cost v. Shinault (Ark.) 1916C-483. (Annotated.) Note. Power of school authorities to permit use of school building for other than re- ligious or public school purposes. 1916C- 485. 5. SCHOOL BOAEDS AND OFFICERS. a. School Boards. 13. Power of Board to Employ Attorney. But said section does not deprive such in- dependent district boards of the implied power, to employ other counsel or addi- tional counsel to assist the prosecuting at- torney, where, in their judgment and rea- sonable discretion the character of the business, or on account of the absence of the prosecuting attorney, or his incapacity, sickness, or other disability, or his refusal to act, there is necessity therefor. Mollo- han v. Cavender (W. Va.) 1918A-499. (Annotated.) Note. Power of school district to employ coun- sel. 1918A-502. b. Officers of School Districts. 14. School Supervisors Employment. Tenn. Acts 1913, c. 4, 3. giving boards of education authority to employ supervisors of schools, whose duty shall be to assist county superintendents in the organiza- tion, gradation, and supervision of schools, etc., and to pay them out of the respec- tive school funds of counties, etc., does not violate Const, art. 11, 17, providing that no county office created by the legislature shall be filled otherwise than by the peo- ple or the county courts, since the ap- pointees contemplated by the act are not "county officers," but mere "employees." Cross v. Fisher (Tenn.) 1916E-1092. c. District Attorney. 15. Independent Districts Duty of Prosecuting Attorney to Serve. It is the duty of the prosecuting attorney,- imposed by section 49, chapter 39, W. Va. Code, to serve independent district boards of educa- tion as well as other district boards, as thereby prescribed. Mollohan v. Cavender (W. Va.) 1918A-499. 6. SCHOOL FUNDS. 16. Diversion of School Funds Purpose for WMch Appropriation Permissible. SCHOOLS. 745 High schools fall within the term of "com- mon schools," used by Ark. Const, art. 14, and an appropriation for such schools is authorized. Dickinson v. Edmondson -iA SECOND APPEAL. See Appeal and Error, 7, 96-102. : -,7-fi ,fc*3J2i>faoH so,? SECONDARY EVIDENCE. See Evidence, 43-50. SECOND DELIVERY. Meaning, see Escrow, 1. SECRET SOCIETIES. See Societies and Clubs. SECURITIES. As including bonds, see Taxation, 163. SEDUCTION. As element of damage, see Breach of Promise of Marriage, 15. 1. Action by Another for Same Cause. A judgment awarding a divorced mother damages for seduction of a minor daughter in her custody will not be set aside be- cause the father, who was without right, 750 DIGEST. 1916C 1918B, had also instituted suit for the seduction. Malone v. Topfer (Md.) 1916E-1272. 2. Action for Seduction Bight of Mother. A divorced wife, who has the custody of and has supported a minor daughter of the marriage, although the court has not granted her the exclusive custody, may maintain an action for seduc- *. tion of the daughter. Malone v. Topfer (Md.) 1916E-1272. (Annotated.) 3. A divorced wife held to have the custody of a minor daughter of the mar- riage, so as to entitle her to sue for seduc- tion of the daughter. Malone v. Topfer (Md.) 1916EM272. (Annotated.) 4. Evidence Reputation of Defendant. In a prosecution for seduction under prom- ise of marriage, defendant is not limited to proof of his character for morality and chastity, but is entitled to prove that his general reputation as a peaceable law- abiding citizen is good. Bishop v." State (Tea..) 1916E-379. (Annotated.) Notes. Admissibility of evidence of defendant's reputation in prosecution for seduction. 1916E-381. Right of mother to maintain action for daughter's seduction. 1916E-1275. SEEDS. Warranty of fertility, see Sales, 17. SEEPAGE. Action for damages, see Parties, 11. SELECTION OF HOMESTEAD. See Homestead, 3-7. SELECTIVE DRAFT. See Army and Navy, 1-9. SELF-DEFENSE. See Assault, 12; Homicide, 57, 67, 68. Wounding of innocent bystander, see Negligence, 102, 116. SELF-DESTRUCTION. See Suicide. SELF-EXECUTING PROVISIONS. See Constitutional Law, 90-98. SELF-INCRIMINATION. See Argument and Conduct of Counsel, 2. SELF-SERVING DECLARATIONS. See Admissions and Declarations, 1-3. SENDING. Meaning, see Libel and Slander, 165. SENTENCE AND PUNISHMENT. 1. Validity and Construction of Statutes, 750. 2. Consecutive Terms of Imprisonment, 751. 3. Suspension of Sentence, 751. 4. Cruel and Unusual Punishment, 751. 5. Discretion of Court, 752. 6. Place of Imprisonment, 752. 7. Remand for Resentence, 752. Interrogation of prisoner, see Appeal and Error, 210. Excessive sentence, relief, see Habeas Cor- pus, 5. In prosecutions under liquor laws, see In- toxicating Liquors, 107-109. 1. VALIDITY AND CONSTRUCTION OF STATUTE. 1. It is tne penalty prescribed by a stat- ute for a single offense, and not the aggre- gate of punishments inflicted for several offenses of the same character joined in one indictment, on all of which there was a conviction, which bears on the question of the penalty being proportioned to the nature of the offense. People v. Elliott (111.) 1918B-391. (Annotated.) 2. If the penalty prescribed by statute is not proportionate to the offense, the law is void; and the evil cannot be cured by a mere modification on appeal of the sen- tence. People v. Elliott (111.) 1918B-391. (Annotated.) 3. The penalty prescribed by 111. Anti- Saloon Territory Act (Laws 1907, p. 297) for sale of liquors in anti-saloon territory, a fine of not less than $20 nor more than $100, or imprisonment for not less than ten days nor more than thirty days, or both, is clearly not disproportioned to the nature of the offense. People v. Elliott (111.) 1918B-391. (Annotated.) 4. The statute prescribing as a penalty for sale in anti-saloon territory a fine of from $20 to $100, or imprisonment from ten to thirty days, or both, being valid, sentences for the minimum fine and im- prisonment on each of seventy-one counts are not invalid as imposing cruel and un- usual punishment because of the aggre- gate. People v. Elliott (111.) 1918B-391. (Annotated.) 5. Provision as to Disposition of Fine Validity. That part of section 9205, N. Dak. Rev. Codes 1905, which provides that the defendant, upon conviction, shall "pay a fine equal to double the amount of money or other property so em- bezzled as aforesaid, which fine shall oper- ate as a judgment at law on all the estate of the party so convicted and sentenced, and shall be enforced by execution or other process for the use of the state, county, precinct, district, town, city, or SENTENCE AND PUNISHMENT. 751 school district whose moneys or securities have been so embezzled," is unconstitu- tional in that it violates section 154 of the constitution of North Dakota, which provides that "the interest and income of this [land grant] fund, together with the net proceeds of all fines for violation of state laws, and all other sums which may be added thereto by law, shall be faith- fully used and applied each year for the benefit of the common schools of the state." State v. Bickf ord (N. Dak.) 1916D- 150. 6. Fines Embezzlement Statute Fine or Compensation. That part of section 9205, N. Dak. Eev. Codes 1905, which pro- vides that in case of conviction the de- fendant shall, in addition to serving a term of imprisonment, "pay a fine equal to double the amount of money or other property so embezzled as aforesaid; which fine shall operate as a judgment at law on all the estate of the party so convicted and sentenced, and shall be enforced by execution or other process for the use of the state, county, precinct, distiict, town, city, or school district whose moneys or securities have been so embezzled," im- poses a fine, and did not merely include in said statute a provision for the compensa- tion of the state or municipality injured. State T. Bickford (N. Dak.) 1916D-140. 7. Insanity of One Condemned to Death, Ark. Acts 1913, p. 172, providing that, when a judgment of death is pronounced on any person, such person shall be con- veyed to the state penitentiary and there kept until executed, does not by implica- tion repeal Kirby's Dig. 2454, author- izing the sheriff to hold an inquest into the sanity of the person sentenced to be executed. Ferguson v. Martineau (Ark.) 1916E-421. (Annotated.) 8. Penalty Proportioned to Nature of Offense. There must be a clear violation of the provision of the 111. state's Bill of Rights, 11, that ."all penalties shall be proportioned to the nature of the offense," to warrant holding a statute invalid as contravening it. People v. Elliott (HI.) 1918B-391. (Annotated.) 9. The provision of the 111. state's Bill of Rights, 11, that "all penalties shall be proportioned to the nature of the offense" that is, that the penalty pre- scribed for an offense shall be in propor- tion to the nature of the offense is di- rected to the lawmaking power. People v. Elliott (111.) 1918B-391. (Annotated.) 2. CONSECUTIVE TERMS OF IMPRIS- ONMENT. 10. Form of Sentence Conviction on Several Counts. The correct method for sentencing one on several counts is not for a total time of imprisonment in ( gross, but for a specified time under each, the time under the second to commence when. the first ends, and so on to the last; and it is not enough to state that the sentences shall run consecutively or successively. People v. Elliott (111.) 1918B-391. 3. SUSPENSION OF SENTENCE. 11. A federal district court exceeds its power by ordering that the execution of a sentence to imprisonment imposed by it upon a plea of guilty be suspended indefi- nitely during good behavior upon consid- erations wholly extraneous to the legality of the conviction. Ex parte United States (U. S.) 1917B-355. (Annotated.) 12. Regardless of statute, one convicted and sentenced to execution will, where he becomes insane after trial, be granted a stay of execution. Hence the chancery court cannot justify an order enjoining execution on the ground that the party had no remedy at law. Ferguson v. Mar- tineau (Ark.) 1916E-421. (Annotated.) 4. CRUEL AND UNUSUAL PUNISH- MENT. 13. The provision of Const. U. S. Amend. 8, against imposition of excessive fines, and infliction 01 cruel and unusual punish- ment, does not apply to state legislation, but is restricted exclusively to the federal government, its courts and officers. People v. Elliott (111.) 1918B-391. (Annotated.) 14. A punishment authorized by stat- ute is never held cruel or unusual or not proportioned to the nature of the offense unless it is a barbarous one unknown to the law, or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. People v. Elliott (111.) 1918B-391. (Annotated.) 15. Under Md. Declaration of Rights, art. 16, declaring that no law to inflict cruel and unusual penalties shall be made, and article 25, declaring that cruel or un- usual punishments shall not be inflicted by the courts of law, a judgment and sen- ' tence of capital punishment for the crime of assault with intent to rape, imposed under the discretion given the court in re- spect to such crime by Code Pub. Gen. Laws 1904, art. 27, 17, is not unconstitu- tional. Dutton v. State (Md.) 1916D-89. 16. Const. U. S. Amend. 8, declaring that cruel and unusual punishments shall not be inflicted, is not a restraint upon and does not apply to the legislature of a state, but only to the national legislature. Dutton v. State (Md.) 1916C-89. 17. Abortion Sentence not Excessive. Under N. Car. Revisal 1905, 3618, pro- viding that anv person who shall admin- ister or procure any woman pregnant or quick with child to take any drug with intent to destroy the child shall be im- prisoned not less than one nor more than ten years, and fined at the court's discre- 7o2 DIGEST. 1916C 1918B. tion, and section 3619 providing that any SERVANT. person who shall administer or procure any pregnant woman to take any drug with intent to procure a miscarriage, or injure the woman, shall be imprisoned not less than one nor .more than five years, and fined at the court's discretion, im- prisonment for three years and a fine of $1,000 for procuring a -pregnant woman to take a drag with intent to procure a mis- carriage was not a cruel and unusual pun- ishment. State v. Shaft (N. Car.) 1916C- 627. Note. What is cruel and unusual punishment. 1918B-396. 5. DISCRETION OP COURT. 18. That sentences are for both fine and imprisonment, as authorized by statute, is a matter in the court's discretion. People T.' Elliott (111.) 1918B-391. (Annotated.) .19. Review of Sentence. Sentences on a number of counts being within the terms of a valid statute; the judgment cannot be reversed -because the appellate court wonld have imposed less severe sentences, and considers them unnecessarily severe for the accomplishment of the purposes of the statute. People v. Elliott (111.) 1918B- 391. - 6. PLACE OF IMPRISONMENT. 20. Where a statute is silent as to the place of imprisonment, and any doubt exists as to whether it shall be in the penitentiary or county jail, accused should be imprisoned in the county jail. Gherna v. State (Ariz.) 1916D-94. 7. REMAND FOB RESENTENCE. 21. Error in Sentence Remand for Sen- tence. There being no error, except in the imposition of the sentences, the case will be remanded for proner sentences. People v. Elliott (HI.) 1918B-391. SEPARATE PROPERTY. Of wife, see Husband and Wife, 26-29. Of husband, right of disnosition, see Hus- band and Wife, 30-32. SEPARATION. See Divorce; Marriage* SEPARATION AGREEMENTS. As defense for divorce, see Divorce. 28 31, 47. SERTOTTS ILLNESS. Meaning, see Life Insurance. Defined, see Master and Servant, 264. SERVICE. Notice of appeal, see Appeal and Error, 43-45. Of notice of claim of lien, see Mechanics* Liens, 27. Service of search warrant, see Searches and Seizures, 1. SERVICE OF PROCESS. See Process, 3-17. SERVICES. Actionable deceit in procuring, see Fraud, 8. Action for by wife alone, see Husband and Wife, 13. Husband's action for services of wife, see Husband and Wife, 37. Of infant, enforcement of contract, see Infants, 2, 3, 8. Action for value, accrual, see Limitation of Actions, 22-24. SET-OFF AND COUNTERCLAIM. See Bankruptcy, 4-8. Effect of amount on jurisdiction, see Appeal and Error, 12. Of deposit against debt due insolvent bank, Banks and Banking, 48-53. Not permitted in unlawful detainer, see Forcible Entry and Detainer, 3. Tort in wrongful enhancement as counter- claim in contract, see Monopolies, 23. Against receiver, see Receivers, 7, 8, 10. 1. Counterclaim for Tort in Action for Tort. Under Wis. St. 1913, 2656, author- izing a counterclaim arising out of the transaction set forth in the complaint, de- fendant, in an action for slander, may- plead as a counterclaim a slander by plain- tiff arising at the same time and place as the slander alleged in the complaint, for the word "transaction" includes the entire word encounter. Powell v. Powell (Wis.) 1917D-113. (Annotated.) 2. Claims not Connected With Cause of Action. In a suit for conversion, alleged counterclaims based on contracts, not con- nected with the transaction set forth in the complaint and growing out of the in- dorsement of promissory notes by the bankruot. to whose estate plaintiff had succeeded, do not fall within the classes enumerated by N. Y. Code Civ. Proc. 501, defining counterclaims. Morris v. Wind- sor Trust Co. (N. Y.) 1916C-972. 3. Connection With Subject-matter of Action Breach of Warranty Against Claim for Repairs. Though plaintiff's ac- tion is for repairs of an automobile, the SETTING ASIDE SHERIFFS AND CONSTABLES. 753 answer alleging and the proof being that the repairs were made in an attempt to make good plaintiff's warranty in the sale of the machine to defendant, a counter- claim for breach of the warranty is one "connected with the subject of the ac- tion," and so authorized by Wyo. Comp. St. 1910, 4391, whether the "subject of the action" which within the meaning of such statute, is either the property in- volved or a right alleged to have been vio- lated, be regarded as the machine, or the sale thereof, or the right claimed to re- cover for the repairs. Studebaker Corpo- ration v. Hanson (Wyo.) 1917E-557. Notes. Waiver of failure to reply to counter- claim. 1917D-619. Amount in controversy for purpose of appeal where defendant has filed counter- claim. 1917D-99. Counterclaim for tort in action for tort. 1917D-114. SETTING ASIDE. Indictment, see Indictments and Informa- tions, 21-24. Judgments, see Judgments, 30-42. Of default judgment, see Judgments, 49, 50. SETTLEMENT. See Compromise and Settlement. SEVERANCH. On proceedings to oust officer, see Public Officers, 57. SEVERANCE IN VERDICT. See Verdicts, 1. SHADE TREES. Regulation of trimming on roads, see Trees and Timber, 13-17. SHAM ANSWER. Striking out, see Pleading, 31. SHARES OF STOCK. In joint stock company, see Joint Adven- tures, 9, 10. SHERIFFS AND CONSTABLES. 1. Rights, Duties and Powers, 753. 2. Liability for Official Acts of Neglect, 754. 3. Liability on Official Bond, 754. 4. Compensation, 754. 5. Suspension and Removal, 754. Duty to arrest without warrant, see Arrest, 3-5. Levy upon moneys in custodia legis, seo Garnishment, 3. 48 Duty on threatened violation of liquor law, see Intoxicating Liquors, 88. Liability to senior creditor for selling first under junior execution, see Judicial Sales, 2. Duty to hold inquest on sanity of capital convict, see Sentence and Punishment, 7. Residence of sheriff, see Taxation, 195. As public officer, see Taxation, 196. 1. RIGHTS, DUTIES AND POWERS. 1. Powers of Sheriff. The office of sheriff carries all the common-law powers and duties except as modified by statute. State v. Reichman (Tenn.) 1918B-889, 2. Duty to Prevent Crime. Under Shan- non's Tenn. Code, 6889, a sheriff who has "notice" of an offense and does not do his duty to prevent it is guilty of a misde- meanor, and any knowledge from any source is notice within the statute. State v. Reichman (Tean.) 1918B-889. 3. Since cities have police officials, the sheriff may assume that they will perform their duties, but if he has knowledge of neglect on their part, or reason to think there is neglect, he must inform himself and prevent and suppress offenses in cities as well as rural districts. State v. Reich- man (Tenn.) 1918B-889. 1 4. Duty to Enforce Law Notice of Vio- lation. When a sheriff learns that a city in his county is collecting tribute from numerous liquor dealers and leaving them otherwise undisturbed, this is notice to him that the law is being violated and no effort made to enforce it. State v. Reich- man (Tenn.) !918B*-889. 5. Duty of Investigation. While a sher- iff need not make a forcible entrance into a suspected residence or place of business to discover violations of the liquor law, he or his deputies should enter open saloons and make arrests if justified by what they see therein. State v. Reichman (Tenn.) 1918B-889. 6. Notice of Violation of Law. The duty of the sheriff, having notice of com- mission of an offense, being to prevent or suppress it, involves the duty to at least make some investigation, and it is not necessary in case of unlawful sales of in- toxicating liquors, for the sheriff to actu- ally see sales before swearing out war- rants. State v. Reichman (Tenn.) 1918B- 88'J. 7. Although the sheriff is not bound to maintain a detective force, and no statute in terms makes it his duty to swear out warrants or give information to the grand jury, yet, being commanded to prevent and suppress crimes and breaches of the peace, he must use all the means provided by law to accomplish such end. State v. Reich- man (Tenn.) 1918B-889. 754 DIGEST. 1916C 1918B. 2. LIABILITY FOB OFFICIAL ACTS OF NEGLECT. 8. A sheriff, holding two executions against property and selling the property under the junior execution, is liable for the value of property at the time of the sale, and not merely for the difference be- tween the price obtained and that which could have been obtained by a sale under the senior execution. Continental Distrib- uting Co. v. Hays (Wash.) 1917B-708. (Annotated.) 9. Under Rem. & Bal. Wash. Code, 647, providing that plaintiff may have defend- ant's property attached as security for the satisfaction of such judgment as he may recover, and section 657 providing that where there are several attachments against the same defendant they shall be executed in the order in which they were received by the sheriff, the rights of the first attaching creditor cannot be inter- fered with by a subsequent attachment or execution, and any act of the sheriff, caus- ing such an interference, renders him liable for the damages suffered. Contin- ental Distributing Co. v. Hays (Wash.) 1917B-708. -(Annotated.) 3. LIABILITY ON OFFICIAL BOND. 10. Liability of Sureties on Bond. Where the bond of a constable is condi- tioned upon his faithfully executing and returning all process and paying over ac- cording to law all money that shall come into his hands by virtue of his office, there can be no recovery on the bond where it is not alleged that any process was di- rected or delivered to the constable, or that he had in his possession any such a paper, or any money, either officially or privately, or that plaintiff suffered dam- age because the constable failed to return a writ, if he had one, or that she was a party to or interested in any action in which the process might have been issued. Davis v. Hall (Ore.) 1916D-922. 11. Assault by Constable. A complaint alleging that a constable, without exhibit- ing or serving any process, took chattels from the plaintiff, and, while she was en- deavoring to protect her right therein, as- saulted and maltreated her, and failed to execute and return the process to him di- rected in the replevin of the chattels, does not show a liability of the sureties on the constable's bond conditioned only that he should execute and return all process and pay over according to law all money com- ing into his hands by virtue of his office. Davis v. Hall (Ore.) 1916D-922. (Annotated.) Note. Liability of sureties on bond of sheriff as constable for assault committed by offi- cer. 1916D-923. 4. COMPENSATION. 12. Deputy Bight to Fees as Between Deputy and Officer. Construing section 3521 of the N. Dak. Compiled Laws of 1913, which _provides that "In addition to the salary prescribed in the preceding sec- tion, the sheriff or his deputy or deputies shall be allowed ten cents per mile for each and every mile actually and neces- sarily traveled in the performance of their official duties," it is held that the ten cents mileage belongs to the deputy, and not to the sheriff, where the work is done and the distance is actually and necessarily trav- eled, not by the sheriff, but by such dep- uty. Scofield v. Wilcox (N. Dak.) 1918A- 836. (Annotated.) 13. Commission on Sale Purchase by Person Entitled to Proceeds. Under Wyo. Comp. St. 1910, 1214, providing that the sheriff shall receive a commission on money collected on execution or other process, in view of 4698, 4700, 4703, 4705, 4733-4735, the sheriff is entitled to such commission where at the execution sale the judgment creditor purchases the property for less than the judgment debt, although no money actually changes hands; the purchase price being merely credited upon the judgment and execution. Lyman v. Thorn (Wyo.) 1918A-368. (Annotated.) 5. SUSPENSION AND REMOVAL. 14. A sheriff who has made an honest and reasonably intelligent effort to do his duty will not be removed by the courts, though his efforts may not have been wholly successful, his right to continue in office depending rather on the good faith of his efforts than on the degree of his success. State v. Reichman (Tenn.) 1918B- 889. (Annotated.) 15. Failure to Enforce Law. In pro- ceedings to remove a sheriff for failure to enforce the liquor law, he is precluded, by his admission that he did nothing in a city within his county but to serve process where liquor was openly sold in violation of law, from asserting that no wilful neg- lect of his duty has been shown. State v. Reichman (Tenn.) 1918B-889. (Annotated.) 16. In a proceeding for his removal the evidence is held to show that a sheriff failed to perform his duties to prevent and suppress breaches of the peace by unlaw- ful sale and threatened unlawful sale of intoxicating liquors. State v. Reichman (Tenn.) 1918B-889. (Annotated.) 17. It is no defense for the sheriff's failure to nrevent breaches of the peace by unlawful sales of intoxicating liquors, that the state was proceeding against offenders under the Tenn. Nuisance Act (Laws 1913 [2d Ex. Sess.] c. 2), or that SHERMAN ACT SMOKE. 755 the criminal court administration was lax and nothing would have been accomplished in case of arrest. State v. Reich man (Tenn.) 1918B-889. (Annotated.) SHERMAN ACT. Combination of ocean, carriers, see Mon- opolies, 17. SHIP. Meaning, see Intoxicating Liquors, 81. SHIPS AND SHIPPING. Restoration of illegal prize, see Admiralty, 2-3. Liability for injuring bridge, see Bridges, 1-4. Duty toward passenger, see Carriers of Passengers, 21, 22, 26, 68, 69. Ferryboat, definition, see Ferries, 1. Loss of ship, what is, see Master and Ser- vant, 6. Payment of purchase price, see Payment, 8-10. 1. Damages for Collision Loss of Use of Injured Vessel. Loss through delay while making repairs is an element of the damages recoverable for collision, and where the injured vessel was under a time charter the rate of charter hire may be accepted as prima facie fixing the measure of damages. The Brand (Fed.) 1917B-996. (Annotated.) 2. Collision Sailing Vessel in Fault Side Lights in Improper Position. A schooner is held to have been solely in fault for a collision^ with a crossing steam- ship at night in Delaware bay for carry- ing her side lights in such position that the one on the side next the steamship was obscured by the sails and could not be seen from the steamsnip until too late to avoid the collision. The Brand (Fed.) 1917B-996. 3. Damages Recoverable for Collision Death of Human Being. In a proceeding on behalf of the Crown against persons negligently causing the sinking of a naval vessel, no recovery can be had for the value of pensions paid by the Crown to the dependents of sailors and officers whose deaths were caused thereby. Ad- miralty Commissioners v. S. S. Amerika (Eng.) 1917B-877. (Annotated.) 4. Fraud Concealment Effect of Ex- press Warranty. An express warranty in a bill of sale conveying a ship and her freight that the ship is unencumbered does not defeat liability for an implied misrepresentation by concealment of the fact that the freight was encumbered. Corry T. Sylvia Y Cia (Ala.) 1917E-1052. 5. Implied Warranty Effect of Express Warranty. A bill of sale conveying a ship and her freight, which expressly war- ranted the ship free from incumbrance, does not thereby exclude an implied war- ranty that the freight is also unencum- bered. Corry v. Sylvia Y Cia (Ala.) 1917E-1052. Note. Eight to recover damages for loss of use of vessel resulting from collision without total loss. 1917B-999. SHOWS. See Theaters and Amusements. SICK PERSON. Duty of carrier toward, see Carriers of Passengers, 1, 2, 29-31. SIDEWALKS. See Streets and Highways. SIGN. Meaning, see Wills, 8, 9. SIGNATURES. See Names. Form and construction, see Bills and Notes, 8, 30, 75-79. Sufficiency under statute, see Frauds, Stat- ute of, 16, 17. Failure to sign judgment, effect, see Judg- ments, 3. In notice of claim of lien, see Mechanics' Liens, 21. In wills, see Wills, 8-19. SIGNBOARDS. See Advertising. SILENCE. Estoppel by, see Estoppel, 7. SLANDER. See Libel and Slander. SLANDER OF TITLE. See Libel and Slander, 168. SLANDEROUS PER SE. Words, see Libel and Slander, 19, 20, 25. SLED. Not a motor vehicle, see Automobiles, 5. SLEEPING CARS. See Railroads, 16-18. SMOKE. City regulation, see Municipal Corpora- tions. 756 SOCIAL CLUBS. See Societies and Clubs. SOCIETIES AND CLUBS. See Intoxicating Liquors, 48-50, 73, 78-79. Lodge meetings in school, see Schools, 12. Prohibition oi secret societies, see Schools, 44-46. 1. Incorporation Powers. As used in Mo. Eev. St. 1909, 3435, which authorizes the incorporation of benevolent, religious, scientific and educational associations, and provides that any association, company, or organization which tends to the public ad- vantage "in relation to any or several of the objects above enumerated, and what- ever is incident to such objects," may create a body corporate, the words quoted have no application to an incorporated social club, even though it be incorporated under such statute. State v. Missouri Athletic Club (Mo.) 1916D-931. 2. Powers Sale of Liquor. A social club, incorporated under Mo. Rev. St. 1909, 3432-3445, providing for the for- mation of benevolent, religious, scientific, educational, and miscellaneous associa- tions, has no power, express or implied, to sell intoxicating liquors to its members. State v. Missouri Athletic Club (Mo.) 1916D-931. 3. Protection of Name. The Ga. Act of 1909 (Civ. Code 1910, 1993, 1994) for the protection of any benevolent and other organization which is incorporated, against others using or adopting its name, style, or emblems, cannot be invoked by volun- tary associations. Faisan v. Adair (Ga.) 1918A-243. (Annotated.) 4. Equity will enjoin individuals, or a corporation, that are using the name, in- signia, and emblems of an existing benevo- lent and fraternal association to the injury of the latter. The facts examined, and held that the court did not abuse its dis- cretion in granting an interlocutory in- junction. Faisan v. Adair (Ga.) 1918A- 243. (Annotated.) Note. Right of unincorporated benevolent, fraternal or social organization to protec- tion in use of its name. 1918A-245. DIGEST. 1916C 1918B. SOLICITATION. Contract with solicited client, see Attor- See Militia. SOLDIERS. SOLDIERS AND SAILORS. See Army and Navy; Militia; War. SOLDIERS' HOME. See Pensions, 1, 2. Status oi commandant, see Public Officers 22. neys, 22. SOLICITORS. See Hawkers and Peddlers, 1. SOLIDIFIED GLYCERINE. See Explosions and Explosives, 1-3. SPECIAL ADMINISTRATOR. Revival of action by, see Executors and Administrators, 71. SPECIAL APPEARANCE. See Appearances, 2-4, 6. SPECIAL ASSESSMENTS. See Taxation, 116-145. SPECIAL DAMAGE. See Libel and Slander, 13-15, 81. 93, 130- 132. SPECIAL DEPOSIT. See Banks and Banking, 38-42. SPECIAL ELECTIONS. See Elections. SPECIAL PROCEEDING. Terminates in order, Judgments, L SPECIAL VENIRE. See Jury, 15. SPECIFIC. Meaning, see Eminent Domain, 13. SPECIFIC PERFORMANCE. 1. Requisites of Enforceable Contract, 756. a. Mutuality and Consent, 756. b. Certainty, 757. c. Fairness, 757. 2. Enforceability of Particular Contracts, a. Contract to Make a Will, 757. b. Oral Contract to Devise Land, 757. 3. Actions. a. Conditions Precedent, 757. b. Pleading, 757. c. Evidence, 757. d. Damages, 757. Answer, see Pleading, 17. 1. REQUISITES OF ENFORCEABLE CONTRACT. a. Mutuality and Consent. 1. Contract Lacking Mutuality. Where there is no such mutuality in the contract SPECIFIC PERFORMANCE. 757 to convey as entitles the vendor bank to compel the cross-complainant as purchaser to pay the purchase price of the land, the alleged contract cannot be specifically en- forced against the bank. Brown v. Farm- ers', etc. National Bank (Ore.) 1917B- 1041. b. Certainty. 2. A contract that an existing will shall remain, which refers to the property as having been purchased by the testatrix, and which describes that will as now made and in the possession of a person named, is sufficiently definite to justify specific performance, where the bill therefor dis- closes as an exhibit a copy of will left in the custody of the person named. White v. Winchester (Md.) 1916D-1156. c. Fairness. 3. Where children surrendered their in- terests in favor of their mother in con- sideration of her permitting a will devi- sing property to them to remain, the agreement was supported by a sufficient consideration to justify specific perform- ance. White v. Winchester (Md.) 1916D- 1156. 2. ENFORCE ABILITY OF PARTIC- ULAR CONTRACTS. a. Contract to Make a Will. 4. A contract by one party thereto to execute a will in favor of the other party thereto is not a testamentary disposition of the property, and, if founded on a good and valuable consideration, will be en- forced. White v. Winchester (Md.) 1916D- 1156. 5. Contract to Devise. A contract to devise real estate may be enforced by spe- cific performance. White v. Winchester (ivld.) 1916D-1156. b. Oral Contract to Devise Land. 6. Validity of Oral Contract to Devise. An oral contract to devise lands falls within the operation of the statute of frauds; but where the party in whose favor the will is to be made has per- formed his part of the contract, and the other party dies leaving a will in which no devise is made pursuant to the oral con- tract, the disappointed party may apply to a court of equity for specific performance of the contract, if it is one of such a na- ture that a court of equity would require specific performance. Gordon v. Spellman (Ga.) 1918A-852. a. 3. ACTIONS. Conditions Precedent. 7. As Requisite to Specific Performance -Waiver. Where, in a suit for specific performance of an option to purchase cer- tain land under a will, the petition alleged tfiat ulaintiff had. notified defendants of his election to accept the option, and offered to pay the money required, but de- fendants refused to accept the same or to convey the land to plaintiff, and defend-, ants' answer constituted a repudiation of plaintiff's interpretation of the will deny- ing his right to purchase, and at the trial . plaintiff paid the amount required into court, a tender before suit brought is' waived. Tevis v. Tevis (Mo.) 1917A-865. b. Pleading. 8. Fraud as Defense Facts Insufficient. In a suit for the specific performance of a contract for the sale or exchange of lands, the answer attempting to set up plaintiff's fraudulent representations as to irrigation and water rights, admitting that the spe- cific water rights tendered by plaintiff were exactly those claimed in the contract, without alleging that the plaintiff was not then the owner of them, with full power to convey title thereto, and that plaintiff, when charged with such misrepresentation, agreed that if defendant would transfer the property mentioned in the contract plaintiff would furnish additional security, and that the parties undertook to make a new agreement, not contemplating any change as to the water rights, does not state facts sufficient to constitute a de- fense. Drennen v. Williams (Colo.) 1197A- 664. c. Evidence. 9. Contract to Devise Quantum of Proof. To enforce a contract whereby a person contracts to dispose of real estate by will, the same principle is applied and the same proof is necessary as when he contracts to convey title by deed. Brown v. Golightly (S. Car.) 1918A-1185. (Annotated.) d. Damages. 10. Eight of Action for Damages. If on the trial of an action against a devisee for the specific performance of the plain- tiff's contract with the testator of the devisee, with reference to the land de- vised, it should be developed that, with- out fault of the plaintiff, but on account of the defendant himself, a specific per- formance of the contract is impossible, damages may be awarded for a breach of the contract. Gordon v. Spellman (Ga.) 1918A-852. 11. Belief Granted Personal Liability. In an action for specific performance of a contract to convey lands, or in the alter- native for damages, defendant, who when he contracted was not the owner of all the lands and personal property he agreed to convey, and was without power to make such conveyance, is personally liable on 758 DIGEST. 1916C 1918B. the contract, and, on breach thereof, liable for the resulting damages. Drennen T. Williams (Colo.) 1917A-664. SPEED. Opinion evidence, see Automobiles, 42, 43. SPENDTHRIFT TRUST. See Creditors' Bills, 7. See Trusts and Trustees, 6-12. SPLITTING CAUSES OF ACTION. Bee Libel and Slander, 97. SPOLIATION. See Alteration of Instruments, 1. SPONGE. Left in wound, see Physicians and Sur- geons, 37, 38. SPRING GUN. Liability of landowner for manslaughter, see Weapons, 1. SPUR TRACK. Negligence in maintaining, see Railroads, 56. STALE CLAIMS. See Laches. STANDARD POLICY LAW. See Accident Insurance, 9. STANDING BY DEMURRER. See Pleading, 61, 62. STARE DECISIS. 1. Power to Overrule Decisions. 2. Application of Doctrine. a. In ueneral. b. Decisions Construing Constitution or Statute. c. Decision Establishing Rule .of Evi- dence. d. Erroneous Decisions. e. Novel Element Involved. f. Obiter Dicta as Precedents. g. Advisory Opinions. ! Decisions as precedents, see Courts, 22-36. 1. POWER TO OVERRULE DECISIONS. 1. Right to Overrule Previous Decision. Under Ala. Code 1907, 5965, requiring the supreme court, in deciding a case when there is a conflict between its existing opinion and any former ruling in the case, to be governed by its later opinion, it is the duty of the court, where its former ruling that petitioner had a right to con- demn the property desired is attacked on appeal, after the award of damages, to re- consider the former opinion, and, if con- vinced that it is erroneous, to disregard and overrule it. Louisville, etc. R. Co. v. Western Union Tel. Co. (Ala.) 1917B-696. 2. Under Mass. Const. 1890, 144, vest- ing the judicial power of the state in the supreme court and such other courts as ere provided for in the constitution, and section 146, providing that the supreme court shall have such jurisdiction as prop- erly belongs to a court of appeals, there is no constitutional restriction on the power of the supreme court to overrule or change decisions which in its opinion are erroneous or wrongful. Brewer v. Brown- ing (Mass.) 1918B-1013. 2. APPLICATION OF DOCTRINE. a. In General. 3. Previous Decision Adhered to. This court declines to review and overrule the decision in McWhorter v. Ford, 142 Ga. 554 (83 S. E. 134). Sutton v. Ford (Ga.) 1918A-106. b. Decisions Construing Constitution or Statute. 4. Single Previous Decision. As a gen- eral rule, a constitutional question once decided is no longer open, though, where the opinion is radically wrong, the court on a new appeal in the same case, or in another case, will correct the error, unless prevented by the rule of stare decisis. Greene County v. Lydy (Mo.) 1917C-274. 5. Decision on Constitutional Question. It is the court's duty to adhere to a ruling in a former case on a constitutional ques- tion, especially where the constitution was therein liberally construed, since an inter- pretation once put upon a constitution should be thereafter adhered to, unless manifestly wrong and mischievous in effect, and constitutions should receive a liberal interpretation. State v. Brantley (Miss.) 1917E-723. 6. Construction of Statute. The con- struction placed on a statute by the high- est court of the state becomes a part of the original text only when it will not affect contract or property rights. State v. Missouri Athletic Club (Mo.) 1916D- 931. c. Decision Establishing Rule of Evi- dence. 7. The doctrine of stare decisis cannot apply to a mere rule of evidence in which no one has a vested right. Williams v. Kidd (Cal.) 1916E-703. STATE BOAED OF HEALTH STATES. 759 d. Erroneous Decisions. 8. Propriety of Overruling Previous De- cision. The supreme court will overrule decided cases which operate to effect injus- tice or lead to wrong results, though de- cided by the great judges of the past. Brewer v. Browning (Mass.) 1918B-1013. e. Novel Element Involved. 9. Scope of Ruling. As an appellate court does not look for objections, a ruling that an instruction was not subject to a particular objection is not an approval of the instruction which will prevent consid- eration of a different objection in a future case. Lichtenstein v. L. Fish Furniture Co. (111.) 1918A-1087. f. Obiter Dicta as Precedents. 10. Limitations of Doctrine Dicta. The rule of stare decisis, whereby uniformity, certainty, and stability in the law is ob- tained by the following of earlier pre- cedents, contemplates only such points as are actually involved and determined in a case and mere obiter dicta or points not necessary to the decision need not be fol- lowed; general observations being con- strued with reference to the particular facts. Moose v. Board of Commissioners (N. Car.) 1917E-1183. g. Advisory Opinions. 11. Advisory Opinion of Judges. The opinion of the justices that a proposed act would be constitutional, if enacted, is advisory only and not binding as an authority. Woods v. Woburn (Mass.) 1917A-492. (Annotated.) STATE BOAED OF HEALTH. See Health. STATE BOND FOND. See Public Officers, 67-74. STATE MILITIA. See Militia. STATE OFFICERS. See Public Officers, 1. STATES. 1. Jurisdiction and Powers, 759. 2. Boundaries, 759. 3. Fiscal Management, 759. a. Appropriations, 759. b. Restraining Expenditure of State Funds, 760. 4. Liability for Torts of Officers, 760. 5. Actions Against State, 760. 6. Actions on Relation, 760. 7. Relation of States Inter Se, 760. Protection of wild animals, see Animals, 14, 16. Liability of state for damage by wild ani- mals, see Animals, 18. Control of "banks, see Banks and Banking 4-10. Respective powers of state and U. S., see Constitutional Law, 5. Fifth amendment no limitation on state power, see Constitutional Law, 59. Jurisdiction of state courts, see Courts 12-18. Power to regulate liquor traffic, see Intox- icating Liquors, 1-8. Admission of Iowa to Union, see Jury, 3, 4. Election between federal and state law under Employers' Liability Act, see Master and Servant, 76-80. Control of municipalities, see Municipal Corporations, 18-20. Control of highways, see Streets and High- ways, 2. Effect of statutes enacted prior to admis- sion to Union, see Territories, 1. 1. JURISDICTION AND POWERS. 1. Legislative Power Over Real Prop- erty Titles. The conditions of ownership of real estate whether the owner is a tit- izen or alien, resident or nonresident, are subject to the laws of the state where situated. Cona v. Henry Hudson Co (N. J.) 1916E-999. 2. 'Governmental Independence. The several states possess the authority of in- dependent states, except as limited by the federal constitution. Flexner v. Larson (111.) 1916D-810. 2. BOUNDARIES. 3. River as Boundary. By Act Cong. April 18, 1818, c. 67, 3 Stat. 428, making the Wabash river part of the boundary line between the states of Indiana and Illinois, the middle of the current becomes the boundary line, and the condemnation of a right of way for a telegraph company to the boundary line is subject to the control of the United States over the Wa- bash river. Western Union Tel. Co. V. Louisville, etc. R. Co. (111.) 1917B-670. 4. The phrases "middle of the river" and "middle of the main channel" are equiva- lent expressions, and both mean the main line of the channel or the middle thread of the current. Western Union Tel. Co. v. Louisville, etc. R. Co. (111.) 1917B-670. 3. FISCAL MANAGEMENT. a. Appropriations. 5. Fiscal Affairs Validity of Continu- ing Appropriation. Ark. Laws 1911, p. 299, by which the legislature made appro- priations for school purposes, is valid as a continuing appropriation, where the ap- propriations were for authorized objects; the provision requiring biennial appropria- 760 DIGEST. 1916C 1918B. tions not applying. Dickinson v. EdmOnd- son (Ark.) 1917C-913. 6. Exceeding Current Eevenue Validity of Contract. 111. Const, art. 4, 18, pro- hibits appropriations in excess of the rev- enue authorized by law to be raised in the period for which appropriations are made, but provides that in case of failure of revenue the general assembly may borrow moneys to be applied to the purpose for which they were obtained, or to pay the debt BO created, and to no other purpose. Section 19 prohibits the general assembly from authorizing the payment of any claim or part created against the state under any contract made without express authority of law, with the exception that it may make appropriations for expenditures in- curred in repelling invasion or suppressing insurrection. 111. Cr. Code (Kurd's Eev. St. 1915-16, c. 38) 208, provides that making a contract in excess of the amount of an appropriation subjects the public officer to a fine and removal from his office, trust, or employment. It is held that every claim or contract created or made by an officer of the state is utterly void if not within the amount of appropriations already made, unless there is express au- thority of law for the creation of the debt or claim or the making of the contract, that authority being "express" which con- fers power to do a particular identical thing set forth and declared exactly, plainly, and directly with well-defined lim- its, an authority given in direct terms, definitely and explicitly, and not left to inference or implication, as distinguished from authority which is general, implied, or not directly stated or given. Fergus v. Brady (111.) 1918B-220. b. Ke straining Expenditure of State Funds. 7. Taxpayer's Action Restraining Un- authorized Payments. A taxpayer has the right to maintain a suit to restrain the state auditor of public accounts and the state treasurer from paying out sums illegally appropriated by the general as- sembly, in violation of 111. Const, art. 4, 18, 19, in excess of revenue. Fergus v. Brady (111.) 1918B-220. 4. LIABILITY FOR TORTS OFFICERS. 8. Liability for Tort of Officer. Mass. Rev. Laws, c. 201, permitting enforcement in the courts of claims against the com- monwealth, cannot be stretched to include damages for an ordinary tort committed by an officer or employee of the common- wealth, in the performance of duties pre- scribed by law. Burroughs v. Common- wealth (Mass.) 1917A-38. 5. ACTIONS AGAINST STATE. 9. Liability to Suit. A suit by an alien to restrain the attorney general and county attorney from enforcing to his in- jury the Arizona anti-alien labor law of December 14, 1914, which he asserts is repugnant to the federal constitution, can- not be regarded as a suit against the state. Truax T. Raich (U. S.) 1917B-283. 10. A sovereignty can be impleaded in its own courts only in the manner, to the extent, and for the causes expressed in the statute granting consent thereto. Bur- roughs v. Commonwealth (Mass.) 1917A- 38. 6. ACTIONS ON RELATION. 11. State as Party. In an original pro- ceeding in the supreme court, the state is the actual plaintiff, and the relator, a mer incident. State v. Taylor (N. Dak.) 1918A-583. 7. RELATION OF STATES INTER SB. 12. Relation to Each Other. The sev- eral states of the Union are foreign to each other, except so far as the United States is the paramount government as to each, binding them to recognize the fraternity among their sovereignties established by the constitution of the United States. Bel- lows Falls Power Co. v. Commonwealth (Mass.) 1916C-834. STATE'S ATTORNEY. See Prosecuting Attorneys. STATIONARY ENGINE. Duty to guard against fire, see Negligence. 33. STATIONS. See Depots. STATUTE OF FRAUDS. See Frauds, Statute of. STATUTE OF LIMITATIONS. OF See Limitation of Actions. STATUTE OF NONCLAIM. Mortgage claim presented after bar, Bee Executors and Administrators, 24. STATUTE OF USES. See Charities. Merger of estates under, see Estates, 6. STATUTES. 761 STATUTES. 1. Constitutional Kequirements as to Title and Subject, 762. a. In General, 762. b. Statutes Relating to Particular Sub- jects, 762. 2. Requisites of Statutes, 763. 3. Mandatory and Permissive Statutes, 763. 4. Enactment, 763. a. Enacting Clause, 763. b. Reading or Printing of Bill, 763. c. Action by Governor, 763. d. Legislative Journals, 763. e. Enactment Over Veto, 764. 5. Effect of Partial Invalidity, 764. 6. Construction, 765. a. General Rules, 765; b. Giving Effect to Legislative Intent Generally, 766. C. Construction as a Whole, 766. d. Liberal Construction, 766. e. Unambiguous Statutes, 766. f. Words Construed According to Their Natural and Obvious Mean- ing, 766. g. Words Given Their Ordinary Mean- ing, 766. h. Statutory Definitions Adopted, 766. i. Restriction of General Words, 767. j. Interpretation of Particular Words and Phrases, 767. k. Conflicting Words, 767. 1. Construction in Favor of Validity, 767. m. Inconvenience from Enforcement, 767. n. Construction Eendering Statute Absurd, 767. o. Retrospective or Prospective Mean- ing, 767. p. Presumption of Legislative Knowl- edge, 767. q. Ejusdem Generis, 767. r. Effect of Pre-existing Laws, 767. s. Codification, 768. t. General and Special Statutes, 768'. u. Statutes in Pari Materia, 768'. v. Remedial Statute, 768. w. Penal Statute, 768. x. Statutes Adopted from Another . State, 768. y. Time of Taking Effect, 769. z. Disregarding Clerical Error, 769. aa. Effect of Re-enactment, 769. bb. Avoidance of Inutility, 769. cc. Presumption Against Innovation, 769. dd. Effect of Judicial Decision, 769. ee. Reading Matter into Statute, 769. ff. Effect of Unrelated Statutes, 769. gg. Particular Aids to Construction, 769. 7. Amendment or Repeal, 770. a. In General, 770. b. Repeal by Implication, 770. c. Repeal of Repealing Statute, Effect, 771. d. Effect of Invalidity of Amendment, 771. e. Effect on Pending Action, 771. See Licenses, 38; Trees and Timber, 6-12 Regulation of accident policies, see Acci- dent Insurance, 9. Selective draft act see Army and Navy, 1-9. Act against assignment of claim to non- resident, see Assignments, 4. Bankruptcy Act, see Bankruptcy. Negotiable Instruments Act, see Bills and Notes, 1-7. Eegulations of passenger carriers, see Carriers of Passengers, 4-7. Stay of operation of criminal statute, see Criminal Law, 1, 2. Power of court to nullify statute, see Equity, 5. As evidence, see Evidence, 96. Judicial notice of statutes, see Evidence, 6. Homestead Act, retroactive effect, see Homestead, 2. Statute nullifying marriage not retroactive as to crime, see Incest, 2. Statutes regulating insurance, see Insur- ance, 8. Amendment retroactive, validity, see Limi- tation of Actions, 2-4. Scope of lis pendens statute, see Lis Pen- dens, 1. Statutory duties of master, see Master and Servant, 24. Statutes repealed by Employers' Liability Act, see Master and Servant, 42. Title of Workmen's Compensation Act, see Master and Servant, 110, 115. Construction of Workmen's Compensation Acts, see Master and Servant, 168-178. Doctrine of ejusdem generis applied to "anything," see Monopolies, 11. Title of Commission Government Act, see Municipal Corporations, 13. Ordinances, see Municipal Corporations, 48-108. Defining nuisance, see Nuisances, 2. Validity of laws regulating medical prac- tice, see Physicians and Surgeons, 2. Construction of poor laws, see Poor and Poor Laws, 2. Construction of postal laws, see Postofflce, 11, 12. Construction of process statute, see Pro- cess, 10. See Prostitution, 4, 14, 15. Anti-nepotism Law, see Public Officers, 11-22. Fixing salary of teachers, see Schools, 31. Strict construction of search law, see Searches and Seizures, 4. Construction, see Stare Decfsis, 6. Construction of taxation laws, see Taxa- tion, 35-39, 70-85. Construction of exemption statutes, see Taxation, 70-85. Effect of statutes passed prior to state- hood, see Territories, 1. Publication in gorman paper insufficient, see Trees and Timber, 2. 762 DIGEST. 1916C 1918B. Eight to devise purely statutory, see Wills, 3. L CONSTITUTIONAL BEQUIRE- MENTS AS TO TITLE AND SUB- JECT. (a) In General. 1. To escape violating 111. Const, art. 4, 6 13, providing that no act shall embrace more than one subject, expressed in the title, the title need not minutely and ex- actly express every related matter in- cluded in the act; it being enough if all the provisions are related to the subject indicated, are part of it, or incident to it, and reasonably connected with and auxil- iary to the object or purpose of the act as expressed in the title. Perkins v. Board of County Commissioners (111.) 1917A-27. 2. Under 111. Const, art. 4, 13, provid- ing that, if any subject shall be embraced in an act unexpressed in the title, such act shall be void only as to so much as shall not be so expressed, the fact that a statute contains a provision unexpressed in the title does not render the whole act void. Perkins v. Board of County Commissioners (111.) 1917A-27. 3. Title Held Sufficient. The title of the act is sufficient. State v. Missouri Pacific E. Co. (Kan.) 1917A-612. 4. Effect of Subsequent Codification. Where a section of a legislative act has been incorporated in the Idaho Eevised Codes and adopted as a part of the com- plete statutes of the state, the court will not inquire into or consider the sufficiency of the original title of the act in which eueh section was originally adopted by the legislature. In such case, it is too late to raise the sufficiency of the title to the original act, which was adopted prior to the date of its incorporation and adop- tion in the Eevised Codes of the state. Anderson v. Great Northern E. Co. (Idaho) 1916C-191. 5. Relation of Provisions to Subject. Notwithstanding Nev. Const, art. 4, IT, providing that each law shall embrace but one subject and matters properly con- nected therewith, a statute may contain several provisions, provided they relate to the subject expressed in the title, or are properly connected therewith. Worthing- ton v. District Court (Nev.) 1916E-1097. 6. Sufficiency of Title. The sufficiency of the title of a statute is a legislative and not a judicial question. Board of Trustees v. Waugh (Miss.) 1916E-522. 7. Embracing More Than One Subject. Article 31 of the La. constitution does not prohibit the embracing in a statute of the means provided for the accomplishment of its object; nor does the fact that such pro- vision is made render the statute obnox- ious to the objection that it embraces more than one object. Louisiana State Board v. Tanzmann (La.) 1917E-217. b. Statutes Eelating to Particular Sub- jects. 8. Liquor Law. The Hazel Law (27 Del. Laws, c. 139), entitled "An act regulating the shipment or carrying of spirituous, vinous, or malt liquor into local option territory or the delivery of same in such territory," by section 1 prohibits common carriers from accepting such liquor for shipment into local option territory, by section 2 prohibits any person engaged in the manufacture or sale of such liquor from delivering it in local option terri- tory, by section 5 excepts shipments to physicians and druggists in limited quan- tities, and by section 6 prohibits any per- son from bringing from any point within the state into local option territory more than one gallon of whiskey in 24 hours. Held that, while sections 1 and 2, stand- ing alone, established prohibition, and not a regulation, yet the act, construed as a whole, was a regulation of shipments, and the subject of the act was properly ex- pressed in its title, as required by Const. Del. art. 2, 16. Van Winkle v. State (Del.) 1916D-104. 9. Divorce. The title of an act entitled "An act relating to marriage and divorce" is sufficient, within Nev. Const, art. 4, 17, providing that each law shall embrace but one subject and matters properly con- nected therewith, to justify provisions in the body of the act prescribing the length of residence required before parties may apply for a divorce. Worthington v. Dis- trict Court (Nev.) 1916E-1097. 10. Public Utilities Act. Public Utilities Act, 81, providing for the repeal of the "act establishing a board of railroad and warehouse commissioners," together with acts declaring express companies to be common carriers, subject to the jurisdic- tion of the railroad and warehouse com- mission, is not in violation of Const, art. 4, 13, declaring that no law shall be re- vived or amended by reference to its title only, for the utilties act is complete in itself, and not an amendment of any prior act. State Public Utilities Com. v. Chi- cago, etc. E. Co. (111.) 1917C-50. 11. Emergency Loan by County. Nev. Act March 13, 1903 (Laws 1903, c. 78), 6, 7 (Eev. Laws, 3831, 3832), author- izing county commissioners, in case of great necessity or emergency, to make a temporary loan, and requiring them at the next tax levy to make a levy for its pay- ment, does not, in violation of Const, art. 14, 17, relate to a subject not embraced in the title, "An act relating to county government and the reduction of the rate of county taxation." First National Bank v. Nye County (Nev.) 1917C-1195. STATUTES. 763 12. Authorizing Consolidation of Corpo- rations. Burns' Ann. St. Ind. 1914, 5690, relating to the consolidation of street rail- road companies, amending Act March 3, 1899, does not violate Const, art. 4, 19, providing that every act shall embrace but one subject and matters properly co^- nected therewith, which subject shall be expressed in the title, in that the original act under its title might have authorized such consolidation. Norton v. Union Trac- tion Co. (Ind.) 1918A-156. 13. Liability of Railroad for Fire. That proviso is germane to the subject expressed in the title, which was "An act to estab- lish the responsibility of railroads, cor- porations, companies, and persons owning or operating railroads for damages by fires communicated by locomotives." Pitts- burgh, etc. E. Co. v. Chappell (Ind.) 1918A-627. 14. Prohibition Law. The act approved November 17, 1915 (Acts Ga. 1915, p. 77), is not unconstitutional on the ground that it contains matter different from what is expressed in its title. Delaney v. Plunkett (Ga.) 1917E-685. 2. KEQUISITE'S OF STATUTES. 15. Requisites Certainty. The provi- sions of chapter 39, as amended by chap- ters 26 and 133, Session Laws Okla. 1913, are not void for uncertainty in respect to the duties therein imposed upon police officers. State v. Linn (Okla.) 1918B-139. 16. Incomplete Statute. If a legislative enactment is so uncertain that the court cannot determine with any reasonable de- gree of certainty, what its purpose was, or if it be so incomplete that it cannot be executed, ft must be condemned as void. State v. Board of State Canvassers (Wis.) 1916D-159. 17. Uncertainty. That a statute, in some provisions, is so vague, uncertain, and indefinite in its terms as to be in- capable of execution, does not render it void, so long as it does not infringe some constitutional provision and is capable of execution in its more essential provisions. Perkins v. Board of County Commissioners (111.) 1917A-27. 3. MANDATORY AND PERMISSIVE STATUTES. 18. A legislative provision accompanied by a penalty for failure to observe it is mandatory. Cramer's Election Case (Pa.) 1916E-914. 19. Compliance with the commands of a mandatory statute is a condition precedent to the validity of an act or determination under it, and the prescribed mode of doing the act or reaching the determination must be strictly pursued. People v. Snell (N. Y.) 1917D-222. 20. Directory or Mandatory. In deter- mining whether statutes are mandatory or directory the legislative intent governs. People v. Graham (111.) 1916C-391. 4, ENACTMENT. a. Enacting Clause. 21. The enacting clause of a statute can be extended by the preamble, but can- not be restrained by it. Brown v. Erie E. Co. (N. J.) 1917C-496. (Annotated.) b. Reading or Printing of Bill. 22. Formalities of Enactment Three Headings in Each House. Const. Tenn. art. 2, 18, requiring a bill to be read and passed in each house on three separate days, is satisfied, where it is introduced in duplicate in the two houses, and the Senate bill, after passing its third reading and being enrolled, is on the third read- ing in the house substituted for the house bill and passed. Heiskell v. Knoz County (Tenn.) 1916E-1281. c. Action by Governor. 23. Nature of Veto Power. While the veto power is ordinarily exercised by the person possessing the executive power, it is not an "executive" but a "legislative" power. Gottstein v. Lister (Wash.) 1917D- 1008. 24. Action of Executive Parol Evi- dence. Under Ark. Const, art. 6, 15, pro- viding that every bill which shall have passed the general assembly shall be pre- sented to the governor, and that if he ap- prove it he shall sign it, but that if he shall not approve it he shall return it with his objections to the house in which it originated, which shall enter the objec- tions at large in their journal, and pro- ceed to reconsider it, in mandamus pro- ceedings by an association, alleging that it was specially interested, to compel the secretary of state to publish among the acts of the legislature a statute which the association claimed the governor had ap- proved, parol evidence extrinsic to the legislative records, which showed that the bill was vetoed and not approved, is inad- missible to determine whether the gov- ernor first approved the bill before subse- quently vetoing it. Arkansas State Fair Assoc. v. Hodges (Ark.) 1917C-829. (Annotated.) Note. Admissibility of extrinsic evidence with respect to approval or disapproval of bill by executive. 1917C-836. d. Legislative Journals. 25. Evidence of Enactment Conclusive- ness of Journals. Journals of the legisla- ture cannot be impeached even for fraud or mistake, but any errors therein can be corrected only by the legislature. Heiskell v Knox County (Tenn.) 1916E-1281. 764 DIGEST. 1916C 1918B. 26.. Enactment Presumption of Regula- rity. Tie senate journal does not affirm- atively show that the bill was not read by sections on its final passage and the pre- sumption is that the requirements of sec- tion 15 of article 2 of the Kan. constitu- tion were observed. State v. Missouri Pacific E. Co. (Kan.) 1917A-612. e. Enactment Over Veto. 27. Requisite Number of Votes. In pass- ing a bill by the Senate upon reconsidera- tion after a veto it is not essential that two-thirds of all the senators vote there- for, but it is sufficient if two-thirds of a quorum support such bill. State v. Mis- souri Pacific E. Co. (Kan.) 1917A-612. 5. EFFECT OF PAETIAL INVALIDITY. 28. Ind. Employers' Liability Act March 2, 1911 (Laws 1911, c. 88), 7, providing that all questions of assumption of risk, negligence or contributory negligence shall be for the jury, or for the courts in causos tried without a jury, if invalid, is entirely severable from the other provisions of that act. Vandalia Eailroad Co. v. Stillweil (Ind.) 1916D-258. 29. If the provision of the Corrupt Prac- tice Act (N. Dak. Comp. Laws 1913, 923- 944) attempting to govern the election of United States senators and members of Congress is invalid, it is severable and does not affect the validity of the act as applied to the election of state and county officers. Diehl v. Gotten (N. Dak.) 1918A- 884. 30. As the exemption is not so inter- woven with the texture of the Mont. Farm Loan Act (Laws 1915, c. 28) or so indis- pensable to its purposes or operation as to compel the view that without it the act would not have been passed, its invalidity will not affect the act itself. Hill v. Eae (Mont.) 1917E-210. 31. As such Mont. Farm Loan Act may be carried out without such unconstitu- tional appropriation of money as a guar- anty to lenders under the act, the act itself will not fall. Hill v. Eae (Mont.) 1917E-210. 32. If a duly enacted statute contains provisions that are invalid because in con- flict with the organic law, and such in- valid portions may be severed, and the re- mainder of the statute may then be made effective for the purpose designed, and will not cause results not intended by the legis- lature, and it does not appear that the statute would not have been enacted with- out the invalid portions, the invalid por- tions of the act should be disregarded and the valid nortions enforced if it can be done to effectuate the legislative intent. State v. Philips (Fla.) 1918A-13S. 33. The proviso of Burns' Tnd. Ann. St. 1914, 5525u, that the burden of proof of contributory negligence is upon the rail- road company in an action for damages caused by fire, if not within the title, does not render the entire act void under Const, art. 4, 19, requiring the subject of the statute to be expressed in the title, s^nce the act would be complete, sensible, and capable of execution with that pro- viso eliminated. Pittsburgh, etc. E. Co. v. Chappell (Ind.) 1918A-627. 34. Where the provisions of the Commis- sion Merchants' Law (Bern. & Bal. Wash. Code, 7024-7035) applicable to defend- ants were valid, the invalidity of other portions which could be separated from the remainder will not defeat the entire act. State v. Bowen & Co. (Wash.) 1917B- 625. 35. Under Const. Amend. 7, approved March 10, 1911 (Laws Wash. 1911, p. 136), providing for the initiative and referen- dum and that an initiative measure shall be in operation after the thirtieth day after the election, initiative measure No. 3 (Laws 1915, p. 2), prohibiting the manu- facture, keeping, sale, etc., of intoxicating liquors, before any attempt to enforce its provisions prior to January 1, 1916, even if violative of the amendment by reason of the postponement of its operation, would have no effect upon the constitu- tionality of other provisions thereof, as section 26 expressly so declares. Gottstein v. Lister (Wash.) 1917D-1008. 36. The possible invalidity of so mucn of Mich. Pub. Acts 1913, act No. 301. licen- sing and regulating private employment agencies, as prescribes the fees which may be demanded or retained, does not affect the validity of other provisions of the act from which the provision in- respect to fees is separable. Brazee v. Michigan (U. S.) 1917C-522. 37. Where a statute is in part invalid, the court must uphold the balance, where, by so doinsr, it carries out the legislative intent. Greene County v. Lydy (Mo.) 1917C-274. 38. The Public Utilities Act will not be held invalid because of the invalidity of portions of the act which are not neces- sary or inseparable parts of the act, with- out which it would not have been passed, where their elimination will leave a valid act capable of being carried out. State Public Utilities Com. v. Chicago, etc. E. Co. (111.) 1917C-50. 39. If part of an enactment is uncon- stitutional and the remainder is not, and is reasonably complete by itself, and the former was not such inducement to the en tirety but what the latter might, within reasonable probability, have been enacted by itself, to that extent it should be ap- proved and otherwise disapproved. State v. Board of State Canvassers (Wis.) 1916D-159. (Annotated.) STATUTES. 765 40. the Hazel Law (27 Del. Laws, c. 139), regulating shipments of intoxi- cating liquors into local option territory of the state for any purpose, except to physicians and druggists, though invalid as to an interstate shipment intended for the receiver's personal consumption, recog- nized by the act itself to be lawful, is a valid enactment in so far as it regulates, limits, or prohibits the shipment of liquor from one part of the state into a prohibi- tion district in another part of the state. Van Winkle v. State (Del.) 1916D-104. (Annotated.) 41. In determining the constitutionality ol a statute, the valid parts should be separated, if possible, from those which are invalid, and be permitted to stand, unless the different parts are so intimately connected with and dependent upon each other as to show a legislative intent that, if all could not be carried into effect, the residue would not have been enacted inde- pendently. American Express Co. v. Beer (Miss.) 1916D-127. (Annotated.) 42. A part of a law may be unconstitu- tional and the remainder of it valid, where the objectionable part may be properly separated from the other, without impair- ing the force and effect of the section which remains, and where the legislative purpose as expressed in such section can be accomnlished and given effect, inde- pendently of the void section, and, when the entire act is taken into consideration it cannot be said that the legislature would not have passed the section retained had it been known that the void section must fail. Held, that section 1, of chapter 23, N. Hex. S. L. 1901, is valid and enforce- able even though section 5 of the same act is unconstitutional, under the above rule. State v. Brooken (N. Mex.) 1916D-136. (Annotated.) 43. When a part of a statute is uncon- stitutional, that fact does not compel the courts to declare the remainder void, un- less the unconstitutional part is of such import that the other parts of the statute, if sustained without it, would cause re- sults not contemplated or desired by the legislature. The question to be deter- mined is whether the obnoxious part is an inducement of the whole act, or whether it is merely an incident thereto. The test to be applied in determining whether the unconstitutional provision in a statute in- validates fhe whole enactment is the an- swer to the following questions: (1) Are the constitutional and the unconstitutional parts capable of separation so that each may be read and may stand by itself f (2) Is the unconstitutional part so con- nected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the legislature ; f the clause or part is stricken out? (3) Ts the insertion of words or terms necessary in order to separate the constitutional part from the unconstitutional part, and to give effect to the former only? State v. Bick- ford (N. Dak.) 1916D-140. (Annotated.) 44. Where a part of a statute is uncon- stitutional, that fact does not require the courts to declare the remainder void also, unless all the provisions are connected in eubject matter depending upon each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the legislature would have passed the one without the other. Malin v. Lamoure County (N. Dak.) 1916C-207. 45. A statute is valid in part where the valid part is separable from the invalid part, and is capable of being executed, and thereby effectuate the manifest intent of the legislature. Gherna v. State (Ariz.) 1916D-94. (Annotated.) 46. The unconstitutionality of a part of a statute does not render the balance of the statute invalid, where enough remains to clearly show the legislative intent and to furnish sufficient details of a working plan to carry out the intent. State v. Duncan (Mo.) 1916D-1. (Annotated.) Note. Effect or partial invalidity of statute. 1916D-9. 6. CONSTRUCTION. a. General Rules. 47. Rules of Statutory Construction. In construing an ambiguous legislative enact- ment some established rules are to be ob- served as unwritten law with all the force of written law, and among them: (a) No attempt to read a legislative en- actment different from its plain words and evident meaning on its face is legitimate, if so read it "leads to no absurd con$e- quences." (b) There should be real uncertainly of meaning found in a legislative enactment before resorting to reading it by aid of rules for judicial construction. (c) Whether the meaning of words of an enactment are plain is to be deter- mined with reference to the connections in which they are used, the subject dealt with, the circumstances at the time, and the object in view. (d) The term "and leads to no absurd consequences" requires the rule that am- biguity requiring judicial construction may as well arise from applying the literal sense of words to the subject dealt with as from uncertainty of the words them- selves. (e) An intent, however apparent, which cannot reasonably be read out of a legis- lative enactment, should not be adopted, but an intent, however absurd, wnich can be so read and shows deafly the legisla- lative purpose beyond reasonable doubt, 766 DIGEST. 1916O 1918B. must be adopted regardless of the effect upon validity. (f) The very letter of an enactment may be violated to carry out a manifest legislative intent, so long as it can be found expressed within the reasonable scope of the language used. (g) Where there is irreconcilable con- flict between a legislative enactment and* an earlier law, a presumption arises of a purpose to modify or repeal the latter; but that is rebuttable by circumstances and, among them, that the existing law constitutes an entire system and the later enactment would render the entirety un- constitutional or absurd. State v. Board of State Canvassers (Wis.) 1916D-159. b. Giving Effect to Legislative Intent / Generally. 48. Construction to Effectuate. The court, in construing a statute, must ascer- tain and give effect to the intent of the legfslature, and, if consistent with the in- tent and the reason of the statute, the court will adopt the construction which will render the statute operative. State v. Duncan (Mo.) 1916D-1. 49. Statutes are to be interpreted so as to give effect to their manifest purpose, as ascertained from the words used, given their common and approved meaning, and no intent can be read into a statute which is not there either in plain words or fair implication. In Ee Bergeron (Mass.) 1917A-549. 50. When a statute is validly enacted, and its language is plain, and conveys a clear and dennite meaning, the sole duty of the courts is to give to it the exact meaning conveyed by its language, add- ing nothing thereto and taking nothing therefrom. It is only when the meaning of a statute is in doubt that courts are required first to construe it, in order to know how to enforce it. Van Winkle v. State (Del.) 1916D-104. 51. In considering a statute, effect should be ?iven to the intent of the law- makers. Uphoff v. Industrial Board (111.) 19a7D-l. 52. The primary rule for the interpreta- tion and construction of a statute is that the intention of the legislature is to be ascertained and given effect. People v. Chicago R. Co. (111.) 1917B-821. 53. The court, in construing a statute, cannot give to the language used any different meaning from that plainly ex- pressed, on the theory of a contrary legis- lative intent. Denver v. Hobbs Estate (Colo.) 1916C-823. 54. The object of all statutory interpre- tation and construction is to ascertain and give effect to the intention of the legis- lature. State v. Taylor (N. Dak.) 1916A- 583. 55. Statutes should be construed so as to give effect to legislative intent and avoid meaningless and absurd results. State v. Gordon (Mo.) 1918B-191. c. Construction as a Whole. 56. Effectuating All Provisions of Stat- ute. A statute being passed as a whole, that construction giving effect to all sec- tions should be adopted. Uphoff v. In- dustrial Board (111.) 1917D-1. 57. All Parts Considered. In arriving at the meaning and intent of a legislative enactment, every part thereof, as well as the title, must be taken into consideration. Victor Chemical Works v. Industrial Board (111.) 1918B-627. d. Liberal Construction. 58. In Aid of Military Power. A public statute relating to the military power of the government should be liberally con- strued so as to make such power effective. Sweetser v. Emerson (Fed.) 1917B-244. e. Unambiguous Statutes. 59. Where a statute is plain and un- ambiguous, whether expressed in general or limited terms, there is no room for con- struction to determine its meaning. Louis- ville, etc. R. Co. v. Western Union Tel. Co. ^Ala.) 1917B-696. 60. The rules for the construction of statutes are only valuable in so far as their application enables the court to bet- ter ascertain the intent of the legislature, as expressed in the statute, and whejje the statute is plain and unambiguous there is no room for construction. Correll v. Will- iams, etc. Co. (Iowa) 1918A-117. f. Words Construed According to Their Natural and Obvious Meaning. 61. The meaning of a statute must pri- marily be determined by the language of the act itself. Whiley v. Solvay Process Co. (N. Y.) 1917A-314. g. Words Given Their Ordinary Meaning. 62. In construing a statute, words should be given their ordinary meaning. State v. Gordon (Mo.) 1918B-191. h. Statutory Definitions Adopted. 63. The legislature may adopt reason- able modifications of former definitions of words, so as to make their interpretation conform to modern usage. Ideal Tea Co. v. Salem (Ore.) 1917D-684. 64. Legislative Definitions Effect. A legislative body may within limits define the objects affected or designed to be by its own enactments, and the supreme court is ordinarily bound, in construing its acts STATUTES. 767 or ordinances, to follow its own definitions. St. Louis v. N"ash (Mo.) 191&B-134. 65. Interpretation Clause Definition of Terms. The legislature may in any act de- fine terms specifically for that act; there- fore no complaint can be made that the 111. Public Utilities Act, 10, defining the term "public utility," declares that it shall include corporations or receivers that own, control, operate, or manage any plant, equipment, or property used in connection with the transportation of persons, and defines the terms "railroad" as including every railroad other than a street railroad by whatsoever power operated, and a "street railroad" as including every rail- road being laid upon, above, or below any strqet. State Public Utilities Com. V. Chicago, etc. R. Co. (111.) 1917C-^50. i. Restriction of General Words. 66. General words and phrases in a stat- ute may be restricted in meaning to adapt their meaning to the subject-matter in ref- erence to which they are used. Barber v. Morgan (Conn.) 1916E-102. 67. The court, to harmonize conflicting statutory provisions and to effectuate the intention of the legislature, must either re- strict or enlarge the ordinary meaning of the words in the statutes, and this rule has special force where the statutes must be made to conform with the constitution. State Y. Pay (Utah) 1917E-173. j. Interpretation of Particular Words and Phrases. 68. Construction "Other." The rule of construction requiring the word "other" in a statute to be construed as "other such like," with reference to things previously enumerated, does not apply where legisla- tive intention is manifestly to the con- trary, and the word will then receive a general construction. American Ice Co. V. Fitzhugh (Md.) 1917D-33. k. Conflicting Words. 69. Disregarding Inconsistent Words. In construing a statute, the courts are not confined to the literal meaning of the words, but may disregard words inconsist- ent with the general intent. Uphoff v. In- dustrial Board (111.) 1917D-1. 1. Construction in Favor of Validity. 70. Statutes should receive tuat con- struction which will uphold their validity. Spangler v. Mitchell (S. Dak.) 1918A-373. m. Inconvenience from Enforcement. 71. Avoiding Hardship. In construing a statute the courts will consider that one construction would lead to hardships by giving a remedy for ancient aud forgotten wrongs which another construction would avoid. Jacobus v. Colgate (N. Y.) 1917E- 369. n. Construction Rendering Statute Ab- surd. 72. The courts are bound to presume that the legislature did not intend absurd consequences, leading to great injustice. Uphoff v. Industrial Board (111.) 1917D-1. 73. A construction of a statute which will result in great inconvenience or ab- surd consequences should be avoided. Up- hoff v. Industrial Board (111.) 1917D-1. 74. Rules of strict and literal construc- tion may be departed from, in order that absurd results may be avoided, and to in- sure that the statute shall be effective for the purposes intended. Sweetser v. Emer- son (Fed.) 1917B-244. o. Retrospective or Prospective Meaning. 75. Retrospective Operation Regulation of Procedure. The provision of Nev. Act Feb. 20, 1913 (Laws 1913, &. 10), amending section 22 of the Marriage and Divorce Act of 1861 (Laws 1861, c. 33), as amended by Act Feb. 15, 1875 (Laws 1875, c. 22), by declaring that the court shall not grant a divorce, unless either party shall have been a resident for not less than one year, relates merely to procedure, and not to the cause of action, and applies to cases where the cause of action accrued before the act took effect. Worthington v. District Court (Nev.) 1916E-1097. 76. Retroactive Effect. A statute will not be given a retroactive effect, unless by its terms it is clearly shown that that was the legislative intent. Graves v. Dun- lap (Wash.) 1917B-944. 77. Prospective Operation. Statutes should be construe'd prospectively, and not retrospectively, although there is no con- stitutional impediment. State v. Iowa Tel. Co. (Iowa) 1917E-539. p. Presumption of Legislative Knowledge. 78. The legislature is presumed to know the rules and principles of construction adopted by the courts. Twentieth Street 'Bank v. Jacobs (W. Va.) 1917D-695. q. Ejusdem Generis. 79. Under the rule ejusdem generis, where general words follow the enumera- tion of particular classes of persons or things, the general words will be construed a? applicable only to the persons or things of the same general nature or class as those enumerated. State v. Gardner (Iowa) 1917D-239. t. Effect of Pre-existing Laws. 80. Prior State of Law. A study of the law as it was prior to enactment of the 768 DIGEST. 1916C 1918B. statute to be construed, is only profitable in so far as it may aid in the interpreta- tion of the act, but the act itself is the law which must govern the court. Correll v. Williams, etc. Co. (Iowa) 1918A-117. a. Codification. 81. Construing Statutes Together Pro- visions Adopted at Different Times. Though the substance of Shannon's Tenn. Code 3935, relative to the jurisdiction to appoint administrators of the estates of non-residents was enacted prior to the Code of 1858, with which the right of action lor wrongful death originated, it having been made a part of that code along with the sections giving the right of action for wrongful death, they must be construed together as if they had originated with the cede, as that code was a single enactment. Sharp v. Cincinnati, etc. R. Co. (Tenn.) 1&17C-1212. t. General and Special Statutes. 82. Statutes Eclating to Courts. Stat- utes dealing with the courts are, as a gen- eral rule, general statutes, though not ap- plicable to every court of like nature in the state. Greene County v. Lydy (Mo.) 1917C-274. n. Statutes in Pari Materia. 83. It is the court's duty in interpreting related statutes to give effect to both of them, if possible, rather than to destroy one of them. Palmer v. Cedar Rapids (Iowa) 1916E-558. 84. Consolidation of Corporations. A consolidation of two street railroad com- panies not in legal effect constituting a sale of the property of the constituent cor- porations, Burns' Ind. Ann. St. 1914, 5690, providing that street railroad companies may consolidate upon such terms as may be by them mutually agreed upon, and section 5653, authorizing street railroad companies to sell their properties in cer- tain cases, but providing for the payment to a dissenting shareholder of the ao- praised value of his stock, are not properly construed together. Norton v. Union Trac- tion Co. (Ind.) J1918A-156. 85. Intoxicating Liquors. Tenn. Acts 1913 (2d Ex. Sess.), c. 1, regulating the shipment of intoxicating liquor into the state, or between points within the state. and chapter 3, prohibiting the conveying or shipping liquor from one county to an- other in the state, are in pari materia, and must be construed together so as to har- monize with each other, especially since they were passed at the same legislative session and are presumed to be actuated by the same public policy; and the excep- tions to the prohibition, to the shipment of liquor maintained in chapter 1 will be construed to apply to chapter 3. Bird V. State (Tenn.) 1917A-634. v. Remedial Statute. 86. Evil to be Remedied. Where a new statute is so ambiguous as to incite con- trary opinion as to its meaning, the first test is to discover the evil sought to be corrected. Huntworth v. Tanner (Wash.) 1917D-676. 87. Judicial Notice of Current History. The court, in determining the validity of a statute, may take judicial notice of cur- rent "history and the mischief the statute attempted to provide against. Greene County v. Lydy (Mo.) 1917C-274. w. Penal Statute. 88. Statutory Rules of Construction. Tex. Rev. St. 1911, art. 5502, prescribing rules for the construction of civil statutory enactments, applies and is of binding force in criminal prosecutions. Bradfield v. State (Tex.) 1917C-696. 89. Strict Construction. Where a law is penal and prescribes punishment, acts will be construed as without its operation, rather than within it. Huntworth v. Tan- ner (Wash.) 1917D-676. x. Statutes Adopted from Another State. 90. The construction given a statute by the courts of the state from which it was adopted is strongly persuasive, the pre- sumption being that the construction was also adopted. Russel v. Jordan (Colo.) 19160-760. 91. Where the legislature adopts a stat- ute from another state, the construction given the act by the courts of the other state prior to its enactment in this state usually governs in interpreting such act here. Dale v. Marvin (Ore.) 1917C-557. 92. Where the legislature adopts a pro- vision from the statutes of another state, it must be assumed that it was familiar with its interpretation there and adopted it with the statute. Mt. Vcrnon Tel. Co. v. Franklin Farmers, etc. Tel. Co. (Me.) 1917B-649. (Annotated.) 93. A decision of the supreme court of Arkansas, rendered since the laws of Ar- kansas were extended over the Indian Ter- ritory, where in direct conflict with the settled law of this state, "is not even per- suasive." Marx v. Hefner (Okla.) 1917B- 656. (Annotated.) 94. When a statute has been adopted from another state or country, the courts usually follow the construction which it had received by the courts of the state or country from which it is taken. Rose v. STATUTES. 769 Public Service Commission (W. Va.) 1918A-700. Note. Construction of adopted statute. 1917B-651. y. Time of Taking Effect. 95. Public Utilities Act. The act known as the "Idaho Public Utilities Act" was passed at the twelfth session of the Idaho legislature, which session was adjourned on the 8th day of March, 1913, and said act was approved by the governor on March 13, 1913, and went into effect sixty days after the adjournment of said session of the legislature, to wit, on the 8th day of May, 1913. Session Laws 1913, p. 247. Said act provided for the organization of a public utilities commission, and defined its pow- ers and duties, and also the rights, reme- dies, powers, and duties of public utilities, their officers, agents, and employees, and the rights and remedies of patrons of pub- lic utilities. Idaho Power, etc. Co. v. Elomquist (Idaho) 1916E-282. 96. Under the provisions of section 10, art. 4, of the Idaho constitution, every bill passed by the legislature becomes a law upon the approval and signing of the same by the governor. Idaho Power, etc. Co. v. Blomquist (Idaho) 1916E-282. z. Disregarding Clerical Errors. 97. The intention of the legislature to amend a specified section of the statute must govern, and a clerical mistake as to the section amended must be disregarded. Worthington v. District Court (Nev.) 1916E-1097. aa. Effect of Ee-enactment. 98. Re-enactment Adoption of Prior Construction. Where, although Mass. St. 1903, c. 437, imposing taxes on foreign cor- porations, was construed to be inapplicable to foreign corporations whose places of business within the state were maintained solely for use in interstate commerce, the legislature re-enacted it as St. 1909, c. 490, pt. 3, without substantial change, they must be held to have adopted the prior construction. Marconi Wireless Tel. Co. v. Commonwealth (Mass.) 1916C-214. bb. Avoidance of Inutility. 99. Where to give a statute a construc- tion contended for would operate to make part of its well-considered provisions in- operative in the field covered by the stat- ute in which such provision is found, such construction is not sustained by a claim that such provision is not idle, because in- tended to operate upon some statute in which it is not found, and which does not cover the field of the one in which such provision is found. Hunter v. Colfax Con- solidated Coal Co. (Iowa) 1917E-803. 49 cc. Presumption Against Innovation. 100. In determining the meaning of a statute, it will be presumed, in the ab- sence of words therein specifically indicat- ing the contrary, that the legislature did not intend to innovate upon, unsettle, alter, violate, repeal, or limit another general statute or statutory system, the entire sub- ject-matter of which is not directly nor necessarily involved in the act. Twentieth Street Bank v. Jacobs (W. Va.) 1917D- 695. do.. Effect of Judicial Decision. 101. It is the duty of the court to main- tain firmly its own function, but not tres- pass upon that of the legislature. The former requires solution of doubts respect- ing legislative purpose intended to be em- bodied in an enactment and the pronounced result becomes, in effect, written into such enactment. State v. Board of State Can- vassers (Wis.) 1916D-159. ee. Reading Matter into Statute. 102. The courts cannot read into a stat- ute matters not touched upon by the legis- lature, for what the legislature would have provided is a mere matter of conjecture. King v. Viscoloid Company (Mass.) 1916D- 1170. ff. Effect of Unrelated Statutes. 103. The construction of Ala. Code 1907, 1035, prohibiting the employment of wo- men and children in mines, as applicable to all mines, and not limited to coal mines, does not govern, and is not governed by, the construction of the other sections of the same chapter of the Code, since those . sections are not dependent upon each other, or so closely related that each must be given the same construction. Cole v. Sloss-Sheffield Steel, etc. Co. (Ala.) 1916E 1 - 99. gg. Particular Aids to Construction. 104. In determining the meaning of a statute, the particular mischief which it was designed to remedy and the history of the period and of the act itself may be considered, and the statutory meaning of a word or phrase must be gathered from the purpose for which the statute was en- acted. Whiley v. Solvay Process Co. (N. Y.) 1917A-314. 105. Contemporaneous Construction. In determining the meaning of a statute, con- temporary construction may be resorted to, and opinions of the attorney general, which show how he construed the measure, while not binding, are of value. Hunt- worth v. Tanner (Wash.) 1917D-676. 106. Eeport of Legislative Committee. Eeference may be had to the report of a 770 DIGEST. 1916C 1918B. legislative drafting committee to ascer- tain the correct construction of the lan- guage used in a statute. Pellett v. In- dustrial Commission (Wis.) 1917D-884. 107. Name Given to Statute. The name given to a congressional enactment by way of designation or description in the act or the report of the committee accompanying the introduction of the bill into the House of Eepresentatives cannot change the plain implication of the words of the statute. Ceminetti v. United States (U. S.) 1917B- 1168. 108. Opinion of Legislator in Aid of Con- struction. While debates in the legisla- ture may be considered in determining the legislative intent, individual expression of members of the legislature will not estab- lish such intent, in enacting a statute. Sweetser v. Emerson (Fed.) 1917B-244. 109. The rule that in construing a stat- ute the legislative intent is to be ascer- tained and given effect does not permit the court to consider statements made by the author of a bill, or by those interested in its passage, or by members of legisla- ture adopting it, showing the meaning or effect of the language used in the bill as understood by the persons making such statements. People v. Chicago B. Co. (111.) 1917B-821. 110. Practical Construction. The con- struction of executive officers intrusted with the duty of carrying out statutes is entitled to great weight. State v. Gordon (Mo.) 1918B-191. 111. Construction of Police Regulations. Laws and regulations necessary for the protection of the health, morals, and safety of society are within the police .power, and should be given such a con- struction as will suppress the mischief aimed at. State v. Lipkin (N. Car.) 1917D-137. 112. Motive of Legislature. Where the language of a statute is unambiguous, it is not for the courts to inquire as to the motive of the legislature, nor to depart from the meaning which is clearly con- veved. Greenleaf v. Minneapolis, etc. K. Co. (N. Dak.) 1917D-908. 113. Effect of Preamble. The preamble, whii-h is a clause at the beginning of a constitution or statute, explanatory of the reasons for its enactment and the objects sought to be accomplished, will not govern where the body of the act is broader than the proposition expressed, but if the body of the act can be given a construction consistent with the purpose declared in the rivamble it will be so construed. Huntworth v. Tanner (Wash.) 1917D-676. 114. Kesort may be had to the preamble or recitals of legislative intent in a stat- ute only when the enacting part is am- biguous and doubtful. Brown v. Erie K. Co. (N. J.) 1917C-496. (Annotated.) 115. Effect of Form of Issue. No differ- ent rule of construction will be applied to- a proceeding under the statute to procure the issuance of funding bonds, where a protest or remonstrance is filed thereto, and issues thus framed, from that to be applied in ordinary cases. In re Applica- tion of State, etc. (Okla.) 1916E-399. Note. Preamble as aid to construction of stat- ute. 1917C-500. 7. AMENDMENT OB BEPEAL. a. In General. 116. Revision Effect of Verbal Changes. In the revisions of the statute, the altera- tion of phraseology, or the omission or addition of words, will not necesssarily change the operation or construction of the former statutes unless the legislative intent to make such change is clear. Cole v. Sloss-Sheffield Steel, etc. Co. (Ala.) 1916E-99. b. Bepeal by Implication. 117. Amendment Effect as Repeal. Nev. Act Feb. 15, 1875 (Laws 1875, c. 2-2), entitled "An act to amend an act entitled 'An act relating to marriage and divorce approved November 28, 1861,' " and con- taining only three sections, purports, by section 1, to amend section 22 of the orig- inal act by re-enacting the section as changed. Sections 2 and 3 are the ordi- nary repeal of inconsistent laws, and a provision as to when it shall take effect. Act Feb. 20, 1913 (Laws 1913, c. 10), en- titled "An act to amend an act entitled 'An act to amend an act relating to mar- riage and divorce approved Nov 28, 1861,' " purports to amend "section 22" by re-en- acting it with the changes affected by the amendment and repealing conflicting acts. It is held that, in view of Const, art. 4, 19, providing that no law shall be re- vised or amended by reference, but the act or section as amended shall be re-enacted and published, the act of 1875 did not re- peal section 22 of the original act, and the act of 1913 was not void as attempting to amend section 22 after such repeal, but the unchanged part of the section as orig- inally enacted continued in force, notwith- standing the amendments, so that the title of the act of 1913 is sufficient. Worthing- ton v. District Court (Nev.) 1916E-1097. 118. If the legislature did not intend the law of 1911 to be restrained so as not to impair the efficiency of the existing law, the purpose is too much involved in ob- scurity to be discoverable with the reason- able degree of certainty essential to effect being given thereto. State v. Board of State Canvassers (Wis.) 1916D-159. 119. There being no provision in the Smith and Parks Bills (Ala. Gen. Act* STATUTORY DUTY STIPULATIONS. 771 1911, pp. 249-288', 26-31) defining what are unlawful drinking places, the provisions of section 5 of Act August 9, 1909 (Acts Sp. Sess. 1909, pp. 10, 11), defining unlawful drinking places, were not repealed, except in so far as regularly issued licenses to maintain drinking places afford the legal right to maintain such places. Borok v. Birmingham (Ala.) 1916C-1061. 120. Presumption. Repeals of statutes bv implication are not favored. State v. Iowa Tel. Co. (Iowa) 1917E-539. 121. Repeal by Statute Partial Re- peal. A statute incorporating partially a rule of the common law does not operate as a repeal of the rest of the rule. Yazoo, etc. E. Co. v. Scott (Miss.) 1917E-880. c. Eepeal of Eepealing Statute, Effect. 122. Such constitutional provision is re- stricted in its application to express statu- tory revivals of prior statutes, and does not abrogate the common-law rule that, when a repealing statute is itself repealed, the first statute is revived without formal words, in the absence of any contrary in- tention, expressly declared or necessarily implied from the enactment. Manchester Twp. Supervisors v. Wayne Co. Commis- sions (Pa.) 1918B-278. (Annotated.) 123. Revival of Former Act. County commissioners must keep in repair so much of an abandoned turnpike as passes through a township, as required by Pa. Act April 20, 1905 (P. L. 237), and Act April 25, 1907 (P. L. 104), where Act May 10, 1909 (P. L. 499), repealing such prior acts, was itself repealed by Act March 15, 1911 (P. L. 21), since the rule that, where a repealing statute is repealed, the original statute is involved, is not affected by Const, art. 3, 6, providing that no law shall be revived, amended, or ex- tended by reference to its title only, and that so much as is revived shall be re- enacted and published at length. Man- chester Twp. Supervisors v. Wayne Co. Commissioners (Pa.) 1918B-278. (Annotated.) Note. Effect of repeal or amendment of re- pealing statute as reviving repealed stat- ute. 1918B-281. d. Effect of Invalidity of Amendment. 124. Effect on Original Act. The inval- idity of an amending statute, which merely added a provision to the original statute, does not avoid the original. Eeliance Auto Eepair Co. v. Nugent (Wis.) 1917B- 307. e. Effect on Pending Action. 125. Effect of Repeal on Existing Cause of Action. A judgment of $2,000 against a municipality for personal injuries was set aside because the charter limited a re- covery in such cases to $100. Subse- quently such charter provision was re- pealed, and plaintiff moved for an order directing a judgment upon the verdict. It is held that, since the repealing enactment did not provide for the maintenance of ex- isting causes of action, plaintiff could not recover more than the amount originally limited. Pullen v. Eugene (Ore.) 1917D- 933. STATUTORY DUTY. Mandamus to compel performance, see Mandamus, 19-20. STAY BOND. See Appeal and Error, 481-484. STEAM RAILROAD. See Railroads. STEAMSHIP EMPLOYEES. As within Federal Employers' Liability Act, see Master and Servant, 59. AS within Workmen's Compensation Act, see Master and Servant, 243-247, 262. STENOGRAPHER. Dictation to no publication, see Libel and Slander, 6. Communications with employer as privi- leged, see Witnesses, 33. STENOGRAPHIC NOTES. In record on appeal, see Appeal and Error, 66. STEVEDORE. As within Workmen's Compensation Act, see Master and Servant, 245. STIPULATIONS. Waiver of error by stipulation, see Appeal and Error 181, 182. Extending time of trial, see Dismissal and Nonsuit. As affecting judicial notice, see Evidence, 2. Selection of judge by agreement, see Judges, 2. 1. Parties. Filing in a suit in equity, by one not a party, of stipulation to be bound by the decree to be entered is irregular; he should be made a party if he is to be affected by the proceeding. Hanscom v. Maiden, etc. Gaslight Co. (Mass.) 1917A- 145. 2. Setting Aside Act of One of Two Attorneys. Where the only resident at- torney and attorney of record in a lawsuit signs and consents to the filing of a stipu- lation advancing the cause upon the calen- 772 dar of the supreme court and setting it for hearing upon a day certain, such stipu- lation will not be set aside upon an affi- davit by him merely to the effect that "he believes" he had no authority to sign the same, and that "he is informed" his non-resident associate counsel would be en- gaged and unable to prepare the brief, when the facts as to the authority and engagements are clearly matters of posi- tive knowledge to. his client, and such non-resident counsel, and these persons themselves furnish no proof or affidavits whatever of the facts alleged, and when the court is satisfied that counsel had abundant time for preparation. Youmans v. Hanna (N. Dak.) 1917E-263. 3. Right to Withdraw. When in the course of a jury trial the parties agree upon two stipulations, one of which tends to increase the amount of the plaintiff's claim and the other tends to diminish it, neither party should be allowed, after the cause has been submitted to the jury upon such stipulations, to withdraw the stipula- tion against his interest and enforce the others. Kriss v. Union Pacific fi. Co. (Neb.) 1918A-1122. STOCK. Attachment of shares, see Attachment, 3,5. STOCK EXCHANGE. By-laws, see Corporations, 9, 11. STOCK AND STOCKHOLDERS. See Banks and Banking, 23. STOCK BROKERS. See Brokers, 12. STOCKHOLDERS. See Corporations. In joint-stock company, see Joint Adven- tures, 9, 10. STOCKHOLDERS' LIABILITY. See Corporations, 117-136. STOCKHOLDERS' SUITS. See Corporations, 137-143. STOCK IN A CORPORATION. Meaning, see Corporations, 75. STOCK OF MERCHANDISE. Mortgage void, see Chattel Mortgages, 2, 3. STOLEN PROPERTY. See Receiving Stolen Goods. STOPPAGE IN TRANSITU. See Sales, 50. DIGEST. 1916C 1918B. STOPPING AFTER ACCIDENT. Violation of statute requiring, see Auto- mobiles, 64-67. STORAGE. See Warehouses. STORE. Injury by swinging door, see Negligence, 19. STRAW MAN. Liability on deficiency judgment, see Mort- gages, 28. STREET RAILWAYS. 1. Franchise, 772. 2. Statutory Regulation. 773. 3. Municipal Regulation, 773. a. Regulation of Transfers, 773. b. Ordering Abandonment of Spur Track, 773. 4. Merger of Street Railway Corporations, 773. 5. Liability for Injuries from Negligence, 775. a. General Rights and Duties, 775. (1) Relative Rights of Cars and Travelers, 775. (2) Duty as to Lookout, 775. (3) Care as to Vehicles, 775. (4) Rate of Speed, 775. (5) Care in Passing Car Dis- charging Passengers, 775. (6) Doctrine of Last Clear Chance, 775. (7) Duty as to Fire Engines, 776. b. Contributory Negligence, 776. e. Actions, 776. (1) Admissibility of Evidence, 776. (2) Sufficiency of Evidence, 776. (3) Questions for Jury, 777. See Electricity, 2. Transfers, see Carriers of Passengers, 49. Right to make rules, see Carriers of Pas- sengers, 48. Injunction by railway company of jitneys, see Carriers of Passengers, 86. Presumption of Negligence from accident, see Negligence, 114. Crowding cars, see Nuisances, 7. Consolidation, title of act authorizing, see Statutes, 12. Consolidation, statutes in pari materia, see Statutes, 84. 1. FRANCHISE. 1. Construction of Franchise. A fran- chise granted to a street railway company must be construed strictly against the grantee. Brooklyn Heights R. Co. v. Steers (N. Y.) 1916C-791. 2. Power to Construct Side Tracks. Where a street railroad company's fran- chise does not grant the right to construct STREET RAILWAYS 773 spur tracks connecting with private prop- erty abutting on the street on which the" tracks are laid, such right cannot be con- ferred by license issued by the city's engi- neer of highways. Brooklyn Heights R. Co. v. Steers (N. Y.) 19160-791. (Annotated.) 3. Under N. Y. Const, art. 3, 18, N. Y. Railroad Law (Laws 1890, c. 565) art. 4, 90-93, and amendatory statutes pre- scribing the matters requisite for the grant- ing of a street railway franchise, franchise to maintain and operate a street railroad "across, along and upon" a certain avenue and other connecting streets does not con- fer on the railroad company the right to construct and maintain a spur track lead- ing from its main track in the street to abutting private property for the sole ben- efit of the owner and the railway company. Brooklyn Heights R. Co. v. Steers (N. Y.) 1916C-791. (Annotated.) Note. Power of street railway to construct side tracks. 1916C-793. 2. STATUTORY REGULATION.- 4. Statutory Regulation of Carriage of Passengers Applicability to Street Rail- way. By direct provision of Gal. Civ. Code, 510, 483, 2102, 2184, 2185, gov- erning the conduct of common carriers of passengers, though for the most part having reference to railroad corporations, govern the duties of street railroad com- panies where applicable. Kelly v. .Santa Barbara Consol. R. Co. (Cal.) 1917C-67. 3. MUNICIPAL REGULATION. a. Regulation of Transfers. 5. The council of the City of St. Paul under that charter had the right to pass an ordinance restricting the use of street car transfers to the persons to whom they were issued. The city council possessed only such legislative power as was granted to it by the constitution or statutes in ex- press terms and such as is necessary to the full enjoyment of powers expressly granted. The power was given to grant franchises for the operation of street rail- ways and to regulate and control the ex- ercise of such franchises. This conferred, by implication, the power to require issu- ance of transfers by the railway company and to regulate the manner of their issu- ance by the company, and the manner of their use by the public. St. Paul v. Rob- inson (Minn.) 1916E-845. b. Ordering Abandonment of Sour Track. 6. A license issued by a city's highway engineer to a street railway company au- thorizing it to construct a spur track con- necting it with private property, even if lawful in its origin, is a revocable privi- lege, and is revoked by a resolution of the board of estimate and apportionment di- recting the railway company to remove the siding, and by the revocation of the permit by the president of. the borough. Brook- lyn Heights R. Co. v. Steers (N. Y.) 1916C-791. (Annotated.) 4. MERGER OF STREET RAILWAY CORPORATIONS. 7. Procedure for Consolidation Persons Entitled to Vote. Stockholders in one street railroad company who hold bonds and shares in another company are not thereby disqualified from voting for a con- solidation qf the two companies, although such facts may be considered on a charge of fraud or maladministration. Norton v. Union Traction Co. (Ind.) 1918A-156. 8. Effect of Consolidation Liability for Debts of Constituent Company. Where a constituent company in a consolidation agreement has bought stocks and bonds in the other company and paid money therefor, which money is used for the ben- efit of the purchasing company, such com- pany and its stockholders are liable for the indebtedness of the selling company created in raising the funds used for the benefit of the purchasing company. Nor- ton v. Union Traction Co. (Ind.) 1918A- 156. 9. A consolidation agreement between two street railroad companies, which pro- vided that the lien of mortgages executed by one company to secure its bonds, the proceeds of which inured to the benefit of the constituent company in which plain- tiff held stock should be confined to the property and interest of such other com- pany that in case of liquidating the prop- erty of plaintiffs' company might not be resorted to for satisfaction of obligations of the other company until all the pre- ferred stock of the consolidated company had been fully redeemed, that stock should be issued for stock of the constituent com- panies at more nearly their true value, and that stock of the other company should be postponed to preferred stock issued to stockholders in plaintiff's company, on which annual dividends must be paid be- fore the holders of stock converted from such company can realize on their hold- ings, is not unjust or fraudulent as to plaintiffs. Norton v. Union Traction Co. (Ind.) 1918A-156. 10. Avoidance of Consolidation for Frand. A consolidation agreement between street railroads may be avoided for fraud on the part of the majority against minority stockholders. Norton T. Union Traction Co. (Ind.) 1918A-156. 11. Estoppel of Shareholders to Object. A consolidated traction company distrib- uted the snares of stock in one of the con- 774 DIGEST. 1916C 1918B. stituent companies to the stockholders in the other as gifts. Being subsequently in need of money, the consolidated company leased its property to another company, formed for the purpose, for nine hundred and ninety-nine year* at a rental so high as to incapacitate the lessee from perform- ing its contract. These two companies then consolidated, and stockholders who had purchased stock in the first consolidated company, after the transactions mentioned, brought suit to annul the consolidation agreement. It is held that the suit would not lie, because the assignors of complain- ants' stock had consented to the transac- tions leading to the consolidation; the assignee of shares of stock ordinarily standing in the position of b.is assignor and being chargeable with the conse- quences of the acts in which his assignor participated. Norton v. Union Traction Co. (Ind.) 1918A-156. 12. Equitable Belief Against Consolida- tion. To warrant the interposition of a court of equity in an action by a stock- holder in one of two street railroad com- panies to annul a consolidation agreement between them and to restore to one of them the property owned by it prior to consolidation, the facts well pleaded must constitute a fraud or breach of trust, and that the act may be unwise is no ground for relief in equity. Norton v. Union Traction Co. (Ind.) 1918A-156. 13. Burns' Ind. Ann. St. 1914, 5690, au- thorizing street and interurban railroad companies to consolidate upon such terms as may be agreed upon, is not permissive merely as only affecting the rights of the state, but warrants a change in the con- tractual relations of the corporation and its stockholders on a majority vote. Nor- ton v. Union Traction Co. (Ind.) 1918A- 156. (Annotated.) 14. Where, at the time of the incorpora- tion of a street railroad company, consoli- dation was authorized, it will be assumed that the stockholders of such company con- tracted with reference to the possibility of a future consolidation. Norton v. Union Traction Co. (Ind.) 1918A-156. (Annotated.) 15. Where two street railroad companies consolidated under Burns' Ind. Ann. St. 1914, 5690. authorizing the consolidation of the stock of street railroad companies upon such terms as may be by them mutu- ally agreed upon, neither section 5659, au- thorizing street railroad companies, by unanimous consent of stockholders, to so amend their charters as to provide for in- creases of capital stock, nor section 5663, authorizing such companies theretofore or- ganized to make provision for certain pre- ferred stock, is applicable; the consolida- tion agreement not being an amendment of 'the charters *of the constituent companies, but having the effect of a dissolution of such companies and the formation of a new one with the consolidation agreement as articles of association. Norton v. Union Traction Co. (Ind.) 1918A-156. (Annotated.) 16. Where Burns' Ind. Ann. St. 1914, 5690, authorizing the consolidation of street railroad companies upon such terms as the stockholders might mutually agree upon, was in effect before either of two street railroad companies which later con- solidated were incorporated, minority stockholders in such companies are bound by the agreement executed by the major- ity, in the absence of fraud or illegality. Norton v. Union Traction Co. (Ind.) 1918A- 156. (Annotated.) 17. Both under Burns' Ind. Ann. St. 1914, 5690, authorizing street and interurban railroad companies to consolidate upon such terms as may be mutually agreed upon, although silent as to the number of shareholders' votes necessary to make a consolidation, and under section 240, pro- viding that in the construction of all stat- utes of this state words importing joint authority to three or more persons shall be construed as authority to a majority unless otherwise declared in the law giving such authority, unanimous action of stockhold- ers is not necessary to consolidation. Xor- ton v. Union Traction Co. (Ind.) 1918A- 156. (Annotated.) 18. Directors in a street railroad company who are also directors in another company are not disqualified from voting at the stockholders' meeting for the consolidation of the two companies, where the statute authorizing consolidation does not qualify them, as stockholders are not regarded as trustees for one another. Norton v. Union Traction Co. (Ind.) 1918A-156. 19. Statutory Authorization Applica- tion to Leased Street Railway. Burns' Ind. Ann. St. 1914, 5690, providing that any street railroad company or con- solidated street railroad company oper- ating any street railroad shall have the right to unite its road with any other street railroad by whatsoever power operated, and such companies are autho- rized to merge the stock of the respective companies, making one stock company, upon such terms as may be by them mu- tually agreed upon, authorizes the con- solidation of two street railroad compa- nies, one of which has leased its property to the other, which operates both roads over the objection that the leased road at the time of the merger is not "operating" its road within the view of the statute. Norton v. Union Traction Co. (Ind.) 1918A-156. STREET RAILWAYS. 775 5. LIABILITY FOE INJURIES FROM NEGLIGENCE. a. General Eights and Duties. {!) Eelative Eights of Cars and Travelers. 20. Use of Street. In the use of streets by railroads and street cars, the cars have the right of way over travelers for the reason that the cars are more cumber- some and difficult to stop and control than are vehicles used by travelers on the pub- lic highway; but in all other respects the rights to the use of the highway are equal. Boylan v. New Orleans E. etc. Co. (La.) 1918A-287. 21. A traveler has the same privilege to use the street that a street railroad has for operating its cars thereon, and, if employ- ing a motive power increasing the speed of its cars so as to increase -the danger of accidents, has a reciprocal duty to exercise a commensurate care and vigilance neces- sary to avoid injuries. Norman v. Char- lotte Electric E. Co. (N. Car.) 1916E-508. 22. A street car has a right of way su- perior to that of a wagon, and, whether going in the same direction ahead of the car or meeting it, the wagon must yield the track promptly on sight or notice of the approaching car, but is not a tres- passer because on the track, and only be- comes such if, after notice, it negligently remains there. Where a wagon and a car meet at right angles, the wagon has greater rights than between crossings; the road's superior right is not exclusive, and will not justify a needless interference with the public. Norman v. Charlotte Electric E. Co. (N. Car.) 1916E-508. Note. Liability of street railway company for injuries caused by striking pedestrian in rounding curve. 1916E-679. (2) Duty as to Lookout. 23. Duty to Keep Lookout. It is the duty of those in charge of a street car, even without notice, to inform themselves of the conditions and circumstances along the line of the railway and to be on the constant lookout so as to avoid collisions and accidents. Boylan v. New Orleans E. etc. Co. (La.) 1918A-287. (3) Care as to Vehicles. 24. Operation Care as to Vehicles In Street. \ motorman of a street car is bound to know that teams are likely to be in a street and that it is slightly down grade, and to operate his car in view of such conditions. Pollica v. Twin State Gas, etc. Co. (Vt.) 1917C-1240. (4) Bate of Speed. 25. Violation of Speed Ordinance by Street Railway. A street railroad's opera- tion of a car at a speed in excess of a municipal ordinance is evidence of negli- gence which prevents an action for per- sonal injury from collision from being taken from the jury. Norman v. Charlotte Electric E. Co. (N. Car.) 1916E-508. (5) Care in Passing Car Discharging Passengers. 26. In view of the reasonable certainty that some of the passengers alighting from a street car will attempt to cross the track parallel to that on which the car is stand- ing, v and in view of the lack of opportunity for such passengers to observe an ap- proaching car or for the motorman to ob- serve them, it is the duty of a motorman in charge of an approaching car on the parallel track to have the car under such control that it may be stopped on a mo- ment's notice, and it is not improper to so tell the jury, notwithstanding the con- tention that the word "moment" means a space of time incalculable or infinitely small, and that the instruction imposes on the street car company a duty impossible of performance. Louisville E. Co. v. Ken- nedy (Ky.) 1916E-996. (6) Doctrine of Last Clear Chance. 27. Personal Injury Negligence Inca- pacitating Company from Avoiding Injury. Though a person was negligent in going on a street railway track, the company is liable for an injury to him if after discov- ering his "peril the car could have stopped in time to have avoided an injury except for a defective brake. British Columbia Elec. E. Co. v. Loach (Eng.) 1916D-497. (Annotated.) 28. Contributory Negligence of Driver of Vehicle. In an action against a street railroad for damages to his team from a collision, plaintiff, though negligent, can recover, where the railroad failed in its duty after it discovered the unattended team, or unless he could by ordinary care have avoided the consequence of defend- ant's negligence. Pollica v. Twin State Gas, etc. Co. (Vt.) 1917C-1240. 29. To Avoid Collision. A street rail- road's liability, under the last clear chance rule, for injury to a traveler on its track does not depend upon the cessation of his contributory negligence, as its motorman should be "prepared to avoid a collision probable in view of his persistent neglect of his own safety, and, with reference to such rule, proximity in point of time and space is no part of "proximate cause," which is that which, in natural and con- tinuous sequence, without any new and independent cause, produces the result, and without which it would not have occurred, and from which a man of ordinary pru- dence could not have foreseen that such a result was probable under all the cir- 776 cumstances as they existed and were known, of should by the exercise of due care have been known to him. Norman v. Charlotte Electric R. Co. (N. Car.) 1916E-508. (Annotated.) 30. Collision With Automobile. On evi- dence in an action against a street railroad for personal injury to plaintiff while back- ing his automobile on its track, the ques- tion of defendant's failure to avoid injury notwithstanding plaintiff's contributory negligence held for the jury. Norman v. Charlotte Electric R. Co. (N. Car.) 1916E- 508. (Annotated.) 31. Where defendant's motorman sees plaintiff's automobile on the track in front of his car, and knows that plaintiff is for- getful of his duty, and not aware of the approach of the car in time to prevent a collision, and that .a collision will occur if plaintiff does not leave the track, unless the car was itself stopped, he is bound, as soon as a collision becomes probable, to slow down and bring his car under control so that he could stop in time to prevent a collision, and, having the last clear chance of averting collision, his failure to do so is negligence. Norman v. Charlotte Elec- tric R. Co. (N. Car.) 1916E-508. 32. Injury to Team on Track Negli- gence Incapacitating Company from Avoid- ing Injury. Though a person was negli- gent in driving on a street railway track, the company is liable for a collision whereby his team was killed, if, after dis- covering his peril, the car could have been stopped in time to have avoided the in- jury except for a defective brake. Colum- bia Bithulitic v. British Columbia Elec. R. Co. (Can.) 1917E-756. (Annotated.) Note. Application of last clear chance doctrine to collision between automobile and street car. 1916E-515. (7) Duty as to Fire Engines. 33. Duty With Respect to Fire Appa- ratus. Where fire apparatus of a city is given the right of way by statute, ordi- nance, or rule of the railway company, the persons in charge of the street car must yield to the fire apparatus and use every reasonable precaution to avoid collision. Bovlan v. New Orleans R., etc. Co. (La.) 1918A-287. (Annotated.) Note. Care required of driver of street car or other vehicle to avoid collision with firo apparatus. 1918A-290. b. Contributory Negligence. 34. Care Required of Pedestrian Cross- ing Tracks. A pedestrian crossing street car tracks is required to exercise such care as an ordinarly prudent person would exer- cise, under like circumstances^ to learn of DIGEST. 1916C 1918B. the approach of a car and to keep oni of its way, and such care necessarily varies with the circumstances of each particular case. Louisville R. Co. v. Kennedy (Ky.) 1916E-996. 35. Duty of Automobile Driver at Cross- Ing. A motorist about to cross street rail- way tracks is bound to look along the track immediately before driving upon it Frey v. Rhode Island Co. (R. L) 1918A- 920. 36. Duty of Driver as to Cars. The right of a traveler to drive a vehicle on or along a street railway track does not relieve him from the duty of looking for approaching cars having the right of way. Norman v. Charlotte Electric R. Co. (N. Car.) 1916E-508. 37. What Constitutes Contributory Negli- gence of Driver Team not Under Control. The driver of a team is required to make a reasonable use of the street, and to exercise the care of a prudent man in avoiding injury from street cars; but one driving or being with a team upon a car track is not required to have his horse at all times under control. Pollica v. Twin State Gas, etc. Co. (Vt.) 1917C-1240. c. Actions. (1) Admissibility of Evidence. 38. Evidence Speed of Street Car. In an action for injuries to plaintiff's de- livery wagon by being struck by defend- ant's street car while goods were being unloaded, evidence as to the speed of the car is properly admitted. Davidson Bros. Co. v. Des Moines City R. Co. (Iowa) 1917C-1226. (2) Sufficiency of Evidence. 39. Collision With Standing Vehicle- Evidence of Negligence Sufficient. In an action for damages to plaintiff's delivery wagon standing partly across the street, in being struck by defendant's street car coming around a curve, the evidence is held to be sufficient to support a finding that defendant's motorman was negligent. Davidson Bros. Co. v. Des Moines City R. Co. (Iowa) 1917C-1226. 40. Absence of Contributory Negligence not Proved. In an action for personal in- juries received by a motorist and for in- juries to his automobile in a collision with a street car, the evidence is held to be insufficient to sustain a verdict against the street railway company not showing the motorist's want of contributory negli- gence. Frey v. Rhode Island Co. (R. I.) 1918A-920. 41. Negligence Striking Pedestrian in Bounding Curve. Plaintiff having often boarded street cars before they rounded a corner where she desired to board a car, approached the usual stopping place with- STREETS AND HIGHWAYS. 'out notice of an ordinance requiring the car not to stop until it had turned the corner. The motorman signaled her to go to the far corner, which she started to do. The car was then approaching a curve at about three miles an hour, and the speed was increased to six miles before the car got around the curve which was on a grade, and, as it did so, plaintiff was struck by the outswing of the car. Held, that there was no evidence of actionable negligence on the part of the carrier. Kuhn v. Milwaukee Electric R., etc. Co. (Wis.) 1916E-678. (Annotated.) (3) Questions for Jury. 42. On evidence in an action against a street railroad company for a collision with a team standing in the street across the track, it is held that defendant's negli- gence was for the jury. Pollica v. Twin State Gas, etc. Co. (Vt.) 1917C-1240. 43. On evidence in an action for a col- lision of a street car with plaintiff's team standing in a street, it is held that plain- tiff's contributory negligence was for the jury. Pollica v. Twin State Gas., etc. Co. (Vt.) 1917C-1240. (Annotated.) STREETS AND HIGHWAYS. 1. Definitions and General Consideration, 777. 2. Legislative Control, 777. 3. Establishment and Opening, 777. 4. Vacation, Abandonment or Convey- ance, 777. 5. Improvement, 778. a. Establishment of Grade, 778. b. Abandonment of Established Grade, 778. c. Change of Grade, 778. d. Contracts, 779. ermittine a circular hole in the middle of a street about as large as a barrel head, which was four inches deep at the deepest part and extended from the edge of the street crossing. Lalor v. New York (N. Y.) 1916E-572. d. Actions. (1) Pleading. 42. Sufficiency of Declaration. A decla- ration alleging the existence of a culvert as part of a highway, that it was the duty of a town to keep it in repair, that it was not maintained in good repair, and that by reason of a defect in the highway and culvert plaintiff's intestate was thrown from his sled and killed, warrants a re- covery upon proof of defects in the ap- proaches to the culvert. Fifield's Adm'x v. Rochester (Vt.) 1918A-1016. (2) Evidence. 43. Evidence Fact of Receiving In- structions by Telephone. The testimony of a fireman that he was proceeding to a fire pursuant to instructions received by telephone from the operator at headquar- ters was competent to prove such fact. Hubert v. Granzow (Minn.) 1917D-563. (3) Questions for Jury. 44. Where a steam roller was left by a contractor who had been improving the streets upon a street for more than two months after work had been stopped by unfavorable weather in the fall, and which had been used only once during that time, and it was seldom that such work coul>l be done during the winter, on account of the weather conditions, it is a question for the jury whether the roller was left 782 DIGEST. 1916C 1918B. there an unreasonable time under the cir- cumstances so as to render the city and the contractor liable for injuries caused by plaintiff's horse becoming frightened at it. Tanner v. Culpeper Construction Co. (Va.) 1917E-794. (Annotated.) 45. The question whether a defect in a highway was in the approach to a culvert is held to be for the jury in an action against a town for the death of one thrown from a sleigh by reason of the defect. Fifield's Adm'x T. Eochester (Vt.) 1918A- 1016. 46. Evidence, in an action for the death of one killed when thrown from a sleign, is held to present to the jury the question whether the fall was by reason of a defect in the highway for which the town was responsible. Fifield's Adm'x v. Rochester (Vt.) 1918A-1016. 47. Personal Injury from Defect Lia- bility of Municipality. In an action against a town for the wrongful death of plaintiff's intestate, who was thrown from a sleigh by reason of an alleged defect in the highway, the question whether the town had so absolutely abandoned a cul- vert in the road by diverting the water as to render it no longer liable for the cul- vert's condition is held under the evidence to be for the jury. Fifield's Adm'x v. Eochester (Vt.) 1918A-1016. 8. CONTROL OF PUBLIC UTILITIES COMMISSION. 48. Review of Municipal Regulation. The requirements of a city ordinance, di- recting a street railway company to con- struct extensions of its lines, are subject to review by the public utilities commis- sion, which is authorized, upon hearing, to determine whether the requirements of such ordinance are just and reasonable. Cincinnati v. Public Utilities Commission (Ohio) 1916E-1081. (Annotated.) 49. Under the provisions of section 614- 51, Ohio General Code, the public utilities commission may determine the practicabil- ity of additions and extensions of street railway lines required by a city ordinance. In reaching such determination the com- mission may consider the physical condi- tions of the proposed route as well as the necessary plan of operation of cars there- over. If upon such hearing the commis- sion finds that operation of cars over the proposed route would entail unusual and unwarranted dangers and jeopardize the lives of passengers, it is authorized to re- lieve the street railway company from the obligations sought to be imposed by the ordinance complained of. Such order of the commission will not be reversed upon review by this court when it does not appear from a consideration of the record that it is unlawful or unreasonable. Cin- cinnati v. Public Utilities Commission (Ohio) 1916E-1081. (Annotated.) STRICT. Defined, see Municipal Corporations, 37. STRICTISSIMI JURIS. Rule as applied to surety for hire, see Suretyship, 8. STRICTLY. Defined, see Municipal Corporations, 37. STRIKES. See Labor Combinations, 3. STRIKING OUT. See Pleading, 103. STUDENT FIREMAN. As within Federal Employers' Liability Act, see Master and Servant, 63. SUBCONTRACTOR. Defined, see Mechanics' Liens, 10. SUBCONTRACTOR'S LIEN. See Mechanics' Liens, 9, 10. SUBJACENT SUPPORT. See Adjoining Landowners, 1, 9-11; Ease- ments, 8, 19. SUBJECT. Defined, see Trees and Timber, 9. SUBLETTING. See Landlord and Tenant, 21-31. SUBMISSION ON BILL AND ANSWER, See Equity, 26-28. SUBORNATION OF PERJURY. See Perjury. SUBROGATION. Of insurer, see Fire Insurance, 26-29. To rights of owner, see Fire Insurance, 26-29. To rights of mortgagee, see Fire Insur- ance, 38-40. Action by insurer on rights by subroga- tion, res adjudicata, see Judgments, 73. As between mortgagees, see Mortgages and Deeds of Trust, 4. Subrogation of purchaser at foreclosure sale to rights of mortgagee, see Mort- gages and Deeds of Trust, 33. SUBROGATION. 783 Of redeeming vendee to rights of mort- gagee, see Mortgages and Deeds of Trust, 36. Of surety on payment of debt, see Surety- ship, 24. Of cotenant to rights of mortgagee, see Tenants in Common, 8. 1. Subrogation of Insurer to Eights Against Tortfeasor. When insurance is paid for damage to insured property caused by the wrongful act of another than the insured, the insurer is subro- gated to the right of action of the insured against the wrongdoer. Powell & Powell v. Wake Water Co. (N. Car.)) 1917A-1302. 2. The right of subrogation arises not out of the contract between the insured and the insurer, but has its origin in gen- eral principles of equity. Powell & Powell v. Wake Water Co. (N. Car.) 1917A-1302. 3. Release of Tortfeasor by Insured Effect on Ri?ht to Subrogation. After in- surance has been paid for damage to In- sured property caused by the wrongful act of another than the wrongdoer, a release by the insured of the wrongdoer knowing of the payment of insurance cannot ex- tinguish the right of subrogation. Powell & Powell v. Wake Water Co. (N. Car.) 1917A-1302. (Annotated.) 4. Rig;ht of Insurer to Sue in Own Name. If the insurance paid equals or exceeds the loss, a subrogated insurer may sue the wrongdoer in his own name; if it is less than the loss, in the name of the in- sured; but, if it is less than the loss, and the insured has settled the difference be- tween the insurance and the total loss with the wrongdoer, the insurer may sue in his own name, the insured having parted with all beneficial interest in the cause of ac- tion. Powell & Powell v. Wake Water Co. (N. Car.) 1917A-1302. 5. Insurance Actions Joinder of Con- current Insurers. One sued by insurance companies for having by negligence de- stroyed property of an insured upon which they have paid insurance may require all other insurance companies participating fn paying the loss to be made parties to the action, to avoid multiplicity of suits. Powell & Powell v. Wake Water Co. (N. Car.) 1917A-1302. 6. Subrogation of Insurer to Rights Against Tortfeasor Effect of Settlement. The right of subrogation accruing to an insurance company to recover from a tort- feasor, through whose negligence the loss was incurred, the amount paid on its policy of insurance, is not barred by a settlement between the tortfeasor and the owner for a sum less than the actual liability of the former, and for which the latter gave a full release, for such a release is a fraud upon the subrogee, which will be no de- fense, either at law or in equity, to its ac- tion to recover the loss remaining unsatis- fied after applying to its satisfaction the sum paid by the tortfeasor. Fire Associ- ation v. Wells (N. J.) 19L7A-1296. (Annotated.) 7. Rights of Surety Necessity of Pay- ing Debt in Full. As a surety is not en- titled to subrogation until the debt is paid in full, a surety on a bond to secure a city in the deposit of moneys in an insol- vent banking institution is not entitled to subrogation, though he has paid the bond, where the bank is still largely indebted to the city, and the total amount of divi- dends, together with the amount of the bond, will not discharge the obligation; for in such case, if the surety were pro rata subrogated to the bank's right to re- ceive dividends, the city would be injured. knafH v. Knoxville Banking, etc. Co. (Tenn.) 1917C-1181. (Annotated.) 8. By Payment of Judgment Owner of Land Subject to Lien, Where a judgment debtor conveyed part of a tract of land owned by him to B and subsequently con- veyed the rest of the land to P, those claiming under B are entitled to pay the debt and have the judgment assigned for their use ar.d benefit, and in such case, or in case they are compelled by legal pro- cess to pay tho judgment, they will be subrogated to the rights of the judgment creditor as against the land conveyed to P, since the duty rested upon the judgment- debtor to pay off the debt in exoneration of the land sold to B, and P took the land conveyed to him subject to the same equity. Brown v. Harding (N. . Car.) 1917C-548. 9. Purchaser Paying Mortgage Rights Against Holder of Paramount Title. Al- though it was determined that the defend- ant took his title with notice of facts sufficient to put him upon inquiry leading to knowledge of the fraud of one of his grantors so that he must yield up posses- sion and lose what he paid for the land, still having paid off certain mortgages placed thereon by the plaintiff the latter cannot oust him from possession until she has accounted to him for the amount thus paid, his right of subrogation being sim- ilar to that of a mortgagee in possession and based upon the same principles of equity and fair dealing. New v. Smith (Kan.) 1917B-362. 10. Purchaser Paying Prior Lien. Where a purchaser buys land and takes a deed thereto, and subsequently pays a prior lien on the property, he is subrogated to the rights and remedies of such prior lien, as against a lien which is superior to his title. Peagler v. Davis (Ga.) 1917A-232. 11. Extent of Rights Acquired. A pur- chaser of land, entitled to a subrogation to the rights and remedies of a prior en cumbraneer, whose lien he discharges, can- not, as against an intervening lien, assert 784 DIGEST. 1916C- title on the ground that the land is not worth more than the lien he discharged. His subrogation .is limited to the remedies of the lien creditor to whose rights he be- comes subrogated. Peagler v. Davis (Ga.) 1917A-232. Notes. Eight of subrogation of insurer as af- fected by release by insured of person causing loss. 1917A-1298., Eight of insurance company to enforce subrogation by suit in its own name. 1918A-834. SUBSCRIPTION FOB STOCK. See Corporations, 28, 57-73. SUBTERRANEAN WATERS. Appropriation and priority, see Waters and Watercourses, 12. SUCCESSION. See Descent and Distribution. SUCCESSION TAXES. See Taxation, 28, 171-179. SUFFICIENCY OF EVIDENCE. See Evidence, 149-164. SUFFRAGE. See Elections. SUICIDE. Effect on insurance contract, see Benefi- cial Associations, 2. As proof of insanity, see Insanity, 15. Effect on incontestable clause, see Life in- surance, 26. Effect on insurance, see Life Insurance, 40. While insane, see Life Insurance, 57-59. As accident within Workmen's Compensa- tion Act, see Master and Servant, 197. SUIT MONET. See Alimony and Suit Money. SUMMARY PROCEEDINGS. See Attorneys, 12, 13. SUMMONS. Service, see Process, 3, 7, 8, 12. SUNDAYS AND HOLIDAYS. 1. Validity of Contracts Made on Sunday. 784. 2. Validity of Gift Made on Sunday 784. 3. Judicial Proceedings. 785. 4. Ministerial Acts, 785. 6. Offenses. 785. -1918B. See Labor Laws, 31; Railroads, 8. Exclusion of Sunday in computing time, see Time, 1, 3. Sunday show in violation of statute, see Unlawful Assembly, 1. 1. VALIDITY OF CONTRACTS MADE ON SUNDAY. 1. New Contract Evidence Insufficient. Evidence in an action upon a contract for grading and construction work, executed on Sunday, held not to show a new con- tract thereafter made between the parties. Gist v. Johnson-Carey Co. (Wis.) 1916E- 460. 2. Ratification of Sunday Contract. Such, contract is incapable of ratification. Gist v. Johnson-Carey Co. (Wis.) 1916E-460. 3. Validity of Contract. A contract made and delivered on Sunday is void. Gist v. Johnson-Carey Co. (Wis.) 1916E- 460. 4. Part Performance. Partial payments made under a Sunday contract are not suffi- cient to import a new contract. Gist v. Johnson-Carey Co. (Wis.) 1916E-460. 5. No Estoppel. The terms of a Sunday contract cannot be given life upon the principles of estoppel. Gist v. Johnson- Carey Co. (Wis.) 1916E-460. (Annotated.) 6. Under a subcontract for grading and construction work, void because made and delivered on Sunday, and in place of which no new contract was made, plaintiffs, by execution of the work and by accepting and giving receipts for payments made on the basis of estimates by the defendant's engineers, are not estopped to dispute the correctness of the estimates, where defend- ant knew that the payments were not re- ceived as settlements but were subject to final adjustment, and had full knowledge of plaintiff's claim before it settled with the general contractor, so that it could not have been misled or prejudiced. Gist v. Johnson-Carey Co. (Wis.) 1916E-460. (Annotated.) Note. Principle of estoppel as applicable to rights of parties under void Sunday con- tract. 1916E-467. 2. VALIDITY OF GIFT MADE ON SUNDAY. 7. A gift complete in itself is not vio- lative of Mass. Rev. Laws, c. 98, requiring observance of the Lord's day, though it was made on the Lord's day, where it contained no element of labor, business, or work, was not an act of contract, and gave rise to no contractual obligation. Herries v. Bell (Mass.) 1917A-423. (Annotated.) SUNSTROKE CLAUSE SURETYSHIP. 785 Note. Validity of gift made on Sunday. 1917A-424. 3. JUDICIAL PROCEEDINGS. 8. Entry of Judgment on Holiday. Mo. Eev. St. 1909, 1785, provides that no per- son on Sunday or any other day established a public holiday shall serve any writ, pro- cess, or other judgment, except in criminal cases, etc. Section 3880 declares that no court shall sit on Sunday, unless to receive a verdict or discharge a jury. Held that, while a judgment rendered on Sunday is void, yet, as the statute prohibiting the holding of court on Sunday does not by its terms include other holidays, a judgment of conviction entered on a legal holiday other than Sunday is valid. State v. Gould (Mo.) 1916E-855. (Annotated.) Note. Validity of official or judicial act per- formed on holiday. 1916E-847. 4. MINISTERIAL ACTS. 9. Publication of Ordinance. The publi- cation of an ordinance of the city of St. Paul, Minn., under the 1900 Home Rule Charter may lawfully be made on Memorial Day. St. Paul v. Robinson (Minn.) 1916E-845. (Annotated.) 5. OFFENSES. 10. The evidence is sufficient to estab- lish all the elements necessary to consti- tute an offense under the ordinance. St. Paul v. Robinson (Minn.) 1916E-845. Note. Engaging in labor or amusement on Sunday as offense at common law or un- der statute other than Sunday law. 1918B-387. SUNSTROKE CLAUSE. Construction in accident policy, see Acci- dent Insurance, 17. SUPERINTENDENCE. Meaning, see Master and Servant, 28. SUPERSEDEAS. See Appeal and Error, 481-484. SUPERSTITION. As affecting testamentary capacity, see Wills, 58. SUPREME LAW. Treaty as, see Treaties, 5. 50 SURETY COMPANY. See Suretyship. SURETYSHIP. 1. Liability of Surety, 785. a. Signing of Contract, 785. b. Delivery of Contract, 786. c. Validity of Contract, 786. d. Construction of Contract, 786. e. Nature of Liability, 787. f. Discharge of Surety, 787. (1) Notice by Creditor of Breach, 787. (2) Diversion of Security by Creditor, 787. (3) Extension of Time, 787. g. Actions. 787. 2. Rights of Surety Against Creditor, 788. 3. Co-suretyship, 788. Evidence, statements inter se, see Admis- sions and Declarations, 13. Release of sureties on appeal bond, see Ap- peal and Error, 483. Notice to produce principal, se a Bail, 2, 3. Discharge of surety, see Conflict of Laws, 9. Parol evidence to vary contract, see Evi- dence, 119, 123. Necessity for written contract, see Frauds, Statute of, 13. Wife as surety for husband, see Husband and Wife, 4-11. 1. LIABILITY OF SURETY, a. Signing of Contract. 1. Failure of Principal to Sigm Bond Effect on Liability of Surety. Iowa Code, 4552, declares that an appeal from jus- tice court is not perfected until the ap- pellant gives a bond in the form prescribed by statute or its equivalent. The form of the bond as prescribed by statute provides for the signature of the appellant, but does not specifically require it. It is held that in view of the fact that the appellant would be bound regardless of whether he signed the bond or not, and as the sure- ties are jointly and severally liable, a bond signed by them alone is sufficient. Brown v. Mellon (Iowa) 1917C-1070. (Annotated.) 2. Waiver of Failure of Principal to Ex- ecute. A surety assenting to the delivery of a surety bond, which shows on its face a failure to execute by the principal, may be bound by the incomplete instrument; and hence a complaint alleging that the bond sued on was executed by the surety is not insufficient, though the bond filed therewith as an exhibit was not signed by the principal, and though it contained a provision that it should not be construed as entered into or delivered by the surety until executed in due form by the princi- pal, since the allegation that the bond as executed necessarily implied a waiver 786 DIGEST. 1916C 1918B. of such condition precedent. American Surety Co. v. Pangburn (Ind.) 1916E-1126. % 3. That a surety bond, signed by the surety alone and not by the principal, was joint in form does not prevent a recovery thereon, where it was delivered to the obligee by the surety with intent to be thereby bound. American Surety Co. v. Pangburn (Ind.) 1916E-1126. 4. Where a surety company executed a bond indemnifying a county treasurer against loss by reason of the acts of a deputy treasurer and mailed it to the treas- urer, without it having been signed by the deputy, thereafter renewed it for an addi- tional term in consideration of a further premium, and subsequently, upon applica- tion of the deputy, made a new bond which it authorized a third person to deliver to the treasurer without it having been signed by the deputy, and retained the premiums received for each bond, the facts warrant a finding that it delivered the second bond to the treasurer, with intention to be thereby bound, and it is liable thereon, notwithstanding a provision in both bonds that they should not be construed as en- tered into or delivered by the surety until executed in due form by the principal. American Surety Co. v. Pangburn (Ind.) 1916E-1126. 5. Failure of Principal to Sign Bond Waiver. In an action on a surety bond, not signed by the principal, and containing a provision that it should not be construed as entered into or delivered by the surety until executed in due form by the prin- cipal, where the surety answered by a veri- fied plea of non est factum, the burden is on plaintiff to prove that the bond was- signed and delivered by the surety in is incomplete condition, with the purpose on the part of the surety of being bound thereby. American Surety Co. v. Pang- burn (Ind.) 1916E-1126. Note. Failure of principal to sign obligation as affecting liability of surety. 1917C- 1073. b. Delivery of Contract. 6. In an action on a surety bond given by the surety to a third person, without it having been signed by the principal, with instructions to deliver it to the obligee, the court properly charged that, in determin- ing whether the bond was delivered, the jury may consider, as tending to show the surety's intention at the time of giving pos- session of the bond to the third person, evidence tending to show that it delivered to the obligee a similar bond covering a previous period unexecuted by the princi- pal. American Surety Co. v. Pangburn (Ind.) 1916E-1126. c. Validity of Contract. 7. Waiver of Defense by Surety Claim Against Principal's Estate. Where a wife executed a note to plaintiff as surety for her husband, and after executing several renewals her husband died, when she paid a part of the note to the bank and executed the note sued on for the balance, the fact that she proved the last renewal as a claim against her husband's estate does not affect her right to defend her liability on the note for the balance of the debt to the bank on the ground that it was void be- cause she was incapable of becoming surety for her husband. First National Bank v. Bertoli (Vt.) 1917B-590. d. Construction of Contract. 8. Suretyship for Hire. A surety for hire cannot invoke the rule of strictissimi juris, and its rights are measured by the law applicable to insurance contracts. American Surety Co. v. Pangburn (Ind.) 1916E-1126. (Annotated.) 9. Fidelity Bond Construction Bond Designating Corporate Officers as Obligees. A bond executed by a bank cashier, re- citing his previous election as such, and stating the condition to be that he "shall well and faithfully apply and account for all moneys which may come into his hands as such cashier," is, when properly con- strued, an indemnity to the bank against loss by his default, although its officers are therein named as obligees, as president and as directors of the bank in its corporate name. Clark v. Nickell (W. Va.) 1917A- 1286. 10. Agreement by Grantee to Pay Grant- or's Debt. When a grantee contracts with his grantor to pay the latter's debt or obligation in payment, or in part payment, for the conveyance, the creditor may ac- cept and appropriate that contract to him- self, and maintain a suit in equity upon it. In equity, the grantee then becomes the principal debtor, the grantor the surety, and the creditor is substituted for the promisee or grantor. It is immaterial in equity whether or not the contract was made or intended for the benefit of the creditor. Silver King Coal- ition Mines Co. v. Silver King Consol. Min. Co. (Fed.) 1918B-571. 11. Liability Independent or Secondary Test. Whether a transaction between a married woman and her husband's cred- itor is one of suretyship or independent may depend on whether she received in person or for the benefit of her estate the consideration on which the contract de- pended; the question being determined, not from the form of the contract nor from its basis, but from its real purpose and effect. First National Bank v. Bertoli (Vt.) 1917B-590. SURETYSHIP. 787 12. Construction in Favor of Obligee. Words of doubtful meaning in the lan- guage of a surety bond prescribing a lim- itation of action thereon must be con- strued in favor of the beneficiary. Comey v. United Surety Co. (N. Y.) 1917E-424. 13. Agreement to Resort First to Surety Evidence Sufficient. Evidence held to sustain a finding that the wife of a purchaser of mortgaged land mort- gaged her separate property to the mort- gagee for the amount of the encumbrance, on the agreement that the mortgagee in case of default should first resort to her property before resorting to the property purchased by her husband, who executed notes to the vendor for the price. Hite v. Eeynolds (Ky.) 1917B-619. e. Nature of Liability. 14. Compensated Surety. In a suit by a materialman against a compensated surety company, on a statutory bond, un- der a building contract, the company can- not invoke the law concerning voluntary sureties, and ask that the rule strictissimi juris be applied, where it is shown that the owner and contractor have dispensed with one of the provisions of the contract, and agreed verbally, instead of in writ- ing, to alter and add to the building con- tract. Victoria Lumber Co. v. Wells (La.) 1917E-1083. (Annotated.) f. Discharge of Surety. (1) Notice by Creditor of Breach. 15. Notice by Surety to Sue Suffi- ciency. Kirby's Ark. Dig. 7921, de- clares that a surety may, by written no- tice, require the creditor to sue the prin- cipal debtor, and that if he fail to do so within 30 days after notice, the surety shall be exonerated. A surety upon a note verbally requested the creditor to sue before the maker became insolvent, but the creditor failed to sue, and the maker became insolvent. Held, that the surety was not discharged by the credi- tor's failure to comply with his verbal re- quest. Sims v. Everett (Ark.) 1916C- 629. (Annotated.) Note. Sufficiency as to form of notice to credi- tor to sue principal in order to discharge surety. 1916C-632. (2) Diversion of Security by Creditor. 16. Diversion of Note or Proceeds. Where defendant's testator became surety with M. on notes of a new corporation organized by M., under an agreement with the payee bank that the proceeds of one of the notes was to be used in pay- ing a specified indebtedness of an insol- vent corporation, and the other was to be used to furnish capital for the operation of the new corporation, and about one- half of the proceeds of the second note were diverted without the consent of the surety by the bank or with its knowl- edge to the payment of other debts of the insolvent corporation to the bank, so that the new corporation soon failed for want of capital, the surety is thereby dis- charged from liability on that note. Her- mitage National Bank v. Carpenter (Tenn.) 1916D-730. (Annotated.) 17. The fact that some of the proceeds of the note were not charged off by the bank against the indebtedness of the in- solvent corporation, but checks were drawn against them by M., as president of the new corporation, to pay the in- debtedness of the old, does not entitle the bank to hold the surety. Hermitage National Bank v. Carpenter (Tenn.) 1916D-730. (Annotated.) 18. One who became surety on a note to raise capital for a new corporation is not released from liability for so much of the proceeds of the note as were di- verted to the payment of the debts of an- other corporation with the consent of the surety. Hermitage National Bank v. Carpenter (Tenn.) 1916D-730. (Annotated.) Note. Diversion of note or proceeds as dis- charging surety thereon. 1916D-733. (3) Extension of Time. 19. Conveyance by Wife as Security for Husband Effect of Extension of Time of Payment. Where a husband and wife execute a deed upon property owned by her and she intrusts it to her husband to be delivered as security for a note ex- ecuted by him to the grantee, and the husband without her knowledge delivers it under an arrangement made by him with the grantee that the note is to be renewed from time to time, extensions of the time of payment of the debt, made in pursuance of such arrangement, but without the knowledge of the wife, do not effect the release of her property. Moody v. Stubbs (Kan.) 1917C-362. g. Actions. 20. Complaint Sufficient. It ia held that the complaint herein states a cause of action. State v. American Surety Co. (Idaho) 1916E-209. 21. Joinder of Defendants. Under a joint and several bond executed pursuant to section 191 Idaho Rev. Codes, it is not necessary to sue jointly the principal and surety, but suit may be maintained 788 DIGEST. 1916C 1918B. against either severally. State v. Amer- ican Surety Co. (Idaho) 1916E-209. 22. Parties Defendant. A suit in equity, by the bank, to enforce the obli- gation of a cashier's bond, should be brought jointly against the surviving and the personal representatives of the de- ceased obligors. Clark v. Nickell (W. Va.) 1917A-1286. 23. Consideration for Suretyship Con- tract by Wife Evidence Inadmissible. A married woman having executed a note to a bank as surety for her husband who had executed a mortgage to the bank cov- ering their homestead, the title to which was then in him, the fact that pending her indebtedness to the bank he conveyed the title of the homestead to her without consideration does not authorize the in- troduction of the mortgage in a suit against her by the bank, on the theory that the mortgage tended to show con- sideration for her note. First National Bank v. Bertoli (Vt.) 1917B-590. 2. EIGHTS OF SURETY AGAINST CREDITOR. 24. Though a bond to secure a city in a deposit of money in a bank declared that in case of default and payment of the claim the surety should be subro- gated to all rights of the city against the bank to the amount of such payment, the surety only has the usual rights of sub- rogation, and his payment, together with dividends paid by the bank, not being sufficient to discharge the obligations due from the bank, he is not entitled to sub- rogation to the detriment of the city. Knaffl v. Knoxville Banking, etc. Co. (Tenn.) 1917C-1181. (Annotated.) Note. Payment of whole debt by surety as essential to right of subrogation to credi- tor's securities. 1917C-1183. 3. CO-SURETYSHIP. 25. Effect of Release of Cosurety. By the law of Minnesota the release of a surety by the creditor does not discharge a cosurety. Scandinavian Amer. Nat. Bank v. Kneeland (Man.) 1917B-1177. (Annotated.) Note. . Effect on liability of surety of release of cosurety. 1917B-1183. SURFACE WATERS. Right of landowner to divert, see Waters and Watercourses, 34. SURGEONS. See Physicians and Surgeons. SURGICAL OPERATION. Consent of patient, see Physicians and Surgeons, 17, 30-32. Failure to test blood, see Physicians and Surgeons, 22. Leaving sponge in wound, see Physicians and Surgeons, 37, 38. SURVEY NOTES. As evidence, see Evidence, 98, 99. SURVIVORSHIP. Joint bank deposits, see Banks and Bank- Ing, 29-37. Of joint tenant, see Joint Tenants, 1 2 4; Suspension. Membership of fraternal order, see Bene- ficial Associations, 24, 25. SWINDLING. See False Pretenses. SWINGING DOOR. Injury by, see Negligence, 19, 32. SYMPATHY. Appeal to jury's sympathy, see Argument and Conduct of Counsel, 23, 24. SYRUP. Regulating sale of, see Food, 13. TACKING POSSESSION. See Adverse Possession, 14, 15. TAXABLE PROPERTY. See Taxation, 13. TAXATION. 1. Power of Taxation, 789. a. Nature and Extent, 789. b. Delegation of Power, 790. c. Equality and Uniformity, 790. d. Due Process of Law, 790. e. Systems of State Taxation, 790. f. Property Outside Jurisdiction, 790, g. Taxation of Particular Subjects, 790. (1) Stock of Foreign Corpora- tions. 790. (2) Turpentine Lease, 791. (3) Credits, 791. (4) Intangible Property, 791. (5) State Lands Under Contract of Purchase, 791. (6) Probate or Administration Tax. 792. (7) Contracts, 792. (8) Corporate Stock, 792. 2. Construction of Statutes, 792. 3. Place of Taxation, 793. TAXATION. 789 4. Assessment and Valuation, 794. a. Ownership of Property, 794. b. Valuation of Property, 794. (1) In General, 794. (2) Valuation of Particular Sub* jects, 794. c. Review of Assessment, 796. 5. Exemptions, 796. a. Property Constitutionally Exempt, 796. b. Validity of Statutes, 797. c. Construction of Statutes, 797. (1) In General, 797. (2) Property Used for Educa- tional, Charitable or Re- ligious Purposes, 797. (3) Corporate Stock, 795'. 6. Penalty for Non-payment of Taxes, 799. 7. Lien for Taxes, 799. a. In General, 799. b. Foreclosure, 799. 8. Remedy for Erroneous Taxation or Assessment, 799. a. Injunction, 799. b. Recovery Back of Taxes Paid, 801. c. Annulment of Refunding Order, 801. d. Mandamus to Compel Refund, 802. e. Refund by County Treasurer, 802. f. Estoppel of Taxpayer, 802. 9. Tax Sales and Deeds, 802. a. Time for Redemption and Notice of Expiration of Time, 802. b. Merger of Tax Title in Subsequent Deed, 802. 10. Special Assessments, 802. a. Nature and Exercise of Power, 802. b. Nature of Improvement, 802. c. 'Property Subject and Exemp- . tions, 803. d. Superiority of Lien, 803. c. Contract for Making Improve- ment, 803. f. Protests and Objections, 803. g. Waiver of Objections, 804. h. Mode of Assessment, 804. i. Notice of Owner, 804. j. Proceedings, 804. k. Discontinuance of Proceedings, 805. 1. Enforcement of Assessment, 805. m. Review of Proceedings, 805. n. Action to Enjoin or Set Aside, 805. 11. License or Occupation Taxes, 805. 12. Excise or Franchise Taxes, 805. a. Nature, 805. b. Validity, 806. (1) Federal Corporation Tax Act, 806. (2) Foreign Corporation Tax Act, 806. <5. Construction of Statutes, 806. f valuation and assessment at not more than its fair cash value, where the local Assessing officers charged with valuing other classes of property systematically undervalue such property, since to apply to one class of property the standard of fair cash value, systematically departed from with respect to other classes of property, would frustrate the principal object of that section, which, in view of the provisions of 171 and 174, requiring uniformity of taxation in proportion to value, and an identical rate as between corporate and in- dividual property, must be deemed to be equal taxation. Greene v. Louisville, etc. R. Co. (U. S.) 1917E-88. 51 b. Eecovery Back of Taxes Paid. 101. Void Levy Rights as to Money Collected. In a township's action against a city within its boundaries to recover road and bridge funds wrongfully paid over to the city by the township officers under a mistake of law, it is no, defense that the funds were derived from a void tax levy. Lamar Township v. Lamar (Mo.) 1916D-740. 102. Moneys collected as taxes under an unconstitutional statute may be recovered back under Iowa Code, 1417, providing for the return of taxes illegally paid or exacted; such moneys being regarded as taxes. Commercial Nat. Bank v. Board of Supervisors (Iowa) 1916C-227. 103. Payment Under Mistake of Law. Under Iowa Code, 1417, requiring the return of taxes illegally or erroneously ex- acted or paid, taxes paid under a mistake of law may be recovered. Commercial Nat. Bank v. Board of Supervisors (Iowa) 1916C-227. 104. Payment Under Unconstitutional Statute. Taxes paid under a statute sub- sequently declared unconstitutional by the federal supreme court may be recovered back under Iowa Code, 1417$ providing for the return of taxes illegally exacted; for the statute was unconstitutional at the time of enactment, and the fact that it was not immediately declared so does not deprive the taxpayer of the right to re- imbursement. Commercial Nat. Bank r. Board of Supervisors (Iowa) 1916C-227. 105. Voluntary Payment. Under Iowa Code, 1417, providing for the return of taxes erroneously or illegally exacted and paid, it is no defense that the taxes were paid voluntarily. Commercial Nat. Bank v. Board of Supervisors (Iowa) 1916C- 227. 106. Payment Under Protest. Such charges, having in the case at bar been demanded of the plaintiff by an officer act- ing under color of law, and for public ser- vices which the plaintiff was entitled to have performed, and having been paid under written protest and under circum- stances where injury to the estate and to third parties would have resulted from a refusal to pay such fees and a resort to legal remedies to compel the performance of the official duties, were paid under compulsion and duress, and can be recov- ered from the county upon a proper show- ing being made. Malin v. Lamoure County (N. Dak.) 1916C-207. c. Annulment of Refunding Order. 107. Correction and Refunding Pro- cedure. An order of exoneration of taxes, and for repayment of taxes paid upon an 802 DIGEST. 1916C 1918B. erroneous assessment, procured by the ap- c. 77, art. 1, 214. plicant and drawn on the sheriff, in his favor, pursuant to section 94, chapter 29, W. Va. Code 1899, cannot be set aside or annulled by the county court, at a subse- quent term, without notice or process to such applicant. Such order or rescission is absolutely void and of no effect. Eu- reka Pipe Line Co. v. Biggs (W. Va.) 1918A-995. d. Mandamus to Compel Refund. 108. Iowa Code, 1417, providing that the board of supervisors shall direct the treasurer to refund taxes erroneously or illegally exacted, is mandatory, and the board of supervisors may in a proper case be required by mandamus to order the treasurer to repay the taxes illegally col- lected. Commercial Nat. Bank v. Board of Supervisors (Iowa) 1916C-227. e. Refund by County Treasurer. 109. Under Iowa Code, 1417, providing that the board of supervisors shall direct the treasurer to refund taxes erroneously paid or illegally exacted, the board must first ascertain whether the taxpayer is enti- tled to reimbursement, and, having done so, it is the treasurer's duty to repay from the particular funds into which the taxes have gone the amount of the illegal exaction. Commercial Nat. Bank v. Board of Super- visors (Iowa) 1916C-227. f. Estoppel of Taxpayer. 110. Listing Property for Taxation. Where plaintiff, pursuant to an uncon- stitutional statute, listed and paid taxes upon property which was not subject to taxation, the listing of the property does not estop plaintiff from asserting the illegality of the exaction and recovering the payment. Commercial Nat. Bank v. Board of Supervisors (Iowa) 1916C-227. (Annotated.) Notes. Estoppel of taxpayer to question valid- ity of tax. 1916C-225. Estoppel of taxpayer returning property for taxation to dispute assessment based on return. 1916C-230. 9. TAX SALES AND DEEDS. a. Time for Redemption and Notice of Expiration of Time. 111. Statement of Time of Expiration. A tax deed to land is void, if issued by the county treasurer under a sale made by him November 7, 1904, where the purchaser in his notice to redeem stated that the time for redemption would expire November 8, 1906. fhc statutory period in fact expiring November 7, 1906. Neb. Comp. St. 1903, Stewart T. Ridenour (Neb.) 1917A-242. (Annotated.) 112. Notice of Redemption Sufficiency. A tax deed issued is not valid where the notice of the time for redemption was not published in accordance with N. Car. Re- visal 1905, 2903, requiring such notices, and was not directed to the trustee, in whose name title was held, even though the purchaser's affidavit showed his knowl- edge of the fact of the trust. Johnson v. Whilden (N. Car.) 1916C-783. 113. Notice of Expiration Insufficient. A notice of expiration of redemption from a tax sale which imposes upon the redemp- tioner the burden of determining which of two amounts stated therein as necessary to- redeem is correct does not comply with the statutes upon the subject and is insuffi- cient. Telford v. McOillis (Minn.) 1916E- 157. 114. The notice in this resp&ct must be definite and specific and free from doubt and uncertainty. Telford v. McGillis (Minn.) 1916E-157. Note. Sufficiency of notice to redeem from tax sale with respect to statement as to expi- ration of time to redeem. 1917A-243. b. Merger of Tax Title in Subsequent Deed. 115. Where a remainderman purchases a tax title in the circumstances above stated, and enters into possession under it, and afterwards takes a quitclaim deed from the life tenant, the tax title is not neces- sarily merged in the conveyance of the life estate. Jinkiaway v. Ford (Kan.) 1916D- 321. 10. SPECIAL ASSESSMENTS. a. Nature and Exercise of Power. 116. Local Assessment Power to Make. A local assessment levied by a city under the provisions of Rem. & Bal. Wash. Code, 7767, to pay for widening a street, is levied in the exercise of the sovereign power of taxation, though by proceedings supplemental to eminent domain proceed- ings. Carstens & Earles v. Seattle (Wash.) 1917A-1070. b. Nature of Improvement. 117. For What Purpose Improvement Abating Nuisance. Where the power of a city to construct sewers was plenary, the fact that a proposed sewer would also do away with a public nuisance which it was the duty of the city to abate will not in- validate an assessment of benefits on the ground that the construction of the sewer was merely to abate a public nuisance. Dellaripa's" Appeal (Conn.) 1917B-862. TAXATION. 803 c. Property Subject and Exemptions. 118. Acts 1903, c. 204 (Burns' Ind. Ann. St. 1908, 6671), providing that common school corporations, whose property haa been benefited by a public improvement, shall be liable for assessments for the im- provement, if assessments could have been levied had the property been privately owned, is not in conflict with Bill of Eights, 21, declaring that no man's prop- erty shall be taken without just compensa- tion. School Town of Windfall City v. Somerville (Ind.) 1916D-661. (Annotated.) 119. Acts 1903, c. 204 (Burns' Ind. Ann. St. 1908, 6670, 6671), providing that the real estate of common school corporations shall be liable for assessments for public improvements, is not impliedly repealed by Acts 1907, c. 110 (Burns' Ann. St. 1908, 8712, 8713), which makes the same pro- vision as to the real property of all coun- ties, townships, towns, and other munici- palities. School Town of Windfall City v. Somerville (Ind.) 1916D-661. (Annotated.) 120. Liability of School Property. The exemption of educational property from taxation provided for by Ind. Const, art. 10, 1, and Burns' Ind. Ann. St. 1908, 10144, does not apply to local assessments against real property, based on benefits from public improvements. School Town of Windfall City v. Somerville (Ind.) 1916D-661. (Annotated.) 121. Railroad Right of Way. A railroad right of way, if actually benefited, may be assessed for a local drain, which is constructed under the provisions of chap- . ter 23, N. Dak. Rev. Codes 1905, and this irrespective of the fact whether the fee is in the railroad company or not. Northern Pacific R. Co. v. Richland County (N. Dak.) 1916E-574. (Annotated.) 122. Chapter 23, N. Dak. Rev. Codes 1905, which provides for the assessment of railroad rights of way for the benefits conferred by the construction of local drains, does not violate the provisions of the 'Fourteenth Amendment to the federal constitution, nor the so-called commerce clause (section 8, art. 1) of that instru- ment, even though it is sought to be ap- plied to interstate lines. Northern Pa- cific R. Co. v. Richland County (N. Dak.) 1916E-574. (Annotated.) 123. County Property. There is no ex- press provision in the constitution of the state of Florida as to special assessments by a municipality for local improvements. Under the provisions of section 8, art. 8, of such constitution, the legislature may, by statute, give to a city authority to make a special assessment for street im- provements against property belonging to the county located within the city and used for governmental purposes, and such authority may be conferred by a special act. Gainesville v. Alachua County (Fla.) 1917D-843. Notes. Public property as subject to special as- sessment. 1917D-844. Assessment of railroad right of way for street improvement. 1916E-579. d. Superiority of Lien. 124. Superiority to Prior Liens. The legislature may create a lien for taxes either general or by local assessment, su- perior to all other liens, regardless of prior- ity of time. Carstens & Earles Seattle (Wash.) 1917A-1070. (Annotated.) 125. The fact that the general revenue statutes and certain local assessment stat- utes expressly provided that mortgage and other private liens should be inferior to the lien of those taxes does not require the statute creating liens for local improve- ments for street widening, which- contains no express provision as to priority, to be construed as not making such liens supe- rior, since the intention of the legislature in the latter act to establish such priority is plain. C#rstens & Earles v. Seattle (Wash.) 1917A-1070. (Annotated.) Note. Validity and construction of statute giv- ing priority to lien for taxes. 1917 A- 1079. e. Contract for Making Improvement. 126. Use of Patented Article in Street Improvement. That a contract for street improvements involves the use of a pat- ented article does not render an assessment therefor invalid under Wash. Local Im- provement Law (Laws 1911, c. 98, p. 477) 59, providing that contracts for all pub- lic improvements to be paid for by assess- ments shall be let on competitive bids, where the owner of the patent stipulates with the city that the patented article will be furnished to the successful bidder, and the various bidders submit their bids apparently relying on such stipulation, and no objection is made to it prior to objec- tions to the confirmation of the assessment roll, though the stipulation provides that it shall apply only to contracts aggregating not less than 10,000 square yards and the contract in question is for only 6,650 square yards. Great Northern R. Co. v. Leavrn- worth (Wash.) 1916D-239. (Annotated.) f. Protests and Objections. 127. Protest by Property Owners. Vroo- man Act (Cal. Gen. Laws 1909, Act 3930) 3, providing that the owners of a ma- jority of the frontage of the propertv on a proposed work or improvement may by protest bar the work for six months, does 804 DIGEST. 1916C 1918B. not warrant the owners on each street im- proved in barring the work by their pro- test; hence the improvement of several streets together does not deprive a ma- jority of the owners of any one of their rights. Kemillard v. Blake, etc. Co. (Gal.) 1916D-451. g. Waiver of Objections. 128. Waiver of Irregularities Abandon- ment. Where property owners executed an agreement waiving irregularities in street assessments in consideration of a deduction from the amount of the assess- ment, provided payment should be made within a stipulated time, the fact that the property owners did not make payment within the time fixed, so as to obtain the deduction, did not work a mutual aban- donment of the waiver agreement. Kemil- lard T. Blake, etc. Co. (Cal.) 1916D-451. 129. Irregularities in an assessment lien for street improvements may be waived by the property owners' acts. Remillard v. Blake, etc. Co. (Cal.) 1916D-451. 129%. Payment of Tax. The fact that an abutting property owner did not pro- test against paying a special tax levied for changing the grade of the, street would not prevent him from maintaining an ac- tion for damages from changing the grade. Gray v. Salt Lake City (Utah) 1916D- 1135. 130. Defects In Proceeding. Defects in an engineer's report on a proposed public improvement, as measured by the require- ments of a resolution authorizing it and by Wash. Laws 1911, p. 444, 10, in that it failed to show the proportionate amount of the cost to be borne by the property within the district and the diagram failed to show the lots specifically benefited thereby and the estimated cost to be borne by each, not being jurisdictional, are waived by property owners who appear before the council in response to the no- tice but fail to offer any objection touch- ing the report, and also by property own- ers who fail to appear in response to such notice and permit the improvement to ( ro- ceed and urge no objection prior to object- ing to confirmation of the assessment roll. Great Northern R. Co. v. Leavenworth (Wash.) 1916D-239. h. Mode of Assessment. 131. Local Improvements How Initiated. Under Wash. Laws 1911, p. 441, covering the subject of local improvements in cities and towns, providing that the city may define the mode of making the assessment by general ordinance not inconsistent with the statute, an assessment is not void be- rause the proceedings were initiated* prior to the passage of a general ordinance, where each step in the proceeding was di- rected by the city council either by resolu- tion or ordinance, and a proper general ordinance was passed before any assess- ment was levied. Great Northern R. Co. v. Leavenworth (Wash.) 1916D-239. 132. Front Foot Bule Effect of Inequal- ity. Where several streets of varying width were improved as part of a single scheme and assessments were made on a frontage basis, the fact that property own- ers on narrow streets were required to pay the same amount as those on wider streets did not invalidate the assessment. Remil- lard v. Blake, etc. Co. (Cal.) 1916D-451. 133. Error in Description Effect. Where the description of an assessment district for paving shows that the word "second" is through clerical mistake omitted before the name of an addition, the addition be- ing subject to identification and the omis- sion a mere inadvertence, it will not in- validate the description. Moore v. Paving Improvement District (Ark.) 1917D-599. Note. Time within which special or local as- sessment must be made. 1917E-137. i. Notice to Owner. 134. Constructive service of notice of a local improvement assessment satisfies the constitutional requirements of due process of law. Carstens & Earles v. Seattle (Wash.) 1917A-1070. 135. Constructive Notice to Landowners. The service of notice of a special assess- ment, as required by Rem. & Bal. Wash. Code, 7787-7813, by mail to the owners of the property, by the posting of notice thereon, and by advertisement in a news- paper, is constructive service onlv. Cnr- stens & Earles v. Seattle (Wash.) 1917A- 1070. 136. Under Rem. & Bal. Wash. Code, 7787-7813, prescribing the procedure for the creation and enforcement of liens for special assessments, which provides for only constructive service of notice and gives to all parties interested in the prop- erty the right to redeem from the tax sale, the proceeding is in rem, and the lien upon the land itself and not on the inter- est of any person therein, and is therefore superior to the lien of a prior mortgage, though there is no express provision to that effect in the statute. Carstens & Earles v. Seattle (Wash.) 1917A-1070. (Annotated.) j. Proceedings. 137. Resolution of Intention Suffici- ency Description of Bridge. A resolution of intention for the construction of wooden bridges at the end of cross-walks is not de- fective because not describing the kind of wood to be used. Remillard v. Blake, te. Co. (Cal.) 191GD-45L TAXATION. 805 k. Discontinuance of Proceedings. 138. Time Within Which Proceeding may be Discontinued. Until an assessment for a public improvement has been made and adopted by the court of common council, the obligation of the city is not fixed, and the proceeding may be discontinued, not- withstanding the electors of the city have voted to appropriate a sum of money for the construction of the improvement. Del- laripa's Appeal (Conn.) 1917B-&62. 1. Enforcement of Assessment. 139. Personal Judgment School Corpora- tion. Ind. Acts 1889, c. 118, as amended by Acts 1891, c. 118 (Burns' Ann. St. 1901, 4288), relating to assessments for public improvements and authorizing a waiver of irregularities in consideration of permis- sion to pay the assessment in 10 instal- ments, gave color to authority to municipal corporations to make such assessment upon land owned by common school corpora- tions. Acts 1903, c. 204 (Burns' Ann. St. 1908, 6671), expressly validated such as- sessments and made the school corpora- tions liable for assessments for improve- ments already constructed. Held, that as an agreement to waive irregularities in consideration of permission to pay the as- sessment in instalments created a new and independent undertaking, rendering the property holder personally liable, such an agreement made by a common school cor- poration, before the passage of the statute of 1903, must, after its enactment, bs held to authorize a personal judgment against the corporation. School Town of Windfall City v. Somerville (Ind.) 1916D-661. 140. Enforcement of Lien Nature of Proceeding. Proceedings to enforce a lien, which affects only the right of some per- son in the land, are not strictly proceedings in rem, as are those to enforce a tax lien, which affects the land itself, regardless of the ownership. Carstens & Earles v. Seattle (Wash.) 1917A-1070. 141. Summary Proceedings. Summary proceedings for the enforcement of a loca'l improvement assessment by sale of the land under execution of a tax deed upon failure % of those interested to redeem, with- out further hearing upon the validity of the assessment lien, satisfies the require- ments of due process of law. Carstens & Earles v. Seattle (Wash.) 1917A-1070. m. Review of Proceedings. 142. Assessment of Benefits Conclusive- ness of Finding. A finding by the commit- tee of special benefits to landowners from the construction of a sewer is conclusive on appeal, where no facts appear of record showing that such finding could not reason- ably hav? been made. Dellaripa's Appeal (Conn.) 1917B-&62. 143. Proceedings for Assessment Ap- peal. Under Wis. St. 1913, 1087ml9, pro- viding that "any person dissatisfied with any determination" of the county board of review may appeal within twenty days, etc., an income tax assessor charged with important duties in the administration of the income tax law, and who in the first instance assessed a tax against relator's salary as circuit judge, is entitled to ap- peal from the action of the board of re- view sustaining relator's objection to the tax. State v. Nygaard (Wis.) 1917A- 1065. n. Action to Enjoin or Set Aside. 144. Fairness Sufficiency of Evidence. In a suit to set aside an assessment for paving purposes, the evidence is held to show that the assessment was made in good faith, and was a reasonable assess- ment of future benefits, and not a mere arbitrary apportionment of the costs. Moore v. Paving Improvement District (Ark.) 1917D-599. 11. LICENSE OR OCCUPATION TAXES. 145. Interstate Business. A state may levy a tax upon any business carried on within the state, as on the occupation of doing business as a merchant, if such tax in no way discriminates against persons residing in another state Or the products and manufactures of another state, and the levying of such a tax is not a regulation of or restraint upon interstate commerce. Newport v. Wagner (Ky.) 1917A-962. 146. A license or occupation tax, imposed on an attorney for the privilege of practic- ing his profession, is not the same as a tax on income derived from such profes- sion, and hence the fact that an attorney was subject to a tax on his income after having paid a license tax was not double taxation. Commonwealth v. Werth (Va.) 1916D-1263. (Annotated.) 12. EXCISE OR FRANCHISE TAXE& a. Nature. 147. Definition of Excise Tax. An "ex- cise tax" is an inland impost levied on articles of manufacture or sale and also on licenses to" pursue trades or dealing in com- modities, and is frequently denominated a privilege or occupation tax. Albert Pick & Co. v. Jordan (Cal.) 1916C-12-37. 148. Corporation When Subject. A cor- poration subjects itself to the tax im- posed by the Corporation Tax Act (Act Aug. 5, '1909, Fed. St. Ann. 1909 Supp. p. 829) by exercising the privilege of carry- ing on or doing business for any part of the year for which the tax is imposed. Blalock v. Georgia R. etc. Co. (Fed.) 1917A-679. 806 DIGEST. 1916C 1918B. b. Validity. (1) Federal Corporation Tax Act. 149. Federal Corporation Tax. The tax imposed by the Corporation Tax Act (Act Aug. 5, 1909, Fed. St. Ann. 1909 Supp. p. 829) on corporations organized for profit and engaged in business equivalent to one per cent on the net income above $5,000 is valid as an excise on the privilege of doing business in a corporate capacity. Blalock v. Georgia E. etc. Co. (Fed.) 1917A-679. (2) Foreign Corporation Tax Act. 150. Validity. Where a foreign corpora- tion engaged in the automobile business purchased real estate and erected a sub- stantial building for the carrying on of its repair trade, and trade in used cars, as well as a selling agency, Mass. Foreign Corporation Tax Law of 1909 (St. 1909, c.'490, pt. 3), which greatly increased the license taxes upon foreign corporations, does not deprive such corporation of equal protection of the laws; it not appearing that its real property was exclusively adapted to use for automobile business, that it was necessary for it to have pur- chased such property to carry on its busi- ness, or that the property could not bs sold for a reasonable price. Marconi Wireless Tel. Co. v. Commonwealth (Mass.) 1916C- 214. 151. The Mass. Foreign Corporation Tax Law (St. 1909, c. 490, pt. 3) 56 et seq., is valid, it imposing an excise or license, and not a tax upon the property of foreign corporations. Marconi Wireless Tel. Co. v. Commonwealth (Mass.) 1916C-214. 152. Where a foreign corporation does both an intrastate and interstate business, an excise levied by the state upon its in- trastate business is not invalid because the profit on the intrastate business alone is not sufficient to meet it. Marconi Wire- less Tel. Co. r. Commonwealth (Mass.) 1916C-214. 153. Power of State to Tax. Where a foreign corporation which does an inter- state commerce business within the state also does a domestic business, the state may levy an excise tax upon it. Marconi Wireless Tel. Co. v. Commonwealth (Mass.) 1916C-214. c. Construction of Statutes. 154. Where a Connecticut corporation maintained a Boston sales office where samples were kept and salesmen for the New England district had their headquar- ters, it is not wholly engaged in interstate commerce, it appearing that customers visited its local office, and hence is sub- ject to Mass. Foreign Corporation Tax Law of 1909 (St. 1909, c. 490. pt. 3), Mar- coni Wlrelpss Tel. Co. v. Commonwealth (Mass.) 191CC-214. 155. Where a foreign corporation main- tained a local sales office where orders for the sale of machines were received subject to approval by the home office, but repair parts for the machines were kept at the local office and a large business in repairs was done, the corporation is not engaged wholly in interstate commerce, and is sub- ject to the excise tax imposed by Mass. Foreign Corporation Tax Law of 1909 (St. 1&09, c. 490, pt. 3). Marconi Wireless Tel. Co. v. Commonwealth (Mass.) 1916C-214. 156. A foreign corporation engaged in the automobile business, which maintained a local sales office where orders for ma- chines were taken, the machines being sent as ordered, but not kept distinct for each customer, and where a large repair and used car business was carried on, is not engaged wholly in interstate commerce, and is subject to Mass. Foreign Corpora- tion Tax Law of 1909 (St. 1909, c. 490, pt. 3). Marconi Wireless Tel. Co. v. Common- wealth (Mass.) 1916C-214. 157. A foreign flour manufacturing cor- poration, which maintained a local office from whence salesmen were sent through the country to secure retail orders for flour, which were delivered to the wholesale pat- rons of the company, is not wholly en- gaged in interstate commerce, particularly where a small stock was kept on hand for local sales, and is subject to Mass. Foreign Corporation Tax Law of 1909 (St. 1909, c. 490, pt. 3). Marconi Wireless Tel. Co. v. Commonwealth (Mass.) 1916C-214. 158. A foreign holding company whose articles of association named Boston as its business office without the state of its domicil, and which maintained a Boston office, where dividends from the stock it held for the benefit of its shareholders were received and were paid, is not en- gaged wholly in interstate commerce, and is subject to the Mass. Foreign Corporation Tax Law of 1909 (St. 1909, c. 490, pt. 3), particularly where its officers were citizens of the state of Massachusetts, and al! of its records and accounts were kept in that state. Marconi Wireless Tel. Co. v. Com- monwealth (Mass.) 1916C-214. 159. A foreign mining company whose property was located in another state, but which was authorized to maintain a Boston office, at which its directors' metings were held, its policies shaped, and selling orders given, is not engaged in interstate com- merce, although it had a general manager in charge of its mining business in the foreign state, and hence it is subject to the excise prescribed bv Mass. Foreisrn Corporation Tax Law of 1909 (St. 1909, c. 490, pt. 3). Marconi Wireless Tel. Co. v. Commonwealth (Mass.) 1916C-214. 160. A foreign corporation which main- tained a Boston office under a manager vvlio had charge of the business in that vicinity, and under whom were a salesman TAXATION. 807 and a stenographer, is not, where all orders had to be approved by the New York office, and no customers came to the Boston office, payments and shipments being made from outside the state, engaged in local business so as to be subject to Mass. Foreign Corporation Tax Law of 1909 (St. 1909, c. 490, pt. 3). Marconi Wireless Tel. Co. v. Commonwealth (Mass.) 1916C-214. 161. Corporation Engaged Wholly in In- terstate Commerce License Tax. A for- eign wireless company which maintained within the state stations at which mes- sages to and from ships on the high seas and foreign countries were received and transmitted, but which did not transmit any local messages, is engaged wholly in interstate commerce, and is not subject to the excise tax imposed By Mass. Foreign Corporation Tax Law of 1909 (St. 1909, c. 490, pt. 3). Marconi Wireless Tel. Co. v. Commonwealth (Mass.) 1916C-214. 162. Securities Owned by Domestic Cor- poration. Mass. Tax Act (St. 1909, c. 490) part 3, 43, provides that every corpora- tion shall annually pay a tax upon its franchise, but the said tax shall not ex- ceed a tax levied at a certain rate upon an amount 20 per cent in excess of the value, as found by the tax commissioner, of its works, structures, real estate, ma- chinery, poles, underground conduits, wires, pipes, merchandise, "and all securities which if owned by a natural person resi- dent in this commonwealth would be liable to taxation." A domestic corporation owned a bond of a Vermont corporation, and contended that such bond was a debt due to it, and that if it were owned by a natural person resident in the common- wealth who owed money in excess of the value of the bond, as the corporation did, such natural person could not be taxed on the bond. It is held, that such domestic corporation could be taxed on the bond, since the expression of the statute, "securi- ties which if owned by a natural person resident in this commonwealth would be liable to taxation," was not intended to es- tablish the same standard of taxation for the corporation as for an individual; the reference to such securities being merely to determine the taxable character of the securities, which, if they possess such character, are to be taken into account in estimating the value of the corporate fran- chise, while, from its total assets as deter- mining such value, the corporation is en- titled, upon making proper return, to de- duct its debts, and so cannot have them deducted a second time by utilizing them, after they have reduced its franchise value, to extinguish the taxable character of particular items of the corporation's property. Bellows ' Falls Power Co. v. Commonwealth (Mass.) 1916-834. 163. "Securities," as used in Mass. Tax Act (St. 1909, c. 490) part 3. 41, provid- ing that the tax upon the value of a cor- porate franchise of a domestic business corporation shall not exceed a tax levied t a certain rate upon an amount 20 per cent in excess of the value of the works, etc., "and of the securities which if owned by a natural person resident in this com- monwealth would be liable to taxation," is a word of sufficiently broad import to include bonds and other evidences of in- debtedness. Bellows Falls Power Co T. Commonwealth (Mass.) 1916C-834. d. Assessment and Valuation. 164. The U. S. Corporation Tax Act (Act Aug. 5, 1909, Fed. St. Aim. 1909 Supp. p. 829) provides that every corporation organized for profit and having a capital stock represented by shares and engaged in business shall pay annually a special excise tax with respect to the carrying on or doing business by it equivalent to one per cent upon its entire net income from all sources during the year above $5,000. Section 6301 provides that such net in- com shall be ascertained by making cer- tain deductions from the gross income re- ceived within the year from all sources. Section 6302 provides that there shall be deducted from the net income, the sum of $5,000, that the tax shall be computed upon the remainder of such income for the year ending December 31, 1909, and for each calendar year thereafter, and that on or before the first day of March in each year a true and accurate return, setting forth the gross amount of income received during the year, etc., shall be made by corporations subject thereto. It is held that the amount of the tax is measured by the corporation's income during the entire calendar year in which the privilege of doing business is exercised, and not by its income during the part of the year that the privilege is exercised if the corpora- tion does not carry on or do business dur- ing the entire year, as the prescribed tax is a single and indivisible one, and but one way of measuring the amount to be paid is provided. Blalock v. Georgia R., etc. Co. (Fed.) 1917A-679. 165. The objection that a state board, when fixing the value of the capital stock of a railway company upon the capital- ization-of-income plan, pursuant to Ky. Stat. 4077-4081, for the purpose of as- certaining the value for taxing "purposes of its intangible property, adopted a six per cent interest rate as the basis of capi- talization instead of the higher rate reached by taking the railway company's mileage in each of the states in which it operates, multiplying this by the legal rate of interest in that state, and dividing the total of the products by the total mile- age, is a criticism merely of the conclu- sion of the board upon a question of fact which is not properly subject to review by the courts. Louisville, etc. E. Co. v. Greene (U. S.) 1917E-97. (Annotated.) 808 DIGEST. 1916C 1918B. 166. To avoid a double assessment there must be deducted from the Kentucky ap- portionment of the value of the capital stock of an interstate railway company, the value of the Kentucky portion of the mileage controlled by it (in addition to the authorized deduction of the assessed value of the property there situated) when fixing, conformably to Ky. Stat. 4081, the value of the intangible property of such company for tax purposes, since the local franchise would be assessed against each of the separate organizations. Louisville, etc. E. Co. v. Greene (U. S.) 1917E-97. (Annotated.) 167. Valuation of Eailroad Property for Taxation Intangible Property. The method of deducting nontaxable assets adopted by a state board of valuation and assessment when fixing the value of the capital stock of a railway company upon the capitalization-of-income plan, pursuant to Ky. Stat. 4077-4081, for the purpose of ascertaining the value for taxing pur- poses of its intangible property, cannqt be said by the courts to be fundamentally erroneous merely because there was de- ducted from total net income the net in- come only of nontaxable securities owned by the corporation, although much of the stock of other corporations thus held, while paying no dividends, or dividends of low rate, may have had large intrinsic value by reason of the control it gave over other lines and the increment it brought to the aggregate income of the company. Louisville, etc. B. Co. v. Greene (U. S.) 1917E-97. (Annotated.) 168. The value of so much of the rail- way mileage controlled by an interstate railway carrier as is not represented by the latter's stock holdings should be in- cluded by the state board of valuation and assessment when fixing the value of the intangible property of such company for tax purpose, conformably to Ky. Stat. 4081, which requires that "that propor- tion of the value of the capital stock which the length of the lines operated, owned, leased, or controlled in this state bears to the total length of the lines owned, leased, or controlled in this state and elsewhere, shall be considered in fix- ing the value of the corporate franchise of such corporation liable for taxation in this state." Louisville, etc. E. Co. v. Greene (U. S.) 1917E-97. (Annotated.) 169. The controlled mileage within and without the state, and not merely the operated mileage, is what the state board of valuation and assessment must take into consideration when fixing the value of the intangible property of an inter- state railway company for tax purposes, conformably to Ky. Stat. 4081, which re- quires that "that proportion of the value of the capital stock which the length of the lines operated, owned, leased, or con- trolled in this state bears to the total length of the lines owned, leased, or con- trolled in this state and elsewhere, shall be considered in fixing the value of the corporate franchise of such corporation liable for taxation in this state." Louis- ville, etc. E. Co. v. Greene (U. S.) 1917E- 97. (Annotated.) e. Eecovery Back of Tax. 170. Estoppel of Taxpayer to Question. As Mass. St. 1903, c. 437, 60, 73, 74, deny a corporation, which fails to file sea- sonably with the secretary of the common- wealth the certificate of its condition as a foreign corporation, the right to main- tain actions in the local courts and im- pose severe penalties, the act of foreign corporations which maintained places of business within the state, in filing such certificate and appointing the commis- sioner of corporations their agent for the service of process in accordance with sec- tion 58, does not estop them from denying that they are liable to the excise tax' im- posed by Foreign Corporation Tax Law (St. 1909, c. 490, pt. 3), particularly as section 70 of that statute, which provides the exclusive remedy for recovering sucn taxes when improperly paid, does not re- quire any preliminary protest or statement of objection before filing the petition. Marconi ' Wireless Tel. Co. v. Common- wealth (Mass.) 1916C-214. (Annotated.) 13. SUCCESSION TAXES, a. Nature. 171. There is a wide distinction between a tax on the right to export, or to carry out of a state property after it has passed to an heir or legatee and has become his, and a tax on the property before it passes to him, or a tax upon his right to receive or of the deceased to devise and bequeath. Moody v. Hagen (N. Dak.) 1918A-933. 172. The term "droit de detraction" means a tax which is levied on the right of removal of property from one state to another, and does not include an inherit- ance tax, which is merely a tax upon the right to devise and to inherit. Moody v. Hagen (N. Dak.) 1918A-933. b. Validity of Statutes. 173. Discrimination Against Aliens. Sec- tion 8977 of the N. Dak. Compiled Laws of 1913, which imposes a tax of twenty- five per cent on the inheritance of non- resident aliens as opposed to a tax of one and one-half per cent on the inheritances of citizens and resident aliens residing in the United States, is not in violation of section 20 of article 1 of the constitution of North Dakota, which provides that "no citizen or class of citizens shall be grantod privileges or immunities which upon the same terms shall not be granted to all citi- zens." Nor is it in violation of section TAXATION. 11 of article 1 which provides that "laws ot a general nature shall have a uniform operation." Nor, where the decedent was a citizen of the United States and resid- ing therein, is it in violation of article 6 of the treaty of, amity and commerce be- tween Norway and the United States (7 Fed. St. Ann. 828) and which provides that "the subjects of the contracting par- ties in the respective states may fully dis- pose of their goods and effects either by testament, donation, or otherwise, in favor of such persons as they think proper; and their heirs in whatever place they shall reside, shall receive the succession ab in- . testato, either in person or by their at- torney, without having occasion to take out letters of naturalization. These in- heritances, as well as the capitals and effects, which the subjects of the two par- ties, in changing their dwelling, shall be desirous of removing from the place of their abode, shall be exempt from all duty, called 'droit de detraction,' on the part of the governments 'of the two states respec- tively." Moody v. Hagen (N. Dak.) 1918A-933. c. Property Subject to Tax. (1) In General. 174. Time for Taxing Future Estate. A testatrix devised all of her real estate to her husband for life with the direction that if her sister survived it should go to the sister for life, remainder to any chil- dren the sister might leave surviving her. The will further provided that in event of the sister's death before that of the hus- band the property should go to the sister's children, and that if the sister died with- out issue, the property should go over to the testatrix's cousin. Shannon's Tenn. Code, 726. 727, provide that where there shall be a devise to collateral relatives to take effect after the expiration of one or more life estates, the tax on such estate shall not be payable until the person liable for it shall come into actual possession, and that the tax shall be assessed upon the value of the estate at the time the right to possession accrues. Held, that as the interest of both the cousin and the sister was liable to oe divested, they were not entitled to the enjoyment of the estate so as to be liable to transfer taxes. Mc- Lemore v. Baine's Estate (Tenn.) 1916D- 307. (Annotated.) Note. Time for taxing future estates under succession tax acts. 1916D-309. (2) Situs of Property. 175. Property Subject to Succession Tax. Section 1873, Idaho Rev. Codes, so far as it applies to the facts presented here, lim- its the right to collect transfer tax upon inheritance to cases where property shall pass by will, or by the intestate laws of this state, from any person who may die seised or possessed of the same while a resident of Idaho, or if such decedent was a non-resident at the time of his death, which property, or some part thereof, shall be within this state. State v. Dun- lap (Idaho) 1918A-546. 176. The words "property which shall pass by will" are limited by the words "or the intestate laws of tEis state," and the tax is not payable because the owner of the property died testate if it would not be payable had he died intestate. The right to collect the tax, in either event is dependent upon the jurisdiction of the state over the transfer. State v. Dunlap (Idaho) 1918A-546. 177. While the situs of property is a controlling factor when the right to col- lect a property tax is under consideration, it must be remembered that an inherit- ance or succession tax is not a tax upon property, but is a bonus, in the nature of an excise or duty, exacted by the state for the privilege granted by its laws of inheriting or succeeding to property on the death of the owner, and that, in con- sidering whether or not such a bonus is due, the location of the property is mate- rial only when it invests the state with jurisdiction to control the right to make the transfer by inheritance or succession. State v. Dunlap (Idaho) 1918A-546. Notes. Situs of income of corporation for pur- pose of income tax. 1918A-426. Situs of corporate stock for purposes of succession tax. 1918A-555. (3) Estates of Non-residents. 178. Power to Appoint Appraiser Con- ditions Precedent. It was not the inten- tion of the legislature to attempt to pro- vide for the appointment of an appraiser under the circumstances disclosed by this application, but it authorized such appoint- ment, by the probate court, only in cases where proceedings to probate an estate are pending, or where the decedent has left an estate subject to probate in Idaho. State v. Dunlap (Idaho) 1918A-546. Note. What constitutes "residence" in jurisdic- tion within personal property or inherit- ance tax statute. 1917B-726. (4) Estate of Surviving Joint Tenant. 179. Estate Passing by Survivorship. The share which a joint tenant takes in the property on the deatfc of the other joint tenant does not pass by the laws regulating intestate succession, so as to be subject to an inheritance tax, since taxa- tion laws must be strictly construed, and the statute does not in express terms au- 810 thorize the taxation of the interest accrn- ing to a surviving tenant upon termination of the joint tenancy. Attorney General v. Clark (Mass.) 1917B-119. 14. INCOME TAX. a. Validity. (1) In General. 180. Independent of constitutional au- thority, the legislature may impose a tax on incomes. Commonwealth, v. Werth (Va.) 1916D-1263. 181. St. Wis. 1911, 1087m2, uubd. 3, imposing an income tax on the income arising from business transacted within the state, though such business involves transactions in interstate commerce, does not violate Const. U. S. art. 1, 8, giving Congress power to regulate commerce with foreign nation and among the several states, since that section does not prevent the exercise of the state's taxing power, so long as the tax does not impose a bur- den on interstate commerce. United States Glue Co. v. Oak Creek (Wis.) 1918A-421. (Annotated.) (2) Federal Income Tax Act. 182. The progressive rate feature of the income tax imposed by the Act of October 3, 1913 (38 Stat. at L. 166, c. 16, Fed, St. Ann. 1914 Supp. p. 185), does not cause such tax to transcend the conception of all taxation, and to be a mere arbitrary abuse of cower which must be treated as wanting in due process of law. Brush- aber v. Union Pacific E. Co. (U S.) 1917B-713. (Annotated.) 183. The methods of collection at the source, prescribed by the income tax pro- visions of the Tariff Act of October 3, 1913 (38 Stat. at L. 166, c, 16, Fed. St. Ann. 1914 Supp. p. 185), are not wanting in due process of law because of the cost to which corporations are subjected by the duty of collection cast upon them, nor be- cause of the resulting discrimination be- tween corporations indebted upon coupon and registered bonds and those not so in- debted, nor because of the discrimination against corporations which have assumed the payment of taxes on their bonds which results from the fact that some or all of their bondholders may be exempt from the income tax, nor because of the discrimina- tion against owners of corporate bonds in favor of individuals none of whose income is derived from such property, nor because the law does not release corporate bond- holders from the payment of a tax on their bonds, even after such taxes have been de- ducted by the torporation, if, after the de- duction, the corporation should fail, nor because the payment of the tax by the corporation does not relieve the owners of bonds, the taxes on which hnve been as- sumed by the corporation, from their duty DIGEST. 1916C 1918B. to include the income from such bonds in making a return of all income. Brush- aber v. Union Pacific E. Co. (U. S.) 1917B-713. (Annotated.) 184. Limiting the amount of interest which may be deducted from gross in- come of a corporation for the purpose of fixing the taxable income to interest on indebtedness not exceeding one-half the sum of bonded indebtedness and paid-up capital stock, as is done by the income tax provisions of the Tariff Act of Octo- ber 3, 1913 (38 Stat. at L. 166, c. 16, Fed. St. Ann. 1914 Supp. p. 185), is not want- ing in due process of law because dis- criminating between different classes of corporations and individuals. Brushaber v. Union Pacific E. Co. (U. S.) 1917B-713. (Annotated.) 185. Allowing individuals to deduct from their gross income dividends paid them by corporations whose incomes are taxed, and not giving such right of de- duction to corporations, as is done by the income tax provisions of the Tariff Act of October 3, 1913 (38 Stat. at L. 166, c. 16, Fed. St. Ann. 1914 Supp. p. 185), does not render the tax wanting in due process of law. Brushaber v. Union Pacific E. Co. (U. S.) 1917B-713. (Annotated.) 186. The allowance of a deduction of $3,000 or $4,000 to those who pay the nor- mal tax, as is done by the income tax pro- visions of the Tariff Act of October 3, 1913 (38 Stat. at L. 166, c. 16, Fed. St. Ann. 1914 Supp. p. 185), is not wanting in due process of law because those whose incomes are greater than $20,000 are not allowed, for the purpose of the additional or progressive tax, a second right to de- duct the $3,000 or $4,000 which they have already enjoyed, nor because, for the pur- pose of the additional tax, no second right to deduct dividends received from corpo- rations is permitted. Brushaber v. Union Pacific E. Co. (U. S.) 1917B-713. (Annotated.) 187. The allowance of a deduction of stated amounts for the purpose of ascer- taining the taxable income, as is done by the income tax provisions of the Tariff Act of October 3, 1913 (38 Stat. at L. 166, c. 16, Fed. St. Ann. 1914 Supp. p. 185), does not render the tax wanting in due process of law because of the discrimina- tion between married and single people, and between husbands and wives who are living together and those who are not. Brushaber v. Union Pacific E. Co. (U. S.) 1917B-713. (Annotated.) 188. No unconstitutional discrimination and want of due process of law results be- cause the owners of houses in which they live are not compelled by the income tax provisions of the Tariff Act of October 3, 1913 (38 Stat. at L. 166, c. 16, Fed. St. Ann. 1914 Supp. p. 185), to estimate the rental value in making up their incomes, while those who live in rented houses are TAXATION. 811 not allowed, in making up their taxable income, to deduct the rent which they have paid, nor because of the fact that although family expenses are not, as a rule, permitted to be deducted from gross income, farmers are permitted to omit from their income return certain products of the farm which are susceptible of use by them for sustaining their families dur- ing the year. Brushaber v. Union Pacific E. Co..(U. S.) 1917B-713. (Annotated.) 189. An unwarrantable delegation of legislative authority is not made by the income tax provisions of the Tariff Act of October 3, 1913 (38 Stat. at L. 166, c. 16, Fed. St. Ann. 1914 Supp. p. 185), because certain administrative powers to enforce the act are conferred by it upon the Secre- tary of the Treasury. Brushaber v. Union Pacific E. Co. (U. S.) 1917B-713. (Annotated.) 190. The whole purpose of U. S. Const. 16th Amend, giving Congress the power "to lay and collect taxes on incomes, from whatever source derived, without appor- tionment among the several states, and without regard to any census or enumera- tion," is to exclude the source from which a taxed income was derived as the crite- rion by which to determine the applicabil- ity of the constitutional requirement as to apportionment of direct taxes. Brushaber Y. Union Pacific E. Co. (U. 6.) 1917B-713. (Annotated.) 191. The retroactive effect of the in- come tax provisions of the Tariff Act of October 3, 1913 (38 Stat. at L. 166, e. 16, Fed. St. Ann. 1914 Supp. p. 185), which fix the preceding March 1st as the time from which the taxed income for the first ten months is to be computed, does not render the tax repugnant to the due process of law clause of U. S. Const. 5th Amend. (9 Fed. St. Ann. 288), nor inconsistent with the 16th Amendment itself, since the date of retroactivity did not extend be- yond the time when the latter amendment became operative. Brushaber v. Union Pacific E. Co. (U. S.) 1917B-713. (Annotated.) 192. Power to exclude from taxation some income of designated persons and classes, and to exempt entirely certain enumerated organizations or corporations, such as labor, agricultural, or horticultural organizations, mutual savings banks, etc., is not by implication forbidden to Con- gress bv the provisions of U. S. Const. 16th Amend, that Congress may lay and collect taxes on incomes "from what- ever source derived." Brushaber v. Union Pacific E. Co. (U. S.) 1917B-713. (Annotated.) 193. Labor, agricultural, or horticultural organizations, mutual savings banks, etc., can be excepted from the operation of the income tax provisions of the Tariff Act of October 3, 1913 (38 Stat. at L. 166, c. 16, Fed. St. Ann. 1914 Supp. p. 185), without rendering the tax repugnant to the federal constitution. Brushaber v. Union Pacific E. Co. (U. S.) 1917B-713. (Annotated.) b. Construction of Statutes. 194. Taxaole Income Attorney's Fees. Va. Tax Bill, Schedule (Acts 1902-04, c. 148, as amended by Acts 1912, c. 279), is entitled "Tax on income," and, after providing for the taxation of incomes de- rived from specified sources, provides (sub- division 5) for the taxation of all other gains and profits derived from any source whatever. It is held that, the statute having provided for taxation of profes- sional incomes derived from salaries, the income of an attorney derived from fees in the practice of his profession was sub- ject to taxation, whether the rule of ejus- dein generis be applied or independent thereof. Commonwealth v. Werth (Va.) 1916D-1263. (Annotated.) 195. Place of Taxation Residence. A high sheriff who is by law required to be a resident of the shire town of his county, and who in fact spends the greater por- tion of his time there in the discharge of his duties, boarding at the jail, is a resi- dent of that town and as such subject to a local income tax, though his wife and family continue to reside at his former home. Eex v. Board of Assessors (N. Bruns.) 1917B-721. (Annotated.) 196. Exemption from Income Tax Gov- ernment or County Officer. A sheriff is not a person employed in a "government" office nor is he a county officer "whose duties are necessarily performed in" the shire town of his county, within the mean- ing of exempting clauses in an act impos- ing an income tax on residents of that town. Eex v. Board ef Assessors (N. Bruns.) 1917B-721. 197. Profits on Sale Outside State Eight to Subject. Under Wis. St. 1911, 1087m2, subd. 3, providing that the in- come tax shall be collected on all incomes received by every person residing within the state, and by every non-resident on in- comes- derived from sources within the state, provided that any person engaged in business within and without the state shall, as to income other than that de- rived from rentals, stocks, bonds, securi- ties, or evidences of indebtedness, be taxed only on that proportion of such income de- rived from business transacted and prop- erty located within the state, the term "business transacted within the state" in- cludes not only that part of the business of a manufacturing corporation, located within the state, which consists of sales to residents of the state, but al?o its sales of its manufactured articles to persons without the state, either directly or from its branch houses located outside the state 812 DIGEST. 1916C 1918B. and supplied from the home factory. United States Glue Co. v. Oak Creek (Wis.) 1918A-421. (Annotated.) 198. The income from sales made by a local manufacturing company of goods purchased outside the state and sold to buyers outside the state, either from its factory in the state or indirectly through brarfch houses out of the state, is not in- come derived from "business transacted within the state," and therefore is not tax- able under Wis. St. 1911, 10S7m2, subd. 3. United States Glue Co. v. Oak Creek (Wis.) 1918A-421. (Annotated.) 199. Applicability to Judicial Salary. Wis. Const, art. 4, 26, declares that the compensation of a public officer shall not be increased or diminished during his term of office, and Const, art. 8, 1, as amended in 1908, declares that taxes shall be uniform, and shall be levied on such property as the legislature prescribes, that taxes, which may be graduated and pro- gressive, may be imposed on incomes, privileges, and occupations, and that rea- sonable exemptions may be provided. Wis. St. 1913, ? 1087m2, imposes an income tax on all salaries or fees, and provides that salaries of public officers shall not be computed as part of the taxable income, where taxation thereof would be uncon- stitutional. Held, that it was the intent of the statute to tax the salaries of all public officers as part of their income, if they could be taxed, and that, as the amended provision was as broad, sweep- ing, and specific as the provision as to compensation, the salary of a circuit judge was subject to an income tax. State v. Nygaard (Wis.) 1917A-1065. Note. Taxable personal income under income tax statute. 1916D-1265. 15. POLL. TAXES. 200. Validity. N. Car. Const, art. 5, 1, declares that the general assembly shall levy a capitation tax on every male in- habitant over twenty-one and under fifty years of age, which shall be equal on each to the tax on property valued at $300, and that the state and county capitatipn tax combined shall never exceed $2 per head. Section 2 declares that the proceeds of the stale and county capitation tax shall be applied to the purposes of education and the support of the poor, but ib no one year shall more than twenty-five per cent be appropriated for the latter purpose. Section 6 provides that taxes for county purposes shall be levied in the same man- ner as state taxes, and shall never exceed double the state tax, except for a special purpose, and with the special approval of the legislature. N. Car. Pub. Loc. Laws 1915, c. 27, providing for the construction of good roads of Alexander county, au- thorizes the sale of bonds for that pur- pose, and the levy of a sufficient special tax on all polls, all real estate and per- sonal property, always observing the con- stitutional equation between taxes on property and taxes on the polls, provided there shall not be levied a tax greater than thirty-three and one-third on the $100 valuation, and $1 on each poll. Const, art. 7, 7. declares that no county, city, town, or other municipal corporation shall contract any debt or loan its credit, nor shall any tax be levied except for the "necessary expenses" thereof unless au- thorized by vote of the majority of the qualified electors. It is held that, as the constitution is necessarily a general instru- ment intended to be applicable to future conditions, and as the framers of the con- stitution must have known that necessary state and county expenses would practi- cally consume the tax up to the $2 limit, the act is valid, for the limitation on the poll and on the property taxed applies only to taxes levied for the ordinary ex- penses of the state and county govern- ments, and such limitation may be ex- ceeded for a special purpose with the ap- proval of the general assembly, as any other construction would violate long con- tinued legislative and executive construc- tion, would prevent improvements by the counties, and would necessitate applica- tion of a large per cent of the poll taxes levied to relief of the poor, this being particularly true in view of the additional powers given counties 'and other munici- palities to contract debts upon approval of a majority of the voters. Moose v. Board of Commissioners (N. Car.) 1917E- 1183. (Annotated.) Note. Constitutionality of poll taxes. 1917E- 1208. 16. TAXPAYERS' ACTIONS. 201. A taxpayer is not entitled to have a city enjoined from engaging in selling electrical appliances as a part of its busi- ness of furnishing electric light, where it did not appear that any increase in taxa- tion resulted or that money was misappro- priated. Andrews v. South Haven (Mich.) 1918B-100. (Annotated.) 202. In an action brought by taxpayers against the individual members of a county board to recover money alleged to have been illegally paid out by them while acting as the board of supervisors of the county, the petition was entitled "The County of Holt, a corporation duly organ- ized under the laws of the state of Ne- braska, by M. T. Hiatt and H. M. Uttlfey, residents of and taxpayers in said county, who bring this action for and in behalf of all the people in the county." A mo- tion by the defendants to dismiss the ac- tion and by the county attorney to dis- miss "as to the county," for the reasons TAX DEEDS TELEGRAPHS AND TELEPHONES. 813 that the case was brought without author- ity of the county and the county dis- claimed any interest in the suit, was sus- tained, and judgment of dismissal ren- dered. Held, that the action should not have been dismissed, but that the plain- tiffs should have been allowed to proceed, making the county a party defendant, if they so desired. Holt County v. Tomlin- son (Neb.) 1917A-853. . (Annotated.) 203. Dismissal. In an action by a tax- payer, brought on behalf of a county, in which the county has been made to appear as plaintiff, neither the county nor the county attorney has any absolute right to a dismissal of the case upon motion on the ground that the action was not authorized by them or either of them, since in such ac- tions the county authorities may to some extent occupy an adverse position to the interests of plaintiff and other taxpayers. Holt County v. Tomlinson (Neb.) 1917A- 853. (Annotated.) TAX DEEDS. See Taxation, 111-115. TAXICABS. See Carriers of Passengers, 84, 90. TAXPAYER'S ACTION. See Agriculture, 5, 10; Taxation, 201-203. TAX SALES. See Taxation, 111-115. TAX TITLES. See Taxation, 111-115. TEACHERS. See Schools, 29-32. TELEGRAPHS AND TELEPHONES. 1. Definition, 813. 2. Eights Under Franchise, 814. 3. Contract for Use of Right of Way of Railroad, 814. 4. Prescriptive Easement for Poles, 814. 5. Duty to Serve Public Without Discrim- ination, 815. 6. Regulation, 815. a. In General, 815. b. Rates, 815. c. Use of Streets, 815. d. Control of Public Service Commis- sion, 815. 7. Right to Make Rules and Regulations, 816. 8. Transmission of Messages. 816. a. Refusal to Transmit, 816. b. Delay in Transmission, 816. c. .Limitation of Time for Filing Claim, 816. d. Actions, 817. (1) Defenses, 817. (2) Pleading, 817. (3) Evidence, 817. (4) Instructions, 817. (5) Questions for Jury, 8ji7. (6) Damages, 817. (7) Appeal, 817. 9. Rights and Liabilities of Telephone Companies, 817. See Licenses, 36. Excessiveness of damages, delayed mes- sages, see Damages, 44. Condemnation of railroad right of way, see Eminent Domain, 11-17. Presumption as to receipt of telegram, see Evidence, 141, 142. Municipal operation of telephones, see Municipal Corporations, 40, 41. Telephone lines as nuisances, see Nui- sances, 4. Service of summons by telephone, see Process, 7. Separation of electric wires, see Railroads, 31-35. Maintenance of wires along railroad, see Railroads, 55. 1. DEFINITION. 1. Status as Public Utility Mutual Company. A mutual telephone company, organized to render service to its members at cost, to connect with other telephone companies on the basis of a mutual ex- change, and to connect any of its members with toll lines for long-distance service, operating in a village under a franchise giving ii the right to use the streets and alleys on the express condition that no person, firm,, or corporation, excepting commercial telephone companies, shall be barred from membership on payment of the same membership fees as are paid by other members and on the payment of the same annual switching fees as aro paid by other members, is a "public util- itv," within 111. Public Utilities Act (Kurd's Rev. St. 1913, c. Ilia) 10, de- fining a public utility to include every corporation operating for public use any equipment used for or in connection with the transmission of telephone messages, or that may own any franchise to engage in the telephone business; for a "public use" means a public usefulness, utility, advantage, or benefit to a community as distinguished from an individual or any particular number of individuals, without including the entire state or anv political subdivision thereof, and the use may be local or limited and confined to a particu- lar district. State Public Utilities Com. v. Noble Mut. Tel. Co. (111.) 1916D-897. (Annotated.) 814 DIGEST. 1916C 1918B. 2. EIGHTS UNDER FRANCHISE. 2. Eight in Streets Formation of Con- tract. The acceptance by a telegraph company of a grant by city ordinance of right to erect poles and wires in streets, and its performance of conditions imposed, such as opening an office in the city, create a contract which cannot be rescinded ex- cept for good cause. Vandalia v. Postal Telegraph-Cable Co. (HI.) 1917E-523. 3. ilight to Use Streets Revocation. Iowa Code 1873, 1324, as amended by Acts 19th Gen. Assem. c. 104 (Code 1897, 2158), providing that any person or com- pany may construct a telegraph or tele- phone line along the public highways of the state or across the rivers or over any lands belonging to the state or to any private individual, and may erect the necessary fixtures therefor, when accepted by a telephone company, became a con- tract between the state and the company whereby the latter acquired the right to run its lines through the streets and alleys of municipalities within the state, and, being unlimited, as to time, it is a special franchise in perpetuity, constituting a contract between the state and the ac- cepting company, subject only to a proper exercise of the regulatory police power and to expressly reserved powers. State v. Iowa Tel. Co. (Iowa) 1917E-539. (Annotated.) 4. A telephone company was granted and accepted a franchise to operate its lines under Iowa Code 1873, 1324, as amended bv Acts 19th Gen. Assem. c. 104 (Code 1897, 2158), providing that any person or company may construct a tele- graph or telephone line along the public highways of the state. or across the rivers or over any lands belonging to the state or to any private individual, and may erect the necessary fixtures therefor. Code 1897, 775, provides that cities and towns shall have the power to authorize and regulate telegraph, district telegraph, tele- phone, street railway, and other electric wires, and the poles and other supports thereof, by general and uniform regula- tions, and to provide the manner in which and places where the same shall be placed upon, along, or under the streets, roads, avenues, alleys, and public places of such city or town, and may divide the city into districts for that purpose. Section 776 provides that no franchise shall be granted, renewed or extended by any city or town for the use of the streets, high- ways, avenues, alleys, or public places, for any of the purposes named in the pre- ceding section, unless a majority of the legal electors voting thereon vote in favor of the same at a general or special elec- tion. The council may order the question of granting, renewal, or extension of any franchise submitted to a vote at a gen- eral election, or at one specially called for that purpose, or the mayor shall sub- mit such question to such vote upon the petition of twenty-five property owners of each ward in a city, or fifty property owners in any incorporated town. It is held that such sections did not deprive the telephone company of its franchise to operate its lines in a city, and thus im- pair the obligation of its contract, and deprive it of property without due process of law, since the object of such legislation was to authorize cities to regulate such companies as were already using the streets and alleys under the grant of th legislature and others which might secure such right by general and uniform legisla- tion applicable to all, and to provide that no sucti franchises should thereafter be granted, renewed, or extended, except upon a referendum vote. State v. Iowa Tel. Co. (Iowa) 1917E-539. 5. Crossing Public Highway Necessity of Permit. Me. Rev. St. c, 55, 17, pro- viding that corporations or individuals engaged in operating telephones shall not construct lines "upon and along" highways and public roads without permission from the selectmen of towns, etc., forbids the placing of telephone wires across the highways, etc., by persons not so author- ized, since the word "across" is synony- mous with the words "upon and along." Mt. Vernon Tel. Co. v. Franklin Farmers', etc. Tel. Co. (Me.) 1917B-649. 3. CONTRACT FOR USE OF RIGHT OF WAY OF RAILROAD. 6. Right of Way Incidental Rights Contract With Railroad. In an action of trespass on the freehold for damages for the cutting of parts of shade trees on plaintiff's ground overhanging a railroad right of way, a contract between the rail- road and the defendant telegraph com- pany permitting the construction of a tele- graph line over the right of way for -the joint use of the railroad and the company is admissible as showing that the tele- graph company had derived from the rail- road the right to construct the line with rights incidental thereto. Cobb v. West- ern Union Tel. Co. (Vt.) 1918B-1156. 7. Location Under Contract Nature of Rights. A contract, giving a telegraph company the right to maintain its wires along a railroad right of way for. a term of twenty-five years, and providing that at the expiration of that period either party might terminate the contract by giving one year's notice, does not give the telegraph company a permanent easement. Louisville, etc. R. Co. v. Western Union Tel. Co. (Ala.) 1917B-696. 4. PRESCRIPTIVE EASEMENT FOR POLES. 8. Where a telegraph company, without grant or license, sets its poles on the bor- der of land owned by defendants with the TELEGRAPHS AND TELEPHONES. 815 cross-arms extending three feet over such land, the prescriptive use of the easement for a time exceeding the statutory period of limitation does not give it a right to attach cross-arms extending eight feet over such land for the purpose of string- ing additional wires. Postal Telegraph Co. v.' Forster (Ore.) 1916E-979. (Annotated.) 9. Where a telegraph company, which has acquired a prescriptive right to main- tain its poles with the cross-arms extend- ing three feet over defendants' land, is about to attach cross-arms extending eight feet over such land, defendants are en- titled to.injunctive relief and are not lim- ited to a recovery of damages; the suit in which such injunctive relief was granted having been brought before the new cross-arms were put up and before any extra wires had been strung, authoriz- ing a use of the means of communication in the interest of the public. Postal Tele- graph Co. v. Forster (Ore.) 1916E-979. (Annotated.) 10. Where a telegraph company has ac- quired a prescriptive right to maintain its poles on the border between defend- ants' land and a railroad right of way with the cross-arms extending three feet over defendants' land, it cannot be en- joined from using its wires for telephone purposes, though Act Cong. July 24, 1866, c. 230, 14 Stat. 221 (7 Fed. St. Ann. p. 205) authorizing any telegraph com- pany to construct and operate telegraph lines over and along post roads does not give the right to maintain telephone lines, as the use of the wires for telephone pur- poses east no additional burden upon de- fendants' premises. Postal Telegraph Co. v. Forster (Ore.) 1916E-979. (Annotated.) Note. Acquirement by prescription of right to- maintain telegraph, telephone or elec- tric light pole. 1916E-981. 5. DUTY TO SERVE PUBLIC WITH- OUT DISCRIMINATION. 11. Telephone companies are public ser- vice corporations, and their instruments and apparatus are devoted to a public use, and must serve the public generally, without discrimination, on compliance with their reasonable rates and regula- tions, being bound to conduct their busi- ness in a manner conducive to the public- benefit, and subject to legislative regula- tion and control. Wolverton v. Mountain States Tel. etc. Co. (Colo.) 1916C-776. (Annotated.) 6. REGULATION. a. In General. 12. Municipal Regulation of Telephones Validity. Where a telephone company has been granted a franchise to operate its lines under Iowa Code 1873, 1324, as amended by Acts 19th Gen. Assem. c. 104 (Cede 1897, 2158), providing that any person or company may construct a tele- graph or telephone line along the public highways of the state or across the rivers or over any lands belonging to the state or to any private individual, and may erect the necessary fixtures therefor, its right to operate its lines through the streets and highways of a city is subject to regulation by the city under its police power. State v. Iowa Tel. Co. (Iowa) 1917E-539. b. Rates. 13. Regulation of Rates. Contracts with public service corporations for specific rates, and for definite periods, are subject to legislative regulation. Wolverton v. Mountain* States Tel., etc. Co. (Colo.) 1916C-776. 14. The power to fix a rate or regulation for a public service corporation is exclu- sively a legislative function, and the court may not fix a rate, but may determine the question of reasonableness only. Wolver- ton v. Mountain States Tel., etc. Co. (Colo.) 1916C-776. 15. Regulation of Telephone Rates. If a telephone company's franchise from a city, limiting rates to be charged, is deemed a contract, the mere fact that it was made prior to the enactment of the Ore. Public Utility Act (Laws 1911, p. 483), and before the state attempted to regulate such rates, does not debar the state from increasing the rates as fixed in the franchise, because when the state ex- ercises its police power, it does not work any impairment of obligation of the con- tract; the pos'sibility of the exercise of such power being an implied term of the contract. Woodburn v. Public Service Commission (Ore.) 1917E-996. (Annotated.) e. Use of Streets. 16. Regulation of Use of Streets. Un- der 111. Kurd's Rev. St. 1913, c. 134, 4, providing for municipal regulation of loca- tion and erection of wires and poles of telegraph companies, a city, under its po- lice powers, may make reasonable regula- tions as to maintenance of poles and wires of telegraph companies. Vandalia v. Postal Telegraph-Cable Co. (111.) 1917E- 523. d. Control of Public Service Commission. 17. Jurisdiction What is Public Utility Mutual Telephone Company. Where a mutual telephone association has no au- thority under its charter to engage in pub- lic telephone service, or to devote its prop- erty to public use, but is organized for the 816 DIGEST. 1916C 1918B. private use of its members only, and not for profit, an order of the public utilities commission, requiring the association to cease operations for failure to obtain a certificate of convenience and necessity, as required by 111. Laws 1913, p. 483, 55, is void, since the jurisdiction of the commission is confined, by the terms of the act creating it, to the control and supervision of owners and operators of property devoted to a public use. State Public Utilities Com. v. Bethany Mut. Tel. Assoc. (111.) 1917B-495. (Annotated.) 18. The fact that a mutual telephone association had obtained a license from the village to construct and maintain its telephone poles and wires in the streets, under which it is about to erect great quantities of poles and wires, does not fix its character as a corporation. State Pub- lic Utilities Com. v. Bethany Mut. Tel. Assoc. (111.) 1917B-495. (Annotated.) 19. Procedure Failure to File State- ment of Valuation. The failure of the public service commission to file a state- ment of valuation mentioned in section 10 of the Ore. Public Utility Act (Laws 1911, p. 483) does not affect the validity of an order, allowing a telephone company to charge higher rates than those stated in its franchise, since the right to make the order does not depend upon filing the statement of valuation, and, in any event, under direct provision of section 75 of the act, technical omissions are immaterial. Woodburn v. Public Service Commission (Ore.) 1917E-996. 20. Power to Begulate Telephone Rates. Where a municipality under its home rule charter, adopted under Ore. Const, art. 11, 2, granted a telephone franchise limiting rates to be charged, and later the Ore. Public Utility Act (Laws 1911, p. 483) was enacted, the public service commis- sion had authority thereunder to author- ize the company to charge higher rates. Woodburn v. Public Service Commission (Ore.) 1917E-996. 21. Jurisdiction, The diversion of streets and alleys from their legitimate use by constructing a telephone system thereon would not give the public utilities commission jurisdiction over the associa- tion. State Public Utilities Com. v. Beth- any Mut. Tel. Assoc. (111.) 1917B-495. (Annotated.) 7. RIGHT TO MAKE RULES AND REGULATIONS. 22. Requiring Payment at Office. A rule of a telephone company, requiring pay- ment of rentals at its business office, is reasonable and valid. State v. Kenosha Home Tel. Co. (Wis.) 1916E-365. 23. Rules Change in Method of Collec- tion. A telephone company is authorized to change its method of collecting rentals by means of collectors, so as to require payment at its business office, where sucli change did not entrench on contract rights or statutory mandates. State v. Kenosha Home Tel. Co. (Wis.) 1916E-365. 8. TRANSMISSION OF MESSAGES, a. Refusal to Transmit. 24. Duty to Accept Message for Trans- mission. A. telegraph company may refuse to send a message which is obscene, slan- derous, blasphemous, profane, indecent, or the like. Western Union Telegraph Co. v. Franklin (Ari.) 1916D-466. (Annotated.) 25. A message tendered t a railroad and telegraph agent for transmission to his superior officer, reading: "Please ad- vise why you cannot get a civil answer out of your agent here. If you ask him anything he has to curse you out" is neither slanderous, profane, nor indecent, and is entitled to be transmitted. West- ern Union Telegraph Co. v. Franklin (Ark.) 1916D-466. (Annotated.) 26. That the purpose of the sender of a telegraph message refused by the com- pany's agent was to report the conduct of the agent to his superior did not affect the right to recover the penalty prescribed by Kirby's Ark. Dig. 7946, for refusing to send the message. Western Union Tel- egraph Co. v. Franklin (Ark.) 1916D-466. (Annotated.) Note. Liability of telegraph company for re- fusal to accept message for transmission. 1916D-467. b. Delay in Transmission. 27. Inevitable Delay Duty to Notify Sender. A telegraph company, learning that, because of conditions brought about by no fault on its part, it is unable to de- liver a message, must send a service mes- sage notifying the sender why delivery cannot be made. Jones v. Western Union Telegraph Co. (S. Car.) 1917C-543. (Annotated.) 28. Duty to Transmit Message Liability for Delay. A telegraph company receiv- ing a message for transmission must de- liver it within a reasonable time, and, where it fails through its wrongful act so to do, it is liable for the damages prox- imatelv resulting therefrom. Jones v. Western Telegraph Co. (S. Car.) 1917C- 543. Note. Duty of telegraph company to notify sender of delay in transmission or delivery of message. 1917C-545. c. Limitation of Time for Filing Claim. 29. Claim, for Damages Suit as Equiva- lent of Filing. The stipulf.tion of a tele- TELEGRAPHS AND TELEPHONES. 817 graph blank requiring notice in writing within sixty days, of claim for damages, is satisfied by commencing an action, by service of summons, within sixty days after sending two messages, for failure to deliver the first and delay in delivering the second, though at the same time notice of claim on account of the second message only was given, the company not having thereby been misled to its damage, and though the complaint was not filed till after the sixty days. Mason v. Western Union Tel. Co. (N. Car.) 1917D-159. (Annotated.) Note. Commencement of suit as presentation of claim within stipulation on telegraph blank. 1917D-162. d. Actions. (1) Defenses. 30. Delay of Death Message Proximate Consequence. A telegram notifying the addressee that one denominated father had died and would be buried the follow- ing evening carries with it a suggestion that, if the addressee cannot arrive at the hour named, the funeral will be post- poned; and, where the telegraph company delayed the message, recovery cannot be defeated because the addressee could not Have reached the place of the funeral in time had the message been promptly de- livered. Western Union Tel. Co. v Blake (Ark.) 1916C-521. (2) Pleading. 31. Joinder of Causes of Action Delay and Failure to Notify Inconsistency. A cause of action for a telegraph company's nondelivery of a message is inconsistent with a cause of action for its failure to send a service message on learning that, because of conditions brought about by no fault on its part, it is unable to make delivery of the message, and one cannot recover damages for a wrongful failure to deliver and for a wrongful failure to send a service message. Jones v. Western Union Telegraph Co. (S. Car.) 1917C- 543. (3) Evidence. 32. Evidence Hearsay Statement of Unexecuted Intention. In an action for damages for delay in the transmission of a death message, testimony by the son and son-in-law of the deceased who as- sisted his wife in making the funeral ar- rangements that, had the addressee noti- fied them of his intention to come, the funeral would have been postponed is not hearsay. Western Union Tel. Co. v. Blake (Ark.) 1916C-521. (4) Instructions. 33. Permitting Double Recovery. Where the complaint, in an action against a tele- 52 graph company, alleged damages for non- delivery of a message and for failure to send a service message, a charge author- izing a verdict for actual and punitive damages for nondelivery and a verdict for actual and punitive damages for failure to send a service message is erroneous and prejudicial to the company. Jones v. Western Union Telegraph Co. (S. Car ) 1917C-543. (5) Questions for Jury. 34. Delay Negligence for Jury. In an action for damages for delay in the trans- mission of a death message, evidence whether it could have been delivered with- in time by the exercise of reasonable care held sufficient to go to the jury. Western Union Tel. Co. v. Blake (Ark.) 1916C-521. (6) Damages. 35. Disclosing Contents of Message Punitive Damages. Proof of wilfulness is essential to the recovery of punitive dam- ages against a telegraph company for the act of its agent in disclosing the contents of a message. Purdy v. Western Union Tel. Co. (S. Car.) 726. (Annotated.) Note. What is excessive verdict for mental anguish in telegraph case. 1916C-524. (7) Appeal. 36. Instruction on Evidence Disbelieved by Jury. In an action against a telegraph company for refusal of agent to transmit message to his superior officer complain- ing of his conduct, where plaintiff and his witnesses testified that the agent re- fused to send it, and thereafter asked plaintiff to give him that "damned tele- gram," and that plaintiff did not let him have it, fearing he would destroy it, and the agent testified that he asked for it that he might send it, as the verdict showed that the jury believed the state- ments of plaintiff and his witnesses which conflicted with that of the agent, any error in the instructions given and re- fused relating to the subsequent offer of the agent to transmit the message are so immaterial as not to require reversal of the judgment for plaintiff. Western Union Telegraph Co. v. Franklin (Ark.) 1916D-466. Note. Liability of telegraph company for dis- closure of contents of message. 1916C- 727. 9. EIGHTS AND LIABILITIES OF TELEPHONE COMPANIES. 37. Contracts Termination. Under a contract for telephone service at a resi- dence not extending to any definite time, and which plaintiff, the subscriber, could 818 DIGEST. 1916C 1918B. terminate at any time, the court was with- out power to perpetuate it for business purposes at the agreed rate for residence purposes, which might or might not be rea- sonable, since such contracts for fixed periods are impractical, if not impossible, from their very nature. Wolverton v. Mountain States Tel., etc. Co. (Colo.) 1916C-776. TELEPHONES. See Telegraphs and Telephones. TEMPORARY INJUNCTION. Eestraining order distinguished, see In- junctions, 37, 38. TENANCY FROM YEAR TO YEAR. Created by holding over, Bee Landlord and Tenant, 49. TENANT. Who is, see Landlord and Tenant, 1. TENANTS. See Landlord and Tenant. TENANTS IN COMMON. 1. Creation and Nature of Tenancy. 2. Riguts and Liabilities Inier Se. a. Purchase by Cotenant. b. Removing Burdens from Estate. c. Accounting Between Cotenants. 3. Rights and Liabilities as to Third Per- sons. Wrongful confusion, effect, see Confusion, 6-9. Interest subject to homestead, see Home- stead, 6. Mining by cotenant, measure of damages, see Mines and Minerals, 8. Agreement to suspend partition, .see Par- tition, 2. Partition by agreement, see Partition, 1. Partition by suit, see Partition, 4. Presumption as to intent to create, see Wills, 213. 1. CREATION AND NATURE OP TENANCY. 1. A provision in a deed by which the owner of land conveys to each of two sisters a third interest in it that, while all three may occupy it as a home so long as they remain unmarried, one of them marrying, may not longer so occupy it, is not inconsistent with a joint tenancy so as to prevent the deed creating one. It does no more than provide a contingency on which such tenancy shall cease. Wood v. Logue (Iowa) 1917B-116. (Annotated.) 2. A deed clearly showing intent to cre- ate a joint tenancy between the grantor and grantees, and by the last clause pro- viding that the one of them last dying is to be the absolute owner of the prop- erty, the use of the word "inherit," with reference to acquirement by survivors of the title of one dying, will be considered merely an inaccurate application of it to acquirement of title by survivorship. Wood v. Logue (Iowa) 1917B-116. (Annotated.) 3. Estates Joint Tenancy or Tenancy in Common. The law prefers to construe a gift to several as creating a tenancy in common instead of a joint tenancy. Allen v. Almy (Conn.) 1917B-112. (Annotated.) 4. Even at common law provisions of an instrument which contemplated a division of property were construed to create a tenancy in common rather than a joint tenancy. Allen v. Almy (Conn.) 1917B- 112. ' (Annotated.) 5. Nature of Title. The title to tenants in common in land is separate, there being nc unity in title, but only unity of pos- session. Firemen's Ins. Co. v. Larey (Ark.) 1917B-1225. Note. Nature of estate resulting from creation of cotenancy. 1917B-57. 2. RIGHTS AND LIABILITIES INTER SE. a. Purchase by Cotenant. 6. Purchase of Outstanding Title Ten- ants Asserting Hostile Claims. The rule which prevents one tenant in common from purchasing an outstanding title to the common property and setting it up Against his cotenant is founded upon the confidential relation which is presumed to exist between them, and has no applica- tion where the circumstances surrounding them negative any such relation, and show that they, though in law tenants in com- mon, are not such in fact, and are assert- iug hostile claims against each other with reference to the common property. Shelby v. Rhodes (Miss.) 1916D-1306. (Annotated.) 7. Property was conveyed by a void deed to a married woman, and on her death intestate she left as heirs her husband and a minor son. The father sold the prop- erty by warranty deed to a purchaser, who had no knowledge of the interests of the son. On discovery of such interest the purchaser procured a quitclaim deed from the original grantor. It is held that, pre- termitting the discussion as to whether the infant son was a tenant in common with the purchaser, the quitclaim deed did not inure to the minor to perfect his title, since the purchaser at all times held ad- TENDER TENURE OF OFFICE. 819 versely to the minor, and there were never any confidential relations between them. Shelby v. Rhodes (Miss.) 1916D-1306. (Annotated.) Note. Rule preventing tenant in common from purchasing outstanding title as applicable where tenants hold adversely to each other. 1916D-1307. b. Removing Burdens from Estate. 8. Subjection of Share of Tenant to Mortgage Debt Subrogation to Rights of Mortgagee. Plaintiff and his cotenant gave a mqrtgage on the common property to secure a note which they fa.led to pay, whereupon a subsequent mortgagee of the cotenant's interest paid the n^t^, obtained judgment thereon in another state, and in an action on the judgment in this state attached and sold plaintiff's undivided in- terest for the amount of the foreign judg- ment with interest and costs. It is held that plaintiff was entitled to be subrogated to the rights of the mortgagee in his co- tenant's interest, as against the subse- quent mortgagee and a grantee of the co- tenant's interest, to the extent of one-half of the amount for which his interest was sold. Sprowls v. Sprowls (S. Dak.) 1917A- 830. (Annotated.) c. Accounting Between Cotenants. 9. Accounting Parties Effect of As- signment. The K. Co. and the C. Co. were equal owners and tenants in common of a mining right. The K. Co. secretly ex- tracted ore therefrom, failed to account therefor, and conveyed its property to the M. Co., which, in consideration of that conveyance, assumed and agreed to pay all the debts and obligations of its grantor. Held, a suit in equity can be maintained by the C. Co., or its assignee, against the M. Co., without the presence of the K. Co. to enforce the contract of the M. Co. to pay the obligation of its grantor to account to the C. Co. for the latter's share of the value of the ore the K. Co. ex- tracted from the common property. Sil- ver King Coalition Mines Co. v. S'lver King Consol. Mm. Co. (Fed.) 1918B-571. 10. Compensation for Services Sale of Common Property. A tenant in common is not entitled to compensation for ser- vices in selling the common property in the absence of an agreement therefor, and no agreement to pay compensation will be implied from the fact that his co- tenant had knowledge of the efforts to sell, acquiesced therein, and was benefited by the sale. Wall v. Focke (Hawaii) 1916C-677. (Annotated.) Note. Right of tenant in common to compen- sation for services in selling common prop- erty. 1916C-6SO. 3. RIGHTS AND LIABILITIES AS TO THIRD PERSONS. 11. Action for Injury to Property Necessity of Joinder.. In case of tenancy in common, where tuere is a holding in sev- eralty, each separate owner must sue for his share of the property. Lou.sville, etc. K. Co. v. Jackson (Ark.) 1918A-604. (Annotated.) 12. A suit to recover the entire amount of damages for permanent injury to the freehold cannot be instituted by ons of the tenants in common not in exclusive occupancy; and, where the land was par- titioned in its damaged condition, the other tenants retained their rig.it of action already accrued. Louisville, etc. R. Co. v. Jackson (Ark.) 1918A-604. (Annotated.) Note. Right of one tenant in common to sue for damages for injury to premises. 1918A-608. TENDER. Effect of refusal as to accommodation maker, see Bills and Notes, 44. Necessity of tender as condition prece- dent to commission, see Brokers, 7. Waiver of tender, action for commission) see Brokers, 7. Tender of amount equal to verdict as bar to recovery of interest, fCj Interest, 3. Option made binding by tender, see Vendor and Purchaser, 3. 1. Evidence Sufficient. The pleading and evidence required a finding on the issue of tender of payment by the judg- ment debtor under which plaintiffs affect- ed redemption. If the findings in t..is case are to be construed to the effect that, by direct authority of the judgment debtor, a tender in lawful money of the full amount of plaintiffs' judgment was not made to them personally prior to the time when they could use the same for redemp- tion purposes, they are not justified by the evidence. Orr v. Sutton (Minn.) 1916C- 527. TENEMENT HOUSE LAW. See Disorderly Houses, 3-5. TENEMENT HOUSES. See Buildings, 3-5. TEN HOUR DAT. See Labor Laws, 6-9, 18. TENT. Defined, see Buildings, 1. TENURE OF OFFICE. See Public Officers, 36-43. Terms and conditions defined, see New Trial, 37. 820 See Wills. TESTAMENT. TESTAMENTARY CAPACITY. See Wills, 49-96. TESTIMONY. See Evidence. TESTS FOR INSANITY. See Insanity, 1, 2. TERRITORIES. 1. Effect of Territorial Laws After State- hood Prior Contracts. The laws of Ar- kansas, which were extended over the In- dian Territory, are in force in this state as to rights arising under contracts entered into in the Indian Territory prior to state- hood, and said laws of Arkansas need not be pleaded or proved. Marx v. Hefner (Okla.) 1917B-656. THEATERS AND AMUSEMENTS. 1. Statutory Eegulation of Moving Pic- tures. 2. Rights of Purchaser of Ticket. 3. Injuries to Patrons. Authority of manager to hire help, see Agency, 17. Restriction by vendor patentee of film of use by vendee, see Patents, 1, 2. Replevin for moving films, see Replevin, 2. DIGEST. 1916C 1918B. of Ohio," is not an unlawful burden on interstate commerce, even as applied to films which are brought in from another state, but which are in the hands of film exchanges, ready for rental to exhibitors, or have passed into the possession of the latter. Mutual Film Corp. v. Industrial Commission (U. S.) 1916C-296. (Annotated.) 3. The freedom of speech and publica- tion guaranteed by Ohio Const, art. 1, 11, with responsibility only for abuse, is not violated by the provisions of 103 Ohio Laws, 399, for the creation of a board of censors which is to examine and censor, as a condition precedent to exhibition, motion pictures films which are to be publicly ex- hibited and displayed in the state, and is to pass and approve only such films as are, in its judgment, of a moral, educational, or amusing and harmless character. Mutual Film Corp. v. Industrial Commission (U. S.) 1916C-296. 4. Legislative power is not unlawfully delegated by the provisions of 103 Ohio Laws, 399, for the creation of a board of censors which is to examine and censor, as a condition precedent to exhibition, motion picture films which are to be publicly ex- hibited and displayed in the state, and is to pass and approve only such films as are, ic its judgment, of a moral, educational, or amusing and harmless character. Mu- tual Film Corp. v. Industrial Commission (U. S.) 1916C-296. (Annotated.) Note. Moving pictures. 1916C-301. 1. STATUTORY REGULATION OF MOVING PICTURES. 1. Importation of Prize Fight Films Validity of Statute. The contention that Congress exceeded its power under the com- merce clause of the federal constitution by enacting the provisions of the act of July 31, 1912 (37 Stat. at L. 240, c. 263, Fed. St. Ann. 1914 Supp. p. 326), 1, mak- ing it unlawful to bring into or to cause to be brought into the United States from abroad, any film or other pictorial repre- sentation of any prize fight which is de- signed to be used, or may be used, for pur- poses of public exhibition, is" so obviously devoid of merit that a bill which, on the ground of the unconstitutionality of such statute, sought to compel the collector of customs to permit the entry of photo- graphic films of a foreign prize fight, states no cause of action, and is properly dis- missed by a Federal district court. Weber v. Freed (U. S.) 1916-317. 2. Censorship Validity of Statute. The censorship by a state board of censors, con- formably to 103 Ohio Laws, 399, of mo- tion picture films which are "to be pub- licly exhibited and displaced in the state 2. RIGHTS OF PURCHASER OF TICKET. 5. A ticket of admission to a theater or show is not a license revocable at will but entitles the holder to remain throughout the entire performance unless his conduct affords reasonable ground for his ejection. Hurst v. Picture Theaters (Eng.) 1916D- 457. (Annotated.) Note. Rights of purchaser of ticket of admis- sion to place of amusement. 1916D-464. 3. INJURIES TO PATRONS. 6. Entertainment not for Profit Per- sonal Injury Liability of Promoter. Where the court instructs the jury that those defendants who devised means to raise money for a celebration for a Fourth of July, and outlined the program which was advertised in the papers to s v ecure the attendance of a crowd at such celebration, would not be liable for injury to the plain- tiff in the absence of proof to connect them with the race itself on the day of the injury, and that only those so proved to be connected with it on such dav would be liable, held, that such instruction was pre- judicial to the plaintiff. The court should have instructed the jury under the iaets in THEFT TIME. 821 this case that the commercial club and its codefendants, at whose instance and under whose supervision the race was promoted and conducted, were liable to a traveler upon such street, who without fault on his part was struck and injured by one of the horses in the race, if at such time said defendants were the promoters of and had knowledge that the race in question was to be conducted as a part of the program. Marth v. Kingfisher Commercial Club (Okla.) 1917E-235. (Annotated.) 7. Scenic Railway Liability for Per- sonal Injury. The operator of a scenic railway in an amusement park is bound to exercise the highest degree of care and caution for the safety of its passengers, the same as would a common carrier; the, danger of such amusement necessitating excessive care. Best Park etc. Co. v. Rol- lins (Ala.) 1917D-929. (Annotated.) 8. Personal Injury Liability for Defec- tive or Unsafe Device. The general con- cessionary as to amusement devices from a state fair association, who. for a percent- age of the receipts, let privileges to oper- ate particular devices to subconcession- aries, having control of the amusements on. the grounds and the selection of the at- tractions and of their operators, was un- der duty to use reasonable care to see that a device for the carriage of passengers, simulating wave motion, called an "Ocean Wave," was reasonably safe. Hartman v. Tennessee' State Fair Assoc. (Tenn.) 1917D-931. (Annotated.) 9. The immediate operator of an amuse- ment device at a state fair carrying pas- sengers, who leases the privilege to operate from the general concessionary from the fair for a share of the receipts, is charged with the duty to his patrons of maintain- ing the place and device in a safe condi- tion. Hartman v. Tennessee State Fair Assoc. (Tenn.) 1917D-931. (Annotated.) % Note. Liability of organizer or promoter of public entertainment not given for profit for personal injuries. 1917E-238. See Larceny. THEFT. THEN. Meaning, see Indictments and Informa- tions, 15. THEN AND THERE. Meaning, see Indictments and Informa- tions, 15. THEORY OF. TRIAL COURT. Effect on appeal, see Appeal and Error, 159-165. THING IN ACTION. Assignability, see Assignments, 11-18. Defined, see Assignments, 14. THING OF VALUE. Promissory note is, see False Pretenses, 2. THREATS. Threat to sue for trespass, lawful, see Ex- tortion, 2. Threats by deceased, admissiblity, see Homicide, 38. TIDE LANDS. See Public Lands, 2-6. TIDES. Judicial notice of, see Evidence, 18. TIE VOTE, See Elections, 75. TIMBER. Defined, see Trees and Timber, 1. TIME. Time of appeals, see Appeal and Error, 47- 51. Motion to dismiss appeal, see Appeal and Error, 82, 84. When objections must be made for avail- ability on appeal, see Appeal and Error, 420-424. For suing on insurance contract, see Bene- ficial Associations, 3. As essence of contract, see Contracts, 8, 16. Reasonable time for termination implied, see Contracts, 18. Waiver of time stipulation, see Contracts, 50, 93. Time for rescission, see Contracts, 51, 52. Of death presumed from absence, see Death, 1, 2, 4. For holding elections, see Elections, 19, 20. Contracts not to be performed within a year, see Frauds, Statute of, 1, 2. When infant may disaffirm contract, see Infants, 9-11. When relation of guest begins, see Inn- keepers, 1. When interest begins to run, see Interest, 4. For vacation of judgments, see Judgments, 33-35, 41. Of entry of default, see Judgments, 46, 47. Purchaser's right to time for search of title, see Judicial Sales, 3. Reasonable time for notice, see Landlord and Tenant, 46. Of hiring, see Master and Servant, 1, 2. 822 DIGEST. 1916C 1918B. When ordinance becomes effective, see Municipal Corporations, 100. Time for moving for new trial, see New Trial, 26-28, 35. Time for reconsidering order, see New Trial, 41. When objection to pleading must be made, see Pleading, 15. When pleading must be amended, see Pleading, 78. Variance in date of contract, see Pleading, 101. Publication of summons, see Process, 8-11. For suing to rescind, see Rescission, Can- cellation and Reformation, 19. Of taking effect of statutes, see Statutes, 95, 96. Limiting time for filing claims, see Tele- graphs and Telephones, 29. Time for preparation as ground for con- tinuance, see Trial, 3-5. Date as essential to will, see Wills, 29. TITLE. See Quieting Title. Abstract of, see Abstract of Title, 1. Computation Exclusion of Interven- ing Sunday. Mass. Rev. Laws, c. 17", 2, provides that judgments in municipal courts shall be entered at 10 A. M. on the Friday of each week, or on the pre- ceding Thursday if Friday is a holiday. Rev. Laws, c. 173, 97, as amended by St. 1910. e. 534, 1, provides that an ap- peal from a municipal court may be taken within six days after entry of judgment. Judgment was entered in a municipal court on Friday at 10 A. M., and the ap- peal perfected the following Friday at 11:15 A. M. It is held that the appeal was duly perfected, since in computing the six-day period Sunday was to be ex- cluded, under the general rule that, when a statute fixes a limitation of time within which a particular act may or may not be done, if the time limited is less than a week, Sundays are excluded therefrom. Stevenson v. Donnelly (Mass.) 1917E- 932. (Annotated.) 2. In computing the time allowed for filing a motion for new trial, an interven- ing Sunday must be included; and, where such motion is filed on the Wednesday next succeeding the Thursday on which the verdict was returned, it is not within the five days prescribed by subsection 160 of section 4226, N. Mex. Code 1915. At- chison, etc. R. Co. v. Solorzano (N. Mex.) 1917E-950. (Annotated.) 3. Where a contract for the hire of a steam shovel plant provides for a rental of a stipulated sum per day "to run each and every day until the work is complete." intervening Sundays are to be included irf computing the number of days for which rental is to be paid. Perry v. Brandon (Ont.) 1917E-948.- (Annotated.) 4. Meaning of "Days." Where an ap- poal from the municipal court must be taken within six days, the word "days" is used in the sense entire days. Stevenson v. Donnelly (Mass.) 1917E-932. 5. Computation "Prom" as Word of Exclusion. When a period of time is to be reckoned from a certain day, the day from which the time is to be reckoned is excluded from the computation. Frey v. Rhode Island Co. (R. I.) 1918A-920. (Annotated.) 6. "Reasonable Time." Reasonable time may be defined generally to be so much time as is necessary under the circum- stances for a reasonably prudent and dili- gent man to do, conveniently, what the contract or duty requires should be done, having regard for the rights and possibil- ity of loss, if any, to the other party to be affected. Citizens Bank Bldg. v. L. & E. Wertheimer (Ark.) 1917E-520. 7. "To" as Word of Exclusion. R. I. Gen. Laws 1909, c. 275, 3, provides that there shall be a vacation of the superior court from the second Monday in July to the third Monday in September of each year, and section 11 provides that in vaca- tion the superior court shall not hear jury trials. Chapter 32, 12, provides that whenever time is to be reckoned from any day such day shall not be included in the computation. It is held that as the word "to," like the word "from," is generally a word of exclusion, and as chapter 273, 2, requires the superior court to hold sessions at certain points on the third Monday in September, the superior court may hear jury trials on the second Mon- day in July. Frey v. Rhode Island Co. (R. I.) 1918A-920. Note. Exclusion or inclusion of Sunday or holiday in computation of time. 1917E- 934. TIPS. As part of earnings, see Master and Ser- vant, 277. TITLE. Nature of title acquired by condemnation, see Eminent Domain, 18-21. Proof of title to land, see Evidence, 48. As part of ordinance, see Municipal Cor- porations, 53. Of trustee in trust property, see Trusts and Trustees, 22. TO. Meaning, see Time, 7. TOBACCO. Not a food, see Food, 1. TOBACCO PREMIUMS. See Licenses, 21. TORNADO INSURANCE TORTS. 823 TORNADO INSUEANCE. Bee Insurance, 60. TORTS. See Conspiracy; Death by Wrongful Act; False Imprisonment; Libel and Slan- der; Malicious Prosecution; Negli- gence; Trespass. Principal's liability for agent's tort, see Agency, 25, 26. Assignability of cause of action, see As- signments, 11-14. Attorney's lien on cause of action, see Attorneys, 39, 41. Wilful and malicious injury, effect of de- fendant's bankruptcy, see Bankruptcy, 25. Order of superior as defense, see Militia, 11. Liability of cities, see Municipal Corpora- tions, 167-187. Tort counterclaim in tort action, see Set- off and Counterclaim, 1. Liability of state for officers' torts, see States, 8. 1. Incidental Injury to Third Person. Where one is injured by the wrongful act of another, and a third person suffers an indirect loss because of some contract obligation to the injured party, such loss is not actionable; but where one is in- jured by the wrongful act of another, and a third person is indirectly and conse- quently injured in his business relations, the injury to the latter is actionable, though not directly committed on him, if it was maliciously and fraudulently done. Nieberg v. Cohen (Vt.) 1916C-476. 2. Malicious Act Defined. A "mali- cious" act is one injurious to another, in- tentional, and without legal justification, and is unlawful and actionable, but if an act, otherwise lawful, has a reasonable tendency to promote ends advantageous to the doer, malice in the doing does not bring it within the rule. Hutton v. Wat- ters (Tenn.) 1916C-433. (Annotated.) 3. In an action for wrongful injury to plaintiff's business, the question of whether the acts complained of were within the rights of the defendant as being in the due course of competition for his own ad- vantage, or actuated solely by malice and unjustifiable, must be determined upon the facts in each case, and no rule can be laid down for its determination. Hutton v. Watters (Tenn.) 1916C-433. (Annotated.) 4. Lawful Act Committed With Mali- cious Motive. Plaintiff's petition alleged that she operated a boarding house near a school of which the defendant was president; that the defendant, having dis- agreed with one boarder at the plaintiff's house, demanded his ejection therefrom and was refused; that he, with others, then attempted to, and did, destroy the plaintiffs business, by threats against students who boarded with the plaintiff, by deterring new arrivals from going to the plaintiff's house, and by other means; that the plaintiff was of good character, and operated a reputable house; and that the defendants acted from ill-will, and not by reason of business rivalry or competi- tion. Held, that the declaration was not demurrable, the facts showing a cause of action, even though the act itself was law- ful, if the defendant was actuated by ma- lice and destroyed the plaintiff's business without reasonable advantage to himself, since every person has the right to con- duct a lawful business and to have that right enforced or the wrong redressed if the right is infringed upon. Hutton v. Watters (Tenn.) 1916C-433. (Annotated.) 5. Unlawful Act. It is no defense to an action for injuries resulting from a violation of law that the actual breach of the law was committed by a contractor, if the employer knew of and sanctioned the illegal act. Prest-o-lite Co. v. Skeel (Ind.) 1917A-474. 6. Wrongfully Procuring Servant's Dis- .charge. In an action by the employee of a manufacturing company against an in- surance company for damages for wrong- fully procuring plaintiff's discharge by his employer, evidence held not to sustain a finding that plaintiff was discharged be- cause of defendant's suggestion or wrong- ful interference in plaintiff's employment. Johnson v. Aetna Life Ins. Co. (Wis.) 1916E-603. (Annotated.) 7. In an action against an insurance company for wrongfully procuring phain- tiff's discharge by his employer, evidence for plaintiff held to make a prima facie case that defendant procured plaintiff's discharge to prevent him from earning money so as to enable him to maintain an action for damages for personal in- juries. Johnson v. Aetna Life Ins. Co. (Wis.) 1916E-603. (Annotated.) 8. If defendant insurance company pro- cured plaintiff's discharge by his employer in order to prevent plaintiff from earning money, to prosecute his suit for damages for personal injuries, defendant is liable to plaintiff in damages for wrongfully procuring his discharge. Johnson v. Aetna Life Ins. Co. (Wis.) 1916E-603. (Annotated.) 9. If defendant was justified in procur- ing plaintiff's discharge by his employer, the fact that defendant acted from mali- cious motives will not make it liable to plaintiff. Johnson v. Aetna Life Ins. Co. (Wis.) 1916E-603. (Annotated.) 10. Persons Liable Aiding or En- couraging. One present at the commis- sion of a tort encouraging or inciting the same by words, gestures, looks, or signs, or by any means countenancing or ap- proving the act, is in law an "aider and 824 DIGEST. 1916C 1918B. abettor," and liable as principal. Rat- cliffe v. Walker (Va.) 1917E-1022. 11. Joint Tortfeasors Unsatisfied Judg- ment Against One Effect. A judgment in which execution has been returned n-ulla bona against one joint tortfeasor is not a bar to an action against the other tortfeasor. Ketelsen v. Stilz (Ind.) 1918A- 965. Notes. Act lawful in itself not rendered unlaw- ful by malicious motive. 1916C-438. Civil liability for interference with eon- tract relations. 1916E-608. TOTAL DISABILITY. Compensation for Workmen's Compensa- tion Act, see Master and Servant, 281. TOTAL LOSS. Of building, see Fire Insurance, 37. Abandonment on "restraint of princes," see Marine Insurance, 2. TOWNS. See Counties; Municipal Corporations. Appellate jurisdiction of action under rev- enue act, see Appeal and Error, 10. Township organization of county, see Counties, 1-4. Village within, separate entity for elec- tion, when, see Local Option, 3. Permission to string wires, see Nuisances, 4. Recovery by town of money paid by mis- take, see Payment, 11, 12. Liability for pauper's medical aid, see Poor and Poor Laws, 1. Reimbursement for aid of nonresident pauper, see Poor and Poor Laws, 8, 11. 1. Bight to Boad and Bridge Tax. Un- der Mo. Const, art. 10, 22, authorizing a township special levy of road and bridge taxes, and forbidding diversion to any other purpose, the road and bridge taxes levied and collected by a township from citizens living within the corporate limits of a city comprised within the township belong to the township, and not to the citv. Lamar Township v. Lamar (Mo.) 1916D-740. 2. To construe Mo. Rev. St. 1909, 11767, to authorize a township to pay over to a city road and bridge taxes col- lected from citizens living within the cor- porate limits of the city would render it violative of Const, art. 4, 46, prohibiting the General Assembly from making a grant of public money to a municipal cor- poration. Lamar Township v. Lamar (Mo.) 1916D-740. TOWNSHIP. See Towns. TRACTION ENGINE. Use of streets by, see Streets and High- ways, 19. TRADE, BUSINESS OR PROFESSION. Derogatory statements concerning, see Libel and Slander, 28-32. TRADE FIXTURES. See Fixtures. TRADEMARKS AND TRADENAMES. 1. Acquisition. 2. Alienation. . 3. Infringement and Unfair Competition. a. What Constitutes Infringement. b. What Constitutes Unfair Competi- tion. (1) Use of Geographical Name. (2) Use of Personal Name. e. Actions. Brands and labels, see Food, 6, 7. 1. ACQUISITION. 1. Acquisition of Tradeuame Neces- sity of Actual Use. One person cannot exclude another from using a particular name as a tradename, unless he has made actual prior use of such name as his own tradename. Rodseth v. Northwestern Marble Works (Minn.) 1917A-257. 2. ALIENATION. 2. Transfer Apart from Business. One having the exclusive right to use a trade- name can transfer such right to another only when coupled with a transfer of some property or business with which the name has become identified. Rodseth v. North- western Marble Works (Minn.) 1917A- 257. (Annotated.) Note. Assignability of trademarks and trade- names. 1917A-260. 3. INFRINGEMENT AND UNFAIR COMPETITION. a. What Constitutes Infringement. 3. Use by Corporation of Own Name. If the name of a corporation has become established as the tradename of another before its use as such by the corporation, the corporation may be enjoined from using it as a tradename, except in such form as will fairly distinguish it from the name already in use. Rodseth v. North- western Marble Works (Minn.) 1917A- 257. b. What Constitutes Unfair Competition. (1) Use of Geographical Name. 4. Acquisition of Secondary Significance. No one can acquire the exclusive right to TRADENAMES TREATIES. 825 use the name of the place where his busi- ness is located, nor the exclusive right to use words properly descriptive of the na- ture of the business, but where he estab- lishes a tradename containing such geo- graphical name and such descriptive words, if a competitor subsequently desires to use the same name and the same or simi- lar descriptive words in his own trade- name, he must put them in such form, or combine them with other words in such manner, that his tradename will be fairly distinguishable from the tradename first in use. Eodseth v. Northwestern Marble Works (Minn.) 1917A-257. (2) Use of Personal Name. 5. Unfair Competition Use of Personal Name. While a natural person has an un- qualified right to the use of his family name in conducting any business, though such use be detrimental to other indi- viduals of the same name, he cannot com- bine his name with others for the purpose of working a fraud. Wood v. Wood (Ore.) 1918A-226. (Annotated.) 6. Plaintiffs formed the Wood Realty Company, a firm engaged in the real es- tate business. Defendant, who had no as- sociate, started, business uflder the name of the W. E. Wood Realty Company. There was some confusion of mails and business, some persons mistaking defend- ant for plaintiffs. It is held that as the word "icalty," which is used as a collec- tive noun for real estate and when used in a firm title indicates brokers engaged in the purchase and sale of real estate, and as the word "company" indicates an associate or partnership, defendant will be restrained from continuing business under such title; the use of his name con- stituting unfair competition. Wood v. Wood (Ore.) 1918A-226. (Annotated.) Note. Use of personal or corporate tradename as unfair competition. 1918A-229. % c. Actions. 7. Necessity of Fraudulent Intent. In a suit to enjoin the infringement of a tradename, it is not necessary to prove there was a fraudulent intent to deceive. Wood v. Wood (Ore.) 1918A-226. TRADENAMES. See Trademarks and Tradenames. TRADE UNIONS. See Labor Unions. TRADING STAMPS. See Licenses, 20-22. TRADING WITH THE ENEMY ACT. See War, 15. TRANSFER OF CAUSES. Harmless error in denying, see Appeal and Error, 334. TRANSCRIPT. Evidence on former trial, admissibility, see Evidence, 85, 88. TRANSCRIPT ON APPEAL. See Appeal and Error, 53. TRANSFER. Meaning, see Vendor and Purchaser, 14. TRANSFER OF STOCK. See Corporations, 10, 30, 78-84, 123, 125. TRANSIENT MERCHANTS. See Licenses, 3-13. TRANSITORY ACTIONS. See Conflict of Laws, 4; Venue, 1, 2. Jurisdiction, see Courts, 5-7. TRANSPORTATION. Right to lien for delivering materials, see Mechanics' Liens, 12, 13. TRAVELING EXPENSES. See Agency, 6, 7, 16. TREASON. Liability for extraterritorial acts, see War, 8,9. TREATIES. Right of consul to administer, see Execu- tors and Administrators, 3, 4. Exclusion of aliens from hunting rights, see Fish and Game, 4. 1. Construction of Treaty. Treaties con- ferring rights upon the subjects of a foreign nation partake of the nature of municipal law, and will be treated and construed as a statute, if the right can be enforced by the courts, and the treaty prescribes a rule for its determination. Bondi v. MacKay (Vt.) 1916C-130. 2. A treaty provision should receive a reasonable construction with reference to the purpose of the treaty and the inten- tion of the parties. Bondi v. MacKay (Vt.) 1916C-130. 3. The application of a treaty of the United States to any case, and its con- struction, are questions for the court. 826 DIGEST. 1916C 1918B. Hamilton v. Erie E. Co. (N. T.) 1918A- 928. 4. In construing a treaty the general rules for the construction of statutes and written instruments are applicable, and the cognate rules of international law and of the legislation of the government may be considered. Hamilton v. Erie E. Co. (N. Y.) 1918A-928. 5. The general rule that treaties should be liberally construed so as to carry out the apparent intention of the parties to secure equality and reciprocity between them does not justify a state court in ju- dicially legislating as against the right of the state and its taxing power, and in adding words to a treaty so as to make it applicable to the estate of citizens of the- ir nited States in 'the United States, when by its terms it is only applicable to the estates of aliens or to the estates of citi- zens of the United States who reside in a foreign country. Moody v. Hagen (N. Dak.) 1918A-9-33. 6. As Supreme Law. Under Const. U. S. art. 6, declaring a valid treaty the supreme law of the land, where a treaty affects the rights of litigants, it binds those rights and is as much to be regarded by the court as an act of Congress, being paramount to the constitution and statutes of the state, but not to acts of Congress. Hamilton T. Erie E. Co. (N. Y.) 1918A-928. 7. Conflict of State nd Federal Laws. It is the policy of the federal government not to interfere by treaty with the laws of the states in the administration of es- tates of decedents. Estate of Servas (Gal.) 1916D-233. TREES AND TIMBER. 1. In General, 826. 2. Forest Laws, Validity and Construction, 826. 3. Acts and Duties of Forest Officers, 828. 4. National Forest Reserves, 828. 5. Logging, 828. Overhanging trees, cutting to line, see Adjoining Landowners, 7, 8. Condemnation of temporary logging road, see Eminent Domain, 9. Testimony of expert, stumps, see Evidence, 57. 1. IN GENERAL. 1. Timber Definition, The word "tim- ber" h%s a well-defined meaning and in- cludes such trees as are suitable for build- ing and allied purposes but does not in- clude fruit trees. W. T. Smith Lumber Co. v. Jernigan (Ala.) 1916C-654. 2. FOREST LAWS, VALIDITY AND CONSTRUCTION. 2. Under 111. Const. Schedule, 18. pro- viding that all laws of the state, all official writings, and executive, legislative, and judicial proceedings, shall be published in the English language, publication, as re- quired by the 111. Forest Preserve Act of June 27/1913, of an ordinance of a forest preserve district authorizing the issuance of bonds in the sum of $1,000,000, was in- sufficient when had in a newspaper pub- lished in german, since ordinances of a city or municipal corporation are local laws, and, in a sense, "laws of the state," and within the spirit of the constitutional inhibition, while the primary meaning of "publish" is to make known. Perkins v. Board of County Commissioners (111.) 1917A-27. (Annotated.) 3. Under HI. Forest Preserve Act of June 27, 1913, 13, authorizing the issu- ance of bonds by a preserve district, and section 11, providing that all ordinances appropriating money shall be published in the district in some newspaper published therein, etc., an ordinance of a forest pre- serve district authorizing the issuance of bonds in the sum of $1,000,000 is required to be published. Perkins v. Board of County Commissioners (111.) 1917A-27. (Annotated.) 4. Where an ordinance of a forest pre- serve district, organized under the 111. For- est Preserve Act of June 27, 1913, author- izing the issuance of bonds in the sura of $1,000,000, provides that it should be in force from and after its passage, approval, and publication, publication of the ordi- nance is a condition precedent to its be- coming effective. Perkins v. Board of County Commissioners (111.) 1917A-27. (Annotated.) 5. HI. Forest Preserve Act of June 27, 1913, 13, providing that the board of commissioners of any forest preserve dis- trict organized under the act shall have power to raise money by general taxation for any of the purposes of the act, and power to borrow money upon the faith and credit of the district and to issue bonds, authorizes the issuance of bonds by the board of commissioners of a district, ' to create and manage the district, as pro- vided by an ordinance of the board. Per- kins v. Board of County Commissioners (111.) 1917A-27. (Annotated.) 6. The 111. Forest Preserve Act of June 27, 1913, providing for the organization of forest preserve districts, the land taken to become the property of the district, and authorizing the levy of a tax to purchase and maintain the preserve, is not uncon- stitutional as authorizing the levy for a purpose not public, since the acquisition, preservation, and scientific care of forests and forest areas by the state, as well as the sale of timber therefrom for gain in accordance with the canons of forest cul- ture, is a "public purpose." Perkins v. Board of County Commissioners (HI.) 1917A-27. (Annotated.) TREES AND TIMBER. 827 7. The HI. Forest Preserve Act of June 27, 1913, providing for the submission of the question of the organization of forest preserve districts to the legal voters of the territory proposed to be embraced in such district and prescribing the manner of holding and conducting the election, is not unconstitutional as a special act regu- lating the opening and conducting of elec- tions. Perkins v. Board of County Com- missioners (111.) 1917A-27. (Annotated.) 8. The 111. Forest Preserve Act of June 27, 1913, confining forest preserve dis- tricts to the territorial limits of counties in which a natural forest is situated, and prohibiting the organization of such dis- tricts unless they also contain a city, vil- lage, or town, is not uncdnstitutional as a local or special law, since the fact that a I&w may be or seem to be arbitrary and unreasonable in some of its provisions does not render it local or special, if it is a general law operating uniformly upon all persons and localities similarly situated. Perkins v. Board of County Commissioners (111.) 1917A-27. (Annotated.) 9. The 111. Forest Preserve Act of June 27, 1913, entitled "An act to provide for the creation and management of forest preserve districts and repealing certain acts therein named," giving districts cre- ated thereunder power to create forest pre- serves within such districts and purchase land for the purpose, is not violative of Const, art. 4, 13, providing that no act shall embrace more than one subject, ex- pressed in its title, since the provision in the title for the creation and management of forest preserve districts necessarily in- cludes as an incident the power to endow the districts with the powers necessary for the accomplishment of the purpose of their formation, while the "subject" of an act means the matter or thing forming its groundwork, which may include many parts or things, so long as all are germane to it and are such that, if traced back, will lead the mind to the subject as the generic head. Perkins v. Board of County Com- missioners- (111.) 1917A-27. (Annotated.) 10. The 111. Forest Preserve Act of June 27, 1913, entitled "An act to provide for the creation and management of forest preserve districts and repealing certain acts therein named" touching, in sections 5 and 6, the powers of districts organized thereunder and those of the board of com- missioners of any district, is not violative of Const, art. 4, 13, providing that no act hereafter passed shall embrace more than one subject, which shall be expressed in the title. Perkins v. Board of County Commissioners (111.) 1917A-27. (Annotated.) 11. The 111. Forest Preserve Act of June 27, 1913, entitled "An act to provide for the creation and management of forest preserve districts and repealing certain acts therein named," providing, in section 5, for the creation of forest preserves, and that preserve districts may acquire lands to protect and preserve the flora, fauna, and scenic beauties within the district for the education, pleasure, and recreation of the public, is not violative of Const, art. 4, 13, providing that no act shall embrace more than one subject, expressed in the title. Perkins v. Board of County Com- missioners (111.) 1917A-27. . ' 12. The 111. Forest Preserve Act of June 27, 1913, providing for the submission of the question of the organization of a pre- serve district to the legal voters of the proposed district, the proposed district re- ferred to being the one named in the petition or petitions and fixed by the order of court, and the legal voters of the dis- trict those residing within its boundaries as fixed by the order of the court, is not invalid as vague, indefinite, and uncertain in its terms, and incapable of execution in respect to its providing for the submission of the question of the adoption of the act to the legal voters of the district before it is organized. Perkins v. Board of County Commissioners (HI.) 1917A-27. (Annotated.) 13. Forest Preserve Act Validity. The HI. Forest Preserve Act of June 27, 1913 (Kurd's Eev. St. 1913, c. 57a, 1-15), authorizing the organization of a forest preserve district wherever any area of contiguous territory lying wholly within a county contains one or more natural for- ests or parts thereof and one or more cit- ies, towns, or villages, upon petition of legal voters, is not unconstitutional as a local or special law regulating county affairs, since "counties" are involuntary municipal corporations organized to aid in the proper and more efficient adminis- tration of the affairs of state government, the powers and functions of whose officers are prescribed by law, while the conserva- tion of forests lying within their bound- aries has not been included within their powers, duties, or functions, by Hurd's Rev. St. 1913, c. 34, 24-26, prescribing the powers of counties and the powers and duties of county boards. Perkins v. Board of County Commissioners (111.) 1917A-27. (Annotated.) 14. Control of Shade Trees by Forestry Board. Under its police power, the stato may make regulations to promote public safety on the highroad; hence HI. Laws 1914, c. 824. giving the state board of forestry authority to plant roadside trees and to regulate the cutting and trimming of them, is valid. Chesapeake, etc. Tel. Co. v. Goldsborough ' (Md.) 1917A-1. (Annotated.) 15. Nor is snch act invalid as authoriz- ing the taking of private property for a public purpose without compensation; no property rights being divested. Chesa- 828 DIGEST. 1916C 1918B. peake, etc. Tel. Co. v. Goldsborough (Md.) 1917A-1. (Annotated.) 16. Every person holds his property subject to the police power; hence 111. Laws 1914, e. 824, giving the state board of forestry control over roadside trees and prescribing the conditions upon which they may be cut and trimmed, is not in- valid as a deprivation of property without due process of law. Chesapeake, etc. Tel. Co. v. Goldsborough (Md.) 1917A-1. (Annotated.) 17. It will be presumed that the state board of forestry to which the power to fix fees for inspecting roadside trees before licensing cutting and trimming them was delegated, by 111. Laws 1914, c. 824, will be exercised fairly and justly. Chesa- peake, etc. Tel. Co. v. Goldsborough (Md.) 1917A-1. (Annotated.) 18. HI. Laws 1914, c. 824, delegating to the state board of forestry the power to fix the charges for inspection of roadside trees to determine the conditions under which permits for cutting and trimming them shall be issued, is not invalid; there being no constitutional prohibition against the delegation of such a function to a board or commission. Chesapeake, etc. TeL Co. v. Goldsborough (Md.) 1917A-1. (Annotated.) Note. Validity and construction of forestry legislation. 1917A-5. 3. ACTS AND DUTIES OF FOREST OFFICERS. 19. Acts of State Forester Work on Private Lands. Mass. Resolve of 1915, c. 2, authorizing the state forester to pro- vide employment for needy persons in the improvement and protection of for- ests and of any other public work which may, in his opinion, be proper, does not authorize the prosecution of work upon private lands for the benefit of private owners. Burroughs v. Commonwealth (Mass.) 1917A-38. (Annotated.) 20. Under Mass. Acts 1904, c. 409, 2, prescribing the duties of the state forester, and providing that it shall be his duty to promote the perpetuation, extension, and proper management of the forest lands of the commonwealth, both public and pri- vate, that he may, upon suitable request of owners of forest lands, give aid or advice, that he may publish the particu- lars and results of any examination and advice given, and that the recipient of such aid or advice shall be liable for necessary expenses of the state forester, the right to give "aid or advice" confers no authority to go into the business of clearing forest lands for individual own- ers, and the duty to "promote the perpetu- ation and management of forest lands, both public and private." does not include the carrying out of the advice, as the stat- ute contemplates encouragement of busi- ness of forestry in the hands of private owners, not the prosecution of it by the state forester in lands privately owned. Burroughs v. Commonwealth (Mass.) 1917A-38. (Annotated.) 4. NATIONAL FOREST RESERVES. 21. Selection of Lieu Lands. The Land Department possesses no general discre- tionary power to reject entries on vacant public land selected, in entire conformity with the provisions of the act of June 4, 1897 (3G ST:at. at L. 36, c. 2, 7 Fed. St. Ann. 314), and the departmental regula- tions, in lieu of lands relinquished in a forest reservation, or to award the lands to subsequent and subordinate applicants under the homestead, timber and stone, and other land laws, nor can such discre- tionary power be said to arise because of the primary mistake made by the local land officers, who, disregarding their plain duty, rejected the lien entries and allowed the filing of claims which were subsequent in date. Daniels v. Wagner (U. S.) 1917A- 40. (Annotated.) 5. LOGGING. 22. Where logs driven in a navigable stream are washed upon adjoining land without the fault of those in charge, such persons are entitled to enter upon the lands to reclaim their property, and are not liable where they exercise proper care. Boutwell v. Champlain Realty Co. (Vt.) 1918A-726. (Annotated.) 23. Where logs and flood wood are depos- ited upon the property of a riparian owner without fault of the one driving them in a navigable stream, the loss suffered by such owner is damnum absque injuria. Boutwell v. Champlain Realty Co. (Vt.) 1918A-726. (Annotated.) 24. One driving logs in a boatable stream is not required to build embank- ments to protect the land of riparian own- ers. Boutwell v. Champlain Realty Co. (Vt.) 1918A-726. (Annotated.) 25. One driving logs in a navigable stream is bound at all times to exercise ordinary care to prevent injuries to ripar- ian property either by jams or creating other obstructions. Boutwell v. Chamf- lain Realty Co. (Vt.) 1918A-726. (Annotated.) TRESPASS. 1. What Constitutes. 2. Removal of Trespasser. 3. Actions. a. In General. b. Title to Sustain Action. c. Pleading. d. Burden of Proof. e. Instructions. f. Damages. See Animals^ 3; Limitation of Actions, 11 TRESPASS. 829 Overhanging trees, see Adjoining Owners, 7, 8. Ejection of trespasser, see Assault, 3-5, 11. Prevention of trespass, see Injunctions, 4. Duty toward trespassers, see Negligence, 26. Liability for drowning trespassing child, see Negligence, 93. Duty toward trespasser, see Railroads, 82 84. Eeclamation of floated logs washed ashore, See Trees and Timber, 22. 1. WHAT CONSTITUTES. 1. Where a county maintains a public dock for public use and convenience, a child entering on the dock is not a tres- passer, but he has the same right to be on the dock as he has to be on a public road contiguous thereto. Gregg v. King County (Wash.) 1916C-135. (Annotated.) 2. REMOVAL OF TRESPASSER. 2. One unlawfully in a dwelling must be warned to leave before the occupant may use force to eject him, but a person or persons entering such dwelling without right, as with violence, may be repelled or ejected with all necessary force, and without warning. State v. Cessna (Iowa) 1917D-289. (Annotated.) 3. The right to eject an intruder is not limited to one's dwelling house, but applies to any property of which he has lawful possession. State v. Flanagan (W. Va.) 1917D-305. (Annotated.) 3. ACTIONS. a. In General. 4. One may be liable in a civil action for direct violence to the person without there having been malice or intent to in- jure. In re Grout (Vt.) 1917A-210. (Annotated.) b. Title to Sustain Action. 5. Basis of Recovery Possession Evi- dence of Title. Recovery is not allowed upon actual prior possession per se, but on the title which such prior possession evidences, and is a basis of recovery against a trespasser, not because of plain- tiff's previous possession of the land, but because of the presumption of plaintiff's title from his possession, which is suffi- cient proof of title as against a bare tres- passer. Widner v. Lloyd (Ala.) 1917A- 576. c. Pleading. 6. Sufficiency of Declaration Failure to Identify Form of Action. Under Va. Code 1904, 3246, 3272, providing re- spectively that no action shall abate for want of form, where the declaration sets forth sufficient matter of substance for the court to proceed upon the merits and that on a demurrer (unless it be to a plea in abatement) the court shall not regard any defect unless there be omitted some- thing so essential to the action or defense that judgment cannot be given, a declara- tion describing itself as "of a plea of trespass," without stating whether it is trespass on the case or trespass vi et armis, Is not for that reason open to de- murrer. Stonegap Colliery Co. v. Hamil- ton (Va.) 1917E-60. 7. Effect of Default. A party charged with trespass by running into one on a sidewalk does not by default admit that he was guilty of malice. In re Grout (Vt.) 1917A-210. (Annotated.) d. Burden of Proof. 8. In an action of trespass for taking water from land, where defendant had a limited right and it was plaintiffs claim that the right was unfairly exercised to plaintiff's damage, plaintiff has the buiden of proving her damages. Rollins v. Black- den (Me.) 1917A-875. (Annotated.) e. Instructions. 9. Real Property Action Held to In- volve Title. Where a plaintiff seeks to enjoin a defendant from trespassing on land, on the ground that he has title to the premises, and the defendant in his an- swer asserts title to the premises, and both parties offer evidence to substantiate their respective claims, it is error to in- struct the jury that their verdict would not determine the title to the premises. Bunger v. Grimm (Ga.) 1916C-173. f. Damages. 10. Where defendant, who was entitled to take only that water from a well on plaintiffs land which was not needed by plaintiff, prevented plaintiff from taking any water, only nominal damages can be awarded, where plaintiff did not show any actual damage, but merely asserted that she desired the water to irrigate her gar- den. Rollins v. Blackden (Me.) 1917A- 875. (Annotated.) 11. Where plaintiff in an earlier real action established her title to a well from which defendant was taking water, but failed to recover damages for the taking of the water and the maintenance of pipes to the well, although such damages were claimed as rents and profits, plaintiff can- not in a subsequent action for trespass recover damages for the taking of the water before the institution of the real action. Rollins v. Blackden (Me.) 1917A- 875. 12. Recovery for Waste. Under Me. Rev. St. c. 106, 11, 12, providing that when a demandant recovers judgment in a real action he may recover damages for the mesne rents and profits, and for any destination or waste of the buildings, the 830 DIGEST. 1916C- plaintiff cannot recover for a trespass not amounting to destruction or waste. Rol- lins v. Blaekden (Me.) 1917A-S75. TRIAL. 1. Continuance, 830. a. In General, 830. b. Grounds, 830. (1) Want of Time to Prepare for Trial, 830. (2) Absence of Witnesses, 831. (3) Absence of Party, 831. (4) Publication of Articles Pre- judicing Jury, 831. 2. Proceedings Preliminary to Trial, 831. 3. Election Between Defenses, 831. 4. Reception of Evidence, 831. a. Order of Proof, 831. b. Offers of Evidence, 832. c. Admitting Evidence for Limited Purpose, 832. by the transaction. Brown v Johnson (Utah) 1916C-321. 7. What Is Usurious Rate Monthly In- terest. Under the statute permitting any rate of interest not exceeding 12 per cent per annum, a note calling for interest at the rate of 1 per cent per month is not usurious. Brown v. Johnson (Utah) 1916C 321. 8. Forfeiture of Interest When Pen- alty Attaches Attempt to Enforce Con- tract. Under Mich. Comp. Laws 1897, 4857, providing that no contract reserv- ing a usurious interest shall be rendered void, but that in any action on such con- tract the defendant shall not be compelled to pay any interest thereon, and under sec- tion 4858, that where it shall appear that any contract violates the preceding sec- tion, the court shall declare the interest thereon to be void, where a mortgagee by cross bill in suit to redeem a usurious mortgage affirmatively seeks its enforce- ment, he can recover no interest. Leach v. Dolese (Mich.) 1917A-1182. 3. CONSIDERATION OF PARTICULAR CONTRACTS. 9. Effect on Renewal Note. Suit to foreclose a mortgage securing notes for $4,000 bearing interest at twelve per cent, non-usurious on their face. In part these two notes were renewals of two prior notes of $356 and $966 with cash advanced sufficient to aggregate $4.000 for which the two notes were taken with security as one transaction. The $356 note contained a usurious charge of bonus of $45, and drew twelve per cent interest. No deduc- tion for or purging of said usury was made by the parties when the $4.000- in notes were taken, but the usurious amount was included in them. Defendant plead? usury and demands that all the interest on the $4,000 be forfeited and remitted under the usury statute. The trial court deducted the interest on and bonus in the $356 note, but allowed interest on the bal- ance oFthe $4.000. The principal of two notes aggregating $4.000 is tainted with usury through that contained in the $356 note entering into them as a portion of the purported principal of said notes. Person v. Mattson (N. Dak.) 1918A-747. (Annotated.) 10. What Constitutes Provision for Ac- celeration of Maturity. Where a series of USURY. 843 notes given for a loan do not reserve a usurious rate of interest if paid when due, but contain stipulations to the effect that default in payment shall accelerate ma- turity of the entire debt, which will ren- der the interest, for the time the borrower had the use of the money under the ac- celeration clause, usurious, such notes are not void for usury; the excessive rate of interest after maturity of the debt being in the nature of liquidated damages, to be enforced only to the extent not uncon- scionable. Cissna Loan Co. v. Gawley (Wash.) 1917D-722. (Annotated.) 11. Provision for Payment Before Ma- turity. Instalment notes carrying a legal rate of interest, but which would carry a usurious rate of interest if paid before maturity at borrower's option, are not void for usury, since the borrower is not obli- gated to pay before maturity. Cissna Loan Co. v. Gawley (Wash.) 1917D-722. Notes. Provision for acceleration of maturity of debt on default in payment of interest or instalment of principal as usurious. 1917D-725. ' Eenewal contract as affected by usury in original contract. 1918A-753. 4. EFFECT ON RENEWAL OF CON- TRACT. 12. Effect of Usury on Renewal Note. With usury proved in a note sued upon, a court cannot and should not separate the nonusurious from the usurious transac- tions incorporated by renewal into an usurious note, so as to allow interest on the nonusurious portion. Person v. Mattson (N. Dak.) 1918A-747. 13. Where an innocent party, without knowledge that an obligation contains usury, purchases it for valuable consider- ation, and the obligor discharges it by executing a new note payable to the holder, a new debt is thereby created and the consideration for the new note is valid, although the usury from the old debt was carried over into it without the payee's knowledge, so that the obligor cannot have any action or defense on the ground of usury. Taulbee v. Hargis (Ky.) 1918A-762. (Annotated.) 14. Where the assignee of a usurious obligation takes it knowing that it em- braces usury, and thereafter the obligor discharges it by executing a new note to the assignee for the old note, the obligor is not estopped nor precluded from com- plaining of the usury as against the payee in the new note, when it is attempted to be collected. Taulbee v. Hargis (Ky.) 1918A-762. (Annotated.) 15. Ky. St. 2219, subsec. 2, provides that the excess of interest over the legal rate paid for the loan of money may be recovered from the lender, although paid to his assignee. A petition, in an action to recover an amount alleged to have been paid as usury, alleged the amounts of the money borrowed, which was the consider- ation of the original notes: that interest was calculated upon such amounts at ten per cent and included in the notes, and that on eacn renewal the interest at that rate was ascertained upon the amount of the old note and included in the new note; that a note to defendant, including such interest, was assigned by him to a bank, and was thereafter renewed at his request, including ten per cent interest, and was again renewed, and that upon payment of such note plaintiff was compelled to pay usurious interest to secure the release of his property from a mortgage executed to secure tiie note. It is held, on demurrer to the t>etition, that it stated a good cause of action against the lender. Taulbee v. Hargis (Ky.) 1918A-762. (Annotated.) 16. Although the obligation given in re- newal of a debt containing usury is signed by obligors other than thse originally bound, all usury mav be purged from the transaction so long as the original obligor remains bound. Taulbee v. Hargis (Ky.) 1918A-762. (Annotated.) 17. Where usury was included in origi- nal notes secured by a mortgage on the debtor's realty, and in the renewals there- of, and the lender sold and indorsed the renewal note to a bank, and another bank, of which the original lender had become president, purchased it, and the original debtor executed to it a note for the un- paid part of the note it had purchased, with usurious interest thereon included in the note, the debtor is entitled to judg- ment against the bank for that sum. Taulbee v. Hargis (Ky.) 1918A-762. (Annotated.) 18. Where a party in good faith, for value, and without knowledge, purchases a usurious obligation, and the debtor ob- tains an extension of time in which to pay it, and induces the holder to accept a new note and thereby obtains his old note, and the assignor thereof is released from lia- bility, the debtor, on payment of the new note, cannot recover the usury brought forward from the old note into it, but must look to the lender. Taulbee v. Har- gis (Ky.) 1918A-762. (Annotated.) 5. REMEDIES. a. Availability as Defense. 19. Effect of Usury Mandatory Stat- ute. Tne usury statute, section 6070, N. Dak. Coinp. Laws 1913, providing that the taking of usury "shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt car- ries with it or which has been agreed to be paid thereon," mandatorily requires the penalizing of usury and the forfeiture of 844 all the interest "agreed to be T>aid" on these two notes. Person v. Mattson (N. Dak.) 1918A-747. 20. Estoppel to Allege Inducing Trans- fer to Bona Fide Purchaser. Where an innocent purchaser for value and without notice of the usury in a note has been in- duced to purchase it by the obligor, the obligor is estopped to set up a claim of usury as against the assignee, either be- fore or after he executes a new note to the assignee. Taulbee v. Hargis (Ky.) 1918A-762. b. Recovery of Payment. 21. Eights Against Original Creditor After Assignment. Ky. St. 2219, au- thorizing the recovery of usurious interest from the lender, where it has been paid to the assignee, contemplates the existence of transactions in which it is not recover- able against the assignee. Taulbee v. Hargia (Ky.) 1918A-762. 22. Recovers of Usurious Payments Rights Against Original Creditor After Assignment. Where the obligor in a note tainted with usury executes a new note to an innocent purchaser for value and with- out notice and thereby discharges the old debt, he can reclaim the usury in it from the lender by an action for its recovery. Taulbee v. Hargis (Ky.) 1918A-762. c. Equitable Relief. 23. Relief in Equity from Penalty for Usury. A court of equity should not re- lieve the usurer from the results of his contract for usury, but should enforce the Statutory penalty for exacting usury. Person v. Mattson (N. Dak.) 1918A-747. d. Recovery of Penalty. 24. National Banks Rate of Interest Penalty for Taking Usurious Interest. Under sections 5197 and 5198, Revised Statutes of the United States (5 Fed. St. Ann. 130, 133), a national bank may charge and receive on a loan the same rate of interest allowed to be charged by the laws of the state in which such na- tional bank is located, and, when such na- tional bank shall knowingly charge and receive a greater rate than that prescribed by the laws of the state in which such bank is located, the person by whom it has been paid, or his legal representative, may recover back, in an action in tne nature of an action of debt, twice the amount of interest thus paid, provided such action is commenced within two years from the date of the usurious transaction. Farm- ers' National Bank v. McCoy (Okla.) 1916D-243. DIGEST. 1916C 1918B. 25. Sufficiency of Petition. In an action to recover the amount of interest paid in an usurious transaction, where the peti- tion states facts showing the date of the note, by whom it was executed, and to whom it was made payable, and shows the amount of interest charged, and that such interest was paid and when paid, by whom it was paid, and to whom it was paid, and shows the amount of interest thus paid to have been in excess of the rate allowed by law to be charged and received, and at- taches copy of the note to the petition and makes it a part thereof, and further alleges that the defendant bank "did cor- ruptly, knowingly, wrongfully, and ille- gally charge, take, and receive from plain- tiff the amount of interest so usuriously charged," it states facts sufficient to con- stitute a cause of action. Farmers' Na- tional Bank v. McCoy (Okla.) 1916D-1243. UTTERING FORGED See Forgery. INSTRUMENTS. VACANCY CLAUSE. See Fire Insurance, 9-11. VACATION. Of judgments, see Judgments, 30-42. VALUATION. For taxation, see Taxation, 48-66. Under Foreign Corporation Tax Act, see Taxation, 164-169. VALUE. Meaning, see Bills and Notes, 50. How proved, see Evidence, 29-34. Opinion evidence as to value, see Evidence, 71, 72. Representations as to value, see Fraud, 5. Assets of firm how appraised, see Part- nership, 37, 38. VALUED POLICIES. See Fire Insurance, 5, 37. VARIANCE. See Indictments and Informations, 25; Lar- ceny, 6-8; Libel and Slander, 110, 111; Negligence, 70, 71; Pleadings, 88-102; Referees, 3. VEHICLES. Leaving on track, see Negligence, 54. Negligence of driver imputed to occupant, aee Negligence, 55. VENDOR AND PURCHASER. 845 VENDOR AND PURCHASER. 1. Bequisites and Validity of Contract, 845. a. Offer and Acceptance, 845. b. Options, 845. c. Description, 845. 2. Construction of Contract, 845. 3. Mutual Eights and Liabilities of Par- ties, 845. a. Estoppel of Purchaser to Deny Ven- dor's Title, 845. b. Rescission of Contract, 846. c. Purchase Price, 846. d. Damages for Breach by Vendor, 846. e. Vendor's Lien, 846. f. Bight to Becover for Improvements, 847. 4. Bights of Bona Fide Purchaser, 847. 5. Building Restrictions. 847. a. Nature and Validity, 847. b. Against Whom Enforceable, 847. See Conversion and Reconversion; Sales. Compensation of sale's agent, see Agency, 8. Sale of pond, fish unsold, see Fish and Game, 2. Fixtures which pass to vendee, see Fix- tures, 1-5. Effect of judgment on grantor of party, see Judgments, 68, 69. Bight of tenant to crops as against vendee of land, see Landlord and Tenant, 53. Loan of purchase money, see Liens, 9. Priority of purchase-money mortgage, see Mortgages and Deeds of Trust, 14, 15. Bights of vendee by subrogation, see Mort- gages and Deeds of Trust, 33, 36. Injunction to prevent dispossession of vendee, see Parties to Actions, 10. Tax lien on easements as encumbrances, see Taxation, 89. Tax sales, see Taxation, 111-115. 1. EEQUISITES AND VALIDITY OF CONTBACT. a. Offer and Acceptance. 1. Withdrawal of Offer. An offer . to convey realty until accepted is subject to withdrawal without prejudice to the party making it, and where the alleged purchaser knows nothing of the offer there is no prejudice in its withdrawal, and the ven- dor is not under obligation to renew the offer. Brown v. Farmers', etc. National Bank (Ore.) 1917B-1041. b. Options. 2. Definition. An "option" is a unilat- eral agreement binding upon the optioner from the date of its execution, but'it does not become a contract inter partes, in the .sense of an absolute contract to convey - and purchase until exercised by the op- tionee. Barton v. Thaw (Pa.) 1916D-570. 3. Acceptance. An option to purchase real estate is made a contract mutual and binding on the parties by a tender of the money agreed on within the time limited. Agar v. Streeter (Mich.) 1916E-518. 4. Mutuality of Contract Conditional Option to Rescind. A contract for the pur- chase of land, providing that, unless a road running through the land should be closed within a week, the purchaser should be "in no way obliged," is not lacking in the mutuality essential to the right to enforce specific performance, though it gives the purchaser the option to rescind if the road was not closed, or to waive the condition, at least not from the tims waiver was an- nounced by the purchaser, since from that time the remedy was mutual. Catholic Foreign Mission Soc. v. Oussani (N. Y.) 1917A-479. c. Description. 5. Description of Property. A contract whereby defendant sold to plaintiff 1,760 acres of land, known as the "Williams ranch, in Washington county, Colorado," known as state school land, and whereby plaintiff sold an eighty-acre tract located one and one-half miles west of Ft. Morgan, a tract located half a mile south of Ft. Morgan, and several lots in Ft. Morgan, is not void upon its face because of the de- fective description of the property. Dren- nen v. Williams (Colo.) 1917A-664. 2. CONSTBUCTION OF CONTBACT. 6. Default in the payment of any instal- ment of the price called for in a contract of sale of real estate is a distinct breach, and gives the vendor a right to declare a forfeiture, as stipulated for in the con- tract; but the right must be promptly exercised, or the vendor will be presumed to treat the contract as valid. Suburban Homes Co. v. North (Mont.) 1917C-81. 7. Waiver of Forfeiture. Where a con- tract for the purchase of realty entitles the purchaser to waive a condition of the contract with which the vendor failed to comply, it is not essential to the effective- ness of such waiver, when made by the purchaser, that it be approved by the vendor. Catholic Foreign Mission Soc. T. Oussani (N. Y.) 1917A-479. 3. MUTUAL BIGHTS AND LIABIL- ITIES OF PABTIES. a. Estoppel of Purchaser to Deny Ven- dor's Title. 8. Where an owner of land filed a map describing a strip thereof as a street, and sold lots abutting on such street, and the successor in title of a purchaser of such lots who was in possession thereof only through tenants permitted the successor in title of the original owner to erect valu- able improvements on the strip of land described in the recorded map as a street, the successor in title of the buyer is not estopped to claim a right of way over the strip, she having no notice of the erection of the improvements, save through her ten- 846 DIGEST. 1916C 1918B. ants, being a resident of a foreign state, since there is no principle of law charging a landlord with the knowledge of his ten- ants in such case, while, had knowledge of the erection of the buildings been imput- able to her, she could not have forfeited her rights by failing to protest against the erection of the improvements, since her own rights depended on matters of record, equally open both to her and the party pleading an estoppel, which cannot exist where the knowledge of both parties is equal, and nothing is done by one to mis- lead the other. Eltinge v. Santos (Cal.) 1917A-1U3. b. Rescission of Contract. 9. A vendor who grants time to the pur- chaser to pay instalments of the price, though the contract makes time of the essence and stipulates for a forfeiture for non-payment of any instalment at matur- ity, may, on the default continuing, de- mand payment of the balance of the price, and give notice of his purpose to terminate the contract in the event of further de- fault; and where the purchaser after such notice does not pay within a reasonable time, the vendor may terminate the con- tract. Suburban Homes Co. v. North (Mont.) 1917C-81. 10. Right to Rescind Time as Essence of Contract Waiver of Delay. A stipu- lation in a contract of sale of real estate making time of the essence, and reserving an option to the vendor to terminate the contract for the failure of the purchaser to pay any required instalments of the price, may be waived by the vendor. Su- burban Homes Co. v. North (Mont.) 1917C- 81. 11. Necessity of Returning Considera- tion. Purchasers of mining property, the title to a part of which failed or proved defective, who took possession, cannot, while retaining the whole property, resist payment of the purchase price. Carter v. Butler (Mo.) 1917A-483. 12. Tender of Consideration Partial Rescission. A grantor conveying two par- cels of real estate may recover one of the parcels without tendering the considera- tion paid him for the other parcel. An- heier v. De Long (Ky.) 1917A-1239. 13. Slight Deficiency in Quantity. In an action to recover payments under a con- tract for the purchase of a house and lot which the purchaser had attempted to re- scind, where it appeared that the contract covered the land up to a line a short dis- tance west of two large shade trees, but that the vendor had conveyed land west of that in question and made the center of the trees the boundary line, and, while the width and length of the strip involved did not appear, it appeared that it had some value, it is a question for the jury whether the shortage is too inconsequen- tial to justify a rescission. Brown T. Aitken (Vt.) 1916D-1152. (Annotated.) c. Purchase Price. 14. Action for Price Proof of Delivery of Possession, In an action on a note, which the answer admitted was given in consideration of the transfer to defend- ants of certain mining property, with a warranty of title, the burden is on de- fendants to show that possession of the property had not been delivered, or that they had been deprived of a part thereof on account of a failure or defect of title, since the note imports a consideration throwing the burden upon defendants to prove affirmatively that it was lacking or had failed, while the word "transfer" im- plies a deliverv of possession. Carter v. Butler (Mo.) 1917A-483. d. Damages for Breach by Vendor. 15. Vendor and Purchaser Breach of Contract Inability to Make Title Meas- ure of Damages. A vendor who, without fault on his part, is unable to make title is not liable in damages to the vendee for the loss of his bargain though the contract to sell is part of a lease to the vendee which binds him to make extensive im- provements. Ontario Asphalt Block Co. v. Montreuil (Can.) 1917B-S52. (Annotated.) Note, Measure of damages for breach of con- tract to sell land due to vendor's inability to make title. 1917B-&58. . Vendor's Lien. 16. Conveyance in Consideration of Future Support. A recital that grantees "agree to care for and support" grantors "with money and other necessaries for their support their natural life," though such agreement was the sole consideration for the grant, will not alone create a Hen or charge on the land conveyed. To oper- ate as such, an intent to impose such burden must definitely appear, or be di- rectly inferable from the grant when prop- erly construed. Grant v. Swank (W. Va.) 1917C-2-86. (Annotated.) 17. Implied Vendor's Lien Priority as Against Judgment. In this state the vendor's implied lien is a mere capacity in the vendor to acquire a lien by filing a bill to fix and enforce bis claim" on the land, and, until he does this, any creditor of the grantee may attach or cause exe- cution to be levied on the land and prevail upon the lien thereof over the vendor. Hood v. Hogue (Tenn.) 1916D-383. (Annotated.) 18. Where a deed retains no lien for the purchase price, the vendor, upon a subse- VENDOR AND PURCHASER. 847 quent reconveyance to him in satisfaction of the unpaid balance of the purchase price, does not stand in the same position as though he had brought a suit for the enforcement of his implied lien, and, until his deed is registered, a creditor, by levy- ing upon the land under an execution on a judgment against the vendee, can acquire rights superior to the vendor. Hood v. Rogue (Tenn.) 1916D-383. (Annotated.) 19. Nature and Origin. In English and American law a vendor's lien is excep- tional in character, and is an importation from the civil law, which found its recog- nition through courts of chancery, on the equitable principle that the person who had secured the estate of another ought not in conscience to be allowed to keep it and not pay full consideration money, and that to enforce that payment it was just that the vendor should have a lien upon the property. Martin v. Becker (Cal.) 1916D-171. Notes. Priority as between implied vendor's lien and judgment against purchaser. 1916D-384. Existence of implied vendor's lien where consideration for conveyance is agreement to suppo-rt vendor for life. 1917C-S88. f. Eight to Recover for Improvements. 20. In the absence of a provision in a contract of sale fixing a different measure of compensation for improvements by the purchaser, the amount recoverable for im- provements is the enhanced value of the property, not exceeding the cost of the improvements, less the fair rental value of the premises recovered by the vendor forfeiting the contract for the purchaser's failure to pay required instalments; and in the absence of any evidence of the value of improvements, or of any enhanced value of the property, the court cannot award any relief, to the purchaser for improve- ments. Suburban Homes Co. v. North (Mont.) 1917C-81. (Annotated.) Note. Right of defaulting purchaser under contract for sale of land to reimbursement for improvements. 1917C-85. 4. RIGHTS OP BONA FIDE PUR- CHASER. 21. Consideration Pre-existing Debt. The surrender and satisfaction of an ex- isting debt, if done bona fide, operates aa a present consideration; and, if one who obtained a title by fraud conveys it to a third person in extinguishment and dis- charge of a pre-existing debt, the latter will stand aa a "purchaser for value." The questions of bona fides and notice are open to consideration as in other cases of pur- chase from one alleged to have procured title by fraud. (a) This does not conflict with the pre- vious rulings of this court, that, if the title to property has been procured from a person by fraud, the right of the seller to rescind the sale is superior to the right of a mortgagee who receives from the per- son committing the fraud a mortgage aa security for an antecedent debt, without more. Button v. Ford (Ga.) 1918A-106. (Annotated.) Note. Person taking conveyance of realty in payment of pre-existing debt as purchaser for value. 1918A-112. 5. BUILDING RESTRICTIONS, a. Nature and Validity. 22. Validity. Restrictive building cove- nants are not invalid as against public pol- icy. Flynn v. New York, etc R Co (N. Y.) 19183-^588. 23. Effect of Restriction Subsequent Purchaser. Restrictive building covenants are valid and enforceable in law and in equity, and all the lots covered thereby are subject to an incumbrance, requiring oc- cupation in accordance therewith, binding vpon every subsequent purchaser having notice of the plan, even though his legal title is unrestricted. Flynn v. New York etc. R. Co. (N. Y.) 1918B-588. b. Against Whom Enforceable. 24. Enforcement Against Subpurchaser. A restrictive covenant which does not run with the land will not be enforced in equity against a purchaser from the cove- nantor, though he bought with notice of the covenant, if the covenantee owns no l&nd adjoining that to which the covenant relates. London County Council v. Allen (Eng.) 1916C-932. (Annotated.) 25. The owner of a tract of land laid it out on a map in lots fronting on streets, and, as an inducement to purchasers, sold them by deeds, covenanting that no build- ing or structure for any business purpose whatsoever should be erected on the prem- ises. Defendant railroad purchased lots running across the entire southern part of the tract subject to such restrictions oppo- site the lots of one of the plaintiffs and adjacent to the premises of the other, and built its railway across such lands partly on an embankment and partly in an open cut, and operated on its track many fast electric trains daily. It is held, in an action to restrain the maintenance of such structure and the operation of the road, that defendant had violated the covenant, and that plaintiffs were entitled to dam- ages, a "building or structure" being in the widest sense anything constructed that is erected by art and fixed upon or in the soil composed of different pieces connected together and designed for permanent use in the position in which it is so fixed, and 848 DIGEST. 1916C 1918B. to "erect," meaning not only to raise, but also to build or construct. Flynn v. New York, etc. R. Co. (N. Y.) 1918B-588. (Annotated.) 26. In such case, the plaintiffs' right is measured by the depreciation in the value of their land, including such depreciation as will be sustained by reason of the use to which the defendant puts its property; the difference in value between their land with and without the railroad. Flynn v. New York, etc. E. Co. (N. Y.) 1918B-388. (Annotated.) Note. Enforcement in equity against subpur- chaser of restrictive covenant not running with land, where covenantee has no inter- est in adjoining land. 1916C-942. VENDOR'S IJEN. See Sales, 49; Vendor and Purchaser, 16- 19. VENUE. 1. Transitory Actions. 2. Change of Venue. a. Grounds. b. Procedure. (1) Jurisdiction. (2) Affidavits. (3) Determination of Motion. (4) Appeal. (5) Withdrawal of Application. Comment on change, eee Argument and Conduct of Counsel, 28. Stockholder's suit, see Corporations, 138. Change in divorce suit, see Divorce, 7. Of bill of review, see Equity, 37. Action in wrong county as ground for va- cating judgment, see Judgments, 39. Of motion to vacate judgment, see Judg- ments, 40. Sufficient on margin of complaint, Bee Pleading, 4%. 1. TRANSITORY ACTIONS. 1. Transitory Causes of Action. Tran- sitory causes of action are enforceable wherever a defendant may be found. Bag- don v. Philadelphia, etc. Coal, etc. Co. (N. Y.) 1918A-3S9. 2. Residence of Plaintiff Distinction Between Residence and Place of Business. Mass. Rev. Laws, c. 167, 6, as amended by St. 1904, c. 320, provides that an ac- tion to recover for injury received by rea- son of negligence shall be brought in the county in which the plaintiff lives or has his usual place of business, or in the county in which the injury was received. Such an injury was received by plaintiff's intes- tate in Essex county, the plaintiff lived in Norfolk county, and was employed as assistant manager of a department store in Suffolk county, and the action was brought in Suffolk county. It is held that the venue was improperly laid, it being a rule- in the interpretation of statutes that where reasonably possible full effect should be given all the words used, while "usual place of business" as used in St. 1854, c. 322, first permitting transitory actions to be brought in the county where either party had such place of business, had a more restricted signification than the words "in which he principally transacts his busi ness or follows his trade or calling," used in St. 1856, c. 70, providing that where the plaintiff in a transitory action was a non-resident, the action might be brought in the county, in which the defendant lived or principally transacted his business or followed his trade or calling if he resided in the commonwealth, the language of Rev. Laws, c. 167, 6, as amended, being taken from the earlier act, or that a "usual place of business" does not include where one pursues a "trade or calling," the work of the plaintiff, as a department store man- ager, being a "trade or calling" or employ- ment by another, as distinguished from working for oneself. Hanley v. Eastern Steamship Corporation (Mass.) 1917D- 1034. 2. CHANGE OF VENUE. a. Grounds. 3. In order to justify a change of venue on account of the excitement of public prejudice, it must be shown that such ex- citement or public prejudice is such that its natural tendency will be to intimidate or swerve the jury, and as the court in which the case is pending can much better determine the propriety of a postponement on this ground than the appellate court it requires a very strong showing to induce the upper court to interfere. State v. Gordon (N. Dak.) 1918A-442. 4. Newspaper Publication. Proof that prejudice exists, or that a derogatory arti- cle has been published in one of the cities of a county, is not proof that a fair trial cannot be had in the county at large, or that such county as a whole is prejudiced, and is not therefore sufficient to entitle one to a change of venue. State v. Gordon QN. Dak.) 1918A-442. Note. Application for change of judge or venue on ground of bias of judge as oust- ing judge of jurisdiction. 1916D-1281. b. Procedure. (1) Jurisdiction. 5. Bias of Justice of Peace Application for Change as Ousting Justices of Juris- diction. Under Utah Comp. Laws 1907, 5132, relative to criminal cases before justices, providing that, where a defendant files an affidavit that he cannot have a fair trial before the justice, because of his bias or prejudice, the case must be transferred VERDICTS. 849 to another justice, the filing of a suffi- cient affidavit does not deprive the justice of jurisdiction, but his refusal of the change and proceeding with the trial is only error; so that, on appeal, the district court has jurisdiction, and, under sections 5165, 5167, should try the case de novo. State v. Morgan (Utah) 1916D-1278. (Annotated.) (2) Affidavits. 6. Affidavits Effect of Failure to Con- tradict. In . the absence of counter affi- davits, the contents of the affidavits filed in support of a motion for a change of venue must be taken by the court on ap- peal as admitted. Kugenstein v. Otten- heimer (Ore.) 1917E-953. (3) Determination of Motion. 7. Habeas Corpus Discretion of Court. Iowa Code 1897, 3494, regulating the place of bringing actions, provides that actions against a public officer for an act done in virtue of his office must be brought in the county where the cause or some 1 part thereof arose. Section 3504 provides that, if an action is brought in the wrong county, it may be prosecuted to termina- tion, unless the defendant, before answer, demands change of venue to the proper county. Section 4420 provides that appli- cation for habeas corpus must be made to the court or judge most convenient in point of distance to the applicant, and the most remote court or judge, if applied to, may refuse the writ, unless a sufficient reason be stated for not making the appli- cation to the more convenient judge. A patient confined in a state hospital for female inebriates applied for habeas cor- pus to the judge of a district court for a remote county, alleging that upon hearing in such county she could produce her wit- nesses most conveniently. The superin- tendent of the hospital to whom the writ issued applied for change of venue to the county in which the hospital was situated, alleging that the entire detention by him had been in such county. It is held that denial of such change of venue was proper, since the judge to whom application was made, though having the right to refuse the writ, was not under obligation to do so; there being invested in him by sec- tion 4420 a judicial discretion, in the exer- cise of which an error of judgment on his part as to the existence of conditions mili- tating against the propriety of hearing the writ would not deprive him of his right to do so. Addis v. Applegate (Iowa) 1917E-332. (4) Appeal. 8. Denial of Change Prejudice of Judge Effect of Impartial Trial of Case. Where before the trial of a cause the judge makes statements amounting to a prejndg- merit of the case in favor of the plaintiff, the defendant is entitled to a change of venue, and for the error in refusing to grant the change, the judgment will be reversed on appeal, though the record fails to disclose any prejudice in the trial. Kugenstein v. Otte'nheimer (Ore.) 1917E- 953. (Annotated.) (5) Withdrawal of Application. 9. Withdrawal of Application After Granting Thereof Transfer of Papers. Where in a criminal case an application for a change of venue was made under the Ga, Act of 1911 (Acts 1911, p. 74), on the ground that there was a probability or danger of violence to the defendant, and a judgment refusing such change was brought to the court and reversed, and the change accordingly granted, the ac- cused could not then withdraw his appli- cation, object to being tried in the county to which the change had been made, and demand a trial in the county where the indictment had been found. (a) Where a person accused of crime applied for a change of venue under the act above mentioned, which was denied, and he excepted and obtained a reversal of the judgment; and where, on the return of the remittitur, the judgment of the su- preme court was made the judgment of the superior court, and a county was named in the order as the place for the trial, and the clerk of the superior court of the county where the case was then pending was directed, in terms of the stat- ute, to transmit the papers to the county so selected, this was in substance a judg- ment changing the venue, although it was not expressly so stated. (b) Where in a criminal case a change of venue is granted, a certified copy of the order for that purpose is required to be transmitted to the clerk of the superior court of the county to which the change is made; but the original indictment and other papers in the case are required to be sent to that county. Graham v. State (Ga.) 1917A-595. VEEDICTS. 1. Severance in Verdict. 850. 2. Validity of Verdict, 850. a. In General, 850. b. Formal Validity, 850. 3. Judgment on Verdict, 850. 4. Correction of General Verdict, 851. 5. Impeachment of Verdict, 851. 6. Directing Verdict, 851. a. In General, 851. b. Power of Court, 851. c. Direction of Conviction, 852. d. Form of Motion, 852. e. Presumption Against Motion, 852. f. Effect of Motion by Both Parties, 852. g. Questions Raised, 852. h. Order of Court, 852. See Damages, 2H-55; Homicide, 73; Negli- gence, 122, 123. 850 DIGEST. 1916C 1918B. Collusiveness on appeal, see Appeal and Error, 106, 115-135. In eriminal cases, see Appeal and Error, 133-135. Direction of verdict, review, see Appeal and Error, 155. Presumptions on appeal, see Appeal and Error, 199, 200. Reading newspapers as ground for re- versal, see Appeal and Error, 208. Erroneous exclusion of evidence cured by verdict, see Appeal and Error, 273. Necessity of exception, see Appeal and Error, 386. Directed verdict on note, see Bills and Notes, 95. Judgment non obetante, see Judgments, 18-20. As res adjudicata, see Judgments, 67. In proceedings under Employers' Liability Act, see Master and Servant, 95-97. Of coroner's jury, admissibility in pro- ceedings under Workmen's Compensa- tion Act, see Master and Servant, 239. In proceedings under Workmen's Compen- sation Acts, see Master and Servant, 362, 363. Ko direction of verdict for nonjoinder of party, see Parties to Actions, 11. 1. SEVERANCE IN VERDICT. 1. Special Verdict Rule in Federal Courts. A federal court may refuse to re- quire a jury, in addition to a general ver- dict, to answer special questions at the request of a party. Parsons v. Trow- bridge- (Fed.) 1917C-750. 2. VALIDITY OF VERDICT, a. In General. 2. Quotient Verdict. A verdict, in an action for conversion of a horse, is not invalid as a quotient verdict, if the result obtained is merely used as a basis for fur- ther discussion as to what was the reason- able value of the horse, though a verdict is rendered for that amount. Sales v. Maupin (S. Dak.) 1917C-1222. (Annotated.) 3. Where a jury determine the value of a horse by dividing the whole amount each juror believes is the value by 12, the finding of the court on conflicting affi- davits of jurors that the result obtained was merely used as a basis for further dis- cussion, and hence not a quotient verdict, will not be disturbed on appeal. Sales v. Maupin (S. Dak.) 1917C-1222. (Annotated.) 4. A "quotient verdict," reached by the jurors adding their several amounts of re- covery and dividing the sum by their num- ber, is illegal. Spain v. Oregon- Washing- ton R. etc. Co. (Ore.) 1917E-1104. 5. Verdict by Less Than Whole Number Construction of Statute Actions In- cluded. Under Ariz. Civ. Code 1901, par. 1413, providing that in civil cases, except those cognizable at common law, 9 of the 12 jurors may return a verdict, in an action by the state for the penalty under Laws 1912, c. 50, forbidding any electric light or power concern to work the employees in its plant more than 8 hours in each 24, a verdict by 9 jurors is bad, the suit being one cognizable at common law. Miami Copper Co. v. State (Ariz.) 1916E-494. (Annotated.) 6. Although action is begun, and issue joined, before the adoption of a law au- thorizing nine jurors in a civil case to ren- der a verdict, such verdict is valid, since there is no vested right in the modes of procedure. Miami Copper Co. v. State (Ariz.) 1916E-494. (Annotated.) 7. Verdict Sustained. There is nothing in this case to indicate that the verdict was given under mistake, or the influence of passion or prejudice, nor that the ver- dict and judgment are contrary to the evi- dence. Stewart v. Murphy (Kan.) 1917C- 612. Notes. Validity and construction of constitu- tional or statutory provision for verdict by less than whole number of jurors. 1916E-500. Validity of chance or quotient verdict. 1917C-1224. b. Formal Validity. 8. Sufficiency Conviction of Embezzle- ment. A verdict of "guilty of embezzle- ment as charged in the information" is sufficient in a prosecution for having com- mitted the crime of embezzlement con- demned by section 9205, N. Dak. Rev. Codes 1905, in the different manners de- scribed in said section. Such a verdict ia a general verdict and has the same effect as the verdict of "guilty" provided for in section 10044, Rev. Codes 1905. State v. Bickford (N. Dak.) 1916D-140. 9. Verdict Sufficient Guilty as Charged in Information. Where an information only charged the offense of assault with intent to kill with malice, a verdict find- ing accused guilty as charged is sufficient. State v. Gould (Mo.) 1916E-855. 3. JUDGMENT ON VERDICT. 10. It is not sufficient to warrant such judgment that the evidence was such that the trial court ought to have granted either a motion for a directed verdict or a new trial on the ground of insufficiency of the evidence to sustain the verdict, but it must also appear that there is no rea- sonable probability that the defects in or objections to the proof necessary to suo- port the verdict may be remedied upon an- other trial. First State Bank v. Kelly (N. Dak.) 1917D-1044. VERDICTS. 851 4. CORRECTION" O"P GENERAL VER- DICT. 11. Reassembling Jury. After the jury had been discharged in the afternoon with the consent of counsel, the court instructed them that if they should agree upon a verdict after the court took a recess for the day, it could be written and signed by the foreman, and kept by him, and the jury could return it into court the next morning. When the court assembled the next morning, all of the jury being pres- ent, a verdict was returned in the follow- ing form: "We, the jury, find in favor of the plaintiff, with seven per cent interest, less expense," signed by the foreman. The court directed them to return to their room and correct their verdict by inserting therein the amount which they intended to find for the plaintiff. They retired, and later returned with a verdict expressing the amount found in the plaintiff's favor. Held, that this was not error, and fur- nished no ground to arrest the judgment or for granting a new trial. Mitchell v. Langley (Ga.) 1917A-469. 5. IMPEACHMENT OF VERDICT. 12. In an action in which the jury, be- ing unable to decipher the word "puni- tive" in a special question, sent the fore- man to ask the judge what the word was, a verdict for punitive damages eannot be impeached by the affidavits of jurors that they would not have awarded such dam- ages if they had known that they would go to plaintiff, and that they understood that the foreman, in arguing that such damages would be paid to the county, was repeating what he had been told by the judge; there having been no representa- tion by 'the foreman that the judge made anv such statement. Dishmaker v. Heck (Wis.) 1917A-400. (Annotated.) 13. Affidavit of Juror to Impeach Ver- dict. Affidavits of jurors will not be re- ceived to impeach a quotient verdict, whether made by members of a unanimous jury or by nonconcurring jurors under the statute allowing three-fourths of the jurors to return a verdict. Spain v. Oregon- Washington R., etc. Co. (Ore.) 1917E-1104. . DIRECTING VERDICT, a. In General. 14. Verdict Properly Directed. The evi- dence examined, and held, that it was not erroneous to direct a verdict. Central Georgia Power Co. v. Cornwell (Ga.) 1916D-1020. 15. Evidence Held for Jury. Under the conflicting testimony as to issues material to the case, the court should have sub- mitted them to the jury under r>roper in- structions, and erred in directing a verdict for the claimant. Brown, v. Caylor (Ga.) 1916D-715. 16. When Direction Improper. If there is any credible evidence which, if undis- puted, would entitle the jurv to find for the plaintiff, a verdict should not be di- rected for the defendant. Marinette v. Goodrich Transit Co. (Wis.) 1917B-935. 17. When Direction Proper Sufficiency of Evidence. Where the record contains evidence from which, standing alone, the jury, without acting unreasonably, could find all the material averments of the declaration to have been proven, a verdict should not be directed for defendant. Devine v. Delano (111.) 1918A-689. 18. In an action for breach of contract in failing to furnish the variety of cucum- ber seed purchased, testimony by some of plaintiff's witnesses that they had not known the name of the brand ordered to be used to designate a certain variety of seed does not make plaintiff's evidence BO uncertain as to render the direction of a verdict in his favor erroneous, where numerous witnesses sustained plaintiff's contention as to the designation. Buck- bee v. P. Hohenadel, Jr., Co. (Fed.) 1918B- 88. (Annotated.) 19. Direction of Verdict Consideration of Entire Evidence. On motion for per- emptory instruction, the entire evidence ie to be considered, and, if it fails to show a cause of action, the motion should ba granted. Southern Ice Co. v. Black (Tenn.) 1917E-695. 20. Uncontradicted Evidence. The giv- ing of a peremptory instruction where an issue is made upon the pleadings is always predicated upon the fact that all the evi- dence tends to support the contention of the party in whose favor the verdict directed. Tennis Coal Co. v. Sackett (Ky.) 1917E-629. 21. Insufficient Evidence. An instruc- tion seeking to take the case from the jury for the want of legally sufficient evi- dence will not be granted, if there is any evidence, however slight, legally sufficient as tending to prove it. Hodges v. Balti- more Engine Co. (Md.) 1917C-766. 22. Evidence Permitting More Than One Conclusion. Refusal of a directed verdict is proper where it cannot be said that all reasonable men must draw from the evi- dence the same conclusion. Parsons v. Trowbridge (Fed.) 1917C-750. 23. Evidence considered and held suffi- cient to go to the jury on an issue whether money, the receipt of which by the defend- ant was admitted, was a loan or was paii under a contract for the future support of the payer. Chalvet v. Huston (D. C.) 1916C-1180. b. Power of Court. 24. Insufficincy of Evidence. A verdict for the defendant should never be di- 852 DIGEST. 1916C 1918B. rected bv the court, unless it is clear that there is no evidence whatever adduced that could in law support a verdict for the plaintiff. If there is evidence tending to prove the issue, and sufficient to show liability, it should be submitted to the jury as a question of fact to .be deter- mined by them, and not taken from the jury and passed upon by the court as mat- ter of law. King v. Cooney-Eckstein Co. (Fla.) 1916C-163. 25. Weight of Evidence. Chapter 6220, Fla. Laws of 1911, amending section 1496, Gen. St, of 1906, does not authorize a trial judge to pass upon the preponderance of evidence, except where the evidence of all the parties shall have been submitted, and it is apparent to the judge that no suffi- cient evidence has been submitted upon which the jury could legally find a ver- dict for one party, the judge may direct a verdict for the opposite party. Florida East Coast R. Co. v. Carter (Fla.) 1916E- 1299. 26. The court should direct a verdict, w^en the evidence is not controverted, and the law as applied to that evidence produces but one legal result; but when a case involves an issue of fact, on which the evidence is conflicting and would sup- port a verdict for either party, such issue should be left to the jury. Philadelphia, etc. R. Co. v. Gatta (Del.) 1916E-1227. c. Direction of Conviction. 27. What Constitutes. Where the un- disputed evidence showed that defendants signed an agreement to raise the price of milk, that they controlled 60 ner cent of the output necessary in a city, and it was admitted by defendants that, in conse- quence of the agreement, they raised the price, a charge that on the agreement and the evidence defendants were guilty, and directing the jury to take the case and re- turn a verdict, is not objectionable as di- recting a verdict, but merely informs the jury that the agreement and the admis- sion made defendants guilty. State v. Craft (N. Car.) 1917B-1013. d. Form of Motion. 28. Motion for Directed Verdict Eight to Move Orally. One moving for peremp- tory instruction is not required to formu- late the evidence and sign a statement, as under a demurrer to the evidence, but the motion can be made orally upon the evi- dence as delivered before the court anbe essential to freedom of the press, liberty of circulating through the mails is not essential, so long as transportation in any other way is not forbidden. Masses Pub. Co. v. Patten (U. S.) 1918B-999. (Annotated.) 24. Espionage Act, tit. 12, 1, 2 (Fed. St. Ann. Pamph. Supp. No. 11, p. 16), de- claring certain matter non-mailable, do not violate Const. Amend. 5 (9 Fed. St. Ann. 288), providing that no person shall be deprived of life, liberty, or property with- out due process of law, though 'by the ex- clusion of complainant's magazine from the mails its business was practically ruined. Masses Pub. Co. v. Patten (U. S.) 1918B-999. (Annotated.) 25. Espionage Act Non-mailable Mat- ter Scope of Enactment. Espionage Act June 15, 1917, tit. 12. 1 (Fed. St. Ann. Pamph. Supp. No. 11, p. 16), declaring 856 DIGEST. 1916C 1918B. every letter, newspaper, or other publica- tion, matter, or thing in violation of any of the provisions of that act to be non- mailable and section 2, declaring non- mailable every letter, newspaper, etc., con- taining any matter advocating or urging treason, insurrection, or forcible resist- ance to any law of the United States, ex- cludes from the mails any letters or liter- ature in furtherance of any acts prohibited under the other titles of the statute. Masses Pub. Co. r. Patten (U. S.) 1918B- 999. Notes. Nature and scope of war power. 1918B- 1009. War as excuse for breach of contract. 1918A-14. Internment of person of hostile origin or association. 1917D-409. Alien enemies. 1917C-189. What constitutes "adherence to enemies," etc., within law of treason. 1917D-479. Expatriated person as alien enemy. 1916D-306. Bight of belligerent power to requisi- tion goods of neutral. 1916E-245. Right to bring prize into neutral port. 1917D-448. WARDEN. Duty on release of pafdoned convict, see Pardons, 2. WARDS. See Guardians and Wards. WAREHOUSES. 1. Duties and Liabilities of Warehouse- men. 2. Warehouse Receipts. 3. Actions. Carrier as warehouseman, see Carriers of Goods, 8-10. 1. DUTIES AND LIABILITIES OF WAREHOUSEMEN. 1. Duty of Warehouseman Effect of Previous Dealings. The acceptance for storage of wool by a warehouseman places him under a liability to the bailors for safe-keeping, which is not altered by any previous long course of such dealings be- tween the parties with the conditions of nature likely to render the storage unsafe under the circumstances known to both. Hecht v. Boston Wharf Co. (Mass.) 1917A-445. 2. Recovery Against Warehouseman Sale of Goods by Bailor. Where plaintiffs sell a portion of stored wool before injury to it, they cannot recover against the ware- houseman for damage to such part, since it may be assumed, under all the circum- stances, that defendant assented to the sale, such an assent having a favorable effect on its liability by passing title out of plaintiffs under the Mass. Sales Act (St. 1908, c. 237, 19, rule 1), which by direct provision vests title to specific goods in a deliverable state in the buyer upon the making of the contract of sale, and under section 22 of the act providing that such roods are at buyer's risk, whether or not delivery is made, and since the right of action for injury always rests in the general or special owner of chattels, which plaintiffs no longer were of the wool sold. Hecht T. Boston Wharf Co. (Mass.) 1917A-445. 3. Tide as Act of God. Tides, in their physical aspect, being wholly an act of God, the question of a warehouseman's liability for damage caused by them is de- pendent upon whether the injury was caused wholly by the tide, or whether the defendant's negligence gave such physical force an opportunity to operate, the meas- ure of due care being reasonable prudence and foresight and the adoption of precau- tions by careful persons in the same line of business, and such provisions as to the probable state of the tide as an ordinarily intelligent man might have gained from observation of general climatic conditions. Hecht v. Boston Wharf Co. (Mass.) 1917A- 445. (Annotated.) 4. Degree of Care Required. The legal obligation of a warehouseman, bailee of wool, is to use the ordinary care of a man of common prudence in keeping that sort of goods, in view of the fact regard- ing danger of injury accessible to and likely to be considered and acted upon by a rational person before the event com- plained of. Hecht v. Boston Wharf Co. (Mass.) 1917A-445. 5. Accounting for Proceeds of Damaged Property Conclusiveness of Receipt in Full. Plantiff is entitled to an accounting with a warehouseman for proceeds of dam- aged poultry sold, even though he has set- tled with him in full for loss by fire, the warehouseman being trustee for collection under policy, where he did not understand that by the terms of settlement the ware- houseman was to have the proceeds from damaged poultry, a receipt in full not being conclusive, the parties standing in a fiduciary relation, and transactions be- tween them being prima facie voidable. Hobbs v. Monarch Refrigerating Co. (111.) 1918A-743. Notes. Loss resulting from rise or fall of tide as due to act of God. 1917A-450. Construction of Uniform Warehouse Receipts Act. 1917E-29. 2. WAREHOUSE RECEIPTS. 6. The rights of a pledgee of warehouse receipts under the uniform warehouse re- WAREHOUSE RECEIPTS WASTE. 857 ceipts Act (La Acts. 1908, No. 221, 40, 41, 47), as a 'bona fide purchaser, where the pledgers had been clothed with ap- parent ownership by the real owner, are not lost by permitting the pledgers to withdraw such receipts under an agree- ment to hold for the pledgee's account, where this did not result in a subsequent negotiation of them to a purchaser in good faith for value. Commercial Nat. Bank r. Canal-Louisiana Bank, etc. Co. (U. S.) 1917E-25. (Annotated.) 7. What Law Governs Warehouse Re- ceipts Act Necessity of Showing Appli- cability. Where the bill of exceptions does not refer to the Mass. Warehouse Receipts Act (St. 1907, c. 582) nor to what kind t>f receipts a warehouseman issued for stored goods, the latter's liability must be determined by common-law principles. Hecht v. Boston Wharf Co. (Mass.) 1917A- 445. 8. Uniform Warehouse Receipts Act Construction. A pledgee of bills of lad- ing for cotton, who permits the pledger to withdraw such bills of lading under an agreement to hold for the pledgee's ac- count, and thus enables the pledger to obtain negotiable warehouse receipts which they pledge to a bank as security for their notes, cannot question the title of the latter, having clothed the pledgor with the indicia of ownership, within the meanincr of the doctrine established by the uniform warehouse receipts act (La. Acts 1908, No. 221, 40, 41, 47), that if the owner of goods permits another to have possession or custody of negotiable ware- house receipts running to the order of the latter or to bearer, it is a representation of title upon which bona fide negotiators for value are entitled to rely, despite breaches of trust or violations of agree- ment on the part of the apparent owner. Commercial Nat. Bank v. Canal-Louisiana Bank, etc. Co. (U. S.) 1917E-25. (Annotated.) 9. The rule of construction established by the uniiorm warehouse receipts act (La. Acts 1908, No. 221, 57), viz., "this act shall be so interpreted and construed as to effectuate its general purpose to make uni- form the law of those states which enact it," reqpuires that the cardinal principle of the act, which is to give effect to the mercantile view of documents of title shall have recognition to the exclusion of any inconsistent doctrine which may have previously obtained in any of the states enacting it. Commercial Nat. Bank v. Canal-Louisiana Bank, etc. Co. (U. S.) 1917E-25. (Annotated.) 3. ACTIONS.. 10. Evidence of Negligence Sufficient. Evidence held to go to the jury on the question whether the warehouseman's neg- ligence was the cause of damage by a high tide to wool stored. Hecht v. Boston Wharf Co. (Mass.) 1917A-445. 11. Evidence of Negligence Practice of Other Warehousemen. In an action for damages to wool injured by negligence, evidence of the practice of wool ware- housemen as to the elevation at which it was generally considered safe to store wool to escape the action of extraordinarily high tides is admissible as bearing upon the main issue. Hecht v. Boston Wharf Co. (Mass.) 1917A-445. WAREHOUSE RECEIPTS. See Warehouses, 6-9. WARRANT. Arrest without warrant, see Arrest, 3-8. Warrant of arrest, see Arrest, 1, 2. Search warrant, see Searches and Seiz- ures, 1, 3, 4. WARRANTIES. Representations in application for acci- dent policy, see Accident Insurance, 10-12. Proof by parol, see Accident Insurance, 23. WARRANTS. City warrants, see Municipal Corporations, 36, 120-128. WARRANTY. See Sales, 12-45. Covenants of warranty, see Deeds, 77-81. In insurance policy, see Insurance, 26. No warrant to cure, see Physicians and Surgeons, 18. In sale of ship, see Ships and Shipping, 4,5. WATCHMAN. As within Federal Employers' Liability Act, see Master and Servant, 55. Killing by wilful act, as accident within Workmen's Compensation Act, gee Master and Servant, 202, 263. WASTE. Eecovery for in real action, see Trespass, 12. 1. What Constitutes Injury by Third Person. Injury by the negligence of a stranger is not waste for which the life tenant is liable to the remainderman; waste, which is of two kinds, voluntary or actual, and permissive or negligent, be- ing spoil or destruction done or permitted by the tenant, to the prejudice of the re- mainderman. Rogers v. Atlantic, etc. Co. (N. Y.) 1916C-877. 858 DIGEST. 1916C 1918B. WATERS AND WATERCOURSES. 1. Control and Regulation, 858. 2. Federal Grants of Riparian Lands, 858. 3. Eights of Riparian Owners, 858. a. Title to Shore and Bed, 858. b. Grant of Water Rights, 858. e. Appropriation, 859. d. Rights to Ice, 859. e. Diversion, 859. (1) In General, 859. (2) Action to Enjoin, 859. f. Obstruction, 860. g. Damage by Floating Logs, 860. 4. Navigable Waters, 860. a. State Regulation, 860. b. Power of State to Declare Naviga- bility, 861. e. Presumption as to Navigability, 861. d. Ownership, 861. 5. Surface and Percolating Waters, 861. See Irrigation; Public Lands, 2-6. Grant of water power, see Canals, 1-3. Pollution, see Cemeteries, 1-3. Easement to take water from well, see Easements, 1, 10, 20. Condemnation of stream, see Eminent Do- main, 8. Judicial notice of navigability, see Evi- dence, 10, 11, 18. Liability for draining spring, see Mines and Minerals, 9. City's power over streams outside city, see Municipal Corporations, 45. Pollution, city regulations, see Municipal Corporations, 87. River as state boundary, see States, 3, 4. Right to reclaim floated logs washed ashore, see Trees and Timber, 22. 1. CONTROL AND REGULATION. 1. Bight to Take Sand from Bed of Stream. That sand in the bed of a navi- gable stream is migratory, or liable to be shifted, does not change its character while at rest upon the river bed, as respects the rights of the state to require payment from persons taking sand from the bed of the stream. Wear v. Kansas (U. S.) WISE- ST. (Annotated.) 2. That there is a public right to take sand from a navigable stream does not hinder the state from collecting for the good of the whole public a charge from those individuals taking sand and thereby withdrawing it from public access. Wear v. Kansas (U. S.) 1918B-586. (Annotated.) 2. FEDERAL GRANTS OF RIPARIAN LANDS. 3. Construction. Grants by the United States of lands bordering on streams and other waters, without reservation or re- strictions, are to be construed as to their effect according to the law of the state in which the lands lie; the United States as- suming the position of a private owner, subject to the general law of the state, so far as its conveyances are concerned. Ber- not T. Morrison (Wash.) 1916D-2SO. 3. RIGHTS OF RIPARIAN OWNERS. a. Title to Shore and Bed. 4. Riparian Rights Ownership of Bed of Stream. A territorial statute enacted in 1859 (Laws 1859, c. 121), adopting the common law of England, did not give a subsequent patent from the United States covering riparian lands the effect of a grant to the thread of the stream, and created no constitutional obstacle to a sub- sequent decision of the state court that the fact of navigability, rather than the ebb and flow of the tide, excluded riparian ownership of river beds. Wear v. Kansas (U. S.) 1918B-586. 5. Title to Bed of Non-navigable Lake. Under Rem. & Bal. Wash. Code, 143, pro- viding that the common law, so far as not inconsistent with the constitution and laws of the United States or of the state, nor incompatible with the institutions and con- ditions of society in the state, shall be the rule of decision in all the courts of the state, the bed of unnavigable lakes is in the littoral proprietors, as Const, art. 21, 1, providing that the use of the waters of the state for irrigation, mining, and manu- facturing purposes shall be deemed a pub- lic use, was not intended to destroy ripar- ian rights, but only to remove any doubt as to the power of the legislature to au- thorize the taking of such rights under the power of eminent domain, and Laws 1890, p. 706, providing for the use of water for irrigation purposes and for the con- demnation of rights of way for ditches to carry such water, and the federal Desert Land Act of March 3, 1877, c. 108, 19 Stat. 377, authorizing the filing of a declaration with the register and receiver of the land district in which any desert land is situ- ated, that the person filing it intends to reclaim a tract of desert land by conduct- ing water thereupon, and providing that the right to the use of water by such per- son shall depend upon bona fide prior ap- propriations, do not abrogate the common- law rule as to riparian and littoral rights in unnavigable waters. Bernot v. Morri- son (Wash.) 1916D-2SO. (Annotated.) Title to 1916D-299. Note, bed of non-navigable lake. b. Grant of Water Rights. 6. A grant of water power is not a grant of property in the corpus of the water, or a grant of water for anything else than the propulsion of machinery. Eastern Pa. Power Co. v. Lehigh Coal etc. Co. (Pa.) 191GD-1000. (Annotated.) WATERS AND WATERCOURSES. 859 7. Grant of Water Power Construction. The grantor owned two tracts of land. She conveyed the fee in one of them and "the water rights and water power privi- leges" in the other. The habendum clause was: "To have and to hold the said above granted and described property, with all arid singular the rights, members, and ap- purtenances thereunto appertaining," to the grantee in fee simple. The easement of water rights and water power privileges passing under the deed was that appur- tenant to the property conveyed, and not to other property of the grantee. Central Georgia Power Co. v. Cornwell (Ga.) 1916D-1020. (Annotated.) 8. The restriction, following the grant- ing of right to use "at all times" 100 square inches of water, "when the water is lower than ... I restrict myself . . . from using ... an amount of water greater than that herein deeded, . . . viz.: One hundred square inches" is only on the grantor, and does not affect right of the grantee to use 100 inches when there is less than twice that quantity. Wilton Woolen Co. v. G. H. Bass & Co. (Me.) 1916D-1Q23. (Annotated.) 9. Though all the real estate of the grantor, except the dam, the head gates, and the land on which they rest is in- cluded in the conveyance by a company owning water rights, a dam and real es- tate about it, of certain described real estate, "with the following water power and privilege and none other, to wit: The right to draw . . . water sufficient to fur- nish forty horse power," till the water falls to a certain point below the top of the dam, when the grantee's right is lim- ited to 100 square inches, reserving to the grantor the right to draw through its own private waste gate any of said 100 inches not used at such times, and providing that the grantee is to bear half the expense for maintaining and repairing the canal on the conveyed land, and the head gates and dam all water rights of the grantor in ex- cess of 40-horse power remain in the grantor, and do not pass to the grantee ex necessitate rei. Wilton Woolen Co. v. G. H. Bass & Co. (Me.) 1916D-1023. (Annotated.) 10. Under the grant of right to draw water sufficient to furnish 40-horse power, with limitation of the grantee's right to 100 square inches, when the water falls to a certain point below the top of the dam, the dam is the place of measurement o" the 100 square inches, as well as of the 40-borse power. Wilton Woolen Co. v. G. H. Bass & Co. (Me.) 1916D-1023. (Annotated.) 11. No limitation as to time being stated in a grant of right to draw water sufficient to furnish 40-hors power, the grantees" may use the water as many hours a day as they deem proper. Wilton Woolen Co. v. G. H. Bass & Co. (Me.) 1916D-1023. (Annotated.) Note. Construction of grant of water power. 1916D-1002. c. Appropriation. 12. Subterranean Waters Appropriation. As between appropriates of subterranean waters, the first in time is the first in right. Bower v. Moorman (Idaho) 1917C-99. d. Eights to Ice. 13. As Between Riparian Proprietor and Owner of Easement of Tlowage. A ripar- ian owner on a mill dam has a fixed right to take ice from the stream where it flows over his land, and the owners of the mill dam cannot avail themselves of such right, although they have a right to an undi- minished amount of water. Valentino v. Schantz (N. Y.) 1917C-780. (Annotated.) Note. Bight to harvest ice as between person having right of flowage and riparian pro- prietor. 1917C-782. e. Diversion. (1) In General. 14. Should it become necessary to change the method or means of diverting water by a prior appropriator of subterranean waters, that, in and of itself, should not deprive a subsequent appropriator from ac- quiring unappropriated subterranean water unless it further appeared that it would be impossible to deliver said water to the diverting works of the prior appropriator. Bower v. Moorman (Idaho) 1917C-99. (Annotated.) 15. Decrees entered in proceedings to es- tablish water rights, though not final, are prima facie correct, and can only be at- tacked in a direct proceeding instituted for that purpose. Eogers v. Nevada Canal Co. (Colo.) 1917C-669. 16. Existence of Substantial Injnry Diminution of Flow. Senior appropriators, requiring water, are substantially damaged by the acts 1 of junior appropriators, whose use retarded the return of water to the natural stream for several days, and re- duced the amount taken by 25 per cent. Rogers v. Nevada Canal Co. (Colo.) 19170- 669. Note. Right of landowner to sink well and in- tercept subterranean waters supplying neighbor's well or spring. 1917C-106. (2) Action to Enjoin. 17. Eight to Sue Interest. Where it appears that the respondents are the own- 860 DIGEST. 1916C 1918B. ers in fee of the land upon which artesian wells are located and retain the right to the control and management of water flow- ing from said wells to the place of dis- tribution, and where it further appears that said respondents are the owners of virtually all of the capital stock of a pri- vate corporation to which the right to the use of said waters has been conveyed by deed, a motion for a nonsuit in an action by them to enjoin interference with the flow of water from said wells, on the ground that they are not parties in inter- est, will not be entertained. Bower v. Moorman (Idaho) 1917C-99. 18. If, in the sinking of a well, the flow from a well of an adjoining landowner and prior appropriator of subterranean water is lessened, before a permanent in- junction should issue, it must be conclu- sively established that the water so lost cannot be returned from the well of the subsequent appropriator to the diversion works of the prior appropriator. Bower v. Moorman (Idaho) 1917C-99. (Annotated.) 19. It is held that the findings of fact are not sufficient to support the judg- ment, and it is accordingly ordered that the case be remanded to the district court, with directions to suspend the injunction, permitting appellants to continue the con- struction of the well on said lot 5 until it is established that by reason of the sink- ing of appellants' well the respondents' well will sustain a material and permanent loss of water supply; and if it shall later appear to the satisfaction of the district court that said actual loss of water has been sustained in respondents' well due to the construction of appellants' well, and such water cannot be returned to the di- version works of respondents, said injunc- tion should be reinstated, permanently closing the well of appellants. Bower v. Moorman (Idaho) 1917C-99. (Annotated.) 20. The fact that the sinking of a well will endanger the supply of water flowing from a well on adjoining land owned by a prior appropriator of subterranean waters does not justify the issuance of a perma- nent injunction, unless it is conclusively shown that the water supply of the first appropriator will be actually and perma- nently diminished. Bower v. Moorman (Idaho) 1917C-99. (Annotated.) 21. Although it may be found that in the sinking of a well by a landowner direct communication was made with the same artesian belt or basin tapped by an ad- joining landowner, who was a prior appro- priator of subterranean water, the court is not justified in issuing a perpetual injunc- tion prohibiting the completion of the well ef a junior appropriator of subterranean waters, unless it further conclusively ap- pears that the prior appropriator will suf- fer permanent loss of water by reason' of the tapping of said artesian belt or basin. Bower" v. Moorman (Idaho) 1917C-99. (Annotated.) 22. If the sinking of M's well to the depth that B's large well has been sunk, or to a greater depth, will not interfere with the flow of the water in B's well, or it there is a loss of water in B's well occa- sioned by the sinking of M's well, which, in like quantity, can be returned to B's well without material damage, and at the same time water secured in M's well, the court will not be justified in issuing a per- manent injunction preventing the comple- tion of M's well. Bower v. Moorman (Idaho) 1917C-99. (Annotated.) 23. Wells Diminution of Flow In Prior Wells. Before a permanent injunction should issue in a case of this character, the evidence should clearly and conclu- sively establish that the real cause of the loss of water flowing from the well of a prior appropriator of subterranean, water is the construction of the well of a junior appropriator of said subterranean water. Bower v. Moorman (Idaho) 1917C-99. (Annotated.) f. Obstruction. 24. Liability Extraordinary Flood. A municipality diverting and obstructing the course of a stream, whereby it is rendered incapable of carrying away an extraordi- nary rainfall, is liable where as a result of such a rainfall a flood occurs and ad- jacent property is damaged. Greenock Corporation v. Caledonian E. Co. (Eng.) 1918A-1103. (Annotated.) Note. Duty of one obstructing natural water- course to anticipate extraordinary freshets or floods. 1918A-1114. g. Damage by Floating Logs. 25. Remedy of Riparian Owner Ade- quacy of Legal Remedy. "Where defend- atts were entitled to float logs in a stream, riparian owners have an adequate remedy at law to recover for injuries resulting from defendants' negligence in allowing the logs to jam, so that the water, logs, and flood wood were thrown on their land; hence they cannot maintain a bill in equity. Boutwell v. Champlain Eealty Co, (Vt.) 1918A-726. Note. Liability of one using stream to float timber for resulting injuries to riparian owner. 1918A-732. 4. NAVIGABLE WATERS. a. State Regulation. 26. Regulation as to Navigable Waters Power of State. Where Congress has not acted, the state legislature may provid* WATERS AND WATERCOURSES. 861 for the development of a stream emptying into one of the great rivers, where such stream is in fact navigable. Boutwell v. Champlain Realty Co. (Vt.) 1918A-726. b. Power of State to Declare Navig- ability. 27. Legislative Power to Determine Navi- gability. The legislature cannot by declar- ing it navigable make navigable a stream which is not so in fact. Boutwell v. Champlain Eealtj Co. (Vt.) 1918A-726. c. Presumption as to Navigability. 28. Waters above the flow of the tide are prima facie private in use as well as ownership, and the burden of showing that a particular stream is boatable is on a person seeking to use it as such. Boutwell v. Champlain Eealty Co. (Vt.) 1918A-726. d. Ownership. 29. Title to Bed of Non-navigable Lake. The state does not own and never owned the bed of unnavigable lakes, especially in view of Wash. Const, art. 26, providing that the people of the state forever dis- claim all right and title to the unappro- priated public lands lying within the boundaries of the state and the Wash. En- abling Act of February 22, 1889, c. 180, 25 Stat. 676, which, in specifying the lands which shall pass to the state upon its ad- mission into the Union, neither expressly nor by implication refers to unnavigable lakes, and which provides tliat the states provided for in such act shall not be en- titled to any further or other grants of land for any purpose than as expressly provided therein. Bernot v. Morrison (Wash.) 1916D-280. (Annotated.) 5. STJBFACE AND PEBCOLATING WATEES. 30. Relative Eights of Adjoining Own- ers to Subterranean Waters. Where sub- terranean water exists in a state of nature throughout a tract of land, the ownership of which is held in different proprietors, it would seem to be impossible to adopt a rule giving each proprietor the absolute right to withdraw all of the subterranean waters from his tract of land, and thus de- stroy the benefits made possible by the proper regulation of subterranean waters. And an injunction will issue to restrain any permanent interference by an adjoin- ing landowner with the right to the use of subterranean water acquired by a prior appropriator. Bower v. Moorman (Idaho) 1917C-99. 31. Deflection by Railroad Embankment. Defendant railroad, whose occupancy of a public highway for its tracks was entirely permissive, is liable for any damage to ad- jacent owners caused by its embankment, regardless of whether the water so di- verted was surface water or was flowing through a natural drainway, and regardless of negligence in its construction, under the constitutional guaranty that private property shall not be taken or damaged for public use without due compensation. Louisville, etc. E. Co. v. Jackson (Ark.) 1918A-604. 32. In such case, the railroad, having no control over any other part of the street except that occupied by its tracks, is not excused from liability for damages from surface water consequent upon the raising of an embankment because the city failed to afford additional facilities for carrying off the surface water. Louisville, etc. E. Co. v. Jackson (Ark.) 1918A-604. 33. In an action for damages to real property from an embankment by defend- ant railroad changing the flow of water and causing it to accumulate on plaintiff's property, where there was no evidence that the injury was caused by a failure of the city to maintain and repair the street, an instruction that the railroad had no control over the street adjoining plaintiff's premises, except that actually occupied by its roadbed and that any damage from surface water from the failure of the city to us reasonable care in the maintenance of the street did not make it liable, is properly refused. Louisville, etc. E. Co. v. Jackson (Ark.) 1918A-604. 34. Surface water is a common enemy which any landowner may defend against with such measures as he may deem ex- pedient without laying himself liable to any other owner upon whose land the water is caused to flow. Louisville, etc. E. Co. v. Jackson (Ark.) 1918A-604. 35. On evidence in an action for dam- ages from the raising of a railroad em- bankment which changed the flow of water and caused it to accumulate on plaintiff's property, it is held that whether the ac- cumulation was caused by the raising of the embankment is a question for the jury. Louisville, etc. E. Co. v. Jackson (Ark.) 1918A-604. 36. In such case, the plaintiff, if not the owner of the property mentioned in his ccmplaint at the time the alleged per- manent injury from its acts of negligence were committed by defendant railroad, cannot recover. Louisville, etc. E. Co. v. Jackson (Ark.) 1918A-604. 37. In such case, defendant is liable if the gutters as they existed at the time its embankment was raised were sufficient to take care of the water, because they were subsequently allowed to fill up so that they could not take care of the water. Louisville, etc. E. Co. v. Jackson (Ark.) 1918A-04. 38. In an action by an owner for dam- ages to his property from surface water 862 DIGEST. 1916C 1918B. from defendant railroad's change in its roadbed, where defendant's evidence showed that the flow of water was not sufficient to overflow the gutters and that if it rose above the curbing and under plaintiffs storehouse it was due to the faet that the gutters were not cleaned, the re- fusal of its instruction, that it had no duty to clean the gutters in front of plaintiff's property, and that if the damage was caused by the failure of the city or any other person to keep them cleaned it was not liable, is error. Louisville, etc. B. Co. v. Jackson (Ark.) 1918A-604. WATERWORKS AND WATER COM- PANIES. 1. Municipal Water Supply, 862. a. Construction of Contract, 862. b. Meters and Connections, 862. c. Extension of Mains, 862. d. Rules of Company, 863. e. Liabilities Arising from Manner of Performance of Duties, 863. Condemnation of stream, see Eminent Do- main, 31. City's power over streams outside city, see Municipal Corporations, 45. 1. MUNICIPAL WATER SUPPLY. a. Construction of Contract. 1. Contracts for Public Utility Practi- cal Construction. Where a contract is en- tered into between a city and a water sup- ply company, for the benefit of the people of the city, and under which the people are entitled to certain rights, benefits and privileges, a construction of the meaning of ambiguous and doubtful provisions of the contract by one consumer or bene- ficiary is not binding upon other con- sumers, or beneficiaries, not shown to have acquiesced in or assented to such construc- tion. State v. Water Supply Co. (N. Mex.) 191SE-1290. b. Meters and Connections. 2. Construction by Municipality. Where a franchise granted to a water company provides that the company shall have the right "to make rules and regulations, to be approved by the city council," and the company contends that it has adopted and enforced a rule which required the con- sumer to pay the cost of making connec- tion with its mains, before the question can arise as to whether the rule in question amounted to a construction of the contract by the city, it is incumbent upon the com- pany to show that the city council gave it9 approval to the same. State v. Water Sup- ply Co. (N. Mex.) 1916E-1290. 3. Public Supply Right to Charge Con- sumer With Cost of Service Pipe. Where a franchise, under which a water supply company operates, requires it to furnish. water to private consumers at fixed rates, it must provide the necessary service pipe from the main line in an abutting street to the consumer's property line, at its own expense, unless the franchise imposes this burden upon the consumer. State v. Water Supply Co. (N. Mex.) 1916E-1290. (Annotated.) 4. Where a municipality operates its own water supply system, it is not under con- tractual obligations to lay the service pipes from the curb to its main, hence a rule which requires the consumer to assume the burden is reasonable. But where, under a contract and franchise, this duty devolves upon the holder of the franchise, such a rule is unreasonable. State v. Water Sup- ply Co. (N. Mex.) 1916E-1290. (Annotated.) Note. Duty of water company to lay service pipe without charge to consumer. 1916E- 1297. c. Extension of Mains. 5. Compelling Extension. A waterworks company, defendant's predecessor, was or- ganized under Cal. St. 1858, p. 218, pro- viding that all corporations formed or claiming any privileges thereunder should furnish pure, fresh water to the inhabi- tants of the city and county for family use- so long as the supply permitted, at reason- able rates and without distinction of per- sons, on proper demand therefor, vesting it with the right of eminent domain, and granting an irrevocable easement in the streets of the ?ity for laying its pipes, etc. Civ. Code, 549, imposed the obligations expressly enumerated in the act of 1S58, and Const, art. 11, 19, as amended Feb- ruary 12, 1885 (St. 1885, p. 228), provided that any duly incorporated company en- gaged in municipal water supply might use the public streets for its pipes and connec- tions, so far as necessary. Held that, when the company accepted the franchise offered by the state, it assumed a contractual duty to be discharged for the public benefit; a community service commensurate with the privileges of its franchise requiring it to provide a system reasonably adequate to meet the wants of the inhabitants at its commencement, and also to extend its sys- tem as the reasonable wants of the grow- ing community might require, so that, when in a position to make reasonable ex- tensions of its mains bounding a populous part of the city, it was bound to and might be compelled to do so. Lukrawka v. Spring Valley Water Co. (Cal.) 1916D- 277. (Annotated.) 6. Where defendant's predecessor ac- cepted a franchise requiring it to supply the inhabitants of a city and county with water, and, in the absence of any showing that the primary and exclusive right to initiate proceedings to compel it to extend its water mains to a growing part of the WATER POWER WEIGHTS AND MEASURES. 863 community was conferred on the board of supervisors or the state railroad commis- sion, mandamus is the proper remedy of the inhabitants of the part of the city clearly entitled to compel the company to extend its pipes and furnish water service to them. Lukrawka v. Spring Valley Water Co. (Cal.) 1916D-277. (Annotated.) 7. Such right to compel an extension to serve inhabitants of a particular section is not an absolute and unqualified right, but only to do so where there is a reason- able demand and a reasonable extension of service can be made to meet the de- mand, depending on the particular facts of the case; but the expenditure in extend- ing the service is not controlling in deter- mining the reasonableness of a demand for it, because the water rates established by the municipality must be sufficient to yield a fair and reasonable income on the property devoted to the public use, which will include such necessary expenses. Luk- rawka v. Spring Valley Water Co. (Cal.) 1916D-277. (Annotated.) Note. Power to compel extension of water sys- tem. 1916D-285. d. Rules of Company. 8. Reasonableness. Public utility com- panies have a right to adopt and enforce reasonable rules and regulations, for their security and convenience and enforce com- pliance therewith by refusing or discon- tinuing the service; but such rules must be reasonable, just, lawful and not dis- criminatory. State v. Water Supply Co. (N. Mex.) 1916E-1290. 9. Power to Shift Burden Imposed, by Franchise. Where a franchise, under which a public utility company operates, imposes a burden upon the company, any rule or regulation adopted by the company, by which it attempts to shift the burden upon the consumer, is unreasonable and unjust, and will not be enforced. State v. Water Supply Co. (N. Mex.) 1916-1290. e. Liabilities Arising from Manner of Performance of Duties. 10. Failure to Furnish Water Liability for Loss by Fire. Where a waterworks company contracts with a city to furnish it and its inhabitants water, citizens whose property is destroyed through fire owing to the company's negligent failure to fur- nish water may recover against it. Powell - & Powell Y. Wake Water Co. (N. Car.) 1917A-1302. 11. Underground Water Pipes Liability for Injuries. A person conveying water in underground pipes, by virtue of a license to use a public street for that purpose, is liable irrespective of negligence for in- juries caused by the bursting of a pipe. Charing Cross Elec. Supply Co. v. Hydrau- lic Supply Co. (Eng.) 1916C-1045. (Annotated.) Note. Liability for injuries caused by under- ground water pipes. 1916C-1050. WATER POWER, Nature of grant, see Waters and Water- courses, 6-11. WAYS. See Easements. WEALTH. Reference to defendant's wealth, see Argu- ment and Conduct of Counsel, 19. WEAPONS. Soldier's pledge of arms, see Army and Navy, 10-12. Assault with deadly weapon, see Assault, 2. 1. Set-gun Conviction Sustained. In a prosecution for homicide resulting from a gun set by defendant in his orchard to protect it against apple thieves, evidence held to sustain a conviction for man- slaughter in the second degree. Schmidt v. State (Wis.) 1916E-107. 2. Razor as Deadly Weapon. A "razor" is defined as a sharp instrument or tool u^ed for shaving purposes. Brown T. State (Miss.) 1916E-307. (Annotated.) 3. A razor is not a "deadly weapon," within Miss. Code 190G, 1103, making any person guilty of a misdemeanor who carries concealed any bowie knife, dirk knife, butcher knife, pistol, brass or me- tallic knuckles, slungshot, sword, or deadly weapon of like kind or description. Brown v. State (Miss.) 1916E-307. (Annotated.) Not* What constitutes "deadly weapon." 1916E-308. WEBB-KENYON ACT. See Intoxicating Liquors, 58. WEEKLY REST DAY. See Labor Laws, 24-32. WEIGHT OF EVIDENCE. See Evidence, 149-164. WEIGHTS AND MEASURES. 1. Requirsment of Public Weighing Validity. Mo. Laws 1913, p. 354, relative to the inspection of hay and grain, includ- ing the provisions relative to the weighing and grading of grain by state inspectors, 864 DIGEST. 1916C 1918B. and section 63 (p. 372), prohibiting the issuance of weight certificates except by a bonded state weigher, etc., are valid as a proper exercise of the police powers of the state. State v. Merchants' Exchange (Mo.) 1917E-871. (Annotated.) 2. Mo. Laws 1913, p. 354, relative to weighing and grading of grain by state inspectors and the issuing of certificates therefor, does not interfere in a material sense with interstate commerce. State v. Merchants' Exchange (Mo.) 1917E-871. (Annotated.) 3. Mo. laws 1913, p. 354, relative to the inspection of hay and grain, does not per- mit the weighing and certifying of weights of grain both by the state's bonded weigher and a private warehouseman. State v. Merchants' Exchange (Mo.) 1917E-871. (Annotated.) WELLS. Enjoining diversion of water, see Waters and Watercourses, 17-23. WHARVES. Liability for injury to invitees, see Neg- ligence, 10-12. Liability for injury to licensee, see Neg- ligence, 14-16, 21. WHEELS. Liability of manufacturer for injury, see Automobiles, 58-62. WHITE SLAVERY. See Prostitution, 14, 15, 21. WHOLESALE VENDOR. Meaning, see Licenses, 24. WILD ANIMALS. See Animals, 11-26. Subject of larceny when reclaimed, see Larceny, 1. . WILFULLY. Meaning, see Assault, 1. WILFULLY AND UNLAWFULLY. Meaning, see Indictments and Informa- tions, 13. WILLS. 1. Power of Disposition, 865. 2. Estates Divisible, 865. 3. Contract to Make Will, 865. 4. Formal Requisites to Validity, 865. a. Signature, 865. b. Attestation, 866. c. Date, 867. d. Publication, 867. e. Residuary Clause, 867. f. Nuncupative Will, 867. g. Holographic Will, 868. h. Evidence and Questions for Jury. 868. 6. Testamentary Capacity, 868. a. Who may Make Will. 868. b. Mental Capacity. 869. (1) In General^ 869. (2) Insane Delusion or Religious Belief, 869. (3) Evidence, 869. (a) Burden of Proof, 869. (b) Admissibility, 870. (c) Weight and Sufficiency. 871. (4) Instructions, 871. 6. Undue Influence, 872. 7. Mistake, 872. 8. Revocation, 872. a. In General, 872. b. Subsequent Will or Writing, 872. e. Subsequent Marriage, 872. d. Revival, 873. 9. Probate, 873. a. Jurisdiction and Nature of Pro- ceedings, 873. b. Abatement of Contest. 874 c. Parties, 874. d. Pleadings and Issues, 874. e. Evidence, 875. f. Hearing and Order of Proof, 875 g. Findings. 875. h. Appeal, 875. i. Costs, 876. j. Effect of Death of Contestant, 876. k. Probate of Later Will After For. mer Probate, 876. 10. Construction, 876. a. General Rules of Construction, 876. (1) Intention of Testator, 876. (2) Giving Meaning to All Parts, 877. (3) Meaning of Words, 877. (4) Inconsistent Provisions, 877. (5) Avoiding Partial Intestacy, 877. (6) Construction to Sustain Will, 877. (7) Error Cured by Other Re- citals, 877. (8) Later and Earlier Wills, 877. (9) Codicils, 878. (10) Enumeration Following Gen- eral Words, 878. (11) Supplying Omitted Word, 878. (12) General Words Controlled by Special, 878. (13) Evidence in Aid of Construc- tion, 878. b. Construction of Particular Words, 879. (1) "Heirs" or "Heirs at Law" or "Lawful Heirs," 879. (2) Other Words, 880. WILLS. 865 C. Construction of Particular Provi- sions, 881. (1) Eesiduary Clause, 881. (2) Designation of Executor, 882. (3) Vested or Contingent Estate, 882. (4) Kemainders, 882. (5) Presumption as to Tenancy in Common, 883. (6) Per Capita or Per Stirpes, 883. (7) Implied Devise or Bequest, 883. (8) Gift, 883. (9) Trust Estates, 883. (10) Power of Disposition and Control, 883. d. Suit for Construction, 884. 11. Validity of Provisions, 884. a. Restraint of Marriage, 884. b. Gift Subversive of Religion, 8'85. c. Gift to Witness, 885. d. Trust Provisions, 885. e. Effect of Invalid Provisions, 885. 12. Legatees and Devisees, 885. a. Nature of Legacy or devise, 885. b. Acceptance, 885. c. Lapsing and Ademption, 886. d. Election, 886. (1) Acts Constituting, 886. (2) Effect, 886. e. Right to Accumulation and Income 886. f. Agreement for Division, 886. See Conversion and Reconversion, 3, 5, 7. Designation of beneficiary of benefit con- tract, see Beneficial Associations, 26. Deed to take effect after death not testa- mentary, see Deeds, 19. Perpetuating testimony as to competency of live testator, see Depositions, 1. Nature of right to give and take by will, see Descent and Distribution, 2. Testamentary capacity, opinion evidence, see Evidence, 75. Finding will after appointment, effect, see Executors and Administrators, 8. Power of sale as including power to mort- gage, see Executors and Administra- tors, 36, 37. Power to sell not power to give option, see Executors and Administrators, 42. Contest by heir's administrator, SCP Exec- utors and Administrators, 73-75. Power of guardian respecting ward's will, see Guardian and Ward, 9, 10. Void as appointing a fund in perpetuity, see Perpetuities, 1. Correction in equity, see Rescission, Can- cellation and Reformation, 1. Contract to make will, see Specific Per- formance, 2-5, 9. Testamentary Trusts, see Trusts and Trus- tees, 2, 3, 11, 12. 1. POWER OF DISPOSITION. 1. Injudicious Disposition by Will. The right to dispose of property by will is as- 55 sured by the law, and does not depend upon its judicious use. Points v. Nier (Wash.) 1918A-1046. 2. Right to Limit. The right to dispose of property by will is a creature of stat- ute; and hence such right may be limited. Porter v. Union Trust Co. (Ind.) 1917D- 427. 3. Aa Natural Right. The right to dis- pose of property by will is not a natural right protected by the constitution, but is one conferred and regulated by statute. Peace v. Edwards (N. Car.) 191SA-778. 2. ESTATES DIVISIBLE. 4. Contingent Remainder as "Interest" in Land. A contingent remainder is, if the person who is to take is certain, such an "interest in real estate" as to be sub- ject to devise by the remainderman. Hill v. Purdy (D. C.) 1918B-847. (Annotated.) 3. CONTRACT TO MAKE WILL. 5. Oral Contract to Devise Validity. An alleged oral contract by a person since deceased to will property to the plaintiff is void as within the statute of frauds. Brown v. Golightly (S. Car.) 1918 A-l 185. (Annotated.) 6. An oral contract by which one of the parties agrees to make a will with a de- vise of specific property to the other, as compensation for services rendered and to be rendered to the former during his life, is valid and enforceable. Gordon v. Spell- man (Ga.) 1918A-852. 7. Contract not to Change Validity. A contract whereby one party thereto agreed that his will disposing of property, already made, in favor of the other party to the contract, may be specifically enforced, shall remain unchanged, and he may not avoid the agreement of devising his prop- erty by subsequent will to others, unless there are circumstances making it inequi- table to enforce the agreement. White v. Winchester (Md.) 1916D-1156. (Annotated.) 4. FORMAL REQUISITES TO VALID- ITY. a. Signature. 8. Definition of Term "Sign." To "sign" a document is to affix a signature thereto, to ratify by hand or seal, or to subscribe in one's own handwriting. Estate of Man- chester (Cal.) 1918B-227. 9. To "sign" a document is to make any mark upon it in token of knowledge, ap- proval, acceptance, or obligation, and the "signature" is the sign thus made, and, wherever placed, the fact that it was in- tended as an executing signature must sat- isfactorily appear on the document's face. Estate of Manchester (Cal.) 1918B-227. 10. Place of Signature Intent. Where a signature is at the end of a will, uni- versal custom creates the conclusion that 866 DIGEST. 1916C 1918B. it was appended as an execution; if else- where, it is for the court to say from in- spection of the whole document, as to language as well as form and relative posi- tion of parts, whether that was the inten- tion. Estate of Manchester (Cal.) 1918B- 227. 11. Signing by Another Person. Under Miss. Code 1906, 5078, permitting sign- ing of a will for testator by another in testator's presence and by his express di- rection, J. A., unable to read or write, to the knowledge of W., having requested W. to fill out his will, the writing by W. of the name of J. A. at the beginning of it, "I, J. A., . . . give and bequeath," it then being properly attested, and handed back to J. A., all parties understanding it to be a completed instrument, will be considered a sufficient signing. Armstrong v. Walton (Miss.) 1916E-137. (Annotated.) 12. Necessity of Signature at End, Un- der Miss. Code 1906, 5078, providing a will must be signed, without stating where, it is unnecessary that the signing be at the end. Armstrong v. Walton (Miss.) 1916E-137. (Annotated.) 13. Necessity of Signature at End Olo- graphic WilL An olographic will contain- ing testatrix's name at beginning of docu- ment, and closing with, "whereunto I hereby set my hand, etc.," but not sub- scribed, is not "sismed," as required by Cal. Civ. Code, 1277, in view of section 13, which provides that words are to be construed as ordinarily used and according to context. Estate of Manchester (Cal.) 1918B-227. (Annotated.) 14. Signature by Mark. A testator who signs his will by mark, while another has written his name, signs and executes the will himself, within Rem. & Bal. Wash. Code, 1320, providing that every will shall be in writing, "signed" by testator, and section 1321, providing that every person who shall sign testator's name to any will by his direction shall subscribe his own name as a witness and state that he subscribed testator's name at his re- quest, applies only to a case in which the name of testator is subscribed by another at testator's request and testator himself does no act, by making his mark or other- wise, to sign the will. Wilson v. Craig (Wash.) 1917B-871. (Annotated.) 15. Name in Body of Will. Under N. Car. Revisal 1905, 3113, requiring that a will be signed, the name of the testator appearing in his handwriting in the body of the will is a signing, and it is not necessarv that it be subscribed. Peace v. Edwards (N. Car.) 1918A-778. 16. Mark by Testator. Rem. & Bal. Wash. Code, 1321, providing that every person who shall sign testator's name to any will by his direction shall subscribe his own name as witness, snd state that he subscribed testator's name at his request, does not apply to the case of a nurse who wrote testatrix's name, by direction of her physician, on the will, and then assisted testatrix to make her mark after the name, the signature being by mark anJ made by testatrix herself. Points v. Nier (Wash.) 1918A-1046. 17. A last will and testament can be signed by mark. Points v. Nier (Wash.) 1918A-1046. 18. Where .a competent testatrix signs her will by mark, but only with assistance, the mark is nevertheless her signature. Points v. Nier (Wash.) 1918A-1046. 19. The evidence is held to be sufficient to show that testatrix subscribed, signed, or authorized signature of her name or mark to the purported will, that if any person did sign testatrix's name or mark, such person subscribed as a witness, and that the subscribing witness, testatrix's physicians, subscribed at the request of. testatrix or in her presence. Points v. Nier (Wash.) 1918A-1046. Notes. Sufficiency of signature of testator to will with respect to manner of signing. 1917B-874. Necessity that will be signed by testa- tor at end thereof in absence of statute so requiring. 1916E-140. b. Attestation. 20. What Law Governs. Under Colo. Rev. St. 1908, 7071, requiring a will to oe attested by two or more credible wit- nesses, the competency of attesting wit- nesses must be determined by the statute law relating to competency of witnesses and not by the common law. White v. Bower (Colo.) 1917A-835. 21. Wife of Beneficiary as Competent Witness. In view of Me. Rev. St. c. 77, under which a wife takes one-half of all the real estate of which the husband was seised during coverture upon his death without issue, and one-third upon his death with issue, and the husband is powerless to alienate or in any way dispose of her statutory interest without her consent, or without paying her the appraised value thereof, the wife of a person to whom a will gave personal property and real es- tate in fee was "beneficially interested" within Rev. St. c. 76, 1, requiring a will to be subscribed by three credible attest- ing witnesses not beneficially interested under such will, as her interest was not re- mote and uncertain, but direct and fixed, and the fact that it was contingent was immaterial. Clark's Appeal (Me.) 1917A- 837. (Annotated.) 22. Colo. Laws 1883. p. 289. expressly and entirely removes all disability in wit- nesses from testifying on account of inter- est, so that, if the wife of a beneficiary WILLS. 867 under a will has any interest, it does not disqualify her. White v. Bower (Colo.) 1917A-835. (Annotated.) 23. Under Colo. Bev. St. 1908, 7071, re- quiring wills to be attested by two or more credible witnesses, "credible" mean- ing competent to testify to its execution, and section 7074, declaring that a bequest to a subscribing witness void unless at- tested bv a sufficient number of other com- petent witnesses, the wife of a beneficiary under a will is competent to witness its execution. White v. Bower (Colo.) 1917A- 835. (Annotated.) 24. Competency of Husband of Devisee as Witness. Burns' Ind. Ann. St. 1914, 525, providing that when the husband or wife is a party to an action and not a competent witness in his or her own be- half the other shall also be excluded, and section 522, providing that in suits by or against heirs or devisees founded on a contract with or demand against the an- cestor to obtain title to or possession of property, neither p-irty shall be a compe- tent witness as to any matter which occurred prior to the death of the ances- tor, do not make the husband of one of the devisees named in a will an incompe- tent witness under section 3132, requiring wills to be attested and subscribed in the presence of the testator by two or more competent witnesses, in view of section 3144, providing that a witness beneficially interested may be compelled to testify when necessary, but may not take any property of the decedent other than what he would have taken by the law of de- scent. Kaufman v. Murray (Ind.) 1917A- 832. (Annotated.) 25. "Credible Witness." As construed by the common law, a "credible witness" to a will means a "competent witness." Clark's Appeal (Me.) 1917A-837. 26. Competency of Witness for One Pur- pose Only. The witnesses to a will can- not be competent for one purpose and in- competent for another. Clark's Appeal (Me.) 1917A-837. 27. Time of Determination. Under Me. Rev. t. c. 76, 2, providing that, when the witnesses to a will are competent at the time of attestation, their subsequent incompetency will not prevent the probate of the will, the witnesses must be compe- tent at the time of the execution of the will. Clark's Appeal (Me.) 1917A-837. 28. Will of Blind Man Sufficiency of Execution. The will of a blind man, signed by the witnesses only four feet from him, while he had opportunity to know by the sense of hearing that they were signing the paper which he had signed, the witnesses testifying that he knew they signed the will in his presence, was not invalid, as having been signed by the witnesses out of testator's presence, since an attestation in the same room where a blind testator is, while his intel- lect and hearing remain unimpaired, and he is conscious of what is going on about him, is a sufficient signing in his presence. In re Allred's Will (N. Car.) 1916D-788. (Annotated.) Note. Competency, as attesting witness to will, of husband or wife of beneficiary. 1917A-833. . Date. 29. Necessity of Date. In view of N. Car. Bevisal 1905, 3113, prescribing the formalities necessary to the execution of a valid will, but not requiring that it shall be dated or subscribed, a will without a date is valid. Peace v. Edwards (N. Car.) 1&18A-778. d. Publication. 30. Without due publication, an instru- ment is not a valid will. In re Williams' Estate (Mont.) 1917E-126. e. Residuary Clause. 31. Form and Requisites. No particular mode of expression is necessary to con- stitute a residuary clause in a will, all that is necessary being an adequate designa- tion of what has not otherwise been dis- posed of, and the fact that a provision so operating is not called a residuary clause is immaterial, since "residue" means that which remains. Faison v. Middleton (N. Car.) 1917E-72. f. Nuncupative Will. 37. Attempt to Make Formal Will as Nuncupative Will. Under Bern. & Bal. Wash. Code, 1330, providing that no nun- cupative will shall be good when the es- tate bequeathed exceeds the value of $200, unless proved by two witnesses present at the making thereof, unless there is proof that testator, when pronouncing it, bade some person present to bear witness that it was his will, and unless it was made at the last sickness and at the dwelling house of decedent or where he had been resid- ing for ten davs or more, it is not only necessary that decedent should intend to make a will, but he must intend to make an oral will, and words spoken at the time of the signing of a writing actually intended by decedent as a written will, and reduced to writing by witnesses and filed in court, do not constitute a nun- cupative will. Brown v. State (Wash.) 1917D-604. (Annotated.) 38. The evidence, in a proceeding for the probate of an alleged nuncupative will, is held to show that decedent's intention was to make a written will, which fact was not 'changed by the failure of his at- tempt to make a written will because of defective attestation. Brown v. State (Wash.) 1917D-604. (Annotated.) DIGEST. 1916C 1918B. 39. Nuncupative Wills not Favored. Nuncupative wills are not favored in law, because of the great opportunities for fraud and nerjury attending the probating of such wills. Brown v. State (Wash.) 1917D-604. Note. Attempt to make formal will as consti- tuting nuncupative will. 1917D-08. g. Holographic Will. 40. Where a holographic will was not signed as required by Cal. Civ. Code, 1277, indorsement "my will," with dece- dent's signature, on the envelope contain- ing it, does not cure the defect, merely showing her belief that it was a valid will, and the envelope not being a part of the will. Estate of Manchester (Cal.) 1918B-227. (Annotated.) h. Evidence and Questions for Jury. 41. Manner of Execution Intent of Testator. The power and method of tes- tamentary disposition is within legislative control, and, in determining whether a will is properly executed, testator's inten- tion cannot be considered. Estate of Man- chester (Cal.) 1918B-227. 42. Wife of Beneficiary as Witness. Under Colo. Rev. St. 1908, 7274, provid- ing that a wife shall not be examined for or against her husband without his con- sent, a married woman who attested a will under which her husband was a benefi- ciary, and which he was seeking to estab- lish, may testify for the will. White v. Bower (Colo.) 1917A-S35. (Annotated.) 43. Collusiveness of Testimony of Sub- scribing Witnesses. Where a will is con- tested, neither party is limited to the tes- timony of the subscribing witnesses, and either party may present other evidence to overcome the adverse testimony of such witnesses. The questions in controversy are to be determined from all the evidence bearing thereon, and not from the testi- mony of the subscribing witnesses only. Madson v. Christenson (Minn.) 1916D- 1101. (Annotated.) 44. Necessity of Calling Subscribing Witnesses. The statute requires that all subscribing witnesses, "who are within the state and are competent and able to tes- tify, shall be produced and examined.'' Where the proponent called a subscribing witness and examined him as to the man- ner in which the will was executed, the failure to examine him as to the sanity of the testator will not defeat the will, if such sanity be proven by other evidence. By calling him as a witness, his testi- mony was made available, and, if contest- ants desired his testimony upon matters emitted by proponent, it was incumbent urion them to examine him in respect thereto. Madson v. Christenson (Minn.) 1916D-1101. 45. Proof of Nuncupative Will. To sus- tain a will as a nuncupative will, it must be proved that decedent, while uttering the words offered as a will, had a present testamentary intention, and that he in- tended that the very words, then uttered, and no others, should constitute his will; if he gives instructions for a will which is subsequently to be drawn up and executed in writing, and it is not done, or if he gives oral directions which are taken down in the form of a will, which he fails to execute as a formal written will because of his death before he can do so, the writ- ing cannot be sustained as nuncupative will. Brown v. State (Wash.) 1917D-604. (Annotated.) 46. Holographic Will Sufficiency of Evidence to Establish. In a will contest where the jury were instructed that a holographic will must be established by the unimpeachable evidence of at least three disinterested witnesses that the en- tire body of the will and the signature were in the handwriting of the testator, the evidence is held to be sufficient to war- rant a finding for the contestee. Mason v. Bowen (Ark.) 1917D-713. 47. In a will contest, the evidence is held to be sufficient to warrant a jury finding that the will was attested by two witnesses in the manner required by the statute. Mason v. Bowen (Ark.) 1917D- 713. 48. Proof of Genuineness of Signature Weight of Evidence. The declaration of two credible witnesses who attest that they recognize a testament as being en- tirely written, dated, and signed in the testator's handwriting, corroborated by the testimony of an expert in handwrit- ing, and by the recitals of the will, and by other various extraneous facts, will pre- vail over the testimony of two witnesses, who swear that a part of the date was not written by the testator, unsupported by any other circumstances. Succession of Lefort (La.) 1917E-769. Note. Conclusiveness of testimony of sub- scribing witnesses with respect to execu- tion of will. 1916D-1104. 5. TESTAMENTARY CAPACITY, a. Who May Make Will. 49. Age and Infirmity. Infirmity from old age does not render a person, inca- pable of making a will unless it has so far impaired fhe testator's mind that he is in- capable of understanding his business at the time he is engaged in making the will. Carnahan v. Hamilton (HI.) 1916C-21. WILLS. 869 Validit 1916D-79 of Note. made by blind person. b. Mental Capacity. (1) In General. 50. Test of Testamentary Capacity. While sufficient mind and memory to at- tend to the ordinary business affairs of life makes one competent to make a will, such test is higher than the law requires. Ravenscroft v. Stull (111.) 191SB-1130. 51. The quantum of mental capacity requisite to the valid execution of a will is that the testator shall, at the time of executing the will, know and understand what he is about. Points v. Nier (Wash.) 1918A-1046. 52. The test of "testamentary capacity" is that the testator shall remember with- out prompting the extent and condition of his property, comprehend to whom he is giving it, and be capable of appreciating the claims of others whom he is excluding from participation in the estate. Mason v. Bowen (Ark.) 1917D-713. 53. A person who is capable of transact- ing ordinary business is capable of mak- ing a valid will. Carnahan v. Hamilton V I11.) 1916C-21. 54. It is not a rule of law that testator should have sufficient strength of mind to know what property he owned "without prompting." Carnahan v. Hamilton (111.) 1916C-21. 55. To incapacitate the person from making a will, the derangement must be of that character which renders him in- capable of understanding the effect and consequences of his act; it must be a want of capacity which prevents him from un- derstanding the relation of cause and effect in ordinary business matters. Car- nahan v. Hamilton (111.) 1916C-21. 56. Ancestral Insanity Presumption. It cannot be presumed that the testator is insane merely because his father was in- sane, as, until the disease manifests its presence, its existence cannot be inferred in the mind of the person in Question. Carnahan v. Hamilton (111.) 191&C-21. 57. Person Partly Paralyzed- One who knows his property, his relatives and heirs at law, and what disposition he desires to make of his estate and informs the scriv- ener of his wishes has testamentary capa- city, though he is suffering from a para- lytic stroke depriving him ot the use of a part of his body, and so affecting his speech as to cause him to speak* with diffi- culty, though he can be understood. Wil- son V. Craig (Wash.) 1917B-871. 58. Belief in Spiritualism and Witch- craft. The fact that a person believes in witchcraft, clairvoyance, spiritual influ- ences, presentments of the occurrences of future events, dreams, mind-reading, and the like does not show testamentary inca- pacity as a man's belief cannot be made a test of sanity. Carnahan v. Hamilton (HI.) 1916C-21. (2) Insane Delusion or Religious Belief. 59. "Monomania," within Ga. Civ. Code 1910, 3840, providing that a monomaniac may make a will in no way resulting from the mania, is a mental disease; not merely the unreasonable conduct of a sane person. It is a species of insanity. "Mania" is a form of insanity accompanied by more or less excitement which sometimes amounts to fury. An "insane delusion," such as will deprive a person of testamentary capacity, is the delusion which exists when a person conceives something extra- vagant to exist which has no existence whatever, and is incapable of being per- manently reasoned out of that conception. Dibble v. Currier (Ga.) 1916C-1. (Annotated.) 60. Insane Delusion. An "insane delu- sion" which will render one incapable of making a will is a belief in a state or con- dition of things in the existence of which no rational person would believe, or a be- lief in something impossible in the nature of things, or impossible under circum- stances surrounding the individual, and which refuses to yield either to evidence or reason. Carnahan v. Hamilton (111.) 1916C-21. (Annotated.) 61. Prejudice of the testator against a relative is not ground for setting aside a will unless it can be explained upon no other ground than that of an insane delu- sion. Carnahan v. Hamilton (111.) 1916C- 21. (Annotated.) 62. A "delusion" of a testator, such as will invalidate a will, is an insane belief or a mere figment of tfi'e imagination. In re Alexander's Estate (Pa.) 1916C-33. (Annotated.) 63. An "insane delusion" is an idea or belief which springs spontaneously from a diseased or perverted mind without rea- son or without foundation in fact. It is distinguishable from a belief which is founded upon prejudice or aversion, no matter how unreasonable or unfounded the prejudice or aversion may be. and if it is the product of a reasoning mind, no mat- ter how slight the evidence on which it is based, it cannot be classed as an insane delusion. Coffey v. Miller (Ky.) 1916C- 30. (Annotated.) Note. Insane delusion with respect to rela- tive as affecting testamentary capacity. 1916O4. (3) Evidence, (a) Burden of Proof. 64. The burden is on a party, relying on the existence of a delusion to invalidate a 870 will, to prove that such delusion controlled the testator's volition and destroyed his freedom of action in disposing of his es- tate. In re Alexander's Estate (Pa.) 1916C-33. (Annotated.) (b) Admissibility. 65. Opinion Evidence. Where the pro- ponents produced witnesses who stated that testator had capacity to make a will, the contestant, to meet the opinions of such witnesses, may introduce witnesses who will state their opinion that testator did not have such capacity. Kavenscroft v. Stull (111.) 1918B-1130. 66. Evidence as to Capacity. A party to a will contest has a right to ascertain and present to the jury any fact in rela- tion to the mental capacity of the tes- tator and the strength of his mental powers. Bavenscroft v. Stull (111.) 1918B- 1130. 67. General Business Capacity of Tes- tator. Witnesses may be asked as to the ability of testator to transact ordinary business. Bavenscroft v. Stull (111.) 1918B-1130. 68. Remote Statements of Testator. Statements imputed to testator, four or five years previous to his death, concern- ing his intention to give his property to a certain person, are inadmissible as too re- mote. Eavenscroft v. Stull (111.) 1918B- 1130. 69. Use of Intoxicants by Testator. Evi- dence of testator's habit of drinking in- toxicating liquors is admissible. Eavens- croft v. Stull (HI.) 1918B-1130. 70. No Change in Testator's Condition Observed. In a will contest in which it was claimed that testator did not have tes- tamentary capacity, a witness may state that he had observed no change in tes- tator, and that he was, on the day the will was executed, the same as he was any other day the witness ever saw him. Car- nahan v. Hamilton (111.) 1916C-21. 71. Inequality of Disposition. Unequal disposition of property is a circumstance which the jury may consider in connection with other evidence in passing on the mental capacity of the testator. Carna- han v. Hamilton (111.) 1916C-21. 72. Declarations of Testator. State- ments and declarations of a testator, whether made a reasonable time before or after the execution of a will, are admis- sible to show his mental capacity when that issue is raised, being external mani- festations of his mental condition. Mason v. Bowen (Ark.) 1917D-713. 73. In a will contest, evidence of a state- ment by the testator that the contestee owed him money, and that he was going DIGEST. 1916C 1918B. to live with him for the purpose of col- lecting this debt, is inadmissible upon the question of undue influence, since state- ments and declarations of a testator, whether made before or after the execu- tion of a will, are not competent as di- rect or substantive evidence of undue in- fluence, and are merely hearsay. Mason T. Bowen (Ark.) 1917D-713. (Annotated.) 74. In a will contest, statements of the testator, made more than two years prior to making his will, and before going to live with the contestee, that he intended his property to go to his relatives on his death are inadmissible as too remote to have any value in proving the mental capacity of the testator, since declara- tions of a testator, made prior to the ex- ecution of a will, are entitled to probative force, according to the nearness or remote- ness of the time at which they were made; the time to be covered being left to the discretion of the trial court. Mason v. Bowen (Ark.) 1917D-713. 75. Unnatural Disposition of Property. Where a will was attacked for incapacity of the testatrix and undue influence, evi- dence of the great wealth of the princi- pal beneficiary is admissible on the ques- tion of the unnaturalness of the will; it appearing that testatrix practically disin- herited her grandchild, who was her only near blood relation; such evidence being material on the question of capacity and undue influence. In re Williams' Estate (Mont.) 1917E-126. (Annotated.) 76. Declaration of Legatee. In a will contest, where there are two legatees, evi- dence that one of them had once said that testator's mind had weakened or failed from the use of medicine, and that he could hardly recollect anything, the effort being to attack the whole will, and to in- validate it as a whole, is incompetent, as affecting the other legatee. McDonald v. McLendon (N. Car.) 1918A-1063. (Annotated.) 77. Irrelevant Evidence. As regards the issue of lack of mental capacity of tes- tatrix, introduction of conveyances by her, and of personal tax returns of propounder, made after testatrix's death, all having no bearing, is harmless. In re Eawlings' Will (N. Car.) 191SA-948. Notes. Admissibility of declaration of legatee or devisee as to mental capacity of tes- tator. 1918A-1066. Admissibility of declarationg of tes- tator not made at time of execution of will, on question of undue influence. 1917D-717. Unnatural or unjust disposition of es- tate as evidence of testamentary incapa- city. 1917E-130. WILLS. 871 Eight of physician who attended tes- tator before his death to testify as to hia mental condition. 1918A-1050. (c) Weight and Sufficiency. 78. In a will contest, the evidence is held to be sufficient to sustain finding that testatrix had testamentary capacity at the time of executing the will. Points v. Nier (Wash.) 1918A-1046. 79. Evidence in support of a petition for an issue devisavit vel non held insufficient to show that the will was executed in con- sequence of an insane delusion on the part of the testator, the petitioner's father, though testator practically disinherited her and may have been mistaken in his judgment that she had been guilty of un- natural conduct toward him and her mother. In re Alexander's Estate (Pa.) 1916C-33. (Annotated.) 80. Evidence in a will contest held in- sufficient to show testamentary incapacity, in that testator had an insane delusion that certain of his nieces and nephews had mistreated him. Coffey v. Miller (Ky.) 1916C-30. (Annotated.} 81. Evidence of Incapacity Insufficient. In a will contest, a finding that a testator 72 years of age was wanting in testa- mentary capacity held against the great weight of the evidence. Carnahan v. Hamilton (111.) 1916C-21. 82. Foolish Conduct as Evidence of In- capacity. That an old man, a widower 72 years of age, after his daughter's death, proposed marriage to two different women, is not very strong proof of unsoundness of mind, especially where he was unhappy with his home life with his son-in-law. Carnahan v. Hamilton (111.) 1916C-21. 83. Disease as Evidence of Incapacity. Hardening of the arteries is no proof of testator's mental incapacity without a showing that it actually did affect the mind. Carnahan v. Hamilton (111.) 1916C- 21. 84. Excitability as Evidence of Incapa-, city. The fact that testator shed tears when conversing about his deceased daughter, or grew excited when talking about business affairs that were troubling him, does not in itself prove testamentary incapacity. Carnahan v. Hamilton (111.) 1916C-21. 85. Unequal Division as Indicating In- capacity. The unequal division of prop- erty among his heirs does not itself jus- tify a finding of want of testamentary capacity, as the testator has the right to dispose of his property as he thinks best. Carnahan v. Hamilton (111.) 1916C-21. 86. Disease. To sustain an allegation of want of testamentary capacity, something more than mere physical disease and old age on the part ot the testator must be shown. Carnahan v. Hamilton (111.) 1916C-21. 87. Mental Capacity Established. In a will contest, the evidence is held to be sufficient to warrant a jury finding that the testator had the mental capacity to make a will. Mason v. Bowen (Ark.) 1917D-713. 88. Lack of Capacity Established. The evidence on a will contest is held to sus- tain a finding of lack of mental capacity. In re Kawlings' Will (N. Car.) 1918A- 948. (4) Instructions. 89. Comprehension of Estate "Without Prompting." An instruction in a will case basing mental capacity on understanding the nature and extent of his property "without prompting" is erroneous, where there is no evidence that he was prompted. Carnahan v. Hamilton (111.) 1916C-21. 90. Injustice of Will. An instruction on, mental capacity of a testator that testator, if mentally unsound, did not have the right to cut off his grandchild with $100, was erroneous as assuming that only $100 was given, where there was evidence that she received personal property in addition to the money. Carnahan v. Hamilton (111.) 1916C-21. 91. An instruction on testamentary ca- pacity that if testator was of sound mind he had the right to cut off his grandchild, as only heir at law, and had the right to give his property to persons who would not have been heirs at law had he died without a will, but if he did not possess a sound mind or memory then he had no right to cut her off and give his property to persons not his heirs, is erroneous as having a tendency to permit the jury to decide whether the will was just or unjust as to the various relatives. Carnahan v. Hamilton (111.) 1916C-21. 92. Instruction not Warranted by Evi- dence. Where at the time a testator made a will there was no evidence that he was suffering from mental derange- ment, anger, or jealousy, an instruction based on those facts is erroneous. Car- nahan v. Hamilton (111.) 1916C-21. 93. Instructions as to Capacity. An in- struction that, if testator was of unsound mind when he executed the will, they should find that it was not his will, though they might believe that he could enter into conversation with some witnesses on the dav of making the will, is error. Bav- enscroft v. Stull (111.) 1918B-1130. 94. Use of Intoxicants by Testator. It is proper to instruct that the jury may consider the use of intoxicating liquors by testator for the purpose of determining 872 DIGEST. 1916C 1918B. whether he had mental capacity to make a will. Kavenscroft v. Stull (111.) 1918B- 1130. 95. Confidential Relations. In a will con- test, a requested instruction that confiden- tial relations between proponent and tes- tator, and the fact that she was substan- tially benefited by the will, did not change the burden of proof, is properly refused. Eavenscroft v. Stull (111.) 1918B-1130. 96. As to Burden of Proof. The jury being distinctly charged that the burden of proving lack of mental capacity of tes- tatrix was on caveators, and that they must satisfy the jury that testatrix did not have sufficient mental capacity, the concluding sentence, "If they have failed to so satisfy you, and the propounder has satisfied you that she did not have suffi- cient capacity, you will answer . . . "Yes" to the issue did she have sufficient mental capacity, cannot mislead the jury to under- stand that the burden of proving mental capacity is on the propounder. In re Baw- lings' Will (N. Car.) 1918A-948. 6. UNDUE INFLUENCE. 97. What Constitutes. The "undue in- fluence" which will avoid a will is that, directly connected with its execution, re- sulting from fear, coercion, or other cause, that deprives the testator of his free agency in the disposition of his property, and is especially directed toward procur- ing a will in favor of particular parties, and does not include the legitimate influ- ence from natural affection. Mason v. Bowen (Ark.) 1917D-713. 98. Circumstances Considered. Old age, bad health, and weakness of mind in tes- tator are to be considered upon the issue of undue influence. McDonald v. McLen- don (N. Car.) 1918A-1063. 99. Sufficiency of Evidence. In a will contest, the evidence is held to be suffi- cient to warrant a jury finding that the will was not procured by undue influence. Mason v. Bowen (Ark.) 1917D-713. 100. Evidence Insufficient. Evidence in a will contest held insufficient to raise an issue of undue influence. Coffey v. Miller (Ky.) 1916C-30. 101. Presumption. If the fact that the son of a blind testator, to whom he left property, had remained at home, looking after his father and managing the prop- erty, is sufficient to raise a presumption of undue influence, such presumption is one of fact only, merely entitling caveators to the will to have the question submitted to the jury, so that the court's refusal to charge that such presumption, if the facts necessary to establish it are found, is de- cisive of the issue, is proper. In re All- red's Will (N. Car.) 1916D-788. 7. MISTAKE. 102. Mistake of Fact. A "mistake of fact" such as under Ga. Civ. Code 1910, 3836, will nullify in part the operation of a will is a mistake arising from mere ignorance, and not one resulting from an error of judgment after investigation, or wilful failure to make a proper investiga- tion by means of which the truth could be readily and surely ascertained. Dibble v. Currier (Ga.) 1916C-1. 103. Allegations to the effect that the testatrix desired to have her male rela- tives maim or kill her former husband, and to have her female relatives urge them so to do, that because they refused to do so- she believed that she was disgraced in the eyes of the community by them, and that they did not sympathize with her but with her former husband, and were prompted thereby in refusing her request, and that this constituted a mistake of fact as to the conduct of the heirs at law, were subject to demurrer. Such allegations amounted only to alleging erroneous infer- ences or conclusions drawn by the testatrix from their refusal to comply with her il- legal request. Dibble v. Currier (Ga.) 1916C-1. (Annotated.) 8. REVOCATION, a. In General. 104. Common-law Rules. As the stat- utes afford no rule for determining by what "act and operation of law" a will of real estate may be revoked, the rules of the common law must be applied. Herzog v. Trust Co. (Fla.) 1917A-201. b. Subsequent Will or Writing. 105. Subsequent Invalid WilL Under the HI. statute of Wills (Kurd's Kev. St. 1913, c. 148, 17) providing that no will shall be revoked otherwise than by destroying it, or by other will, -testament or codicil in writing declaring the same, signed by tes- tator in the presence of two or more wit- nesses, and attested by them in his pres- ence, a former will and codicil are not revoked by an instrument intended as a subsequent will which expressly revoked them, but was invalid because of tk? in- competency of one of the subscribing wit- nesses. Moore v. Eowlett (111.) 1916E- 718. c. Subsequent Marriage. 106. Effect of Marriage. At common law marriage alone did not cause a revocation by operation of law of a prenuptial will of a man; the wife having her dower rights, notwithstanding the will. Herzog v. Trust Co. (Fla.) 1917A-201. (Annotated.) 107. Effect of Marriage. As a widow is liberally provided for by her statutory WILLS. 873 rights in her husband's estate, which she may have notwithstanding the execution of a will by her husband, whether executed be- fore or after the marriage, there is no good reason for a judicial change of the com- mon-law rule that marriage alone docs not cause a revocation of a man's will, when the rule has not been changed by statute. Herzog v. Trust Co. (Fla.) 1917A-201. (Annotated.) 108. Bern. & Bal. Wash. Code, 1323, pro- viding that if, after making any will, the testator shall marry and the wife shall be living at the death of the testator, such will shall be deemed revoked, applies to a will made by a married woman, and re- vokes such will upon her subsequent remar- riage. In re Van Guelpen's Estate (Wash.) 1917C-1037. (Annotated.) 110. Under Cal. Civ. Code, 1299, pro- viding that if, after making a will, the testator marries and the wife survives him, the will is revoked, unless provi- sion has been made for her by marriage contract or by the will, or she is men- tioned in such way therein as to show an intention not to make such provision, an antenuptial will standing alone con- taining no provision for, nor mention of, testator's wife, is revoked by his mar- riage and death leaving her surviving him. Estate of Cutting (Cal.) 1917D- 1171. Notes. Eevocation of will of woman by subse- quent marriage. 1917C-1039. Effect on will of marriage of testator without issue. 1917A-203. d. Eevival. 111. An instrument "hereby affirming my will,*' except as herein modified, and declaring the following to be a codicil to testator's last will, followed by the provisions modifying the will, repub- lishes the will, though it was an ante- nuptial will making no provision for tes- tator's wife, and he died leaving his wife surviving. Estate of Cutting (Cal.) 1917D-1171. (Annotated.) 112. By Codicil. Under Cal. Civ. Code, 1287, providing that the execution of a codicil referring to a previous will re- publishes the will as modified by the codicil, an antenuptial will may be re- published by the execution of a codicil, notwithstanding section 1299, providing that an antenuptial will making no men- tion of testator's wife is revoked by his marriage and death leaving her surviv- ing, and that no other evidence to rebut the presumption of revocation must be received. Estate of Cutting (Cal.) 1917D-1171. (Annotated.) 113. Destruction of Revoking Will. The destruction by the testator of a will whereby the former will was revoked operates to revive the former will. Moore v. Eowlett (111.) 1916E-718. (Annotated.) Note. Eevival of will revoked by marriage. 1917D-1175. 9. PEOBATE. a. Jurisdiction and Nature of Proceed- ings. 114. Jurisdiction. The city court of Mattoon has jurisdiction of a will con- test by bill in chancery, such suit being of the same nature as the common-law right to a contest. Eavenscroft v. Stull (111.) 1918B-1130. 115. Statute Authorizing Contest Strict Construction. The right of action to contest a will, being purely statutory, is in derogation of common law, and sub- ject to the rule that its provisions must be strictly construed. Braeuel v. Eeu- ther (Mo.) 1918B-533. 116. Cancellation During Life of Tes- tator. An action will not lie during the lifetime of testator to compel the surren- der and cancellation of a will in the cus- tody and control of defendant, on the ground that testator does not possess tes- tamentary capacity. Pond v. Faust (Wash.) 1918A-736. (Annotated.) 117. Probate and Contest Jurisdiction Exclusiveness of Statute. No court has jurisdiction of any kind over wills, ex- cept as provided by Eem. & Bal. Wash. Code, 1289, 1293, 1294, 1297, 1307- 1311, touching the production of wills for probate and their contest, which are com- prehensive and exclusive. Pond v. Faust (Wash.) 1918A-736. 118. Conclusiveness of Probate. The probate of the will in solemn form is con- clusive of its validity. In an action against the devisee, to impress a trust upon the property devised, because of the testator's violation of his contract to de- vise the property to the plaintiff, it is irrelevant to inquire into the testa- mentary capacity of the testator, or any undue influence alleged to have been ex- erted by the devisee in procuring the execution of the will, and under the facts of the case an instruction on these sub- jects is prejudicial error requiring a new trial. Gordon v. Spellman (Ga.) 1918A- 852. 119. Requisites of Jurisdiction Notic to Nonresidents. Both under N. Y. Code 874 DIGEST. 1916C 1918B. Civ. Proc. 2629 et seq., authorizing issu- ance of ancillary letters upon foreign pro- bate of a will, and under general rules of law, a proceeding in another state for the probate of a will is in rem, and, if the court otherwise has jurisdiction, it may make a decree binding on nonresi- dents, though no notice is required or given on the original probate and the pro- bate becomes conclusive in the absence of contest within a given period. Matter of Horton (N. Y.) 1918A-611. (Annotated.) 120. Effect in Other Jurisdictions. The decision by the court of Another state in probate proceedings that the domicil of the testator at his death was in that state is not conclusive upon persons in New York who were not parties to the pro- ceeding, and may be contested in the New York courts. Matter of Horton (N. Y.) 1918A-611. Note. Conclusiveness in domestic courts of foreign will duly probated abroad. 191-8A-614. Bight to annul or establish will before death of testator. 1918A-738. b. Abatement of Contest. 121. Death of Contestant. If a will contest is no different from an ordinary civil proceeding, it will survive and may be revived under Mo. Bev. St. 1909, 1916-1925, in the name of the successor to the parties plaintiff, in view of section 1916, providing that no action shall abate by the death, marriage, or other disabil- ity of a party if the cause of action sur- vives. Braeuel v. Beuther (Mo.) 191SB- 533. c. Parties. 122. Who may Contest Legatee. Un- der Code Ala. 1907, 6196, giving the right to contest a will to any person in- terested therein, or who, if the testator had died intestate, would have been an heir or distributee of his estate, and sec- tion 6207 giving the right to contest a will by a bill in chancery to any person interested in any will who has not con- tested it under the provisions of section 6196, the right to contest is given only to one who has some direct legal or equi- table interest in decedent's estate, which will be injuriously affected by the estab- lishment of the will, and legatees, who are children of a living heir of testator, are not entitled to contest. Braasch v. Worthington (Ala.) 1917C-903. (Annotated.) 123. Persons Entitled to Contest Inter- est. A will contest as authorized by an interested person under Mo. Bev. St. 1909, 555, can be brought only by one having a direct pecuniary interest in the final de- termination. Braeuel v. Beuther (Mo.) 1918B-533. 124. Joinder of Complainants Without Interest Dismissal for Misj cinder. Where some complainants in a bill to contest the will and to remove the estate into chan- cery for administration had no interest in the will, except as legatees, and were there- fore not entitled to contest, and the court had already, on another petition, assumed jurisdiction over the administration of the estate, it is proper to sustain a demurrer as to the entire bill for misjoinder of par- ties complainant. Braasch v. Worthington (Ala.) 1917C-903. 125. Parties. The executors of a widow, to whom a testator had devised his prop- erty in fee by a will previously probated, are interested in an application for the pro- bate of an alleged subsequent will which gave the widow only a life estate and are proper parties to the probate proceedings, though not heirs of the husband or legatees under the will offered for probate. Conzet v. Hibben (111.) 1918A-1197. Note. Bight of person who is merely legatee or devisee to contest will. 1917C 905. d. Pleadings and Issues. 126. Monomania. A caveat to the pro- pounding of a will alleged that the testa- trix made an unfortunate marriage; that her husband deserted her, and she obtained a divorce from him; that she brooded so much over the unhappy events and out- come of the marriage that her mind be- came unbalanced and incapable of ratioci- nation with reference to it and events asso- ciated with it or arising from it; that, under an insane delusion with reference to the relationship and the continuation of the affection between herself and her heirs at law, she sought to have her former hus- band killed or maimed by thorn, and, be- cause of their refusal to comply with such request, she became imbued with the hal- lucination that they were not of her blood or family, were not related to her, and were not entitled to her affection and treatment as kinsmen; that she became possessed of an insane delusion that she was disgraced in the eyes of the com- munity by her relatives, because they would not maim or kill her former hus- band; that she was mistaken as to their condemning her or not sympathizing with her, and in believing that they did not con- demn her former husband; that they as- sured her of that fact, but she was pos- sessed of the insane hallucination that WILLS. 875 nothing short of the maiming of her former husband would relieve her of the supposed contempt in which she thought she was held because of her unfortunate marital experience and because her heirs at law re- fused to comply with her request; and that, because her heirs at law refused to violate the law at her demand, under the influence of said insane delusion, she conceived and maintained a wholly insane and mistaken idea as to their conduct in the matter and as to their relations and feelings toward her; and that this delusion existed prior to and at the time of the making of the will and caused her to make it, leaving a large part of her property to different charities, instead of to next of kin. It is held that such allegations sufficiently averred mono- mania to withstand a demurrer. Dibble v. Currier (Ga.) 1916C-1. (Annotated.) 127. Manner of Determination Scope of Proof. The article of the La. Civ. Code (1655) applies to the probate of a testa- ment which is not opposed. But a differ- ent rule obtains when the probate of the testament is opposed ab initio on the ground that it is a fraud and a forgery. In such a case the denial of the genuine- ness of the testament removes the contest from the domain of article 1655 of the Code, and it presents an issue which must be determined under the rules which gov- ern all contests involving the genuineness of a signature which is denied. Under such an issue the doors of justice are opened wide for the introduction of any legal evidence in accordance with all the forms which prevail in all contested facts or cases. The textual provisions of Civ. Code, art. 2245, and Code Prac. art. 325, recognize the mode of testing signatures by a comparison of writing or by experts. Succession of Lefort (La.) 1917E-769. 328. Permitting Unnecessary Plea Harmless Error. Error, if any, in sustain- ing a so-called plea by such executors set- ting up the probate of the former will was not prejudicial to the proponents of the latter will, since the record of the former probate could have been called to the court's attention without a plea. Conzet v. Hibben (111.) 191SA-1197. e. Evidence. 129. Where two wills containing incon- sistent dispositions bear the same date, evidence is admissible to show which was executed last. Peace v. Edwards (X. Car.) 19JSA-778. (Annotated.) f. Hearing and Order of Proof. 130. Sufficiency of Ruling on Offer of Will. In a will contest case, where, after the will is received in evidence and for- mally offered for probate, the court sub- mits the contest to the jury and enters an order reciting that the instrument offered for probate is rejected as not being the last will and testament of deceased, pro- ponents cannot complain that the court never passed on their offer of the instru- ment for probate. In re Williams' Estate (Mont.) 1917E-126. 131. Necessity of Leave of Court for De- viation. In a will contest, the privilege to recall a witness to offer testimony at the close of the rebuttal evidence of the pro- pounders cannot be exercised by the cave- ators without the consent of the trial court. McDonald v. McLendon (N. Car.) 1918A- 1063. g. Findings. 132. Consistency of Findings. In a will contest, where the jury returned special findings, there is no" inconsistency between findings that testatrix was not of sound and disposing mind; that she did not sub- scribe the instrument as her last will and testament; that she did not publish it; that she did not request witnesses to sign as such; and that she was acting under undue influence, there being no inconsistency be- tween a finding of undue influence and want of testamentary capacity. In re Williams' Estate (Moat.) 1917E-126. h. Appeal. 133. Harmless Error Evidence as to Fact Conclusively Shown. It was error to permit a legatee under the will to testify to statements made by the testator at the time he executed the will, but the validity of the will was conclusively established outside such testimony, and the error was without prejudice. Madson v. Christenson (Minn.) 1916D-1101. 134. Marriage to Insane Person. That a witness on the issue of testatrix's mental capacity was allowed to testify that she married one who had previously been two or three years in an insane asylum is harm- less, being at most immaterial. In re Kawlings' Will (N. Car.) 1918A-948. 135. Appeal to District Court Parties. Upon appeal to the district court from an order or judgment of the county -court ad- mitting a will to probate, the only neces- sary parties are the executor, or adminis- trator with the will annexed, who was the petitioner or proponent of the will, and the contestants, * who opposed its admission; and, they being parties, the judgment of the district court admitting or refusing to admit a will to probate has the same effect as if all persons interested in the establish- ment of the will were made formal parties to the proceedings; and while such judg- ment remains in force, subject only to re- versal by this court and the statutory rem- edy of contesting the will after probate, it is conclusive upon the world. Bell v. Davig (Okla.) 1917C-1075. 876 DIGEST. 1916(3 1918B. 136. Hearing of Contest Receiving Evi- dence Out of Order. In a will contest, whether the judge shall allow a witness for the caveators, whose testimony had been successfully objected to, to be recalled at close of the rebuttal evidence of the pro- pounders, one of whom waived all objec- tion to the evidence, is entirely within the court's discretion, which, when exer- cised without any gross abuse, the supreme court will not review. McDonald v. Mc- Lendon (N. Car.) 1918A-1063. 137. Argument of Counsel Cure by In- struction. Such error is not cured by in- struction that for an attorney to testify was a reprehensible practice, and the jury should not indulge in presumption against the validity of the will. Eavenscroft v. Stull (111.) 1918B-1130. Note. Power of executor or administrator with will annexed to appeal from judgment re- fusing probate. 1917C-1079. i. Costs. 138. Where a will was procured by fraud and undue influence, and the executrix who propounded it for probate was the chief beneficiary, and was responsible for the fraud, she is not entitled to costs on the theory that she propounded the will in good faith. Smith v. Haire (Tenn.) 1916D-529. 139. An executor who in good faith pro- pounds a will for probate is entitled to his costs and attorney's fees whether the will is set aside or not. Smith v. Haire (Tenn.) 1916D-529. j. Effect of Death of Contestant. 140. A proceeding to contest a will is peculiar, in that, when filed, the pro- ponents have the burden of proving affirm- ative facts essential to validity of the will, and therefore, after the contest is filed, the court will determine the validity of the will, and no reviver is necessary if the contestants die. Braeuel v. Keuther (Mo.) 1918B-533. k. Probate of Later "Will After Former Probate. 141. Necessity of Revoking Probate of Former Will. Where a will hks been ad- mitted to probate by consent of all inter- ested parties, an application by some of them for the probate of an alleged subse- quent will revoking the former will should be joined with an application to set aside the probate of the former will so that the questions of estoppel and fraud can be determined as well as the execution of a subsequent will, and where no appli- cation is made to set aside the probate of the former will the admission of the sub- sequent will to probate is properly denied. Conzet v. Hibben (111.) 1918A-1197. 142. Estoppel to Seek Probate. Parties to the proceedings for the probate of a will who consented to the probate are es- topped to ask for the probate of a later, will, unless their consent was procured by mistake or fraud. Conzet v. Hibben (111.) 1918A-1197. (Annotated.) 143. In proceedings to probate a subse- quent will after the former one had been probated by consent of all parties, proof that the consent of the parties to such property was given by mistake or through fraud is competent either in the probate court or in the circuit court on appeal. Conzet v. Hibben (III.) 1918A-1197. (Annotated.) 144. In proceedings to probate a subse- quent will the burden is on parties who consented to the former will to prove that their consent was obtained by mistake or through fraud. Conzet v. Hibben (111.) 1918A-1197. (Annotated.) Note. Estoppel to seek probate of will. 1918A- 1200. 10. CONSTRUCTION. a. General Rules of Construction. (1) Intention of Testator. 145. The cardinal rule in the construc- tion of wills is to ascertain the intent of the testator from the language used. Smith v. Chester (111.) 1917A-925. 146. The intent of the testator must be sought by a construction of the entire will. Porter v. Union Trust Co. (Ind.) 1917D- 427. 147. Testator's Intent to be Effectuated. In construing a will, the court should aim to give effect to the testator's intent, up- holding, if possible, each item of the in- strument. Lewis v. Reed's Executor (Ky.) 1917D-1155. 148. A will must be construed not by the intention which existed in testator's mind, but according to that which is ex- pressed in the will. Faison v. Middleton (N. Car.) 1917E-72. 149. A will must receive the most favor- able construction to accomplish the result intended by the testator. Chew v. Shel- don (N. Y.) 1916D-126S. 150. Where the intention of the testator can be gathered from his will, it will al- ways be carried into effect, unless to do so would violate some rule of law. Sherlock v. Thompson (Iowa) 1917A-1216. 151. The intent of the testator is the cardinal rule in the construction of wills, and if that intent can be clearly per- ceived, and ia not contrary to some posi- WILLS. 877 tive rule of law, it must prevail. Hoi den v. Circleville Light, etc. Co. (Fed.) 1916I>- 443. (2) Giving Meaning to All Parts. 152. Effectuating All Provisions. Effect should be given, if possible, to every pro- vision of a will. Porter v. Union Trust Co. (Ind.) 1917D-427. 153. Under Cal. Civ. Code, 1321, pro- viding that all the parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole, an instrument executed by a testa- tor affirming his will, except as therein modified, and. declaring the following to be a codicil, followed by the provisions modi- fying the will, but not again referring to the will, is sufficient as a republication of the antenuptial will, notwithstanding the designation in the instrument of the latter part thereof as a codicil. Estate of Cut- ting (Cal.) 1917D-1171. (Annotated.) 154. Effectuating All Words. Words in r\ will are not to be treated as a nullity, but are to be construed if possible in a way to give them effect. In re Irish's Will (Vt.) 1917C-1159. 155. Intent Gathered from Entire Will. The court in construing a will must ascer- tain the intention of testator as gathered from his entire will, and give effect to it, when not in conflict with recognized rules of law. Heiseman v. Lowenstein (Ark.) 191GC-601. (3) Meaning of Words. 156. Fair Import of Language. In con- struing a will, the language thereof gov- erns unless there are clear indications of a contrary meaning to be found in the will considered as a whole, and the court may not speculate as to testator's intent, and can only interpet a will fairly and accord- ing to established rules of law, and with- out supplying omissions by reading into the will something that testator did not insert. Ham v. Ham (N. Car.) 1917C-301. 157. Words Construed in Ordinary Sense. The words of a will are to be taken in the ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected. Matter of Estate of Tooley (Cal.) 1917B-516. (4) Inconsistent Provisions. 158. Repugnancy Effect. Where two clauses are equally specific and clearly repugnant, the latter controls, though, when the effect of the latter gift is merely to enlarge the former, there is no repug- nancy. Porter v. Union Trust Co. (Ind.) 1917D-427. 159. All Provisions to be Harmonized. The courts will, if possible, harmonize pro- visions of a will, and only if inconsistent will the latter prevail over former pro- visions. Lewis v. Eeed's Executor (Ky.) 1917D-1155. (5) Avoiding Partial Intestacy. 160. A will should be construed so as to avoid partial intestacy. Porter v. Union Trust Co. (Ind.) 1917D-427. (6) Construction to Sustain Will. 161. Construction in Favor of Validity. Tf one construction of a will will make a bequest illegal as a perpetuity, while an- other will render it valid, the latter will be accepted, if both constructions are permis- sible. Allen v. Almy (Conn.) 1917B-112. 162. Construction in Favor of Vesting of Estate. The law favors a testamentary construction which vests the estate. Allen v. Almy (Conn.) 1917B-112. 163. Disinheritance not Favored. An heir will not be excluded or disinherited, except by express words or necessary im- plication and if the will is doubtful, that construction favorable to the heir will be adopted. Lewis v. Eeed's Executor (Ky.) 1917D-1155. 164. Avoiding Conflicts. In construing & will, conflicts should be reconciled, and that construction which will give effect to all provisions should be preferred. Porter v. Union Trust Co. (Ind.) 1917D-427. (7) Error Cured by Other Eecitals. 165. Effect of Error in EecitaL The mere fact that testator described a mort- gage as of the face value of $2,500 when he never owned one of that value, but did own one of $2,200, is unimportant if the mortgage is otherwise identified. McDer- mott v. Scully (Conn.) 1917E-407. 166. Where a will provided "I give to R. M. $5, having heretofore deeded to her my house, and a mortgage of $2,500," when the testator in fact had not given the mortgage to the beneficiary and even when he owned a similar mortgage, the will nevertheless provides for a nominal be- quest and does not devise the mortgage owned. McDermott v. Scully (Conn.) 1917E-407. (8) Later and Earlier Wills. 167. Construction Together of Two Wills. When a posterior testament does not ex- pressly revoke a prior one, both must be executed, unless the last will tacitly re- vokes the first as a whole. When they conflict only in part, the provisions of the last will must prevail. Succession of Le- fort (La.) 1917E-769. (Annotated.) 168. Several Undated Wills Admission of One to Probate. Where four paper writings, found folded together among the papers of the deceased, each executed as 878 DIGEST. 1916C 1918B. required by statute, and each a valid ex- ercise of testamentary capacity, are not harmonious, so as to be upheld as one will, but are inconsistent and mutually destruc- tive, and three of them are undated and there is no evidence to show which was the latest expression of his intent, neither can stand. Peace v. Edwards (N. Car.) 1918A-778. (Annotated.) Notes. Construction together as one will of sev- eral testamentary instruments partiallv in- consistent. 1917E-781. Admission to probate of several wills which are of same date or of which one or more are undated. 1918A-780. (9) Codicils. 169. An antenuptial will, as modified by a postnuptial codicil, stands as if it were but one testamentary intention expressed in a single will made after marriage as of the date of the codicil. Estate of Cutting (Cal.) 1917D-1171. (Annotated.) 170. A provision in a codicil directing the executors to provide for testator's wife from the remainder of his estate an annual income of $3,000, payable monthly, in ac- cordance with an antenuptial, contract whereby he promised to cause her to be paid $250 per month if they married and she survived him, is a testamentary dis- position of property, and not merely a direction to pay a debt under an ante- nuptial agreement, and accordingly the codicil is sufficient to republish a will pre- viously revoked by the testator's marriage. Estate of Cutting (Cal.) 1917D-1171. (Annotated.) (10) Enumeration Following General Words. 171. This, however, is only a rule of pre- sumption and must yield to the testator's intent as gathered from the whole instru- ment, but where the presumption is fa- vored and supported by the evident inten- tion of the testator as developed from a consideration of all the parts of the in- strument, then such rule of presumption should be applied to the matter in ques- tion. Creamer v. Harris (Ohio) 1916C- 1137. (Annotated.) 172. Bequest of Property and "Contents" Thereof. .In the construction of wills a presumption prevails, especially in items not residuary, that where a bequest of certain property and its "contents" is coupled with an enumeration of things, the word "contents" shall cover only things ejusdem generis. Creamer v. Har- ris (Ohio) 1916C-1137. (Annotated.) 173. Persons Taking Under Bequest. The sixth clause qf a will recited that the residue of the testator's estate should be held by his executors in trust for the bene- fit of all his nieces and nephews herein- after named, paying to each, who should survive the testator for fifteen years, equal instalments of the income, and that at the end of such period the property should be sold and divided among the nieces and nephews and their children. The clause further recited that it was the testator's intention that all his nieces and nephews and their children should take an equal portion of the estate. The enumeration of the nieces and nephews omitted the name of plaintiff's mother, a niece who died before the testator. It is held that, notwithstanding the use of the expression "all," the enumeration of the nieces and nephews showed the intent on the part of the testator that only those enumerated should take; consequently plaintiff was not entitled to take on the theory that the name of her mother was omitted through mistake, the testator intending to put his nieces and nephews and their descendants on equal footing, such a conclusion being strengthened by the declaration, in a sub- sequent clause of the will, that no advance- ments should be charged against the in- terests of any of the beneficiaries. Lewis v. Reed's Executor (Ky.) 1917D-1155. (11) Supplying Omitted Word. 174. Testator devised real estate to his sons, to be equally divided between them, but should either die before attaining full age or without children, his share should go to the others that were living, and devised other real estate to them, and should either die before attaining full age "or leaving children surviving him," his share should be taken equally between those that were living. It is held that the word "without" was clearly omitted in the quoted phrase, and the court must con- strue the-will as if the word was inserted, and, so construed, the will showed that the children of any son should take by descent from their father, and not as purchasers under the will. Ham v. Ham (N. Car.) 1917C-301. (12) General Words Controlled by Special. 175. Specific language generally controls that of a general nature. Porter v. Union Trust Co. (Ind.) 1917D-427. (13) Evidence in Aid of Construction. 177. Proof of Error in Eecital in Will. Evidence that testator had already deeded land to one beneficiary as recited in the will, but that he had never deeded a mort- gage, as recited, to the beneficiary, is ad- missible to determine the quantity of in- terest intended to be conveyed. McDer- mott v. Scully (Conn.) 1917E-407. 178. Relation Between Testator and Ben- eficiary. The scrivener may be asked what were the relations between the tes- WILLS. 879 tator and beneficiary at the time of exe- cuting the will if tending to prove a con- dition, a fact always admissible when rele- vant and material and when the intent of the testator is doubtful. McDermott v. Scully (Conn.) 1917E-407. 179. Testator's Instructions to Scrivener. Where testator through mistake described one mortgage, intending to describe a totally dissimilar mortgage, there was no equivocation, and evidence of his instruc- tions to the scrivener is inadmissible. Mc- Dermott v. Scully (Conn.) 1917E-407. (Annotated.) 180. It cannot be shown that the testa- tor directed the scrivener to write the will in a form or with a meaning different from what the will appears, unless there is a latent ambiguity or equivocation as to the person or subject meant to be described, or unless the evidence is offered to rebut a resulting trust. McDermott v. Scully (Conn.) 1917E-407. (Annotated.) 181. Testator's declarations of intention or of the meaning of words used by scriv- ener are not admissible except in cases of equivocation or latent ambiguity, and then only as explanatory of or connected with the language used. McDermott v. Scully (Conn.) 1917E-407. (Annotated.) 182. Parol Evidence to Identify Lega- tee. Where a testatrix made a bequest to her niece by name, of a certain place, and it appeared that she had a grandniece of that name living at that place and also a niece whose maiden name was similar and who lived near by, there is a latent ambiguity in the will, and parol evidence is admissible to establish the identity of the legatee. Baumann v. Steingester (N. Y.) 1916C-1071. b. Construction of Particular Words. (1) "Heirs" or "Heirs at Law," or "Law- ful Heirs." 183. Construction of Term "Heirs." In the absence of a contrary meaning shown by a will, the words "heirs" will be taken to be used in its primary meaning as des- ignating those who, in the absence of a will, are entitled by law to inherit a dece- dent's realty. Allen v. Almy (Conn.) 1817B-112. 184. A gift of personalty to "heirs," whether to one's own heirs or to the heirs of another, is a gift to those who would be entitled to take under the statute of distribution, and in the same manner, and in the same proportions, as though the property had come to them as intestate estate, in the absence of any words in the will, showing that the word "heirs" is used in a different sense, and the use of the word "lawful" before the words "heirs" makes no difference in legal effect. In re Irish's Will (Vt.) 1917C-1154. (Annotated.) 185. Estate Created Executory Devise. Under a will giving a sum in trust to pay the income to testator's daughter, and at her death to pay over and deliver the same to her issue, but, if she died with- out surviving issue, then to testator's "heirs at law exclusive of my said daugh- ter," the heirs take a vested interest by way of executory devise defeasible in the contingency of issue named; the limitation . over haying a double aspect, and vesting alternative remainders with conditions subsequent. Allen v. Almy (Conn ) 1917B- 112. 186. A will, after devising the property in trust for the life use of testator's widow- in a third thereo'f, directed that the prop- erty be divided into certain equal parts, and gave three of such parts to trustees to hold the same and pay the income to testator's daughter during her life, "and at her decease to pay over and deliver the same to her issue; but in case of her death leaving no issue surviving her, then to my heirs at law, exclusive of my said daughter." Held, that the words "heirs at law" in the quoted part referred to those who were testator's heirs at his death, viz., his five children. Allen v. Almy (Conn.) 1917B-112. 187. Time as of Which Heirship is De- termined. Where a testamentary limita- tion over is to the heirs of testator, that class is determined as of testator's death, in the absence of an intention to the con- trary shown by the will. Allen v. Almy (Conn.) 1917B-112. 188. Persons Entitled to Take "Lawful Heirs." A testator gave property in trust for his mother during her lifetime, and provided that at her death the balance of the trust fund remaining should be paid one-half to a granddaughter, and one-half to "my lawful heirs." When the will was executed, he was confined to his bed with the sickness which caused his death twenty-five days later. He left no widow, and the grandchild was his only descend- ant. The grandchild's father was living, and was her only heir. The will also gave property in trust for the granddaughter, and provided that if she died before reach- ing the age of forty years, and left no issue or children of issue, the trust fund should be paid one-half to the lawful heirs of the grandchild, and the other one- half to "my lawful heirs," and the residu- ary clause gave the remaining estate in trust for the granddaughter during her lifetime with a similar provision as to its disposition after her death. It is held that as under the eleventh and residuary clauses, the gitt over was contingent on the death of the granddaughter, the words "my lawful heirs" meant those who by the laws of distribution would in such con- tingency be the testator's heirs, and under the rule that words occurring more than once in a will should be presumed to be 880 DIGEST. 1916C 1918B. used always in the same sense, unless a contrary intention appear by the context, or unless the words be applied to a difer- ent subject, such words had the same meaning in tie twelfth clause, and there- under those who would have been the tes- tator's heirs had he left no issue were enti- tled to one-half of the trust fund. In re Irish's Will (Vt.) 1917C-1154. (Annotated.) 189. A will gave property upon the trust that the fund and the income and interest arising thereon should be used as required for the support of the testator's mother during her life, and to defray her funeral expenses. At her death, the testator gave one-half of so much of the fund as should be remaining to his lawful heirs. It is held that as the principal of the trust as well as the income and interest was to be used as required for the support of the mother, and it was only so much as re- mained that was given to the heirs, futurity was annexed to the substance of the gift, the vesting was suspended until the time when the bequest would take effect, and the bequest was only in favor of those within the description of la>wful heirs at that time. In re Irish's Will (Vt.) 1917C- 1154. (Annotated.) 190. "Heirs." Where testator devised to plaintiff, his son, the use of an undivided half interest in certain land during the life of J., subject to an annuity charge in favor of J., and on J.'s death conferred on plaintiff the right to purchase such half interest for a specified sum, the money or land on J.'s death to vest in the heirs of his body, or, if none, then in testator's heirs at law, the term "heirs at law" in- cludes all others who after their ancestor's death were entitled to inherit all lands, tenements, and hereditaments belonging to him or of which he was seized, and hence plaintiff is entitled to share in the dis- tribution of the purchase price of such in- terest on his election to purchase on J.'s .death without heirs of his body. Tevis v. Tevis (Mo.) 1917A-865. 191. "Heirs" as Including Widow. Tes- tator bequeathed his residuary estate to his executors in trust for his widow and sons during the widow's life, and, in case e the death of the sons before their mother, for the benefit of their children or widows, and, if they died leaving neither issue nor widows, the entire resi- due was given for the use of the widow for life. The will gave testator's wife a power of appointment, and provided that, if such power be not exercised, "I ... bequeath the entire reversion to my law- ful heirs and distributees as provided by the intestate laws." A codicil revoked the power of appointment, except as to $30.000, and provided: "And as to the . . . remain- der of my estate and as to the whole of it. in case my wife makes no such appoint- ment, I ... bequeath the same to my executors and trustees and the survivor and heirs of the survivor of them, as named in my will, in trust, to distribute the same in ease my sons are both dead, leaving at the time of the death of my wife no lawful issue surviving to my own right heirs and distributees as provided by the intestate laws. ..." The will pro- vided that the gifts of income to testa- tor's (wife should be "in lieu and satisfac- tion of dower and her interest in my estate j;s if under the intestate laws of Penn- sylvania." The sons died prior to their mother, leaving no lawful issue surviving them. Held, that the "right heirs and distributees" of testator were to be ascer- tained as of the date of his death, and not ss of the date of the death of the widow, that the widow was excluded from the class by necessary implication from the language of the will, and that the residue should be awarded to the estates of the two sons to the exclusion of collateral heirs. Tatham's Estate (Pa.) 1917A-855. Note. Meaning of term "lawful heirs" as used in will. 1917C-1156. (2) Other Words. 192. Construction of "Desire." CaJ. Civ. Code, 1322. provides that a distinct de- vise or bequest cannot be affected by any reasons assigned therefor, or by any other words not equally clear, or by inference from other parts of the will, or by an in- accurate recital of, or reference to, its contents in another part of the will. A will provided: "I give all my property at my death to my daughter Logan Mattie Tooley. If at her death she has neither husband or children I desire any property that may be left divided equally among my sisters and brother." It is held that the word "desire" indicated the wish of testatrix regarding the disposition of the property, and was a dispositive and tes- tamentary provision, binding upon the court in the distribution of the estate, so that, where the daughter survived the tes- tatrix and died unmarried, the property was to be distributed to the brother and sisters of the testatrix. Matter of Estate of Tooley (Cal.) 1917B-516. (Annotated.) 193. Such provision is a command suffi- cient to effect a testamentary disposition of the property, and not an expression of n wish or preference directed to the daughter, so that there is no precatory trust reposed in her. Matter of Estate of Tooley (Cal.) 1917B-516. (Annotated.) 194. In the will of one who died and left surviving him a wife, one son. and six daughters, he devised a life estate to his wife and added that after her death "I will and desire that the said property shall revert to my beloved son Artie Atkin- son provided that in such event he shall WILLS. 881 pay to each of his sisters, Annie Hendrick- son, Nancy Hooks, Ida Mastellar, Sarah Jackson, Lydia Wilson and Daisy Teach, the sum of two hundred dollars ($200.00). Said two hundred dollars to be paid, in yearly payments of sixty-six and two- thirds dollars ($66%) to each sister as above enumerated. The first payment to be made on the first day of September, following the first day of April after the death of my wife, Ellen Atkinson." In a proceeding to determine the ownership of the property and to partition the same it is held that the fee of the land vested in the son upon the death of the testator but that the enjoyment of possession is postponed until the life estate is termin- ated, and that the son takes the fee charged with the payment of the legacies given to the daughters of the testator, and that any one who succeeds to the estate and interest of the son prior to the com- pletion of the payments takes the land subject to such charges. Mastellar v. Atkinson (Kan.) 1917B-502. (Annotated.) 195. As used in a will expressing a will and desire to make certain disposition of property, the word "will" is mandatory, comprehensive, and dispositive in nature, and is broad enough to dispose of both real and personal property, and is as effective as the expression "devise and be- queath," and the word "desire," though frequently used as a precatory term, must be construed, in view of its use in con- nection with the word "will," as mandatory rather than as advisory, where it is evi- dent that testator undertook to dispose of his entire estate. Mastellar v. Atkinson (Kan.) 1917B-502. (Annotated.) 196. Construction of "Revert" in Will. In a loose way the term "revert to" is sometimes used in a will as the equivalent of "go to," and, where the language of a will so indicates, it will be construed as used to designate the person to whom the testator wished the land to be given. Mas- tellar v. Atkinson (Kan.) 1917B-502. 197. Persons Entitled to Gift Taking by Representation Construction of Ex- press Provision. Testator devised real es- tate to his four sons, to be equally divided between them, but should either die before arriving at full age or without children surviving him, "then his or their share" should "go to the others that are living, but not to any of my other children." He devised other real estate to the same sons, and provided that should either die before arriving at full age "or [without] leaving children surviving him . . . his or their share" should be taken and divided equally between those that were living. He made ample provision for his other children. It is held that the word "others" referred to the sons, while the word "other" re- ferred to the other children of testator; and where all the sons attained full age, each acquired an absolute share which did 56 not pass to the children of a deceased son on the death of other sons without issue. Ham v. Ham (N. Car.) 1917C-301. 198. "Or" Construed as "And." Testa- tor devised described real estate to his four sons, to be equally divided between them, but should either die before attain- ing full age, "or without children surviving him," his or their share should go to the others that were living, but not to any of his other children, and devised other real estate to the four sons, and should either die before attaining full age, "or [without] leaving children" surviving, his or their share should be divided equally between those that were living. It is held that the word "or" must be construed as "and," and hence the share of each son be- came absolute on attaining full age. Ham v. Ham (N. Car.) 1917C-301. (Annotated.) 199. "Children" as Including Posthumous Child. Deceased devised land to his wife, with directions tlhat if she should leave the land or remarry, it should be rented out for the benefit of his "children," and, on their coming of age, equally divided be- tween them. At deceased's death, he had two children; a posthumous child being born thereafter. Held, that the posthu- mous child took by virtue of the will, being in esse and included in the expression "children," and hence was not entitled to claim as a pretermitted child, under Ky. St. 4848. Lamar v. Crosby (Ky.) 1916E- 1033. (Annotated.) 200. "Bric-a-brac" and "Pictures." A bequest of all the testator's silver, bric- a-brac, and pictures does not necessarily include such articles as tapestries; for they cannot be classed either as bric-a-bra or pictures. Matter of Kellogg (N. Y.) 1916D-1298. Notes. Meaning of "contents" or similar ex- pression as used in will in connection with property bequeathed or devised. 1916C- 1139. Construction of "and" as "or." and vice versa, in construing will. 1917C-306. "Father" as including stepfather. 1917B-1118. Meaning of "desire" as used in will. 1917B-503. c. Construction of Particular Provisions. (1) Residuary Clause. 201. Residuary Clause Lapsed or Void Legacies. A residuary clause of genoral terms ordinarily covers lapsed or invalid legacies, unless the testator's intent ap- pears otherwise. Where a testator clearly showed his in- tention that his relatives should receive none of his bounty, and he mentioned only one of them, giviug him family heirlooms, a devise which lapsed because of the de- 882 DIGEST. 1916C 1918B. visee'a refusal will pass under the general residuary clause, that made a large gift to a charity in which testator was inter- ested. Albany Hospital v. Albany Guard- ian Society (N. Y.) 1916D-1195. 202. Meaning of "All the Best, Residue, and Remainder." General words in a re- siduary clause of a will, such as "all the rest, residue, and remainder," will embrace every species of property, real or per- sonal, unless restricted by the context, as land can be passed by such a clause with- out specific description. Faison v. Middle- ton (N. Car.) 1917E-72. (Annotated.) 203. General words in a residuary clause carry every estate or interest of the tes- tator which is not expressly or by neces- sary implication excluded from its oper- ation, as by being disposed of in other parts of the will. Faison v. Middleton (N. Car.) 1917E-72. 204. A general residuary bequest carries lapsed and void legacies, and property which is the subject of a devise which fails by reason of a misdescription. Faison v. Middleton (N. Car.) 1917E-72. 205. Under present statutes, realty owned by the testator at the time of his death and not otherwise disposed of passes under a general residuary clause if the language is broad enough to include real estate. Faison v. Middleton (N. Car.) 1917E-72. 206. Where it is manifest from the ex- pressed words of the will that a gift of the residuum is confined to a particular fund or description of property, or some certain residuum, the residuary legatees will be restricted to what is particularly given. Faison v. Middleton (N. Car.) 1917E-72. 207. It is a general rule always to con- strue a residuary clause so as to prevent an intestacy as regards any part of the testator's estate, unless there is an ap- parent intent to the contrary, so that, to exclude a portion of testator's property not otherwise disposed of, a plain and unequivocal intention on the part of the testator must be manifested. Faison v. Middleton (N. Car.) 1917E-72. Note. Meaning of "all" as used in will in con- nection with "rest," "residue," or "re- mainder." 1917E-75. (2) Designation of Executor. 208. Executor Designated by Office Only. When a testator appoints as executor "the priest of his church," without naming him, the court will interpret his testament to mean the person who will be the priest at the time of the testator's death. Succes- sion of Lefort (La.) 1917E-769. (3) Vested or Contingent Estate. 209. Executory Devise. An executory devise of lands is such a disposition of them by will that thereby no estate vests at the death of the devisor, but only on some future contingency. It differs from a remainder in three very material points: (1) That it needs not any particular estate to support it; (2) that by it a fee simple or other less estate may be limited after a fee simple; (3) that by this means a re- mainder may be limited of a chattel in- terest, after a particular estate for life created in the same. Miller v. Miller (Kan.) 1917A-918. 210. Estate Created Life Estate. Whore a testator, after devising property in tee, added a codicil, declaring that the devise should be for the sole and separate use of the devisee, and that in case of his death without lawful issue, to others, the devisee took a life estate with remainder over. Love v. Lindstedt (Ore.) 1917A- 898. (4) Remainders. 211. Repugnancy of Provisions, Testa- tor bequeathed one-half of a tract of land to plaintiff, his son, with the right to the use of the other half during the life of testator's other son, J., subject to a charge or annuity in J.'s favor of $288, providing that, upon the death of J., plaintiff or his heirs should have the right to pur- chase such other half for $2,400, which sum, or, in case plaintiff or his heirs elected not to purchase, then such undi- vided half interest, should vest in the heirs of J.'s body, or, if none, the money or undivided interest in the land should pass to testator's heirs at law. Testator thereafter provided for the equalization of certain advancements, and then directed that all of the property except that "here- in before specifically devised" should be divided between four of his children speci- fied. Held, that the provision for the dis- position of J.'s share of the real estate so devised was not contradictory, repug- nant, or uncertain, but constituted real property "specifically devised," and hence the remainder could not pass under the residuarv clause. Tevis v. Tevis (Mo.) 1917A-S65. 212. Taking by Representation Gift of Remainder to "Children." A will pro- vided: "I give and devise ... to my son [naming him] for . . . life, and at his death I devise the same to his child or children . . . and in default of such, then to my other children [naming three] in equal parts in fee." All of testator's chil- dren survived him. The life tenant died without children, being predeceased by his sister, one of the three children named. It is held that the two children of testator surviving the life tenant were each enti- tled to one-third of the fund, and that WILLS. 883 the remaining one-third should be divided among the children of their deceased sis- ter. Patterson's Estate (Pa.) 1917B-1243. (Annotated.) Note. Right of representative of predeceased child to share in remainder given to chil- dren as a class. 1917B-1245. (5) Presumption as to Tenancy in Com- mon. 213. A will devising certain shares of the estate to trustees to pay the income to testator's daughter for life, and at her death to pay over and deliver the same to her issue, but, if she should die without surviving issue, then to testator's heirs at law, does not, by the intention disclosed, rebut the presumption that the heirs at law took as tenants in common rather than as joint tenants. Allen v. Almy (Conn) 1917B-112. (Annotated.) (6) Per Capita or Per Stirpes. 214. A bequest to persons who are living and to children of another who is dead presumptively refers to the children as in- dividuals and not as a class, and the chil- dren take the same share per capita with those persons who are living, and the rela- tions between the beneficiaries and the operation of the statute on those relations in case of intestacy do not overcome the presumption that a per capita distribution was intended. Perdue v. Starkey's Heirs (Va.) 1916C-409. (Annotated.) 215. A husband and wife executed a will whereby they made specific legacies, and then gave to persons named and the daughters of another person their estate, "to be equally divided between them." The beneficiaries bore different degrees of relationship to each other and to the hus- band and wife. Held, that the estate must be divided per capita among the bene- ficiaries. Perdue v. Starkey's Heirs (Va.) 1916C-409. (Annotated.) Note. Bequest to be divided equally among persons standing in different relationships to testator as requiring division per cap- ita or per stirpes. 1916C-411. (7) Implied Devise or Bequest. 216. Gifts by Implication. Gifts by Im- plication are not favored, though they will be given effect when clearly appearing. Porter v. Union Trust Co. (Ind.) 1917D- 427. 217. Erroneous Recital as Implied Gift. A bequest may be implied from an erro- neous recital in a will of a previous spe- cific gift in the will but not from a recital in reference to a disposition by an instru- ment other than the will. Porter v. Union Trust Co. (Ind.) 1917D-427. (Annotated.) Note. Implied devise or bequest from recital in will. 1917D-431. (8) Gift. 218. Language Importing Gift 'Tay Over and Deliver." A provision of a will, that the testamentary trustees should "pay over and deliver" the property to a daugh- ter's issue at her death, imports a gift. Allen T. Almy (Conn.) 1917B-112. (9) Trust Estates. 219. Certainty as to Subject-matter Residuum of Estate. A bequest in trust of "all the rest, residue and remainder of my property of every kind and nature whatsoever" is not uncertain as to the subject-matter. In re Dewey's Estate (Utah) 1918A-475. 220. Bequest With Direction to Dis- tribute. A will which gives to D and M $500 each, or if there be not enough to pay both legacies, then to each one-half of what is available, directs that if there be a surplus after paying such legacies in full, $500, or such portion thereof as said surplus will pay, be paid to T, and gives "all the rest, residue and remainder" to T, with provision, "It is my desire that he shall distribute the same . . . among my nephews and nieces," creates a trust as to the residue, to be distributed among testatrix's nieces and nephews, other than T. In re Dewey's Estate (Utah) 1918A- 475. 221. Trusts Creation Sufficiency of Language. A will need use no particular words to create a trust, but it is enough that, from all the language in it, a trust is fairly implied. In re Dewey's Estate (Utah) 1918A-475. (10) Power of Disposition and Control. 222. Where one willed a farm in fee to his wife, directing that his daughter should have a home thereon, and that, if the wife should find it necessary to move, fhe daughter should be entitled to support by her, between the provisions of the will giv- ing the property to the wife and those charging such property in her hands with the maintenance of the daughter, there was no such repugnancy as would render the charge for her maintenance void. Chew v. Sheldon (N. Y.) 1916D-1268. 223. Power to Sell Land Implication, No technical or express words are neces- sary in a will to create a power of sale, but if the intention is apparent such power will be implied, and it may be inferred from the general tenor of the instrument, or from the fact that a trustee is empow- ered and directed to do certain things, to which the sale of the trust property is 884 DIGEST. 1916C- necessarily a condition precedent. Holden v. Circteville Light, etc. Co. (Fed.) 1916D- 443. (Annotated.) 224. A testator devised and bequeathed all of his residuary estate to his widow for life, and provided that all of the property remaining at the time of her death "shall constitute a fund for the support and maintenance of my daughter . . . and her children during her life, and at the death of my said daughter . . . the same shall be equally divided between her children." There was a further provision that, should the daughter's husband die or become in- capacitated during the widow's life, the daughter should have the use of a house and grounds free of rent. The property consisted largely of unproductive real es- tate. Held, following a decision of the supreme court of the state in a suit be- tween other parties, that the fund created by the property remaining at the death of the widow included all the property, real and personal, and that both principal and income were charged with the sup- port and maintenance of the daughter and her children during her lifetime, including the reasonable education of her children; also that to that end, which was clearly the paramount object of the testator, the daughter took a life estate subject to the trust with an implied power to sell and convey real estate when she deemed it necessary. Holden v. Circle ville Light, etc. Co. (Fed.) 1916D-443. (Annotated.) 225. The court, in construing the pro- visions of a will conferring power on the executor, must seek to give effect to the intention of testator, and, where the will merely authorizes by implication the ex- ecutor to' sell real estate, the court may not construe the provisions to authorize a mortgage. Heiseman v. Lowenstein (Ark.) 1916C-601. (Annotated.) 226. Where testatrix bequeaths the re- mainder of her property to her husband for his sole use and benefit, with power to use and dispose of all or any part there- of during his lifetime, and on his death that remaining, if any, to be divided among certain individuals named, the bus- band is only entitled to exercise such power by a conveyance in his lifetime, and cannot exercise it by will. Mooy v. Gal- lagher (R. I.) 1916D-395. (Annotated.) 227. Estate Created Life Estate With Power of Disposition. Where testatrix be- queaths to her husband an estate for life in the remainder of her real and personal property "for his sole use and benefit," with power as to certain of her real estate to use and dispose of the same during his lifetime, and on his death that which remained in the husband's possession to be divided among certain persons designated, the husband takes a life estate with power of disposition only, and not a fee. Mooy v. Gallagher (R. L) 1916D-39. 1 ). (Annotated.) -1918B. Note. Testamentary restriction on right of ten- ant in common to partition. 1916D-1270. d. Suit for Construction. 228. Jurisdiction of Equity to Construe. A court of equity has jurisdiction to con- strue a will creating a trust. Heiseman v. Lowenstein (Ark.) 1916C-601. 11. VALIDITY OF PROVISIONS, a. Restraint of Marriage. 229. A condition of a will preventing vesting of the absolute title of a devisee if she is married to a certain individual, or until such individual's death, is not in- valid as violating any constitutional right of such individual to security of life and liberty. Matter of Seaman (N. Y.) 1918B- 1138. (Annotated.) 230. A condition in a will preventing vesting of the estate absolute in a devisee, if she marries a certain individual, or in any event until his death, will not be held invalid as contemplating illegal per- formance of the condition; it being pre- sumed that the testator intended the con- dition to be legally and naturally per- formed. Matter of Seaman (N. Y.) 1918B- 1138. (Annotated.) 231. At common law conditions in gen- eral restraint of marriage were regarded as contrary to public policy. Matter of Seaman (N. Y.) 1918B-1138. (Annotated.) 232. The common-law rule that condi- tions in a will in general restraint of mar- riage are contrary to public policy still prevails in New York. Matter of Seaman (N. Y.) 1918B-1138. (Annotated.) 233. At common law there was no pro- hibition against testamentary conditions in restraint of marriage with particular classes of persons or specific persons. Matter of Seaman (N. Y.) 1918B-1138. (Annotated.) 234. A condition in a will preventing vesting of the estate absolute in a de- visee, if she marries a certain individual, or in any event until his death, is not in- valid as tending to incite her to cause his death, but is a valid restriction. Matter of Seaman (N. Y.) 1918B-1138. (Annotated.) 235. Legacy Conditioned on Obtaining Divorce. While a condition, attached" to a legacy, in restraint of marriage generally is invalid as against public policy, a con- dition that the legatee shall not marrv a certain person, or a legacy to a widow to divest if she marries, is valid. Daboll v. Moon (Conn.) 1917B-164. (Annotated.) 236. The condition of a legacy to tes- tator's son to be paid to him on the death WILLS. 885 of his present wife, or if he should obtain a divorce from her, or should become separated from her, or if within a year after divorce or separation he should be- come married to a good respectable woman, is not contrary to public policy as a re- straint of marriage. Daboll v. Moon. (Conn.) 1917B-164. (Annotated.) Notes. Validity of legacy or devise conditioned on recipient obtaining divorce or sepa- rating from spouse. 1917B-167. Validity of testamentary disposition in restraint of marriage. 1918B-1142. b. Gift Subversive of Religion. 237. A testamentary gift to an incorpo- rated society whose purposes are to pro- mote the principle that human conduct siiould be guided by natural rather than revealed religion and to secure the elim- ination of sectarian and ecclesiastical in- fluences in the law is valid. In re Bow- man (Eng.) 1917B-1017. (Annotated.) 238. A testamentary gift to an incor- porated society, whose purpose is to prom- ulgate the doctrine that human conduct should be based on natural knowledge and not on supernatural belief and that human welfare in this world is the proper end of all thought and action, is valid. Bowman v. Secular Society (Eng.) 1917D-761. (Annotated.) Note. Validity of testamentary disposition subversive of religion. 1917B-1024. c. Gift to Witness. 230. Colo. Rev. St. 1908, 7074, provides that, where a will leaves any interest to a subscribing witness, it shall be invalid, un- less it is attested by a sufficient number of other competent witnesses, and Rev. St. 1908, 4181-4191, makes a legacy to a husband his own property separate from that of his wife. Held, that the wife of a beneficiary who attested a will had no such interest thereunder as would forfeit the interest of the husband. White v. Bower (Colo.) 1917A-835. (Annotated.) d. Trust Provisions. 240. Discretion as to Distribution Effect. That the wiH, giving property in trust to be distributed among testatrix's nephews and nieces, gives the trustee dis- cretion as to which of them he shall dis- tribute it^ among, and in what proportions, does not invalidate the trust. In re Dew- ey's Estate (Utah) 1918A-475. e. Effect of Invalid Provisions. 241. Property Falling into Residue In- valid Devise. Under X. Car. Revisal 1905, 3142, providing that unless a contrary in- tent shall appear by the will, such real estate as shall be comprised or intended to be comprised in any devise in such will, which shall fail or be void by reason of the death of the devisee in testator's life- time, or by reason of such devisee being contrary to law or otherwise incapable of taking effect, shall be included in the re- siduary devise, if any, where testator's will provided that he gave and devised to "my [leaving a blank space]" the tract of land on which he resided, consisting of 648 acres, for life, and after his death to his heirs, thereafter making a residuary bequest of any surplus over debts and ex- penses, it is held that the residuary lega- tees were entitled to the land, whether it was not devised at all for failure to name a devisee, or whether it was a devise which, failed because incapable of taking effect, since if the land was not devised, it was part of the residuary estate when the will took effect, and if it was devised, and the devise was incapable of taking effect for failure to name the devisee, it went to the legatees by virtue of the statute. Faison v. Middleton (N. Car.) 1917E-72. 12. LEGATEES AND DEVISEES, a. Nature "of Legacy or Devise. 242. While a testamentary gift will be construed as creating a tenancy in com- mon rather than a joint tenancy, unless a different intention appears in the will, 'the intention disclosed by the instrument will govern, whichever it creates. Allen T. Almy (Conn.) 1917B-112. (Annotated.) b. Acceptance. 248. Testamentary Trustees Bight to Rescind. A testamentary trustee derives his authority from the will, and, while he may refuse to accept the position, yet, if he does any act indicative of acceptance, he may not thereafter rescind without consent of the cestui que trust or the court. Matter of Kellogg (N. Y.) 1916D- 1298. 244. Refusal by Trustee to Accept Vesting of Estate in Others. Where one of two or more trustees refuses to accept, the estate vests in the others as though the trustees refusing were dead or had not been named. Matter of Kellogg (N. Y.) 1916D-1298. 245. Renunciaton by Trustee Right to Retract. One of several testamentary trustees who had already renounced as executor filed and delivered his renuncia- tion as trustee before any action with re- spect to the trust was taken. N. Y. Code Civ. Proc. 2814, provides for the resigna- tion, but not for the renunciation of trus- tees. It is held that, in view of section 2639, which is declarative of the common law, and provides that a person named as executor may renounce, which renuncia- 886 DIGEST. 1916C 1918B. tion may be retracted any time before let- ters have been granted, the trustee who renounced could not, after the remaining trustees had received part of the trust property and entered upon their duties, re- tract his renunciation. Matter of Kellogg (N. Y.) 1946D-1298. (Annotated.) 246. Presumption of Acceptance of De- vise or Bequest. Where a devise or be- quest is beneficial, there is a presumption of acceptance, though such presumption is not conclusive, and the devisee may re- ject. Albany Hospital v. Albany Guard- ian Society (N. Y.) 1916D-1195. 247. Rejection of Devise Effect. Where a devisee rejects a devise, he has no title to the realty devised, -whether it be found that none passed, or that his rejection di- vested all interest. Albany Hospital v. Albany Guardian Society (N. Y.) 1916D- 1195. (Annotated.) 248. Where a church, by resolution, de- clined a devise, the written resolution was sufficient; reconveyance being unneces- sary. Albany Hospital v. Albany Guard- ian Society (N. Y.) 1916D-1195. (Annotated.) Notes. Right of executor or trustee to retract renunciation of trust. 1916D-1301. Effect of refusal of devisee to accept devise of realty. 1916D-1199. c. Lapsing and Ademption. 249. Lapsed Legacy Descent Right of Ancestor of Deceased Legatee. Where a father devised land to his children, and ojie died without issue while still an in- fant, the surviving children take as heirs, under Ky. St. 1401, prescribing the rules of descent, to the exclusion of the mother. Lamar v. Crosby (Ky.) 1916E-1033. 250. Bequest Dependent on Devise Lapse. Where one willed a farm in fee to his wife, directing that his daughter should have a home thereon, and that, if the wife should find it necessary to move, the daughter should be entitled to support by her, the bequest to the daughter of the charge on the farm was not so dependent on the devise of the wife as to lapse with it when the wife predeceased the testator. Chew v. Sheldon (N. Y.) 1916D-1268. d. Election. (1) Acts Constituting. 251. Election by Husband to Take Un- der Wife's Will Acts Constituting Elec- tion. In order that acts or a course of conduct of the surviving consort of a de- ceased testator should operate to equitably estop such consort from claiming dower and a distributive share of the personal property under the law and to amount to an election to take under the will, such acts must be of such an unequivocal char- acter as will clearly and distinctly demon- strate a purpose to accept the provisions of the will. Colored Industrial School v. Bates (Ohio) 1916C-1198. (Annotated.) Note. Sufficiency of acts to constitute election by husband to take under wife's will. 1916C-1204. (2) Effect. 252. 'Election by Widow Rights as to Intestate Property. A widow who elects to take under her husband's will thereby bars herself and her heirs from inheriting property of the husband undisposed of by the will. Compton v. Akers (Kan.) 1918B- 983. (Annotated.) Note. Election by widow to take under will as affecting her right to intestate property. 1918B-986. e. Eight to Accumulation and Income. 253. Bequest of Income Accumulation. A. testator devised and bequeathed all his property to a trustee, with directions that the trustee should collect the income, and out of the net proceeds pay his wife $300 per month. At the time the will was made, two of the testator's three daugh- ters, who were his only children, were married, while the youngest lacked a num- ber of years of reaching her majority. The testator expressed his confidence that his wife would maintain the youngest daughter, and provided that, in case of emergency or insufficiency of the income, the trustee might sell the principal to meet immediate necessities. There was no in- timation that the testator intended the daughters to share in the property during the life of their mother, and the last clause of the will recifed that it was his wish that the wife during her life should have the entire benefit of his estate. It is held that, in view of Burns' Ind. Ann. St. 1914, 9724, prohibiting accumulations, unless for the benefit of a minor, and to terminate with the expiration of the min- ority, the wife was entitled to take all of the income from the property. Porter v. Union Trust Co. (Ind.) 1917D-427: f. Agreement for Division. 254. Rights of Parties. Where testator bequeathed all his silver, bric-a-brac, an? pictures to his three children, and they en- tered into a tentative agreement under which each selected articles of personal property, agreeing .that, if they were classed as furniture, they would purchase such articles at the inventory prices, ap- pellant, who refused to abide by the classi- fication of the executor, is entitled to a return of all sums paid for articles which thereafter were found to be bric-a-brac; the others not demanding a new division. Matter of Kellogg (N. Y.) 1916D-129S. WIRE FENCES WITNESSES. 887 See Fences. WIRE FENCES. WISDOM. Of legislature no concern of courts, see Constitutional Law, 157-167. WIT AND HUMOR. No defense to defamation, see Libel and Slander, 77. WITHDRAWAL OF PLEA. Leave to withdraw harmless error, see Appeal and Error, 221. WITNESSES. 1. Competency, 887. a. Knowledge of Witness, 887. b. Juror on Former Trial, 888. c. Person Jointly Indicted, 888. d. Infant, 888. e. Husband and Wife, 888. f. Determination of Question, 888. g. Expert, 888. E. Privileged Communications, 889. (1) Attorney and Client, 889. (a) In General, 889. (b) Knowledge not Ob- tained in Course of Employment, 889. (c) Compelling Production of Client's Papers, 88'9. (d) Waiver of Privilege, 890. (2) Physician and Patient, 890. (a) In General, 890. (b) Waiver of Privilege, 890. (3) Husband and Wife, 890. (4) Stenographer and Employer, 890. (5) Detective and Employer, 891. (6) Overheard Confidential Com- munications, 891. i. Transaction With Person Since De- ceased, 891. (1) Evidence Held Admissible, 891. (2) Evidence Held Inadmissible, 892. (3) Waiver of Privilege, 892. 2. Examination, 892. a. Mode of Examination, 892. (1) In General, 892. (2) Leading Questions, 893. (3) Hypothetical Questions, 893. b. Cross-examination, 894. (1) In General, 894. (2) Credibility of Witness, 895, (3) Experts, 895. c. Kecalling Witness, 896. d. Privilege of Witness, 896. (1) Nature and Extent, 896. (2) Who may Assert Privilege, 896. (3) Waiver of Privilege, 896. 3. Credibility, Impeachment and Corrobo- ration, 896. a. Credibility, 896. b. Impeachment, 897. (1) Foundation, 897. (2) Prior Inconsistent Statements or Testimony, 897. (3) Conviction of Crime or Ar- rest, 898. (4) Insanity, 898. (5) Impeachment by Party Call- ing Witness, 898. (6) Attacking Character or Repu- tation, 898. c. Corroboration, 898. Competency, review, see Appeal and Error, 166, 167. Harmless and prejudicial rulirigs, see Ap- peal and Error, 318, 319. Right to testify, see Attorneys, 14. Testimony and corroboration of complain- ant, see Bastardy, 3, 4, 6, 13, 15. Right of accused to confront, see Criminal Law, 33-34. Privilege, transcript of proceedings, see Discovery, 3. Number of witnesses as affecting weight of testimony, see Evidence, 163. Expert evidence as to probabilities, see Forgery, 2. Effect of testamentary provision in ante- nuptial contract, see Husband and Wife, 21. Testimony privileged when, see Libel and Slander, 41-44. Stockholder of mortgagee as subscribing witness for mortgagor, see Mortgages and Deeds of Trust, 3. Credibility for jury, see Negligence, 111. Absence of witness as ground for continu- ance, see Trial, 6, 7. Putting witnesses under rule, see Trial, 25. Stopping cross-examination, see Trial, 33. Attestation of will, see Wills, 20-29. Gift to attesting witness, validity, see Wills, 239. 1. COMPETENCY, a. Knowledge of Witness. 1. A witness who knows the cost of an annuity and can identify the mortuary tables in use by insurance companies is competent to testify thereto though he is unable to explain the manner in which the cost is estimated or the basis on which the table is prepared. Canadian Pacific Ry. v. Jackson (Can.) 1916C-912. 2. Age Evidence Right to Testify to Age of Another. A witness may, partly in view of the corroborative facts known to him, testifv as to his own age from hear- say; but he may not be permitted to tes- tify as to the age of another person upon the basis of hearsay or reputation. Free- man v. First National Bank (Okla.) 1918A- 259. (Annotated.) Notes. Competency of witness to testify as to his own age. 1918B-427. 888 DIGEST. 1916C 1918B. Competency of witness to testify to knowledge of another. 1918A-947. Competency of witness to testify to age of another person. 1918A-262. b. Juror on Former Trial. 3. Jurors on a former trial may testify on a subsequent trial as to physical facts coming to their knowledge during a view made by them on the former trial. It is not material that the former verdict was set aside because of the misconduct of the jury in conducting unauthorized experi- ments during the view. State v. Ward (Minn.) 1916C-674. (Annotated.) Note. Competency as witness of juror on former trial. 1916C-676. c. Person Jointly Indicted. 4. On a trial for murder, one jointly in- dicted with defendants, but not on trial, is a competent witness. State v. Griffin (S. Car.) 1916D-392. d. Infant. 5. A finding that a witness, 11 years old, who testified that if he swore to a lie they would put him in jail, that he intended to tell the truth, and was going to tell what he knew, and a witness, 12 years old, who testified that he had never been in court before, t>hat when he kissed the book it meant that he would tell the truth, and that if he should tell a lie they would put him in the lockup, were competent wit- nesses, is conclusive as to their compe- tency, both as to their moral and religious sensibility and their intelligence. State v. Pitt (N. Car.) 191&C-422. (Annotated.) 6. Young Child. When a child seven years of age is offered as a witness it is the duty of the court to examine her, alone if necessary, as to her competency, and this sound judicial discretion of the court in allowing or refusing to allow her to relate to the jury the facts within her knowledge will not ordinarily be inter- fered with by this court. It is erroneous to take the unsworn statements of an in- terested party as to tlie qualifications of such witness and exclude her testimony without examination by the court. Rob- erts v. State (Neb.) 1917E-1040. e. Husband and Wife. 7. Competency Testimony of Wife to Nonaccess. Though Kirby's Ark. Dig. 492, makes the mother a competent wit- ness in bastardy proceedings, she may not testify to nonaccess of her husband. Ken- nedy V. State (Ark.) 1917A-1029. (Annotated.) 8. Husband Prospective Beneficiary Un- der Wife's WilL The fact that a husband may become a beneficiary under his wife's will, or that, if she died intestate, he will succeed to her personal poperty, subject to her debts, does not disqualify him as a witness in her behalf as to dealings and communications with a decedent with whom the wife had contracted to furnish board in return for decedent's promise to will her realty. McCurry v. Purgason (N. Car.) 1918A-907. 9. Effect of Death of One Spouse. Un- der the proviso to 111. Evidence Act (Kurd's Rev." St. 1913, c. 51), 5, that nothing in the section shall permit hus- band or wife to testify to any admissions or conversations of the other, whether made by one to the other or to a third person, except in causes between the hus- band and wife, which is but a recognition and re-enactment of the common law, the wife cannot, even after death of her hus- band, and in an action between others in which she had no interest, testify to a conversation between her husband and others. Mahlstedt v. Ideal Lighting Co. (111.) 1917D-209. (Annotated.) Notes. Husband or wife as competent witness in prosecution for bigamy. 1916C-1060. Effect of death of one spouse on com- petency of other as witness. 1917D-216. f. Determination of Question. 10. Mental Capacity Question for Court. In a prosecution for rape, the question of the mental capacity of prose- cutrix is one of fact, to be decided by the court before permitting her to testify. State v. Tetrault (N. H.) 1918B-425. g. Expert. 11. Discretion of Trial Court. The ques- tion of the qualification of an expert rests largely in the discretion of the trial court, depending somewhat on the subject and the particular witness. Mahlstedt v. Ideal Lighting Co. (111.) 1917D-209. 12. Qualification of Expert Installation of Gas Engines. A witness, who had been employed for 27 years in the selling of gas engines for boats, is competent to testify as to the duties of such agents in respect to the supervision of the installa- tion of engines sold. Shoop v. Fidelity, etc. Co. (Md.) 1916D-954. 13. As to Value. A witness is not quali- fied to testify as to the value of apples in a certain market, where his only infor- mation on the subject was derived from inquiry made by him among certain fruit dealers in that place without any inde- pendent knowledge of the subject. Dur- lap v. Great Northern R. Co. (S. Dak.) 1916D-805. 14. The plaintiff purchased materials, machinery, and other articles and con- structed and equipped the factory, paying the cost, freight, labor, and expense of in- stallation. Schedules of the items were attached to the petition. The plaintiff WITNESSES. 889 testified to the value of the plant, taking into consideration, with other things, the items and aggregates of the schedules. Held, he was a competent witness and his testimony was properly received. Hoi- linger v. Missouri, etc. R. Co. (Kan.) 1916D-802. 15. Qualification of Expert Value of Medicine. An experienced chemist is held, under the facts shown, to have been quali- fied to testify as an expert as to the ther- apeutic value of a medicine which he had analyzed. Samuels v. United States (Fed.) 1917A-711. 16. Proof of Value of Assets. Where the assets of a corporation are shown to include various items of property, a wit- ness should not give an opinion as to the aggregate value, until he has shown quali- fication to estimate the value of the sev- eral items. Hawkins v. Mellis, Pirie & Co. (Minn.) 1916C-640. Note. Competency of witness to testify to in- formation acquired by aid of microscope. 1916D-930. h. Privileged Communications. (1) Attorney and Client. (a) In General. 17. Testamentary Matters. Where a testatrix gives instructions to her attor- ney relative to her will in the presence of a third person, the communications are not confidential so as to be privileged, and it is error, in an action to construe the will, to exclude the attorney's testi- mony as to such instructions. Baumann v. Steingester (N. Y.) 1916C-1071. (Annotated.) 18. Illegal Transaction not Privileged. A communication to an attorney concern- ing an intention on the part of the client to do some illegal act in the future is not privileged. Ex parte McDonough (Cal.) 1916E-327. 19. Disclosure of Name of Client. An- attorney who had been employed by cer- tain clients to represent them in matters ronnected with the investigation of elec- tion frauds, and who appeared to defend three other individuals who were indicted for such frauds and put up a cash bail for one of the indicted men. cannot be compelled to state to the grand jury the names of the clients who employed him to renresent the three indicted men. and who furnished the cash for the bail, under Cal. Code Civ. Proc. 282, subd. 5, requir- ing an attorney to maintan inviolate the secrets of his client, and section 1881, pro- viding that an attorney cannot without the consent of his clients, be examined as to any communication made by the client, "communication" in that section not being restricted to mere words but including acts as well. Ex parte McDonough (Cal.) 1916E-327. (Annotated) 20. Communication in Presence of Third Person. N. Y. Code Civ. Proc. 835, 836, providing that an attorney shall not be allowed to disclose communications made by his client to him, apply only to con- fidential communications, and not to those made in the presence of others. Baumann v. Steingester (N. Y.) 1916C-1071. 21. Communication to Prosecuting At- torney. In a trial for murder where a special deputy sheriff, who had been in- strumental in gathering evidence against the defendant, testified for the state, and on croso-examination denied his alleged statements to an attorney employed by the county, made in the presence of others, to the effect that he wished to get evi- dence against defendant's employer, and that defendant was a man who was easily controlled, the attorney, called by the de- fendant to contradict the witness, may disclose the information which he received in his capacity as attorney. People v. Koach (N. Y.) 1917A-410. 22. Attorney of Defendant Officer and of Corporation. Where accused is charged with aiding and abetting a bankrupt cor- poration, of which he was president and manager, to conceal its assets from ita trustee, evidence of defendant's attorney that he was retained by defendant as at- torney for the corporation, and also to represent defendant individually, is not objectionable as privileged. Kaufman v. United States (Fed.) 1916C-466. Note. Communications between attorney and client in regard to testamentary matters as privileged. 1916C-1073. (b) Knowledge not Obtained in Course of Employment. 23. Statements by Prosecuting Witness to Prosecuting Attorney. Where the dis- closure of a communication by a prosecu- ting witness to the state's attorney would not interfere with the proper administra- tion of justice, and is not against publie policy, there is no confidential relation- ship between the parties which prevents the witness from being cross-examined concerning such communication, or the at- torney from being called to impeach her if she denies making it. Riggins v. State (Md.) 1916E-1117. (Annotated. Note. Statement bv prosecuting witness to prosecuting attorney as privileged. 1916E 1121. (c) Compelling Production of Client's Paoers. 24. Demand on Accused for Production of Papers. There is no error in permit- 890 DIGEST. 1916C 1918B. ting counsel to demand of defendant, ac- cused of larceny, that he produce papers alleged to be incriminating, where the judge instructed the jury to disregard it and the discussion of its propriety. People v. Gibson (N. Y.) 1918B-509. (Annotated.) (d) Waiver of Privilege. ' 25. Confidential Communication. Confi- dential communications between attorney and client, made because of the relation- ship and concerning the subject matter of the attorney's employment, are privileged from disclosure even in the interest of just'ce, but the rule is for the benefit of the client and may be waived, either ex- pressly or by implication. Grant v. Harris (Va.) 1916D-1081. (Annotated.) 26. Where a settlement contract and certain deeds executed by complainant, which she sued to set aside, were alleged to have been procured from her by duress and she denied that certain attorneys, who were instrumental in making the settle- ment, had been employed by her, but claimed instead that they represented the other side of the transaction, and that they, at the instance of others adversely interested, induced her to execute the deed and settlement agreement without knowl- edge as to its contents, and while she was incompetent to do so, she thereby waived her right to claim her privilege to prevent the attorneys from testifying. Grant v. Harris (Va.) 1916D-1081. (Annotated.) (2) Physician and Patient, (a) In General. 27. Physician Performing Autopsy. In- formation acquired in the performance of an autopsy by a physician who bore no professional relation to the deceased in his lifetime is not privileged. Carmody v. Capital Traction Co. (D. C.) 1916D-706. (Annotated.) 28. Testimony as to Testamentary Capa- city. Where testatrix requested her at- tending physicians to witness her will, or knowingly assented thereto, the testimony of such physicians as to the execution of the will and testatrix's sanity and mental capacity is not rendered inadmissible, in an action to contest the will, by Rem. & Bal. Wash. Code, 1214. providing that a physician shall not, without Ms patient's consent, be examined as to any informa- tion acquired in attending such patient, testatrix having waived the privilege. Points v. Nier (Wash.) 1918A-1046. (Annotated.) (b) Waver of Privilege. 2ft. Waiver by Patient. While one, by testifying to a consultation by her with, or examination of her by, a physician at a certain time, waives the privilege to have him not testify in respect therefor, the waiver is not such as to allow him to testify as to an earlier consultation or ex- amination, or the purpose for which at such earlier time he gave her medicine. Nolan v. Glynn (Iowa) 1916C-559. (3) Husband and Wife. 30. Interest in Event. Where a hus- band consented to his wife's contracting with decedent that she should board the latter in return for his agreement to will her certain realty, the wife could recover for her own separate and individual bene- fit against decedent's estate, he having broken his contract, whatever was due her for board furnished thereunder, so that, having no interest in the wife's separate earnings from the transaction, the hus- band is a competent witness in her behalf as to his dealings and communications with the decedent. MeCurry v. Purgason (N. Car.) 1918A-907. 31. Consent. Under Nev. Rev. Laws, 5424, providing that a wife cannot tes- tify for or against her husband "without his consent," a wife is competent to tes- tify for her husband in his action for criminal conversation, where the husband and wife had each consented in open court that the other might testify to anything existing between them having a bearing on the case. Rehling v. Brainard (Xev.) 1917C-656. 32. Competency of Wife in Bigamy Trial. Under Ore. L. O. L. 1535. as amended by Laws 1913, p. 351, providing that in criminal actions, where the hus- band is the party accused, the wife shall be a competent witness but shall not be compelled or allowed to testify unless by consent of both parties, provided that in criminal actions for polygamy the wife shall be a competent witness as to the fact of marriage, an objection to the testimony of the wife of accused in a prosecution for polygamy, before she gave any evi- dence except her name and place of resi- dence, is properly overruled; her testimony as to the fact of marriage being admis- sible. State v. Von Klein (Ore.) 1916C- 1054. (Annotated.) Note. Admissibility of testimony of married woman to prove nonaccess of husband. 1917A-1031. (4) Stenographer and Employer. 33. In an action for compensation un- der a contract to arrange for, advertise, and conduct an auction sale of lands for an agreed price and expenses, the testi- mony of a stenographer, employed to assist plaintiff and paid out of the ex- pense fund which came out of the pro- ceeds of sales, concerning matters taken from plaintiff's books is not privileged, WITNESSES. 891 PS she owed no duty to plaintiff that she did not owe to defendants, and neither she nor plaintiff had any right to with- hold information from defendants. Sot- ham v. Macomber (Mich.) 1916C-694. (Annotated.) (5) Detective and Employer. 33$. Information Acquired in Service of Employer. On a trial for murder the testimony of a private detective, who after the murder had resided at the house of defendant's employer, and had kept de- fendant and his employer under observa- tion for some time, that neither defendant nor his employer had acted in a manner to indicate consciousness of guilt, is im- properly excluded under N. Y. General Business Law (Consol. Laws, c. 20), 74b, as amended by Laws 1910, c. 515, forbid- ding a licensed detective from revealing, without his employer's consent, informa- tion obtained by him "except as he may lie required by law" as such provision has no application to the case. People v. Eoach (N. Y.) 1917A-410. (6) Overheard Confidential Communica- tions. 34. Testimony by Person Overhearing. In a prosecution for unlawfully selling liquor, evidence of an officer that at the time of defendant's arrest at his home, his wife stated in his presence that she had tried to keep him up, and he had con- tinued bootlegging, and she was through, was not inadmissible on the ground that a wife may not testify against her hus- band, since the rule of privilege does not cover conversations between husband and wife being testified to by a third person who overhears them. State v. Bandall (N. Car.) 1918A-438. (Annotated.) Notes. Eight of person overhearing privileged communication to testify thereto. 1918A- 441. Information communicated in contract, fiduciary or similar relation as privileged from disclosure. 1916C-69S. Competency of attesting witness to deed or mortgage. 1917A-235. i. Transaction With Person Since De- ceased. (1) Evidence Held Admissible. 35. Person Overhearing Conversation. In an action against an administrator for compensation for services rendered to de- ceased, daughters of plantiff were not in- competent, under Iowa Code. 4604. to tes- tify as to conversations overheard by them between decedent and plaintiff where de- cedent promised to compensate plaintiff, since the conversations did not constitute a personal transaction between witnesses and the deceased. Tucker v. Anderson (Iowa) 1918A-769. 36. Denial of Execution of Receipt. In an action against an administrator for compensation for services rendered to de- ceased, wherein the administrator claimed full payment and settlement, plaintiff was not incompetent to testify that she had not signed the receipt produced, the pro- bative force of which depended entirely upon the genuineness of her signature, but of which receipt it did not appear that decedent had any personal knowledge, un- der Iowa Code. 4604, providing that no party to an action shall be examined as a witness as to any personal transactions or communications between such witnesses and a person at the commencement of such examination deceased. Tucker v. Anderson (Iowa) 1918A-769. (Annotated.) 37. Receipt of Letters. Where a plain- tiff testified to receiving three letters from deceased, signed by him, one containing a $20 bill, and that the letters were post- marked at a certain place, that they had on them what purported to be deceased's letter head, and that they were received by her in due course of mail, such testi- mony does not concern a transaction with the deceased within the meaning of Sched- ule, 2, providing that in civil actions no witness shall be excluded because of in- terest, "provided that in actions . . . against executors . . . neither party shall be allowed to testify against the other as to any transaction with or statements of the testator . . . unless called ... by the opposite party." Josephs y. Briant (Ark.) 1916E-741. (Annotated.) 38. Deceased Agent of Party. Eem. & Bal. Wash. Code, 1211, providing that, in an action or proceeding where the adverse party sues or defends as deriving right or title by, through, or from any deceased person, a party in interest shall not be permitted to testify in his own behalf as to any transaction had by him with the deceased, does not exclude the testimony of an officer and stockholder of one cor- poration from testifying as to a transac- tion had by him, as such officer, with an officer and stockholder, since deceased, of another corporation, from which the wit- ness* corporation derives a right or title which it seeks to assert. Beaston v. Port- land Trust, etc. Bank (Wash.) 1917B-488. 39. Evidence at Former Trial. In an action to recover possession of certain real estate on the ground that a deed therefor had been procured by fraud and that the defendant took his title with no- tice of such fraud the plaintiff testified to transactions and communications had per- sonally by her with one of the defend- ant's grantors who was charged with the fraud, such grantor being present as an attorney in the case. At a subsequent trial, such grantor having died, the plain- 892 DIGEST. 1916C 1918B. tiff was, on the defendants' objection, pre- cluded from testifying to the matters covered by such former testimony, and thereupon offered in .evidence the stenog- rapher's 'transcript thereof. Held, that an objection thereto, on the grounds of in- competency and because it concerned transactions and communications had per- sonally with a deceased grantor from whom the defendant claimed title was properly overruled. New v. Smith (Kan.) 1917B-362. (Annotated.) 40. Ground of Objection not Proved. The testimony of a surviving partner seek- ing to establish claims for contribution against the estate of a deceased partner in answer to a question as to whether a settlement of . the firm's affairs had been made is not, standing alone, objectionable as testimony involving a personal trans- action with the deceased, where other tes- timony shows that another partner was the bookkeeper and cashier of the firm and paid the bills and distributed the moneys received between all the partners, and a party desiring to preserve an objection to the testimony must apply for leave and ask the partner whether the settlement testified to by him was made personally with the deceased partner. Estate of Ryan (Wis.) 1916D-840. Notes. Competency of interested witness to tes- 'tify as to letter passing between him and person since deceased. 1916E-747. Right of party to instrument to deny ex- ^r-ution thereof by himself after death of other party. 1918A-777. (2) Evidence Held Inadmissible. 41. Where plaintiff sued to recover an undivided one-half of deceased's property, alleging oral contract, on his part to will her such property, her testimony is incom- petent to prove the contract under S. Car. Civ. Proc. 1912, 438,- rendering a party incompetent to testify as to a transaction with a person since deceased in an action against the heir of such person. Brown v. Golightly (S. Car.) 1918A-1185. 42. Action for Tort. In a suit against a railroad for an assault committed by the road's alleged agent, deceased prior to the action, plaintiff is incompetent as a wit- ness to the assault made upon him, under Mo. Rev. St. 1909, 6354, providing that, in actions where one of the original par- ties to the contract or cause of action is dead, the other shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him. Leavea v. Southern R. Co. (Mo.) 1918B-97. (Annotated.) 43. Transactions With Deceased Agent of Party. In an action on a policy insur- ing a stallion, where the brother of the in- surer's agent who was associated with him as a clerk, had been present while the agent prepared the application, such agent having been taken ill in the course of the transaction, leaving the office, and his brother having completed the filling out of the application, which, as to the cir- cumstances of the acquisition of the stal- lion, was not in accordance with the facts, the agent having died, his brother's testi- mony that the insured had told the truth as to such circumstances was not inadmis- sible on the ground that the facts were equally within the knowledge of the de- ceased agent. Simmons v. National Live Stock Co. (Mich.) 1917D-42. Notes. Statute against admission of evidence of transaction with decedent as applicable to deposition taken before death. 1917B- 490. Rule extending testimony relating to transaction with decedent as applicable to action ex delicto. 1918B-98. (3) Waiver of Privilege. 44. Effect on Subsequent Trial. Waiver of defendant's incompetency to testify to transactions with decedent makes him competent on subsequent trials. Corn- stock's Adm'r v. Jacobs (Vt.) 1918A-465. 45. Transaction With Decedent, An administrator suing on behalf of dece- dent's estate, by calling defendant as a witness to a constituent fact, a transac- tion in decedent's lifetime, though not ex- amining him generally on the question in issue, waives his incompetency, and makes him competent as a general witness. Corn- stock's Adm'r v. Jacobs (Vt.) 1918A-465. (Annotated.) 46. The incompetency of a witness to tes- tify concerning communications or trans- actions had with a person since deceased is waived by the objecting party showing on cross-examination the fact that such a communication or transaction occurred. Poole v. Poole (Kan.) 1918B-929. Note. Waiver by personal representative of incompetency of witness to testify to trans- action with decedent. 1918A-471. 2. EXAMINATION. a. Mode of Examination. (1) In General. 47. Matters Within Scope of Direct Tes- timony. In an action to recover a broker's commission upon a sale of real estate, the cross-examination of the defendant in re- gard to the delivery of a plat to the plain- tiff is not objectionable, where it relates WITNESSES. 893 strictly to the matter brought out on his examination in chief. Taggart v. .Hunter (Ore.) 1918A-128. 48. Cross-examination of Detective As to Name of Employer. In a prosecution for conspiring to demand money to corrupt a city council, where the person from whom defendants were charged to have demanded the money was a detective en- gaged to entrap them, the right of defend- ants to show the bias of any particular witness, by asking whether he was one of those who had procured the investigation, being protected by a subsequent ruling of the court permitting the detective to an- swer whether any of the several desig- nated persons had anything to do with his employment, the refusal of the court to permit the detective to answer who had employed him is proper. Hummelshime v. State (Md.) 1917E-1072. 49. Interrogation as to Previous Testi- mony. Where a party is taken by surprise by the testimony of his own witness, he may, within the sound discretion of the court, interrogate the witness respecting previous statements or testimony inconsis- tent with his present testimony. State v. Inlow (Utah) 1917A-741. (2) Leading Questions. 50. Questions asking witnesses on prosecution for illegal sale of liquor, whether they ever had occasion to visit de- fendant's place of business, and if they saw defendant there, merely directing their attention to the matter being tried, are not suggestive or leading in any proper sense. People v. Elliott (111.) 1918B-391. 51. It is within the court's discretion ordinarily to allow leading questions, espe- cially as a question, asked over plaintiff's objection in an action for malpractice, as to whether it is not a fact that "this sort of human disaster" is preventable, led away from, and not to, the desired an- swer.* Barfield v. South Highlands Infirm- ary (Ala.) 1916C-1097. 52. Where in some instances the prose- cuting attorney led the witnesses, but in only one such instance was the evidence material, and in that instance there was no objection, the judgment will not be re- versed. Belcher v. Commonwealth (Ky.) 1917B-238. 53. In an action for death of a child from falling into a ditch containing pools of hot water, questions to witnesses as to whether children habitually played about the pools are leading, and too general. Thompson v. Alexander City Cotton Mills, 1917A-721. 54. In a prosecution for larceny of a cow, on the issue of defendant's possession of a cow branded and owned by another, it is error to permit a detective to be asked whether he saw in defendant's possession cattle branded NXN, that being leading, and no reason for leading the witness be- ing assigned. Harris v. State (Wyo.) 1917A-1201. (3) Hypothetical Questions. 55. Assumption of Unproved Fact. Plaintiff's hypothetical questions to ex- perts, on which they are asked to give the opinion that had plaintiff's intestate had proper care within one or two hours after his first attack of apoplexy, while a pas- senger on defendant's street car, it was reasonably certain his life could have been saved, should not assume he was in good condition, or apparently in good condition, on boarding the car, without referring to the hardened condition of his arteries and the condition of his kidneys, as indi- cated by albumen and granulated casts in his urine, shown by plaintiff's witnesses to have existed. Middleton v. Whitridge (N. Y.) 1916C-856. 56. Hypothetical Questions Approved. It is held that the court did not err in per- mitting, over the objection of appellant, the propounding of certain hypothetical questions and in permitting such questions to be answered. McAlinden v. St. Maries Hospital Association (Idaho) 1918A-380. 57. Experts Appointed by Court. In an action for malpractice, where the court re- quired plaintiff to submit to an examina- tion by impartial physicians, either party may examine such witnesses hypotheti- cally as to matters within the issues; the witness not belonging to one part more than another. Just v. Littlefield (Wash.) 1917D-705. 58. Evidence to Support. No error is committed in sustaining an objection to a hypothetical question propounded to a wit- ness, where such question is not based upon facts as to which there is such evi- dence that a jury might reasonably find that they are established. State v. Klas- ner (N. Mex.) 1917D-824. 59. Expert Evidence Irresponsive An- swer to Hypothetical Question. The answer elicited in response to a hypothet- ical question propounded to a witness on cross-examination was not available as evi- dence, where it was not based on evidence corresponding with the hypothesis ad- vanced. Holmberg v. Jacobs (Ore.) 60. Assumption of Facts not Proved. In examining an expert witness, questions as- suming an hypothesis not supported by any evidence are improper. Stonegap Colliery Co. v. Hamilton (Va.) 1917E-60. Note. Use of scientific books in connection with examination of expert witness. 1916E-356. 894 DIGEST. 1916C 1918B. b. Cross-examination. (1) In General. 61. As to Changes in Testimony. A wit- ness who testifies that she stated at a former trial that she had had im- proper relations with one man only, and repeats the statement at the instant trial, but says that at another trial she testified that she had such relations with forty different men at a certain house, may properly be cross-examined as to why she changed her testimony, and whether some one had told her to change it. State v. Gardner (Iowa) 1917D-239. 62. Meaning of Unambiguous Writing. Where, in an action for breach of promise of marriage, the meaning of a letter writ- ten plaintiff by defendant's sister after the action was commenced, which defendant claimed contained an offer of marriage communicated through his sister, was too plain to be misunderstood, and there was no offer or claim that plaintiff gave it a different interpretation, a question asked her as to what she considered the letter communciated to her is properly excluded. Stacy v. Dolan (Vt.) 1917A-650. 63. Question Calling for Matter Partly Irrelevant. It is not error to sustain ob- jections to questions asked a prosecuting witness on cross-examination as to a con- versation between her and the state's at- torney, which questions are not limited to the relevant parts of that conversation. Riggins v. State (Md.) 1916E-1117. 64. It is also proper to sustain an ob- jection to a question as to what the state's attorney had asked the witness on that occasion. Riggins v. State (Md.) 1916E- 1117. 65. Stopping Irrelevant Cross-examina- tion. Further cross-examination about the height of the fence is properly stopped; witness having testified that he saw the deliveries of beer at defendant's place of business through a gap in the fence. Peo- ple v. Elliott (111.) 1918B-391. 66. Cross-examination, which has gone beyond reasonable limits, of a witness, who has testified to seeing cases of beer delivered at defendant's place of business, and the name "Leisy Beer" on the cases, is properly curtailed when an effort ii made to ascertain the extent of his edu- cation, by asking him to spell "Leisv." People v." Elliott (111.) 1918B-391. 67. Circumstances Explaining Declara- tions Testified to. Where the state sought to show that accused killed decedent by proving that decedent, after receiving the fatal wounds, pointed to them and said "Dago, Dasro," questions on cross-examina- tion of a state's witness as to whether ac- cused was the only one about the place referred to aa "Dago" and as to how many others and who were so alluded to are pertineat. State v. Giudice (Iowa) 1917C- 1160. 68. Cross-examination Outside Scope of Direct Examination. In an action for death of a street car passenger, where the plaintiff called defendant's conductor only to show that decedent was on the car at the time of the injury, and defendant in cross-examining him attempted to show contributory negligence, the plaintiff is not bound by such evidence, nor can his other evidence then b'e disregarded, since by cross-examining the witness outside his direct testimony defendant made him hia own witness and not plaintiff's. Froeming v. Stockton Electric R. Co. (Cal.) 191SB- 488. 69. Cross-examination of Assignee of Lease Suing for Trespass. In trespass quare clausum fregit -by an assignee of a lease against the lessor, defendants on cross-examination of plaintiff are prop- erlv permitted to ask him from whom he had previously rented the land, and for how long, and what he paid for the lease; such being relevant to the issue. Streit v. Wilkerson (Ala.) 1917E-378. 70. Of Plaintiff in Action Uader Civil Damage Act. In an action against saloon keepers and their surety to recover for in- juries inflicted upon plaintiff by her father when drunk, the allowance of cross-exami- nation of the plaintiff's sister, as to trouble plaintiff had had with her father before the incident complained of, it being the claim of defendants that the man was of ugly temper and had beaten the plaintiff when entirely sober, is not an abuse of the court's discretion as to the character of such examination. Yonkus v. McKay (Mich.) 1917E-458. 71. Quantity of Liquor Delivered. Where, in an action under Iowa Code, 2423, to recover payments made for liquor illegally sold by defendant to plaintiff, the testi- mony of a witness delivering liquor ffer de- fendant to plaintiff and collecting the money therefor was indefinite as to the quantity of liquor sold refusal to permit defendant to show on the cross-examina- tion of the witness that he worked for other liquor houses and delivered their liquor to the plaintiff was error. Cvitano- vich v. Bromberg (Iowa) 1917B-309. 72. Cross-examination of Party as to Wealth. In an action under Iowa Code, 2423. to recover money paid for liquor illegally sold by defendant to plaintiff, questions on the cross-examination of de- fendant as to having become rich by taking orders for liquor are improper Cvitano- vich v. Bromberg (Iowa) 1917B-309. 73. Use of Documents not Admissible in Evidence. Upon cross-examination of a witness who was a deputy of the defendant WITNESSES. 895 insurance association, a copy of the asso- ciation's by-laws may be received to show under what authority the witness claimed to act, though the copy was not admissible, being secondary evidence, to prove the by- law. Schworm v. Fraternal Bankers' Ke- serve Soc. (Iowa) 1917B-373. 74. Irrelevant Matters. In a prosecu- tion for polygamy, cross-examination of a witness as to whether he had read news- paper accounts of the arrest of defendant is properly excluded. State v. Von Klein (Ore.) 1916C-1054. (2) Credibility of Witness. 75. Testimony as to Repute Scope of Cross-examination. In mandamus to com- pel a school committee to admit relators' children to the white school, from which they had been excluded, as being of mixed blood, a witness who testified that the mother of the children was generally re- puted to be of mixed blood may be cross- examined as to whether the report had been started through envy and jealousy; such evidence tending to discredit the wit- ness' testimony as to the general reputa- tion. Medlin v. County Board of Educa- tion (N. Car.) 1916E-300. 76. Denial of Former Testimony. Where, on proper foundation, testimony of a wit- ness given at a coroner's inquest is read to him, and he denies its correctness, but no further effort is made to impeach him, the admission of the testimony read is not error. Froeming v. Stockton Electric E. Co. (Cal.) 1918B-408. 77. Examination of Expert Use of Sci- entific Books. Before the contents of med- ical books may be introduced in evidence and read to the jury for the purpose of refuting the testimony of a medical expert, it is necessary that the attention of the witness shall be first called to such books, and that he shall have based his opinion upon the same, and it would be a mere evasion of the rule to allow counsel, in the cross-examination of a witness who has not either based his opinion upon the specific book nor upon the authorities generally nor whose opinion in the nature of things must necessarily be based upon authorities, to read to such witness portions of a medical work, and to ask him if he* concurs in or differs from the opinions therein expressed. Such a proceeding would be nothing more nor less than impeaching the witness by a text-book on which he has in no way relied, and where no foundation for his impeachment has been laid, and by an au- thority who is not present in court and cannot be cross-examined. State v. Bru- nette (N. Dak.) 1916E-340. (Annotated.) 78. Where, however, a medical witness has in his examination in chief based his opinion upon the medical authorities gen- erally, rather than upon the result of his own personal experience, it is permissible in cross-examination to read to him por- tions of medical works and to ask if he concurs therewith or differs therefrom, and to thus test his knowledge and reading and accuracy, even though he has not in his di- rect or cross-examination referred to any specific work. Where this is done, however, the proper practice is for the court to cau- tion the jury that it is the testimony of the witness, and not what is read from the book, that constitutes evidence in the case. State v. Brunette (N. Dak.) 1916E-340. (Annotated.) 79. Showing Animus. As tending to show the animus actuating plaintiff in an action for breach of promise to marry, and as bearing on her credibility as a witness, cross-examination of her should be allowed to show that she sought to have the presi- dent of the bank, of which defendant was cashier, discharge a girl employee, on the ground that defendant was under her in- fluence, and later changed her mind on this subject, and sought to have defendant dis- charged, stating in each instance that if this was done she would be satisfied and would not prosecute her action. Nolan v. Glynn (Iowa) 1916C-559. 80. Railroad Claim Agent. When the claim adjuster of the railroad company visited. the plaintiff the day after she was injured in alighting from the defendant's train, she being then in bed, and when he stated in his testimony, among other things, that his purpose in calling on her to see if he could help her, a rigid cross- examination of this witness was proper. Florida East Coast B. Co. v. Carter (Fla.) 1916E-1299. 81. Cross-examination of Accused Pre- vious Conviction of Crime. Kirby'a Ark. Dig. 3138. as amended by Laws 1905, p. 143, provides that a witness may be im- peached by the party against whom he is produced, by contradictory evidence by showing that he has made inconsistent statements, or by evidence that his general reputation for truth and morality render him unworthy of belief, but not by evi- dence of any particular acts, except that it may be shown by the examination of the witness, or record of the judgment, that he has been convicted of a felony. Held that, where accused in a prosecution for assault to rape became a witness in his own behalf, the court properly permitte'd the state to prove by him on cross-examina- tion that he had been previously convicted of a similar offense, to effect his credibil- ity. Hunt v. State (Ark.) 1916D-533. (3) Experts. 82. Expert Witness Cross-examination Statements in Medical Books. In an ac- 896 DIGEST. 1916C 1918B. tion for malpractice, it is proper to per- mit an expert medical witness to be asked on cross-examination whether it is true, as stated in a medical treatise of high au- thority, that it is not uncommon even in closed fractures of the femur to find gan- grene developing because of laceration or pressure, and that early amputation of the thigh above the fracture is necessary in those cases, and should be done early in order to save life, as this is a statement of surgical theory and practice, and the gist of the question is whether the witness' ex- pert opinion concurs with that of the au- thor. Barfield v. South Highlands Infirm- ary (Ala.) 1916C-1097. c. Recalling Witness. 83. Discretion of Court. The recalling of a witness for further cross-examination rests in the discretion of the trial court, and so it is not error for the court to re- fuse to recall one of the state's witnesses for the purpose of examining her as to whether she had not threatened to frame up a case against accused, there being no evidence of any conspiracy. State v. Schuman (Wash.) 1918A-633. d. Privilege of Witness. (1) Nature and Extent. 84. Privilege Against Self -Crimination Scope. The personal privilege guaranteed by Const, art. 1, 6, against self-incrimina- tion cannot be asserted unless the person to whom the privilege is given, is subject to criminal prosecution or a forfeiture, though the constitutional provision must receive a broad construction in favor of the right which it is intended to secure. People v. Cassidy (N. Y.) 1916C-1009. (2) Who may Assert Privilege. 85. Immunity as to Self-Criminating Tes- timony. N. Y. Penal Law (Consol. Laws, c. 40) 770, declaring that a person commit- ting offenses against the elective franchise is a competent witness against another per- son so offending, and may be compelled to testify, but the testimony shall not be used in any prosecution or proceeding, civil or criminal, against him, provides for immunity, and one may be compelled to testify, but his testimony cannot be used against him unless he has previously waived his right to claim immunity. Peo- ple v. Cassidy (N. Y.) 1916C-1009. (3) Waiver of Privilege. 86. Effect of Waiver of Privilege Sub- sequent Proceeding. One who voluntarily testified before a supreme court justice, in- vestigating a charge in connection with a nomination of a candidate by a judicial convention for a public office, and who ex- pressly waived immunity, did not thereby waive his constitutional right to decline to give testimony on the trial of one sub- sequently indicted for crime in connection with the nomination, because one who is entitled to the constitutional protection is so entitled in each new and independent proceeding, for otherwise he would subject himself to a new cross-examination and be required, under new and changed condi- tions, to give testimony that might not have been anticipated or intended in sub- jecting himself to examination in the prior and different proceeding. People v. Cas- sidy (N. Y.) 1916C-1009. (Annotated.) 87. The personal privilege against self- incrimination guaranteed by Const, art. 1, 6, may be waived in any case by the per- son offering himself as a witness, and, when the privilege is waived, the person is subject to cross-examination like any other witness. People v. Cassidy (N. Y.) 1916C-1009. 88. Effect of Waiver Subsequent Pro- ceeding. A person cannot waive the privi- lege against self-incrimination guaranteed by N. Y. Const, art. 1, 6, and give tes- timony to his advantage or the advantage of his friends, and at the same time and in the same proceeding assert his privilege to answer questions to his disadvantage or to the disadvantage of his friends, but a waiver of the privilege cannot extend to new and independent proceedings, where the circumstances, surroundings, and pros- pective criminal charges are different. People v. Cassidy (N. Y.) 1916C-1009. (Annotated.) Note. Waiver by witness of constitutional privilege as extending to subsequent trial or proceeding. 1916C-1012. 3. Credibility, Impeachment and Corrob- oration. a. Credibility. 89. Falsus in Uno. The maxim, "Falsus in uno, falsus in omnibus," is permissive only, and not mandatory. People v. Becker (Kan.) 1917A-600. 90. Interest in Event. The testimony of a witness for plaintiff cannot be disre- garded because another action for the same injury is pending against him, and he is interested in having the responsibil- ity placed on defendant; but the weight of his testimony is for the jury. Mahl- stedt v. Ideal Lighting Co. (111.) 1917D- 209. 91. Declarations Showing Bias. Such statements by the state's witness are ad- missible to show his bias or hostilitv. Peo- ple v. Roach (X. Y.) 1917A-410. 92. Question for Jury. The credibility of witnesses is for the jury. Louisville, etc. R. Co. v. Chambers (Ky.) 1917B-471. WITNESSES. 897 93. Conviction of Crime. The credi- bility of witnesses, though they have been convicted of crime, is for the jury, and the verdict is conclusive on appeal. State v. Schuman (Wash.) 1918A-633. 94. Sustaining Credit of Detective Showing Practice of Assuming Name. In a prosecution for conspiring to demand money to corrupt a city council, where the person from whom defendants were charged to have demanded the money was a detective engaged to entrap them, tes- timony of such detective as to whether it was usual for his profession to act under an assumed name when making investi- gations is admissible in evidence to sup- port his credibility, by showing that he had not resorted to unusual methods of detection. Hummelshime v. State (Md.) 1917E-1072. 95. Effect of False Testimony. In prosecution for stealing horses, where im- peaching testimony was taken, it is error to instruct that the testimony of impeach- ing witnesses should be weighed in the same manner as that of other witnesses, and, when impeaching witnesses attack the credibility of others and testify falsely, the jury might disregard entirely the impeaching testimony in so far as false and give to the testimony of the witnesses attacked such weight and cre- dence as is deserved. Babb v. State (Ari- zona) 1918B-925. Note. Proof of drug or liquor habit to dis- credit witness. 1918A-639. b. Impeachment. (1) Foundation. 96. Necessity of Foundation. The rule requiring foundation for impeachment is not applicable to witnesses testifying by deposition. Comstock's Adm'r v. Jacobs (Vt.) 1918A-465. 97. A witness who had examined the boiler which had exploded testified by deposition, giving his opinion as to the cause of the explosion, after which the defendant sought to introduce the deposi- tion of another witness taken by the plaintiff, but not used, for the purpose of showing, by the copy of a coroner's verdict thereto attached, that the witness who had served on the coroner's jury had signed a verdict that the cause of the ex- plosion was unknown to the jurors, thereby tending to contradict his testi- mony given by deposition. His attention was not called to this copy, but it was offered without his having an opportunity to examine or explain it, and its exclusion was not error. Denver v. Atchison, etc. E. Co. (Kan.) 1917A-1007. 57 (2) Prior Inconsistent Statements or Testimony. 98. Prior Conflicting Statement Neces- sity of Foundation. Where, on cross-ex- amining witnesses, their signed statements were produced and read to them with the design of impeachment, but with no pre- liminary foundation and without intro- ducing the statements in evidence, the testimony so elicited is inadmissible, as is that of another witness who took the statements, since impeachment by prior conflicting statements of witnesses re- quires that a foundation be laid before admitting them. Proeming v. Stockton B. Co. (Cal.) 1918B-408. 99. Prior Inconsistent Affidavit. The reading on cross-examination of so much of a prior affidavit of a witness as con- tradicted his testimony on the stand was proper to impeach such witness. Yonkus v. McKay (Mich.) 1917E-458. 100. Stenographic Report of Previous Testimony. In a prosecution for murder, where, after cross-examination of the de- fendants, the prosecution offered in evi- dence, for purposes of impeachment, a stenographic report of their previous in- consistent testimony before the coroner's jury, it being shown by the stenographer that he had taken down only part of the testimony, but that what he had taken down was correctly reproduced, and where the defendants objected to the admission of the report because it did not contain all the testimony, those parts of the report which tended to contradict defendants' testimony at the trial are admissible. Patterson v. State (Ala.) 1916C-968. 101. Testimony Before Grand Jury. In a prosecution for adultery, it is not error to admit the testimony of the clerk of the grand jury that the husband of the woman appeared before the grand jury and tes- tified agairist his wife and defendant, and that the wife appeared as a voluntary witness, and testified that she had inter- course with defendant on the night of their arrest. State v. Ayles (Ore.) 1916E-738. 102. Inconsistent Statements Founda- tion. To permit the impeachment of a witness by showing inconsistent aver- ment in a bill filed by him in another pro- ceeding, his attention must have been called thereto when he was on the stand. Partridge v. United States (D. C.) 1917D-622. 103. Inconsistent Statement T>y Prose- cuting Witness. A prosecuting witness who has testified to intercourse with the defendant, and who has stated that on her first visit to the state's attorney's of- fice she refused to tell him anything, can be asked on cross-examination whether she 898 DIGEST. 1916C 1918B. did not on that occasion tell him that the defendant did not have intercourse with her. Biggins v. State (Md.) 1916E-1117. 104. Prior Claim of Privilege. The court erred in admitting certain documentary evidence showing that the witness in a criminal case had declined to answer be- fore the grand jury certain questions pro- pounded to him on the ground that his answer to those questions might tend to criminate himself. The admission of this evidence tended to destroy or at least abridge the privilege of the witness, guar- anteed by the constitution of this state, of refusing to answer questions tending to criminate him, and to deprive him of the protection of that privilege which it was the purpose of the constitution to give. Loewenherz v. Merchants', etc. Bank (Ga.) 1917E-877. (Annotated.) (3) Conviction of Crime or Arrest. 105. Former Conviction How Proved. Under Iowa Code, 4613, declaring that a witness may be interrogated as to his pre- vious conviction for felony, but no proof is competent, except the record thereof, one testifying in his own behalf may be impeached by introduction of the record of his conviction of a felony in a sister state. State v. Foxton (Iowa) 1916E-727. (4) Insanity. 106. Proof of Insanity. The state may, to impeach the credibility of a witness for the defense, establish by cross-examina- tion that the witness had been .adjudged insane and that said judgment had never been set aside. Mason v. State (Tex.) 1917D-1094. (5) Impeachment by Party Calling Wit- ness. 107. Impeachment by State of Its Own Witness. Where the court allowed the state to contradict its own witness, who changed her testimony from that given on the preliminary hearing, it may be pre- sumed, in support of the ruling, that the state was taken by surprise, and hence had the right to interrogate the witness respecting her previous statements. State v. Inlow (Utah) 1917A-741. 10S. By Party Calling Wtiness. A party, by calling a witness, vouches for his credi- bility, and cannot impeach him; but this does not prevent him from asking to have the truthfulness of the witness' testimony submitted to the jury, if it is inherently improbable or is contradicted. Carlisle v. Norris (N. Y.) 1917A-429. (6) Attacking Character or Reputation. 109. Where the evidence merely raises a suspicion that witnesses for the state used narcotics, and there is no evidence that they are habitual users or under the in- fluence of drugs at the time of testifying, evidence of the effect of drugs on the memory is properly refused. State v. Schuman (Wash.) 1918A-633. (Annotated.) 110. Where on cross-examination the prosecuting witness denied that she used cocaine, but was not asked whether she told others that she used the drug, she cannot be impeached by extrajudicial statements that she used such drug. State v. Schuman (Wash.)-1918A-633. (Annotated.) 111. Use of Drugs. Where the prosecu- ting witness denied on cross-examination that she used cocaine, which question was asked to affect her credibility, the defense is concluded by her answer, the matter be- ing wholly collateral to the offense charged. State v. Schuman (Wash.) 1918A-63. (Annotated.) c. Corroboration. 112. Proof of Good Reputation. Where contestant's principal witness is impeached by proof that at the time of the second trial he was incarcerated in a penitentiary contestant may corroborate the witness by proof of his good reputation, under the common law and Mont. Rev. Codes, 8026. In re Williams' Estate (Mont.) 191 7E- 126. WOMEN. See Husband and Wife; Divorce; Marriage. Limiting hours of employment, see Labor Laws, 3-5. WORDS ACTIONABLE PEE SE. See Libel and Slander, 6, 16-21, 24-^36. WORDS AND PHRASES. "Accident," see Master and Servant, 194- 202. "Accidental means," see Accident Insur- ance, 15, 16, 18. "Across," see Telegraphs and Telephones. "Action," see Actions and Proceedings, i; Attorneys, 40. "Actual," see Eminent Domain, 13. "Actual waste," see Waste, 1. "Added," see Food, 13. "Advancements," see Advancements, 1. "Aforesaid," see Libel and Slander, 82. "Aider and abettor," see Torts, 10. "Alien enemy," see War, 10. "All contracts," see Life Insurance, 30. "All damages and costs," see Bankruptcy, 29. "All municipal power," see Intoxicating Liquors, 3. "All the rest, residue and remainder," see Wills, 202. "Alteration," see Alteration of Instru- ments, 1. [WORDS AND PHRASES. 899 "And" synonymous with "or," see Banks and Banking, 30. "Another," see Husband and Wife, 10. "Any/' see Abduction, 2; Mines and Min- erals, 1; Municipal Corporations, 21. "Any corporation," see Joint Adventure, 7. "Any other estate or interest therein," see Deeds, 70. "Any person," not including men, see Pros- titution, 2. "Area," see Streets and Highways, 31. "Areaway," see Streets and Highways, 30. "Assets," see Executors and Administra- tors, 2, 13. "Associates in office," see Public Officers, 4, 21. "Average annual earnings," see Master and Servant, 274. "Blacklist," see Labor Combinations, 7. "Blind tiger," see Disorderly Houses, 1; Intoxicating Liquors, 110. "Boatable stream," see Evidence, 18. "Boats," see Master and Servant, 59. "Boycott," see Labor Combinations, 4. "Bona fide citizens," see Corporations, 1. "Breach of the peace," see Breach of Peace, 1, 3, 4. "Breaking," see Burglary, 1. "Bric-a-brac," see Wills, 200. "Building," see Buildings, 1. "Business," see Master and Servant, 41. "Capitalize," see Death by Wrongful Act, 50. "Census," see Municipal Corporations, 158. "Certiorari." see Certiorari, 1. "Charitable trust," see Charities. "Charity," see Charities, 1, 3. "Chattels," see Executors and Administra- tors, 2. "Child," see Exemptions, 4. "Children," see Wills, 199. "Chiropractic," see Physicians and Sur- geons, 1. "Chiropractor," see Physicians and Sur- geons, 1. "Choses in action," see Executors and Administrators, 2. "Circumstantial evidence," see Evidence, 161. "Citizen." see Corporations, 2, 3. "Civil conspiracy," see Conspiracy, 13. "Common nuisance." see Nuisances, 7. "Commerce," see Fish and Game, 21; In- terstate Commerce, 1; Master and Servant, 41. "Communication," see Witnesses, 19. "Commute," see Master and Servant, 280. "Company," see Trademarks and Trade- names, 6. "Completed," see Taxation, 78, 79. "Condemnation," see Eminent Domain, 3. "Condonation," see Divorce, 17. "Condition," see New Trial, 37. "Conduct," see Prostitution, 6. "Consortium," see Husband and Wife, 35. "Contents," see Wills, 172. "Continuous and immediate disability," see Accident Insurance, 28. "Contractor," see Mechanics' Liens, 7. "Conveyance," see Frauds, Statute of, 12. "Conveyances of land," see Deeds, 70. "Counties," see Trees and Timber, 18'. "Courts," see Master and Servant, 117. "Credible," see Wills, 23. "Credible witness," see Wills, 25. "Crime," see Criminal Law, 7. "Cruel and unusual punishment," see Sen- tence and Punishment, 14. "Days," see Time, 2. "Dealer," see Junk Dealers and Junk Shops, 1, 2. "Deadly weapon," see Weapons, 3. "Dealer," see Interstate Commerce, 4; Licenses, 25. "Debt," see Bankruptcy, 4; Imprisonment for Debt and in Civil Cases, 2; Mort- gages and Deeds of Trust, 20; Munici- pal Corporations, 114. "Dedication," see Dedication, 4, 10. "Deed," see Mechanics' Liens, 5. "Deliver," see Intoxicating Liquors, 81. "Delivery," see Deeds, 4. "Delusion," see Wills, 62. "Dependent," see Master and Servant. 266, 269. "Desire," see Wills, 192, 194, 195. "Disorderly house," see Disorderly Houses, 9 "Distinguishing mark," see Elections, 71. "Domestic," see Animals, 1. "Droit de detraction," see Taxation, 172. "Duress," see Contracts, 3. "Dwelling," see Accident Insurance, 3. "Dwelling house," see Elections, 3. "Dying without issue," see Perpetuities, 8. "Elevator," see Master and Servant, 173. "Eminent domain," see Eminent Domain, 1. "Emoluments," see Judges, 4. "Employee," see Master and Servant, 244, 249, 264. "Enticement," see Husband and Wife, 55. "Estates," see Executors and Administra- tors, 1. "Estimate of population," see Municipal Corporations, 158. "Etc.," see Mechanics' Liens, 24. "Excise tax," see Taxation, 147. "Execution," see Deeds, 3. "Executor de son tort," see Executors and Administrators, 69. "Executory devise," see Wills, 209. "Expenses," see Death by Wrongful Act, 48. "Express," see States, 6. "Express agreement," see Landlord and Tenant, 21. "Eye-witness," see Accident Insurance, 25. "Feloniously," see Homicide, 6. "Felony," see Criminal Law, 7. "Ferry boat," see Ferries, 1. "Fictitious payee," see Bills and Notes, 39. "Fiduciary relation," see Fraud, 7. "Fly power," see Corporations, 81. 900 "Food," see Food. "For," see Process, 9. "For residence purposes," see Deeds, 50, 51. "Fraternal beneficiary association," see Beneficial Associations, 5. "From," see Time, 5, 7. "Fruit stand," see Streets and Highways, 22. "Fugitive from justice," gee Extradition, 2. "Game," see Animals, 26. "General," see Descent and Distribution, 5. "Goods," see Frauds, Statute of, 11. "Goods and chattels," see Executors and Administrators, 2. "Goods, chattels, or assets of any estate, real or personal," see Executors and Administrators, 2. "Hatchway," see Streets and Highways, 30. "Hazardous," see Master and Servant, 257. "Head of a family," see Executions, 4. "Heirs," see Wills, 183-190. "Heirs at law," see Wills, 185, 186, 189. "Holder," see Bills and Notes, 7, 42. "Holder in due course," see Bills and Notes, 28, 42, 46. "Householder," see Executions, 4. "House of ill fame," see Disorderly Houses, 6. "Id est," see Libel and Slander, 82. "Immediate disability," see Accident In- surance, 2. "Immoral purposes," see Prostitution, 12, 13. "Implied powers," see Corporations, 15. "Infamous crime," see Criminal Law, 5. "Injury," see Master and Servant, 196. "In the course of" or "out of" the employ- ment, see Master and Servant, 46-51. "Independent contractor," see Independent Contractors, 3, 4, 6. "Indictment," see Grand Jury, 2. "Indispensable party," see Parties to Ac- tions, 2. "Incidental powers," see Corporations, 14. "Increase of salary," see Judges, 4. "Inherit," see Tenants in Common, 2. "Inheritance tax," see Taxation, 28. "Innkeeper," see Innkeepers, 2. "Innuendo," see Libel and Slander, 82. "Insane delusion," see Wills, 59, 60, 63. "Insanity," see Insanity, 24. "Insolvent," see Banks and Banking, 67 r 68. "Insurable interest," see Life Insurance, 6, 13. "Intemperance," see Public Officers, 48. "Interest," see Judges, 13. "Jeopardy for the same offense," see For- mer Jeopardy, 2. "Jeopardy of life or limb," see Former Jeopardy, 2. "Jeopardy of life and liberty for the same offense," see Former Jeopardy, 2. "Jitney," see Carriers of Passengers, So. "Joint-stock corporation," see Joint Ad- venture, 8. DIGEST. 1916C 1918B. "Judicial notice," see Evidence, 1. "Judicial power," see Constitutional Law, 12. "Laborer," see Mechanics' Liens, 10. "Law," see Municipal Corporations, 52. "Lawful heirs," see Wills, 1S4, 188. "Liabilities," see Sales, 14. "Libel," see Libel and Slander, 4, 29. "Libclous per se," see Libel and Slander, 16. "Lost" distinguished from "mislaid," see Lost Property, 3. "Loss of arm," see Master and Servant, 205. "Loss of eye," see Master and Servant, 204. "Loss of finger," see Master and Servant, 203. "Loss of hand," see Accident Insurance, 19. "Lottery," gee Gaining, 2. "Lying in wait," see Homicide, 60. "Malice," see Libel and Slander, 12. "Malice aforethought," see Rolbery, 1. "Malice in fact," see Libel and Slander, 11. "Malicious act," see Torts, 2. "Mania," see Wills, 59. "Market price," see Sales, 4. "Materialman," see Mechanics' Liens, 10. "May" meaning "must," see Banks and Banking, 69. "Memory," see Libel and Slander, 35. "Middle of the main channel," see States, 4. "Middle of the river," see States, 4. "Mining lease," see Mines and Minerals, 5. "Misdemeanor," see Criminal Law, 7. "Mislaid," distinguished from "lost," see Lost Property, 3. "Mistake of fact," see Wills, 102. "Monomania," see Wills, 59. "Monopoly," see Monopolies, 1. "Moot case," see Actions and Proceedings, 7. "More or less," see Deeds, 45. "Mortgage," see Mortgages and Deeds of Trust, 2, 20. "Motor car," see Automobiles, 4. "Motorcycle," see Automobiles, 4. "Motor vehicle," see Automobiles, 5; Hom- icide, 5. "Municinal corporation," see Municipal Corporations, 4. "Natural heirs," see Deeds, 41. 42. "Near beer," see Intoxicating Liquors, 10. "Necessary," see Taxation, 56. "Negotiate," see Bills and Notes, 7. "Negotiated," see B lls and Notes, 23. "Notorious," see Descent and Distribution, 5. "Nuisance per accident," see Nuisances, 3. "Obligation," see Assignments, 14. "Obtain," see False Pretenses, 5. "Office," see Public Officers, 7. "Officers," see Municipal Corporations, 14' Public Officers, 2. WORDS AND PHRASES. 901 "Operating," see Street Railways, 19. , "Option," see Vendor and Purchaser, 2. "Or" synonymous with "and," see Banks and Banking, 30. "Or" construed "and," see Charities, 25. "Or," see Wills, 198. "Order of court," see Judgments, 2, 11. "Ordinary," see Schools, 25. "Ordinary care by child," see Negligence, 51. "Original contractor," see Mechanics' Liens, 10. "Or other power," see Master and Servant, 255. "Other," see Statutes, 68; Wills, 197. "Others," see Wills, 197. "Other timber," see Liens, 4. "Otherwise," see Public Officers, 23. "Out of" and "in course of" employment, see Master and Servant, 206-230. "Owner of the hotel," see Landlord and Tenant, 13. "Parole," see Pardons, 3. "Partnership," see Partnership, 2. "Par value," see Counties, 11. "Passenger," see Carriers of Passengers, 11. "Passenger depot," see Railroads, 48. "Pay over and deliver," see Wills, 218. "Peddler," see Hawkers and Peddlers, 1, 2. "Pending," see Actions and Proceedings, 8. "Pending appeal," see Appeal and Error, 47. "Permissive waste," see Waste, 1. "Perquisite," see Judges, 4. "Perpetuity," see Perpetuity, 2. "Person" includes corporation, see Limita- tion of Actions, 5. "Persons," see Public Officers, 26. "Plant," see Master and Servant, 174. "Police power," see Constitutional Law, 14, 25, 27, 39. "Preliminary injunction," see Injunctions, 38. "Premises" of school, see Intoxicating Liquors, 71. "Presentment," see Grand Jury, 2. "Private nuisance," see Nuisances, 1. "Proba.ble cause," see Malicious Prosecu- tion, 7. "Proceeding," gee Actions and Proceedings, 2; Attorneys, 40. "Property," see ConstitutionaTLaw, 48. "Prostitution," see Prostitution, 1. "Public purpose," see Trees and Timber, 6. "Public service," see Taxation, 2. "Public use," see Public Service Commis- sions, 4; Telegraphs and Telephones, 1. "Public utility," see Public Service Com- missions, 3; Telegraphs and Tele- phones, 1. "Qualified privilege," see Libel and Slan- der, 48. "Quotient verdict," see Verdicts, 4. "Razor," see Weapons, 2. "Rape," see Rape, 1. "Realty," see Trademarks and Trade- names, 6. "Reasonable time," see Time, 6. "Recrimination," see Divorce, 23. "Recent," see Larceny, 9. "Receiver," see Receivers, 1. "Relator," see Quo Warranto, 6. "Reputed owner," see Mechanics' Liens, 7. "Reserved," see Dedication, 20. "Residence," see Deeds, 51: Limitation of Actions, 37. "Resident," see Fish and Game, 3. "Residing," see Beneficial Associations, 4. "Residue," see Wills, 31. "Res ipsa loquitur," see Independent Con- tractors, 10. "Respondent," see Quo Warranto, 6. "Restaurant keeper," see Innkeepers, 2. "Restraining order," see Injunctions, 38. "Revenue," see Schools, 17, 18. "Revert," see Wills, 193. "Right heirs and distributees," see Wills, 190. "Sawlogs," see Usages and Customs, 1. "Scilicet," see Libel and Slander, 8fc. "Second delivery," see Escrow, 1. "Securities," see Taxation, 163. "Self-executing," see Constitutional Law, 96. "Sending," see Libel and Slander, 165. "Serious illness," see Life Insurance, 17. "Servant," see Master and Servant, 264. "Ship," see Intoxicating Liquors, 81. "Sign," see Wills, 8, 9. "Signature," see Wills, 9. "Slanderous per se," see Libel and Slan- der, 19. "Spoliation," see Alteration of Instru- ments. "Special deposit," see Banks and Banking, 41, 42. ' "Specific," see Eminent Domain, 13. "Spendthrift trust," see Trusts and Trus- tees, 6. "State officers," see Public Officers, 1. "Stepfather," see Marriage, 1. "Stock in a corporation," see Corporations, 75. "Strict," see Municipal Corporations, 37. "Strictly," see Municipal Corporations, 37. "Student fireman," see Master and Servant, 63. "Suicide," see Life Insurance, 40. "Superintendence," see Master and Ser- vant, 28. "Subcontractor," see Mechanics' Liens, 10. "Subject of the action," see Set-off and Counterclaim, 3. "Subject," see Trees and Timber, 9. "Temporary injunction," see Injunctions, 38. "Tent," see Buildinsrs, 1. "Terms," see New Trial, 37. "Terms" synonymous with "Terms and Con- ditions," see New Trial, 37. "Then," see Indictments and Informations, 15. "Then and there," ee Indictments and In- formations, 15. "Thing in action." see Assignments, 14. "Timber," see Trees and Timber, 1. 902 DIGEST. 1916C 1918B. "Tool or instrument," see Landlord and Tenant, 35. "Transfer," see Vendor and Purchaser. "Twice in jeopardy of punishment," see Former Jeopardy, 2. "Ultra vires contracts," see Corporations, 13. "Undue influence," see Wills, 97. "Value," see Bills and Notes, 50. "Vehicle," see Master and Servant, 173. "Void marriage," see Marriage, 3. "Voidable marriage," see Marriage, 3. "Voluntary waste," see Wast, 1. "Volunteer," see Master and Servant, 217. "Wages," see Judges, 4. "Waste," see Waste, 1. "Wholesale vendor," see Licenses, 24. "Wilfully," see Assault, 1. "Wilfully and unlawfully," see Indictments and Informations, 13. "Will," see Wills, 194. 1. Act of God Definition. An "act of God" is the action of an irresistible physi- cal force not attributable in any degree to the conduct of man and not in reason pre- ventable by human foresight, strength, or care. Hecht v. Boston Wharf Co. (Mass.) 1917A-445. Note. Meaning of "all" as used in prohibitory or regulatory statute. 1917E-39. 2. "All Coal." The grantee's acceptance of a deed conveying the surface, but ex- cepting and reserving "all the coal in, un- der and upon said tract of land, and the right aad privileges of the said parties of the first part, their heirs, and assigns to enter upon said tract of land and excavate and mine, prepare for market, and remove said coal with all the usual mining privi- leges," does not waive his right of sub- jacent support. Stonegap Colliery Co. v. Hamilton (Va.) 1917E-60. (Annotated.) Note. Meaning of "all damages." 1917E-82. 3. "All Matters." In an action to set aside a deed and recover the rental value of the land and the value of personalty converted by defendant, an agreed order of settlement, entered November 11, 1911, and reciting that "all matters between them are settled, and as to all matters of accounts between said parties, this cause is now dismissed settled," includes the rent for the year 1911, especially where an- other clause of the agreed order specified a matter other than such rent as being ex- cepted; the word "all" being comprehen- sive enough to embrace not only such mat- ters of account as were set up in the pleadings and judgment, but also such matters as were incidental to the litiga- tion, or might thereafter have been as- serted by either party against the other in the absence of the compromise settle- ment. Middleton v. Stone (Ky.) 1917E-84. Notes. Meaning of "all matters." 1917E-87. Meaning of "all property" as used in in- strument, statute, etc. other than will. 1917E-58. Legal meaning of "any." 1917E-2. 4. "Any Other Purpose" Defined. Wis. St. 1913, 4394, provides that any person who shall set or fix in any manner any gun or other firearm to kill game of any kind by coming in contact therewith, or with any string, wire, or other contrivance attached thereto, by which the same may be discharged, "or for any other purpose," shall be punished, etc., and if the death of any person is caused thereby, he is deemed guilty of "manslaughter in the second degree." Held, that the phrase "or for any other purpose" was not to be construed, under the rule ejusdem gen- eris, as limited to the setting of guns to kill game, etc., but prohibited the setting of a gun for any puroose whatever other than with intent to effect the death of or physical injury to a human being or the wrongful destruction of property, or for a purpose evincing a depraved mind, regard- less of danger to human life, so that where defendant set a gun in his orchard to pre- vent persons from stealing his apples and decedent was shot and killed thereby, the court properly limited the jury to a con- viction of murder in the first or second degree and manslaughter in the second de- gree, and refused to submit manslaughter in the fourth degree or excusable homi- ride. Schmidt v. State (Wis.) 1916E- 107. (Annotated.) 5. Business. The word "business" is commonly employed in connection with an occupation for livelihood or profit, but is not limited to such pursuits. Griffin v. Russell (Ga.) 1917D-994. "Commodity," legal meaning. 1916D-986. 6. "Constitutional Bight." The expres- sion "constitutional right" means a right guaranteed to the citizens by the constitu- tion and so guaranteed as to prevent legis- lative interference therewith. Delaney v. Plunkett (Ga.) 1917E-685. 7. "Damage by the Elements." Fire is one of the elements included in the ex- pression "damages by the elements ex- cepted," where that phrase is used in a lease of a building. O'Neal v. Bainbridge (Kan.) 1917B-293. (Annotated.) 8. "Distinct." As defined by lexicog- raphers, "distinct" means "clear to the senses or mind"; "easily perceived or un- derstood"; "plain"; "unmistakable." Hill v. Norton (W. Va.) 1917D-489. WORDS AND PHKASES. 903 Note. "From" as word of inclusion or exclu- sion. 1918A-924. 9. Hatch Definition, "Hatch" is a nautical term and generally signifies an opening in the deck of a ship. State v. Armstrong (Neb.) 1917A-554. 10. "Horse." The use of the word "horse" as a generic term in pleading in- cludes "mare." McCarver v. Griffin (Ala.) 1917C-1172. 11. The term "horse power," though originally employed to designate the power of a steam engine, has come to mean the unit used in estimating the power re- quired to drive machinery. Eastern Pa. Power Co. v. Lehigh Coal, etc. Co. (Pa.) 1916I>-1000. (Annotated.) 12. Meanimg of "Inherit." E. I. Gen. Laws 1909, c. 312, 10, provides that ad- ministration of the estate of a person dying intestate shall be granted, if the deceased is a married woman, to her hus- band, if competent, who shall not be com- pelled to distribute the surplus of the per- sonal estate after the payment of her debts, but shall be entitled to retain the same for his own use. Testator be- queathed $5,000 and certain real estate to a trustee in trust for the benefit of C. for life, with power to manage the same gen- erally and to sell and reinvest the pro- ceeds if desirable. A subsequent clause of the will declared that in all cases where testator had given property in trust for the benefit of other persons, and had not specially provided for its disposition on their death, the trustee, , on such event, should pay and convey the property in fee, discharged of all trusts, to the persons who, by the laws of Rhode Island would inherit it had the persons, for whose bene- fit it was given, died seized and possessed thereof in fee. It is held, that the real property having been converted into per- sonalty by the trustee during the life- time of the beneficiary for life, the word "inherit" could not be construed as hav- ing been used by testator in its strict legal sense as designating those persons only who would inherit real property from an intestate ancestor, but the word was used in the sense of "take"; and hence, on the death of the beneficiary for life, the remainder of the trust fund so be- queathed to her passed to her husband and not to her heirs. Quinn v. Hall (R. I.) 1917C^373. (Annotated.) Notes. Meaning of "inherit," "inherited," etc. 1917C-386. What constitutes "loss" of eyesight. 1918A-531. 13. Masculine Words as Extending to Females Rule Inapplicable. Iowa Code, 48, par. 3, providing that words import- ing masculine gender only may be ex- tended to females, does not operate where its application violates reason and nulli- fies the intent of the legislature. State v. Gardner (Iowa) 1917D-239. 14. "Natural Rights" and "Civil Rights" Defined. By the term "natural rights" is meant those rights which are necessarily inherent, rights which are innate and which come from the very elementary laws of nature, such as life, liberty, the pursuit of happiness, and self-preservation. By the term "civil rights," in its broader sense, is meant those rights which are the outgrowth of civilization, which arise from the needs of civil as distinguished from barbaric communities, and are given, de- fined, and circumscribed by such positive laws, enacted by such communities as are necessary to the maintenance of organized government, and the term comprehends all rights which civilized communities under- take, by the enactment of positive laws, to prescribe, abridge, protect, and en- force. Byers v. Sun Savings Bank (Okla.) 1916D-222. Note. Meaning of term "natural heirs." 1917A- 1159. 15. In that act the word "or" between the words "ship" and "convey" should be read "and"; those conjunctions being fre- quently convertible. Bird v. State (Tenn.) 1917A-634. (Annotated.) 16. "Or Elsewhere" Defined. It is clearly manifest that the general words "or elsewhere," contained in the statute, were used for the purpose of including other places than are suggested by the specific words "at a house of ill fame or at any other place of like character." State v. Sanders (La.) 1916E-105. Note. Legal meaning of "otherwise." 1916C- 644. 17. Parens Patriae Definition. The words "parens patriae," meaning "father of his country," were applied originally to the king, and are used to designate the state, referring to its sovereign power of guardianship over persons under disabil- ity. In re Turner (Kan.) 1916E-1022. Notes, Meaning of "plant" as used with refer- ence to business. 1917A-317. What is included in term "premises" as used with respect to land. 1916C-1192. 18. Distinction between "Rent" and "Royalty." Where a deed from a grantor who had owned the land for years and knew of the existence of mines, they hav- ing been actually worked in his lifetime, 90-4 to his sons, provided that, if his wife sur- vived him, she should receive one-half of all rents from the place from all resources whatsoever, she is entitled to share in the income from the mines while operated on. a royalty basis, as well as all other in- come and proceeds from the farm, regard- less of the manner and form of payment or the name by which it might be desig- nated; since, while "royalty" is a more appropriate word where rental is based upon the quantity of coal or other mineral that is or may be taken from a mine, the terms "rent" and "royalty," as the result of usaee and custom, are often used in- terchangeably, and "all resources whatso- ever" necessarily include the mines. Saulsberry v. Saulsberry (Ky.) 1916E- 1223. (Annotated.) Notes. Distinction between rent and royalty. 1916E-1225. Meaning of term "recent" or "recently." 1918A-8U. 19. "Revenue" Meaning of Term. The constitution, in limiting appropriations which may lawfully be made by each general assembly for the ordinarv and con- tingent expenses of the government until the expiration of the first fiscal quarter after the adjournment of the next regular session to the amount of revenue author- ized by law to be raised in such time, does not regard the amount of the state's total revenue as merely the amount of its moneys raised by direct taxation. Fergus v. Brady (111.) 1918B-220. (Annotated.) Note. Legal meaning of "revenue." 1918B-200. 20. Meaning of "Said." Where the de- scription of a zone of a paving district, which had referred to block 10, subse- auentb* refers to said lot 10, "said" must be treated as "aforesaid," and the word "lot" as "block"; the error being a mere clerical one. Moore v. Paving Improve- ment District (Ark.) 1917D-599. (Annotated.) Note. Legal meaning of "said." 1917D-603. 21. The word "serious" is not generally used to signify a dangerous condition, but rather to define a grave, important, or weighty trouble. So has v. Equitable Life Assurance Soc. (N. Car.) 1918A-679. (Annotated.) 22. "Strand." The word "strand" sig- nifies tne shore or bank of the sea or a river. Harris v. St. Helens (Ore.) 1916D- 1073. 23. "Unfaithfully," "Improperly" and "Illegally" Defined. The word "unfaith- fully" signifies bad faith. The word "im- properly" implies such conduct as a man DIGEST. 1916C 1918B. of ordinary and reasonable care and pru- dence would not, under the circumstances, have been guilty of. The word "illegally" means unlawfully and contrary to law (citing "Words and Phrases, Unfaithfully; see also Words and Pbarses, First and Second Series, Illegal). State v. American Surety Co. (Idaho) 1916E-209. 24. "Wases" and "Salary" Distin- guished, The word "salary," as used in a city ordinance providing for the com- pensation of firemen, is synonymous with "wages," though the word "salary" is sometimes understood to relate to com- pensation for official or other services, as distinguished from "wages," which is the compensation for labor. Walsh v. Bridge- port (Conn.) 1917B-318. (Annotated.) 25. "Wharf." A wharf is a bank or other erection on the shore of a harbor, river, or canal, for the convenience of lad- ing and unlading ships or boats. Harris v. St. Helens (Ore.) 1916D-1073. Note. Distinction between "wages." 1917B-321. "salary" and WORK AND LABOR. Actionable deceit in procuring services, see Fraud, 8. 1. Recovery on Express Contract In- structions. In an action against a de- cedent's estate to recover for services ren- dered decedent under an express contract an instruction that direct evidence of such agreement was not necessary if from all the facts and circumstances in evidence the jury could find, by a preponderance, that there must have been such an agreement is not defective as authorizing plaintiff to recover on an implied contract, since the instruction simply states the correct rule that an express agreement can be proved by facts and circumstances as well as by direct evidence. Estate of Oldfield (Iowa) 1917D-1067. 2. Services by Member of Household Express Contract Instructions. In an ac- tion against a decedent's estate to recover for services rendered decedent, the in- struction that if the plaintiff established the rendition of services under an ex- press agreement by which she was to b paid therefor, she would be entitled to recover, though such services may have been rendered at a time when she was furnished a home, food, and clothing and was living with decedent in his home and with his family, is not defective as as- suming that there was evidence of an express agreement, and that such agree- ment did not contemplate payment for services by furnishing a home, food, cloth- ing, etc., when considered in connection with other instructions, thnt thp furnish- ing ef a home, food, and clothing to one "WORKMEN'S COMPENSATION ACTS WRONGS 905 performing services raises a presumption that neither expects to pay nor receive compensation, but that the services are gratuitous, which presumption the plain- tiff must overcome by a preponderance of the evidence, and, failing which, the ver- dict should be for the defendant. Estate of Oldfield (Iowa) 1917D-1067. 3. Recovery not Excessive. Where plaintiff worked on decedent's farm for seven years, the work consisting of house- hold duties and manual labor on the farm, a verdict of $3,164 is not excessive. Es- tate of Oldfield (Iowa) 1917D-1067. 4. Remedy for Breach Option to Sue at Once for Damages. In case of a re- jection of services by one who has agreed to make compensation by will the promisee may immediately renounce the contract and sue decedent for damages. McCurry T. Purgason (N. Car.) 1918A-907. WORKMEN'S COMPENSATION ACTS. See Master and Servant, 101-364. WORTHLESS CHECK. See False Pretenses, 3, 4. WRECKER. As within Federal Employers' Liability Act, see Master and Servant, 65. WRITING. Parol evidence to vary, see Evidence, 114 131. Notice to be written, see Notice, 1. WRIT OF CERTIORARL See Certiorari. WRIT OF ENTRY. See Entry, Writ of. WRIT OF ERROR. See Appeal and Error. Writ as general appearance, see Appear- ances, 5. WRIT OF HABEAS CORPUS. See Habeas Corpus. WRIT OF MANDAMUS. See Mandamus. WRIT OF PROHIBITION. See Prohibition. WRIT OF QUO WARRANTO. See Quo Warranto. WRITS. No action on dissolution of, see Malicious Prosecution, 3. WRONGS. See Torts. INDEX TO THE NOTES IN ANNOTATED CASES (American and English) VOLUMES 1916 C TO 1918 B BANCROFT-WHITNEY COMPANY EDWARD THOMPSON COMPANY SAN FKANCISCO NOBTHPORT, L. I., N. Y. 1918 1918 INDEX TO THE NOTES IN ANN. CAS. 1916C-1918B ABANDONMENT. See Alienation of Affections; Appeal and Error; Eminent Domain; Homestead; Husband and Wife. ABATEMENT. See Actions; Nuisances. ABBREVIATIONS. See Names. ABORTION. Woman upon -whom abortion is committed as accomplice, 1916C-629. ABSENCE. See Death; Homestead. ABUSIVE LANGUAGE. See Breach of Peace; Disorderly Conduct. ABUTTING OWNERS. See Streets and Highways. ACCELERATION OF INDEBTEDNESS. See Usury. ACCEPTANCE. See Bills and Notes; Contracts; Corpora- tions; Dedication. ACCESSION. Mortgage on animals as including in- crease, 1917C-1173. Eight of chattel mortgagee or conditional vendor to accession to property mort- gaged or sold, 1917C-1170. ACCESSORIES. See Fixtures. ACCIDENT. Disease as an accident, 1918B-297. See also Accident Insurance; Confusion of Goods; Workmen's Compensation Acts. ACCIDENT INSURANCE. Construction of policy; construction of clause in accident insurance policy ex- cepting death caused by disease, 1917C-463. construction of hernia clause in accident insurance policy, 1918A-710. construction of provision in accident in- surance policy relating to injury "caused by burning of building" or similar phrase, 1917C-410. construction of sunstroke clause in acci- dent insurance policy, 1918A-523. disease as accident under accident in- surance policy, 1918B-298. intentional exertion as "accidental means" of injury within accident in- surance policy, 1917A-88. right to recover under accident insur- ance policy for injuries received while fighting, 1916C-579. what constitutes "loss" of eyesight within accident insurance policy, 1918A-531. what constitutes loss or severance of limb or member within meaning of accident insurance policy, 1917B-1008. Standard policy: construction of statute requiring standard accident insurance policy, 1916D-670. Waiver of conditions: waiver of provision in accident insurance policy limiting time to bring suit thereon, 1916C-449. waiver of provision in accident insur- ance policy requiring notice of injury or death to be given within certain time, 1917A-114. Workmen's compensation acts: receipt of insurance as affecting right to com- pensation under workmen's compensa- tion act, 1918B-635. (1) ACCOMPLICES. DIGEST. 1916C 1918B. ACTIONS Continued. Confession of defendant as sufficient cor- roboration of accomplice, 1916C-570. Woman upon whom 'abortion is committed as accomplice, 1916C-629. ACCORD AND SATISFACTION. Part payment with receipt in full as satis- faction of liquidated and undisputed debt, 1917A-130. ACCOUNTANTS. See Expert Accountants. ACCOUNTS. Lien of attorney on account in Ms posses* sion connected with litigation, 1917D- 149. See also Guardians; Evidence. ACKNOWLEDGMENTS. Evidence requisite to impeach acknowledg- ment, 1917A-368. Stockholder or officer of corporation in- terested in instrument as disqualified to take acknowledgment thereof, 1916D-705. Merger or suspension of civil action predi- cated on commission of felony, 1916C 847. Moot case: what constitutes moot case, 1918B-558. Nature: nature of action for penalty for violation of intoxicating liquor stat- ute, 1916E-870. nature of action or proceeding for vio- lation of municipal ordinance, 1917A 330. See also Agency; Amendment; Assault; Assignments; Attachment; Attorneys; Death by Wrongful Act; Divorce; Eminent Domain; Executors and Ad- ministrators; Foreign Corporations; Fraudulent Sales and Conveyances; Jury; Libel and Slander;' Lost In- struments; Malicious Prosecution; National Banks; Parties to Actions; Res Judicata; Subrogation; Tele- graphs and Telephones; Witnesses. ACT OF GOD. ' Liability of carrier for damages caused by act of God co-operating with its own negligence, 1918A-581. Loss resulting from rise or fall of tide as due to act of God, 1917A-450. ACQUIESCENCE. See Nuisances, ACQUITTAL. See Malicious Prosecution, ACTIONS. Abatement and revival: dissolution of cor- poration as abating action against it to recover penalty or forfeiture, 1917A-1180. survival of action for negligence of at- torney, 1917B-48. survival of right of action for con- spiracy to restrain trade, 1916C-726. validity of statute providing for sur- vival of action for personal injuries after death of person injured, 1917E- 1171. Alien enemies: right of alien enemy to de- fend action, 1917C-211. right of alien enemy to sue or continue suit, 1917C-204. right to sue alien enemy, 1917C-211. Assignability of right of action for pen- alty, 191GD-893. Form of action for negligence or breach of duty by attorney, 1917B-45. Injunctions: power of court to enjoin pro- ceedings in another state or country, 1918B-1150. ADDITIONAL INSTRUCTIONS. See Instructions. ADDITIONS. See Chattel Mortgages. ADDRESS. See Municipal Corporations. ADHERENCE TO ENEMIES. See Treason. ADJOINING LANDOWNERS. Liability of adjoining landowner for use of party wall in absence of agreement to contribute, 1916E-1165. Liability of landowner excavating on his own premises for resulting injury to adjoining building, 1917A-352. Eight of landowner to sink well and in- tercept subterranean waters supplying neighbor's well or spring, 1917C-106. Eights of adjoining landowners with re- spect to tree on or overhanging boundary line, 1918B-1157. Termination of right to maintenance of party wall, 1916C-374. ADMINISTRATORS. See Executors and Administrators. INDEX TO THE NOTES. ADMISSIONS AND DECLARATIONS. Accused person: admissibility of prior ex- culpatory statement by accused to contradict evidence given by him or on his behalf at trial, 1917D-1101. Deeds: admissibility of declaration of grantor after conveyance as tq^ deliv- ery of deed, 1916E-713. Infants: declarations of infant at time of assault or homicide as part of res gestae, 1916C-1187. Master and servant: admissibility in pro- ceeding under workmen's compensa- tion act of statement by injured employee respecting cause of injury, 19160-775. Pleading: admission from inconsistent de- fenses in pleading, 1917C-740. Production of documents: effect on right to production of document of admis- sion by opposing party as to its con- tents, 1916D-698. Wills: admissibility of declaration of leg- atee or devisee as to mental capacity of testator, 1918A-1066. admissibility of declarations of testator not made at time of execution of will, on question of undue influence, 1917D-717. See also Dying Declarations. ADMISSION TO BAE. See Attorneys. ADOPTED STATUTES, See Statutes. ADOPTION. Adopted child as "dependent" within workmen's compensation act, 1918B 755. Eight of inheritance from adopted child as between natural parents and adoptive parents or their descendants, 1916C- 757. Succession to estate inherited from foster parent by adopted child who dies without issue, 1916C-762. Validity of contract or proceeding of adoption not made in conformity with statute, 1916D-1110. ADOPTION OF COMMON LAW. See Common Law. ADULTEEY. Connivance or procurement by other spouse as defense to prosecution for adultery. 1916E-741. Imputing adultery to man as slander, 1917A-1044. Persons capable of committing crime of adultery, 1917A-703. ADULTEEY Continued. Separation agreement as bar to action for divorce on ground of adultery, 1916C 349. ADVANCEMENTS. See Executors and Administrators. ADVERSE POSSESSION. Acquisition by adverse possession of title to property in hands of bailee, 1917A- 1163. Acquisition of title to land within right of way of railroad by adverse possession or prescription, 1916D-1186. Necessity that tenant surrender possession before asserting title adverse to land- lord. 1917D-548. What constitutes notice to railroad com- pany of adverse possession of its prop- erty, 1917A-1274. See also Prescription. ADVERTISEMENTS. See Judicial Sales. ADVERTISING. Municipal regulation of billboards and signs, 1916C-491. Personal liability of attorney for expense of advertising, 1917B-525. Eight of tenant of building to use of front wall for advertising purposes, 1916C- 482. Liability of attorney for erroneous advice given to client, 1917F-19. See also Judgments; Malicious Prosecu- tion. ADVISORY OPINIONS. See Courts. AFFIANCED PEESONS. See Undue Influence. AFFIDAVITS. Proof by parol of contents of lost or de- stroyed affidavit, 1916D-253. Validity of affidavit made by telephone, 1917B-903. See also Searches and Seizures. AFFIRMATIVE EELIEF. See Quieting Title. AGE. Competencv of witness to testify as to his own age, 1918B-427. Competencv of witness to testify to age of another person, 1918A-262. DIGEST. 1916C 1918B. AGED PERSONS. See Guardians. AGENCY. Alien enemies: authority of agent becom- ing alien enemy, 1917C-197. Application of payments: right of agent to control application of payment, 1917C-584. Automobile agents: nature and construc- tion of automobile sales agency con- tracts, 1917E-568. Compensation: amount of compensation of person other than real estate broker for effecting sale of land where con- tract fails to fix compensation, 1916E- 306. illegal contracts as to compensation by agents of vendor or vendee, 1917A- 511. recovery of profits as damages for breach of contract to sell on commis- sion, 1917B-1194. Contracts: act of agent in entering into usurious contract as binding principal, 1916C-327. implied authority of officers, agents, or servants to contract for medical, sur- gical, or other attendance or supplies for sick or injured persons, 1918A- 791. power of agent to bind principal for traveling expenses, 1917C-840. right of agent of undisclosed principal to sue on contract made in his own name, 1917A-454. rights as against carrier of undisclosed principal of person shipping goods or live stock, 1918A-826. warranty to agent as inuring to benefit of undisclosed principal, 1918B-130. Del credere agents: nature and extent of liability of del credere agent to prin- cipal, 1916C-1091. Executors de son tort: when agent is chargeable as executor de son tort, 1917E-3. Insurance agents: liability of agent to in- surance company for failure to collect premium, 1916D-651. liability of agent to insurance company for issuing policy in violation of in- structions, 1917B-493. liability of insurance agent to owner of propertv for failure to procure insur- ance, 1918B-1037. right of fire insurance agent to insure his own property, 1916D-1278. validity of insurance policy issued by agent on property of corporation of which agent is stockholder, 1916D 1275. Revocation of agency bv death of princi- pal, 1917E-380. See also Brokers; Foreign Corporations; Mercantile Agencies; Partnership. AGRICULTURE. Diseased trees, etc.: validity of statute providing for destruction of diseased fruit trees, fruit or vegetables, 1917E- 220. Farm loans: validitv of farm loan statute 1917E-216. Seed: express or implied warranty on sale of seed, 1918B-72. validity of statute regulating sale of seed, 1917E-167. Weeds: duty of owner to destroy noxious weeds on his land, 1917A-183. "Workmen's compensation acts: agricul- tural employment as within purview of workmen's compensation act, 1917D-12. ALCOHOL. See Intoxicating Liquors. AUENATION OF AFFECTIONS. Action by wife for alienation of affections, 1916C-748. Actual separation or abandonment as pre- requisite to action for alienation of affections, 1918A-647. Admissibility in action for alienation of affections of evidence of acts com- mitted after separation of spouses, 1917D-484. Liability of parent or guardian for aliena- tion of affections, 1917E-1017. Liability of relative other than parent or guardian for alienation of affections, 1917E-1027. ALIENATION OF REALTY. See Deeds; Marshaling Assets. ALIENATION OF STOCK. See Corporations. ALIENS. Alien enemies: expatriated person as alien enemy, 1916D-306. rights and liabilities of alien enemies, 1917C-189. Compulsory military service: alien as sub- ject to compulsory military service, 19170-814. Discrimination: validity of statute dis- criminating against aliens in employ- ment of laborers, 1917B-287. Immigration: classes of aliens excluded by immigration act, 191 7C 235. immigrant prostitution or immorality, 1917C-250. soliciting or importing alien contract labor as crime, 1917C-261. Naturalization: grounds for revocation of naturalization, 1917C-45. INDEX TO THE NOTES. ALIMONY. Allowance of alimony in gross sum, 1917A-248. Life of decree for permanent alimony, 1917A-582. Validity of conveyance by husband with intent to deprive wife of alimony, 1918B-936. ALL. Meaning of "all" as used in prohibitory or regulatory statute, 1917E-39. Meaning of "all" as used in will in con- nection with "rest," "residue," or "re- mainder," 1917E-75. Meaning of "aJl" as used with respect to minerals, 1917E-70. Meaning of "all damages," 1917E-82. Meaning of "all matters," 1917E-87. Meaning of "all property" as used in in- strument, statute, etc., other than will. 1917E-58. ALLOWANCE. See Executors and Administrators; Work- men's Compensation Acts. ALL REVENUE. Legal meaning of "all revenue," 1918B- 206. ALTERATION OF CHARTER. See Corporations. ALTERATION OF INSTRUMENTS. Addition of words "or bearer" or words "or order" or substitution of one ex- pression for other as material altera- tion of instrument, 1917C-1177. Effect of detaching from promissory note contract or memorandum attached thereto, 1917E-603. Implied authority to fill in blanks so as to complete signed instrument, 1917E- 518. Eatification or waiver of alteration of in- strument, 1917D-335. AMBASSADORS AND CONSULS. Rights and duties of consul with respect to decedent's estate, 1916D-237. AMENDMENTS. Attachment bond: right to amend attach- ment bond, 1917D-117. Beneficial associations: validity of amend- ments to by-laws of fraternal benefit societies as applied to existing mem- bers, 1917B-814. Constitutions: judicial notice of proceed- ings for adoption of amendment to constitution, 1917D-1031. Judgments: power of court to amend or set aside judgment at subsequent term where proceeding therefor is com- AMENDMENTS Continued. menced during term at which judg- ment is rendered, 1916D-1260. Motion for new trial: amendment of mo- tion for new trial, 1917D-104. Parties: right to amend action by adding new parties plaintiff, 1916C-591. Pleading: amendment of pleading where plaintiff in action ia nonexistent. 1917D-1197. right of plaintiff to amend so as to change capacity in which he sues from representative to individual one or vice versa, 1916C-401. service of new answer to amended bill or complaint, 1918A-205. Statutes: effect of partial invalidity of amending statute, 1916D-21. effect of repeal or amendment of re- pealing statute as reviving repealed statute, 1918B-281. AMOUNT IN CONTROVERSY. See Appeal and Error. AMUSEMENTS. See Theaters and Amusements. ANCESTORS. See Insanity. ANCIENT MAPS. See Maps. ANCIENT SURVEYS. See Surveys. AND Construction of "and" as "or," and vice versa, in construing will, 1917C-306. ANIMALS. Bees: law of bees, 1917B-983. Cats: legal status of cat, 1917A-391. Cattle: validity of ordinance regulating keeping of cattle within municipal limits, 1917E-929. Diseased animals: validity of statute pro- viding for destruction of diseased ani- mals with compensation to owner, 1917D-89. Increase: mortgage on animals as includ- ing increase, 1917C-1173. Injuries by animals: liability of owner for injuries caused by runaway horse/ 1916E-1114. Injuries to animals: liability as for negli- gence of owner of uninclosed land for injury to domestic animal straying thereon, 1917A-288. liability of railroad for frightening horse by operation of handcar, 1916E- 321. 6 DIGEST. 1916C 1918B. ANIMALS Continued. Injuries to animals: rights and duties of person driving automobile in highway with respect to horse drawing vehicle, 1916E-662. Insurance: animal insurance, 1917D-45. fire insurance policy on live stock in des- ignated location as covering animals temporarily elsewhere, 1916E-398. Master and servant: duty and liability of master to servant with respect to ani- mal furnished by him to servant, 1917A-309. Statutes: effect of partial invalidity of statute relating to animals, 1916D-35. Wild animals: right of property in wild animal, 1917B-949. See also Fish and Game. ANNULMENT. See Compromise and Settlement. ANONYMOUS LETTERS. Sending anonymous letter as criminal offense, 1917C-699. ANSWER. See Pleading. ANTAGONISM. See Trusts and Trustees. ANTECEDENT DEBT. See Bills and Notes. ANTENUPTIAL AGREEMENTS. Effect of partial invalidity of antenuptial contract, 1918B-925. Effect on antenuptial agreement for re- lease of dower or like interest of fail- ure of consideration for agreement, 1918A-1168. ANTICIPATORY BREACH OP CON- TRACT. See Contracts. ANTI-NEPOTISM. See Public Officers. ANTI-TRUST LAWS. See Monopolies. ANY. Legal meaning of "any," 1916E-2. APARTMENT HOUSES. Legal status of owner of apartment house, 1917A-256. APPARATUS. See Electricity. APPEAL AND ERROS. Amount in controversy for purpose of ap- peal where defendant has filed coun- terclaim, 1917D-99. Appealable judgments: appealability of order transferring cause from state to federal court, 1916D-1049. finality of order in habeas corpus pro- ceedings, 1916D-506. Attachment or garnishment: appeal in principal action as bringing attach- ment or garnishment proceeding up for review, 1918A-516. Attorneys: liability of attorney to client for failure to institute proceedings for review, 1917B-31. review of disbarment proceedings by appeal or writ of error, 1918B-837. Bond: effect of abandonment or dismissal of appeal on liability of sureties on appeal bond, 1916C-1226. Costs: liability of landowner for costs on appeal in eminent domain proceedings, 1917E-262. Exceptions: necessity of exception to direction of verdict, 1917A-849. Excessive sentence: right of prisoner who has received excessive sentence to be discharged on appeal, 1916D-36S 1 . Holidays: validity of act in connection with appeal or writ of error performed on holiday, 1916E-853. Intoxicating liquors: appeal from judg- ment in action for penalty for viola- tion of intoxicating liquor statute, 1916E-873. right to and effect of judicial review of revocation of liquor license, 1917A- 1024. Jurisdiction and power of appellate court: jurisdiction of appellate court after remand, 1917A-284. meaning of "revenue laws" in statute re- lating to appellate jurisdiction, 1918B- 214. right of appellate court, upon granting new trial, to limit issues to be tried by jury, 1917E-888. Juvenile courts: appeal from judgment of juvenile court, 1916E-1017. Record: lien of attorney on printed record on appeal in his possession connected with litigation, 1917D-149. Bight to appeal: payment of fine in crim- inal case as waiver of right to appeal, 1916C-619. power of executor or administrator with will annexed to appeal from judgment refusing probate, 1917C-1079. right of citizens or taxpayers to appeal as such from judgment in proceeding to which they are not parties, 1918A- 365. right of municipality to appeal from judgment in prosecution for violation of ordinance, 1917D-986. Statutes: effect of partial invalidity of statute relating to appeals, 1916D-79. INDEX TO THE NOTES. APPEAL AND ERROR Continued. Time for appeal: exclusion or inclusion of Sunday or holiday in computation of time for taking or perfecting appeal, 1917E-930. Trial without jury: effect of admission of incompetent evidence in trial before court without jury, 1917C-660. Workmen's compensation acts: review of facts on appeal under workmen's com- pensation act, 1918B-647. See also Judgments; Rehearing. APPEARANCE. Exclusion or inclusion of Sunday or holi- day in computing time for appearance, 1917E-935. Moving to set aside order in cause for want of jurisdiction as general or special appearance, 1917B-454. Voluntary appearance as vesting court with jurisdiction of corporation in criminal case, 1916E-1290. Waiver of special appearance by pleading to merits, 1916E-1270. APPLIANCES. See Carriers of Passengers. APPLICATION FOR POLICY. See Insurance. APPLICATION OF PAYMENT. See Payment. APPLICATION TO COURT. Validity of application to court made by telephone, 1917B-903. APPOINTMENT TO OFFICE. See Libel and Slander. APPREHENDED INJURY TO BUSI- NESS. See Payment. APPROPRIATIONS. Effect of partial invalidity of appropria- tion statute, 1916D-25. Right to use public funds for purpose other than that of appropriation, 1917B- 864. ARBITRATION AND AWARD. Power of arbitrators to determine exist- ence of usage or custom, 1916D-360. AREA WAYS. See Streets and Highways. ARGUMENT. See Briefs. ARGUMENT OF COUNSEL. Comment by prosecutor on failure of ac- cused to testify, 1917D-277. Propriety of argument of counsel in per- sonal injury case asking jury what they would take for similar injury, 1917A-1099. Propriety of argument of counsel referring to poverty or wealth of party to ac- tion, 1917B-312. Restricting argument of counsel in crim- inal action as constituting reversible error, 1917A-718. See also Misconduct of Counsel. ARID LANDS. / See Reclamation. ARM. "What constitutes "loss" of arm within workmen's compensation act, 1918A- 536. . i ARMY AND NAVY. Compulsory military service, 1917C812. Elections: right to vote of soldier or sailor in actual service, 1917B-485. Infants: right of infant unlawfully en- listed to release from detention of military or naval authorities, 1917C- 778. Liability: civil or criminal liability of soldier for injury to person or prop- erty, 1917C-8. Pensions: effect with respect to pension of pensioner becoming inmate of sol- dier's home, 1916C-854. Pledge of property: liability of civilian for purchasing or receiving in pledge pub- lic property from soldier or sailor, 1918B-523. Workmen's compensation acts: employment in navy yard as within purview of workmen's compensation act, 1917D- 26. See also Militia. ARRAIGNMENT. See Criminal Law. ARREST. Right of private person to arrest another for violation of municipal ordinance committed in his presence, 1917A-599. Right to arrest person without warrant on ground of insanity, 1917D-536. See also False Imprisonment. ARREST OF JUDGMENT. Exclusion or inclusion of Sunday or holi- day in computation of time for motion in arrest of judgment, 1917E-939. DIGEST. 1916C 1918B. ARSENALS. Employment in arsenal as within pur- view of workmen's compensation act, 1917D-14. ART. Measure of damages for loss or destruction of works of art having no market value, 1917B-579. ASHES. Liability of municipality for tort com- mitted in removal of ashes, 1916C- 242. ASSAULT. Damages: provocation in mitigation of damages for assault: 1917D-582. Evidence: declarations of infant at time of assault as part of res gestae, 1916C- 1187. Firearms: discharging firearm to frighten person as assault, 1917D-617. Justification: defense of property as jus- tification for assault, 1917D-291. trespass as justification of assault and battery, 1917D-307. Limitation of actions: what is civil action for assault within statutory limita- tion applicable thereto, 1917A-118. Negligence: liability as for negligence of person who injures bystander while acting in self-defense, 1916C-1150. Pleading: inconsistent defenses in action for assault, 1917C-737. Punishment: what constitutes cruel and unusual punishment for assault, 1918B-398. Retreat: right of person assaulted on his own premises to repel attack without retreating, 1916C-918. Sheriffs and constables: liability of sure- ties on bond of sheriff or constable for assault committed by officer, 1916D- 923. See also Rape; Robbery. ASSERTION OF CLAIM. See Libel and Slander. ASSESSMENT. See Taxation. ASSESSMENTS. See Beneficial Associations. ASSETS. See Marshaling Assets. ASSIGNMENTS. Contracts of sale: right of assignee of contract for purchase of land to sue for rescission thereof, 1917E-845. ASSIGNMENTS Continued. Debts: validity of statute forbidding as- signment of debt or claim for collec- tion in another jurisdiction, 1916D- 870. Expectancy: validity of transfer of ex- pectancy in estate made by heir or beneficiary to stranger, 1916E-1241. Judgments: effect on judgment lien of as- signment of judgment or execution issued to or for benefit of judgment debtor, 1917C-557. Leases: effect of assignment of lease or sublease by tenant on liability for rent, 1916E-788. Life insurance: validity and effect of as- signment by wife of insurance in her favor on life of husband. 1917B-302. Mechanics' liens: assignor of mechanic's lien as necessary party to action by assignee to foreclose lien, 1918B-5. Penalties: assignability of right of action for penalty, 1916D-893. Trademarks and trade names: assignability of trademarks and trade names, 1917A-260. ASSIGNMENTS FOR BENEFIT OF CREDITORS. Liability of assignee for benefit of cred- itors for rent, 1916E-813. Eight of defendant who has made assign- ment for benefit of creditors to move to dissolve attachment of chattels, 1916D-479. ASSOCIATE COUNSEL. Personal liability of attorney for fee of associate counsel, 1917B-524. ASSOCIATIONS. See Building and Loan Associations; Chambers of Commerce; Societies and Clubs. ASYLUMS. See Hospitals and Asylums. ATTACHMENT. Appeal in principal action as bringing at- tachment or garnishment proceeding up for review, 1918A-516. Attorneys: liability of attorney to client for negligent act with respect to at- tachment, 1917B-2H. Bond: right to amend attachment bond, 1917D-117. Chattel mortgages: waiver of chattel mort- gage lien by attachment, 1916C-408. Dissolution: dissolution of attachment by death of defendant, 1917A-149. right of defendant to move to dissolve attachment, 1916D-476. Equitable interest in real property as sub- ject to attachment, 1916C-7S6. INDEX TO THE NOTES. ATTACHMENT Continued. Foreign corporations: right to issue at- tachment against foreign corporation on ground of nonresidence, 1916E-362. Junior attachments: rights of parties on sale under junior attachment, 1917B- 710. Lost writ: proof Toy parol of contents of lost or destroyed writ of attachment, 1916D-252. Stock: rights of unregistered transferee as against attachment or execution levied on stock, 1917A-428. See also Exemptions. ATTEMPT TO COMMIT CRIME. See False Pretenses; Bobbery. ATTEMPT TO SAVE LIFE. See Contributory Negligence. ATTESTATION. See Deeds; Mortgages; Wills. ATTORNEYS. Admission to bar: validity of rule regu- lating admission to bar, 1917A-552. Advice of counsel as ground for opening default judgment, 1917A-709. Appointment of counsel to represent juve- nile offenders, 1916E-1016. Compensation: interest on attorney's fees, 1916E-249. liability of husband for counsel fees in- curred by wife in divorce action, 1917A-68&. personal liability of receiver for attor- ney's fees, 1917B-354. power of executor or administrator to employ attorney under express con- tract as to amount of compensation, 1917B-216. right of attorney to recover for services beneficial to person not employing him, 1917A-423. right to recover attorney's fees in action on replevin or detinue bond, 1916D- 874. solicitation of business by attorney as forfeiture of right to compensation therefor, 1917C-872. validity of contract for compensation of attorney made after fiduciary relation is established, 1917A-531. validity of stipulation for attorney's fee in promissory note. 1917D-365. validity of mechanic's lien law provid- ing 'for taxing of attorney's fees, 1916D-1044. Contempt: practicing law without license as contempt of court, 1917B-1200. Disbarment: criticism of decision of court as ground of disbarment, 1918A-283. disbarment in one court as affecting status of attornev in another court, 1917D-572. ATTORNEYS Continued. Disbarment: misconduct in official or fidu- ciary capacity other than that of at- torney as ground for suspension or disbarment, 1917B-232. pardon as affecting right to disbar attorney for criminal misconduct, 1917A-1226. right of attorney to review of disbar- ment proceedings, 1918B-836. Dismissal of action: right of client to dis- miss action without attorney's con- sent, 1917A-570. Expenses: personal liability of attorney for incidental expenses of action, 1917B-520. Lien: extent of attorney's lien on judg- ment, 1916E-387. lien of attornev as extending to action for tort, 1917D-917. lien of attorney on papers in his posses- sion connected with litigation, 1917D- 147. Limitation of actions: validity of acknowl- edgment by client of debt to attorney barred by limitations, 1916E-436. Negligence: liability of attorney for negli- gence or breach of duty, 1917B-3. Privileged communications: communica- tions between attorney and client in regard to testamentary matters as privileged, 1916C-1073. See also Appearance; Argument of Coun- sel; Bills and Notes; Champerty and Maintenance; Coroners; Instructions; Judges; Libel and Slander; Miscon- duct of Counsel; Power of Attorney; Prosecuting Attorneys; Schools. AUCTIONS. Price obtained for personalty at public auction as evidence of its value, 1916D-800. Eight of action by highest bidder at auc- tion sale for "refusal of auctioneer to knock down property to him, 1918A- 850. AUTHENTICITY. See Letters. AUTOMOBILES. Agents: nature and construction of auto- mobile sales agency contracts, 1917E- 568. Injuries in operation: application of last clear chance doctrine to collision be- tween automobile and street car, 1916E-515. liability of automobile owner to chauf- feur for personal injuries, 1916E-1090. liability of owner of automobile for act of driver other than his servant or child, 1917E-228. liability of owner of automobile for acts of his chauffeur or agent, 1917D-1001. negligence of driver as imputable to oc- cupant of automobile, 191GE-26S. 10 DIGEST. 1916C 1918B. AUTOMOBILES Continued. Injuries in operation: rights and duties of persons driving automobiles in high- ways, 1916E-661. Insurance: automobile insurance, 1917D- 53. insurance against liability of automobile owner, 1917D-61. License number on motor vehicle as evi- dence of ownership thereof, 1916D- 1163. Manufacturer's liability: liability of maker of automobile to third persons for de- fective construction thereof, 1917E- 584. Eegulation: constitutionality of statutes and ordinances regulating speed of vehicles in streets and highways, 1916E-1067. construction of statute requiring person operating automobile to give name and, address to person injured, 1917E-588. effect of partial invalidity of statute re- lating to use of motor vehicles on high- ways, 1916D-58. municipal regulation of automobiles with respect to equipment, use of streets, or the like, 1916E-1047. validity of inclusion or exclusion of non- residents in statute regulating use of motor vehicles, 1917E-324. Speed: opinion evidence as to speed of au- tomobile, 1917D-613. Taxicab proprietor as common carrier, 1916D-767. See also Motorcycles. AVAILABILITY OF FUNDS. See Bills and Notes. AVERAGE WEEKLY EARNINGS. Meaning of phrase "average weekly earn- ings" in workmen's compensation or similar act, 1918B-640. Tips as part of average weekly earnings under workmen's compensation act, 1918B-1122. AVOIDANCE. See Belease and Discharge. AWARD. See Arbitration and Award; Workmen's Compensation Acts. BAGGAGE. Duty of carrier to provide safe place for delivery of baggage to passenger, 1916C-1213. See also Innkeepers. BAIL. Allowance of interest on forfeited bail bond, 1916C-114. BAILIFFS. Personal liability of attorney for fees of bailiff, 1917B-520. BAILMENTS. Acquisition by adverse possession of titje to property in hands of bailee, 1917A- 1163. See also Escrows. BALLOTS. See Elections. BANANA PEELS. See Carriers of Passengers. BANKRUPTCY. Coporations: criminal liability of corpo- ration for violation of bankruptcy law, 1916C-464. Discharge: effect of discharge in bank- ruptcy upon judgment for wilful and malicious injuries to person or prop- erty, 1917A-212. false statement to mercantile agency as ground for refusing discharge in bank- ruptcy, 1916D-760. Evidence: improbable testimony by bank- rupt, 1917B-1096. Homestead: effect of fraudulent convey- ance of homestead by bankrupt, 1917C- 1004. Malicious prosecution: instituting bank- ruptcy proceeding as ground for fcc- tion for malicious prosecution, 191GD, 909. Mechanics' liens: effect of bankruptcy of owner of property on right to me- chanic's lien, 1917C-292. Public officers: salary or pension of public officer or employee as affected bv his bankruptcy, 1916D-629. Bent: liability of assignee or trustee in bankruptcy for rent, 1916E-816. Set-off: set-off by bank of deposit against debt due bank by depositor as void- able transfer under bankruptcy law, 1916C-990. set-off under American bankruptcy acts, 1916C-975. Statutes: effect of partial invalidity of state bankruptcy law, 1916D-37. BANKS. Checks: liability of bank to true holder or payee of check paid on forged in- dorsement, 1917D-105S. right of drawer to stop payment of certi- fied check, 1917A-947. Collections: duty of bank receiving paper for collection to protest same and give notice thereof in absence of express instruction, INDEX TO THE NOTES. 11 BANKS Continued. Deposits: complete execution of gift inter vivos by deposit of money in bank to credit of another, 1917E-367. criminal liability of officer of insol- vent bank for receiving deposit therein consisting of check on same bank, 1916E-592. intent as element of offense of receiv- ing deposit in insolvent bank, 1917B- 1081. lien or set-off of insolvent bank against deposit for debt of depositor not yet due, 1917C-1205. right of depositor in insolvent bank to set off deposit against debt to bank, 1917C-1187. set-off by bank of deposit against debt due bank by depositor as voidable transfer under bankruptcy law, 1916C-990. rights of parties to joint deposit in bank, 1916D-519. statement by bank officer to obtain de- posit as constituting crime of obtain- ing money by false pretenses, 1916C 1162. Examiners: bank examiners, 1916E-219. Federal Reserve Act: validity and effect of Federal Reserve Act, 1917C-1099. Fraud on bank as constituting attempt to obtain money by false pretenses, 1917B-1232. Garnishment: money standing in name of debtor but belonging to third person as reachable in garnishment proceed- ing, 1917C-1145. Guaranty: liabilitv of bank on contract of guaranty, 1916D-554. Insolvency: when bank is "insolvent," 1916C-85. National banks: jurisdiction of action against national bank to recover pen- alty for taking usurious interest, 1916D-1246. Notes: what constitutes payment of note at bank where it is made payable, 1917A-508. Passbooks: lien of attorney on bankbook in his possession connected with liti- gation, 1917D-149. Privileged communications: information acquired by banker as privileged from disclosure," 1916C-703. Savings banks: set-off against receiver of savings bank, 1916D-600. Statutory regulation: effect of partial in- validity of statute relating to banks, 1916D-37. BASEBALL. Contracts for services of ball players, 1917C-392. BASTARDY. See Illegitimacy. BATHING RESORTS. Duty to patrons of proprietor of bathing resort or beach, 1917B-333. "BEARER." See Alteration of Instruments. BEDDING. State or municipal regulation of use or sale of second-hand clothing, bedding, or the like, 1917C-1068. BED OF LAKE. See Waters and Watercourses. BEES. See Animals. BELLIGERENT POWERS. See International Law. BENEFICIAL ASSOCIATIONS. Beneficiaries: "child" in benefit insurance policy as including illegitimate child, 1918B-261. effect of divorce upon rights of bene- ficiary under benefit certificate, 1917C-270. liability for inducing change of bene- ficiary in insurance policy, 1917A-473. persons included within the term "fam- ily" when used to designate beneficia- ries in benefit certificate, 1917C-694. selection by insured of beneficiary not having insurable interest in former's life as against public policy, 1916C- 587. By-laws: validity of amendments to by- laws of fraternal benefit societies as applied to existing members, 1917B- 814. Construction of policy: construction of re- striction in contract of benefit insur- ance as to travel by or residence of insured, 1917A-381. construction of restriction in contract of benefit insurance as to use of intoxi- cants by insured, 1918A-623. death while engaged in violating law within exception in insurance policy, 1917C-592. Evidence: admissibility of benefit certifi- cate in evidence without other parts of contract, 1917C-145. Forfeiture: waiver of forfeiture of bene- fit certificate for nonpayment of assessment or dues by acceptance of arrearages or similar act, 1916D-591. Membership: what constitutes membership in beneficial association, 1917B-380. Statutes: "child" in statute relating to benefit insurance as including illegiti- mate child, 1918B-256. 12 DIGEST. 1916C 1918B. ASSOCIATIONS Con- BILLHEADS. Evidentiary effect of us of printed letter- head or billhead, 1917B-271. BENEFICIAL tinned. Workmen's compensation acts: receipt of insurance as affecting right to com- pensation under workmen's compensa- tion act, 1918B-635. See also Societies and Clubs. BENEFICIAEIES. See Insurance; Trusts and Trustees; Work- men's Compensation Acts. BEQUESTS. See Wills. BESTIALITY. Imputing bestiality 1917A-1045. to man as slander, BEVERAGES. See Food and Drugs; Intoxicating Liquors. BIAS. See Judges. BICYCLES. Bights and duties of person driving auto- mobile in highway with respect to bicycle, 1916E-675. BIDS. Implied liability of municipality under contract let contrary to statute re- quiring competitive bidding, 1917A- 1263. Necessity for readvertisement where bid- der to whom municipal contract is awarded fails to comply with condi- tions or abandons work, 1916D-1189. Eight of action by highest bidder at auc- tion sale for refusal of auctioneer to knock down property to him, 1918A- 850. Eights of parties with respect to certified check or other deposit made with bid, 1916C-427. Validity of contract to prevent bidding at judicial sale, 1917D-232. BIGAMY. Cohabitation under foreign marriage as bigamy, 1917C-1141. Husband or wife as competent witness in prosecution for bigamy, 1916C-1060. BILL. See Pleading. BILLBOARDS. Municipal regulation of billboards and signs, 1916C-491. BILLS AND NOTES. Alteration: addition of words "or bearer" or words "or order" or substitution of one expression for other as material alteration of instrument, 1917C-1177. effect of detaching from promissory note contract or memorandum attached thereto, 1917E-603. Attorneys' fees: lien of attorney on note in his possession connected with liti- gation, 1917D-149. provision in note for payment of at- torney's fees as binding indorser, 1917C-1082. validity of stipulation for attorney's fee in promissory note, 1917D-365. Bona fide holders: validity in hands of bona fide holder of negotiable contract void by statute between original par- ties, 1937D-696. Conditional acceptance: construction of acceptance of bill of exchange condi- tioned on possession or availability of funds, 1918A-941. Conditional delivery: parol evidence of conditional delivery of bill or note, 1917D-1049. Corporations: liability of person signing negotiable paper as officer of corpora- tion, 1917D-568. Demand notes: when note payable on de- mand is overdue as between maker and indorser, 1917B-842. Extension of time: construction of exten- sion of or agreement to extend time of payment of note, 1918B-157. False pretenses: bill or note as "property," etc., within statute against false pre- tenses, 1917D-627. Fictitious payee of promissory note or bill. 1918A-669. Guaranty: power of national bank to guarantee commercial paper, 1916D- 559. Lost instruments: jurisdiction of action on lost instrument, 1917A-1289. Negotiability of note containing provision allowing discount if paid within cer- tain time, 1918B-600. Nominal holders: right of action thereon of nominal holder of promissory note, 1917A-490. Payment: what constitutes payment of note at bank where it is made paya- ble, 1917A-508. Pleading: inconsistent defenses in action on bill or note, 1917C-721. Protest and notice: duty of bank receiving paper for collection to protest same and give notice thereof in absence of express instruction, 191SA-892. right to notice of dishonor of stock- holder or officer indorsing corporate paper, 1917B-S36. INDEX TO THE NOTES. 13 BILLS AND NOTES Continued. Signatures: necessity of proving, in action on promissory note, signatures of maker and indorser, 1917A-770. Suretyship: diversion of note or proceeds as discharging surety thereon, 1916D- 733. Transfer: negotiation of note of debtor as constituting payment of original debt, 1917C-364. transfer of negotiable note as security for antecedent debt, 1917D-386. Usury: renewal note as affected by usury in original note, 1918A-753. BILLS FOR RAISING REVENUE. Legal meaning of "bills for raising revenue," 1918B-209. BILLS OF SALE. Meaning of "plant" as used in English Bills of Sale Act, 1917A-327. BONDS Continued. Reformation: right to reform bond by changing name of obligee, 1916C-184. See also Appeal and Error; Attachment; Credit Insurance; Municipal Corpora- tions; Public Contracts; Public Officers; Sheriffs and Constables; Suretyship. BOOKS. Lien of attorney on book in his possession connected with litigation, 1917D-149. Measure of damages for loss or destruction of books having no market value, 1917B-579. See also Corporations; Evidence. BOOTHS. See Elections. BOUNDARIES. See Adjoining Landowners. BLACKLISTING. Legality of blacklisting agreement, 1917A- 644. BLANKS. See Alteration of Instruments. BLASTING. See Explosions and Explosives. BLINDNESS. See Wills. BOARDING HOUSES. See Apartment Houses. BREACH OF CONTRACT. See Contracts. BREACH OF PEACE. Language constituting breach of peace, 1917C-889. BREACH OF PROMISE OF MARRIAGE. Disease as defense to action for breach of promise of marriage, 1917D-1084. Effect of offer by defendant to marry plaintiff on action for breach of promise of marriage, 1917A-652. Understanding of family or friends of party as evidence of agreement to marry, 1916C-564. BOARD OF REVENUE. Legal meaning of "board of revenue," 1918B-220. BONA FIDE PURCHASERS. See Bills and Notes; Sales; Vendor and Purchaser. BONDS. Attorneys: lien of attorney on bond in his possession connected with litigation, 1917D-149. Construction: meaning of "all damages" as used in bond, 1917E-82. Defenses: inconsistent defenses in action on bond, 1917C-721. Injunctions: bond as prerequisite to issu- ance of temporary injunction, 1917B- 126. Issuance: authority of public officer to complete bond issue after repeal of statute authorizing issue, 1916E-406. BREACH OF WARRANTY. See Warranty. BRIBERY. Inducement to commit bribery with view to prosecution therefor as defense to such prosecution, 1916C-730. Promise to do certain things after election as bribery of electors, 1918A-888. Sufficiency of indictment or information for bribery with respect to allegation of value of thing offered or received as bribe, 1918A-314. BRICKS. Brick kiln as nuisance, 1917E-420. State or municipal regulation of manu- facture of bricks, 1917B-931. BRIDGES. Effect of partial invalidity of statute relat- ing to bridges, 1916D-58. DIGEST. 1916C 1918B. BRIDGES Continued. Liability for injury to bridge caused by vessel, 1917B^938. Power of municipality to compel railroad or street railway to repair bridge within municipal limits, 1916C-1171. Use of bridge by traction engine, 1917E- 802. BRIEFS. Personal liability of attorney for expense of printing briefs, argument, etc., 1917B-525. BROKERS. Compensation: illegal contracts as to com- pensation by agents of vendor or vendee, 1917A-511. liability on contract of buyer and seller to pay broker's commission jointly, 1918B-180. Contract of sale: power of real estate broker to make contract of sale, 1917A-522. "Dealer": broker buying or selling for future delivery as "dealer," 1917A- 952. Regulations: state or municipal regulation of personal property loan brokers, 1916E-618. Witnesses: information acquired by broker as privileged from disclosure, 1916C- 703. See also Agency. BROTHER. Brother as "dependent" within workmen's compensation act, 1918B-759. Communication to brother as privileged within law of libel and slander, 1917E-897. BUILDING AND LOAN ASSOCIATIONS. Appointment of receiver for building an'd loan association, 1917A-827. Avoidance of building and loan contract on ground of fraud, 1917A-890. Constitutionality of statutes exempting 'building and loan associations from usury laws, 1916E-232. To whom building and loan association may loan money, 1917B-590. BUILDING CONTRACTS. Principal contractor as necessary party defendant to action to foreclose mechanic's lien, 1918B-6. Eight of building contractor to rescind contract for failure of owner to make payment, 1916C-54. BUILDING RESTRICTIONS. See Vendor and Purchaser. BUILDINGS. Contract for sale of building as contract for sale of realty within statute of frauds, 1916D-970. Employment in connection with construc- tion, repair, etc., of building as within purview of workmen's compensation act, 1917D-14. Liability of owner for injuries caused by collapse of building, 1917A-478. Liability of owner of building for injury to pedestrian resulting from erection of scaffold for repairing or painting building/ 1916C-123. Eight of municipality to enjoin violation of ordinance prohibiting erection of wooden building within fire limits, 1916C-965. See also Adjoining Landowners; Landlord and Tenant; Nuisances; Streets and Highways. BULB: SALES. See Fraudulent Sales and Conveyances. BURDEN OF PROOF. Acknowledgment: burden of proof as to verity of certificate of acknowledg- ment, 1917A-369. Alteration of instruments: burden of showing ratification or waiver of alteration of instrument, 1917D-345. Attorneys: burden of proof as to validity of contract for compensation of attor- ney made after establishment of rela- tion, 1917A-336. Elections: burden of proving irregularity in election affecting indeterminable number of votes, 1918A-58. Expectancy: burden of proof as to valid- ity of transfer of expectancy in estate, 1916E-1250. Gas: burden of proof in action against gas company for injuries caused by escape of gas, 1916E-2SO. Immigration: burden of proof as to right to exclude alien under immigration act, 1917C-247. Master and servant: burden of proof as to giving notice of injury under work- men's compensation act, 1917D-877. burden of proving that accident arose out of and in course of employment within meaning of workmen's compen- sation act, 1918B-768. Parent and child: burden of proof of un- due influence in case of conveyance inter vivos by parent to child, 1918B- 457. Parties to actions: burden of proof of non- existence of plaintiff in action, 1917D- 1196. Quo warranto: burden of proof in quo warranto proceeding or action in nature thereof, 1917B-4G7. INDEX TO THE NOTES. 15 BURDEN OF PROOF Continued. Eelease and discharge: burden of proving misstatement by physician as ground for avoiding release of claim for per- sonal injuries, 1918A-358. BURGLARY. Burglary by opening, sufficiently to gain entrance, door or window partly open, 1916C-320. Inducement to commit burglary with view to prosecution therefor as defense to such prosecution, 1916C-730. Unauthorized entry of premises by em- ployee of owner as burglarious entry, 1916E-534. What constitutes cruel and unusual pun- ishment for burglary, 1918B-398. BURIAL INSURANCE. Contract for burial as insurance contract, 191GC-1016. BUSINESS. See Chambers of Commerce; Eminent Domain; Fraud; Good Will; Letters; Monopolies; Partnership; Payment; Telegraphs and Telephones; Vehicles. BUSINESS COMPETITION. See Municipal Corporations, BUTCHERS. Butcher as "dealer," 1917A-952. BY-LAWS. See Beneficial Associations; Corporations; Stock Exchanges. BYSTANDERS. See Negligence. CANALS. Employment in connection with Isthmian Canal as within purview of workmen's compensation act, 1917D-16. Interest in land acquired by condemnation for canal as easement or fee, 1918A- 809. CANCELLATION. See Fire Insurance. CANVASSERS. Canvasser as "dealer," 1917A-953. CARPENTERS. Structural carpentry as employment within purview of workmen's compensation act, 1917D-28. CARRIERS OF GOODS. Act of God: liability of carrier for dam- ages caused by act of God co-operat- ing with its own negligence, 1918A- OoJ.. Agency: rights as against carrier of un- disclosed principal of person shipping goods, 1918A-826. Contract of carriage: exclusion or inclu- sion of Sunday or holiday in computa- tion of time for performance of act by parties to shipping contract, 1917E- 947. Criminal liability: liability of corporation to indictment for unjust discrimina- tion in transportation, 1916C-464. Delay: measure of damages for carrier'i delay in transporting goods resulting in depreciation in value, 1917D-164. Freight charges: implied agreement by consignee of goods to pay freight charges, 1917C-864. liability as between consignor and con- signee for payment of freight under- charges on interstate shipment, 1916E- 378. Regulation: effect of partial invalidity of statute relating to freight rates, 1916D-86. effect of partial invalidity of statute re- lating to shipments of freight, 1916D- 86. power of public service commission to compel carrier to furnish particular class of service, 1917B-1160. state regulation of carriers of goods as interference with interstate commerce, 1917A-973. validity of statute imposing penalty on carrier of goods for failure to pay claim within certain time, 1916D-335. validity of statute, ordinance or rule providing for reciprocal demurrage, 1916E-701. Wharves: right of person going on wharf to receive freight to recover damages for injuries sustained on defective wharf. 1916C-145. See also Household Goods; Intoxicating Liquors; Public Service Corporations; Transportation. CARRIERS OF LIVE STOCK. Liability of carrier of live stock for injury to stock where shipper loads stock im- properly, 1916E-1203. Bights as against carrier of undisclosed principal of person shipping live stock, 191SA-826. State regulation of carriers of live stock as interference with interstate com- merce, 1917A-973. Validity of statute imposing penalty on carrier of live stock for failure to pay claim within certain time, 1916D-335. See also Carriers of Passengers; Public Service Corporations. 16 DIGEST. 1916C 1918B. CARRIERS OF PASSENGERS. Appliances: liability of carrier of passen- gers with respect to appliances pur- chased from manufacturer, 1916E-929. Baggage: duty of carrier to provide safe place for delivery of baggage to pas- senger, 1916C-1213. Banana peels: liability of carrier for in- jury to passenger caused by slipping on banana peel or the like, 1916E- 1087. Carriers by water: liability of carrier by water for injury to or death of pas- senger falling overboard, 1917D-1038. Changing cars: duty of carrier to give pas- senger notice of and time to make change of cars, 1917D-488. Contributory negligence: contributory negligence of passenger in alighting from street car and passing to rear of it across parallel tracks without look- ing for approaching ear, 1916E-998. contributory negligence of passenger in permitting part of his body to pro- trude from car, 1916C-1218. failure of carrier to enforce rule as af- fecting contributory negligence of passenger in violation thereof, 1916 E- 1308. Destination of passenger: duty of railroad to put passenger off at destination not stopping station, 1916E-1220. Fire apparatus: duty of driver of street car to avoid injury to passenger by collision with fire apparatus, 1918A- 293. Free passengers: liability of carrier to person riding on drover's pass or in charge of stock, 1917E-149. Insane passengers: duty and liability of carrier with respect to insane pas- senger, 1916E-256. Insufficient employees: operating car or train with insufficient number of em- ployees as negligence on part of car- rier of passengers, 1917C-73. Intending passengers: when intending passenger actually becomes such, 1917C-1206. Jitney buses: jitney bus proprietor as common carrier of passengers, 1917C- 1060. state or municipal regulation of jitney buses, 1917C-1051. Motorcycles: right of action by passenger on motorcycle for collision with motor truck. 1917A-225. Overcrowding of cars: act of carrier in permitting cars to be overcrowded as constituting nuisance, 1918A-994. Person wrongfully on train: liability of railroad company to person wrong- fully riding on train by permission or direction of railroad employee, 1917C 358. Presumption of negligence from collision resulting in injury to passenger, 1917C-634. CARRIERS OF PASSENGERS Con- tinued, Regulation: effect of partial invalidity of statute relating to passenger rates, 1916D-S6. effect of partial invalidity of statute re- lating to passes and tickets, 1916D- 85. power of public service commission to compel carrier to furnish particular class of service, 191 78-1160. power of public service commission to regulate running time of trains, 1916D-1034. state regulation of carriers of pas- sengers as interference with interstate commerce, 1917A-973. statute requiring separate accommoda- tion for white and colored passengers as interference with interstate com- merce, 1917A-983. validity of order of public service com- mission regulating commutation rates, 1917B-1153. validity of order of public service com- mission requiring running of Sunday train, 1917B-1205. validity of regulation of extent of train service to be furnished bv railroad, 1917B-1217. Sick passengers: duty and liability of car- rier to passenger taken sick during transit, 1916C-862. Taxicab proprietor as common carrier, 1916D-767. Tickets and fares: person buying and sell- ing railroad tickets as "dealer," 1917A-961. validity of rule of street railway with respect to use of transfer, 1916D-5S6. Wharves: right of passenger on boat or train for damages for injuries sus- tained on defective wharf, 1916C-142. right of person meeting passenger to re- cover damages for injuries sustained on defective wharf, 1916C-145. See also Public Service Corporations; Street Railways. CARTOONS. See Libel and Slander. CASUALTY. Insurance of automobile against casualty. 1917D-57. CATS. See Animals. CATTLE. See Animals. CAUSE OF ACTION. See Attorneys. INDEX TO THE NOTES. 17 CAVEAT EMPTOB. See Guardians. , CEMETERIES. Equitable relief against cemetery as nui- sance, 1917B-563. See also Dead Bodies. , CERTIFIED CHECKS. See Bids; Checks. CERTIORARI. Certiorari to review disbarment proceed- ings, 1918B-838. CESTTJI QUE TRUST. See Trusts and Trustees. CHALLENGES. See Jury. CHAMBERS OF COMMERCE. Powers and liabilities of private corpora- tion or association organized to pro- mote business interests of community, 1917C-787. CHAMPERTY AND MAINTENANCE. Validity of agreement by person other than attorney to collect, settle or com- promise claim for commission, 1918A- 797. CHANCE VERDICT. See Verdict. CHANGE IN TITLE. See Fire Insurance. CHANGE OF CARS. See Carriers of Passengers. CHANGE OF JUDGE. See Judges. CHANGE OF NAME. See Names. CHANGE OF PURPOSE. See Corporations. CHANGE OF REGISTRATION. See Elections. CHANGE OF VENUE. See Venue. CHARACTER. See Death by Wrongful Act; Fines and Penalties; Libel and Slander; Mali- cious Prosecution. CHARITIES. Fire company, insurance patrol or the like as charitable institution, 1917C-797. Gift for establishment of home for persons of particular class as charitable gift, 1917E-857. Hospital as charity exempt from taxation, 1917B-278. Inadequacy of gift to accomplish purpose of charitable trust as affecting its validity, 1916D-487. Validity of statute or ordinance regula- ting solicitation of funds for private charity, 1917D-1133. . CHARTERS. See Corporations. CHARTS. See Hospitals and Asylums. CHATTEL MORTGAGES. Attachment of chattels: right of defend- ant who has mortgaged chattels to move to dissolve attachment thereof, 1916D-479. waiver of chattel mortgage lien by at- tachment, 1916C-408. Injury to chattels: right of action of chat- tel mortgagor against third person for injury, etc., to chattels, 1917D-554. Property covered: chattel mortgage on stock of mercantile goods as covering additions thereto, 1916D-1215. ~ mortgage on animals as including in- crease, 1917C-1173. right of chattel mortgagee or condi- tional vendor to accession to property mortgaged or sold, 19170-1170. Eecording: validity of chattel mortgage not recorded as required by statute as against person taking conveyance subsequent to actual recording, 1917A- 196. CHATTELS. See Sales. CHAUFFEURS. See Automobiles. CHECKS. Criminal liability of officer of insolvent bank for receiving deposit therein consisting of check on same bank, 1916E-592. Giving worthless check as false pretense, 1916E-736. 18 DIGEST. 1916C 1918B. CHECKS Continued. Liability of bank to true holder or payee of check paid on forged indorsement, 1917D-1058. Lien of attorney on check book in his possession connected with litigation, 1917D-149. Right of drawer to stop payment of cer- tified check, 1917A-947. See also Bids. CHILDREN. "Child" as including illegitimate child, 1918B-249. See also Infants; Wills. CHIROPRACTIC. Validity of special regulation of chiroprac- tic treatment of disease, 1917B-798. CHOSES IN ACTION. Chose in action as embraced within "con- tents" or similar expression in will, 1916C-1139. CHRISTIANITY. Christianity as part of common law, 1918A-971. CHRISTIAN SCIENCE. Special regulation of Christian Science or other drugless treatment of disease, 1917B-798. CIGARS. Manufacturer of cigars as "dealer," 1917A-953. CITIZENSHIP. "Child" in statute relating to naturaliza- tion of Indians as including illegiti- mate child, 1918B-256. "Citizen" as including corporation, joint stock company or partnership, 1917C 875. Expatriated person as alien enemy, 1916D- 306. Grounds for revocation of naturalization, 1917C-45. Naturalization of alien enemy, 1917C 214. CIVII, DAMAGE ACTS. Damages for death by intoxication, 1917B- 530. CIVILIANS. See Army and Navy. CLAIMS. Liability of attorney to client for negli- gence with respect to collection of claims, 1917B-32. See also Assignments; Carriers of Goods; Carriers of Live Stock; Champerty and Maintenance; Executors and Ad- ministrators; Libel and Slander; Mu- nicipal Corporations; Telegraphs and Telephones. CLEANING STREETS. See Streets and Highways. CLERKS OF COURT. Personal liability of attorney for fees of clerk of court, 1917B-520. CLOSETS. See Health. CLOTHES. Effect on relation of employee as such of stopping work temporarily to obtain clothes, 1918A-1196. State or municipal regulation of use or sale of second hand clothes, bedding, or the like, 1917C-1068. CLUBS. See Societies and Clubs. COAL HOLES. See Streets and Highways. COHABITATION. See Bigamy. COLLATERAL ATTACK. See Eminent Domain; Monopolies. COLLATERAL SECURITY. See Stock and Stockholders. COLLECTIONS. See Assignments: Banks; Champerty and Maintenance. COLLEGES. See Schools. COLLISIONS. See Automobiles; Carriers of Passengers; Ships and Shipping; Street Railways. COLORED PERSONS. Separation of white and colored pupils for purposes of education, 1916C-806. See also Jury. COMBINATIONS. See Sales. COMMERCE. See Interstate Commerce; Intrastate Com- merce. COMMERCIAL PAPER. See Bills and Notes. INDEX TO THE NOTES. 19 COMMISSIONERS. Personal liability of attorney for fees of commissioner, 1917B-524. See also Public Service Commissions. COMMISSION GOVERNMENT. See Municipal Corporations. COMMISSION MERCHANTS. Validity of state or municipal regulation of commission merchants, 1917B-631. COMMISSIONS. See Agency; Brokers; Champerty and Maintenance. \ COMMITTEE. See Insanity. COMMITTEES. See Public Officers. COMMODITY. Legal meaning of "commodity," 1916D 986. COMMON CARRIERS. See Jitney Buses. COMMON LAW. Adoption of common law in relation to crimes, 1918A-990. Extent of adoption of common law, 1918A- 981. What the "common law" includes, 1918A- 968. See also Employers' Liability Acts. COMMUNISM. See Religious Societies. COMMUTATION RATES. See Tickets and Tares. COMPENSATION. See Agency; Attorneys; Bribery; Brokers; Champerty and Maintenance; Emi- nent Domain; Master and Servant; Public Officers; Streets and High- ways; Tenants in Common; Work- men's Compensation Acts. COMPETENCY. See Witnesses. COMPETITIVE BIDDING. See Bids. COMPLAINT. See Pleading. COMPLETE. Meaning of "complete" or "completed'* as applied to railroad, 1916D-1232. COMPROMISE AND SETTLEMENT. Liability of attorney to client for unau- thorized compromise of client's claim, 1917B-14. Mistake of law as ground for annulment of compromise, 1916D-347. See also Champerty and Maintenance. COMPULSORY MILITARY SERVICE. See Army and Navy. COMPUTATION OF TIME. See Time. CONCUSSION. See Explosions and Explosives. CONDEMNATION. See Eminent Domain. CONDITIONAL CONDEMNATION. See Eminent Domain. CONDITIONAL DELIVERY. See Bills and Notes. CONDITIONAL SALES. Election of remedies on breach of condi- tional sale, 1917D-464. Bight of chattel mortgagee or conditional vendor to accession to property mort- gaged or sold, 1917C-1170. Bight of conditional vendee to recover damages for breach of warranty, 1918B-914. Bights of parties in case of conditional sale of property to be attached to realty of third person, 1916D-915. CONDITIONS. See Deeds; Statutes; Wills. CONDONATION. See Divorce. COMPETITION. See Municipal Corporations; Partnership. CONDUCT. See Divorce; Jury. 20 DIGEST. 1816C 1918B. CONFESSIONS. Admissibility of confession obtained by fraud or trick, 1916D-966. Confessions of defendant as sufficient cor- roboration of accomplice, 1916C-570. Intoxication as affecting admissibility of confession, 1916C-1168. CONFLICT OF LAWS. Law governing right of married woman to become surety for husband, 1917B- 597. Law governing status of person as legi- timate or illegitimate, 1917C-537. Law governing transfer of corporate stock, 1917D-959. Law governing validity of stipulation for attorney's fee in promissory note, 1917D-365. See also Actions; Assignments; Foreign Laws; Workmen's Compensation Acts. CONFUSION OF GOODS. Confusion of goods resulting from mistake or accident, 1918A-746. Tortious or wrongful confusion of goods, 1918A-740. CONGRESS. Power of legislature to punish person other than witness for contempt, 1918B-378. CONNIVANCE. See Adultery. CONSCEIFTION. See Army and Navy. CONSENT. See Mechanics' Liens; Nuisances; Physi- cians and Surgeons; Suretyship. CONSIDERATION. See Antenuptial Agreements; Bills and Notes; Eminent Domain; Frauds, Statute of; Release and Discharge; Sales; Vendor and Purchaser; Ven- dor's Lien. CONSOLIDATION. See Corporations. CONSORTIUM. See Husband and Wife. CONSPIRACY. Liability of corporation to indictment for criminal conspiracy, 1916C-462. Survival of right of action for conspiracy to restrain trade, 1916C-726. See also Blacklisting. CONSTABLES. See Sheriffs and Constables. CONSTITUTIONAL LAW. Actions: validity of statute providing for survival of action for personal inju- ries after death of person injured, 1917E-1171. Agriculture: validity of farm loan statute, 1917E-216. validity of statute providing for de- struction of diseased fruit trees, fruit or vegetables, 1917E-220. validity of statute regulating sale of seed, 1917E-167. Amendments to constitution: judicial no- tice of proceedings for adoption of amendment to constitution, 1917D- ' 1031. Animals: validity of ordinance regulating keeping of cattle within municipal limits, 1917E-929. validity of statute providing for de- struction of diseased animals with compensation to owner, 1917D-89. Assignments: validity of statute forbid- ding assignment of debt or claim for collection in another jurisdiction, 1916D-870. Automobiles: municipal regulation of au- tomobiles with respect to equipment, use of streets, or the like, 1916E-1047. validity of inclusion or exclusion of non- residents in statute regulating use of motor vehicles, 1917E-324. Banks: validity and effect of federal re- serve act, 1917C-1099. validity of statute creating office of bank examiner, 1916E-219. Beneficial associations: validity of amend- ments to by-laws of fraternal benefit societies as applied to existing mem- bers, 1917B-814. Billboards: municipal regulation of bill- boards and signs, 1916C-491. Bricks: state or municipal regulation of manufacture of bricks, 1917B-931. Building and loan associations: constitu- tionality of statutes exempting build- ing and loan associations from usury laws, 1916E-232. Carriers of goods: power of public service commission to compel carrier to fur- nish particular class of service, 1917B- 1160. validity of statute imposing penalty on carrier of goods for failure to pay claim within certain time, 1916D-335. validity of statute, ordinance or rule providing for reciprocal demurrage, 1916C-701. Carriers of live stock: validity of statute imposing penalty on carrier of live stock for failure to pay claim within certain time, 1916D-335. Carriers of passengers: power of public service commission to compel carrier to furnish particular class of service, 1917B-1160. INDEX TO THE NOTES. 21 CONSTITUTIONAL LAW Continued. Carriers of passengers: power of public service commission to regulate run- ning time of trains, 1916D-1034. state or municipal regulation of jitney buses, 1917C-1051. validity of order of public service com- mission regulating commutation rates, 1917B-1153. validity of order of public service com- mission requiring running of Sunday train, 1917B-1205. validity of regulation of extent of train service to be furnished by railroad, 1917B-1217. Charities: validity of statute or ordinance regulating solicitation of funds for private charity, 1917D-1133. "Citizen" as including corporation within constitutional protection of privileges and immunities, 1917C-876. Commission merchants: validity of state or municipal regulation of commission merchants, 1917B-631. Coroners: right of accused or suspected person to appear by counsel at coro- ner's inquest, 1916D-394. Corporations: validity and effect of stat- ute making stockholder liable for cor- porate debts after bona fide transfer of stock, 1917A-109. Decedents' estates: validity of statute fix- ing probate or administration fees, 1916C-213. Descent and distribution: right to take property by inheritance or will as natural right protected by constitu- tion, 1918A-939. Detectives: statutory regulation of private detectives, 1917A-584. Divorce: validity of statute requiring cer- tain period of residence within state as prerequisite to divorce, 1916E- 1110. Elections: validity and construction of statute providing for preferential sys- tem of voting, 1917C^82. Electricity: power of public service com- mission to prevent maintenance of electric wires in close proximity, 1918B-847. state or municipal regulation of electri- cians, 1916E-694. Eminent domain: power of telegraph or telephone company to condemn rail- road right of way under state statute, 1917B-689. validity of statute conferring on public service commission or other body ju- risdiction of eminent domain proceed- ings, 1916C-420. Evidence: validity of ordinance providing that certain state of facts shall con- stitute prima facie evidence of viola- tion thereof, 1916C-1062. Fires: validity of statute making railroad absolutely liable for damage by fire, 1918A-632. CONSTITUTIONAL LAW Continued. Fish and game: validity and construction of federal statutes protecting game, 1917D-654. validity and construction of statute regulating method of taking fish, 1917D-814. validity of statute requiring license to hunt game, 1916C-134. Food and drugs: state or municipal regu- lation of ice cream, 1917B-645. statutory or municipal regulation of meat dealers, 1917A-198. validity and construction of federal regulation of manufacture, sale or pos- session of opium or other narcotic, 1917D-856. ralidity and construction of statute or ordinance regulating sale of eggs, 1918A-181. Foreign corporations: imposition of license tax or fee on foreign corporation, 1916C-1248. validity of statute designating particu- lar kind of agent of foreign corpora- tion on whom process may be served, 1916E-339. Fuel: power of municipality to engage in business of furnishing fuel to inhabi- tants, 1916C-742. Gas: state or municipal regulation of gas rates, 1917B-4036. Guardians: validity of statute providing for appointment of guardian for aged person, 1917A-874. Ice: power of municipality to operate plant for purpose of furnishing ice to inhabitants, 1916C-1287. Immigration: authority of Congress over immigration, 1917O-238. Imprisonment for debt: civil liability for tort as debt within constitutional pro- vision against imprisonment for debt, 1917D-841. Innkeepers: validity of statute or ordi- nance licensing or regulating hotels, lodging or rooming houses, or the like, 1916C-290. Intoxicating liquors: right to prohibit pos- session of intoxicating liquor for per- sonal use, 1916E-780. state regulation of transportation of in- toxicating liquors, 1917A-622. validity of intoxicating liquor statute which makes distinction between races with respect to granting of li- cense or otherwise, 1916E-170. validity of statute forbidding bringing of liquor into prohibition territory, 1917A-740. Jury: constitutionality of statute reauir- ing prepayment or taxation as costs of jury fees, 1917B-308. validity 'and construction of constitu- tional or statutory provision for ver- dict by less than whole number of jurors, 1916E-500. Labor: constitutionality of workmen's compensation act, 1918B-611. DIGEST. 1916C 1918B. CONSTITUTIONAL LAW Continued. Labor: validity of statute discriminating against aliens in employment of labor- ers, 1917B-287. validity of statute prohibiting importa- tion of contract labor, 1917C-262. validity of statute regulating employ- ment of adult females in other re- spects than number of hours of labor, 1916D-1065. validity of statute requiring weekly rest day for employees, 1916D-1058. "Law": ordinance as "law" within mean- ing of constitutional provision, 1917C 687. Loan brokers: state or municipal regula- tion of personal property loan brokers, 1916E-618. Mechanics' liens: validity of mechanic's lien law providing for taxing of attor- ney's fees, 1916D-1044. Mercantile agencies: statutory regulation of mercantile agencies, 1916D-749. Mines and minerals: statutory regulation of sale of petroleum products, 191 7 A- 167. validity of license tax imposed on owner of premises for extracting mineral therefrom, 1918A-678. Motorcycles: statutory regulation of mo- torcycles, 1917A-218. Moving pictures: statutory regulation of moving pictures, 1916C-301. Municipal corporations: commission form of municipal government, 1917C-1103. interest on municipal bonds as factor in determining whether municipality has exceeded constitutional debt limit, 1918B-598. Names: validity and construction of stat- ute authorizing change of name by in-* dividual, 1917A-437. Nursing: state regulation of practice of nursing, 1917C-168. Parades: validity of statute or ordinance regulating parades or processions, 1916D-847. Partial invalidity of constitution: effect of partial invalidity of provision in state constitution, 1916D-15. Physicians and surgeons: special regula- tion of Christian Science or other drugless treatment of disease, 1917B- 798. special regulation of persons treating ocular diseases. 1917B-803. Police: validity of statutes creating met- ropolitan police, 1917D-1112. Privies: validity of statute or ordi- nance regulating out-of-door closets or privies, 1916D-212. Process: validity of statute providing for service on agent of nonresident part- nership, 1916D- 813. Processions: validity of statute or ordi- nance regulating parades or proces- sions, 1916D-847. Prostitution: validity and construction of statute making owner of premises CONSTITUTIONAL LAW Continued. liable for use thereof for purpose of prostitution, 1917A-459. Public officers: estoppel of public officer to deny validity of statute by accepting compensation thereunder, 1917C-284. right of woman to be notary public, 1017D-534. validity and construction of anti-nepo- tism law, 1917D-735. validity of statute establishing fund for bonding of public officers, 1918A-603. Public service commissions: power of pub- lic service commission to compel car- rier to furnish particular class of ser- vice, 1917B-1160. power of public service commission to make test order, 1917E-794. power of public service commission to prevent maintenance of electric wires in close proximity, 1918B-847. power of public service commission to regulate running time of trains, 1916D-1034. validity of order of public service com- mission regulating commutation rates. 1917B-1153. validity of order of public service com- mission requiring running of Sundav train, 1917B-1205. validity of statute conferring on com- mission power to fix rates for public service corporations, 1917C 57. validity of statute conferring on public service commission or other body ju- risdiction of eminent domain proceed- ings, 1916C-420. validity of statute conferring on public service commission power to deter- mine necessity for construction or ex- tension of public utility, 1916E-299. Railroads: state regulation of railroads as interference with interstate com- merce, 1917A-973. Schools: power of legislature with respect to expenditure of school funds, 1917C- 917. validity of health regulation relating to school children, 1917A-765. validity of statute fixing minimum sal- ary of school teachers, 1916E-120. validity of statutory or other prohibi- tion against secret societies among students, 1916E-527. Second hand clothing, etc.: state or muni- cipal regulation of use or sale of sec- ond hand clothes, bedding, or the like, 1917C-1068. Smoke: validity of smoke ordinance or statute, 1918B-173. Statutes: effect of partial invalidity of statute, 1916D-9. effect of repeal or amendment of repeal- ing statute as reviving repealed stat- ute, 1918B-2S1. Streets and highways: constitutionality of statutes and ordinances regulating speed of vehicles in streets and high- ways, 1916E-1067. INDEX TO THE NOTES. 23 CONSTITUTIONAL LAW Continued. Streets and highways: validity of ordi- nance prohibiting use of streets by business vehicles, 1916E 969. Taxation: constitutionality of poll taxes, 1917E-1208. liability to taxation within state of shares of stock of foreign corporation, 1916C-829. public property as subject to special as- sessment, 19 v 17D-844. validity and construction of statute giv- ing priority to lien for taxes, 1917A 1079. validity of exemption from taxation of money loaned on mortgage security, 1916E-757. validity of statute imposing restriction on exercise of rights by delinquent taxpayer, 1916D-1099. Transient merchants: state or municipal regulation of transient merchants, 1917E-505. Trees and timber: validity anfl construc- tion of forestry legislation, 1917A 5. validity of license tax imposed on owner of premises for extracting turpentine therefrom or cutting timber thereon, 1918A-678. Telegraphs and telephones: power of municipality to construct and operate municipal telephone system, 1918A- 380. War: compulsory military service, 1917C- 812. expatriated person as alien enemy, 1916D-306. nature and scope of war power, 1918B- 1009. rights and liabilities of alien enemies, 1917C-189. Waters and watercourses: power of state to grant title to land under navigable water, 1918B-1107. Witnesses: Waiver by witness of consti- tutional privilege as extending to sub- sequent trial or proceeding, 1916C- 1012. Workmen's compensation acts: constitu- tionality of workmen's compensation act, 1918B-611. CONSTRUCTION. See Automobiles; Bills and Notes; Con- tracts; Deeds; Drunkenness; Elec- tions; Fish and Game; Insurance; Jury; Landlord and Tenant; Munici- pal Corporations; Physicians and Sur- geons; Statutes; Warehouses; Waters and Watercourses; Wills. CONSTRUCTIVE DELIVERY. See Frauds, Statute of. CONSTRUCTIVE NOTICE. See Recording Acts. CONSTRUCTIVE TOTAL LOSS. See Marine Insurance. CONSTRUCTIVE TRUSTS. See Trusts and Trustees. CONSULS. See Ambassadors and Consuls. CONSUMERS. See Food and Drugs. CONSUMMATION OF CONTRACT. See Contracts. CONTEMPT. Liability of corporation for criminal con- tempt, 1916C-463. Power of juvenile court to punish for con- tempt, 1916E-1014. Power of legislature to punish person other than witness for contempt, 1918B-378. Practicing law without license as con- tempt of court, 1917B-1200. What constitutes cruel and unusual pun- ishment for contempt of court, 1918B- 398. CONTENTS. Meaning of "contents" or similar expres- sion as used in will in connection with property bequeathed or devised, 1916C-1139. CONTEST. See Wills. CONTINGENCY. See Frauds, Statute of. CONTINGENT REMAINDERS. See Remainders and Reversions. CONTINUANCE. See Trial. CONTINUANCE IN SERVICE. See Master and Servant. CONTRACTORS. See Building Contracts. CONTRACTS. Alien enemies: contract rights of alien enemy, 1917C-195. Amusement contracts, 1917C-391. Attorneys: lien of attorney on contract in his possession connected with litiga- tion, 1917D-149. Automobiles: nature and construction of automobile sales agency contracts, 1917E-568. Bids: implied liability of municipality under contract let contrary to statute 24 CONTRACTS Continued. requiring competitive bidding, 1917A- 1263. Bide: necessity for readvertisement where bidder to whom municipal contract is awarded fails to comply with condi- tions or abandons work, 1916D-1189. rights of parties with respect to certi- fied check or other deposit made with bid, 1916C-427. Breach: exemplary damages in action on contract other than contract to marry, 1917E-112. Injunction as remedy for breach of ex- press covenant not to engage in same business as covenantee, 1916C-187. measure of damages for breach of con- tract to make will, 1918A-854. measure of damages for breach of con- tract to sell land due to vendor's in- ability to make title, 1917B-858. recovery of profits as damages for breach of contract to sell on commis- sion, 1917B-1194. remedies of party to contract upon anti- cipatory breach thereof or prevention of performance, 1917E-712. running of statute of limitations against action for services performed in con- sideration of oral agreement to com- pensate by will, 1918A-912. war as excuse for breach of contract, 1918A-14. whether stipulated forfeiture for breach of contract a penalty or liquidated damages, 1917D-739. Building contracts: principal contractor as necessary party defendant to action to foreclose mechanic's lien, 1918B-6. right of building contractor to rescind contract for failure of owner to make payment, 1916C-54. Carriers: statute regulating contracts of carriers as interference with interstate commerce, 1917A-973. Computation of time: exclusion or inclu- sion of Sunday or holiday in compu- tation of time for performance of act under contract, 1917E-945. Convicts: contractual capacity of convict, 1916D-225. "Damage by elements": construction of phrase "damage by elements" or simi- lar phrase as used in contract, 1917B 298. Infants: infancy as defense to action for money loaned, 1916C-999. power of infant to consent to issuance of liquor license, 1916C-497. right of infant who repudiates contract for services to recover therefor, 1916E-261. what constitutes reasonable time for in- fant to disaffirm contract after major- ity, 1917D-413. Interference: civil liability for interfer- ence with contract relations, 1916E- 608. DIGEST. 1916C 1918B. CONTRACTS Continued. Insurance: contract for burial as insur- ance contract, 1916C-1016. what is an "insurance company" or "con- tract of insurance," 1916C-1022. Militia: enlistment in militia as contract, 1917B-244. Municipal corporations: implied liability of municipality under contract let con- trary to statute requiring competitive bidding, 1917A-1263. liability of municipality or officer for failure to take from contractor bond for protection of laborers or material- men, 1917B-1089. mandamus as remedy in behalf of muni- cipality to compel performance of con- tractual obligation, 1918A-915. necessity for readvertisement where bid- der to whom municipal contract is awarded fails to comply with condi- tions or abandons work, 1916D 1189. power of municipality to enter into partnership contract for construction of improvement, 1916C-909. rights of parties with respect to certified check or other deposit made with bid, 1916C-427. Offer and acceptance: accentance of offer once rejected as consummating con- tract of sale, 1917C-987. Pleading: inconsistent defenses in action growing out of contract, 1917C715. Validity: admissibility of parol evidence to show illegality of contract, 1917D- 426. effect of partial invalidity of ante- nuptial contract, 1918B-925. illegal contracts as to compensation by agents of vendor or vendee, 1917A- 511. legality of blacklisting agreement, 1917A-644. presumption and burden of proof of undue influence in case of convey- ance inter vivos bv parent to child, 1918B-457. principle of estoppel as applicable to rights of parties under void Sunday contract, 1916E-467. renewal contract as affected by usury in original contract, 1918A-753. right of railroad company to grant ex- clusive privileges on depot grounds, 1918A-702. solicitation of business by attorney as forfeiture of right to compensation therefor, 1917C-S72. validity and effect of contract induced by threats of criminal prosecution against friend, or relative other than parent, child or spouse, 1917C-1033. validity and effect of contract of par- ent or child induced by threats of criminal prosecution against other, 1917C-1026. validity of agreement by person other than attorney to collect, settle or com- promise claim for commission, 1918A- 797. INDEX TO THE NOTES. 25 CONTRACTS Continued. Validity: validity of contract designed to influence public election, 1917C-350. validity of contract for compensation of attorney made after fiduciary relation is established, 1917A-531. validity of contract for contingent com- pensation in procuring legislation, 1916E-948. validity of contract made by telephone, 1917B-907. validity of contract not to change will, 1916D-1160. validity of contract of adoption not made in conformity with statute, 1916D-1110. validity of contract to prevent bidding at judicial sale, 1917D-232. validity of contract to procure pardon or parole, 1917D-890. validity of sale of liquors where seller knows same will be illegally resold, 1918B-978. validity of stipulation for attorney's fee in promissory note, 1917D-365. validity of transfer of expectancy in estate made by heir or beneficiary to stranger, 1916E-1241. See also Agency; Alteration of In- struments; Antenuptial Agreements; Banks; Beneficial Associations; Bills and Notes; Blacklisting; Breach of Promise of Marriage; Brokers; Build- ing and Loan Associations; Carriers of Goods; Chambers of Commerce; Compromise and Settlement; Corpo- rations; Dower; Executors and Ad- ministrators; Frauds, Statute of; Homestead; Husband and Wife; Im- migration; Landlord and Tenant; Master and Servant; Mechanics' Liens; Mines and Minerals; Monopo- lies; Parent and Child; Parol Evi- dence; Release and Discharge; Sales; Suretyship; Telegraphs and Tele- phones; Vendor and Purchaser. CONTRIBUTION. Eight of contribution between partners, 1916D-820. See also Adjoining Landowners.' CONTRIBUTORY NEGLIGENCE. Adjoining landowners: contributory negli- gence of adjoining owner as affecting liability of landowner excavating on his own premises, 1917A-356. Animals: contributory negligence as affecting liability of owner for inju- ries caused by runaway horse, 1916E- 1117. Attempt to save life: contributory negli- gence in attempt to save human life, 1917C-654. Automobiles: contributory negligence of pedestrian as affecting liability for injury by automobile, 1916E-669. negligence of driver as imputable to oc- cupant of automobile, 1916C-268. CONTRIBUTORY NEGLIGENCE Con- tinued. Carriers of passengers: contributory neg- ligence as affecting liability of car- rier of passenger for injury to person riding in charge of stock, 1917E-152. contributory negligence of passenger in alighting from street car and passing to rear of it across parallel tracks without looking for approaching car, 1916E-998. contributory negligence oT passenger in permitting part of his body to pro- trude from car, 1916C-1218. failure of carrier to enforce rule as affecting contributory negligence of passenger in violation thereof, 1916E- 1308. Contributory negligence as defeating re- covery where previous negligence of defendant has incapacitated him from avoiding injury to plaintiff, 1916D- 501. Gas: contributory negligence as affecting liability of gas company for escape of gas, 1916E-280. Imputed negligence: negligence of driver as imputable to occupant of automo- bile, 1916C-268. negligence of driver as imputable to oc- cupant of vehicle, 1&16E-685. Master and servant: contributor^ negli- gence as affecting liability of master to servant with respect to animal fur- nished by him to servant, 1917A-314. contributory negligence of domestic servant as precluding recovery from master for personal injuries, 1917D- 501. Motorcycles: contributory negligence of driver of motorcycle as affecting right to recover for collision with auto- mobile, 1917A-222. Railroads: contributory negligence of per- son on track at place other than crossing as affecting liabilitv for in- jury by train running without head- light, 1918A-1184. Street railways: contributory negligence of pedestrian as affecting liability for injuries by street car in rounding curve, 1916E-682. Streets and highways: contributory negli- gence as affecting liability for inju- ries sustained by pedestrian from coal hole in sidewalk, 1917D-496. Wharves: contributory negligence as pre- cluding recovery for injuries sustained on defective wharf, 1916C-157. CONVERSATION. See Libel and Slander; Telegraphs and Telephones. CONVERSION. Measure of damages for conversion of, or failure to deliver, household goods, 1917B-585. Measure of damages for conversion of shares of stock, 1916C-641. 26 CONVEYANCES. See Deeds. CONVICTION. See Criminal Law. CONVICTS. Contractual capacity of convict, 1916D- 225. Eight to inflict corporal punishment on convict, 1916C-130. Service of process on convict, 1916D-1207. See also Prisons and Prisoners; Reforma- tories. COPIES. See Foreign Laws. COPYRIGHT. Application of copyright law to moving pictures, 1916C-305. CORONERS. Admissibility of coroner's verdict as evi- dence in subsequent proceedings, 1917B-892. Eight of accused or suspected person to appear by counsel at coroner's inquest, 1916D-394. CORPORAL PUNISHMENT. See Convicts. CORPORATIONS. Chambers of commerce: powers and lia- bilities of private corporation or as- sociation organized to promote busi- ness interests of community, 1917C- 787. Charitable corporations: fire company, in- surance patrol or the like as charitable institution, 1917C-797. "Citizen" as including corporation, 1917C- 875. Consolidation: necessity of assent of all stockholders to consolidation of cor- porations, 1918A-165. Crimes: criminal liability of corporation for act of misfeasance other than hom- icide, 1916C-459. method or process by which court may acquire jurisdiction of defendant cor- poration in criminal case, 1916E-1289. Debt limit: construction of debt limit pro- vision in charter of private corpora- tion, 1918B-966. Dissolution: dissolution of attachment by dissolution of defendant corporation, 1917A-159. dissolution of corporation as abating ac- tion against it to recover penalty or forfeiture, 1917A-1180. DIGEST. 1916C 1918B. CORPORATIONS Continued. Foreign corporations: imposition of license tax or fee on foreign corporation, 1916C-1248. liability to suit within state of foreign corporation which has revoked desig- nation of agent for service of pro- cess and has ceased to do business within state, 1916D-378. liability to taxation within state of shares of stock of foreign corporation, 1916C-829. right to issue attachment against for- eign corporation on ground of non- residence, 1916E-362. right to serve process on public official or designated agent of foreign corpo- ration in action arising out of trans- action in another state, 1918A-392. ralidity of statute designating particular kind of agent foreign corporation on whom process may be served, 1916E- 339. Libel and slander: liability of corporation for libel or slander, 1917D-967. Mortgages: power of trustee of corporate mortgage to release mortgaged prop- erty, 1916D-1182. right of creditor to object to mortgage of property of corporation made with- out required consent of stockholders, 1916C-1039. Officers: acceptance of office in private cor- poration, 1917D-516. authority of officer of corporation to enter into contract for purchase or sale of real estate, 1917A-482. distinction between "office" and "em- ployment" in private corporation, 1917D-320. eligibility of officer of corporation to whom stock is transferred for purpose of enabling him to become officer, 1916C-963. implied authority of officers, agents, or servants to contract for medical, sur- gical, or other attendance or supplies for sick or injured persons, 1918A-791. liability of corporate director to corpo- ration or stockholder for secret profits, 1917A-238. liability of person signing negotiable paper as officer of corporation, 1917D- 568. presumption that contract executed by president of corporation is authorized by corporation, 1917A-360. purchase of stock by director as affected by fiduciary relation to stockholder, 1918B-241. right to notice of dishonor of stockholder or officer indorsing corporate paper, 1917B-836. stockholder or officer of corporation in- terested in instrument as disqualified to take acknowledgment thereof, 1916D-705. Predecessor: liability of corporation for debts of predecessor, 1916D-658. INDEX TO THE NOTES. 27 CORPORATIONS Continued. Promoters: liability of corporation to third parties on contracts of its promoters. 1916C-105. Statutes: effect of partial invalidity of statute relating to corporations, 1916D-38. Stock and stockholders: admissibility in evidence of books or records of corpo- ration in action between members or between corporation and member, 1917D-558. alteration in charter or change in corpo- rate design as releasing subscriber to stock, 1918A-79. effect on sales of corporate stock of sev- enteenth section of statute of frauds and equivalent enactments, 1917C-991. law governing ., transfer of corporate stock, 1917D-959. liability for corporation debts or calls of person who holds stock as collat- eral security, 1916C-567. liability to taxation within state of shares of stock of foreign corporation, 1916C-829. liability of corporate director to corpo- ration or stockholder for secret profits, 1917A-238. liability on stock subscription as de- pendent upon whole amount of stock having been subscribed, 1918B-1137. measure of damages for conversion of shares of stock, 1916C-641. necessity of assent of all stockhold- ers to consolidation of corporations, 1918A-165. preferred shareholder as creditor or stockholder of corporation, 1917B-55S. purchase of stock by director as affected by fiduciary relation to stockholder, 1918B-241. right of stockholder to inspect books of corporation as absolute or qualified, 1917D-898. right of stockholder to preference in subscribing for new stock, 1938B-132. rights of unregistered transferee as against attachment or execution levied on stock, 1917A-428. right to notice of dishonor of stockholder or officer indorsing corporate paper, 1917B-836. situs of corporate stock for purposes of succession tax, 1918A-555. stockholder or officer of corporation in- terested in instrument as disqualified to take acknowledgment thereof, 1916D-705. sufficiency as to contents of notice of special meeting of stockholders, 1917E- 1004. validity and effect of statute making stockholder liable for corporate debts after bona fide transfer of stock, 1917A-109. validity of corporate by-law regulating alienation of stock, 1916D-1202. CORPORATIONS Continued. Stock and stockholders: validity of insur- ance policy issued by agent on prop- erty of corporation of which agent ia stockholder, 1916D-1275. waiver of notice of stockholders' meet- ing, 1916E-1038. when subscriber to stock becomes stock- holder, 1917E-209. Taxation: effect of partial invalidity of statute relating to taxation of corpo- ration, 1916D-91. imposition of license tax or fee on for- eign corporation, 1916C-1248. liability to taxation within state of shares of stock of foreign corporation. 1916C-829. situs of corporate stock for purposes of succession tax, 1918A-555. situs of income of corporation for pur- pose of income tax, 1918A-426. See also Insurance; Public Service Com- missions; Public Service Corporations; Public Utilities; Religious Societies; Trademarks and Trade Names. CORROBORATION. See Confessions. COSTS. Allowance of costs in proceeding in juve- nile court, 1916E-1018. Constitutionality of statutes requiring pre- payment or taxation as costs of jury fees, 1917B-308. Costs in action for penalty for violation of intoxicating liquor statute, 1916E- 873. Liability of landowner for costs on appeal in eminent domain proceeding, 1917E 262. Power of court to impose costs on attorney for misconduct, 1917B-43. COSURETIES. See Suretyship. COTENANCY. See Estates. COUNCIL. See Municipal Corporations. COUNSEL. See Attorneys; Schools. COUNTERCLAIM. See Set-off. COUNTIES. County property as subject to special as- sessment, 1917D-847. 28 COUNTIES Continued. Effect of partial invalidity of statute re- lating to counties, 1916D-40. Effect of partial invalidity of statute re- lating to county courts, 1916D-42. Effect of partial invalidity of statute re- lating to county officers, 1916D-82. COURSE OF CONDUCT. See Divorce. COURSE OF EMPLOYMENT. See Employers' Liability Acts; Workmen's Compensation Acts. COURTS. Army and navy: criminal jurisdiction of state court over member of national guard, 1917A-279. jurisdiction of court over military forces, 1917C-8. "Citizen" as including corporation for pur- pose of giving court jurisdiction, 1917C-875. Corporations: method or process by which court may acquire jurisdiction of de- fendant corporation in criminal case, 1916E-1289. Courthouses: effect of partial invalidity of statute relating to county court- house, 1916D-41. Dead bodies: power of court to order ex- humation of dead body for evidentiary purposes, 1916D-331. Decisions: criminality of act committed after decision holding statute inappli- cable and before reversal of decision, 1916E-373. force and effect of advisory opinion by appellate judges, 1917A-495. False pretenses: jurisdiction of offense of obtaining property by false pretenses, 1917E-311. Holidays: right to hold court on holiday, 1916E-852. validity of judicial business performed on holiday, 1916E-S49. Indictments: power of court to set aside indictment on own motion and order resubmission, 1918A-860. Intoxicating liquors: jurisdiction of action for penalty for violation of intoxicat- ing liquor statute, 1916E-872. Judicial notice: judicial notice of con- tents of legislative journals on issue as to enactment of statute, 1916E- 1284. judicial notice of mortalitv tables, 1918B-415. judicial notice of proceedings for adop- tion of amendment to constitution, 1917D-1031. Jury: power of court to exclude person "from jury service, 1916C-1209. Juvenile courts: effect of partial invalidity of statute relating to juvenile offend- ers and courts, 1916D-67. DIGEST. 1916C 1918B. COURTS Continued. Juvenile courts: establishment of and pro- cedure in juvenile courts, 1916E-1010. Lost instruments: jurisdiction of action on lost instrument, 1917A-1289. Names: right of individual to change name as resting in judicial discretion, 1917A-437. National banks: jurisdiction of action against national bank to recover pen- alty for taking usurious interest, 1916D-1246. Naturalization: grounds for revocation of naturalization, 1917C-45. "Order of court": what constitutes "order of court," 1917C-1041. Ordinances: judicial inquiry into motives prompting enactment of legislative or- dinance, 1917B-834. Sewers: power of court lo compel munici- pality to remove, construct or enlarge sewer, 1917E-308. Statutory regulation: effect of partial in- validity of statute relating to courts, 1916D-42. Telephones: validity of notice, application, or order of court given by telephone, 1917B-903. Term of court: exclusion or inclusion of Sunday or holiday in computation of time of term of court or quasi-judicial body, 1917E-937. Wills: conclusiveness in domestic courts of foreign will duly probated abroad, 1918A-614. jurisdiction of equity to reform will, 1917D-1157. See also Appeal and Error; Attorneys; Contempt; Discovery; Injunctions; Judgments; New Trial; Prosecuting Attorneys; Removal of Causes; Trial; Venue; Verdict. COVENANTS. See Contracts; Deeds; Landlord and Ten- ant; Mines and Minerals; Vendor and Purchaser. CREDIBILITY. See Witnesses. CREDIT INSURANCE. Contracts of credit insurance, 1917D-75. CREDITORS. See Debtor and Creditor and cross-refer- ences thereunder. CRIMINAL CONVERSATION. Action bv wife for criminal conversation, 1916C-748. Proof of marriage in action for criminal conversation, 1917A-755. INDEX TO THE NOTES. 29 CRIMINAL LAW. Abortion: woman upon whom abortion is committed as accomplice, 1916C-629. Adultery: connivance or procurement by other spouse as defense" to prosecution for adultery, 1916E-741. persons capable of committing crime of adultery, 1917A-703. Alien labor: soliciting or importing alien contract labor as crime, 1917C-261. Army and navy: criminal jurisdiction of state court over member of national guard, 1917A-279. criminal liability of soldier or militia- man for injury to person or property, 1917C-25. liability of civilian for purchasing or receiving in pledge public property from soldier or sailor, 1918B-523. Arraignment: waiver of arraignment in criminal case, 1917D-829. Arrest: jurisdiction to try prisoner forcibly or unlawfully brought within jurisdic- tion, 1917D-229. Assault: declarations of infant at time of assault as part of res gestae, 1916C- 1187. defense of property as justification for assault, 1917D-291. discharging firearm to frighten person as assault, 1917D-617. right of person assaulted on his own premises to repel attack without re- treating, 1916C-918. trespass as justification of assault and battery, 1917D-37. Automobiles: construction of statute re- quiring person operating automobile to give name and address to person in- jured, 1917E-588. Banks: criminal liability of officer of in- solvent bank for receiving deposit therein consisting of check on same bank, 1916E-592. Intent as element of offense of receiving deposit in insolvent bank, 1917B-1081. Bigamy: cohabitation under foreign mar- riage as bigamy, 19170-1141. husband or wife as competent witness in prosecution for bigamy, 1916C-1060. Bribery: promise to do certain things after election as bribery of electors, 1918A- 888. sufficiency of indictment or information for bribery with respect to allegation of value of thing offered or received as bribe, 1918A-314. Burglary: burglary by opening, sufficiently to gain entrance, door or window partly open, 1916C-320. unauthorized entry of premises by em- ployee of owner as burglarious entry, 1916E-534. "Child" in statute relating to crime as including illegitimate child, 1918B- 254. Common law: adoption of common law in relation to crimes, 1918A-990. CRIMINAL LAW Continued. Confessions: admissibility of confession obtained by fraud. or trick, 1916D-966. confession of defendant as sufficient cor- roboration of accomplice, 1916C-570. intoxication as affecting admissibility of confession, 1916C-1168. Coroners: admissibility of coroner's verdict as evidence in criminal action, 1917B- 893. right of accused or suspected person to appear by counsel at coroner's request. 1916D-394. Corporations: criminal liability of corpora- tion for act of misfeasance other than homicide, 1916C-459. method or process by which court may acquire jurisdiction of defendant cor- poration in criminal case, 1916E-1289. Deaf and^ dumb persons: responsibility of deaf* and dumb persons for crime, 1917B-240. Detectives: criminal liability of private detective, 1917A-588. Duress: validity and effect of contract in- duced by threats of criminal prosecu- tion against friend, or relative other than parent, child or spouse, 1917C- 1033. validity and effect of contract of parent or child induced by threats of criminal prosecution against other, 1917C-1026. Embezzlement: restoration of property or settlement or offer to settle with owner as defense to prosecution for embezzle- ment, 1916C-66. Entrapment: inducement to commit offense with view to prosecution therefor as defense to such prosecution, 1916C- 730. Exculpatory statements: admissibility of prior exculpatory statement by ac- cused to contradict evidence given by him or on his behalf at trial, 1917D- 1101. Extradition: person in custody on charge of other crime as subject to extradi- tion, 1917B-337. False pretenses: bill or note as "property," etc., within statute against false pre- tenses, 1917D-627. giving worthless check as false pre- tense, 1916E-736. jurisdiction o'f offense of obtaining property by false pretenses, 1917E- 311. obtaining loan of money as constituting crime of obtaining money by false pre- tenses, 1916C-1158. what constitutes attempt to obtain money by false pretenses, 1917B-1230. Finger prints: law of finger prints, 1917A- 417. Footprints: admissibility in criminal case of evidence obtained by requiring de- fendant to furnish shoe to compare with footprint, 1917D-237. Forgery: forgery of or by typewriting, 1916D-784. 30 DIGEST. 1916C 1918B. CRIMINAL LAW Continued. Homicide: declarations of infant at time of homicide as part of res gestae, 1916C-1187. fact that death resulted from superven- ing cause as defense to charge of homicide, 1916C-692. propriety of instruction at to punish- ment imposed for various degrees of homicide, 1917A-752. right of jury to convict for lesser degree under indictment or information char- ging act declared by statute to be murder in first degree, 1916C-556. what constitutes "lying in wait" within statute relating to homicide, 1916C- 969. Indictment and information: necessity that criminal information filed by prose- cuting attorney be under oath, 1917C- 531. power of court to set aside indictment on own motion and order resubmission, 1918A-860. Injunctions: power of equity to enjoin criminal prosecution, 19160-1153. right of state to enjoin private nuisance which is also crime, 1916C-455. Insanity: irresistible or uncontrollable im- pulse as defense to criminal charge, 1917C-609. time or stage in criminal proceedings when question of insanity of defend- ant may be determined by inquisition or otherwise, 1916E-424. Intoxicating liquors: criminal liability of eteward of social club for sale of in- toxicating liquors, 1916D-943. Jeopardy: failure to interpose objection of former jeopardy on second trial as waiver of plea, 1917C-765. Judgment: admissibility in subsequent civil action of judgment of conviction based on plea of guilty, 1917E-1109. Larceny: bees as subject of larceny, 1917B-987. restoration of property or settlement or offer to settle with owner as defense to prosecution for larceny, 1916C-68. wild animal as subject of larceny, 1917B-971. Libel and slander: comment on crime or criminal charge as privileged within law of libel and slander, 1917B-424. criminal liability for defamation of de- ceased person, 1917E-234. words imputing criminal immorality to man as libel or slander, 1917A-1043. Licenses: right to join two or more de- fendants in indictment for violation of license statute, 1918A-571. Practice: effect of partial invalidity of statute relating to practice and pro- cedure in criminal cases, 1916D-80. Preliminary examination: right of accused person to preliminary examination, 1916C-312. waiver of preliminary examination by accused person, 1917E-179. CRIMINAL LAW Continued. Presumptions: conflict between presump- tion of innocence and presumption of identity of person from identity of name, 1917E-122. Prostitution: immigrant prostitution or immorality, 1917C-250. validity and construction of statute making owner of premises criminally liable for use thereof for purpose of prostitution, 1917A-461. whether man can be "prostitute," or guilty of resorting to house of ill- fame for purpose of prostitution. 1917D-248. Rape: impotency as defense to charge of rape or assault with intent to rape, 1916D-535. Bobbery: attempt to commit robbery or assault with intent to commit robberv. 1918A-406. Seduction: admissibility of evidence of de- fendant's reputation in prosecution for seduction, 1916E-381. Sentence and punishment: effect of failure to ask convicted person if he has any- thing to say before sentence, 1916C- 95. right of prisoner who has received ex- cessive sentence to be discharged on habeas corpus or appeal, 1916D-368. what is cruel and unusual punishment, 1918B-396. Statutes: criminality of act committed after decision holding statute inappli- cable and before reversal of decision, 1916E-373. effect of partial invalidity of criminal statute, 1916D-45. Sundays and holidays: engaging in labor or amusement on Sunday as offense at common law or under statute other than Sunday law, 1918B-387. Threats: criminal liability for threat of prosecution in connection with demand for payment of debt, 1917E-246. sending anonymous letter as criminal offense, 1917C-699. threat to accuse of crime as criminal offense, 1917B-134. Trees and timber: criminal liability for unlawful cutting of timber on public lands, 1917A-18. Trial: prejudicial newspaper publication as ground for continuance of criminal case, 1918A-449. right of accused to consult with or sit by counsel during trial, 1916D-204. right of criminal court to exclude per- sons from courtroom, 1917E-625. right of private counsel to assist prosecu- tion in criminal case, 1917D-512. Variance: effect of variance between in- dictment and proof with respect to suffix to name, 1917A-1214. Witnesses: admissibility in civil case of evidence showing that witness had INDEX TO THE NOTES. 31 CRIMINAL LAW Continued. previously claimed privilege in crimi- nal case, 1917E-879. See also Actions and Proceedings; Appeal and Error; Argument of Counsel; Attorneys; Dying Declarations; False Imprisonment; Grand Jury; Jury; Juvenile Courts; Life Insurance; Ma- licious Prosecution; Prosecuting Attor- neys. CRITICISM. See Attorneys. CROPS. Validity of parol preservation of crops by vendor of land, 1916C-344. CROSS-BILLS. See Quieting Title. CROSS-MARKS. See Elections. CRUEL PUNISHMENT. See Sentence and Punishment. CRUELTY. Habits or course of conduct of spouse as cruelty warranting divorce, 1918B-480. Separation agreement as bar to action for divorce on ground of cruelty. 1916C- 351. CURTESY. Act of husband as tenant by curtesy as constituting election to take under wife's will, 1916C-1205. CUSTODY. See Jury; Parent and Child. CUSTOMS. See Usages and Customs. CUSTOMS OFFICERS. Eight of customs officer to damages for injuries sustained on defective wharf, 1916C-142. DAMAGE BY ELEMENTS. Construction of phrase "damage by ele- ments" or similar phrase as used in contract, 1917B-296. DAMAGES. Adjoining landowners: liability of owner for damages caused by overhanging branches of trees, 1918B-1166. DAMAGES Continued. Alienation of affections: damages recover- able in action by wife for alienation of affections, 1916C-752. measure of damages in action against parent or guardian for alienation of affections, 1917E-1021. measure of damages in action against relative for alienation of affections, 1917E-1029. "All damages": meaning of "all damages," 1917E-82. Amusement contracts: damages for breach of contract for services of theatrical performer, 1917C-395. Assault: provocation in mitigation of dam- ages for assault, 1917D-582. Attorneys: measure of damages recover- able by client for negligence of attor- ney, 1917B-38. Automobiles: measure of damages for breach of automobile sales agency cop- tract, 1917E-576. Building contracts: prospective profits as damages on rescission of building con- tract for failure of owner to make payment, 1916C-59. Carriers of goods: measure of damages for carrier's delay in transporting goods resulting in depreciation in value, 1917D-164. Criminal conversation: damages recover- able in action by wife for criminal conversation, 1916C-752. Death by wrongful act: admissibility in action for death by wrongful act of evidence of property inherited by plaintiff from deceased, 1916D-340. damages recoverable for death by in- toxication, 1917B-540. death of human being as element of re- covery in civil action between third persons, 1917B-886. Excessive or inadequate damages: inade- quacy or excessiveness of verdict in civil action for rape, 1917E-135. what is excessive or inadequate verdict in action against physician for mal- practice, 1916C-1078. what is excessive or inadequate verdict in action for false imprisonment, 1916C-505. what is excessive or inadequate verdict in action for malicious prosecution, 1916C-250. what is excessive verdict for mental anguish in telegraph case, 1916C- 524. what is excessive verdict in action for libel or slander, 1916D-1175. Exemplary damages in action on contract other than contract to marry, 1917E- 412. Impotency: necessity that impotency be pleaded specially in action for per- sonal injuries. 19*16C-3S3. Insurance: measure of damages recover- able by owner of property for failure of agent to procure insurance, 1918B- 1U40. 32 DIGEST. 1916C 1918B. DAMAGES Continued. Label and slander: intoxication as justifi- cation or mitigation of slander, 1916E- 564. Liquidated damages: deposit made with bid as liquidated damages, 1916C-432. stipulation for liquidated damages as barring injunction to restrain breach of covenant not to engage in same business, 1916C-191. whether stipulated forfeiture for breach of contract a penalty or liquidated damages, 1917D-739. Market value: measure of damages for conversion of, or failure to deliver, household goods, 1917B-585. measure of damages for loss or destruc- tion of property having no market value, 1917B-579. Mines and minerals: measure of damages recoverable of tenant in common for removing minerals from soil, 1918B- 584. Profits: recovery of profits as damages for breach of contract to sell on commis- sion, 1917B-1194. Sales: damages for breach of warranty on sale of seed, 1918B-83. right of conditional vendee to recover damages for breach of warranty, 1918B-914. Ships and shipping: right to recover dam- ages for loss of use of vessel result- ing from collision without total loss, 1917B-999. Stock: measure of damages for conversion of shares of stock, 1916C-641. Use of property: right to recover damages for loss of use in case of injury to article used for pleasure, 1917A-127. Vendor and purchaser: measure of dam- ages for breach of contract to sell land due to vendor's inability to make title, 1917B-858. Wills: measure of damages for breach of contract to make will, 1918A-854. See also Eminent Domain; Landlord and Tenant; Life Estates; Monopolies; Streets and Highways; Telegraphs and Telephones. DAMS. Eight of railroad company to erect and maintain dam, 1916E-1217. DATE. See Wills. DAY OF BEST. See Labor Laws. DEAD BODIES. Power of court to order exhumation of dead body for evidentiary purposes, 1916D-331. DEADLY WEAPONS. See Weapons. DEAF AND DUMB PERSONS. Responsibility of deaf and dumb persons for crime, 1917B-240. DEALER. Meaning of "deal" or "dealer," 1917A-949. DEATH. Grant of letters testamentary or of ad- ministration as evidence of death, 1918A-1011. Time of death within rule as to presump- tion of death from absence, 1917A-82. See also Actions; Agency; Attachment; Deeds; Libel and Slander; Life Insur- ance. DEATH BY WRONGFUL ACT. Administration: right of action within ju- risdiction as sufficient property right to warrant grant of administration, 1917C-1217. Death of human being as element of re- covery in civil action between third persons, 1917B-886. Evidence: admissibility in action for death by wrongful act of evidence of domes- tic relations of deceased, 1916C-G71. admissibility in action for death by wrongful act of evidence of habits or physical condition of deceased, 1916E- 652. admissibility in action for death by wrongful act of evidence of property inherited by plaintiff from deceased, 1916D-340. admissibility in action for death by wrongful act of mortality tables to- show probable duration of life, 1918A- 1021. admissibility of coroner's verdict as evi- dence in action for death by wrong- ful act, 1917B-S97. Illegitimate child: "child" in statute relat- ing to death by wrongful act as in- cluding illegitimate child, 1918B-255. right of parent to recover for death of illegitimate child, 1916C-720. right of person other than parent to re- cover for death of illegitimate child, 1916E-454. Intoxication: damages for death by in- toxication, 1917B-530. Limitation of actions: commencement of running of statute of limitations against action for death by wrongful act, 1916C-713. pleading statute of limitations in action for death by wrongful act, 1916D- 1241. Parties to actions: right to amend action for death by wrongful act by adding new parties plaintiff. 1916C-596. Survival of actions: validity of statute providing for survival of action for INDEX TO THE NOTES. 33 DEATH BY WRONGFUL ACT Con- tinued. personal injuries after death of per- son injured, 1917E-1171. Trespassing child: liability of landowner for injury to trespassing child on ac- count of unguarded pond, pool, well, etc., 1916C-1085. DEATH PENALTY. Death penalty as cruel and unusual pun- ishment, 1918B-398. DEBT LIMIT. See Corporations; Municipal Corporations. DEBTOR AND CREDITOR. Payment of debt to alien enemy, 1917C- 199. See also Assignments; Corporations; De- scent and Distribution; Executors and Administrators; Fraudulent Sales and Conveyances; Imprisonment for Debt; Mercantile Agencies; Sales; Surety- ship; Threats; Vendor and Purchaser. DECAY. Damage by decay as included within term "damage by elements," 1917B-298. DECEASED PERSONS. See Libel and Slander. DECEDENTS' ESTATES. See Descent and Distribution; Executors and Administrators; Partnership. DECISIONS. See Attorneys; Courts. DECLARATION. See Pleading. DECLARATIONS. See Admissions and Declarations. DECORATING. Decorating as employment within pur- view of workmen's compensation act, 1917A-16. DECREASE OF ALLOWANCE. See Workmen's Compensation Acts. DEDICATION. Dedication of park or square by selling lots according to map or plat, 1917B- 197. DEDICATION Continued. Necessity for acceptance where land is dedicated to public use by municipal- ity, 1917D-452. Reservation of land on map or plat for specified purpose as dedication thereof to public, 1916D-178. Rcvocability of dedication of land to pub- lic use, 1917A-1109. Attestation: competency of attesting wit- ness to deed, 1917A-235. Attorneys: lien of attorney on deed in his possession connected with litigation, 1917D-149. Construction: "child" in deed as including illegitimate child, 1918B-259. construction of absolute deed as equi- table mortgage in favor of third per- son, 1917C-970. construction of habendum clause in deed in connection with premises, 1917D- 661. construction of instrument in form of deed to become effective upon death of grantor, 1916D-996. construction of term "more or less" in deed of realty, 1917D-155. distinction between exception and reservation in deed, 1918A-877. estate created by grant or devise of life estate with absolute power of disposi- tion, 1916D-400. nature of estate resulting from creation of cotenancy, 1917B-57. "Contents": deed as embraced within "contents" or similar expression in will, 1916C-1139. Covenants: necessity of notice to cov- enantor of good title to defend evic- tion proceeding in order to conclude him in action on covenant, 1916E-148. Delivery: admissibility of declaration of grantor' after conveyance as to deliv- ery of deed, 1916E-713. Fixtures: gas or electric appliances as fix- tures as between grantor and grantee, 1917B-187. Grantor: effect of omission of grantor's name from body of deed, 1916E-521. Priority as between purchase money mort- gage and deed, 1916C-946. . Statutes: effect of partial invalidity of statute relating to deeds, 1916D-47. Validity: presumption and burden of proof of undue influence in case of convey- ance inter vivos by parent to child, 1918B-457. validity and effect of conveyance of homestead without joinder or consent of wife, 1917A-71. validity and effect of deed or grant of present estate to grantee not in exist- ence, 1916D-864. validity of condition in deed in restraint of marriage, 1917D-282. validity of condition in deed prohibit- ing "sale of liquor on land granted, 1917C-110. 34 DIGEST. 1916C 1918B. DEDICATION Continued. Validity: validity of conveyance of inter- est of one remainderman to another, 1917A-S20. validity of conveyance of life estate, 1917A-579. validity of partial or limited restraint on alienation of fee simple estate, 1916D-1254. See also Duress; Fraudulent Sales and Conveyances; Homestead; Res Judi- cata; Vendor's Lien; Waters and Watercourses. DE FACTO OFFICERS. See Public Officers. DEFAMATION. See Libel and Slander. DEFAULT. See Judgments, DEFECTS. See Streets and Highways. DEFENSE OF PROPERTY. See Assault. DEFENSES. See Pleading. DEFICIENCY. See Mortgages. DEFINITIONS. See Words and Phrases. DEGREES. See Homicide. DE JURE OFFICERa See Public Officers. DELAY. See Carriers of Goods; Telegraphs and Telephones. DEL CREDERE AGENT. See Agency. DELIBERATIONS. See Jury. DELINQUENT TAXPAYERS. See Taxation. DELIVERY. See Bills and Notes; Deeds; Escrows; Frauds, Statute of; Telegraphs and Telephones. DEMAND. See Threats. DEMAND NOTES. See Bills and Notes. DEMURRAGE. See Carriers of Goods. DENTISTS. Effect of partial invalidity of statute re- lating to licensing of dentists, 1916D- 58. DEPENDENTS. See Workmen's Compensation Act. DEPOSIT. See Bids. DEPOSITIONS. Necessity and sufficiency of naming of witness in notice of taking deposi- tion, 1918A-950. Proof by parol of contents of lost or de- stroyed depositions, 1916D-253. Relative weight of deposition and oral testimony, 1917D-75S. Statute against admission of evidence of transaction with decedent as appli- cable to deposition taken before death, 1917B-490. Validity of deposition taken on holiday, 1916E-851. DEPOSITS. See Banks. DEPOTS. See Railroads. DEPRECIATION. See Carriers of Goods. DEPUTIES. See Prosecuting Attorneys; Public Officers. DESCENT AND DISTRIBUTION. Adoption: right of inheritance from adopted child as between natural par- ents and adoptive parents or their de- scendants, 1916C-757. succession to estate inherited from fos- ter parent by adopted child who dies without issue, 1916C-762. INDEX TO THE NOTES. 35 DESCENT AND DISTRIBUTION Con- tinued. Constitutional law: right to take property by inheritance or will as natural right protected by constitution, 1918A-939. Debts: distributive share of heir in real estate as chargeable with heir's in-, debtedness to estate either as against land itself or proceeds of sale thereof. 1916D-1294. laches or neglect of creditor of deceased as precluding enforcement of debt against heir or devisee, 1917C-95. Expectancy: validity of transfer of ex- pectancy in estate made by heir or beneficiary to stranger, 1916E-1241. Illegitimacy: "child" in statute of descent and distribution as including illegiti- mate child, 1918B-251. law governing legitimacy of person with respect to right to inherit. 1917C-538. right of illegitimate child to inherit from or through father, 1917C-826. "Inherit": meaning of "inherit," "inher- ited," etc., 1917C-386. Workmen's compensation acts: devolution of dependent's right to compensation under workmen's compensation act, 1918B-762. See also Death by Wrongful Act. DEVISEES. Liability of devisee of lessee for rent, 1916E-S20. See also Descent and Distribution; Wills. DEVOLUTION. See Descent and Distribution. DIAGNOSIS. See Physicians and Surgeons. DIARIES. Private diary as evidence, 1916C-717. DICTATION. See Libel and Slander. DICTAGRAPH. See Evidence. DILIGENCE. See Mines and Minerals. DIEECTION OF VERDICT. See Verdict. DESCRIPTION. See Recording Acts; Searches and Seizures. DIRECTORS. See Corporations. DESEBTION. Bight of wife to leave marital home be- cause of conduct of husband's rela- tives. 1916E-209. DESIRE. Meaning of "desire" as used in will, 1917B-503. DE SON TORT. See Executors and Administrators. DESTINATION. See Carriers of Passengers. DETECTAPHONE. See Evidence. DETECTIVES. Private detectives, 1917A-584. DETINUE. See Replevin. DEVIATION FROM EMPLOYMENT. See Master and Servant, DISABILITY. See Workmen's Compensation Acts. DISAFFIRMANCE. See Infants. DISBARMENT. See Attorneys. DISCHARGE. See Bankruptcy/ Suretyship. DISCHARGING FIREARMS. See Assault. DISCONTINUANCE. See Eminent Domain. DISCOUNT. See Bills and Notes. DISCOVERY. Effect on right to production of docu- ment of admission by opposing party as to its merits, 1916D-698. Power of court to compel submission to physical examination, 1917D-351. Transcript of court proceedings as privi- leged from inspection, 1916C-876. 36 DIGEST. 1916C 1918B. DISEASE. DITCHES. Death resulting from disease caused by wound as affecting liability for homi- cide, 1916C-693. Disease as an accident, 1918B-297. Nonoccupational disease as "injury** within meaning of workmen's com- pensation act, 1918B-362. Occupational disease as "injury" within meaning of workmen's compensation act, 1918B-366. See also Accident Insurance; Agriculture; Animals; Breach of Promise of Mar- riage; Physicians and Surgeons. DISHONESTY. What constitutes dishonesty of employee within policy of fidelity insurance, 1917C-425. DISHONOR. See Bills and Notes. DISMISSAL AND NONSUIT. Eight of client to dismiss action without attorney's consent, 1917A-570. Right to voluntary dismissal of bill in equity, 1917A-1185. Voluntary dismissal of bill for divorce, 1917A-1197. See also Appeal and Error. DISORDERLY CONDUCT. Language constituting disorderly conduct, 1917C-889. DISORDERLY HOUSES. What constitutes cruel and unusual pun- ishment for keeping disorderly house, 1918B-399. See also Prostitution. DISPUTED WRITING. See Handwriting. DISQUALIFICATION. See Judges. DISSOLUTION. See Attachment; Corporations. DISTINGUISHING MARKS. See Elections. DISTRIBUTION. See Descent and Distribution. DISTRICTS. See Schools. Interest in land acquired by condemna- tion for ditch as easement or fee, 1918A-809. DIVERSION. See Suretyship. DIVISION FENCES. See Fences. DIVORCE. Alimony: allowance of alimony in gross sum, 1917A-248. life of decree for permanent alimony, 1917A-582. validity of conveyance by husband with intent to deprive wife of alimony, 1918B-936. Attorney's fees: liability of husband for counsel fees incurred by wife in di- vorce action, 1917A-689. Condonation as defense in action for di- vorce, 1918A-S51. Cruelty: habits or course of conduct of spouse as cruelty warranting divorce, 1918B-480. Desertion: right of wife to leave marital home because of conduct of husband's relatives, 1916E-209. Dismissal: voluntary dismissal of bill for divorce, 1917A-1197. Homestead: divorce as affecting right of husband to convey homestead, 1917A- 77. Insurance: effect of divorce upon rights of beneficiary in insurance, 1917C-269. Recrimination: right of recrimination in divorce action as affected by compar- ative gravity of offenses, 1917A-177. Remarriage: estoppel by remarriage to at- tack decree of divorce, 1917E-125. Restoration of property: right of divorced person to bring independent action against former spouse for restoration of property, 1917A-1243. Separation agreement as bar to action for divorce, 1916C-347. Statutes: effect of partial invalidity of statute relating to divorce proceed- ings, 1916D-80. validity of statute requiring certain period of residence within state as prerequisite to divorce, 1916E-1110. Trial: change of venue in divorce action, 1917A-940. continuances in divorce cases, 1913B- 1087. Wills: validity of legacy or devise condi- tioned on recipient obtaining divorce or separating from spouse, 1917B-167. DOCKS. See Wharves. INDEX TO THE NOTES. 37 DOCUMENTARY EVIDENCE. See Evidence. DOCUMENTS. See Discovery. DOMESTIC RELATIONS. See Death by Wrongful Act. DOMESTIC SERVANTS. See Master and Servant. DOMINANT ESTATES. See Easements. DOORS. See Burglary; Owners of Premises; Streets and Highways. DOWER. Election by widow to take provision in will in lieu of dower as affecting her right to intestate property, 191 7B- 986. Priority as between purchase money mort- gage and dower rights, 1916C-946. Eight of married woman to release dower by express contract with husband, 1917A-48. See also Antenuptial Agreements. DRAINAGE. Effect of partial invalidity of statute re- lating to drainage, 1916D-48. Effect of partial invalidity of statute re- lating to drains and sewers in munici- palities, 1916D-76. Interest in land acquired by condemna- tion for sewer purposes as easement or fee, 1918A-809. Meaning of "plant" as applied to sewer system, 1917A-321. Power of court to compel municipality to remove, construct or enlarge sewer, 1917E-308. DRINKING. Effect on relation of employee as such of stopping work temporarily to drink, 1918A-1195. DRIVERS. See Automobiles; Vehicles. DROVERS. See Carriers of Passengers. DRUGS. Effect of partial invalidity of statute re- lating to licensing of pharmacists, 1916D-57. See also Food and Drugs; Physicians and Surgeons; Witnesses. DRUNKENNESS. Benefit insurance: construction of restric- tion in contract of benefit insurance as to use of intoxicants by insured. 1918A-623. Confessions: intoxication as affecting ad- missibility of confession, 19160-1168. Death: damages for death by intoxica- tion, 1917B-530. Inebriates: construction of statute pro- viding for compulsory commitment of inebriate to institution for treat- ment, 1917E-359. Proof of intoxication: admissibility of nonexpert testimony to prove intoxi- cation, 1917C-628. Slander: intoxication as justification or mitigation of slander, 1916E-564. Witnesses: proof of liquor habit to dis- credit witness, 1918A-639. Workmen's compensation acts: intoxica- tion of employee as precluding recov- ery under workmen's compensation act, 1918B-686. DUES. See Beneficial Associations. DUMB PERSONS. See Deaf and Dumb Persons. DURATION OF LIFE. See Death by Wrongful Act. DURESS. Duress as affecting waiver of preliminary examination by accused person, 1917E-183. Payment to prevent apprehended injury to business as payment under duress, 1918B-516. Threat of abandonment by spouse as duress, 1917A-174. Validity and effect of contract induced by threats of criminal prosecution against friend, or relative other than parent, child or spouse, 1917C-1033. Validity and effect of contract of parent or child induced by threats of criminal prosecution against other, 1917C-1026. DYING DECLARATIONS. Admissibility of dying declaration as af- fected by malice or desire for revenge on part of declarant, 1917A-1247. Dying declaration as admissible only when death of declarant is under in- quiry, 1917A-612. DYNAMITE. Storage of dynamite as nuisance, 1916G- 20. 38 DIGEST. 1916C 1918B. EARNING CAPACITY. BISECTIONS Continued. See Workmen's TomnMisation Acts Bribery: promise to do certain things after See Workmen s Compensation Acts. election as bribery of electora, 1918A- EAKNINGS. See Average Weekly Earnings. EARTH CLOSETS. See Health. EASEMENTS. Forfeiture of easement for misuse, 1917A- 1018. Forfeiture of easement of right of way by nonuse, 1917D-595. Nature and effect of grant of right to take ice from another's premises, 1917D- 93. Restriction of easement to use connected with dominant estate, 1917A-1250. Sale of land for taxes as extinguishing private easement, 1916C-638. See also Eminent Domain; Prescription. EATING. Effect on relation of employee as such of stopping work temporarily to eat, 1918A-1194. EDITION. See Newspapers. EDUCATION. See Schools. EGGS. See Food and Drugs. EJECTMENT. Inconsistent defenses in action of eject- ment, 1917C-731. Statutory right to new trial in ejectment, 1916E-556. "EJUSDEM GENERIS." Meaning of term "ejusdem generis" as used in workmen's compensation act, 1917D-7. ELECTION. See Conditional Sales; Employers' Liabil- ity Acts; Equitable Election; Work- men's Compensation Acts. ELECTIONS. Ballots: validity of ballot with respect to kind of mark for candidate, 1918A- 1131. * validity of ballot with respect to place of mark for candidate, 1917E-657. Contracts: validity of contract designed to influence public election, 1917C- 350. Preferential voting: validity and construc- tion of statute providing for prefer- ential system of voting, 1917C-482. Registration: change by voter of enrol- ment or registration, 1917A-1278. effect of failure to comply with regis- tration laws on validity of votes cast at election ; 1916E-408. Result of election: rejection of entire vote of election district for irregularity affecting indeterminable number of votes, 1918A-41. Eight to vote: effect on election of wrong- fully depriving electors of right to vote, 1917E-475. residence at school or public institution as affecting right to vote, 1917C-403. right to vote of soldier or sailor in ac- tual service, 1917B-485. Statutes: effect of partial invalidity of statute relating to elections, 1916D- 50. Voting rooms or booths: effect on election of failure to comply with statute as to arrangement of voting rooms or booths, 1916E-917. See also Libel and Slander. ELECTRICITY. Electricians: state or municipal regula- tion of electricians, 1916E-694. Evidence: weight of testimony to strange phenomena of electricity, 1917B-477. Fixtures: electric light plant or acces- sories as fixtures, 1917B-183. "Plant": meaning of "plant" as applied to electric lighting system, 1917A-321. Poles and wires: acquirement by prescrip- tion of right to maintain telegraph, telephone or electric light pole, 1916E- 981. duty and liability of one maintaining electric wires in reference to children, 1917A-895. interference with electric wires in mov- ing building, 1917C-79. liability of electric light company for injuries resulting from condition of inside wiring or apparatus, 1917A- 1175. power of public service commission to prevent maintenance of electric wires in close proximity, 1918B-847. revocation or expiration of right of elec- tric company to maintain poles and wires in street, 1917E-525. ELEVATED RAILROADS. See Carriers of Passengers. INDEX TO THE NOTES. 39 ELEVATORS. Operation of elevator as employment with- in purview of workmen's compensa- tion act, 1917D-16. ELIGIBILITY. See Corporations. EMANCIPATION. See Infants. EMBEZZLEMENT. Kestoration of property or settlement or offer to settle with owner as defenses to prosecution for embezzlement, 1916C-66. What constitutes embezzlement by em- ployee within policy of fidelity in- surance, 1917C-427. EMINENT DOMAIN. Abandonment of occupation: necessity that landowner return condemnation money on* abandonment of occupation by condemnor, 1917C-1136. Appeal: liability of landowner for costs on appeal in eminent domain proceed- ing, 1917E-262. Collateral attack on eminent domain pro- ceeding, 1916C-40. Conditional condemnation of property, 1917C-631. Discontinuance of proceeding: right of landowner to damages upon volun- tary discontinuance of eminent do- main proceedings. 1916D-723. Easement or fee: interest in land ac- quired by condemnation as easement or fee, 1918A-806. Elements of damages: loss of profits or injury to business as element of dam- ages in eminent domain proceedings, 1918B-869. recovery of damages in condemnation proceedings for injury to personal property or expense of removing it from premises, 1918B-886. right to compensation in condemnation proceedings for improvements placed on land bv condemnor with authority or color thereof, 1917C-141. value of fixtures as element of dam- ages sustained by appropriation of property in eminent domain proceed- ing, 1916C-7SO. Evidence: admissibility in eminent do- main proceedings of evidence of price paid by another than condemnor for similar" property. 1916E-59S. Jurisdiction: validity of statute confer- ring on public service commission or other body jurisdiction of eminent domain proceedings. 1916C 420. Open and close: right to open and close in eminent domain proceeding where EMINENT DOMAIN Continued. only issue involved ia amount of damages, 1916D-960. Bailroads: right of railroad company to condemn water over which right of way is constructed, 1916E-1215. Statutes: effect of partial invalidity of statute relating to eminent domain, 1916D-53. Streets: persons entitled to compensation for vacation of street, 1916C-238. right of abutting owner to damages for change of street to established grade where he impVoves property after grade is established, 1916D-1143. Telegraphs and telephones: power of tele- graph or telephone company to con- demn railroad right of way under state statute, 1917B-689. EMPLOYEES. See Employers' Liability Acts; Work- men's Compensation Acts. EMPLOYERS' LIABILITY ACTS. Course of employment: necessity that ser- vant be acting in course of employ- ment when injured in order to recover under employers' liability act. 1918A- 1070. Federal act: employees entitled to pro- tection under federal employers' lia- bility act, 1916E-172; 1918B-55. existence of relation of employer and employee under federal employers' liability act, 1918B-46. necessity of election between federal em- ployers' liability act and state statute or common law, 1917A-1270. right of action under federal employers' liability act as sufficient property right to warrant grant of administration, 1917C-1221. validity of verdict by less than whole number of jurors in action under fed- eral employers' liability act, 1916E- 504. Partial invalidity: effect of partial invalid- ity of employers' liability act, 1916D- G9. "Plant": meaning of "plant" as used in em- ployers' liability act, 1917A-324. State act: what statutes are impliedly re- pealed by state employers' liability act, 1916E-773. EMPLOYMENT. Distinction betweon "office" and "employ- ment," 1917D-319. See also Employers' Liability Acts; Work- men's Compensation Acts. ENEMIES. See Ships and Shipping; Treason; War. 40 ENGINEERS. Engineering as employment within purview of workmen's compensation act, 1917D- 16. DIGEST. 1916C 1918B. ESTATES. Nature of estate resulting from creation of cotenancy, 1917B-5T. See also Deeds; Merger. ENGINES. See Fires; Streets and Highways. ENLISTMENT. See Militia. ENROLLMENT. See Elections. ENTERTAINMENTS. See Theaters and Amusements. ENTRIES. See Surveyors. ENTRY OF JUDGMENT. See Judgments. EN VENTRE SA MERE. See Wills. EQUIPMENT. See Automobiles. EQUITABLE ELECTION. Election by widow to take under will as affecting her right to intestate prop- erty, 1918B-986. Sufficiency of acts to constitute election by husband to take under wife's will, 1916C-1204. EQUITABLE INTERESTS. See Attachment. EQUITABLE MORTGAGES. Construction of absolute deed as equitable mortgage in favor of third person, 1917C-970. EQUITY. Recovery in equity of penalty for viola- tion of intoxicating liquor statute, 1916E-873. See also Courts; Dismissal and Nonsuit; Fraudulent Sales and Conveyances; Injunctions. ESCROWS. Effect on rights of parties of unauthorized delivery by escrow holder, 1917E 427. ESPIONAGE. See War. ESTIMATE. Comparative weight of estimate and actual measurement, 1916C-573. ESTIMATED REVENUE. Legal meaning of "estimated revenue," 1918B-206. ESTOPPEL. Contracts: principle of estoppel as appli- cable to rights of parties under void Sunday contract, 1916E-467. Corporations: estoppel of subscriber to stock to object to alteration in charter or change in corporate design, 1918A- 79. Divorce: estoppel by remarriage to attack decree of divorce, 1917E-12o. Guaranty: estoppel of bank to deny lia- bility on guaranty, 191GD-560. Homestead: estoppel of husband in case of conveyance of homestead without con- sent of wife, 1917A-78. Mechanics' liens: representations of sub- contractor inducing payment to con- tractor as estopping former from claiming mechanic's lien, 1916D-1068. Names: delivering papers or documents to person of same name as working es- toppel against owner, 1917A-562. Nuisances: acquiescence in or consent to erection of structure as precluding objection thereto as nuisance, 19160 1235. Public officers: estoppel of public officer to deny validity of statute by accepting compensation thereunder, 1917C-2S4. Taxation: estoppel of taxpayer returning property for taxation to dispute assess- ment based on return, 191CC-230. estoppel of taxpayer to question validity of tax, 1916C-225. "Wills, estoppel to seek probate of will, 1918A-1200. EVICTION. See Deeds; Landlord and Tenant. EVIDENCE. Admissions and declarations: admissibility in proceeding under workmen's com- pensation act of statement by injured employee respecting cause of injury, 1916C-775. admissibility of declaration of grantor after conveyance as to delivery of deed, 1916E-713. admissibility of declaration of legatee or devisee as to mental capacity of testator, 1918A-1066. INDEX TO THE NOTES. EVIDENCE Continued. Admissions and declarations: admissibility of declarations of testator not made ' at time of execution of will, on ques- tion of undue influence, 1917D-717. admissibility of prior exculpatory state- ment by accused to contradict evidence given by him or on his behalf at trial, 1917D-1101. admission from inconsistent defenses in pleading, 1917C-740. declarations of infant at time of assault or homicide, as part of res gestae, 1916C-1187. effect on right to production of document of admission by opposing party as to its contents, 1916D-698. Age: competency of witness to testify as to his own age, 1918B-427. competency of witness to testify to age of another person, 1918A-262. Alienation of affections: admissibility in action for alienation of affections of evidence of acts committed after sepa- ration of spouses, 1917D-484. evidence in action against parent for alienation of affections, 1917E-1020. evidence in action against relative for alienation of affections, 1917E-1029. evidence in action by wife for alienation of affections, 1916C-751. Beneficial associations: admissibility of benefit certificate in evidence without other parts of contract, 1917C-145. Billheads: evidentiary effect of use of printed billhead, 1917B-271. Bills and notes: necessity of proving, in action on promissory note, signatures of maker and indorser, 1917A-770. Book entries: necessity that book of ac- counts offered in evidence be book of original entry, 19170-961. Breach of promise of marriage: under- standing of family or friends of party as evidence of agreement to marry, 1916C-564. Burden of proof: burden of proof as to right to exclude alien under immigra- tion act, 1917C-247. burden of proof as to validity of con- tract for compensation of attorney made after establishment of relation, 1917A-536. burden of proof as to validity of trans- fer of expectancy in estate, 1916E- 1250. burden of proof as to verity of certificate of acknowledgment, 1917A-369. burden of proof in action against gas companv for injuries caused by escape of gas, 1916E-280. burden of proof in quo warranto pro- ceeding or action in nature thereof, 1917B-467. burden of proof of giving notice of in- jury under workmen's compensation act, 1917D-877. burden of proof of nonexistence of plain- tiff in action, 1917D-1196. EVIDENCE Continued. Burden of proof: burden of proof of un- due influence in case of conveyance inter vivos by parent to child, 1918B- 457. burden of proof that accident arose out of employment within meaning of workmen's compensation act, 191SB- 770. burden of proving irregularity in elec- tion affecting indeterminable number of votes, 1918A-58. burden of proving misstatement by physician as ground for avoiding re- lease of claim for personal injuries, 1918A-358'. burden of showing ratification or waiver of alteration of instrument, 1917D- 345. Character: admissibility of evidence of character or reputation of defendant in action to recover penalty, 1916D- 1151. admissibility of evidence of plaintiff's character in action for malicious prose- cution, 1916D-1167. Confessions: admissibility of confessions obtained by fraud or trick, 1916D-966. confession of defendant as sufficient cor- roboration of accomplice, 1916C-570. intoxication as affecting admissibility of confession, 1916C-1168. Coroner's verdict: admissibility of cor- oner's verdict as evidence in subse- quent proceedings, 1917B-892. Corporations: admissibility in evidence of books or records of corporation in ac- tion between members or between cor- poration and member, 1917D-558. Criminal conversation: evidence in action by wife for criminal conversation, 1916C-751. proof of marriage in action for crim- inal conversation, 1917A-755. Dead bodies: power of court to order ex- humation of dead body for evidentiary purposes, 1916D-331. Death: grant of letters testamentary or of administration as evidence of death, 1918A-1011. Death by wrongful act: admissibility in ac- tion for death by wrongful act of evi- dence of domestic relations of de- ceased, 1916C-671. admissibility in action for death by wrongful act of evidence of habits or physical condition of deceased, 1916E- 652. admissibility in action for death by wrongful act of evidence of property inherited by plaintiff from deceased, 1916D-340. evidence in action for death by intoxi- cation, 1917B-542. Depositions: necessity and sufficiency of naming of witness in notice taking deposition, 1918A-950. statute against admission of evidence of transaction with decedent as appli- 42 DIGEST. 1916C 1918B. EVIDENCE Continued. cable to deposition taken before death, 1917B-490. Depositions: validity of deposition taken on holiday, 1916E-851. Detectaphones: admissibility of evidence received through detectaphone or dic- tagraph, 1916C-181. Detectives: competency of evidence of pri- vate detective, 1917A-589. Diaries: private diary as evidence, 1916C- 717. Divorce: evidence of condonation in action for divorce, 1918A-661. Dying declarations: admissibility of dying declaration as affected by malice or desire for revenge on part of declarant, 1P17A-1247. dying declaration as admissible only when death of declarant is under in- quiry, 1917A-612. Eminent domain: admissibility in eminent domain proceeding of evidence of price paid by another than condemnor for similar property, 1916C-598. Expert and opinion evidence: admissi- bility of direct opinion of witness as to ownership of personalty, 1916D-289. admissibility of nonexpert testimony to prove intoxication, 1917C-628. opinion evidence as to speed of auto- mobile, 1917D-613. use of scientific books in connection with examination of expert witness, 1916E- 356. Finger prints as evidence, 1917A-417. Footprints: admissibility in criminal case of evidence obtained by requiring de- fendant to furnish shoe to compare with footprint, 1917D-237. Foreign laws: admissibility of printed copy of statutes to prove law of another jurisdiction, 1916D-853. Grand jury: evidence on resubmission of cause to grand jury, 1916D-276. Handwriting: testing handwriting witness by use of other writing, 1917B-1060. Hospital charts: hospital chart as evidence, 1916C-78. Insanity: admissibility, on. issue of sanity, of evidence of insanity of ancestors or kindred, 1918B-124. suicide as evidence of insanitv, 1916E 488. Intoxicating liquors: evidence in action for penalty for violation of intoxicating liquor statute. 1916E-S74. Judgments: admissibility in subsequent civil action of judgment of conviction based on plea of guilty, 1917E-1109. Judicial notice: judicial notice of contents of Irsr'.slative journals on issue as to enactment of statute, 1916E-12S4. judicial notice of mortality tables, 191SB-415. judicial notice of proceedings for adop- tion of amendment to constitution, 1917D-1031. EVIDENCE Continued. Juvenile courts: evidence in juvenile court proceeding, 1916E-1016. Knowledge: competency of witness to tes- tify to knowledge "of another, 1918A- 947. Letterheads: evidentiary effect of use of printed letterhead, 1917B-271. Letters: admissibility in evidence of self- serving letter sent in general course of business, 1917D-790. Libel and slander: admissibility of testi- mony of readers or hearers of libel or slander as to their understanding of identity of person defamed, 1917C-36. Malicious prosecution: acquittal in crim- inal prosecution as evidence, in action for malicious prosecution, of want of probable cause, 1916E-376. Maps: admissibility in evidence of ancient map, 1916C-176. Mercantile agencies, statement to or re- port by mercantile agency as evidence, 1916D-760. Microscope: competency of witness to tes- tify to information acquired by aid of microscope, 1916D-930. Mortality tables: admissibility, in action for death by wrongful act, of mortal- ity tables to show probable duration of life, 1918A-1021. judicial notice of mortality tables, 1918B-415. New trial, admission of incompetent evi- dence as ground for granting of new trial by trial court, 1917D-545. Ownership: license number on motor vehi- cle as evidence of ownership thereof, 1916D-1163. Parol evidence: admissibility of extrinsic evidence with respect to approval or disapproval of bill by executive, 19170-836. admissibility of parol evidence to show illegality of contract, 1917D-426. admissibility of parol evidence to show place of payment under contract silent in that respect, 1916E-3G6. parol evidence of conditional delivery of bill or note, 1917D-in49. parol evidence to show falsity of certi- ficate of acknowledgment. 1917A-373. proof by parol of contents of lost memo- randum required by statute of frauds, 1916E-173. proof by parol of contents of lost or de- stroyed deposition. 1916D-253. proof bv parol of contents of lost or de- stroyed judicial record, 1916D-248. Presumptions: conflict between presump- tion of identity of person from iden- tity of name and another presumption, 1917E-121. presumption as to authenticity of lettei received in reply to letter, 1917D-925. presumption as to knowledge of foreign law, 1916D-1072. presumption as to liability of wife for household expenses, 1917C-561. INDEX TO THE NOTES. 43 EVIDENCE Continued. Presumptions: presumption from use or omission of suffix to name, 1917A 1215. presumption in favor of certificate of acknowledgment, 1917A-369. presumption of invalidity of contract for compensation of attorney made after establishment of relation, 1917A-535. presumption of negligence from collision resulting in injury to passenger, 19170-634. presumption of receipt of letter, 1917E- 1058. presumption of receipt of telegram, 1917E-1081. Presumption of temperance or sobriety, 1918A-620. presumption of undue influence arising from relation of man and woman en- gaged to be married, 1916C-1031. presumption of undue influence in case of conveyance inter v'ivos by parent to child, 1918B-457. presumption that contract executed by president of corporation is authorized by corporation, 1917A-360. time of death within rule as to presump- tion of death from absence, 1917 A-82. Prima facie evidence: validity of ordi- nance providing that certain state of facts shall constitute prima facie evi- dence of violation thereof, 1916C- 1062. Robbery: admissibility of evidence in prosecution for assault with, intent to commit robbery, 1918A-416. Sales: evidence in action for breach of warranty in sale of seed, 191SB-87. Seduction: admissibility of evidence of de- fendant's reputation in prosecution for seduction, 1916E-381. Surveys: admissibility in evidence of an- cient survey, 1916C-176. admissibility in evidence of field book entries of deceased survevor, 1917E- 675. Telegrams: admissibility in evidence of self-serving telegram sent in general course of business, 1917D-790. Telephones: conversations by telephone as evidence. 1916E-977. Trial without jury: effecf of admission of incompetent evidence in trial before court without jury, 1917C-660. Usages and customs: admissibility of evi- dence of peculiar signification of word in locality where instrument was exe- cuted, 1916C-655. Value: price paid for personalty or ser- vices as evidence of value thereof, 1916D-797. Weight and sufficiency: comparative weight of estimate and actual meas- urement, 1916E-573. conclusiveness of testimony of subscrib- ing witnesses with respect to execu- tion of will, 1916D-1104. evidence requisite to impeach acknowl- edgment, 1917A-368. EVIDENCE Continued. Weight and sufficiency: improbable testi- mony by bankrupt, 1917B-1096. relative weight of deposition and oral testimony, 1917D-758. sufficiency of evidence in action against gas company for injury caused by es- cape of gas, 1916E-280. sufficiency of evidence in prosecution for assault with intent to commit robbery, 1918A-416. sufficiency of evidence to establish con- structive or resulting trust, 1916D- 1194. sufficiency of evidence to show emanci- pation of infant, 1917D-585. sufficiency of evidence to show mailing of letter, 1917E-1076. sufficiency of proof to establish contents of lost instrument, 1917A-1104. unnatural or unjust disposition of es- tate as evidence of testamentary inca- pacity, 1917E-130. weight of evidence of private detective, 1917A-589. what constitutes scintilla of evidence, 1918B-943. withdrawal of unreasonable testimony from consideration of jury, 1917B- 473. Wills: foreign probate of will as evidence in domestic courts, 1918A-616. See also Misconduct of Counsel; Witnesses. EXAMINATION. See Criminal Law. EXAMINATION OF TITLE. See Judicial Sales. EXAMINEES. See Banks. EXCAVATIONS. See Adjoining Landowners; Mines and Minerals. EXCEPTION. See Appeal and Error. EXCEPTIONS. See Deeds; Statutes. EXCESSIVE INSTRUCTIONS. See Instructions. EXCESSIVE SENTENCE. See Sentence and Punishment. EXCESSIVE VERDICT. See Verdict. 44 DIGEST. 1916C 1918B. EXCHANGES. See Stock Exchanges. EXCLUSION FBOM COURTROOM. See Trial. EXCULPATORY STATEMENTS. See Admissions and Declarations. EXECUTION. See Life Insurance. Assignment: effect on judgment lien of assignment of judgment or execution issued to or for benefit of judgment debtor, 1917C-557. Attorneys: lien of attorney on execution in his possession connected with liti- gation, 1917D-149. Computation of time: exclusion or inclu- sion of Sunday or holiday in compu- tation of time for issuance of execu- tion, 1917E-941. Junior execution: rights of parties on sale under junior execution, 1917B-710. Lost writ: proof by parol of contents of lost or destroyed writ of execution, 1916D-252. Several judgments: issuance of execution as giving priority to one of several equal judgments, 1917D-1S7. Statutes: effect of partial invalidity of statute relating to executions, 1916D- 80. Stock: rights of unregistered transferee as against execution levied on stock, 1917A-428. See also Exemptions; Judicial Sales. EXECUTIVE ACTION. See Statutes. EXECUTIVE OFFICERS. See Malicious Prosecution. EXECUTORS AND ADMINISTRATORS. Actions: necessity that executor or admin- istrator in action brought by him allege that suit is brought in repre- sentative capacity, 1916E-114. personal representative of deceased owner of premises as necessary party defendant to action to foreclose me- chanic's lien, 1918B-16. Advancements: right of executor or ad- ministrator to recover from estate ad- vancement made to member of dece- dent's family, 1917A-134. Appointment: right of action within juris- diction as sufficient property right to warrant grant of administration, 1917C-1217. EXECUTORS AND ADMINISTRATORS Continued. Attorneys; power of executor or adminis- trator to employ attorney under ex- press contract as to amount of com- pensation, 1917B-216. "Child" in statute relating to administra- tion of decedents' estates as including illegitimate child, 1918B-254. Claims; presentations of claim as condi- tion precedent to enforcement of mort- gage against decedent's estate, 1917B- 156. Consul: rights and duties of consul with respect to decedent's estate, 1916D-237. De son tort: what acts of intermeddling charge person as executor de son tort, 1917E-3. Equitable election: act of husband as executor as constituting election to take under wife's will, 1916C-1207. Fees: validity of statute fixing adminis< tration fees, 1916C-213. Indebtedness of heir: distributive share of heir in real estate as chargeable with heir's indebtedness to estate either as against land itself or proceeds of sale thereof, 1916D-1294. Indebtedness of representative: liability of sureties of executor or administra- tor for debt of their principal to de- cedent, 1916D-636. Letters: grant of letters testamentary or of administration as evidence of death, 1918A-1011. Public administrators, 1918B-1059. Bent: liability of executor or administra- tor of lessee for rent, 1916E-820. Renunciation: right of executor or trustee to retract renunciation of trust, 1916D-1301. Revocation of appointment: validity of acts of administrator whose appoint- ment is revoked by subsequent dis- covery of will, 1917B-1128. Sale of realty: implied power of executor to sell real estate of testator, 1916D- 410. limit of time within which leave will be granted to sell decedent's realty, 1917C-600. Tombstones: liability of decedent's estate for 'cost of monument or tombstone, 1917B-256. Widow's allowance: effect of voluntary separation on right to widow's allow- ance, 1916C-866. See also Descent and Distribution; Hus- band and Wife; Wills; Witnesses. EXEMPLARY DAMAGES. See Damages. EXEMPTIONS. "Child" in statute relating to exemptions as including illegitimate child, 1918B- 256. INDEX TO THE NOTES. EXEMPTIONS Continued. Vehicle as "tool," "implement" or "instru- ment" within exemption statute, 1917D-96. See also Process; Taxation. EXHUMATION. See Dead Bodies. EXPATRIATED PEESONS. See War. EXPECTANCY. See Descent and Distribution, EXPENSES. See Attorneys. EXPERT ACCOUNTANTS. Personal liability of attorney for fees of expert accountant, 1917B-525. EXPERT EVIDENCE. See Evidence; Witnesses. EXPLOSIONS AND EXPLOSIVES. Inducement to violate statute regulating manufacture and use of explosives with view to prosecution therefor as defense to such prosecution, 1916C- 733. Injury to property by concussion or vibra- tion resulting from blasting, 1916C 1176. Liability as for negligence of one throw- ing awav small quantity of explosive, 1917B-345. Seller of powder as "dealer," 1917A-961. Storage of gasoline or other explosive as nuisance, 1916C-820. EXPRESS COMPANIES. Express agent as employee of railroad un- der federal employers' liability act, 1918B-52. EXPRESS CONTRACTS. See Executors and Administrators. "EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS." Meaning of phrase "expressio unius est exclusio alterius" as used in work- men's compensation act, 1917D-8. EXPRESS WARRANTY. See Warranty. EXPULSION FROM SCHOOL. See Schools. EXTENSION OF TIME. See Bills and Notes. EXTORTION. Criminal liability for threat of prosecu- tion in connection with demand for payment of debt, 1917E-246. Threat to accuse of crime as criminal offense, 1917B-134. EXTRADITION. Person in custody on charge of other crime as subject to extradition, 1917B-337. EXTRAHAZARDOUS. Meaning of "extrahazardous" as used in workmen's compensation act, 191 7D- 10. EXTRAORDINARY FLOODS. See Waters and Watercourses. EXTRINSIC EVIDENCE. See Statutes. EYE DISEASES. , See Physicians and Surgeons. EYESIGHT. What constitutes "loss" 1918A-533. of eyesight, FACILITY OF PAYMENT. Construction of "facility of payment" clause in industrial insurance policy, 1918B-1193. FACTORIES. Employment in factory as within pur- view of workmen's compensation act, 1917D-18. FACTORS. Validity of state or municipal regulation of commission merchants, 1917B-631. FAILURE OF CONSIDERATION. See Antenuptial Agreements. FALLING OVERBOARD. See Carriers of Passengers. FALSE IMPRISONMENT. Inconsistent defenses in action for false imprisonment, 1917C-737. Liability of person reporting commission of offense to police officer for arrest by officer without warrant, 1917E 404. 46 DIGEST. 1916C 1918B. FALSE IMPRISONMENT Continued. What is excessive or inadequate verdict in action for false imprisonment. 1916C- 505. See also Arrest. FALSE PRETENSES. Attempt: what constitutes attempt to ob- tain money by false pretenses, 191 7B- 1230. Bill or note as "property," etc., within statute against false pretenses, 1917D- 627. Checks: giving worthless check as false pretense, 1916E-736. Corporations: criminal liability of corpo- ration for obtaining money by false pretenses, 1916C-465. Inducement to commit crime of obtaining goods by false pretenses with view to prosecution therefor as defense to such prosecution, 1916C-731. Jurisdiction of offense of obtaining prop- erty by false pretenses, 1917E-311. Loan of money: obtaining loan of money as constituting crime of obtaining money by false pretenses, 1916C-1158. FAMILY. Communication to member of family as privileged within law of libel and slander, 1917E-898. Member of family as "dependent" within workmen's compensation act, 1918B- 751. Persons included within term "family" when used to designate beneficiaries in insurance policy or benefit certifi- cate, 1917C-694. FAMILY EXPENSES. Meaning of term "family expenses," 1917C-575. FAKES. See Tickets and Fares. FARMERS. Farmer as "dealer," 1917A-961. FARM LOANS. See Agriculture. FATHER. "Father" as including stepfather, 1917B- 1118. FEDERAL COURTS. See Removal of Causes. FEDEBAL EMPLOYERS' LIABILITY ACT. See Employers' Liability Acts. FEDERAL GOVERNMENT. Public property of national government aa subject to special assessment, 1917D- 844. See also Militia. FEDERAL RESERVE ACT. See Banks. FEE IN LAND. See Eminent Domain. FEES. See Attorneys; Jury; Taxation. And see cross-references under the title Com- pensation. FELONIES. See Actions and Proceedings. FENCES. Prescriptive obligation to maintain divi- sion fence, 1917B-1253. FERTILIZER. Place for storing or mixing fertilizer as nuisance, 1917D-1152. FICTITIOUS PAYEES. See Bills and Notes. FIDELITY INSURANCE. Act or default of employee covered by fidelity bond or insurance, 1917C-420. Eecovery of premium paid for fidelity in- surance, 1916C-1222. FIDUCIARIES. Misconduct of attorney acting in fiduciary capacity as ground for disba'rment. 1917B-232. Information acquired in fiduciary relation as privileged from disclosure, 19161"*- 701. Statement by fiduciary with respect to sub- ject-matter of trust as privileged with- in law of libel and slander. 1917B- 227. Purchase of stock by director as affected' by fiduciary- relation to stockholder, 191SB-241. FIELD NOTES. See Surveyors. FIGHTING. See Accident Insurance. FILLING BLANKS. See Alteration of Instruments. INDEX TO THE NOTES. FINAL "S. See Names. FINDER. See Lost Property. FINES AND PENALTIES. Abatement of action: dissolution of corpo- ration as abating action against it to recover penalty, 1917A-1180. Assignability of right of action for pen- alty, 1916D-893. Breach of contract: whethei stipulated forfeiture for breach of contract a penalty or liquidated damages, 1917D- 739. Computation of time: exclusion or inclu- sion of Sunday in computation of statutory penalty, 1917E-945. Evidence: admissibility of evidence of character or reputation of defendant in action to recover penalty, 1916D 1151. Intoxicating liquors: action for penalty for violation of intoxicating liquor stat- ute. 1916E-S68. disposition of penalty recovered for vio- lation of intoxicating liquor statute, 1916E-874. recovery of several penalties in single action for violation of intoxicating liquor statute, 1916E-873. National banks: jurisdiction of action against national bank to recover pen- altv for taking usurious interest, 1916D-1246. Prostitution: validity and construction of statute imposing penalty on owner of premises for use thereof for purpose of prostitution. 1917A-459. Statutes: effect of invalidity of provision of statute prescribing penalty, 1916D- 31. See also Appeal and Error; Carriers of Goods; Carriers of Live Stock. FINGER. What constitutes "loss" of finger within workmen's compensation act, 1918A- 538. FINGER PRINTS. Law of finger prints, 1917A-417. FIREARMS. See Assault. FIRE COMPANIES. Fire company, insurance patrol or the like as charitable institution, 1917C-797. FIRE DEPARTMENT. Care required of driver of street car or other vehicle to avoid collision with fire apparatus, J.918A-290. FIRE DEPARTMENT Continued. Effect of partial invalidity of statute re- lating to municipal fire department, 1916D-75. Speed or other highway restriction as ap- plicable to fire apparatus, 1917D-565. FIRE ESCAPES. Duty to maintain fire escapes, 1916E-629. FIRE INSURANCE. Agents: liability of agent to insurance company for issuing policy in viola- tion of instruction, 1917B-493. liability of insurance agent to owner of property for failure to procure insur- ance, 1918B-1037. right of fire insurance agent to insure his own property, 1916D-1278. Automobiles: insurance of automobile against fire, 1917D-54. Cancellation of policy: necessity of return or tender of unearned premium to effect cancellation of fire insurance policy by insurer, 1917B-910. Construction of policy: construction of vacancy clause in fire insurance policy issued upon rented property, 1917B- 669. construction of watchman clause in fire insurance policy, 1917D-821. fire insurance policy on live stock in designated location as covering ani- mals temporarily elsewhere, 1916E- 398. overheating as fire within fire insurance policy, 1916D-228. sale and reacquisition of title as viola- tion of clause in fire insurance policy prohibiting change in interest, title, etc., 1917C-934. Fraudulent conveyances: right to proceeds of insurance on property conveyed in fraud of creditors, 1917E-291. Insurable interest of tenant of property for specific term, 1917C-951. Ordinances: effect of local ordinance or regulation on liability under fire in- surance policy, 1917B-1250. Patrol: fire company, insurance patrol or the like as charitable institution, 1917C-797. liability of fire insurance patrol in tort, 1917E-684. Revival of policy: revival of fire insurance policy after satisfaction of lien or in- cumbrance attaching to property in violation of policy, 1917B-1241. revival of fire insurance policy by occu- pancy after vacancy, 191GC-770. Schools: validity of expenditure of school funds for establishment of school in- surance fund, 1917C-925. Subrogation: right of insurance company to enforce subrogation by suit in its own name, 1918A-834. subrogation of insurer to rights of mortgagee, 1917B-1135. 48 DIGEST. 1916C 1918B. FIRE INSURANCE Continued. Validity of insurance policy on property illegally kept or used, 19160-1070. Waiver of conditions in insurance policy by insurer's failure to inquire into existing facts, 1917B-500. FIRES. Brick kilns: danger from fire as warrant- ing relief against brick kiln as nui- sance, 1917E-423. "Damage by elements": damage by fire as included within term "damage by ele- ments," 1917B-296. Fire limits: right of municipality to en- join violation of ordinance prohibit- ing erection of wooden building within fire limits, 1916C-965. Hotels: liability of innkeeper to guest for injuries sustained by latter in fire, 1917A-143. validity of statute or ordinance requir- ing hotels and the like to, provide pro- tection against fire, 1916C-294. Railroads: validity of statute making rail- road absolutely liable for damage by fire, 1918A-632. Stationary engines: liability for fire caused by stationary engine, furnace, or the like, 1917C-771. Statutes: effect of partial invalidity of statute relating to fires, 1916D-54. FISH AND GAME. Corporations: criminal liability of corpo- ration for fishing, 1916C-465. Punishment: what constitutes cruel and unusual punishment for violation of fish and game law, 1918B-401. Statutory regulation: effect of partial in- validity of statute relating to fish and game, 1916D-55. validity and construction of Federal statutes protecting game, 1917D-654. validity and construction of statute regulating method of taking fish, 1917D-814. validity of statute requiring license to hunt game, 1916C-134. Wild animals: right of property in wild animal, 1917B-949. See also Animals. FIXTURES. theatre fixtures, Contracts involving 1917C-399. Gas or electric light plant or accessories as fixtures, 1917B-183. Value of fixtures as element of damages sustained by appropriation of prop- erty in eminent domain proceeding, 1916C-780. See also Conditional Sales. FLAGS. See Parades. FLOODS. See Waters and Watercourses. FLOWAGE. See Waters and Watercourses. FOOD AND DRUGS. Criminal prosecution: criminal liability of corporation for violating food law, 1916C-465. inducement to commit offense under pure food and drugs act with view to prosecution therefor as defense to such prosecution, 1916C-734. Eggs: validity and construction of stat- ute or ordinance regulating sale of eggs, 1918A-181. Ice-cream: state or municipal regulation of ice-cream, 1917B-645. Injuries: liability as for negligence of proprietor of restaurant or lunch room to person injured by eating therein, 1916D-921. liability for injury resulting from for- eign substance in beverage, 1917B- 575. liability for injury resulting from for- eign substance in food, 1918B-225. Meat: butcher as "dealer," 1917A-952. statutory or municipal regulation of meat dealers, 1917A-198. Milk: person selling milk as "dealer," 1917A-959. Oleomargarin : person selling oleomargarin as "dealer," 1917A-959. Opium, etc.: validity and construction of federal regulation of manufacture, sale or possession of opium or other narcotic, 1917D-856. Partial invalidity of statute: effect of par- tial invalidity of statute relating to foods and drugs, 1916D-56. Workmen's compensation acts: employ- ment in connection with preparation of food as within purview of work- men's compensation act, 1917D-23. FOOT. What constitutes "loss" of foot, within workmen's compensation act, 1918A- 539. FOOTPRINTS. See Evidence. FORCE. Validity of personal service of process procured by fraud or force, 1916C-612. FORECLOSURE. See Mechanics' Liens; Mortgages. FOREIGN ACTIONS. See Actions. INDEX TO THE NOTES. FOREIGN CORPORATIONS. .Attachment: right to issue attachment against foreign corporation on ground of nonresidence, 1916E-362. Service of process: liability to suit within r state of foreign corporation which hag revoked designation of agent for ser- vice of process and has ceased to do business within state, 1916D-378. right to serve process on public official or designated agent of foreign corpo- ration in action arising out of trans- action in another state, 1918A-392. validity of statute designating partic- ular kind of agent of foreign corpora- tion on whom process mav be served, 1916E-339. Statutes: effect of partial invalidity of statute relating to foreign corpora- tions, 1916D-39. Taxation: imposition of license tax or fee on foreign corporation, 1.916C 1248. liability to taxation within state of shares of stock of foreign corporation, 1916C-829. situs of stock of foreign corporation for purposes of succession tax, 1918A- 558. FOREIGN LAWS. Admissibility of printed copy of statutes to prove law of another jurisdiction, 1916D-853. Misrepresentation as to foreign law as fraud, 1917E-1096. Presumption as to knowledge of foreign law, 1916D-1072. FOREIGN MARRIAGES. See Bigamy. FOREIGN SUBSTANCES. See Food and Drugs. FOREIGN WILLS. See Wills. FORESTRY. Employment in forestry service as within purview of workmen's compensation act, 1917D-23. See also Trees and Timber. FORFEITURES. Dissolution of corporation as abating ac- tion against it to enforce forfeiture, 1917A-1180. Validity and construction of statute sub- jecting owner of premises to for- feiture for use thereof for purpose of prostitution, 1917A-459. See also Bail; Beneficial Associations; Contracts; Easements; Fines and Pen- alties; Fire Insurance; Homestead. FORGED INDORSEMENT. See also Checks. FORGERY. Forgery of or by typewriting, 1916D-784. FORMER EVIDENCE. See Witnesses. FORMER JEOPARDY. See Jeopardy. FORNICATION. Imputing fornication to man aa slander, 1917A-1044. FORTIFICATIONS. Eiver and harbor or fortification work as employment within purview of work- men's compensation act, 1917D-27. FRANCHISES. Effect of partial invalidity of statutes re- lating to franchises, 1916D-56. Injury to franchise as element of damages in eminent domain proceeding, 1918B-877. Eight of municipality to enforce by man- damus contract obligation arising from franchise, 1918A-916. ' FRATERNAL ASSOCIATIONS. See Beneficial Associations; Societies and Clubs. FRAUD. Appeal and error: jurisdiction of appellate court after remand where decision is obtained by fraud, 1917A-286. Attorneys: liability of attorney to client for fraud or unfair dealing, 1917B-11. Building and loan associations: avoidance of building and loan contract on ground of fraud, 1917A-890. Confessions: admissibility of confession obtained by fraud or trick, 1916D- 966. Corporations: purchase of stock by direc- tor as affected by fiduciary relation to stockholder, 1918B-241. Elections: rejection of entire vote of elec- tion district for fraud affecting indeterminable number of votes, 1918A-41. Fidelity insurance: what constitutes fraud of employee within policy of fidelity insurance, 1917C-420. Foreign laws: misrepresentation as to for- eign law as fraud, 1917E-1096. Mercantile agencies: false statement to mercantile agency as fraud on subse- quent creditor, 1916D-753. 50 DIGEST. 1916C 1918B. rEAUD Continued. Naturalization: fraud as ground for revo- cation of naturalization, 1917C-46. Personal services: right of action for fraud in inducing performance of per- sonal services with'out intent to pay therefor, 1916C-172. Profits: statement of opinion as to future profits of business as ground for ac- tion for fraud or for rescission of contract, 1916D-1040. Eecord of instrument as constructive notice of fraud, 1917A-267. Service of process: validity of personal service of process procured by fraud or force, 1916C-612. Vendor and purchaser: fraud as affecting right to damages for breach of con- tract to sell land due to vendor's in- ability to make title, 1917B-860. See also Confusion of Goods; False Pre- tenses; Fraudulent Sales and Convey- ances; Post Office; Release and Dis- charge. FRAUDS, STATUTE OF. Brokers: necessity that broker have writ- ten authority to enter into contract of sale, 1917A-524. Crops: validity of parol reservation of crops by vendor of land, 1916C-344. Memorandum: necessity for statement of consideration in contract within stat- ute of frauds other than contract? to answer for debt of another, 1918A- 134. proof by parol of contents of lost memo- randum required by statute of frauds, 1916C-173. sufficiency of printed signature to memorandum within statute of frauds, 1918B-1030. Performance within year; whether con- tract which depends upon contingency for performance within year is withiii statute of frauds, 1916E-1136. Sales of goods: continuance of existing possession by vendee as sufficient de- livery to take verbal sale of goods out of statute of frauds, 1917B-572. effect on sales of corporate stock of seventeenth section of statute of frauds and equivalent enactments, 1917C-991. symbolical or constructive delivery of goods within statute of frauds, 1917B-566. Sales of realty: contract for sale of build- ing as contract for sale of realty within statute of frauds, 1916D-970. FRAUDULENT SALES AND CONVEY- ANCES. Delay in recording deed as constituting fraud on creditors of grantor, 1918A-1964. FRAUDULENT SALES AND CONVEY- ANCES Continued. Mortgagee as creditor entitled to attack conveyance of same or other property by mortgagee, 1917C-953. Remedies of creditor for violation of bulk sales law, 1916C-928. Right to proceeds of insurance on property conveyed in fraud of creditors 1917E-291. Validity as against creditors of convey- ance of homestead, 1917C-994. FRESHETS. See Waters and Watercourses. FRIENDS. Communication based on friendship as privileged from disclosure, 1916C-699. Validity and effect of contract induced by threats of criminal prosecution against friend, or relative other than parent, child or spouse, 1917C-1033. FRIGHTENING. See Assault. FRIVOLOUS PLEADING. See Pleading. FROM. "From" as word of inclusion or exclusion, 1918A-924. FRUIT. Right to fruit of overhanging tree, 1918B-1168. See also Agriculture. FRUITSTANDS. See Streets and Highways. FRUSTRATION OF VOYAGE. See Marine Insurance. FUEL. See Municipal Corporations. FUNERAL EXPENSES. See Executors and Administrators; Hus- band and Wife. FURNACES. Liability for fire caused by stationary en- gine, furnace, or the like, 1917C-77L FUTURE DELIVERY. See Hawkers and Peddlers, INDEX TO THE NOTES. 51 FUTURE ESTATES. See Taxation. FUTURE PROFITS. See Fraud. y GAME. See Fish and Game. GAMING. Effect of partial invalidity of statute re- lating to gambling, 1916D-46. What constitutes cruel and unusual punishment for sale of lottery tickets, 1918B-400. GARBAGE. Liability of municipality for tort com- mitted in removal of garbage, 19160-242. GARNISHMENT. Appeal in principal action as bringing at- tachment or garnishment proceeding up for review, 1918A-516. Money standing in name of debtor but be- longing to third person as reachable in garnishment proceeding, 1917C 1145. GAS. Effect of partial invalidity of statute re- lating to natural gas, 1916D-70. Gas or electric light plant or accessories as fixtures, 1917B-183. Liability of gas company for injury caused by escape of gas from pipes, 1916E-277. State or municipal regulation of gas rates, 1917B-1026. Storage of gas as nuisance, 1916E-820. GASOLINE. Storage of gasoline as nuisance, 1916C-820. GATES. See Streets and Highways. GENERAL APPEARANCE. See Appearance. GENERAL DENIAL. See Pleading. GENERAL REVENUE. Legal meaning of "general revenue," 1918B-207. GIFTS. Bank deposit: complete execution of gift inter vivos by deposit of money in bank to credit of another, 1917E- 367. joint deposit in bank as constituting gift, 1916D-520. "Child": "child" tn statute creating pre- sumption of gift as including illegiti- mate child, 191SB-258. when gift to "children" and like in- cludes child on ventre sa mere, 1916E-1034. Validity: presumption and burden of proof of undue influence in case of conveyance inter vivos, 1918B 457. validity of gift made on Sunday, 1917A-424. validity of gift of mortgage inter vivos without writing, 1916C-814. See also Charities; Wills. GOOD WILL. Injury to good will as element of damages in eminent domain proceeding, 1918B-878. Sale of business as passing good will with- out mention thereof, 1917A-1015. GOVERNMENT. See Federal Government. GOVERNOR. Exclusion or inclusion of Sunday or holi- day in computation of time for return of bill by governor, 1917E-943. See also Statutes. GRADES. See Streets and Highways. GRAIN. Seller of grain as "dealer," 1917A-953. GRANDCHILDREN. Grandchild as "dependent" within work- men's compensation act, 1918B-756. GRAND JURY. Legality of grand jury not selected in ac- cordance with statute, 1918A-1080. Power of court to reassemble discharged grand jury, 1916G-207. Power of grand jury to report crime or misconduct otherwise than by indict- ment or presentment, 1916E-228. Resubmission of cause to grand jury, 1916D-273. See also Jury. GERMINATING POWER, See Seed. GRANTEE. See Deeds. 52 DIGEST. 1916C 1918B. GRANTOR. See Deeds. GROUND RENT. Ground rent as realty or personalty, 1918A-150. GUARANTY. Inconsistent defenses in action growing out of contract of guaranty, 1917C- 720. Liability of bank on contract of guaranty, 1916D-554. Bight of guarantor to control application of payment, 1917C-585. GUARDIANS. Accounting: lapse of time as affecting right to open guardian's account or settlement, 1917A-648. Alienation of affections: liability of parent or guardian for alienation of affec- tions, 1917E-1017. Appointment: validity of statute provid- ing for appointment of guardian for aged person, 1917A-874. Leases: power of guardian to lease ward's real estate, 1917A-1256. Sales: doctrine of caveat emptor as ap- plicable to sale by guardian, 1917E- 255. power of guardian to sell personal prop- erty of ward, 1916O-334. Wills: right of guardian or guardian ad litem to contest will, 1918B-538. GUARD RAILS. See Railroads, GUESTS. See Innkeepers. HABEAS CORPUS. Finality of order in habeas corpus proceed- ings, 1916D-506. Right of prisoner who has received exces- sive sentence to be discharged on habeas corpus or appeal, 1916D-368. HABENDUM CLAUSE. See Deeds. HABITS. See Death by Wrongful Act; Divorce; Witnesses. HAIL INSURANCE. Contracts of hail insurance, 1917D-81 HAND. What constitutes "loss" of hand within workmen's compensation act, 1918A- 536. HANDCARS. See Railroads. HANDWRITING. Testing handwriting witness bv use of other writing, 1917B-1060. HARBORS. River and harbor or fortification work as employment within purview of work- men's compensation act, 1917D-27. HAWKERS AND PEDDLERS. Sale by sample for future delivery as ped- dling, 1917D-686. See also Peddlers; Transient Merchants. HAY. Seller of hay as "dealer," 1917A-953. HAZARDOUS. Meaning of "hazardous" as used in work- men's compensation act, 1917D-10. HEADLIGHTS. See Railroads. HEALTH. State or municipal regulation of use or sale of second hand clothes, bedding, or the like, 1917C-1068. Validity of statute or ordinance regulating out-of-door closets or privies, 1916D- 212. Validity of health regulation relating to school children, 1917A-765. HEALTH INSURANCE. Construction of statute requiring standard health insurance policy, 1916D-670. HEIRS. Heir of deceased owner of premises as necessary party defendant to action to foreclose mechanic's lien, 1918B-16. Liability of heir or devisee for rent, 1916E-820. Meaning of term "lawful heirs" as used in will, 1917C-1156. Meaning of term "natural heirs," 1917A- . 1159. See also Descent and Distribution; Execu- tors and Administrators; Remainders and Reversions. HERNIA. See Accident Insurance. HIGH SCHOOLS. Validity of expenditure of school funds for maintenance of high school, 1917C- 921. INDEX TO THE NOTES. 53 HIGHWAYS. See Streets and Highways. HIRED GIRLS. See Master and Servant. HOLIDAYS. See Sundays and Holidays. HOMES. See Charities. HOMESTEAD. Abandonment or forfeiture of homestead by involuntary or compulsory absence, 1917E-112. Conveyance: right to reformation of con- veyance of homestead, 1916E-1131. validity and effect of alienation or in- cumbrance of homestead without join- der or consent of wife, 1917A-71. validity as against creditors of convey- ance of homestead, 1917C-994. Mechanic's lien against homestead, 1917E- 747. Priority as between purchase money mort- gage and claim of homestead, 1916C 949. HOMICIDE. Defenses: fact that death resulted from supervening cause as defense to charge of homicide, 1916C-692. Degrees: right of jury to convict for lesser degree under indictment or informa- tion charging act declared by statute to be murder in first degree, 1916C- 556. Evidence: declarations of infant at time of homicide as part of res gestae, 1916C-1187. Instructions: propriety of instruction as to punishment imposed for various de- grees of homicide, 1917A-752. "Lying in wait": what constitutes "lying in wait" within statute relating to homicide, 19160-969. Punishment: what constitutes cruel and unusual punishment for homicide, 1918B-398. See also Dying Declarations. HORSES. See Animals. HORTICULTURE. Horticultural labor as employment as within purview of workmen's compen- sation act, 1917D-23. HOSPITALS AND ASYLUMS. Effect of partial invalidity of statute re- lating to hospitals and asylums, 1916D-60. HOSPITALS AND ASYLUMS Continued. Hospital as charity exempt from taxation, 1917B-278. Hospital chart as evidence, 1916C-78. Eight to damages for unlawful detention in hospital or institution for insane, 1917C-162. Validity of expenditure of school funds for maintenance of orphan asylum. 1917C-924. See also Drunkenness. HOTELS. See Apartment Houses; Innkeepers. HOURS OF LABOR. See Labor Laws. HOUSEHOLD GOODS. Measure of damages for conversion of, or failure to deliver, household goods, 1917B-585. HUMAN BEINGS. See Death by Wrongful Act. HUSBAND AND WIFE. Alienation of affections: action by wife for alienation of affections, 1916C- 748. actual separation or abandonment as prerequisite to action for alienation of affections, 1918A-647. admissibility in action for alienation of affections of evidence of acts com- mitted after separation of spouses, 1917D-484. liability of parent or guardian for alien- ation of affections, 1917E-1017. liability of relative other than parent or guardian for alienation of affec- tions, 1917E-1027. Antenuptial agreements: effect of partial invalidity of antenuptial contract, 1918B-925. effect on antenuptial agreement for re- lease of dower or like interest of failure of consideration for agree- ment, 1918A-1168. Automobiles: liability of owner of auto- mobile for act of wife driving same, 1917E-228. Criminal conversation: action by wife for criminal conversation, 1916C-748. proof of marriage in action for criminal conversation, 1917A-755. Duress: threat of abandonment by spouse as duress, 1917A-174. Executor de son tort: what acts of inter- meddling charge surviving spouse as executor de son tort, 1917E-3. DIGEST. 1916C 1918B. HUSBAND AND WIFE Continued. Funeral expenses: liability of husband for wife's funeral expenses, 1917B-1164. Household expenses: liability of wife for household expenses, 1917C-561. Imprisonment of husband: right of wife to recover damages for imprisonment of husband, 1916C-481. Injuries to wife: notice to municipality as prerequisite to action for injury to wife of plaintiff, 1916E-560. right of husband to recover for loss of consortium in action for personal in- juries to wife where statute gives wife right of action for such injuries, 1916C-886. Libel and slander: communication to hus- band or wife as privileged within law of libel and slander, 1917E-896. Life insurance: validity and effect of as- signment by wife of insurance in her favor on life of husband, 1917B-302. Mechanics' liens: husband of owner of premises as necessary party defend- ant to action to foreclose mechanic's lien, 1918B-15. wife of owner of premises as necessary party defendant to action to foreclose mechanic's lien, 1918B-14. Personal property: right of husband, as against wife, to dispose of his per- sonalty during coverture, 1918B-934. Separation: effect of voluntary separation on right to widow's allowance, 1916C- 866. separation agreement as bar to action for divorce, 1916C-347. separation as affecting right of husband to convey homestead, 1917A-77. Support: what constitutes cruel and un- usual punishment for nonsupport of wife, 1918B-399. Suretyship: right of married woman to become surety for husband, 1917B- 597. Taxation: what constitutes "residence" of husband or wife for purpose of taxa- tion, 1917B-731. Testamentary capacity: insane delusion with respect to fidelity of spouse as affecting testamentary capacity, 1916C 16. Witnesses: admissibility of testimony of married woman to prove nonaccess of husband, 1917A-1031. competency, as attesting witness to will, of husband or wife of beneficiary, 1917A-S33. effect of death of one spouse on compe- tency of other as witness, 1917D-216. husband or wife as competent witness in prosecution for bigamv, 1916C 1060. Workmen's compensation acts: wife as "dependent" within workmen's com- pensation act, 1918B-756. See also Adultery; Divorce: Dower; Equi- table Election; Homestead. ICE. Manufacturer of ice as "dealer," 191 7 A- 953. Nature and effect of grant of right to take ice from another's premises, 1917D-93. Power of municipality to operate plant for purpose of furnishing ice to inhab- itants, 1916C-1287. Bight to harvest ice as between person having right of flowage and riparian proprietor, 1917C-782. ICE-CREAM. See Food and Drugs. IDEM SONANS. See Names. IDENTITY. Conflict between presumption of identity of person and identity of name and another presumption, 1917E-121. See also Libel and Slander. ILLEGAL CONTRACTS. Adoption: validity of contract of adoption not made in conformity with statute, 1916D-1110. Antenuptial agreements: effect of partial invalidity of antenuptial contract, 1918B-925. Attorneys: solicitation of business by at- torney as forfeiture of right to com- pensation therefor, 1917C-872. validity of contract for compensation of attorney made after fiduciary re- lation is established, 1917A-531. validity of stipulation for attorney's fee in promissory note, 1917D-365. Blacklisting: legality of blacklisting agreement, 1917A-644. Brokers: illegal contracts as to compen- sation by agents of vendor or vendee, 1917A-511. Claims: validity of agreement by person other than attorney to collect, settle or compromise claim for commission, 1918A-797. Duress: validity and effect of contract in- duced by threats of criminal prosecu- tion against friend, or relative other than parent, child or spouse, 1917C- 1033. validity and effect of contract of parent or child induced by threats of crim- inal prosecution against other, 191 7C- 1026. Elections: validitv of contract designed to influence public election, 1917C-350. Expectancy: validity of transfer of ex- pectancy in estate made by heir or beneficiary to stranger, 191GE-1241. Intoxicating liquors: validity of sale of liquors where seller knows same will be illegally resold, 1918B-978. INDEX TO THE NOTES. 55 ILLEGAL CONTRACTS Continued. Judicial gales: validity of contract to pre- vent bidding at judicial sale, 1917D- 232. Legislation: validity of contract for con- tingent compensation in procuring legislation, 1916E-948. Pardons: validity of contract to procure pardon or parole, 1917D-890. Parol evidence: admissibility of parol evi- dence to show illegality of contract, 1917D-426. Railroads: right of railroad company to grant exclusive privileges on depot grounds, 1918A-702. Sundays and holidays: principle of estop- pel as applicable to rights of parties under void Sunday contract. 1916E- 467. Telephones: validity of contract made by telephone, 1917B-907. Undue influence: presumption and burden of proof of undue influence in case of conveyance inter vivos by parent to child, 1918B-457. Usury: renewal contract as affected by usury in original contract, 1918A-753. Wills: validity of contract not to change will, 1916D-1160. See also Banks; Bills and Notes; Dower; Homestead; Infants; Release and Dis- charge. ILLEGITIMACY. "Child" as including illegitimate child, 1918B-249. Conflict of laws: law governing status of person as legitimate or illegitimate, 1917C-537. Death by wrongful act: right of parent to recover for death of illegitimate child, 1916C-720. right of person other than parent to re- cover for death of illegitimate child, 1916E-454. Evidence: admissibility of testimony of married woman to prove nonaccess of husband, 1917A-1031. Inheritance: right of illegitimate child to inherit from or through father, 1917C- 826. Slander: charging man with being father of bastard as slander, 1917A-1045. Testamentary capacity; insane delusion with respect to paternity of child as affecting testamentary capacity, 1916C-18. Workmen's compensation acts: illegitimate child as "dependent" within workmen's compensation act, 191SB-754. ILL FEELING. See Trusts and Trustees. ILLNESS. See Accident Insurance; Life Insurance. IMMIGRATION. Classes of aliens excluded by immigration act, 1917O-235. Criminal liability of corporation for bring- ing labor into United States. 1916C- 465. Immigrant prostitution or immorality, 1917C-250. Inducement to commit immigration offense with view to prosecution therefor as defense to such prosecution, 1916C- 732. Soliciting or importing alien contract labor as crime, 1917C-261. IMMORAL CONDUCT. See Libel and Slander. IMPEACHMENT. See Acknowledgment; Witnesses. IMPLEMENTS. Vehicle as "tool," "implement" or "instru- ment" within exemption statute, 1917D-96. IMPLIED CONTRACTS. See Attorneys; Carriers of Goods; Good Will; Master and Servant; Municipal Corporations. IMPLIED COVENANTS. See Landlord and Tenant. IMPLIED GIFTS. See Wills. IMPLIED VENDOR'S LIEN. See Vendor's Lien. IMPLIED WARRANTY. See Warranty. IMPORTS. Effect of partial invalidity of statute re- lating to import taxes, 1916D-89. IMPOTENCY. Impotency as defense to charge of rape or assault with intent to rape, 1916D 535. Necessity that impotency be pleaded speci- ally in action for personal injuries, 1916C-383. IMPRISONMENT. See Husband and Wife; Sentence and Pun- istiment. 56 DIGEST. 1916C 1918B. IMPRISONMENT FOR DEBT. INCUMBRANCES. Civil liability for tort as debt within con- stitutional provision against imprison- ment for debt, 1917D-841. What constitutes cruel and unusual pun- ishment for nonpayment of debt, 1918B-398. IMPROBABLE TESTIMONY. See Bankruptcy. IMPROVEMENTS. Bight of defaulting purchaser under con- tract for sale of land to reimburse- ment for improvements, 1917C-85. Right to compensation in condemnation proceedings for improvements placed on land by condemnor with authority or color thereof, 1917C-141. Validity of contract for improvement of homestead without joinder of wife, 1917A-76. See also Mechanics' Liens; Municipal Cor- porations. IMPULSE. See Insanity. IMPUTED NEGLIGENCE. See Contributory Negligence. INADEQUACY. See Charities; Verdict. INCEST. Imputing incest to man as slander, 1917A- 1046. INCIDENTAL EXPENSES. See Attorneys. INCOME TAXES. See Taxation. INCOMPETENT EVIDENCE. See Evidence; Witnesses. INCONSISTENT DEFENSES. See Pleading. INCONTESTABLE CLAUSE. See Life Insurance. INCREASE. See Animals. INCREASE OF ALLOWANCE. See Workmen's Compensation Acts. See Fire Insurance; Marshaling Assets. INDEMNITY INSURANCE. Indemnity insurance against liability of .physician for malpractice, 191GE-1159. INDEPENDENT CONTRACTORS. Distinction between independent con- tractor and workman under work- men's compensation act, 1918B-708. Effect of employment of independent con- tractor on liability of landowner ex- cavating on his own premises, 1917A- 356. Employee of independent contractor as "workman" within workmen's com- pensation act, 1918B-709. Independent contractor as employee of railroad under federal employers' lia- bility act, 1918B-52. Liability of owner of building for injury to pedestrian resulting from negli- gence of independent contractor in erection of scaffold, 1916C-123. INDIANS. "Child" in statute relating to naturaliza- tion of Indians as including illegiti- mate child, 1918B-256. INDICTMENT. See Criminal Law; Grand Jury. INDORSEMENT. See Bills and Notes; Checks. INDUCEMENT. See Criminal Law. INDUSTRIAL INSURANCE. Nature and construction of industrial in- surance policy, 1918B-1186. INEBRIATES. See Drunkenness. INFANTS. Advancements: right of executor or admin- istrator to charge estate for advance- ments made for benefit of infant, 1917A-138. Aliens: exclusion of alien child under im- migration act, 1917C-247. Contracts: infancy as defense to action for money loaned, 1916C-999. power of infant to consent to issuance of liquor license, 1916C-497. "right of infant who repudiates contract for services to recover therefor, 1916C-261. INDEX TO THE NOTES. 57 INFANTS Continued. Contracts: validity and effect of contract of child induced by threats of crim- inal proseution against parent, 1917C- 1026. what constitutes reasonable time for in- fant to disaffirm contract after major- ity, 1917D-413. Declarations: declarations of infant at time of assault or homicide as part of res gestae, 1916C-1187. Emancipation: sufficiency of evidence to show emancipation of infant, 1917D- 585. Injuries: duty and liability of one main- taining electric wires in reference to children, 1917A-895. infancy of claimant as suspending limi- tation of time for filing claim against municipality, 1916C-1042. law of road as applicable with respect to one using highway for play, 1917C 454. liability for injury to infant stealing ride on vehicle, 1917D-379. liability of landowner for injury to tres- passing child on account of unguarded pond, pool, well, etc., 1916C-1085. notice to municipality as prerequisite to action for injury to ehild of plaintiff, 1916E-560. Judgments: vacation of judgment affecting infant duly represented, 1917B-922. Juvenile courts: effect of partial invalidity of statute relating to juvenile offend- ers and courts, 1916D-67. establishment of and procedure in juve- nile courts, 1916E-1010. Libel and slander: communication to child as privileged within law of libel and slander, 1917E-896. Military service: infant as subject to com- pulsory military service, 1917C-814. right of infant unlawfully enlisted to re- lease from detention of military or naval authorities, 1917C-778. Taxation: what constitutes "residence" of infant for purposes of taxation, 191 7B- 731. "Workmen's compensation acts: child as "dependent" within workmen's com- pensation act, 1918B-754. election by infant employee with respect to acceptance of provisions of work- men's compensation act, 1918B-716. increase of allowance to infant under workmen's compensation act, 1918B- 735. minor employed in violation of law as entitled to compensation under work- men's compensation act, 1918B-679. See also Adoption: Illegitimacy; Parent and Child. INHERIT. Meaning of "inherit," "inherited," etc., 1917C-386. See also Death by Wrongful Act; Descent and Distribution; Life Estates. INHERITANCE TAXES. See Taxation. INITIALS. Sufficiency of signature of testator to will by initRiB, 1917B-875. INITIATION. Initiation a) prerequisite to membership in beneficial association, 1917B-380. INJUNCTIONS. Breach of contract: injunction as remedy for breach of express covenant not to engage in same business as covenantee, 1916C-187. injunction to restrain breach of contract by theatrical performer, 1917C-395. Criminal prosecutions: power of equity to enjoin criminal prosecution, 1916C 1153. Foreign proceedings: power of court to en- join proceedings in another state or country, 1918B-1150. Libel and slander: injunction against pub- lication of or to compel retraction of libel, 1916D-1088. Municipal corporations: right of citizen to enjoin business competition by munici- pality, 1918B-118. Mortgages or trust deeds: right to enjoin sale under mortgage or trust deed on ground of conflicting liens or rights or because of disputed title, 1917D-125. ^Nuisances: equitable relief against ceme- tery as nuisance, 1917B-563. right of state to enjoin private nuisance which is also crime, 1916C-455. Ordinances: right of municipality to enjoin violation of municipal ordinance, 1916C-963. Preliminary injunctions: modification or suspension of preliminary injunction before trial, 1916E-205. Temporary injunctions: distinction be- tween temporary restraining order and temporary injunction, 1917.B-123. INJURY. "What is "injury" within meaning of work- men's compensation act, 1918B-362. See also Negligence. INFORMATION. See Criminal Law. INJURY TO BUSINESS. See Eminent Domain; Payment. DIGEST. 1916C 1918B. INJURY TO PERSONALTY. See Eminent Domain. INNKEEPERS. Intrusting baggage to innkeeper or his em- ployee as establishing relation of inn- keeper and guest, 1918A-541. Liability of innkeeper to guest for injuries sustained by latter in fire, 1917A-143. Validity of statute or ordinance licensing or regulating hotels, lodging or room- ing houses, or the like, 1916C-290. See also Apartment Houses. INNOCENCE. Conflict between presumption of innocence and presumption of identity of person from identity of name, 1917E-122. INQUEST. See Coroners. INSANITY. Arrest: right to arrest person without warrant on ground of insanity, 1917D- 536. Carriers of passengers: duty and liability of carrier with respect to insane pas- senger, 1916E^-256. Defense to crime: irresistible or uncon- trollable impulse as defense to crim- inal charge, 1917C-609. time or stage in criminal proceedings when question of insanity of defend- ant may be determined by inquisition or otherwise, 1916E-424. Evidence: admissibility, on issue of san- ity, of evidence of insanity of ances- tors or kindred, 1918B-124. suicide as evidence of insanity, 1916E- 488. Homestead: insanity of wife as affecting right of husband to convey homestead, 1917A-7S. Landlord and tenant: liability of com- mittee of lunatic for rent, 1916E-819. Taxation: what constitutes "residence" of person non compos mentis for purpose of taxation, 1917B-731. Unlawful detention: right to damages for unlawful detention in hospital or in- stitution for insane, 1917C-162. See also Deaf and Dumb Persons; Drunk- enness; Hospitals and Asylums; Wills. INSIDE WIRING. See Electricity. INSOLVENCY. Effect of partial invalidity of state insol- vency law, 1916D-37. Instituting insolvency proceeding as ground for action for malicious prose- cution, 1916D-909. See also Bankruptcy; Banks; Stock Ex- changes. INSTIGATING PROSECUTION. See Malicious Prosecution. INSTRUCTIONS. Necessity that further instructions re- queste'd by jury be given in open court, 1917A-399. Necessity that further instructions to jury, after retirement, be given in presence or with consent of counsel, 1917A-409. Negative pregnant in instruction. 1917A- 676. Propriety of instruction or comment by court to effect that perjury has been committed at trial, 1917B-128. Propriety of requesting or giving numerous or lengthy instructions, 1918A-1091. See also Homicide. INSTRUMENTS. Vehicle as "tool," "implement," or "instru- ment" within exemption statute, 1917D-96. INSURABLE INTEREST. See Insurance. INSURANCE. Accident insurance: construction of clause in accident insurance policy excepting death caused by disease, 1917C-463. construction of hernia clause in accident insurance policy, 1918A-710. construction of provision in accident in- surance policy relating to injury "caused by burning of building" or similar phrase, 1917C- 410. construction of statute requiring stand- ard accident insurance policy, 1916D- 670. construction of sunstroke clause in acci- dent insurance policy, 1918A-523. disease as accident under accident insur- ance policy, 191SB-298. intentional exertion as "accidental means" of injury within accident in- surance policy, 1917A-88. receipt of insurance as affecting right to compensation under workmen's com- pensation act. 1918B-635. right to recover under accident insur- ance policy for injuries received while fighting, 1916C-579. waiver of provision in accident insur- ance policy limiting time to bring suit thereon, 1916C-449. waiver of provision in accident insur- ance policy requiring notice of injury or death to be given within certain time, 1917A-114. INDEX TO THE NOTES. 59 INSURANCE Continued. Accident insurance: what constitutes "loss" of eyesight within accident in- surance policy, 1918A-531. what constitutes loss or severance of limb or member within meaning of accident insurance policy, 1917B-1008. Agents: liability of agent to insurance company for failure to collect pre- mium, 1916D-651. liability of agent to insurance company for issuing policy in violation of in- struction, 1917B-493. liability of insurance agent to owner of property for failure to procure insur- ance, 1918B-1037. validity of insurance policy issued by agent on property of corporation of which agent is stockholder, 1916D- 1275. Animal insurance, 1917D-45. Application: misstatement of name in ap- plication for insurance as avoiding policy, 1916D-1297. Attorneys: lien of attorney on insurance policy in his possession connected with litigation, 1917D-149. Automobiles: automobile insurance, 1917D 53. insurance against liability of automobile owner, 1917D-61. Beneficiaries: liability for inducing change of beneficiary in insurance policv, 1917A-473. Benefit insurance: admissibility of benefit certificate in evidence without other parts of contract, 1917C-145. "child" in benefit insurance policy as in- cluding illegitimate child, 1918B-261. "child" in statute relating to benefit in- surance as including illegitimate child, 1918B-256. construction of restriction in contract of benefit insurance as to' travel by or residence of insured, 1917A-381. construction of restriction in contract of benefit insurance as to use of intoxi- cant by insured, 1918A-623. effect of divorce upon rights of bene- ficiary under benefit certificate, 1917C- 270. persons included within the term "fam- ily" when used to designate bene- ficiaries in benefit certificate, 1917C 694. receipt of insurance as affecting right to compensation under workmen's com- pensation act, 1918B-635. selection by insured of beneficiary not having iusurable interest in former's life as against public policy, 1916C- 587. validity of amendments to by-laws of fraternal benefit societies as applied to existing members. 1917B-814. waiver of forfeiture of benefit certificate for nonpayment of assessment or dues by acceptance of arrearages or similar act, 1916D-591. INSURANCE Continued. Benefit insurance: what constitutes membership in beneficial association. 1917B-380. Burial insurance: contract for burial as insurance contract, 1916C-1016. Credit insurance, 1917D-75. Definitions: what is "insurance company" or "contract of insurance," 1916C- 1022. False pretenses: fraud on insurer as con- stituting attempt to obtain money by false pretenses, 1917B-1235. Fidelity insurance: act or default of em- ployee covered by fidelity bond or in- surance, 1917C-420. recovery of premium paid for fidelity in- surance, 1916C-1222. Fire insurance: construction of vacancy clause in fire insurance policy issued upon rented property, 1917B-669. construction of watchman clause in fire insurance policy, 1917D-821. effect of local ordinance or regulation on liability under fire insurance policy, 1917B-1250. fire company, insurance patrol or the like as charitable institution, 1917C-797. fire insurance policy on livestock in des- ignated location as covering animals temporarily elsewhere, 1916E-398. insurable interest of tenant of property for specific term, 1917C-951. insurance of property of alien enemy, 1917C-200. liability of fire insurance patrol in tort, 1917E-684. necessity of return or tender of un- earned premium to effect cancellation of fire insurance policy by insurer, 1917B-910. overheating as fire within fire insurance policy, 1916D-228. revival of fire insurance policy after satisfaction of lien or incumbrance at- taching to property in violation of policy, 1917B-1241. revival of fire insurance policy by occu- pancy after vacancy, 1916C-770. right of fire insurance agent to insure his own property, 1916D-1278. right to proceeds of insurance on prop- erty conveyed in fraud of creditors, 1917E-291. sale and reacquisition of title as viola- tion of clause in fire insurance policy prohibiting change in interest, title, etc., 1917C-934. validity of expenditure of school funds for establishment of school insurance fund, 1917C-925. validity of insurance policy on property illegally kept or used, 1916C-1070. Hail insurance, 1917D-81. Health insurance: construction of statute requiring standard health insurance policy, 1916D-670. Indemnity insurance against liability of uhvsician for malpractice, 1916E- 1159. 60 DIGEST. 1916C 1918B. INSURANCE^Con tinu e d. Industrial insurance, 191SB-1186. Life insurance: admissibility of coroner's verdict as evidence in action on life insurance policy, 1917B-893. construction of restriction in contract of life insurance as to travel by or resi- dence of insured, 1917A-381. death while engaged in violating law within exception in life insurance pol- icy, 1917C-592. effect of divorce upon rights of bene- ficiary in life insurance policy, 1917C 269. effect of incontestable clause in life in- surance policy in case of legal execu- tion of insured, 1917D-1183. effect of incontestable clause in life policy on provision against suicide, 1917D-1186. ' insurance of life of alien enemy, 1917C- 200. meaning of term "severe" or "serious" illness in application for life insur- ance policy, 1918A-682. persons included within term "family" when used to designate beneficiaries in life insurance policy, 1917C-694. receipt of insurance as affecting right *to compensation under workmen's com- pensation act, 1918B-635. relation by affinity as supporting insur- able interest in life, 1917C-158. right of insurance beneficiary having no insurable interest in life of insured to keep contract alive for his own benefit, 1917A-1085. rights of parties in case of insurance procured by parent on life of minor child, 1917E-643. selection by insured of beneficiary not having insurable interest in former's life as against public policy, 1916C- 587. validity and effect of assignment by wife of insurance in her favor on life of husband, 1917B-302. Marine insurance: frustration of voyajro because of existence of war as con- structive total loss within marine in- surance policy, 1916D-884. Mutual insurance: set-off against receiver of mutual insurance company, 1916D 600. Pleading: inconsistent defenses in action growing out of contract of insurance, 1917C-719. Statutes: effect of partial invalidity of statute relating to insurance, 1916D 61. Subrogation: right of insurance company to enforce subrogation by suit in its own name, 1918A-834. right of subrogation of insurer as af- fected by release by insured of person causing loss, 1917A-1298. subrogation of insurer to rights of mort- gagee, 1917B-1135. INSURANCE Continued. Waiver of conditions in insurance policy by insurer's failure to inquire into ex- isting facts, 1917B-500. INSURANCE PATROL. See Fire Insurance. INSURRECTION. Existence of insurrection as affecting lia- bility of soldier or militiaman for in- jury to person or property, 1917C-15. INTENT. See Banks; Partnership. INTENTIONAL EXERTION. See Accident Insurance. INTEREST. Alien enemies: suspension of interest on debt between alien enemies 1917C- 199. Attorneys: interest on attorney's fees, 1916E-249. Bail bonds: allowance of interest on for- feited bail bond, 1916C-114. Bids: right to interest on deposit returned to bidder, 1916C-433. Judgments: right to interest on judgment as affected by modification of judg- ment on appeal, 1917C 413. Municipal obligations: interest on city warrants, 1916C-576. interest on municipal bonds as factor in determining whether municipality has exceeded constitutional debt limit, 1918B-598. See also Usury. INTERFERENCE WITH CONTRACT RELATIONS. See Contracts. INTERMEDDLING. See Executors de Son Tort. INTERNATIONAL WAR. See War. INTERNMENT. See War. INTERSTATE COMMERCE. Freight undercharges: liability as between consignor and consignee for payment of freight undercharges on interstate shipment, 1916E-378. State statutes: railroad employee engaged in interstate commerce as within pur- INDEX TO THE NOTES. 61 INTERSTATE COMMERCE Continued. view of workmen's compensation act, 1918B-664. State statutes: state regulation of rail- roads as interference with interstate commerce, 1917A-973. statute conferring on public service com- mission power to fix rates for public service corporations as interference with interstate commerce, 1917C-62. validity of statute imposing penalty on carrier of goods or livestock for fail- ure to pay claim within certain time, 1916D-335. validity of statute, ordinance or rule providing for reciprocal demurrage, 1916E-701. See also Foreign Corporations. INTERURBAN RAILWAYS. Bee Carriers of Passengers. INTER VIVOS. See Gifts. INTERSTATE PROPERTY. See Wills. INTIMIDATION. Rejection of entire vote of election dis- trict for intimidation affecting inde- terminable number of votes. 1918A- INTOXICATING LIQUORS. Contracts: validity of sale of liquors where seller knows same will be illegally re- sold, 1918B-978. Corporations: criminal liability of cor- poration for violation of liquor law, 1916C-465. "Dealer": person engaged in liquor traffic as "dealer," 1917A-955. Deeds: validity of condition in deed pro- hibiting sale of liquor on land granted, 1917C-110. Inducement to violate liquor law with view to prosecution therefor as defense to such prosecution, 1916C-732. Infants: power of infant to consent to is- suance of liquor license, 1916C-497. Intoxicants: medicinal or toilet prepara- tion containing alcohol as within pur- view of intoxicating liquor statute. 1917C-909. regulation of alcoholic, spirituous, malt or vinous liquor as including or es- cluding nonintoxicating liquor, 1917A- 94. Licenses: mandamus to control issuance of liquor license, 1918A-687. right to and effect of judicial review of revocation of liquor license, 1917A- 1024, INTOXICATING LIQUORS Continued. Licenses: validity of intoxicating liquor statute which makes distinction be- tween races with respect to granting of license or otherwise, 1916C-170. Local option: territory affected by adop- tion of local option law, 1917C-512. Penalties: action for penalty for violation of intoxicating liquor statute, 1916E- 868. what constitutes cruel and unusual pun- ishment for violation of liquor law, 1918B-401. Personal use: right to prohibit possession of intoxicating liquor for personal use, 1916E-780. "Premises": what is included in term "premises" in statute relating to sale of intoxicating liquor, 1916C-1193. Social clubs: application of statute regu- lating liquor traffic to bona fide social club distributing liquor to members, 1916D-940. Statutes: effect of partial invalidity of prohibition liquor law, 1916D-63. effect of partial invalidity of statute re- lating to intoxicating liquors, 1916D- 62. Transportation: state regulation of trans- portation of intoxicating liquors, 1917A-622. validity of statute forbidding bringing of liquor into prohibition territory, 1917A-740. INTOXICATION. See Drunkenness. INTRASTATE COMMERCE. Railroad employee engaged in intrastate commerce as within purview of work- men's compensation act, 1918B-664. INVERSE ORDER OF ALIENATION. See Marshaling Assets. INVESTMENTS. Liability of attorney for negligence in in- vesting funds of client, 1917B-21. INVOLUNTARY ABSENCE. See Homestead. IRREGULARITIES. See Elections. IRRESISTIBLE IMPULSE. See Insanity. IRRIGATION. Effect of partial invalidity of statute re- lating to irrigation, 1916D-49. Liability of owner of irrigation ditch for damages arising from its construction and maintenance, 1916D-981. 62 DIGEST. 1916C 1918B. ISTHMIAN CANAL. See Canals. JAILS. See Convicts; Jails; Prisons and Prisoners; Reformatories. JEOPARDY. Failure to interpose objection of former jeopardy on second trial as waiver of plea, 1917C-765. JITNEY BUSES. Jitney bus proprietor as common carrier of passengers, 1917C-1060. State or municipal regulation of jitney buses, 1917C-1051. JOINT DEPOSITS. See Banks. JOINDER OF DEFENDANTS. See Licenses. JOINT PARTIEa See Jury. JOINT STOCK COMPANIES. "Citizen" as including joint stock com- pany, 1917C-878. JOINT TENANTS. Joint deposit in bank as creating joint tenancy, 1916D-522. Nature of estate resulting from creation Of cotenancy, 1917B-57. JOURNALS. See Statutes. JR. See Names. JUDGES. Compensation of judge of juvenile court, 1916E-1011. Disbarment: misconduct of judge as ground for disbarment, 1917B-232. Disqualification: application for change of judge or venue on ground of bias of judge as ousting judge of jurisdiction, 1916D-12S1. bias of judge existing prior to trial as ground for reversal in absence of showing of prejudice at trial, 1917E- 954. disqualification of judge by interest in legal question involved in litigation, 1917A-1068. JUDGES Continued. Disqualification: of judge to review his own acts, 1917A-840. necessity as justifying action by dis- qualified judge or officer exercising judicial power, 1917A-1061. participation as or relationship to coun- sel in action as disqualifying "judge, 1917A-1231. Statutes: effect of partial invalidity of statute relating to judges, 1916D-456. See also Courts; Jury. JUDGMENTS. Assignment: effect on judgment lien of assignment of judgment or execution issued to or for benefit of judgment debtor, 1917C-557. Attorneys: extent of attorney's lien on judgment, 1916E-387. liability of attorney to client for negli- gence with respect to enforcement of judgment, 1917B-30. liability of attorney to client for negli- gence with respect to entry or protec- tion of judgment, 1917B-29. Computation of time: exclusion or inclu- sion of Sunday or holiday in compu- tation of time for entry of judgment, 1917E-939. Defaults: advice of counsel as ground for opening default judgment, 1917A-709. Evidence: admissibility in subsequent civil action of judgment of conviction based on plea of guilty, 1917E-1109. Holidays: validity of judgment rendered or entered on holiday, 1916E-852. Interest: right to interest on judgment as affected by modification of judgment on appeal, 1917C-413. Intoxicating liquors: judgment in action for penalty for violation of intoxi- cating liquor statute, 1916E-873. Juvenile courts: judgments of juvenile court, 1916E-1017. Limitation of actions: when statute of limitations begins to run against ac- tion on judgment, 1916C-625. Lost judgment: proof by parol of con- tents of lost or destroyed judgment or decree, 1916D-254. Priorities: issuance of execution as giving priority to one of several equal judg- ments, 1917D-187. priority as between implied vendor's lien and judgment against purchaser, 1916D-384. priority as between purchase money mortgage and judgment, 1916C-949. Ees judicata: estoppel by judgment as applicable to person assisting prose- cution or defense of action, 1916E- 154. judgment settling title to land as con- clusive between successful claimant and grantor of defeated claimant, 1916E-161. INDEX TO THE NOTES. 63 JUDGMENTS Continued. Res judicata: order in habeas corpus pro- ceeding as res judicata, 1916D-506. voluntary dismissal of bill for divorce as res judicata, 1917A-1201. Statutes: effect of partial invalidity of statute relating to judgments, 1916D- 80. Tender: effect of tender of amount due on judgment, 1916C-536. Vacation: power of court to amend or set aside judgment at subsequent term where proceeding therefor is com- menced during term at which judg- ment is rendered, 1916D-1260. vacation of judgment affecting infant duly represented, 1917B-922. See also Alimony; Appeal and Error; Arrest of Judgment; Bankruptcy; Deeds. JUDICIAL NOTICE. Judicial notice of contents of legislative journals on issue as to enactment of statute, 1916E-1284. Judicial notice of mortality tables, 191SB- 415. Judicial notice of proceedings for adop- tion of amendment to constitution, 1917D-1031. JUDICIAL PROCEEDINGS. See Libel and Slander. JUDICIAL RECORDS. See Records. JUDICIAL SALES. Bidding: validity of contract to prevent bidding at judicial sale, 1917D-232. Equitable mortgages: deed given at judi- cial sale as equitable mortgage in favor of original owner of premises, 1917C-970. Examination of title: right of purchaser at judicial sale to reasonable time to examine title, 1916C-764. Junior writ: rights of parties on sale un- der junior attachment or execution, 1917B-710. Rent: liability of purchaser of leasehold at judicial sale for rent, 191GE-821. Validity: misnomer of party in advertise- ment or notice of sale as affecting validity of judicial sale, 1917B-1046. validity of judicial sale held on holiday. 1916E-852. See also Mortgages. JUNK. Purchaser and seller of junk as "dealer," 1917A-954. JURISDICTION. See Appeal and Error; Appearance; Courts; Criminal Lav. T ; False Pre- tenses; Instructions; Misconduct of Counsel. JURY. Challenges: right and manner of exercise of peremptory challenges by joint par- ties in civil actions, 1917E-461. Custody and conduct: allowing recreation to jury during trial as ground for new trial, 1918B-855. prejudice of officer as disqualifying him from acting as custodian of -jury, 1917B-254. private communication by trial judge with jury during deliberations as ground for new trial, 1917A-403. Fees: constitutionality of statutes requir- ing prepayment or taxation as costs of jury fees, 1917B-308. Juvenile courts: necessity for jury in pro- ceedings in juvenile court, 1916E- 1016. Qualifications: prejudice against race or color of party to action as disqualifv- ing juror, 1917C-1167. qualification as juror of member of grand jury indicting defendant, 1917D-456. Service: power of court to exclude person from jury service, 1916C-1209. Statutes: effect of partial invalidity of statute relating to juries and jury commissioners, 1916D-81. Verdict: validity and construction of con- stitutional or statutory provision for verdict by less than whole number of jurors, 1916E-500. Witnesses: competency as witness of juror on former trial, 1916C-676. See also Coroners; Grand Jury; Verdict. JUSTICE OF THE PEACE. Application for change of judge or venue on ground of bias of judge as ousting judge of jurisdiction, 1916D-1281. Effect of partial invalidity of statute re- lating to justices of the peace, 1916D- 66. JUSTIFICATION. See Assault; Libel and Slander. JUVENILE COURTS. Establishment of and procedure in juve- nile courts, 1916E-1010. Effect of partial invalidity of statute re- lating to juvenile offenders and courts, 1916D-67. KEROSENE. Storage of kerosene as nuisance, 1916C- 820. KILNS. See Bricks. KINDRED. See Insanity. DIGEST. 1916C 1918B. KNOWLEDGE. Competency of witness to testify to knowl- edge of another, 1918A-947. Presumption as to knowledge of foreign Jaw, 1916D-1072. LABOR. See Sundays and Holidays. LABOR COMBINATIONS. Civil liability for interference with con- tract relations, 1916E-608. Publication that employer has been placed on "unfair list" of labor union as libelous, 1918B-570. LABOR LAWS. Aliens: soliciting or importing alien con- tract labor as crime, 1917C-261. validity of statute discriminating against aliens in employment of labor- ers, 1917B-287. Corporations: criminal liability of corpo- ration for violation of labor law, 1916C-465. Females: validity of statute regulating employment of adult females in other respects than number of hours of labor, 1916D-1065. Hours of labor: statute regulating hours of service of railroad employees as interference with interstate commerce, 1917A-981. validity of statute requiring weekly rest day for employees, 1916D-1058. Partial invalidity of statute: effect of par- tial invalidity of statute relating to labor, 1916D-67. LACHES. Laches as barring injunction to restrain breach of covenant not to engage in same business, 1916C 190. Laches as barring right of contribution be- tween partners, 1916D-838. See also Descent and Distribution. LAB21S. See Waters and Watercourses. LANDLORD AND TENANT. Advertising: right of tenant of building to use of front wall for advertising purposes, 1916C-482. Alien enemies: effect on lease of tenant becoming alien enemy, 1917C-202. Corporations: criminal liability of cor- poration as tenant for wilful destruc- tion of premises, 1916C^65. Employee as tenant: person occupying premises of employer as part of com- pensation as tenant of owner, 1916C- 1111. LANDLORD AND TENANT Continued. Eviction: right of tenant to recover dam- ages in case of eviction by title para- mount, 1916D-1147. Fixtures: gas or electric appliances as fix- tures as between landlord and tenant, 1917B-188. value of fixtures attached by tenant as element of damages sustained by ap- propriation of property in eminent domain proceeding, 1916C-7S2. Guardians: power of guardian to lease ward's real estate, 1917A-1256. Homestead: validity of lease of homestead without joinder of wife, 1917A-7*!. Leases: construction of covenant in lease for renewal as covenant for perpetual renewal, 1916C-1096. construction of phrase "damage by ele- ments" or similar phrase as used in lease, 1917B-296. contracts for lease of theatres, 1917C- 398. implication of covenant for quiet enjoy- ment in lease, 1917C 615. lien of attorney on lease in his posses- sion connected with litigation, 1917D- 149. Mechanics' liens: lessee of premises as necessary party defendant to action to foreclose mechanic's lien, 1918B-15. lessor of premises as necessary party de- fendant to action to foreclose mechan- ic's lien, 1918B-15. mechanic's lien on realtv for improve- ments made by lessee with consent of owner, 1916C-1133. Passageways: duty of landlord to light passageway common to tenants, 1917E- 596. Eent: distinction between rent and roy- alty, 1916E-1225. effect of assignment of lease or sublease by tenant on liability for rent, 1916E- 788. inconsistent defenses in action relating to rent, 1917C-733. person to whom rent is payable, in ab- sence of governing statute in case of sale, mortgage or other grant of re- version, 1916D-192. rent as realty or personalty, 1918A-148. Set-off: right to interpose set-off or coun-< terclaim in action by landlord to re- cover demised premises, 1916D-372. Title to premises: necessity that tenant surrender possession before asserting title adverse to landlord, 1917D-548. Wharves: liability of lessor or lessee for iniuries sustained on defective wharf, 1916C-154. See also Apartment Houses; Fire Insur- ance. LANGUAGE. See Breach of Peace; Disorderly Conduct. LAPSE OF LEGACIES See Wills. INDEX TO THE NOTES. 65 LAPSE OF TIME. See Guardians. LEGACY TAXES, See Taxation. LARCENY. Animals: bees as subject of larceny, 1917B-987. wild animal as subject of larceny, 1917B-971. Automobiles: insurance of automobile against theft, 1917D-54. Corporations: liability of corporation to indictment for larceny, 1916C-463. Defenses: inducement to commit larceny with view to prosecution therefor as defense to such prosecution, 1916C 732. restoration of property or settlement or offer to settle with owner as defense to prosecution for larceny, 1916C-68. Fidelity insurance: what constitutes lar- ceny by employee within policy of fidelity 'insurance, 1917C-427. Mislaid property: larceny by finder of mis- laid property, 1917D-806. Punishment: what constitutes cruel and Tinusual punishment for larceny, 1918B-399. LAST CLEAR CHANCE. See Negligence. LAW EXAMINERS. See Attorneys. LAWFUL HEIRS. Meaning of term "lawful heirs" as used in will, 19170-1156. LAW MERCHANT. Law merchant as part of common law, 1918A-971. LAW OF THE ROAD. Law of road as applicable with respect to one using highway for play, 1917C 454. LAWS. Ordinance as "law," 19170-687. LAYMEN. See Champerty and Maintenance; Mali- cious Prosecution. LEASES. See Fire Insurance; Landlord and Tenant; Mines and Minerals; Moving Pictures. LEGACIES. See Wills. LEGAL EXECUTION. See Life Insurance. LEGISLATURE. Exclusion or inclusion of Sunday or holi- day in computation of time for ses- sion of legislature, 1917E-943. Power of legislature to punish person other than witness for contempt, 1918B-378. Service of civil process upon members of legislature, 1917B-641. See also Illegal Contracts; Statutes. LEGITIMACY. See Illegitimacy. . LENGTHY INSTRUCTIONS. See Instructions. LETTERHEADS. Evidentiary effect of use of printed letter- head or billhead, 1917B-271. LETTERS. Admissibility in evidence of self-serving letter or telegram sent in general course of business, 1917D-790. Lien of attorney on letter in his posses- sion connected with litigation, 1917D- 149. Presumption as to authenticity of letter received in reply to letter, 1917D-925. Presumption of receipt of letter, 1917E- 1058. Sufficiency of evidence to show mailing of letter, 1917E-1076. See also Anonymous Letters; Witnesses. LETTERS OF CREDIT. Liability of national bank on letter of credit, 1916D-559. LETTERS TESTAMENTARY. See Executors and Administrators. LEVEES. Effect of partial invalidity of statute re- lating to levees, 1916D-50. LIABILITY INSURANCE. See Automobiles. LIBEL AND SLANDER. Actionable words: comment on matter of public interest aa libel or slander. 1917B-409. 66 DIGEST. 1916C 1918B. LIBEL AND SLANDER Continued. Actionable words: liability for defamation of deceased person, 1917E-234. newspaper cartoon as libel, 1917E 190. publication that employer has been placed on "unfair list" of labor union as libelous, 1918B-570. statement in response to extra-judicial assertion of civil liability as action- able libel or slander, 1916E-633. words imputing immoral conduct to man as actionable libel or slander, 1917A- 1043. Corporations: liability of corporation for libel or slander, 1917D-967. liability of corporation to indictment for criminal libel, 1916C-463. Damages: loss of election or appointment to office as element of damages for libel or slander, 1918B-11'29. what is excessive verdict in action for libel or slander, 1916D-1175. Evidence: admisaibility of testimony of readers or' hearers of libel or slander as to their understanding of identity of person defamed, 1917C 36. Injunction against publication of or to compel retraction of libel, 1916D-1088. Intoxication as justification or mitigation of slander, 1916E-564. Limitation of actions: running of statute of limitations against action for libel or slander, 1917C-64. Pleading: inconsistent defenses in action for libel or slander, 1917C-737. sufficiency of complaint in action for slander with respect to averments of publication end of time and place, 1918B-504. Privileged communications: communica- tion to relative or member of family as privileged within law of libel and Blander, 1917E-895. fact that conversation is overheard by third person as affecting privilege of communication with law or slander, 1917E-699. petition for legislative or executive ac- tion as privileged within law of libel and slander, 1918A-462. privilege of attorney from prosecution for libel or slander for statements made in judicial proceedings, 1917E- 169. report of mercantile agency as privi- leged within law of libel and slander, 1916D-764. statement by fiduciary with respect to subject-matter of trust as privileged within law of libel and slander, 1917B-227. statement with respect to character of domestic servant as privileged, 1917A- 342. testimony of witness as privileged within law of libel and slander, 1918A-822. Publication of libel by communication to stenographer, 1917E-987. LIBEL AND SLANDER Continued. Repetition or republication: liability of author of libel or slander for repeti- tion or republication by others, 1916E-908. Separate actions: right to maintain sepa- rate actions for separate statements of same libel or slander by same per- son, 1917A-250. Slander of title: malice as essential ele- ment of cause of action for slander of title, 1916D-317. LICENSE. Eight of licensee to recover damages for injuries sustained on defective wharf, 1916C-149. LICENSES. Detectives: validity of statute licensing private detectives, 1917A-584. Fish and game: validity of statute requir- ing license to hunt game, 1916C-134. Foreign corporations: imposition of license tax or fee on foreign corporations, 1916C-1248. Hotels: validity of statute or ordinance li- censing or regulating hotels, lodging or rooming houses, or the like. 1916C- 290. Indictment: right to join two or more de- fendants in indictment for violation of license statute, 1918A-571. Moving pictures: licensing motion picture exhibitions, 1916C-303. Owners of premises: validity of license tax imposed on owner of premises for ex- tracting mineral or turpentine there- from or cutting timber thereon, 1918A-678. Eight of person entitled to license or evi- dence thereof to do act for which li- cense is required, 1917B-145. Statutes: effect of partial invalidity of statute imposing license tax, 1916D- 89. effect of partial invalidity of statute re- lating to licenses, 1916D-56. Transient merchants: state or municipal regulation of transient merchants, 1917E-505. See also Attorneys; Automobiles; Intoxi- cating Liquors; Motorcycles. LIENS. Inconsistent defenses in action growing out of lien on realty, 1917C-736. Priority as between purchase-money mort- gage and other lien or claim, 1916C- 945. See also Attorneys; Bonds; Chattel Mort- gages; Fire Insurance; Judgments; Logs and Lumber; Mechanics' Liens; Mortgages; Taxation; Vendor's Lien. INDEX TO THE NOTES. 67 LIFE ESTATES. Estate created by grant or devise of life estate with absolute power of dispo- sition, 1916D-400. Merger of estates where life tenant is also trustee of property, -1917A-1221. Right of life tenant to recover damages for injurv both to life estate and inheri- tance, 1916C-881. Validity of conveyance of life estate, 1917A-579. See also Remainders and Reversions. LIFE INSURANCE. Assignment: validity and effect of assign- ment by wife of insurance in her favor on life of husband, 1917B-302. Construction of application: meaning of term "severe" or "serious" illness in application for life insurance policy, 1918A-682. Construction of policy: construction of re- striction in contract of life insurance as to travel by or residence of insured, 1917A-381. death while engaged in violating law within exception in life insurance pol- icy, 1917C-592. effect of incontestable clause in life in- surance policy in case of legal execu- tion of insured, 1917D-1183. effect of incontestable clause in life pol- icv on provision against suicide, 1917D-1186. persons included within the term "fam- ily" when used to designate benefici- aries in life insurance policy. 1917C 694. Divorce: effect of divorce upon rights 9f beneficiary in life insurance policy, 1917C-269. Evidence: admissibility of coroner's .ver- dict as evidence in action on life in- surance policy, 1917B-893. Industrial insurance, 1918B-1186,. Insurable interest: relationship by affinity as supporting insurable interest in life. 1917C-158." right of insurance beneficiary having no insurable interest in life of insured to keep contract alive for his own bene- fit. 1917A-1085. selection by insured of beneficiary not having insurable interest in former's life as against public policy, 1916C 587. Parent and child: right of parties in case of insurance procured by parent on life of minor child, 1917E-643. Waiver of conditions in insurance policy by insurer's failure to inquire into ex- isting facts. 1917B-500. Workmen's compensation acts: receipt of insurance as affecting right to com- pensation under workmen's compensa- tion act, 1918B-635. LIGHTING PASSAGEWAYS. See Landlord and Tenant. LIMBS. See Workmen's Compensation Acts. LIMITATION OF ACTIONS. Accident insurance: waiver of provision in accident insurance policy limiting time to bring suit thereon, 1916C 449. Acknowledgment of debt: validity of ac- knowledgment by client of debt to attorney barred by limitations, 1916E 436. Alienation of affections: limitation against action by wife for alienation of affec- tions or criminal conversion, 1916C 743. Alien enemies: running of statute of limi- tations as between alien enemies, 1917C-213. Assault: what is civil action for assault within statutory limitation applicable thereto, 1917A-118. Attorneys: limitation of action based on negligence of attorney, 1917B-48. Death by wrongful act: commencement of running of statute of limitations against action for death by wrongful act, 1916C-713. pleading statute of limitations in action for death by wrongful act, 1916D- 1241. Fraud: record of instrument as construc- tive notice of fraud, 1917A-267. Intoxicating liquors: limitation against action for penalty for violation of in- toxicating liquor statute, 1916E-871. Judgments: when statute of limitations be- gins to run against action on judg- ment, 1916C-625. Libel and slander; running of statute of limitations against action for libel or slander, 1917C-64. Partnership: right of contribution between partners as barred by limitations, 1916D-838. Quieting title: running of statute of limi- tations against action to quiet title, 1917A-661. "Revenue laws": meaning of "revenue laws" in statute relating to limitation of actions, 1918B-216. Suspension of statute: infancy or other disability of claimant as suspending limitation of time for filing claim against municipality, 1916C-1042. part payment by principal with consent of surety as suspending statute of lim- itations'as to surety, 1916D-327. Trusts and trustees: application of statute of limitations as between trustee and beneficiary of express trust, 1917C- 1018. Wills: running of statute of limitations against action for services performed in consideration of oral agreement to compensate by will, 1918A-912. 63 DIGEST. 1916C 1918B. LIMITING ISSUES. See Appeal and Error. LINE OF TITLE. See Recording Acts. LIQUIDATED CLAIMS. See Accord and Satisfaction. LIQUIDATED DAMAGES. See Damages. LIQUORS. See Intoxicating Liquors. LISTING PROPERTY. See Taxation. LIVE STOCK. Person buying and selling live stock as "dealer," 1917A-958. See also Carriers of Live Stock; Carriers of Passengers; Fire Insurance, LOAN BROKERS. State or municipal regulation of personal property loan brokers, 1916E-618. LOANS. See Agriculture; Building and Loan Asso- ciations; False Pretenses; Infants; Mortgages. LOCAL ASSESSMENTS. See Taxation. LOCAL IMPROVEMENTS. See Municipal Corporations. LOCAL OPTION. Effect of partial invalidity of statute re- lating to local option, 1916D-62. Territory affected by adoption of local option law, 1917C-512. LOCAL REGULATIONS. See Fire Insurance. LOCAL SIGNIFICANCE. See Usages and Customs. LODGING HOUSES. Validity of statute or ordinance licensing or regulating hotels, lodging or room- ing houses, or the like, 1916C-290. LOGS AND LUMBER. By whom and for what labor or services logger's lien may be claimed, 19160- 198. Person buying and selling lumber as "dealer," 1917A-958. LONGSHOREMEN. Longshore work as employment as within purview of workmen's compensation act, 1917D-24. LOSS OF ELECTION. See Libel and Slander. LOSS OF EYESIGHT. See Eyesight. LOSS OF LIMB OR MEMBER. See Accident Insurance; Arm; Finger; Foot; Hand; Phalange. LOSS OF PROFITS. See Eminent Domain. LOSS OF USE. See Ships and Shipping. LOSS OF VESSEL. See Marine Insurance; Ships and Shipping. LOST INSTRUMENTS. Jurisdiction of action on lost instrument, 1917A-1289. Proof by parol of contents of lost or de- stroyed judicial record, 1916D-248. Sufficiency of proof to establish contents of lost instrument, 1917A-1104. See also Frauds, Statute of. LOST PROPERTY. Rights of parties with respect to mislaid property as distinguished from lost property, 1917D-803. LOTTERIES. See Gaming. LUMBER. See Logs and Lumber. LUMP SUM AWARD. See Workmen's Compensation Acts. LUNACY. See Insanity. LUNCH ROOMS. See Restaurants. INDEX TO THE NOTES. 69 LYING IN WAIT. What constitutes "lying in wait" within statute relating to homicide, 1916C 969. MACHINERY. Installation of machinery as employment within purview of workmen's compen- sation act, 1917D-24. MAGISTRATES. See Malicious Prosecution. MAIL CRANES. See Railroads. MAILS. See Letters; Post Office. MAINTENANCE. See Champerty and Maintenance. MAJORITY. See Municipal Corporations; Partnership. MALICE. Act lawful in itself not rendered unlawful by malicious motive, 1916C-438. MALICE. See also Dying Declarations; Libel and Slander. MALICIOUS INJURIES. See Bankruptcy. MALICIOUS PROSECUTION. Defenses: advice of magistrate or layman as defense to action for malicious prosecution, 1918A-498. Evidence: acquittal in criminal prosecu- tion as evidence, in action for mali- cious prosecution, of want of probable cause, 1916E-376. admissibility of evidence of plaintiffs character in action for malicious pros- ecution, 1916D-1167. Grounds of action; instituting bankruptcy or insolvency proceeding as ground for action for malicious prosecution. 1916D-909. institution of proceeding to abate nui- sance as ground for action for mali- cious prosecution, 1916E-493. Persons liable: liability as for malicious prosecution of one advising or pro- curing third person to institute pro- ceeding. 1918A-485. liability as for malicious prosecution of one who states facts to magistrate, public prosecutor or executive officer, 1918A-492. Verdict: what is excessive or inadequate verdict in action for malicious prose- cution, 1916C-250. MALPRACTICE. Bee Physicians and Surgeons. MANDAMUS. Abatement of mandamus by termination of respondent's office, 1918A-1000. Mandamus as remedy in behalf of munici- pality to compel performance of con- tractual obligation, 1918A-915. Mandamus to control issuance of liquor li- cense, 1918A-687. Mandamus to review disbarment proceed- ings, 1918B-837. MANUFACTURERS. Manufacturer as "dealer,** 1917A-958. Manufacturing as employment within pur- view of workmen's compensation act, 1917D-24. Meaning of "plant" as applied to manu- facturing establishment, 1917A-320. See also Bricks; Carriers of Passengers; Food and Drugs. MAPS. Admissibility in evidence of ancient map, 1916C-176. See also Dedication. MARINE INSURANCE. Frustration of voyage because ,of existence of war as constructive total loss within marine insurance policy, 1916D-884. MARITIME EMPLOYEES. See Workmen's Compensation Acts. MARK. Sufficiency of signature of testator to will by mark, 1917B-874. MARKET VALUE. See Damages; Sales. MARKS. See Elections. MARRIAGE. Validity of condition in deed in restraint of marriage, 1917D-282. Validity of testamentary disposition in restraint of marriage, 1913B-1141. Whether marriages within prohibited de- grees of relationship are voidable or void, 1917C-151. See also Bigamy; Breach o Promise of Marriage; Criminal Conversation; Di- vorce; Schools; Undue Influence; Wills. 70 DIGEST. 1916C 1918B. MARRIED WOMEN. See Husband and Wife. MARSHALING ASSETS. Inverse order of alienation within doc- trine of marshaling assets, 1916D- 1119. MARSHALS. Personal liability of attorney for fees of marshal, 1917B-520. MASSAGE. Validity of special regulation of treat- ment of disease by massage, 1917B- 798. MASTER AND SERVANT. Act of servant: implied authority of offi- cers, agents, or servants to contract for medical, surgical, or other attend- ance or supplies for sick or injured persons, 1918A-791. liability of attorney for negligent act of clerk or assistant, 1917B-18. liability of owner of automobile for acts of his chauffeur or agent, 1917D-1001. liability of railroad company for per- sonal injuries caused by object thrown from train by employee, 1917D-540. Animals: duty and liability of master to servant with respect to animal fur- nished by him to servant, 1917A-309. Automobiles: liability of automobile owner to chauffeur for personal injuries, 1916E-1090. Blacklisting: legality of blacklisting agreement, 1917A-644. Contract of employment: distinction be- tween "salary" and "wages," 1917B- 321. effect of partial invalidity of statute re- lating to wages, 1916D-68. term of employment and rate of com- pensation of one continuing in service after termination of contract, 1918B- 1176. tips as part of earnings or wages, 1918B-1122. what constitutes "loss" within meaning of statute terminating seamen's wages upon loss of vessel, 1916D-688. Domestic servants: liability of master for injuries to domestic servant, 1917D- 499. Employers' liability acts: effect of par- tial invalidity of emplovers' liability act, 1916D-69. employees entitled to protection under federal employers' liability act, 1916E-472; 1918B-55. existence of relation of emplover and employee under federal employers' lia- bility'aet. 1918B-46. meaning of "plant" as used in employ- ers' liability act, 1917A-324. MASTER AND SERVANT Continued. Employers' liability acts: necessity of election between federal employers' liability act and state statute or com- mon law, 1917A-1270. necessity that servant be acting in course of employment when injured in order to recover under employers' lia- bility act, 1918A-1070. right of action under federal employers' liability act as sufficient property right to warrant grant of administra- tion, 1917C-1221. validity of verdict by less than whole number of jurors in action under fed- eral employers' liability act, 1916E- 504. what statutes are impliedly repealed by state employers' liability act, 1916E- 773. "Employment": distinction between office and employment, 1917D-319. Landlord and tenant: person occupying premises of employer as part of com- pensation as tenant of owner, 1916C- 1111. Pleading: inconsistent defenses in action growing out of contract of employ- ment, 1917C-719. Privileged communications: information acquired in employment as privileged from disclosure, 1916C-701. statement with respect to character of domestic servant as privileged, 1917A- 342. Railroads: duty of railroad company to block frogs, switches and guard rails, 1916E-642. location of mail crane near railroad track as actionable negligence, 1916E- 717. running train on wrong or unusual .track as negligence, 1917A-936. running train without headlight as neg- ligence towards person on track at place other than crossing, 1918A-1181. Restraint of trade: injunction as remedy for breach of covenant by employee not to engage ' in same business, 1916C-1S7. Stopping work: effect on relation of em- ployee as such of his stopping work temporarily for his own purposes, 1918A-1194. Wharves: right of employee of third per- son to recover damages for injuries sustained on defective wharf, 1916C- 146. Workmen's compensation acts: admissibil- ity in proceeding under workmen's compensation act of statement by in- jured employee respecting cause of in- jury, 1916C-775. award or right to compensation under workmen's compensation act as vest- ing in beneficiary. 1917D-1169. award to minor under workmen's com- pensation act as affecting right of ac- tion by parent, 1916D-1172. INDEX TO THE NOTES. 71 MASTER AND SERVANT Continued. Workmen's compensation acts: "child" in workmen's compensation act as in- cluding illegitimate child, 1918B-258. constitutionality of workmen's compen- sation act, 1918B-611. disease as accident under workmen's compensation act, 1918B-309. effect of partial invalidity of workmen's compensation act, 1916D-68. increase, decrease, termination or sus- pension of allowance under workmen's compensation act, 1916E-889; 1918B- 733. intoxication of employee as precluding recovery under workmen's compensa- tion act, 1918B-6.86. liability of master for injuries to domes- tic servant under workmen's compen- sation act, 1917D-504. lump sum award under workmen's com- pensation act, 1918B-694. maritime employees as within purview of workmen's compensation act, 1918B-661. meaning of phrase "average weekly earnings" in workmen's compensation or similar act, 1918B-640. meaning of "plant" as used in work- men's compensation act, 1917A-323. notice of injury under workmen's com- pensation act, 1917D-867. occupations or employments within pur- view of workmen's compensation acts, 1917D-4. person employed in violation of law as entitled to compensation under work- men's compensation act, 1918B-679. provisions in workmen's 'compensation acts respecting medical examination of workmen, 1918B-670. railroad employees as within purview of workmen's compensation act, 1918B- 664. receipt of insurance or other benefit as affecting right to compensation under workmen's compensation act, 1918B- 635. residence of beneficiary as affecting right to compensation under work- men's compensation act, 1918B-634. review of facts on appeal under work- men's compensation act, 1918B-647. right to and effect of election with re- spect .to acceptance of provisions of workmen's compensation act, 1918B- 715. right to compensation under workmen's compensation act as dependent on loss of earning capacity. 1917E-156. total disability under workmen's com- pensation act, 1917E-240. what constitutes "loss" of eyesight within workmen's compensation act, 1918A-533. what constitutes "loss" of limb or part thereof within workmen's compensa- tion act, 1918A-536. what is accident arising out of and in course of employment within meaning MASTER AND SERVANT Continued, of workmen's compensation act, 1918B-768. Workmen's compensation acts: what is "injury" or "personal injury" within meaning of workmen's compensation act, 1918B-362. what statutes are impliedly repealed by workmen's compensation act, 1916E- 773. who is "dependent" within workmen's compensation act, 1918B-749. who is "workman" within meaning of workmen's compensation act. 1918B- 704. workmen's compensation act as applica- ble to injury arising from war. 1917C 760. workmen's compensation act as applica- ble to injury received in another juris- diction, 1918B-625. workmen's compensation act as retro- active in operation, 1918B-617. See also Burglary; Carriers of Passengers; Fidelity Insurance; Labor Combina- tions; Labor Laws; Release and Dis- charge. MATERIALMEN. See Municipal Corporations. MATERIALS. See Mechanics' Liens. MATTERS. Meaning of "all matters," 1917E-87. MEASUREMENT. Comparative weight of estimate and actual measurement, 1916E-573. MEASURE OF DAMAGES. See Damages. MEAT. See Food and Drugs. MECHANICS' LIENS. Application of payment: right of owner of building on which mechanic's lien is claimed to control applicati<~Ji of pay- ment, 1917C-588. Bankruptcy: effect of bankruptcy of owner of property on right to me- chanic's lien, 1917C-292. Consent of owner: mechanic's lien on realty for improvements made with consent but not at expense of owner, 1916C-1133. Defenses: failure to comply with contract as defense to claim for mechanic's lien, 1916E-549. loss of mechanic's lien by taking mort- gage security, 1916D-179. MEDICAL ATTENDANCE. See Master and Servant; Physicians and Surgeons. MEDICAL EXAMINATION. See Workmen's Compensation Acts. MEDICINAL PREPARATIONS. See Intoxicating Liquors. MEETINGS. See Stock and Stockholders. MEMBER OF FAMILY. See Family. MEMBERSHIP. See Beneficial Associations. MEMORANDUM. See Alteration of Instruments; Frauds, Statute of. MENTAL ANGUISH. See Damages. MENTAL CAPACITY. See Deaf and Dumb Persons; Wills. MERCANTILE AGENCIES. Report of mercantile agency as privileged within law of libel and slander, 1916D-7G4. The law of mercantile agencies. 1916D- 747. 72 DIGEST. 1916C 1918B. MECHANICS' LIENS Continued. Defenses: representations of subcontractor inducing payment to contractor as es- topping former from claiming me- chanic's lien, 1916D-1068. Foreclosure: necessary or proper parties" to action to foreclose mechanic's lien, 1918B-3. Homestead: mechanic's lien against home- stead, 1917E-747. "Plant": meaning of "plant" as used in mechanic's lien law, 1917A-328. Priority as between purchase money mort- gage and mechanic's lien, 1916C 951. Statutes: effect of partial invalidity of statute relating to mechanics' liens, 1916D-69. validity of mechanic's lien law provid- ing for taxing of attorney's fees, 1916D-1044. "Subcontractor": who is "subcontractor" within mechanic's lien law, 1917C- 801. Transportation of materials: right to me- chanic's lien for transportation of materials to be used in connection with improvement, 1916E-1030. MERCANTILE BUSINESS. to mercan- , 320. MERCHANTS. See Transient Merchants. MERGER. Merger of estates where life tenant is also trustee of property, 1917A-1221. See also Actions and Proceedings. MESSAGES. See Telegraphs and Telephones. METROPOLITAN POLICE. See Police. MICROSCOPE. See Evidence. MILITIA. or criminal liability of militiaman to person or property, Civil for injury 1917C-8. Criminal jurisdiction of state court over member of national guard, 1917A-279. Effect of partial invalidity of statute re- lating to militia, 1916D-70. Enlistment in militia as contract, 1917B- 244. Power of federal government with respect to state ritilitia, 1917B-250. See also Army and Navy. Person 959. MILK, selling milk as "dealer," 191 7A- See also Food and Drugs. MILLS. Employment in mill as within purview of workmen's compensation act, 1917D- 18. MINES AND MINERALS. "All": meaning of "all" as used with respect to minerals, 1917E-70. Injuries: employment in connection with mining as within purview of work- men's compensation act, 1917D-26. liability of mine owner or operator for injuries resulting from unguarded mining excavations, 1916E 184. Leases: covenants in mining leases for diligent prosecution of work, 191 7E- 1120. Oil: person selling oil as "dealer," 1917A- 959. statutory regulation of sale of petroleum products, 1917A-167. INDEX TO THE NOTES. 73 MINES AND MINERALS Continued. Oil: storage of oil as nuisance, 1916C-820. Partial invalidity of statute: effect of partial invalidity of statute relating to mines and minerals, 1916D 70. Partition of mining interests and mining rights, 1917D-135. Severance of estates: resulting rights of mine owner after severance of sur- face and mineral estates, 1918B-550. Taxation: validity of license tax imposed on owner of premises for extracting mineral therefrom. 1918A-678. Tenants in common: right of tenant in common to remove minerals from soil, 1918B-580. Timber: protection of timber on mineral lands, 1917A-12. MINIMUM SALARY. See Schools. MINISTERIAL OFFICERS. See Public Officers. MINORS. See Infants. MISCONDUCT OF COUNSEL. Conduct of counsel in getting inadmissible evidence before jury as ground for new trial, 1917A-441. See also Argument of Counsel. MISFEASANCE. See Corporations. MISLAID PROPERTY. See Lost Property. MISNOMER. See Judicial Sales. MISREPRESENTATIONS. See Fraud; Release and Discharge. MISSTATEMENT. See Insurance. MISTAKE. Mistake of law as ground for annulment of compromise. 1916D-347. See also Confusion of Goods. MISUSER. See Easements. MITIGATION OF DAMAGES. See Assault; Damages. MODIFICATION. See Injunctions. MONEY. Money as embraced within "contents" or similar expression in will, 1916C- 1139. See also False Pretenses; Garnishment. MONEY HAD AND RECEIVED. Inconsistent defenses in action for money had and received, 1917G-725. MONOPOLIES. Breach of contract: injunction ag remedy for breach of express covenant not to engage in same business as eovenan- tee, 1916C-187. "Commodity": legal meaning of "commod- ity," 1916D-986. Conspiracy: survival of right of action for conspiracy to restrain trade. 1916C-726. Intoxicating liquors; validity of condition in deed prohibiting sale of liquor on land granted, 1917C-112. "Market price": selling price fixed by combination or monopoly as "market price," 1918A-575. Partial invalidity of statute: effect of partial invalidity of statute relating to monopolies, 1916D-36. Set-off: right of defendant in action by monopoly on collateral attack to set off damages sustained by him on ac- count of monopoly, 1916D, 946. See also Blacklisting. MONUMENTS. See Executors and Administrators. MOOT CASE. See Actions. MORE OR LESS. Construction of term "more or less" in 'deed of realty, 1917D-155. MORTALITY TABLES. Admissibility, in action for death by wrongful act, of mortality tables to show probable duration of life, 1918A- 1021. Judicial notice of mortality tables, 191SB- 415. Mortgages: competency of attesting wit- ness to deed'or mortgage, 1917A-235. Attorneys: lien of attorney on mortgage in his possession connected with liti- gation, 1917D-149. Corporations: power of trustee of corpo- rate mortgage to release mortgaged property, 1916D-1182. DIGEST. 1916C 1918B. MORTALITY TABLES Continued. Corporations: right of creditor to object to mortgage of property of corpora- tion made without required consent of stockholders 1916C-1039. Decedents' estates: presentation of claim as condition precedent to enforcement of mortgage against decedent's estate, 1917B-156. Deficiency: personal liability for defi- ciency of person procuring mortgage to be given or assumed in name of another, 1917A-687. Equitable mortgages: construction of abso- lute deed as equitable mortgage in favor of third person, 1917C-970. Foreclosure: effect of partial invalidity of statute relating to foreclosure sales, 1916D-47. right to enjoin sale under mortgage or trust deed on ground of conflicting liens or rights or because of disputed title, 1917D-125. subrogation of purchaser at invalid foreclosure sale to rights of mortgagee or other claimant, 1917D-576. Fixtures: gas or electric appliances as fix- ture* as between mortgagor and mort- gagee, 1917B-185. Fraudulent conveyances: mortgagee as creditor entitled to attack conveyance of same or other property by mort- gagee, 1917C-953. Gifts: validity of gift of mortgage inter vivos without writing, 1916C-814. Homestead: validity and effect of mort- gage of homestead without joinder or consent of wife, 1917A-71. Husband and wife: right of married woman to mortgage property as se- curity for husband's debt, 1917B-604. Mechanics' liens: loss of mechanic's lien by taking mortgage security, 1916D- 179. mechanic's lien on realty for improve- ments made by mortgagor, 1916C 1135. Mortgagee of premises as necessary party defendant to action to foreclose me- chanic's lien, 1918B-19. Purchase-money mortgages: priority as be- tween purchase-money mortgage .and other lien or claim, 1916C-945. Bent: liability of mortgagee of leasehold interest for rent, 1916E-813. Taxation: validity of exemption from tax- ation of money loaned on mortgage security, 1916E-757. Trusts and trustees: power of trustee to mortgage trust property, 1916C-606. See also Marshaling Assets. MOTIONS. See New TriaL MOTIVE. See Malice; Municipal Corporations. MOTORCYCLES. Law of motorcycles, 1917A-218. Bights and duties of person driving auto- mobile in highway with respect to motorcycle, 1916E-676. MOTOR VEHICLES. See Automobiles; Motorcycles. MOVING BUILDINGS. See Streets and Highways. MOVING PICTURES. Construction of lease or sale of moving picture films, 1916C-307. Construction of theater lease in connection with exhibition of moving pictures, 1916C-307. English cinematograph act, 1916C-309. Statutory regulation of moving pictures, 1916C-301. Unlawful use of portrait or name in mov- ing picture, 1916C-308. See also Theaters and Amusements. MUNICIPAL CORPORATIONS. Animals: validity of ordinance regulating keeping of cattle within municipal limits, 1917E-929. Automobiles: municipal regulation of au- tomobiles with respect to equipment, use of streets, or the like, 1916E-1047. Billboards and signs: municipal regulation of billboards and signs, 1916O-491. Bricks: municipal regulation of manufac- ture of bricks, 1917B-931. Business enterprises: power of municipal- ity to construct and operate munici- pal telephone system, 1918A-380. power of municipality to engage in busi- ness of furnishing fuel to inhabitants, 1916C-742. power of municipality to operate plant for purpose of furnishing ice to inhab- itants, 1916C-1287. right of municipality to enter into busi- ness competition with citizen, 1918B- 104. Carriers of goods: validity of ordinance providing for reciprocal demurrage, 1916C-701. Carriers of passengers: municipal regu- lation of jitney buses, 1917C 1051. Charities: validity of ordinance regulating solicitation of funds for private char- ity, 1917D, 1133. Claims: infancy or other disability of claimant as suspending limitation of time for filing claim against munici- pality, 1916C-1042. notice to municipality as prerequisite to action for injury to wife or child of plaintiff, 1916E-560. sufficiency of statutory notice of claim against municipality with respect to INDEX TO THE NOTES. 75 MUNICIPAL CORPORATIONS Con- tinued. name and address of claimant, 1916E 722. Commission form of municipal govern- ment, 1917C-1103 Commission merchants: validity of mu- nicipal regulation of commission mer- chants, 1917B-631. Contracts: implied liability of municipal- ity under contract let contrary to statute requiring competitive bidding, 1917A-1263. liability of municipality or officer for failure to take from contractor bond for protection of laborers or material- men, 1917B-1089. mandamus as remedy in behalf of mu- nicipality to compel performance of contractual obligation, 1918A-915. necessity for readvertisement where bidder to whom municipal contract is awarded fails to comply with condi- tions or abandons work, 1916D-1189. powe^r of municipality to enter into partnership contract for construction of improvement, 1916C-909. rights of parties with respect to certi- fied check or other deposit made with bid, 1916C-427. Council: legality of action by majority of quorum of municipal council, 1916E- 274. right of member of municipal council -to vote on matter involving his per- sonal interest, 1917C-518. Courts: effect of partial invalidity of stat- ute relating to municipal courts, 1916D-43. Debt limit: interest on municipal bonds as factor in determining whether mu- nicipality has exceeded constitutional debt limit, 1918B-598. right of municipality to contract for local improvement with special assess- ment against persons benefited where cost exceeds authorized debt limit, 1917B-192. Dedication: necessity for acceptance where land is dedicated to public use by municipality, 1917D-452. Detectives: municipal regulation of pri- vate detectives, 1917A-584. Drainage: power of court to compel mu- nicipality to remove, construct or en- large sewer, 1917E-308. Eggs: validity and construction of ordi- nance regulating sale of eggs, 1918A- 181. Elections: effect of partial invalidity of statute relating to municipal elections, 1916D-52. Electricians: municipal regulation of elec- tricians, 1916E-694. Employees: municipal employment as within purview of workmen's compen- sation act, 1917D-26. MUNICIPAL CORPORATIONS Con- tinued. False pretenses: fraud on municipality as constituting attempt to obtain money by false pretenses, 1417B-1232. Fire insurance: effect of local ordinance on regulation on liability under fire insurance policy, 1917B-1250. Hotels, etc.: validity of statute or ordi- nance licensing or regulating hotels, lodging or rooming houses, or the like, 1916C-290. Ice-cream: municipal regulation of ice- cream, 1917B-645. Loan brokers: municipal regulation of personal property loan brokers, 1916E-618. Meat: municipal regulation of meat deal- ers, 1917A-198. Officers: abatement of mandamus against municipal officer by termination of respondent's office, 1918A-1002. power of body having authority to re- move public officer to appoint com- mittee to conduct hearing, 1916C- 1273. right of de jure office to recover from municipality salary paid to de facto officer during latter's incumbency, 1917D-1137. validity of act of municipal officer performed on holiday, 1916E-848. Ordinances: effect of partial invalidity of ordinance, 1916D-14. judicial inquiry into motives prompting enactment of legislative ordinance, 1917B-834. nature of action or proceeding for viola- tion of municipal ordinance, 1917A- 330. opinions, acts, etc., of members of coun- cil as aid to interpretation of ordi- nance, 1917B-829. ordinance as "law," 1917C 687. right of municipality to appeal from judgment in prosecution for violation of ordinance, 1917D-986. right of municipality to enjoin violation of municipal ordinance, 1916C-963. right of private person to arrest an- other for violation of municipal ordi- nance committed in his presence, 1917A-590. validity of ordinance adopted or pub- lished on holiday, 1916E-849. validity of ordinance providing that certain state of facts shall constitute prima facie evidence of violation thereof, 1916C-1062. Parades: validity of ordinance regulating parades or processions, 1916D-847. Partial invalidity of statute: effect of par- tial invalidity of statute relating to municipal corporations, 1916D-71. effect of partial invalidity of statute relating to municipal taxation, 1916D-93. 76 DIGEST. 1916C 1918B. MUNICIPAL CORPORATIONS Con- tinued. Paupers: liability of municipality to in- dividual for medical attendance fur- nished pauper, 1916D-183. Police: policeman as public officer, 1917B- 663. validity of statutes creating metro- politan police, 1917D-1112. Privies: validity of ordinance regulating out-of-door closets or privies, 1916D- 212. Public administrators: liability of munici- pality fr acts of public administra- tor, 1918D-1074. Public service corporations; review by public service commissions of munici- pal regulation of public service corpo- ration, 1916E-1083. Railroads and street railways: power of municipaJity to compel railroad or street railway to repair bridge within municipal limits, 1916C-1171. Second hand clothing, etc.: municipal regulation of use or sale of second hand clothes, bedding, or the like, 1917C-1068. Schools: liability of municipal corpora- tion or school board for defective condition of public school premises, 1917D-797. Smoke: validity of smoke ordinance or statute, 1918R-173. Streets: care required of driver of street car or other vehicle to avoid collision with 'fire apparatus, 1918A-290. constitutionality of ordinance regulat- ing speed of vehicles in streets and highways, 1916E-1067. fruit stand or similar structure on pub- lic highway as nuisance, 1916D-773. law of road as applicable with respect to one using highway for play, 1917C-454. liability as for negligence of person obstructing highway under statutory or municipal authority, 1917A-1003. liability of municipality for injuries sustained by pedestrian from coal hole in sidewalk, 1917D-494. liability of municipality for tort com- mitted in cleaning streets or in re- moval of garbage, ashes, or other refuse, 1916C-242. personal liability of public officer for injuries caused by defective condi- tion of street or highway, 1917D- 939. revocation or expiration of right of electric company to maintain poles and wires in street, 1917E-525. right of abutting owner to damages for change of street to established grade where he improves property after grade is established, 1916D-1143. speed or other highway restriction as applicable to fire apparatus, 1917D- 565. MUNICIPAL CORPORATIONS Con- tinued. Streets: statute conferring on public ser- vice commission power to fix rates for public service corporations as inter- ference with municipal control of highways, 1917C-62. stopping or leaving vehicle in danger- ous place in street as negligence pre- cluding recovery for resulting in- juries, 1917C-1229. use of highway by traction engine, 1917E-798. use of streets for moving buildings, 1917C-77. validity of inclusion of several streets in one improvement, 1916D-455. validity of ordinance prohibiting use of streets by business vehicles, 1916E- 969. Taxation: municipal property as subject to special assessment, 1917D-849. Transient merchants: municipal regulation of transient merchants, 1917E-505. Warrants: interest on city warrants 1916C-576. Waterworks: power to compel extension of water system, 1916D-285. MURDER. See Homicide. MUTUAL INSURANCE. Set-off against receiver of mutual insur- ance company, 1916D-600. NAMES. Change of name: change of name of cor- poration as releasing subscriber to stock, 1918A-79. validity and construction of statute au- thorizing change of name by indi- vidual, 1917A-437. Identity of name: conflict between pre- sumption of identity of person from identity of name and another pre- sumption, 1917E-121. delivering papers or documents to person of same name as working estoppel against owner, 1917A-562. "S": addition or omission of final "a" as affecting application of doctrine of idem sonans, 191SA-351. "Sr." or "Jr.": effect of use of "Sr." or "Jr." in connection with name, 1917A- 1211. Wills: sufficiency of signature of testator to will by wrong or assumed name, 1917B-S76. See also Bonds; Deeds; Judicial Sales; Municipal Corporations; Societies and Clubs; Trademarks and Trade Names. NAMING WITNESS. See Depositions. INDEX T.O THE NOTES. 77 NAPHTHA. Storage of naphtha as nuisance, 1916C 820. NARCOTICS. See Food and Drugs. NATIONAL BANKS. Examiners of national banks, 1916E-222. Jurisdiction of action against national bank to recover penalty for taking usurious interest, 1916D-1246. Liability of national bank on contract of guaranty, 1916D-557. Liability of national bank on letter of credit, 1916D-559. NATIONAL FOREST RESERVE. See Trees and Timber. NATIONAL GUARD. See Militia. NATIONAL PROPERTY. See Federal Government. NATURAL GAS. See Gas. NATURAL HEIRS. Meaning of term "natural heirs," 1917A 1159. . NATURALIZATION. "Child" in statute relating to naturaliza- tion of Indians as including illegiti- mate child, 1918B-256. Grounds for revocation of naturalization, 1917C-45. Naturalization of alien enemy, 1917C-214. NAVIGABLE WATERS. See Waters and Watercourses. NAVY. See Army and Navy. NAVY YARD. See Army and Navy. NECESSITY. See Judges. NEGATIVE PREGNANT. See Pleading. NEGLIGENCE. Adjoining landowners: liability of land- owner excavating on his own premises NEGLIGENCE Continued. for resulting injury to adjoining build- ing, 1917A-352. Agriculture: duty of owner to destroy noxious weeds on his land, 1917A-183. Animals: liability as for negligence of owner of uninclosed land for injury to domestic animal straying thereon, 1917A-288. liability for injuries by bees, 1917B-988. liability for injuries to or by cat, 1917A- 391. liability of owner for injuries caused by runaway horse, 1916E-1114. Army and navy: civil liability of soldier or militiaman for injury to person or property, 1917C-8. Assault: liability as for negligence of person who injures bystander while acting in self-defense, 1916C-1150. liability of sureties on bond of sheriff or constable for assault committed by officer, 1916D-923. Attorneys: liability of attorney for negli- gence or breach of duty, 1917B-3. Automobiles: application of last clear chance doctrine to collision between automobile and street car, 1916E-olo. liability of maker of automobile to third persons for defective construction thereof, 1917E-584. liability of owner of automobile for act of driver other than his servant or child, 1917E-228. liability of owner of automobile for acts of his chauffeur or agent, 1917D-1001. rights and duties of persons driving au- tomobiles in highways, 1916E-661. Banks: liability of bank examiner for breach of duty, 1916E-220. negligence of subagent as affecting lia- bility of bank for failure to protest paper received for collection, 1918A- 900. Bathing resorts: duty to patrons of pro- prietor of bathing resort or beach, 1917B-333. Bridges: liability for injury to bridge caused by vessel, 1917B-938. Buildings: liability of owner for injuries caused by collapse of building, 1917A- 478. liability of owner of building for injury to pedestrian resulting from erection of scaffold for repairing or painting building, 1916C-123. Carriers of goods: liability of carrier of goods for damages caused by act of God co-operating with its own negli- gence, 1918A-581. measure of damages for carrier's delay in transporting goods resulting in de- preciation in value, 1917D-164. validity of statute imposing penalty on carrier of goods for failure to pay claim within certain time. 1916D-335. Carriers of live stock: liability of carrier of live stock for injury to stock whore shipper loads stock improperly, 1916E- 1203. 78 DIGEST. 1916C 1918B. NEGLIGENCE Continued. Carriers of live stock: validity of statute imposing penalty on carrier of live stock for failure to pay claim within certain time, 1916D-335. Carriers of passengers: contributory negli- gence of passenger in alighting from street -car and passing to rear of it across parallel tracks without looking for approaching car, 1916E-998. contributory negligence of passenger in permitting part of his body to pro- trude from car, 1916C-1218. duty and liability of carrier to passenger taken sick during transit, 1916C-862. duty and liability of carrier with re- spect to insane passenger, 1916E-256. duty of carrier to give passenger notice of and time to make change of cars, 1917D-488 1 . duty of carrier to provide safe place for delivery of baggage to passenger, 1916C-1213. duty of railroad to put passenger off at destination not stopping station, 1916E-12SO. failure of carrier to enforce rule as affecting contributory negligence of passenger in violation thereof. 1916E- 1308. liability of carrier by water for injury to or death of passenger falling over- board, 1917D-1038. liability of carrier for injury to passen- ger caused by slipping on banana peel or the like, 1916E-1087. liability of carrier of passengers for act of God co-operating with its own negli- gence, 1918A-581. liability of carrier of passengers with re- spect to appliances purchased from manufacturer, 1916E-929. liability of carrier to person riding on drover's pass or in charge of stock, 1917E-149. ' liability of railroad company to person wrongfully riding on train by permis- sion or direction of railroad employee, 1917C-358. operating car or train with insufficient number of employees as negligence on part of carrier of passengers, 1917C- 73. presumption of negligence from collision resulting in injury to passenger, 1917C- 634. when intending passenger actually be- comes such, 1917C-1206. Chattel mortgages: right of action of chattel mortgagor against third per- son for injury, etc., to chattels, 1917D- 554. Confusion of goods: tortious or wrongful confusion of goods, 1918A-740. Contributory negligence: contributory neg- ligence as defeating recovery where previous negligence of defendant has incapacitated him from avoiding in- jury to plaintiff, 1916D-501. NEGLIGENCE Continued. Contributory negligence: contributory neg- ligence as precluding recovery for in- juries sustained on defective wharf, 1916C-157. contributory negligence in attempt to save hum'an life, 1917C-654. Death by wrongful act: admissibility in action for death by wrongful act of evidence of domestic relations of de- ceased, 1916C-671. admissibility in action for death by wrongful act of evidence of habits or physical condition of deceased, 1916E- 652. admissibility in action for death by wrongful act of evidence of property inherited by plaintiff from deceased, 1916D-340. admissibility in action for death by wrongful act of mortality tables to show probable duration of life, 1918A- 1021. admissibility of coroner's verdict as evi- dence in action for death by wrongful act, 1917B-897. "child" in statute relating to death by wrongful act as including illegitimate child, 1918B-255. - commencement of running of statute of limitations against action for death by wrongful act, 1916C-713. damages for death by intoxication, 1917B-530. death of human being as element of re- covery in civil action between third persons,. 1917B-886. pleading statute of limitations in action for death by wrongful act, 1916D- 1241. right of action within jurisdiction as sufficient property right to warrant grant of administration, 1917C-1217. right of parent to recover for death of illegitimate child, 1916C-720. right of person other than parent to re- cover for death of illegitimate child, 1916E-454. validity of statute providing for sur- vival of action for personal injuries after death of person injured, 1917E- 1171. Detectives: civil liability of private detec- tive or his employer, 1917A-584. Electricity: duty and liability of one maintaining electric wires in reference to children, 1917A-S95. liability of electric light company for injuries resulting from condition of inside wiring or apparatus, 1917A- 1175. Escrows: effect on rights of parties of un- authorized delivery by escrow holder, 1917E-427. Explosions and explosives: injury to prop- erty by concussion or vibration result- ing from blasting, 1916C-1176. liability as for negligence of one throw- ing awav small quantity of explosive, 1917B-345. INDEX TO THE NOTES. NEGLIGENCE Continued. Fidelity insurance: what constitutes negli- gence of employee within policy of fidelity insurance, 1917C-434. Fire department: care required of driver of street-car or other vehicle to avoid collision with fire apparatus. 1918A- 290. Fire-escapes: duty to maintain fire-escapes. 1916E-629. Fire insurance: liability of fire insurance patrol in tort, 1917E-684. negligence of watchman on premises as forfeiting fire insurance policy, 1917D- 822. Fires: liability for fire caused by station- ary engine, furnace, or the like, 1917C-771. validity of statute making railroad abso- lutely liable for damage by fire, 1918A- 632. Food and drugs: liability for injury result- ing from foreign substance in bever- age, 1917B-575. liability for injury resulting from for- eign substance in food, 1918B-225. Gas: liability of gas company for injury caused by escape of gas from pipes, 1916E-277. Hospitals and asylums: right to damages for unlawful detention in hospital or institution for insane, 1917C-162. Husband and wife: right of husband to re- cover for loss of consortium in action for personal injuries to wife where statute gives wife right of action for such injuries, 1916C-886. Imputed negligence: negligence of driver as imputable to occupant of automo- bile, 1916E-28. negligence of driver as imputable to oc- cupant of vehicle, 1916E-685. Infants: liability for injury to infant steal- ing ride on vehicle, 1917D-379. Innkeepers: liability of innkeeper to guest for injuries sustained by latter in fire, 1917A-143. Insurance agents: liability of agent to in- surance company for failure to collect premium, 1916D-651. liability of agent to insurance company for issuing policy in violation of in- struction, 1917B-493. liability of insurance agent to owner of property for failure to procure insur- ance, 1918B-1037. Irrigation: liability of owner of irrigation ditch for damages arising from its con- struction and maintenance, 1916D-981. Landlord and tenant: duty of landlord to light passageway common to tenants, 1917E-596. Life estates: right of life tenant to re- cover damages for injury both to life estate and inheritance, 1916C-881. Master and servant: admissibility in pro- ceeding under workmen's compensation act of statement by injured employee respecting cause of injury, 1916C-775. NEGLIGENCE Continued. Master and servant: award or right to compensation under workmen's com- pensation act as vesting in beneficiary, 1917D-1169. award to minor under workmen's com- pensation act as affecting right of ac- tion by parent, 1916D-1172. "child" in workmen's compensation act as including illegitimate child, 1918B- 4MO* constitutionality of workmen's compen- sation act, 1918B-611. disease as accident under workmen's compensation act, 1918B-309. duty and liability of master to servant with respect to animal furnished by him to servant, 1917A-309. duty of railroad company to block frogs, switches and guard rails, 1916E-642. effect on relation of employee as such of his stopping work temporarily for his own purposes, 1918A-1194. employees entitled to protection under federal employers' liability act, 1916E- 472; 1918B-55. existence of relation of employer and employee under federal employers' lia- bility act, 1918B-46. increase, decrease, termination or sus- pension of allowance under workmen's compensation act, 1916E-8S9; 1918B- 733. intoxication of employee as precluding recovery under workmen's compensa- tion act, 1918B-686. liability of automobile owner to chauf- feur for personal injuries, 1916E-1090. liability of master for injuries to domes- tic servant, 1917D-499. location of mail crane near railroad track as actionable negligence, 1916E- 717. lump sum award under workmen's com- pensation act, 1918B-694. maritime employees as within purview of workmen's compensation act, 1918B- 661. meaning of phrase "average weekly earnings" in workmen's compensation or similar act, 1918B-640. meaning of "plant" as used in employers' liability act, 1917A-324. meaning of "plant" as used in workmen's compensation act, 1917A-323. necessity of election between federal employers' liability act and state stat- ute or common law, 1917A-1270. necessity that servant be acting in course of employment when injured in order to recover under employers' liability act, 1918A-1070. notice of injury under workmen's com- pensation act, 1917D-867. occupations of employments within pur- view of workmen's compensation acts, 1917D-4. person employed in violation of law aa entitled to compensation under work- men's compensation act, 1918B-679. 80 DIGEST. 1916C 1918B. NEGLIGENCE Continued. Master and servant: provisions in work- men's compensation acts respecting medical examination of workmen, 1918B-670. railroad employees as within purview of workmen's compensation act, 191SB- 664. receipt of insurance or other benefit as affecting right to compensation under workmen's compensation act, 1918B-* 635. residence of beneficiary as affecting right to compensation under workmen's compensation act, 1918B-634. review of facts on appeal under work- men's compensation act, 1918B-647. right to and effect of election with re- spect to acceptance of provisions of workmen's compensation act, 1918B- 715. right to compensation under workmen's compensation act as dependent on loss of earning capacity, 1917E-156. running train on wrong or unusual track as negligence, 1917A-936. tips as part of earnings or wages, 1918B- 1122. total disability under workmen's com- pensation act, 1917E 240. validity of verdict by less than whole number of jurors in action under fed- eral employers' liability act, 1916E- 504. what constitutes "loss" of eyesight within workmen's compensation act, 191SA-533. what constitutes "loss" of limb or part thereof within workmen's compensa- tion act, 1918A-536. what is accident arising out of and in course of employment within meaning of workmen's compensation act, 191SB- 768. what is "injury" or "personal injury" within meaning of workmen's compen- sation act, 1918B-362. what statutes are impliedly repealed by state employers' liability or workmen's compensation act, 1916E-773. who is "dependent" within workmen's compensation act, 1918B-749. who is "workman" within meaning of workmen's compensation act, 1918B- 704. workmen's compensation act as appli- cable to injurv arising from war, 1917C-760. workmen's compensation act as appli- cable to injury received in another jurisdiction, 1918B-625. workmen's compensation act as retro- active in operation, 1918B-617. Mines and minerals: liability of mine owner or operator for injuries result- ing from unguarded mining excava- tions, 1916E-484. Motorcycles: liability for negligent opera- tion of motorcycle, 19I7A-218. NEGLIGENCE Continued. Municipal corporations: notice to munici- pality as prerequisite to action for in- jury to wife' or child of plaintiff, 1916E-560. sufficiency of statutory notice of claim against municipality with respect to name and address of claimant, 1916TJ- 722. Owners of premises: liability of landowner for injury to trespassing child on ac- count of unguarded pond, pool, well, etc., 1916C-1085. liability of proprietor for injuries re- ceived in turnstile, revolving door, or swinging door, 1916D-1235. Physicians and surgeons: consent as affect- ing right to perform surgical operation, 1916C-1105. failure of surgeon to make test before operation as malpractice, 1918A-883. indemnity insurance against liability of physician for malpractice, 1916E-1159. liability of physician for malpractice in making wrong diagnosis, 1917D-708. what is excessive or inadequate verdict in action against physician for mal- practice, 1916C-1078. Pleading: inconsistent defenses in action growing out of negligence, 1917C 736. Public officers: neglect of duty as affect- ing right of public officer to salary, 1918B-435. personal liability of public administrator for injury to property administered, 1918B-1072. Eailroads: liability of railroad company for injuries caused bv operation of hand car, 1916E-321. liability of railroad company for per- sonal injuries caused by objects thrown or falling from train, 1917D-540. liability of railroad to person on or near right of way injured by suction from passing train, 1918A-872. running train without headlight as neg- ligence towards person on track at place other than crossing, 1918 A-l 181. Eelease and discharge: avoidance of re- lease of claim for personal injuries on account of misstatements by physician as to nature of injuries. 1918A-358. Kestaurants: liability as for negligence of proprietor of restaurant or lunch room to person injured by eating therein, 1916D-921. Schools: liability of municipal corporation or school board for defective condition of public school premises, 1917D-797. Ships and shipping: right to recover dam- ages for loss of use of vessel resulting from collision without total loss, 1917B-999. Street railways: application of last clear chance doctrine to collision between automobile and street-car, 1916E-515. liability of street railway company for injuries caused by striking pedestrian in rounding curve, 1916E-679. INDEX TO THE NOTES. 81 NEGLIGENCE Continued. Streets and highways: application of doc- trine of res ipsa loquitur to injury to person in highway caused by fall of wall or portion thereof, 1916E-1073. law of road as applicable with respect to one using highway for play, 1917C- 454. legal liability for injuries sustained by pedestrian from coal hole in sidewalk, 1917D-494. liability as for negligence of person ob- structing highway under statutory or municipal authority, 1917A-1003. liability for injuries caused by door or gate opening outwards in street, 1916E-458. liability for injuries resulting from use of highway by traction engine, 1917E 798. liability of municipality for tort com- mitted in cleaning streets or in re- moval of garbage, ashes, or other refuse, 1916C-242. personal liability of public officer for in- juries caused by defective condition of street or highway, 1917D-939. -'-stopping or leaving vehicle in dangerous place in street as negligence preclud- ing recovery for resulting injuries, 1917C-1229. use of streets for moving buildings, 10170-77. Telegraphs and telephones: duty of tele- graph company to notify sender of delay in transmission of delivery of message, 1917C-545. liability of telegraph company for dis- closure of contents of message, 1916C 727. liability of telegraph company for re- fusal to accept message for transmis- sion, 1916D-467. Tenants in common: right of one tenant in common to sue for damages for injury to premises, 1918A-608. Theaters and amusements: liability of or- ganizer or promoter of public enter- tainment not given for profit for per- sonal injuries, 1917E-238. "Waters and watercourses: duty of one ob- structing natural watercourse to an- ticipate extraordinary freshets or floods, 1918A-1114. liability of one using stream to float timber for resulting injuries to ripar- ian owner, 1918A-732. "Waterworks and water companies: liabil- ity for injuries caused by underground water pipes, 1916C-1050. "Wharves: injuries to person on or about wharves, docks, or piers, 1916C-139. See also Act of God; Argument of Counsel; Bankruptcy; Damages; Descent and Distribution; Imprisonment for Debt; Subrogation; Taxation; Telegraphs and Telephones; Torts. NEGOTIABLE INSTRUMENTS. See Bills and Notes. NEGROES. Separation of white and colored pupils for purposes of education, 1916C-806. NEUTRAL PORTS. See War. NEUTRAL PROPERTY. See International Law. NEWSPAPERS. Communication to newspaper reporter as privileged from disclosure, 1916C-705. Newspaper cartoon as libel, 1917E-190. Prejudicial newspaper publication as ground for continuance of criminal case, 1918A-449. Publication in single edition of newspaper as sufficient publication, 1917E-994. NEW TRIAL. Admission of incompetent evidence as ground for granting of new trial by trial court, 1917D-545. Amendment of motion for new trial, 1917D-104. Exclusion or inclusion of Sunday or holi- day in computation of time for motion for new trial, 1917E-934. Power of court to open or vacate order de- termining motion for new trial, 1917C- 1151. Statutory right to new trial in ejectment, 1916E-556. See also Appeal and Error; Jury; Miscon- duct of Counsel. NITROGLYCERINE. Storage of nitroglycerine as nuisance, 1916C-820. NOMINAL HOLDERS. See Bills and Notes. NONACCESS. See Husband and Wife. NON COMPOS MENTIS. See Insanity. NONEXISTENCE. See Parties to Actions. NONEXPERT EVIDENCE. See Evidence. 82 DIGEST. 1916C 1918B. NONTNTOXICATING LIQUORS. See Intoxicating Liquors. NUISANCES. NON-NAVIGABLE WATERS. See Waters and Watercourses. NONOCCUPATIONAL DISEASE. See Disease. NONEESIDENTS. See Attachment; Automobiles; Partner- ship. NONSUPPORT. See Husband and Wife. NONUSEB. See Easements. NORMAL SCHOOLS. Validity of expenditure of school funds for maintenance of normal school, 1917C-921. NOTABY PUBLIC. Personal liability of attorney for notarial fees, 1917B-524. Right of woman to be notary public, 1917D-534. NOTES. See Bills and Notes. NOTICE. Alien enemies: sufficiency of notice of ac- tion against alien enemy, 1917C-212. Injunctions: notice as prerequisite to issu- ance of temporary restraining order, 1917B-126. Sundays and holidays: exclusion or inclu- sion of Sunday or holiday in compu- tation of time for publication of no- tice, 1917E-942.. exclusion or inclusion of Sunday or holi- day in computation of time for service and return of notice, 1917E-935. validity of notice served on holiday, 1916E-850. Telephones: validity of notice given by telephone, 1917B-903. Written notice: necessity that notice re- quired or authorized by law be in writing, 1916E-1147. See also Accident Insurance; Adverse Possession; Bills and Notes; Carriers of Passengers; Depositions; Judicial Sales; Municipal Corporations; Re- cording Acts; Stock and Stockholders; Suretyship; Taxation; Workmen's Com- pensation Acts. NOXIOUS WEEDS. See Agriculture. Bees: keeping bees as nuisance, 1917B- 991. Brick kiln as nuisance, 1917E-420. Carriers of passengers: act of carrier in permitting cars to be overcrowded as constituting nuisance, 1918A-994. Cemeteries: equitable relief against ceme- tery as nuisance, 1917B-563. Corporations: liability of corporation to indictment for committing nuisance, 1916C-463. Estoppel: acquiescence in or consent to erection of structure as precluding ob- jection thereto as nuisance, 1916C- 1235. Explosives: storage of gasoline or other explosive as nuisance, 1916C-820. Fertilizer: place for storing or mixing fer- tilizer as nuisance, 1917D-1152. Fruit stand or similar structure on public highway as nuisance, 1916D-773. Injunctions: right of state to enjoin pri- vate nuisance which is also crime, 1916C-455. Malicious prosecution: institution of pro- ceeding to abate nuisance as ground for action for malicious prosecution, 1916E-493. Partial invalidity of statute: effect of par- tial invalidity of statute relating to nuisances, 1916D-77. Privies: validity of statute or ordi- nance regulating out-of-door closets or privies, 1916D-212. NUMBER. See Automobiles. NUMEROUS INSTRUCTIONS. See Instructions. NUNCUPATIVE WILLS. See Wills. NURSING. State regulation of practice of nursing, 1917C-168. OATHS. Validity of oath administered by tele- phone, 1917B-905. OBLIGEE. See Bonds. OBSCENITY. Criminal liability of corporation for mail- ing obscene matter, 1916C-465. Inducement to commit offense of selling obscene matter with view to prosecu- tion therefor as defense to such prose- cution. 1916C-734. See also Breach of Peace. INDEX TO THE NOTES. 83 OBSTRUCTIONS. See Streets and Highways; Waters and Watercourses. OBTAINING CLOTHES. Effect on relation of employee as such, of stopping work temporarily to obtain clothes, 1918A-1196. OBTAINING TOOLS. Effect on relation of employee as such of stopping work temporarily to obtain tool, 1918A-1197. OCCUPANCY. See Fire Insurance. OCCUPATIONAL DISEASE. See Disease. OFFENSIVE LANGUAGE. See Breach, of Peace; Disorderly Conduct. OFFER AND ACCEPTANCE. See Contracts. OFFER OF SETTLEMENT. See Embezzlement; Larceny. OFFICER OF THE REVENUE. Legal meaning of "officer of the revenue/' 1918B-220. OFFICERS. See Army and Navy; Corporations; Jury; Municipal Corporations; Probation Officers; Public Officers. OIL. See Mines and Minerals. OLEOMARGARINE. Person selling oleomargarine as "dealer," 1917A-&59. OPEN AND CLOSE. See Trial. OPENING JUDGMENTS. See Judgments; New Trial. OPERATIONS. See Physicians and Surgeons. OPINION. See Fraud. OPINION EVIDENCE. See Evidence. OPINIONS. See Courts; Municipal Corporations. OPIUM. See Food and Drugs. OPTICIANS. See Physicians and Surgeons. OPTIONS. Option to purchase realty as violating rule against perpetuities, 1916D-577. OPTOMETRISTS. See Physicians and Surgeons. OR. Construction of "and" as "or," and vice versa, in construing will, 1917C-306. ORAL TESTIMONY. See Evidence. "OR BEARER." See Alteration of Instruments. "ORDER." See Alteration of Instruments. ORDERS. Proof by parol of contents of lost or de- stroyed order, 1916D-254. Validity of order of court sent by tele- phone, 1917B-903. See also Appearance; New Trial; Public Service Commissions. ORDINANCES. See Municipal Corporations. ORDINARY REVENUE. Legal meaning of "ordinary revenue," 1918B-208. "OR ORDER." See Alteration of Instruments. ORGANIZERS. See Theaters and Amusements. ORPHAN ASYLUMS. Validity of expenditure of school funds for maintenance of orphan asylum, 1917C-924. DIGEST. 1916C 1918B. OSTEOPATHY. PAINTING. Validity of special regulation of oste- opathy, 1917B-798. OTHERWISE. Legal meaning of "otherwise," 1916C 644. OUT-OF-DOOR CLOSETS. See Health. OUTSTANDING TITLE. See Tenants in Common. OVERHANGING TREES. See Adjoining Landowners. OVERHEARING COMMUNICATION. See Libel and Slander; Witnesses. OVERHEATING. See Fire Insurance. OWNERSHIP. Admissibility of direct opinion of witness as to ownership of personalty, 1916D- 289. See also Automobiles. OWNERS OF PREMISES. Coal holes: liability of owner of premises for injuries sustained by pedestrian from coal hole in sidewalk, 1917D- 495. Collapse of building: liability of owner for injuries caused by collapse of build- ing, 1917A-478. Intoxication: liability of owner of prem- ises for death by intoxication, 1917B- 540. Mechanics' liens: owner of premises as necessary party defendant to action to foreclose mechanic's lien, 1918B-11. Ponds, etc.: liability of landowner for in- jury to trespassing child on account of unguarded pond, pool, well, etc., 1916C- 1085. Prostitution: validity and construction of statute making owner of premises liable for use thereof for purpose of prostitution, 1917A-459. Eevolving doors, etc.: liability of pro- prietor for injuries received in turn- stile, revolving door, or swinging door, 1916D-123-". Scaffolding: liability of owner of building for injury to pedestrian resulting from erection of scaffold fr repairing or painting building, 1916C-123. Taxation: validity of license tax imposed on owner of premises for extracting mineral or turpentine therefrom or cutting timber thereon. 1918A-678. See also Adjoining Landowners. Painting as employment within purview of workmen's compensation act, 1917D- 26. PARADES. Validity of statute or ordinance regulating parades or processions, 1916D-847. PARALLEL TRACKS. Sec Carriers of Passengers. PARDONS. Pardon as affecting -right to disbar at- torney for criminal misconduct, 1917A- 1226. Validity of contract to procure pardon or parole, 1917D-890. PARENT AND CHILD. Alienation of affections: liability of pa- rent for alienation of affections, 1917E-1017. Custody and control of child: contract by parent for services of minor child as binding latter, 1918B-827. finality of order in habeas corpus pro- ceeding involving custody of child, 1916D-511. Duress: validity and effect of contract of parent induced by threats of criminal prosecution against child, 1917C-1026. "Father": as including stepfather, 1917B- 1118. Gifts: presumption and burden of proof of undue influence in case of conveyance inter vivos by parent to child, 1918B- 457. Libel and slander: communication to pa- rent as privileged within law of libel and slander, 1917E-896. Life insurance: rights of parties in case of insurance procured by parent on life of minor child, 1917E-643. Negligence of child: liability of owner of automobile for negligence of child driving car. 1917D-1002. Seduction of child: right of mother to maintain action for daughter's seduc- tion, 1916E-1275. Surgical operation: consent of parent as necessary to operation on child, 1916C 1107. Workmen's compensation acts: award to minor under workmen's compensation act as affecting right of action by parent, 1916D-1172. parent as "dependent" within workmen's compensation act, 1918B-752. See also Adoption; Illegitimacy; Infants. PARKS AND PUBLIC SQUARES. Dedication of park or square by selling lots according to map or plat, 1917B- 197. INDEX TO THE NOTES. 85 PARKS AND PUBLIC SQUARES Con- tinued. Effect of partial invalidity of statute re- lating to parks in cities, 1916D-76. Effect of partial invalidity of statute re- lating to parks in counties, 1916D-41. Interest in land acquired by condemnation for park purposes as easement or fee, 1918A-812. PAROL EVIDENCE. Acknowledgment: parol evidence to show falsity of certificate of acknowledg- ment, 1917A-373. Bills and notes: parol evidence of condi- tional delivery of bill or note, 1917D- 1049. Contracts: admissibility of parol evidence to show illegality of contract, 1917D- 426. Frauds, statute of: proof by parol of con- tents of lost memorandum required by statute of frauds, 1916E-173. Payment: admissibility of parol evidence to show place of payment under con- tract silent in that respect, 1916E- 366. Records: proof by parol of contents of lost or destroyed judicial record. 1916D- 248. Statutes: admissibility of extrinsic evi- dence with respect to approval or dis- approval of bill by executive, 1917C- 836. PAROL GIFTS. See Gifts. PAROLE. See Pardons. PARTIAL INVALIDITY. See Antenuptial Agreements; Statutes. PARTIES TO ACTIONS. Alienation of affections: parties to action by wife for alienation of affections or criminal conversation, 1916C 750. Amendments: right of plaintiff to amend so as to change capacity in which he sues from representative to individual one or vice versa, 1916C-401. right to amend action by adding new parties plaintiff, 1916C-391. Bills and notes: right of action thereon of nominal holder of promissory note, 1917A-490. Mechanics' liens: necessary or proper par- ties to action to foreclose mechanic's lien, 191SB-3. Nonexistence of plaintiff (not corporation) as defense to action, 1917D-1193. Penalties: who may bring action for pen- alty or violation of intoxicating liquor statute, 1916E-871. See also Appeal and Error; Argument of Counsel; Criminal Law; Judicial Sales; Jury; Res Judicata; Subroga- tion. PARTITION. Partition of mining interests and mining rights, 1917D-135. Testamentary restriction on right of ten- ant in common to partition, 1916D- 1270. Validity of service by publication in ac- tion for partition, 1916E-1002. PARTNERSHIP. Agreement: injunction as remedy for breach of covenant in partnership agreement not to engage in same business, 1916C-189. Alien enemies: effect on contract of part- nership of partner becoming alien enemy, 1917C-202. Attorneys: liability of attorney for negli- gent act of partner, 1917B-16. "Citizen" as including partnership, 1917C- 878. Competitive business: right of partner to carry on business in competition with firm, 1916E-993. Contribution: right of contribution be- tween partners, 1916D-820. Creation: intent as essential to creation of partnership, 1916E-440. Majority: power of majority of partners to bind firm, 1916C-110. Municipal corporations: power of munici- pality to enter into partnership con- tract for construction of improvement, 1916C-909. Service of process: validity of statute pro- viding for service on agent of non- resident partnership, 1916D-813. Surviving partners: right of surviving partner to purchase deceased partner's interest, 1917C-946. when surviving partner is chargeable as executor de son tort, 1917E-22. PART PAYMENT. See Accord and Satisfaction; Limitation of Actions. PARTY WALLS. Liability of adjoining landowner for use of party wall in absence of agreement to contribute, 1916E-1165. Termination of right to maintenance of party wall, 1916C-374. PASSAGEWAYS. See Landlord and Tenant. PASSENGERS. See Carriers of Passengers. PASSES. Effect of partial invalidity of statute re- lating to passes, 1916D-8o. See also Carriers of Passengers. 86 DIGEST. 1916C 1918B. PATEOL. See Fire Insurance. PERJURY. See Trial. PAUPERS. See Poor and Poor Laws. PAWNBROKERS. Fraud on pawnbroker as constituting at- tempt to obtain money by false pre- tenses, 1917B-1236. Pawnbroker as "dealer," 1917A-960. See also Loan Brokers. PAYMENT. Admissibility of parol evidence to show place of payment under contract silent in that respect, 1916E-366. Payment to prevent apprehended injury to business as payment under duress, 1918B-516. Bight of third person to control applica- tion of payment, 1917C-582. What constitutes payment of note at bank where it is made payable, 1917A-508. See also Appeal and Error; Bills and Notes; Building Contracts; Checks; Facility of Payment; Tender; Threats. PEDDLERS. Peddler as "dealer." 1917A-953. See also Hawkers and Peddlers. PEDESTRIANS. See Streets and Highways. PENAL INSTITUTIONS. See Prisons and Prisoners. PENALTIES. See Bail; Fines and Penalties. PENNY ARCADES. See Theaters and Amusements. PENSIONS. Effect with respect to pension of pensioner becoming inmate of soldiers' home, 1916C-854. Pension of public officer as affected by his bankruptcy. 1916D-629. PER CAPITA. See Wills. PEREMPTORY CHALLENGES. See Jury. PERFORMANCE. See Contracts. PERPETUITIES. Gift for establishment of home for persons of particular class as within rule against perpetuities, 1917E-866. Option to purchase realty as violating rule against perpetuities," 1916D-577. PERSON. Corporation as "person" within penal stat- ute, 1916C-462. PERSONAL INJURY. What is "personal injury" within meaning of workmen's compensation act, 1918B- 362. See also Argument of Counsel; Automo- biles; Negligence. PERSONAL PROPERTY. Admissibility of direct opinion of witness as to ownership of personaltv, 191 6D- 289. Inconsistent defenses in action relating to personal property, 1917C-725. Price paid for personalty as evidence of value th'ereof, 1916D-797. Kent as realty or personalty, 1918A-148. See also Damages; Eminent Domain; Guardians; Husband and Wife; Loan Brokers. PERSONAL REPRESENTATIVES. See Executors and Administrators; Wit- nesses. PERSONAL SERVICE. See Process. PERSONAL SERVICES. See Fraud; Parent and Child. PER STIRPES. See Wills. PETITIONS. See Libel and Slander. PETROLEUM. See Mines and Minerals. PHALANGE. "What constitutes "loss" of phalange with- in workmen's compensation act, 1918A- 539. PHARMACISTS. See Druggists. INDEX TO THE NOTES. 87 PHOTOGRAPHS. Personal liability of attorney for expense of taking photographs, 1917B-526. PHYSICAL CONDITION. See Death by Wrongful Act. PHYSICAL EXAMINATION. Power of court to compel submission to physical examination, 1917D-351. Validity of health regulation relating to school children, 1917A-765. PHYSICAL FACTS. See Evidence. PHYSICIANS AND SURGEONS. Christian Science: special regulation of Christian Science or other drugless treatment of disease, 1917B-798. Corporations: criminal liability of corpo- ration for advertising practice of medicine, 1916C-465. License statutes: effect of partial invalid- ity of statute relating to licensing of physicians and surgeons, 1916D-57. Malpractice: failure of surgeon to make test before operation as malpractice, 1918A-883. indemnity insurance against liability of physician for malpractice, 1916E-1159. liability of physician for malpractice in making wrong diagnosis, 1917D-708. what is excessive or inadequate verdict in action against physician for mal- practice, 1916C-1078. Ocular diseases: special regulation of per- sons treating ocular diseases, 1917B- 803. Paupers: liability of municipality to indi- vidual for medical attendance fur- nished pauper, 1916D-183. Eelease and discharge: avoidance of re- lease of claim for personal injuries on account of misstatements by physician- as to nature of injuries, 1918A-358. Surgical operations: consent as affecting right to perform surgical operation, 1916C-1105. Violation of statute: inducement to vio- late law regulating practice of medi- cine with view to prosecution there- for as defense to such prosecution, 1916C-733. Witnesses: right of physician who at- tended testator before his death to testify as to his mental condition, 1918A-1050. See also Master and Servant. PIERS. See Wharves. PILE DRIVING. Pile driving as employment within pur- view of workmen's compensation act, 1917D-26. PILOTS. Effect of partial invalidity of statute re- lating to pilots, 1916D-78. PIPES. See Waterworks and Water Companies. PLACE OF MARK. See Elections. PLACE OF TRIAL. See Trial; Venue. PLANT. Meaning of "plant" as used with refer- ence to business, 1917A-317. See also Fixtures. PLATS. See Dedication. PLAYWRIGHTS. Contracts -with playwrights, 1917C-397. PLEADING. Alienation of affections: pleading in ac- tion against parent for alienation of affections, 1917E-1020. Alteration of instruments: necessity of pleading ratification or waiver of alteration of instrument, 1917D-345. Amendment: amendment of pleading where plaintiff in action is nonexistent, 1917D-1197. right of plaintiff to amend so as to change capacity in which he sues from representative to individual one or vice versa, 1916C-401. right to amend action by adding new parties plaintiff, 1916C-591. service of new answer to amended bill or complaint, 1918A-205. Attorneys: liability of attorney to client for negligence with respect to plead- ings, 1917B-25. "Child" in pleading as including illegiti- mate child, 1918B-261. Divorce: pleading condonation in action for divorce, 1918A-660. Executors and administrators: necessity that executor or administrator in ac- tion brought by him allege that suit is brought in representative capacity, 1916E-114. Felony: exclusion or inclusion of Sunday or holiday in computation of time for filing pleading, 1917E-939. Impotency: necessity that impotency be pleaded specially in action for per- sonal injuries, 1916C-383. Inconsistent defenses within rules of pleading, 1917C-704. DIGEST. 1916C 1918B. PLEADING Continued. Intoxicating liquors": pleading in action for penalty for violation of intoxica- ting liquor statute, 1916E-872. "Law": ordinance as "law" within mean- ing of phrase "contrary to law" in pleading, 1917C-691. Libel and slander: sufficiency of complaint in action for slander with respect to averments of publication and of time and place, 19186-^504. Limitation of actions: pleading statute of limitations in action for death by wrongful act, 1916D-1241. Lost pleading: proof by parol of contentg of lost or destroyed pleading, 1916D- 253. Negatives pregnant, 1917A-668. Quieting title: right to affirmative relief on cross bill in suit to quiet title, 1917D-674. Sales: pleading in action for breach of warranty in sale of seed, 1918B-86. Set-off: waiver of failure to reply to coun- terclaim, 1917D-619. Sham pleading: striking out general denial as sham or frivolous, 1917D-1177. See also Appearance. PLEA OF GUILTY. See Evidence. PLEASUEE. See Damages. PLEDGE. Liability of civilian for purchasing or re- ceiving in pledge public property from soldier or sailor, 1918B-523. Right of married woman to pledge prop- erty as security for husband's debt, 1917B-604. See also Pawnbrokers; Stock and Stock- holders. PLUMBERS. Plumber as "dealer," 1917A-960. POLES. See Electricity; Telegraphs and Tele- phones. POLICE. Effect of partial invalidity of statute re- lating to municipal police department, 1916D-75. Finger print as part of police record, 1917A-418. Policeman as public officer, 1917B-663. Validity of statutes creating metropolitan police, 19170-1112. POLICIES. See Insurance. POLL TAXES. See Taxation. PONDS AND POOLS. Liability of landowner for injury to tres- passing child on account of unguarded pond, pool, well, etc., 1916C-10S5. POOE AND POOR LAWS. "Child" in statute relating to poor as in- cluding illegitimate child, 1918B-2.37. Liability of municipality to individual for medical attendance furnished pauper, 1916D-183. Who is pauper or poor person within poor laws, 1916C-389. PORTERS. See Average Weekly Earnings. PORTRAITS. Measure of damages for loss or destruc- tion of portraits having no market value, 1917B-579. POSSESSION. See Bills and Notes; Frauds, Statute of; Intoxicating Liquors; Landlord and Tenant. POSTHUMOUS CHILD. Posthumous child as "dependent" within workmen's compensation act, 1918B- 755. POST OFFICE. Inducement to violate .postal law with view to prosecution therefor as de- fense to such prosecution, 1916C-733. Validity of espionage act, 1918B-1011. What constitutes cruel and unusual pun- ishment for use of mails for fraud- ulent purpose, 1918B-401. See also Letters. POVERTY. See Argument of Counsel. POWDER. See Explosions and Explosives. POWER OF ATTORNEY. Revocation of agency under power of at- torney by death of principal, 1917E- 383. PRACTICE. Effect of partial invalidity of statute re- lating to practice in civil cases, 1916D-78. Effect of partial invalidity of statute re- lating to practice in criminal cases, 1916D-30. INDEX TO THE NOTES. 89 PRACTICE OF LAW. See Attorneys. PRESIDENT. See Corporations. PREAMBLE. See Statutes. PREDECEASED CHILD. See Wills. PREDECESSOR. See Corporations. PRE-EXISTING DEBTS. See Bills and Notes; Sales; Vendor and Purchaser. PREFERENCE. See Stock and Stockholders. PREFERENTIAL VOTING. See Elections. PREFERRED SHAREHOLDERS. See Stock and Stockholders. PREJUDICE. See Judges; Jury. PRELIMINARY EXAMINATION. See Criminal Law. PRELIMINARY INJUNCTION. See Injunctions. PREMISES. What is included in term "premises" as used with respect to land, 1916C-1192. See also Deeds; Owners of Premises; Searches and Seizures. PREMIUMS. See Insurance. PRESCRIPTION. Acquirement by prescription of right to maintain telegraph, telephone or elec- tric light pole, 1916E-981. Acquisition of title to land within right of way of railroad by adverse possession or prescription, 1916D-1186. Prescriptive obligation to maintain divi- sion fence, 1917B-1253. Prescriptive right of individual to take water from another's well or spring, 1917A-881. See also Adverse Possession. PRESUMPTIONS. Acknowledgment: presumption in favor of certificate of acknowledgment, 1917A- 369. Attorneys: presumption of invalidity of contract for compensation of attorney made after establishment of relation, 1917A-535. Carriers of passengers: presumption of negligence from collision resulting in injury to passenger, 1917C-634. Corporations: presumption that contract executed by president of corporation is authorized by corporation, 1917A- 360. Death: time of death within rule as to presumption of death from absence, 1917A-82. Foreign laws: presumption as to knowl- edge of foreign law, 1916D-1072. Gifts: "child" in statute creating presump- tion of gift as including illegitimate child, 1918B-258. Husband and wife: presumption as to lia- bility of wife for household expenses, 1917C-561. Letters: presumption as to authenticity of letter received in reply to letter, 1917D-925. presumption of receipt of letter, 1917E- 1058. Names: conflict between presumption of identity of person from identity of name and another presumption, 1917E- 121. presumption from use or omission of suffix to name, 1917A-1215. Telegrams: presumption of receipt of tele- gram, 1917E-1081. Temperance: presumption of temperance or sobriety, 1918A-620. Undue influence: presumption of undue in- fluence arising from relation of man and woman engaged to be married, 1916C-1031. presumption of undue influence in case of conveyance inter vivos by parent to child, 1918B-457. PRETENSES. See False Pretenses. PRETERMISSION. "Child" in statute of pretermission as in- cluding illegitimate child, 1918B-253. PREVENTION OF PERFORMANCE. See Contracts. PRICE. See Value. 90 DIGEST. 1916C 1918B. PRIMA FACIE EVIDENCE. See Evidence. PRIMARIES. Effect of partial invalidity of statute re- lating to primary elections, 1916D-52. PRINCIPAL AND AGENT. See Agency. PRINCIPAL AND SURETY. See Suretyship. PRINCIPAL CONTRACTOR, See Building Contracts. PRINTED COPIES. See Foreign Laws. PRINTED SIGNATURE. See Frauds, Statute of. PRIORITY. See Judgments. PRISONS AND PRISONERS. Effect of partial invalidity of statute re- lating to penal institutions, 1916D-77. See also Convicts; Reformatories. PRIVACY, RIGHT OF. Finger print as part of police record, 1917A-418. Unlawful use of portrait or name in mov- ing picture, 1916C-308. PRIVATE CHARITIES. See Charities. PRIVATE COUNSEL. See Prosecuting Attorneys. PRIVATE DETECTIVES. See Detectives. PRIVATE DIARIES. See Diaries. PRIVATE NUISANCES. See Nuisances. PRIVATE SCHOOLS. Validity of expenditure of school funds for maintenance of private school, 1917C-922~ PRIVIES. Effect on relation of employee as such of stopping work temporarily to use privy, 1918 A-l 195. See also Health. PRIVILEGE. See Discovery; Witnesses. PRIVILEGED COMMUNICATIONS. See Libel and Slander; Witnesses. PRIZES. See War. PROBABLE CAUSE. See Malicious Prosecution. PROBATE. See Wills. PROBATION OFFICERS. Probation officers of juvenile courts, 1916E-1011. PROCEDURE. Effect of partial invalidity of statute re- lating to procedure in civil cases, 1916D-78. Effect of partial invalidity of statute re- lating to procedure in criminal cases, 1916D-80. Procedure in juvenile courts, 1916E-1014. PROCESS. Corporations: process by which court may acquire jurisdiction of defendant cor- poration in criminal case, 1916E-1239. Issuance or execution of process: exclusion or inclusion of Sunday or holiday in computation of time for issuance of execution of process, 1917E-941. Lost process: proof by parol of contents of lost or destroyed process, 1916D-252. Service of process: exclusion or inclusion of Sunday or holiday in computation of time for service and return of pro- cess, 1917E-935. liability to suit within state of foreign corporation which has revoked desig- nation of agent for service of process and has ceased to do business within state, 1916D-378. right to serve process on public official or designated agent of foreign corpo- ration in action arising out of transac- tion in another state, 1918A-392. service of civil process upon members of legislature. 1917B-(H1. service of process on convict, 1916D- 1207* INDEX TO THE NOTES. 91 PROCESS Continued. Service of process: validity of personal service of process procured by fraud or force, 1916C-612. validity of process issued or served on holiday, 1916E-S50. validity of service by publication in ac- tion for partition, 1916E-1002. validity of service by telephone, 1917B- 903 validity of statute designating particular kind of agent of foreign corporation on whom process may be served, 1916E-339. validity of statute providing for service on agent of nonresident partnership, 1916D-813. PROCESSIONS. See Parades. PROCUREMENT. See Adultery. PRODUCTION OF DOCUMENTS. See Discovery. PROFANE LANGUAGE. See Breach of Peace; Disorderly Conduct. PROFITS. Loss of profits as element of damages in eminent domain proceedings, 1918B- 869. Prospective profits as damages on rescis- sion of building contract for failure of owner to make payment, 1916C 59. Recovery of profits as damages for breach of contract to sell on commission, 1917B-1194. Statement of opinion as to future profits of business as ground for action -.for fraud or for rescission of contract, 1916D-1040. See also Corporations; Theaters and Amusements. PROHIBITION. See Intoxicating Liquors. PROMISSORY NOTES. See Bills and Notes. PROMOTERS. See Corporations; Theaters and Amuse- ments. PROPERTY. See All; Animals; Personal Property; Real Property. PROSECUTING ATTORNEYS. Misconduct of prosecuting attorney as ground for disbarment, 1917B-234. PROSECUTING ATTORNEY S Con- tinued. Necessity that criminal information filed by prosecuting attorney be under oath, 1917C-531. Right of private counsel to assist prosecu- tion in criminal case, 1917D-512. Statement by prosecuting witness to pros- ecuting attorney as privileged, 1916E- 1121. Validity of appointment of deputy or special prosecuting attorney. 1918A- 718. See also Malicious Prosecution. PROSTITUTION. Effect of partial invalidity of statute re- lating to houses of prostitution, 1916D-77. Immigrant prostitution or immorality, 1917C-250. Inducement to provide inmate for house of prostitution with view to prosecu- tion therefor as defense to such pros- ecution, 1916C-734. Validity and construction of statute mak- ing owner of premises liable for use thereof for purpose of prostitution, 1917A-459. Whether man can be "prostitute," or guilty of resorting to house of ill fame for purpose of prostitution, 1917D-248. PROTEST. See Bills and Notes. PROVISOS. See Statutes. PROVOCATION. See Assault. \ PUBLIC ADMINISTRATORS. See Executors and Administrators. PUBLICATION. Construction of requirement of publica- tion once per week for certain num- ber of weeks, 1917B-209. Exclusion or inclusion of Sunday or holi- day in computation of time for pub- lication of notice, 1917E-942. Publication in single edition of newspaper as sufficient publication, 1917E-994. See also Libel and Slander; Municipal Corporations; Process; Statutes; Trial. PUBLIC BUILDINGS. See Courts. PUBLIC CONTRACTS. See Bids; Municipal Corporations. 92 DIGEST. 1916C 1918B. PUBLIC FUNDS. Bight to use public funds for purpose other than that of appropriation, 1917B-864. PUBLIC IMPROVEMENTS. See Municipal Corporations. PUBLIC INSTITUTIONS. Residence at public institution as affect- ing right to vote, 19170-403. PUBLIC INTEREST. See Libel and Slander. PUBLIC LANDS. Corporations: criminal liability of corpo- ration for inclosing public domain, 1916C-465. Eminent domain: interest in public land acquired by condemnation as ease- ment or fee, 1918A-806. Taxation: public property as subject to special assessment, 1917D-844. state lands under contract of purchase as subject to taxation, 1917C 129. Trees and timber: protection of timber on public lands, 1917A-5. Waters and watercourses: power of state to grant title to land under navigable water, 1918B-1107. See also Reclamation, PUBLIC NUISANCES. See Nuisances. PUBLIC OFFICERS. Anti-nepotism law; validity and construc- tion of anti-nepotism law, 1917D-735. Bond issue: authority of public officer to complete bond issue after repeal of statute authorizing issue, 1916C-406. Bonds: validity of statute establishing fund for bonding of public officers, 1918A-603. Compensation: distinction between "sal- ary" and "wages," 1917B-321. estoppel of public officer to deny valid- ity of statute by accepting compensa- tion thereunder, 1917C-284. neglect of duty as affecting right of public officer to salary, 1918B 435. right of de jure officer to recover from state or municipality salary paid to de facto officer during latter's in- cumbency, 1917D-1137. right of de jure officer to recover salary from de facto officer during latter's incumbency, 1916D-474. right to fee or allowance as between officer and deputy, 1918A-S40. salary or pension of public officer or em- ployee as affected bv his bankruptcy, 1916D-629. PUBLIC OFFICERS Continued. Contracts: liability of municipality or offi- cer for failure to take from "contrac- tor bond for protection of laborers or materialmen, 1917B-1089. Detectives: private detective as public officer, 1917A-5S4. Disbarment: misconduct of ministerial officer as ground for disbarment. 1917B-236. Liability: personal liability of officer for sale of property for taxes under void statute, 1918B-190. personal liability of public officer for injuries caused by defective condition of street or highway, 1917D-939. Mandamus: abatement of mandamus by termination of respondent's office 1918A-1000. "Office": distinction between office and employment, 1917D-319. Partial invalidity of statute: effect of partial invalidity of statute relating to public officers, 1916D-81. Payment made to public official to prevent apprehended injury to business as payment under duress, 1918B-519. Policeman as public officer, 1917B-663. Probation officers of juvenile courts, 1916E-1011. Removal: power of body having authority to remove public officer to appoint committee to conduct hearing, 1916C- 1273. Women: right of woman to be notary public, 1917D-534. See also Bribery; Judges; Libel and Slander; Municipal Corporations; Pro- cess. PUBLIC POLICY. See Insurance. PUBLIC PROPERTY. See Army and Navy; Public Lands; Taxation. PUBLIC PROSECUTOR. See Malicious Prosecution. PUBLIC SCHOOLS. See Schools. PUBLIC SERVICE COMMISSIONS. Powers: power of public service commis- sion to compel carrier to furnish par- ticular class of service, 1917B-1160. power of public service commission to make test order. 1917E-794. power of public service commission to prevent maintenance of electric wires in close proximity, 1918B 847. power of public service commission to regulate running time of trains, 1916D-1034. INDEX TO THE NOTES. 93 PUBLIC SERVICE COMMISSIONS Con- tinued. Powers: review by public service commis- sion of municipal regulation of public service corporation, 1916E-1083. validity of order of public service com- mission regulating commutation rates 1917B-1153. validity of order of public service com- mission requiring running of Sunday train, 1917B-1205. validity of regulation of extent of train service to be furnished by railroad, 1917B-1217. Statutes: effect of partial invalidity of statute relating to public service com- missions, 1916D-38. effect of partial invalidity of statute re- lating to railroad commissions, 1916D- 84. statute creating board to regulate rail- roads as interference with interstate commerce, 1917A-975. validity of statute conferring on commis- sion power ,to fix rates for public ser- vice corporations, 1917C 57. validity of statute conferring on public service commission or other body juris- diction of eminent domain proceedings, 1916C-420. validity of statute conferring on public service commission power to determine necessity for construction or extension of public utility, 1916E-299. PUBLIC SERVICE CORPORATIONS. Building restriction or restrictive agree- ment as binding public service corpo- ration, 1918B-591. Effect of partial invalidity of statute re- lating to public service corporations. 1916D-38. Validity of statute conferring on commis- sion power to fix rates for public ser- vice corporations, 1917C-57. See also Carriers of Passengers; Gas; Pub- lic Service Commissions; Public Utili- ties; Railroads. PUBLIC TRIAL. See Trial. PUBLIC UTILITIES. Corporation not operated for profit as pub- lic utility, 1916D-899. Effect of partial invalidity of statute re- lating to public utilities, 1916D-76. Right of municipality to operate public utility in competition with citizen, 1918B-106. Validity of statute conferring on public service commission power to determine necessity for construction or extension of public utility, 1916E-299. ' PUBLIC WHARVES. Liability for injuries sustained on defec- tive public wharf, 1916C-150. PUBLIC WORKS. Effect of partial invalidity of statute re- lating to municipal public works, 1916D-76. PULLMAN CARS. See Sleeping Car Companies. PUNISHMENT. See Convicts; Sentence and Punishment. PUPILS. See Schools. PURCHASE MONEY MORTGAGES. See Mortgages. PURCHASERS FOR VALUE. See Sales; Vendor and Purchaser. PURE SEED LAW. See Agriculture. QUALIFICATIONS. See Jury. QUASI-JUDICIAL BODY. See Courts. QUESTIONS OF LAW AND FACT. Negligence of attorney as question of law or fact, 1917B-11. Privileged nature of comment on matter of Dublic interest as question of law or fact, 1917B-431. Sufficiency of compliance with watchman clause in fire insurance policy as ques- tion of law or fact, 1917D-823. "Whether act of intermeddling charges per- son as executor de son tort as ques- tion of law or fact, 1917E-22. Whether assault is made with intent to commit robbery as question of law or fact, 1918A-419. QUIET ENJOYMENT. See Landlord and Tenant. QUIETING TITLE. Inconsistent defenses in action to quiet title, 1917C-734. Eight to affirmative relief on cross bill to quiet title, 1917D-674. Running of statute of limitations against action to quiet title, 1917A-661. QUORUM. See Municipal Corporations. DIGEST. 1916C 1918B. QUOTIENT VERDICT. See Verdict. QUO WARRANTO. Burden of proof in quo warranto proceed- ing or action in nature thereof, 1917B- 467. RACES. See Intoxicating Liquors; Jury. RAILROADS. Adverse, possession: what constitutes no- tice to railroad company of adverse possession of its property, 1917A-1274. Animals: effect of partial invalidity of statute relating to injury to stock by railroad, 1916D-35. Bridges: power of municipality to compel railroad to repair b'ridge within muni- cipal limits, 1916C-1171. Completed: meaning of "complete" or "completed" as applied to railroad, 1916D-1232. Corporations: alteration in charter or change in corporate design as releas- ing subscriber to railroad stock, 1918A-79. Crossings: withdrawal of unreasonable tes- timony as to looking or listening for train from consideration of jury, 1917B-477. "Depots": effect of partial invalidity of statute relating to depots, 1916D-85. legal meaning of "depot," 1917A-1283. right of railroad company to grant ex- clusive privileges on depot grounds, 1918A-702. Fires: effect of partial invalidity of statute relating to fires set by railroads, 1916D-54. validity of statute making railroad ab- solutely liable for damage by fire, 1918A-632. Frogs, switches, etc.: duty of railroad com- pany to block frogs, switches and guard rails, 1916E-642. Hand cars: liability of railroad company for injuries caused by operation of hand car, 1916E-321. Headlights: running train without head- light as negligence towards person on track at place other than crossing, 1918A-1181. Mail cranes: location of mail crane near railroad track as actionable negligence, 1916E-717. Motorcycles: right of action by driver of motorcycle for collision with train, 1917A-224. Object falling from train: liability of rail- road company for personal injuries caused by objects thrown or falling from train, 1917D-540. "Plant" as including rolling sto6k of rail- road, 1917A-321. RAILROADS Continued. Bight of way: acquisition of title to land within right of way of railroad by ad- verse possession or prescription, 1916D- 1186. estate or interest acquired by railroad in land purchased for right of way, 1916E-763. interest in land acquired by condemna- tion for railroad purposes as easement or fee, 1918A-810. power of telegraph or telephone com- pany to condemn railroad right of way under state statute, 1917B-689. right of railroad company to condemn water over which right of way is con- structed, 1916E-1215. Speed: withdrawal of unreasonable testi- mony as to speed of train from con- sideration of jury, 1917B 179. Statutory regulation: effect of partial in- validity of statute relating to rail- roads, 1916D-84. state regulation of railroads as interfer- ence with interstate commerce, 1917A 973. Suction: liability of railroad to person on or near right of -way injured by suc- tion from passing train, 1918A 872. Taxation: assessment of railroad right of way for street improvement, 1916E 579. effect of partial invalidity of statute re- lating to taxation of railroads, 1916D- 91. valuation of railroad property for pur- pose of taxation, 1916E-1180. Tickets: person buying and selling rail- road tickets as "dealer," 1917A-961. Timber: rights of railroad company with respect to timber on public lands, 1917A-10. Vehicles: stopping or leaving vehicle near railroad as negligence, 1917C-1233. Wrong track: running train on wrong or unusual track as negligence, 1917A 936. Workmen's compensation: railroad em- ployees as within purview of work- men's compensation act, 1918B-664. railroad employment as within purview of workmen's compensation act, 1917B-26. See also Carriers of Passengers; Ease- ments; Employers' Liability Acts; Public Service Corporations. RAPE. Impotency as defense to charge of rape or assault with intent to rape, 1916D- 535. Inadequacy or excessiveness of verdict in civil action for rape, 1917E-135. What constitutes cruel and unusual punish- ment for rape, 1918B-399. RATES. See Gas; Public Service Corporations; Tickets and Fares. INDEX TO THE NOTES. 95 RATIFICATION. See Alteration of Instruments. READVERTISEMENT. See Contracts. EEAL ESTATE BROKERS. See Agency; Brokers. REAL PROPERTY. Effect of partial invalidity of statute re- lating to title to real property, 1916D- 47. Inconsistent defenses in action relating to real property, 1917C-729. Meaning of "plant" as used with reference to real estate, 1917A-321. Rent as realty or personalty, 1918A-148. What constitutes real estate "dealer," 1917A-961. See also Attachment; Executors and Ad- ministrators; Recording Acts. RECEIPT OF LETTER. See Letters. RECORD. See Appeal and Error. RECORDING ACTS. Constructive notice from record of instru- ment containing defective description of real property, 1917B-7S-"). Delay in recording deed as constituting fraud on creditors of grantor, 1918A- 1054. Liability of attorney to client for failure to rtfiprd instrument, 1917B-22. Record orinstrument as constructive notice of fraud, 1917A-267. Eeeord of instrument out of line of title as constructive notice, 1917E-486. See also Chattel Mortgages. RECORDS. Proof by parol of contents of lost or de- stroyed judicial record, 1916D-248. See also Corporations. EECOVERY OF PAYMENTS. See Payment. RECEIPT OF TELEGRAM. See Telegraphs and Telephones. RECREATION. See Jury. RECEIPTS. See Accord and Satisfaction; Warehouses. RECRIMINATION. See Divorce. RECEIVERS. Appointment of receiver for building and loan association, 1917A-827. Liability of receiver for rent, 1916E-818. Personal liability of receiver for attor- ney's fees, 1917B-354. Receiver of property as necessary party de- fendant to action to foreclose mechan- ic's lien, 1918B-23. Set-off against receiver, 19160-599. REDEMPTION. See Taxation. RED FLAGS. See Parades. RE-EMPLOYMENT. See Release and Discharge. "RECENT." Meaning of term "recent" or "recently," 1918A-814. REFEREES. Personal liability of attorney for fees of referee, 1917B-524. RECIPROCAL DEMURRAGE. See Carriers of Goods. RECITALS. See Wills. RECLAMATION. Employment in connection with reclama- tion of arid lands as within purview of workmen's compensation act, 1917D- 14. REFORMATION. See Rescission, Cancellation and Reforma- tion. REFORMATORIES. Effect of partial invalidity of statute re- lating to reformatories, 1916D-78. See also Convicts; Prisons and Prisoners. REGISTRATION. See Elections. 96 REGULATIONS. See cross-references under Rules and Regu- lations. REHEARING. Exclusion or inclusion of Sunday or holi- day, in computation of time for appli- cation for rehearing, 1917E-941. Jurisdiction of. appellate court to grant re- hearing after remand, 1917A-285. REJECTION OF VOTE*P See Elections. RELATIONSHIP. See Life Insurance; Marriage. RELATIVES. Communication to relative as privileged within law of libel and slander, 1917E-898. Liability of relative other than parent or guardian for alienation of affections, 1917E-1027. Validity and effect of contract induced by threats of criminal prosecution against friend, or relative other than parent, child or spouse, 1917C-1033. See also Divorce; Insanity; Judges; Wills. RELEASE AND DISCHARGE. Avoidance of release of claim for personal injuries on account of misstatements by physician as to nature of injuries, 1918A-358. Liability of attorney to client for unau- thorized release of client's claim, 1917B-14. Right of subrogation of insurer as affected by release by insured of person caus- ing loss, 1917A-1298. Validity of release given in consideration of re-employment of releasor by re- leasee, 1916E-175. See also Dower; Mortgages; Stock and Stockholders; Suretyship. RELIGION. See Wills. RELIGIOUS SOCIETIES. Communistic society or corporation as con- trary to public policy, 1917A-468. REMAINDER. Meaning of "all" as used in will in connec- tion with "rest," "residue," or "re- mainder," 1917E-7.". REMAINDERS AND REVERSIONS. Destruction of contingent remainder to un- born person, 1917A-902. DIGEST. 1916C 1918B. REMAINDERS AND REVERSIONS Continued. Remainder to heirs of testator as vested or contingent, 1917A-859. Right of life tenant to recover damages for injury both to life estate and in- heritance, 1916C-881. Right of representative of predecease.! child to share in remainder given to children as a class, 1917B-1245. Validity of conveyance of interest of one remainderman to another, 1917A-520. See also Life Estates. REMAND. See Appeal and Error. REMARRIAGE. See Divorce. REMEDIES. See Fraudulent Sales and Conveyances. REMOVAL. See Public Officers; Trusts and Trustees. REMOVAL OF CAUSES. Appealability of order transferring cause from state to federal court, 1916D- 1049. Meaning of "revenue laws" in statute re- lating to removal of causes, 1918B-270. RENEWAL. See Landlord and Tenant; Master and Servant ; Usury. RENT. See Landlord and Tenant. RENUNCIATION. See Executors and Administrators; Trusts and Trustees. REPEAL. See Bonds; Statutes. REPETITION. See Libel and Slander. i REPLEVIN. Right to recover attorney's fees in action '- on replevin or detinue bond, 1916D-& 874. REPLY. See Pleading. REPLY LETTERS. See Letters. INDEX TO THE NOTES. 97 REPORTERS. See Newspapers. REPORTS. See Grand Jury; Mercantile Agencies. REPRESENTATIVES. See Executors and Administrators. REPUBLICATION. See Libel and Slander. REPUDIATION. See Infants. REPUTATION. See Fines and Penalties; Malicious Prose- cution; Seduction. RESCISSION, CANCELLATION AND REFORMATION. Bonds: right to reform bond by changing name of obligee, 1916C-184. Building and loan associations: avoidance of building and loan contract on ground of fraud, 1917A-890. Building contracts: right of building con- tractor to rescind contract for failure of owner to make payment, 1916C-54. Contracts of sale: right of assignee of con- tract for purchase of land to sue for rescission thereof, 1917E-845. right of purchaser to rescind contract of sale for breach by vendor in tendering less land than quantity contracted for, 1916D-1154. statement of opinion as to future profits of business as ground for action for fraud or for rescission of contract, 1916D-1040. Homestead: right to reformation of con- veyance of homestead,. 1916E-1131. Wills: jurisdiction of equity to reform will, 1917D-1157. RESERVATION. See Dedication; Deeds. RES GESTAE. See Evidence. RESIDENCE. See Divorce; Elections; Insurance; Taxa- tion; Workmen's Compensation Acts. RESIDUE. Meaning of "all" as used in will in con- nection with "rest," "residue," or "re- mainder," 1917E-75.6 RES IPSA LOQUITUR. See Negligence. RESISTING OFFICER. Defense of property as justification for resisting officer, 1917D-293. RES JUDICATA. Estoppel by judgment as applicable to person assisting prosecution or de- fense of action, 1916E-154. Judgment settling title to land as con- . elusive between successful claimant and grantor of defeated claimant, 1916E-161. Order in habeas corpus proceeding as res judicata, 1916D-506. Voluntary dismissal of bill for divorce as res judicata, 1917A-1201. See also Deeds; Wills. REST. Meaning of "all" as used in will in con- nection with "rest," "residue," or "re- mainder," 1917E-75. RESTAURANTS. Liability as for negligence of proprietor of restaurant or lunch room to person injured by eating therein, 1916D-921. REST DAY. See Labor Laws. RESTING. Effect on relation of employee as such of stopping work temporarily to rest, 1918A-1196. RESTORATION OF PROPERTY. See Divorce; Embezzlement. RESTRAINING ORDERS. See Injunctions. RESTRAINT OF MARRIAGE. See Marriage. RESTRAINT OF TRADE. See Monopolies. RESTRAINT ON ALIENATION See Deeds. RESTRICTIVE COVENANTS. See Deeds; Vendor and Purchaser. RESULTING TRUSTS. See Trusts and Trustees. 98 DIGEST. 1916C 1918B. RETENTION OF POSSESSION See Frauds, Statute of. RETRACTION. See Libel and Slander. RETREAT. See Self-defense. RETURN. See Notice; Process. REVENGE. See Dying Declarations. REVENUE. Legal meaning of "revenue," 1918B-200. ROBBERY. Attempt to commit robbery or assault with intent to commit robbery, 1918A- 406. What constitutes cruel and unusual pun- ishment for robbery, 1918B-400. ROOMING HOUSES. Validity of statute or ordinance licensing or regulating hotels, lodging or room- ing houses, or the like, 1916C-290. ROOMS. See Elections. BOUNDING CURVES. See Street Railways. REVENUE DEBTS OR CHARGES. ROYALTIES. Legal meaning of "revenue debts or Distinction between rent and royalty, charges," 1918B-219. 1916E-1225. REVENUE LAWS RULES AND REGULATIONS. Legal meaning of "revenue laws," 1918B- See Attorneys; Carriers of Goods; Car- riers of Passengers; Fire Insurance; Stock Exchanges; Street Railways. 209. REVENUE MEASURE. Legal meaning of "revenue measure," 1918B-218. REVENUE TAX. Legal meaning of "revenue tax," 1918B- 219. REVIVAL. See Actions; Fire Insurance; Statutes; Wills. REVOCATION. See Agency; Dedication; Executors and Administrators; Intoxicating Liquors; Telegraphs and Telephones; Wills. REVOLVING DOORS. See Owners of Premises. RIGHT OF PRIVACY. See Privacy, Right of. RIGHT OF WAY. See Easements; Railroads. RIPARIAN RIGHTS. See Waters and Watercourses. RIVERS. River send harbor or fortification work as employment within purview of work- men's compensation act, 1917D-27. RUNAWAY HORSES. See Animals. See Names. SAID. Legal meaning of "said," 1917D-603. SAILORS. See Army and Navy. SALARY. Distinction between "salary" and "wages," 1917B-321. See also Public Officers. SALES. Alien enemies: contract of sale with alien enemy, 1917C-203. Automobiles: liability of maker of auto- mobile to third persons for defective construction thereof., 1917E-584. nature and construction of automobile sales agency contracts, 1917E-568. Conditional sales: election of remedies on breach of conditional sale, 1917D- 464. right of chattel mortgagee or condi- tional vendor to accession to property mortgaged or sold, 1917C-1170. INDEX TO THE NOTES. 99 SALES Continued. Conditional sales: right of conditional vendee to recover damages for breach of warranty, 1918B-914. rights of parties in case of conditional sale of property to be attached to realty of third person, 1916D-915. "Market price": selling price fixed by com- bination or monopoly as "market price," 1918A-575. Offer and acceptance: acceptance of offer once rejected as consummating con- tract of sale, 1917O-987. Pleading: inconsistent defenses in action growing out of contract of sale, 1917C- 727. Purchasers for value: purchaser of chattel for pre-existing debt as purchaser for value, 1918A-455. Vendor's lien: transfer of warehouse re- ceipt as divesting vendor's lien, 1917D-112. Warranty: express or implied warranty on sale by sample, 1917C-311. express or implied warranty on sale of seed, 1918B-72. warranty to agent as inuring to benefit of undisclosed principal, 1918B-130. See also Corporations; Damages; Food and Drugs; Frauds, Statute of; Guardians; Hawkers and Peddlers; Judicial Sales; Restaurants; Tenants in Common; Value. SAMPLES. See Hawkers and Peddlers; Sales. SCHOOLS Continued. Buildings: power of school authorities to permit use of school building for other than religious or public school pur- poses, 1916C-485. Elections: residence at school as affecting right to vote, 1917C-403. Pupils: power to expel or suspend pupil from school, 1918A-400. separation of white and colored pupils for purposes of education, 1916C-806. validity of health regulation relating to school children, 1917A-765. validity of statutory or other prohibi- tion against secret societies among students, 1916E-527. School districts: power of school district to employ counsel, 1918A-502. School funds: power of legislature with re- spect to expenditure of school funds, 1917C-917. Statutes: effect of partial invalidity of statute relating to schools and col- leges, 1916D-86. effect of partial invalidity of statute relating to taxation for schools, 1916D-93. Teachers: comment on educator or teacher as privileged within law of libel and slander, 1917B-421. marriage as ground for removal of woman school teacher, 1917D-271. validity of statute fixing minimum sal- ary of school teachers, 1916E-420. See also Reformatories. SANATORIUMS. See Hospitals and Asylums. SCIENTIFIC BOOKS. See Witnesses. SATISFACTION. See Accord and Satisfaction. SCINTILLA. See Evidence. SAVING LIFE. See Contributory Negligence. SAVINGS BANKS. Eight of depositor in insolvent bank to set off deposit against debt to bank, 1917C-1187. Set-off against receiver of savings bank, 1916D-600. SCAFFOLDING. Meaning of "scaffolding" as used in work- men's compensation act, 1917IV-15. See also Owners of Premises SCHOOLS. Buildings: liability of municipal corpora- tion or school board for defective con- dition of public school premises, 1917D-797. SCIRE FACIAS. Proof by parol of contents of lost or de- stroyed writ of seire facias, 1916D- 252. SEALS. Seal as sufficient signature to will, 1917B- 876. SEAMEN. See Ships and Shipping. SEARCHES AND SEIZURES Sufficiency of description of premises in search warrant or affidavit therefor, 1916D-952. SECOND-HAND GOODS. What constitutes second-hand goods "deal- er," 1917A-961. 100 DIGEST. 1916C 1918B. SECOND-HAND MATERIAL. See Clothing. SECRECY. Communication based on promise of secrecy as privileged from disclosure, 1916C- 699. SECRET PROFITS. See Corporations. SECRET SOCIETIES. See Schools. SECTARIAN SCHOOLS. Validity of expenditure of school funds for maintenance of sectarian school, 1917C-923. SECURITIES. Lien of attorney on securities in his pos- session, connected with litigation, 1917D-149. See also Guardians; Mortgages. SEDUCTION. Admissibility of evidence of defendant's reputation in prosecution for seduc- tion, 1916E-381. Eight of mother to maintain action for daughter's seduction, 1916E-1275. SEED. See Agriculture. SELF-CRIMINATION. See Witnesses. SELF-DEFENSE. Liability as for negligence of person who injures bystander while acting in self- defense, 19160-1150. Right of person assaulted on his own prem- ises to repel attack without retreat- ing, 1916C-918. SELF-SERVING EVIDENCE. See Evidence. SENTENCE AND PUNISHMENT. Effect of failure to ask convicted person if he has anything to say before sen- tence, 1916C-95. Propriety of instruction as to punishment imposed for various degrees of homi- cide, 1917A-752. Punishment of corporation for criminal acts, 1916C-465. SENTENCE AND PUNISHMENT Con- tinued. Eight of prisoner who has received exces- sive sentence to be discharged on habeas corpus or appeal, 1916D-368. What is cruel and unusual punishment, 1918B-396. See also Appeal and Error; Convicts; Life Insurance. SEPARATION. See Alienation of Affections; Husband and Wife. Divorce; SEPARATION OF RACES. See Carriers of Passengers; Schools. SERIOUS ILLNESS. See Life Insurance. SERVICE. See Notice; Pleading; Process. SERVICE PIPES. See Waterworks and Water Companies. SERVICES. Price paid for services as evidence of value thereof, 1916D-802. See also Infants; Parent and Child. SESSIONS. See Legislature. SET-OFF. Appeal: amount in controversy for purpose of appeal where defendant has filed counterclaim, 1917D-99. Bankruptcy; set-off under American bank- ruptcy acts, 1916C-975. Banks: lien or set-off of insolvent bank against deposit for debt of depositor not yet due, 1917C-1205. right of depositor in insolvent bank to set off deposit against debt to bank, 1917C-1187. set-off by bank of deposit against debt due bank by depositor as voidable transfer under bankruptcy law, 1916C- 990. Monopolies: right of defendant in action by monopoly on collateral contract to set off damages by him on account of monopoly, 1916D-946. Landlord and tenant: right to interpose set-off or counterclaim in action by landlord to recover demised premises, 1916D-372. Pleading: waiver of failure to reply to counterclaim, 1917D-619. Eeceivers: set-off against receiver, 1916D- 599. Torts: counterclaim for tort in action for tort, 1917D-114. INDEX TO THE NOTES. 101 SETTING ASIDE INDICTMENT. See Criminal Law. SETTLEMENT. See Compromise and Settlement; Embez- zlement; Guardians; Larceny. SEVERANCE OF ESTATES. See Mines and Minerals. SEVERANCE OF LIMB. See Accident Insurance. SEVERE ILLNESS. See Life Insurance. SEWERS. See Drainage. SHAFTS. See Mines and Minerals. SHAM PLEADING. See Pleading. SHERIFFS AND CONSTABLES. Liability of sureties on bond of sheriff or constable for assault committed by- officer, 1916D-923. Personal liability of attorney for fees of sheriff or constable, 1917B-520. See also Judicial Sales. SHIPS AND SHIPPING. Bridges: liability for injury to bridge caused by vessel, 1917B-938. Collision: right to recover damages for loss of use of vessel resulting from collision without total loss, 1917B-999. Master and servant: employee working on ' waterfront as entitled to protection under federal employers' liability act, 1918B-68. . operation of vessel as employment within purview of workmen's compen- sation act, 1917D-29. what constitutes "loss" within meaning of statute terminating seamen's wages upon loss of vessel, 1916D-688. work on ship as within purview of workmen's compensation act, 191 7D- 21. Pilots: effect of partial invalidity of stat- ute relating to pilots, 1916D-78. War: right to bring prize into neutral port, 1917D-448. \\Tiarves: right of person having business with officer of vessel to recover dam- ages for injuries sustained on defec- tive wharf, 1916C-145. See also Carriers of Passengers; Marine Insurance. SHOES. See Evidence. SHOOTING. See Assault. SICKNESS. See Carriers of Passengers; Disease; Life Insurance; Master and Servant. SIDE TRACKS. See Street Railways. SIDEWALKS. See Streets and Highways. SIGNATURE. See Bills and Notes; Frauds, Statute of; Wills. SIGNS. Municipal regulation of billboards and signs, 1916C-491. SINGLE EDITION. See Newspapers. SISTER. Sister as "dependent" within workmen's compensation act, 1918B-759. SITUS. See Taxation. SLANDER. See Libel and Slander. SLANDER OF TITLE. See Libel and Slander. SLEEPING CAR COMPANIES. Pullman car employee as employee of rail- road under federal employers' liabil- ity act, 1918B-53. SMOKE. Effect of partial invalidity of statute re- lating to smoke as nuisance, 1916D-77. Validity of smoke ordinance or statute, 1918B-173. SOBRIETY. Presumption of temperance or sobriety, 1918A-620. SOCIETIES AND CLUBS. Application of statute regulating liquor traffic to bona fide social club distrib- uting liquor to members, 1916D-940. 102 DIGEST. 1916C 1918B. SOCIETIES AND CLUBS Continued. Fire company, insurance patrol or the like as charitable institution, 1917C-797. Powers and liabilities of private corpo- ration or association organized to pro- mote business interests of community, 1917C-787. Eight of unincorporated benevolent, fra- ternal or social organization to protec- tion in use of its name, 1918A-245. See also Building and Loan Associations; Religious Societies; Schools. SODOMY. to man as slander, Imputing sodomy 1917A-1045. SOLDIERS. See Army and Navy; Elections. SOLICITATION OF BUSINESS. See Attorneys. SPECIAL APPEARANCE. See Appearance. SPECIAL ASSESSMENTS. See Taxation. SPECIAL MEETINGS. See Stock and Stockholders. SPECIAL PROSECUTING ATTORNEYS. See Prosecuting Attorneys SPEED. See Automobiles; Railroads; Street Rail- ways. SPENDTHRIFT TRUSTS. See Trusts and Trustees. SPRINGS. See Waters and Watercourses. SR. See Names. STARE DECISIS. Force and effect of advisory opinion by Appellate judge, 1917A-495. STATE BANKS. Examiners of state banks, 1916E-219. Liability of state bank on contract of guaranty, 1916D-555. STATE COURTS. See Courts; Removal of Causes. STATE FOREST RESERVES. See Trees and Timber. STATE LANDS. See Public Lands. STATES. Abatement of mandamus against state officer by termination of respondent's office, 1918A-1000. Eight to damages for unlawful detention in state hospital or institution for insane, 1917C-162. State property as subject to special as- sessment, 1917D-845. See also Common Law; Public Lands; Public Officers. STATE STATUTES. See Employers' Liability Acts. STATIONARY ENGINES. See Fires. STATIONS. See Carriers of Passengers; Depots. STATUTE OF FRAUDS. See Frauds, Statute of. STATUTE OF LIMITATIONS, gee Limitation of Actions. STATUTES. Adopted statutes: construction of adopted statute, 1917B-651. "All": meaning of "all property" as used in instrument, statute, etc., other than will, 1917E-58. meaning of "all" as used in prohibitory or regulatory statute, 1917E-39. meaning of "all damages" as used in statute, 1917E-83. Amendment: effect of partial invalidity of amending statutes, 1916D-21. "Child" in statute as including illegiti- mate child, 1918B-250. Conditions: effect of invalidity of condi- tion in statutes, 1916D-26. * Enactment: judicial notice of contents of legislative journals on issue as to enactment of statute, 1916E-1284. validitv of adoption or publication of statute on holiday, 1916E-849. Exceptions: effect of invalidity of excep- tion to statute, 1916D-26. INDEX TO THE NOTES. 103 STATUTES .Continued. Executive action: admissibility of ex- trinsic evidence with respect to ap- proval or disapproval of bill by exec- utive, 1917C-836. exclusion or inclusion of Sunday or holiday in computation of time for return of bill by governor. 1917E 943. "Law": ordinance as "law" within mean- ing of statutory provision. 1917C- 689. Partial invalidity: effect of partial in- validity of statutes, 1916D-9. Preamble as aid to construction of stat- ute, 1917C-500. Provisos: effect of invalidity of proviso in statute, 1916D-26. t Public officers: estoppel of public officer to deny validity of statute by ac- cepting compensation thereunder, 1917C-284. Repeal: effect of partial invalidity of re- pealing statute, 1916D-21. effect of repeal or amendment of repeal- ing statute as reviving repealed stat- ute, 191SB-281. what statutes are impliedly repealed by state employers' liability or work- men's compensation act, 1916E-773. Eetroactive operation: workmen's con- pensation act as retroactive in opera- tion, 1918B-617. Taking effect: effect of invalidity of pro- vision in statute as to time of taking effect, 1916D-32. "from" as word of inclusion or exclu- sion with respect to taking effect of statute, 1918A-928. Title: effect of invalidity of title to stat- ute, 1916D-28. See also Bonds; Drunkenness; Employers' Liability Acts; Foreign Laws; In- surance; Jury. STEALING EIDE. See Infants. STEAM-ROLLERS. See Streets and Highways. STEAMSHIPS. See Carriers of Passengers. STENOGRAPHERS. Personal liability of attorney for fees of stenographer, 1917B-525. See also Libel and Slander. STEPCHILDREN. Stepchild as "dependent" within work- men's compensation act, 1918B-756. STEPFATHER. "Father" as including stepfather, 1917B- 1118. STIPULATED FORFEITURE. See Contracts. STIPULATIONS. See Telegraphs and Telephones. STOCK. See Carriers of Live Stock; Fire Insur- ance. STOCK AND STOCKHOLDERS. Acknowledgment: stockholder or officer of corporation interested in instru- ment as disqualified to take acknowl- edgment thereof, 1916D-705. Bills and notes: right to notice of dishonor of stockholder or officer indorsing cor- porate paper, 1917B-836. Books and records: admissibility in evi- dence of books or records of corpo- ration in action between members or between corporation and member, 1917D-558. ^_ right of stockholder to inspect books of corporation as absolute or quali- fied, 1917D-898. Consolidation of corporations: necessity of assent of all stockholders to con- solidation of corporations, 1918A- 165. Conversion of stock: measure of damages for conversion of shares of stock, 1916C-641. Insurance: validity of insurance policy issued by agent on property of cor- poration of which agent is stock- holder, 1916D-1275. Mortgages: right of creditor to object to mortgage of property of corpora- tion made without required consent of stockholders, 1916C-1039. Preferred shareholder as creditor or stockholder of corporation, 1917B- 558. Stockholders' liability: effect of partial invalidity of statute relating to lia- bility of stockholders, 1916D-39. liability for corporation debts or calls of person who holds stock as collat- eral security, 1916C-567. validity and effect of statute making stockholder liable for corporate debts after bona fide transfer of stock, 1917A-109. Stockholders' meetings: sufficiency as to contents of notice of special meeting of stockholders, 1917E-1004. waiver of notice of stockholders' meet- ing, 1916E-1038. Subscription to stock: alteration in char- ter or change in corporate design as releasing subscriber to stock, 1918A- 79. liability on stock subscription as de- pendent upon whole amount of stock having been subscribed, 1918B-1137. 104 DIGEST. 1916C 1918B. STOCK AND STOCKHOLDERS Con- tinued. Subscription to stock: right of stock- holder to preference in subscribing for new stock, 1918B-132. when subscriber to stock becomes stock- holder, 1917E-209. Taxation: effect of partial invalidity of statute relating to taxation of stock and stockholders, 1916D-92. liability to taxation within state of shares of stock of foreign corporation, 1916C-829. situs of corporate stock for purpose of succession tax, 1918A-535. Transfer of stock: effect on sales of cor- porate stock of seventeenth section of statute of frauds and equivalent enactments, 1917C-991. eligibility of officer of corporation to whom stock is transferred for pur- pose of enabling him to become offi- cer, 1916E-963. law governing transfer of corporate stock, 1917D-959. purchase of stock by director as affected by fiduciary relation to stockholder, 1918B-241. rights of unregistered transferee as against attachment or execution lev- ied on stock, 1917A-428. validity of corporate by-law regulating alienation of stock, 19160-1202. STOCKBROKERS. See Brokers. STOCK EXCHANGES Validity of rule of stock exchange with respect to seat of insolvent or default- ing member, 1916E-879. STOCK OF GOODS. See Chattel Mortgages. STOPPING PAYMENT. See Checks. STOPPING STATION. See Carriers of Passengers. STOPPING WORK. See Master and Servant. STORAGE. Storage as hazardous employment within purview of workmen's compensation act, 1917D-28. STORES. Liability of proprietor for injuries re- ceived in turnstile, revolving door, swinging door, 1916D-1235. STRAW. Seller of straw as "dealer," 1917A-953. STREAMS. See Waters and Watercourses. STREET RAILWAYS. Automobiles: application of last clear ehance doctrine to collision between automobile and street-car, 1916E-515. rights and duties of person driving automobile in highway with respect to conductor on street car, 1916E-674. rights and duties of person driving au- tomobile in highway with respect to t passenger on street-car, 1916E-673. Bridges: power of municipality to compel street railway to repair bridge within municipal limits, 1916C-1171. Evidence: withdrawal of unreasonable testimony as to looking or listening for street-car from consideration of jury, 1917B-479. withdrawal of unreasonable testimony as to speed of street-car from consid- eration of jury, 1917B-479. Fire apparatus: care required of driver of street-car to avoid collision with fire apparatus, 1918A-290. Motorcycles: right of action by driver of motorcycle for collision with trolly car, 1917A-224. Rounding curves: liability of street rail- way company for injuries caused by striking pedestrian in rounding curve, 1916E-679. Tracks: power of street railway to con- struct side tracks, 1916C-793. stopping or leaving vehicle near street railway track as negligence, 1917C- 1233. Transfers: validity of rule of street rail- way with respect to use of transfer, 1916D-586. See also Carriers of Passengers; Public Service Corporations ; Workmen's Compensation Acts. STREETS AND HIGHWAYS. Change of grade: right of abutting owner to damages for change of street to established grade where he improves property after grade is established, 1916D-1143. Cleaning streets: liability of municipality for tort committed in cleaning streets or in removal of garbage, ashes, or other refuse. 1916C-242. Condemnation of land: interest in land acquired by condemnation for high- way purposes as easement or fee, 1918A-808. Defective condition: personal liability of public officer for injuries caused by defective condition of street or high- day, 1917D-939. INDEX TO THE NOTES. 105 STREETS AND HIGHWAYS Continued. Doorg or gates: liability for injuries caused by door or gate opening out- wards in* street, 1916E-458. Municipal control: statute conferring on public service commission power to fix rates for public service corpora- tions as interference with municipal control of highways, 1917C-62. Obstructions: criminal liability of corpo- ration for obstruction of public road, 1916C-463. fruit stand or similar structure on pub- lic highway as nuisance, 1916D-773. liability as for negligence of person obstructing highway under statutory or municipal authority, 1917A-1003. Poles and wires: revocation or expiration of right of electric company to main- tain poles and wires in street, 1917E- 525. Scaffolds: liability of owner of building for injury to pedestrian resulting from erection of scaffold for repairing or painting building, 1916C-123. Sidewalks: legal liability for injuries sus- tained by pedestrian from coal hole in sidewalk, 1917D-494. right of abutting owner to use sidewalk for area ways and the like, 1917A- 558. Street improvements: validity of inclusion of several streets in one improvement, 1916D-455. Use of streets: constitutionality of stat- utes and ordinances regulating speed of vehicles in streets and highways, 1916E-1067. effect of partial invalidity of statute relating to use of motor vehicles on highways, 1916D-58. law of road as applicable with respect to one using highway for play, 191 1C 454. liability for injury to infant stealing ride *on vehicle, 1917D-379. municipal regulation of automobiles with respect to equipment, use of streets, or the like, 1916E-1047. rights and duties of persons driving automobiles in highways, 1916E-661. speed or other highway restriction as applicable to fire apparatus, 1917D- 565. stopping or leaving vehicle in dangerous place in street as negligence preclud- ing recovery for resulting^ injuries, 1917C-1229. use of highway by traction engine, 1917E-798. use of streets for moving buildings, 1917C-77. validity of ordinance prohibiting use of streets by business vehicles, 1916E- 969. Vacation of streets: persons entitled to compensation for vacation of street, 1916C-238. STREETS AND HIGHWAYS Continued. Walls: application of doctrine of res ipsa loquitur to injury to person in high- way caused by fall of wall or portion thereof, 1916E-1073. See also Animals; Street Railways. STRUCTURAL CARPENTRY. See Carpenters. STUDENTS. See Schools. SUBCONTRACTORS. Who is "subcontractor" within mechanic's lien law, 1917C-801. SUBLEASE. See Landlord and Tenant. SUBPOENAS. Subpoena as prerequisite to issuance of restraining order, 1917B-126. SUBROGATION. Payment of whole debt by surety as es- sential to right of subrogation to creditor's securities, 1917C-1183. Eight of insurance company to enforce subrogation by suit in its own name, 1918A-834. Eight of subrogation of insurer as af- fected by release by insured of per- son causing loss, 1917A-1298. Subrogation of insurer to rights of mort- gagee, 1917B-1135. Subrogation of purchaser at invalid fore- closure sale to rights of mortgagee or other claimant, 1917D-576. SUBSCRIBING WITNESSES. See Wills. SUBSCRIPTION. . See Stock and Stockholders. SUBSTITUTE PROSECUTING ATTOR- NEYS. See Prosecuting Attorneys. SUBTERRANEAN WATERS. See Waters and Watercourses. SUBWAYS. See Carriers of Passengers. SUCCESSION. See Descent and Distribution. 106 SUCCESSION TAXES, See Taxation. SUCTION. See Railroads. SUFFICIENCY OF EVIDENCE. See Evidence. SUICIDE. Suicide as evidence of insanity, 1916E- 488. See also Life Insurance. SUNDAYS AND HOLIDAYS. Computation of time: exclusion or inclu- sion of Sunday or holiday in computa- tion of time, 1917E-934. Contracts: principle of estoppel as ap- plicable to rights of parties under void Sunday contract, 1916E-467. Corporations: criminal liability of corpo- ration for Sabbath breaking, 1916C- 465. Criminal law: engaging in labor or amuse- ment on Sunday as offense at common law or under statute other than Sun- day law, 1918B-387. Gifts: validity of gift made on Sunday, 1917A-424. Moving pictures: application of Sunday laws to moving picture shows, 1916C- 304. Official or judicial acts: validity of official or judicial act performed on holiday, 1916E-847. Railroads: validity of order of public ser- vice commission requiring running of Sunday train, 1917B-1205. SUNSTROKE. See Accident Insurance. SUPERVENING CAUSE. See Homicide. SUPPORT. See Husband and Wife. SURETYSHIP. Application of payment: right of surety to control application of payment, 1917C-587. Discharge of surety: diversion of note or proceeds as discharging surety thereon, 1916D-733. effect on liability of surety of release of cosurety, 1917B-1183. sufficiency as to form of notice to credi- tor to sue principal in order to dis- charge surety, 1916C-632. DIGEST. 1916C 1918B. SURETYSHIP Continued. Husband and wife: right of married woman to become surety for husband, 1917B-697. Liability of surety: effect of abandon- ment or dismissal of appeal on liabil- ity of sureties on appeal bond, 1916C- 1226. failure of principal to sign obligation as affecting liability of surety, 1917C- 1073. liability of sureties of executor or ad- ministrator for debt of their principal to decedent, 1916D-636. liability of sureties on bond of public administrator, 1918B-1072. liability of sureties on bond of sheriff or constable for assault committed by officer, 1916D-923. part payment by principal with consent of surety as suspending statute of limitations as to surety, 1916D-327. Mechanics' liens: surety on bond of con- tractor or purchaser as necessary party defendant to action to fore- close mechanic's lien, 1918B-23. Subrogation: payment of whole debt by surety as essential to right of subro- gation to creditor's securities, 1917C- 1183. SURFACE. See Mines and Minerals. SURGEONS. See Physicians and Surgeons. SURGICAL ATTENDANCE. See Master and Servant. SURVEYS. Admissibility in evidence of ancient sur- vey, 1916C-176. Admissibility in evidence of field book entries of deceased surveyor. 1917E- 675. SURRENDER OF POSSESSION. See Landlord and Tenant. SURVIVAL OF ACTIONS. See Actions. SURVIVING PARTNERS. See Partnership. SURVIVORSHIP. Admissibility of coroner's verdict as evi- dence on issue of survivorship, 1917B- 899. SUSPENSION FROM SCHOOL. See Schools. INDEX TO THE NOTES. SUSPENSION OF ACTION. See Actions. SUSPENSION OF ALLOWANCE. See Workmen's Compensation Acts. SUSPENSION OF ATTORNEY. See Attorneys. SUSPENSION OF INJUNCTION. See Injunctions. SWINGING DOORS. See Owners of Premises. SYMBOLICAL DELIVERY. See Frauds, Statute of. TABLES. See Mortality Tables. TAXATION. Decedents' estates: validity of statute fix- ing probate or administration fees, 1916C-213. Delinquent taxpayers: validity of statute imposing restriction on exercise of rights by delinquent taxpayer, 1916D- 1099. Estoppel: estoppel of taxpayer returning property for taxation to dispute as- sessment based on return, 19160-230. estoppel of taxpayer to question valid- ity of tax, 1916C-22. Exemptions: hospital as charity exempt from taxation, 1917B-278. validity of exemption from taxation of money loaned on mortgage security, 1916E-757. Foreign corporations: liability to taxa- tion within state of shares of stock of foreign corporation, 1916C-829. ' Income taxes: effect of partial invalidity of statute relating to income taxes, 1916D-89. meaning of "plant" as used in English Income Tax Act, 1917A-322. situs of income of corporation for pur- pose of income tax, 1918A 426. taxable personal income under income tax statute, 1916D-1265. Inheritance taxes: effect of partial in- validity of statute relating to inherit- ance taxes, 1916D-89. situs of corporate stock for purposes of succession tax, 1918A-555. time for taxing future estates under succession tax acts, 1916D-309. Mercantile agencies: taxation of mercan- tile agencies, 1916D-749. Poll taxes: constitutionality of poll taxes, 1917E-1208. TAXATION Continued. Priorities: priority as between purchase money mortgage and tax assessment, 1916C-955. validity and construction of statute giv- ing priority to lien for taxes, 1917A- 1079. Railroads: valuation of railroad property for purpose of taxation, 1916E-1180. "Residence": what constitutes "residence" in jurisdiction within personal prop- erty or inheritance tax statute, 1917B-726. Special assessments: assessment of rail- road right of way for street improve- ment, 1916E-579. public property as subject to special assessment, 1917D-844. right of municipality to contract for local improvement with special as- sessment against persons benefited where cost exceeds authorized debt limit, 1917B-192. -time within which special or local as- sessment must be made, 1917E-137. fetate lands under contract of purchase as subject to taxation, 1917C-129. Statutes: effect of partial invalidity of statute relating to taxation, 1916D- 87. Tax sales: effect of partial invalidity of statute relating to tax sales and deeds, 1916D-48. personal liability of officer for sale of property for taxes under void statute, 1918B-190. sale of land for taxes as extinguishing private easement, 1916C 638. sufficiency of notice to redeem from tax sale with respect to statement as to expiration of time to redeem, 1917A- 243. Trusts and trustees: situs, for purpose of taxation, of personal property held in trust, 1917D-948. See also Licensee. TAXICABS. Taxicab proprietor as common carrier, 1916D-767. TAXPAYERS. See Appeal and Error. TEACHERS. See Schools. TELEGRAPHS AND TELEPHONES. Disclosure of contents of message: liabil- ity of telegraph company for disclos- ure of contents of message, 1916C- 727. Eminent domain: power of telegraph or telephone company to condemn rail- road right of way under state statute, 1917B-689. 108 DIGEST. 1916C 1918B. TELEGRAPHS AND TELEPHONES Continued. Evidence: admissibility in evidence of self-serving letter or telegram sent in general course of business, 1917D-790. conversations by telephone as evidence, 1916E-977. presumption of receipt of telegram, 1917E-1081. Mental anguish: what is excessive verdict for mental anguish in telegraph case, 1916C-524. Municipal corporations; power of munici- pality to construct and operate mu- nicipal telephone system, 1918A-380. Notice of claim: commencement of suit as presentation of claim within stipula- tion on telegraph blank, 1917D-162. Notice of delay: duty of telegraph com- pany to notify sender of delay in transmission or delivery of message, 1917C-545. Poles and wires: acquirement by prescrip- tion of right to maintain telegraph, telephone or electric light pole, 1916E-981. revocation or expiration of right of electric company to maintain poles and wires in street, 1917E-525. Privileged communications: telegram as privileged communication, 1916C-704. Refusal to accept message: liability of telegraph company for refusal to ac- cept message for transmission, 191 6D- 467. Service by telephone: validity of service, notice, or other transaction by tele- phone, 1917B-903. TEMPERANCE. Presumption of temperance or sobriety, 1918A-620. TEMPORARY INJUNCTIONS OR RE- STRAINING ORDERS. See Injunctions. TENANT BY CTJRTEST. See Curtesy. TENANTS IN COMMON. Nature of estate resulting from creation of cotenancy, 1917B-57. Eight of one tenant in common to sue for damages for injury to premises, 1917A-608. Eight of tenant in common to compensa- tion for services in selling common property, 1916C-680. Eight of tenant in common to remove minerals from soil, 1918B-580. Eule preventing tenant in common from purchasing outstanding title as appli- cable where tenants hold adversely to each other, 1916D-1307. See also Partition. TENDER. Effect of tender of amount due on judg- ment, 1916C-536. See also Fire Insurance. TENT. Legal meaning of "tent," 1918B-138. TERMINATION OF ALLOWANCE. See Workmen's Compensation Acts. TERMINATION OF CONTRACT. See Master and Servant. TERM OF COURT. See Courts. TESTAMENTARY CAPACITY. See Wills. TEST ORDER. See Public Service Commissions. THEATERS AND AMUSEMENTS. Contracts: amusement contracts, 1917C- 391. "Dealer": operator of penny arcade as "dealer," 1917A-960. Moving pictures, 1916C-301. Personal injuries: liability of organizer or promoter of public entertainment not given for profit for personal injuries, 1917E-238. Sundays and holidays: engaging in labor or amusement on Sunday as offense at. common law or under statute other than Sunday law, 1918B-387. Tickets of admission: right of purchaser of ticket of admission to place of amusement, 1916D-464. THEFT. See Larceny. THREATS. Criminal liability for threat of prosecu- tion in connection with demand for payment of debt, 1917E-246. Sending anonymous letter as criminal of- fense, 1917C-699. See also Duress; Extortion. TICKETS AND FARES. Effect of partial invalidity of statute re- lating to tickets, 1916D-85. Person buying and selling railroad tickets as "dealer," 1917A-961. Statute regulating railroad tickets and scalping as interference with inter- state commerce, 1917A-997. INDEX TO THE NOTES. 109 TICKETS AND FARES Continued. Validity of order by public service com- mission regulating commutation rates. 1917B-1153. Validity of rule of street railway with re- spect to use of transfer, 1916D-586. See also Theaters and Amusements. TIDE. Loss resulting from rise or fall of tide as due to act of God, 1917A-450. TIMBER. See Trees and Timber. TIME. Exclusion or inclusion of Sunday or holi- day in computation of time. 1917E 934. "From" as word of inclusion or exclusion, 191SA-924. Presumption as to time of receipt of let- ter, 1917E-1068. Time of death within rule as to presump- tion of death from absence, 1917A-82. What constitutes reasonable time for in- fant to disaffirm contract after major- ity, 1917D-413. TIME FOR ARGUMENT. See Argument of Counsel. TIME OF PAYMENT. See Bills and Notes. TIPS. See Average Weekly Earnings. TITHES. See Animals. TITLE. Effect of partial invalidity of statute re- lating to title to real property, 1916D-47. See also Adverse Possession; Animals; Fire Insurance; Judicial Sales; Land- lord and Tenant; Libel and Slander; Recording Acts; Tenants in Common; Vendor and Purchaser; Waters and Watercourses. TOBACCO. Seller of tobacco as "dealer." 1917A-953. TOILET PREPARATIONS. See Intoxicating Liquors. TOMBSTONES. See Executors and Administrators. TOOLS. Effect on relation of employee as such of stopping work temporarily to obtain tool, 1918A-1197. Vehicle as "tool," "implement" or "in- strument" within exemption statute, 1917D-96. TORTS. Act lawful in itself not rendered unlaw- ful by malicious motive, 1916C-438. Civil liability for interference with con- tract relations, 1916E-608. See also Attorneys; Fire Insurance; Im- prisonment for Debt; Negligence; Set- off; Subrogation; Taxation; Wit- nesses. TOTAL DISABILITY. See Workmen's Compensation Acts. TOTAL LOSS. See Marine Insurance. TOWNS. Lien of attorney on town order in his pos- session connected with litigation, 1917D-150. TRACTION ENGINES. See Streets and Highways. TRADEMARKS AND TRADE NAMES. Assignability of trademarks and trade names, 1917A-260. Eight of unincorporated benevolent, fraternal or social organization to protection in use of its name, 1918A- 245. Use of personal or corporate trade name as unfair competition, 1918A-229. . TRAINS. See Carriers of Passengers; Railroads. TRANSACTIONS WITH DECEDENTS. See Witnesses. TRANSCRIPT. See Discovery. TRANSFER OF EXPECTANCY. See Descent and Distribution. TRANSFER OF STOCK. See Stock and Stockholders. \ TRANSFERS. See Street Railways. 110 DIGEST. 1916C 1918B. TRANSFER TAXES. See Taxation. TRIAL. TRANSIENT MERCHANTS. State or municipal regulation of transient merchants, 1917E-505. TRANSMISSION OF MESSAGES See Telegrams and Telephones. TRANSPORTATION. Employment in connection with trans- portation of goods as within purview of workmen's compensation act, 1917D-28. See also Intoxicating Liquors; Mechanics' Liens. TRAVEL. See Insurance. TRAVELING EXPENSES. See Agency. TREASON. What constitutes "adherence to enemies," etc., 479. within law of treason, 1917D- TREES AND TIMBER. Adjoining landowners: rights of adjoining landowners with respect to tree on or overhanging boundary line, 1918B- 1157. Diseased trees: validity of statute provid- ing for destruction of diseased fruit trees, 1917E-220. Forestry: employment in forestry service as within purview of workmen's com- pensation act, 1917D-23. validity and construction of forestry 'legislation, 1917A-5. Loggers' liens: by whom and for what labor or services logger's lien may be claimed, 1916G-198. Moving buildings: liability for injury to trees in moving building, 1917C-80. Taxation: validity of license tax imposed on owner of premises for extracting mineral or turpentine therefrom or cutting timber thereon, 1918A-678. Waters and watercourses: liability of one using stream to float timber for re- sulting injuries to riparian owner, 1918A-732. TRESPASS. Inconsistent defenses in action growjng out of trespass on realty, 1917C-735. Eight of trespasser to recover damages for injuries sustained wharf, 1916C-150. See also Assault; Infants. on defective Attorneys: liability of attorney to client for negligence with respect to trial of cause, 1917B-27. Continuance: continuances in divorce cases, 1918B-1087. exclusion or inclusion of Sunday or holiday in computation of time of continuance, 1917E-938. ^prejudicial newspaper publication as ground for continuance of criminal case, 1918A-449. Criminal actions: effect of failure to ask convicted person if he has anything to say before sentence, 1916C-95. right of accused to consult with or sit by counsel during trial, 1916D-204. right of criminal court to exclude per- sons from courtroom, 1917E-625. right of private counsel to assist pros- ecution in criminal case, 1917D-512. time or stage in criminal proceedings when question of insanity of defend- ant may be determined by inquisition or otherwise, 1916E-424. Misconduct of judge: propriety of instruc- tion or comment by court to effect that perjury has been committed at trial, 1917B-128. Open and close: right to open and close where only issue is amount plaintiff is entitled to recover, 1916D-953. Penal actions: trial of action for penalty for violation of intoxicating liquor statute, 1916E-873. Physical examination: power of court to compel submission to physical exam- ination, 1917D-351. Place of trial: power of court to try case at place other than courthouse or courtroom, 1917E-1050. Time of trial: exclusion or inclusion of Sunday or holiday in computation of time for trial, 1917E-93S. Trial without jury: effect of admission of incompetent evidence in trial before court without jury, 1917C-660. See also Argument of Counsel; Courts; Injunctions; Instructions; Judges; Jury; Misconduct of Counsel; New Trial; Venue; Verdict. TRICKS. See Confessions. TRUST DEEDS. Lien of attorney on trust deed in his pos- session connected with litigation, 1917D-150. Eight to enjoin sale under mortgage or trust deed on ground of conflicting liens or rights or because of disputed title, 1917D-125. 1 TRUSTS. See Monopolies. INDEX TO THE NOTES. Ill TRUSTS AND TRUSTEES. Bank deposits: joint deposit in bank as creating trust, 1916D-523. Construction or resulting trusts: suffi- ciency of evidence to establish con- strutive or resulting trust, 1916D 1194. Limitation of actions: application of stat- ute of limitations as between trustee and beneficiary of express trust, 1917C-1018. Mechanics' liens: cestui que trust as necessary party defendant to action to forelose mechanic's lien, 1918B-18. trustee of property as necessary party defendant to action to foreclose mechanic's lien, 1918B 17. Merger of estates where life tenant is also trustee of property, 1917 A-l 221. Mortgaging trust property: power of trustee to mortgage trust property, 19160-606. Personal interest of trustee: effect of trustee having interest in subject- matter of trust, 1918A-481. Removal of trustee: antagonism or ill feeling between trustee and benefi- ciary as ground for removal of trustee, 1918B-1044. Renunciation: right of executor or trustee to retract renunciation of trust, 1916D-1301. Spendthrift trusts: sufficiency of instru- ment to create spendthrift trust. 1917B-400. Taxation: situs, for purpose of taxation, of personal property held in trust, 1917D-948. See also Mortgages. TURNPIKES AND TOLLROADS. Criminal liability of corporation for col- lecting excessive toll, 1916C-465. TURNSTILES. See Owners of Premises. TURPENTINE. See Licenses. TYPEWRITING. Forgery of or by typewriting, 1916D-784. UNCONTROLLABLE IMPULSE. See Insanity. UNDERGROUND PIPES. See Waterworks and Water Companies. UNDERSTANDING. See Breach of Promise of Marriage; Libel and Slander. UNDERTAKERS. See Burial Insurance. UNDISCLOSED PRINCIPAL. See Agency. UNDISPUTED WRITING. See Handwriting. UNDUE INFLUENCE. Admissibility of declaration of testator not made at time of execution of will, on question of undue influence, 1917D- 717. Presumption and burden of proof of undue influence in case of conveyance inter vivos by parent to child, 1918B-457. Presumption of undue influence arising from relation of man and woman en- gaged to be married, 1916C-1031. UNEARNED PREMIUM. See Fire Insurance. UNFAIR COMPETITION. See Trademarks and Trade Names. UNFAIR LIST. See Labor Combinations. UNIFORM WAREHOUSE RECEIPTS ACT. See Warehouses. UNINCORPORATED ASSOCIATIONS. See Societies and Clubs. UNITED STATES. See Common Law; Militia. UNLAWFUL ASSEMBLY. Engaging in labor or amusement on Sun- day as offense at common law or un- der statute other than Sunday law, 1918B-387. UNNATURAL DISPOSITION OF PROP- ERTY. See Wills. UNREASONABLE TESTIMONY. See Evidence. UNREGISTERED TRANSFERS. See Stock and Stockholders. UNUSUAL PUNISHMENT. See Sentence and Punishment. 112 DIGEST. 1916C 1918B. USAGES AND CUSTOMS. VARIANCE. Admissibility of evidence 'of peculiar sig- nification of word in locality where instrument was executed, 1916C-655. Effect of custom on personal liability of attornev for incidental expenses of action, *1917B-523. Power of arbitrators to determine exist- ence of usage or custom, 1916D-360. See also Beneficial Associations. USE OF PROPERTY. See Damages; Ships and Shipping. USING PRIVY. Effect on relation of employee as such of stopping work temporarily to use privy, 1918A-1195. USURY. Acceleration of debt: provision for accel- eration of maturity of debt on default in payment of interest or installment of principal as usurious, 1917D-725. Agency: act of agent in entering into usurious contract as binding principal, 1916C-327. Building and loan associations: constitu- tionality of statutes exempting build- ing and loan associations from usury laws, 1916E-232. Corporations: Criminal liability of corpo- ration for receiving illegal interest, 1916C-465. National banks: jurisdiction of action against national bank to recover pen- alty for taking usurious interest, 1916D-1246. Punishment: what constitutes cruel and unusual punishment for taking usury, 1918B-400. Renewal contract as affected by usury in original contract, 1918A-753. VACANCY. See Fire Insurance. VACATION. See Judgments; New Trial; Streets and Highways. VALUATION. See Taxation. VALUE. Admissibility in eminent domain proceed- ing of evidence of price paid by an- other than condemnor for similar property, 1916E-598. Price paid for personalty or services as evidence of value thereof, 1916D-797. See also Bribery; Carriers of Goods; Dam- ages. Effect of variance between indictment and proof with respect to suffix to name, 1917A-1214. VASECTOMY. Vasectomy as cruel and unusual punish- ment, 1918B-398. VEGETABLES. See Agriculture. VEGETATION. Injury to vegetation as warranting relief against brick kiln as nuisance, 1917E- 422. VEHICLES. Care required of driver of street-car or other vehicle to avoid collision with fire apparatus, 1918A-290. Operation of vehicle as employment within purview of workmen's compensation act, 1917D-28. Vehicle as "tool," "implement" or "instru- ment" within exemption statute, 1917D-96. See also Automobiles; Motorcycles; Neg- ligence; Streets and Highways; Taxi- cabs; Wagons. VENDOR AND PURCHASER. Assignment: right of assignee of contract for purchase of land to sue for rescis- sion thereof, 1917E-845. Breach of contract: measure of damages for breach of contract to sell land due to vendor's inability to make title, 1917B-858. right of defaulting purchaser under con- tract for sale of land to reimbursement for improvements, 1917C-85. right of purchaser to rescind contract of sale for breach by vendor in ten- dering less land than quantity con- tracted for, 1916D-1154. Brokers: power of real-estate broker to make contract of sale, 1917A-522. Building restrictions and restrictive agree- ments: building restriction or restric- tive agreement as binding public or public service corporation, 1918B-591. enforcement in equity against subpur- chaser of restrictive covenant not running with lands, where covenantee has no interest in adjoining land, 1916C-942. Corporations: authority of officer of corpo- ration to enter into contract for pur- chase or sale of real estate, 1917A- 482. Crops: validity of parol reservation of crops by vendor of land, 1916C-344. Homestead: validity of contract to con- vey homestead without joinder of wife, 1917A-76. INDEX TO THE NOTES. 113 VENDOR AND PURCHASER Continued. Mechanic's lien on realty for improve- ments made by purchaser under con- tract of sale with consent of owner. 19160-1135. Option to purchase realty as violating rule against perpetuities, 1916D-577. Purchasers for value: person taking con- veyance of realty in payment of pre- existing debt as purchaser for value. 1918A-112. Taxation: state lands under contract of purchase as subject to taxation, 1917C-129. See also Agency; Dedication; Deeds; Ven- dor's Lien. VENDOR'S LIEN. Existence of implied vendor's lien where consideration for conveyance is agree- ment to support vendor for life. 1917C~ 288. Priority as between implied vendor's lieu and judgment against purchaser, 1916D-384. Transfer of warehouse receipt as divesting vendor's lien, 1917D-112. VENUE. Application for change of judge or venue on ground of bias of judge as ousting judge of jurisdiction, 1916D-1281. Bias of judge existing prior to trial as ground for reversal in absence of showing of prejudice at trial, 1917E- 954. Change of venue in divorce action, 1917A- 940. VERDICT. Chance or quotient verdict: validity of chance or quotient verdict, 1917C- 1224. Direction of verdict: necessity of excep- tion to direction of verdict, 1917A- 849. Excessive or inadequate verdict: inade- quacy or excessiveness of verdict in civil action for rape, 1917E-135. what is excessive or inadequate verdict in action against physician for mal- practice, 1916C-1078. what is excessive or inadequate verdict in action for false imprisonment, 1916C-505. what is excessive or inadequate verdict in action for malicious prosecution, 1916C-250. what is excessive verdict for mental anguish in telegraph case, 1916C-524. what is excessive verdict in action for libel or slander, 1916D-1175. Negative pregnant in verdict, 1917A-676. See also Coroners; Jury. VERIFICATION. See Criminal Law. VESSELS. See Carriers of Passengers; Ships and Shipping. VESTED REMAINDERS. See Remainders and Reversions. VESTED RIGHTS. See Workmen's Compensation Acts. VIBRATION. See Explosions and Explosives. VIOLATION OF LAW. See Life Insurance. VOLUNTARY APPEARANCE. See Appearance. VOLUNTARY ASSOCIATIONS. See Societies and Clubs. VOTES. See Elections. VOUCHERS. Lien of attorney on voucher in his pos- session connected with litigation. 1917D-150. VOYAGE. See Marine Insurance. VULGAR LANGUAGE. See Breach of Peace; Disorderly Conduct. WAGES. Distinction between "salary" and "wages." 1917B-321. Effect of partial invalidity of statute re- lating to wages, 1916D-68. Term of employment and rate of compen- sation of one continuing in service after termination of contract, 1918B- 1176. Tips as part of earnings or wages, J918B- 1122. What constitutes "loss" within meaning of statute terminating seamen's wages upon loss of vessel, 1916D-688. WAGONS. Eight of action by driver of motorcycle for collision with wagon, 1917A-223. WAIVER. See Alteration of Instruments; Appeal and Error; Appearance; Beneficial Associations; Criminal Law; Insur- ance; Jeopardy; Mechanics' Liens; Pleading; Stock and Stockholders; Witnesses. 114 DIGEST. 1916C 1918B. WANT OF JURISDICTION. See Appearance. WAR. Alien enemies: expatriated person as alien enemy, 1916D-306. rights and liabilities of alien enemies, 1917C-189. Contracts: war as excuse for breach of contract, 1918A-14. Espionage: validity of espionage act. 1918B-1011. Internment: internment of person of hos- tile origin or association, 1917D-409. status of interned alien enemy, 191 7C- 193. Marine insurance: frustration of voyage because of existence of war as con- structive total loss within marine in- surance policy, 1916D-884. Neutral property: right of belligerent power to requisition goods of neutral, 1916E-245. Personal liability of soldiers: existence of war as affecting liability of soldier or militiaman for injury to person or property, 1917C-15. Prizes: right to bring prize into neutral port, 1917D-448. War power: nature and scope of war power, 1918B-1009. Workmen's compensation act as applicable to injury arising from war, 1917C-760. See also Army and Navy; Militia; Ships and Shipping; Treason. WARD. See Guardians. WAREHOUSES. Construction of uniform warehouse receipts act, 1917E-29. Employment in warehouse as within pur- view of workmen's compensation acts, 1917D-4. Transfer of warehouse receipt as divesting vendor's lien, 1917D-112. WARRANT. Proof by parol of contents of lost or de- stroyed warrant, 1916D-252. See also Arrest; False Imprisonment; Searches and Seizures. WARRANTS. Lien of attorney on warrant in his posses- sion connected with litigation, 1917D- 150. See also Municipal Corporations. WARRANTY. Express or implied warranty on sale by sample, 1917C-311. WARRANTY Continued. Express or implied warranty on sale of seed, 1918B-72. Bight of conditional vendee to recover damages for breach of warranty 1918B-914. Warranty to agent as inuring to benefit of undisclosed principal, 1918B-130. WATCHMAN CLAUSE. See Fire Insurance. WATER-CLOSETS. See Health. WATERCRAFT. See Ships and Shipping. WATERS AND WATERCOURSES. "Damage by elements": damage by water as included within term "damage by elements," 1917B-297. Eminent domain: right of railroad com- pany to condemn water over which right of way is constructed, 1916E- 1215. Floating timber: liability of one using stream to float timber for resulting injuries to riparian owner, 1918A-732. Ice: nature and effect of grant of right to take ice from another's premises, 1917D-93. right to harvest ice as between person having right of flowage and riparian proprietor, 1917C-782. Lakes: title to bed of non-navigable lake, 1916D-299. Land under water: power of state to grant title to land under navigable water, 1918B-1107. Master and servant: river and harbor or fortification work as employment within purview of workmen's compen- sation act, 1917D-27. well-digging as employment within pur- view of workmen's compensation act 1917D-30. Obstruction: criminal liability of corpora- tion for obstruction of public water- way, 1916C-463. duty of one obstructing natural water- course to anticipate extraordinary freshets or floods, 1918A-1114. Power: construction of grant of water power, 1916D-1002. Statutes: effect of partial invalidity of statute relating to nuisances affect- ing watercourses, 1916D-77. effect of partial invalidity of statute relating to waters and watercourses, 1916D-93. Tides: loss resulting from rise or fall of tide as due to act of God, 1917A-450. Wells and springs: prescriptive right of individual to take water from an- other's well or spring, 1917A'-881. INDEX TO THE NOTES. 115 WATERS AND WATERCOURSES Con- tinued. Wells and springs: right of landowner to sink well and intercept subterranean waters supplying neighbor's well or spring, 1917C-106. See also Irrigation. WATERWORKS AND WATER COM- PANIES. Eminent domain: interest in land acquired by condemnation for purpose of water supply as easement or fee, 1918A- 809. Extension of water system: power to com- pel extension of water system, 1916D- 285. Pipes: duty of water company to lay ser- vice pipe without charge to con- sumer, 1916E-1297. liability for injuries caused by under- ground water pipes, 1916C-1050. "Plant": meaning of "plant" as applied to water system, 1917A-321. Statutes: effect of partial invalidity of statute relating to water in munici- palities, 1916D-76. WEALTH. See Argument of Counsel. WEAPONS. What constitutes "deadly weapon," 1916E- 308. WEARING APPAREL, Measure of damages for IOM of wearing apparel, 1917B-585. WEEDS. See Agriculture. WEEKLY EARNINGS. See Average Weekly Earnings. WEEKLY REST DAY. See Labor Laws. WEIGHT OF EVIDENCE. See Evidence. WEIGHTS AND MEASURES. Criminal liability of corporation for use of false weights and measures, 1916C- 465. WELLS. Liability of land owner for injury to trespassing child on account of un- guarded pond, pool, well, etc., 1916C- 1085. See also Waters and Watercourses. WHARVES. Effect of partial invalidity of statute re- lating to wharves, 1916D-93. Employment on wharf as within purview of workmen's compensation act. 1917D-21. Injuries to persons on or about wharves, docks, or piers, 1916C-139. WIDOWS. Widow of owner of premises as necessary party defendant to action to foreclose mechanic's lien, 1918B-14. See also Equitable Election; Executors and Administrators. Wll'E. See Husband and Wife. WILD ANIMALS. See Animals. WILFUL INJURIES. See Bankruptcy. WILLS. Annulment or establishment: right to an- nul or establish will before death of testator, 1918A-738. Attestation: competency, as attesting wit- ness to will, of husband *or wife of beneficiary, 1917A-833. Constitutional law: right to take property by inheritance or will as natural right protected by constitution,1918A-939. Construction: bequest to be divided equally among persons standing in different relationships to testator as requiring division per capita or per stirpes, 1916C-411. "child" in will as including illegitimate child, 1918B-261. construction of "and" as "or," and vice versa, in construing will, 1917C-306. construction together as one will of several testamentary instruments par- tially inconsistent, 1917E-781. estate created by grant or devise of life estate with absolute power of disposi- tion, 1916D-400. implied devise or bequest from recital in will, 1917D-431. implied power of executor to sell real estate of testator, 1916D-410. meaning of "all" as used in will in con- nection with "rest," "residue," or "remainder," 1917E-75. meaning of "contents" or similar ex- pression as used in will in connection with property bequeathed or devised, 1916C-1139. meaning of "desire" as used in will, 1917B-503. meaning of term "lawful heirs" as used in will, 1917C-1156. 116 DIGEST. 1916C 1918B. WILLS Continued. Construction: nature of estate resulting from creation of cotenancy, 1917B-57. right of representative of predeceased child to share in remainder given to children as a class, 1917B-1245. what is included in term "premises" as used in will, 1916C-119. when gift to "children" and like in- cludes child en ventre sa mere, 1916E- 1034. Contracts relating to wills: Measure of damages for breach of contract to make will, 1918A-854. : running of statute of limitations against action for services performed in con- sideration of oral agreement to com- pensate by will, 1918A-912. validity of contract not to change will, 1916D-1160. Equitable election: election by widow to take under will as affecting her right to intestate property, 1918B-986. sufficiency of acts to constitute election by husband to take under wife's will, 1916C-1204. Execution: collusiveness of testimony of subscribing witnesses with respect to execution of will, 1916D-1104. necessity that will be signed by testa- tor at end thereof in absence of stat- ute so requiring, 1916E 140. sufficiency of signature of testator to will with respect to manner of sign- ing, 1917B-874. Foreign wills: conclusiveness in domestic courts of foreign will duly probated abroad, 1918A-614. Legacies and devises: "child" in statute avoiding lapsing of legacies as in- cluding illegitimate child, 1918B-254. effect of refusal of devisee to accept devise of realty, 1916D-H99. Nuncupative wills: attempt to make for- mal will as constituting nuncupative will, 1917D-608. Probate and contest: admission to probate of several wills which are of same date or of which one or more are un- dated, 1918A-780. estoppel to seek probate of will, 1918A- 1200. power of executor or administrator with will annexed to appeal from judgment refusing probate, 1917C- 1079. power or duty of administrator, guard- ian, or the like, to contest will, 1918B- 536. proof by parol of contents of lost or destroyed probate record, 1916D-254. right of person who is merely legatee or devisee to contest will, 1917C-905. validitv of statute fixing probate fees, 1916C-213. Reformation: jurisdiction of equity to re- form will, 1917D-1137. WILLS Continued. Re vocation and revival: effect on will of marriage of testator without issue, 1917A-203. revival of will revoked by marriage, 1917D-1175. revocation of will of woman by subse- quent marriage, 1917C-1039. Testamentary capacity: admissibility of coroner's verdict as evidence on issue of testamentary capacity, 1917B-899. admissibility of declaration of legatee or devisee as to mental capacity of testator, 1918A-1066. insane delusion with respect to relative as affecting testamentary capacity. 1916C-4. right of physician who attended testa- tor before his death to testify as to his mental condition, 1918A-1050. unnatural or unjust disposition of estate as evidence of testamentary inca- pacity, 1917E-130. validity of -will made by blind person, 1916D-792. Undue influence: admissibility of declara- tions of testator not made at time of execution of will, on question of un- due influence, 1917D-717. Validity of provisions: validity of legacy or devise conditioned on recipient ob- taining divorce or separating from spouse, 1917B-167. validity of testamentary disposition in restraint of marriage," 1918B-1141. validity of testamentary disposition subversive of religion, 1917B-10l'4. See also Deeds; Executors and Adminis- trators; Privileged Communications; Partition; Remainders and Ee ver- sions; Trusts and Trustees. WINDOWS. See Burglary. WIRES. See Electricity; Telegraphs and Tele- phones. WITNESSES. Acknowledgment: competency of witnesses on issue of verity of acknowledg- ment, 1917A-372. Age: competency of witness to testify as to his own age, 1918B-427. competency of witness to testify to age of another person, 1918A-262. Depositions: necessity and sufficiency of naming of witness in notice of taking deposition, 1918A-950. Expert witnesses: testing handwriting witness by use of other writing, 1917B-1060. use of scientific books in connection with examination of expert witness, 1916E-356. INDEX TO THE NOTES. 117 WITNESSES Continued. Fees: personal liability of attorney for fees and expenses of witness. 1917B- 523. Husband and wife: admissibility of testi- mony of married woman to prove non- access of husband, 1917A-1031. effect of death of one spouse on com- petency of other as witness, 1917D- 216. husband or wife as competent witness in prosecution for bigamy, 1916C- 1060. Impeachment: proof of drug or liquor habit to discredit witness, 1918A-639. Jurors: competency as witness of juror on former trial, 1916C-676. Libel and slander: testimony of witness as privileged within law of libel and slander, 1918A-822. Privilege: admissibility in civil case of evidence showing that witness had previously claimed privilege in crim- , inal case, 1917E-879. comment by prosecutor on failure of ac- cused to testify, 1917D-277. waiver by witness of constitutional privi- lege as extending to subsequent trial or proceeding, 1916C-1012. Privileged communications: communica- tions between attorney and client in regard to testamentary matters as privileged, 1916C-1073. information communicated in contract, fiduciary or similar relation as privi- leged from disclosure, 1916C-698. right of person overhearing privileged communication to testify thereto, 19I8A-441. statement by prosecuting witness to prosecuting attorney as privileged, 1916E-1121. Transactions with decedent: admissibility of evidence given at former trial con- cerning transaction with person since deceased, 1917B-366. competency of interested witness to testify as to letter passing between him and person since deceased, 1916E-747. right of party to instrument to deny execution thereof by himself after death of other party, 1918A-777. right of physician who attended testa- tor before his death to testify as to his mental condition, 1918A-1050. rule excluding testimony relating to transaction with decedent as appli- cable to action ex delicto, 1918B-98. statute against admission of evidence of transaction with decedent as appli- cable to deposition taken before death, 1917B-490. waiver by personal representative of in- competency of witness to testify to transaction with decedent, 1918A-471. See also Deeds; Evidence; Mortgages; Wills. WOMEN. Bight of woman to be notary public, 1917I>-534. See also Labor Laws; Schools. WORDS. Admissibility of evidence of peculiar signification of word in locality where instrument was executed, 1916C-655. WORDS AND PHRASES. "All": meaning of "all" as used in pro- hibitory or regulatory statute, 1917E- 39. meaning of "all" as used in will in con- nection with "rest," "residue," or "remainder," 1&17E-75. meaning of "all" as used with respect to minerals, 1917E-70. meaning of "all damages," 1917B-82. meaning of "all matters," 1917E-87. 'meaning of "all property" as used in in- strument, statute, etc., other than will, 1917E-58. meaning of "all revenue," 1918B-206. "And": construction of "and" as "or" in construing will, 1917C-306. "Any": legal meaning of "any," 1916E-2. "Average weekly earnings": meaning of phrase "average weekly earnings" in workingmen's compensation or similar act, 1918B-640. tips as part of "average weekly earn- ings" under workmen's compensation act, 1918B-1122. "Bills for raising revenue": legal meaning of "bills for raising revenue," 1918B- 209. "Board of revenue": legal meaning of "board of revenue," 1918B-220. "Child": "child" as including illegitimate child, 1918B-249. when gift to "children" and like in- cludes child en ventre sa mere, 1916E- 1034. "Citizen" as including corporation, joint stock company or partnership. 1917C- 875. "Commodity": legal meaning of "commod- ity," 1916D-986. "Completed": meaning of "complete" or "completed" as applied to railroad, 1916D-1232. "Contents": meaning of "contents" or similar expression as used in will in connection with propertv bequeathed or devised, 1916C-1139. "Damage by elements": construction of phrase "damage by elements" or simi- lar phrase as used in contract, 1917B- 296. "Deadly weapon": what constitutes "deadly weapon," 1916E-308. "Dealer": meaning of "deal" or "dealer," 1917A-949. 118 DIGEST. 1916C 1918B. WORDS AND PHRASES Continued. "Dependent": who is "dependent" within workmen's compensation act, 1918B 749. "Depot": legal meaning of "depot," 1917A-1283. "Desire": meaning of "desire" as use'l in will, 1917B-S03. "Ejusdem generis": meaning of term "ejusdem generis" as used in work- men's compensation act, 1917D-7. "Estimated revenue": legal meaning of "estimated revenue," 1918B-206. "Etxpressio unius est exclusio alterius": meaning of phrase ''expressio unius est exclusio alterius" as used in work- men's compensation act, 1917D-8. "Extrahazardous": meaning of "extra- hazardous" as used in workmen's com- pensation act, 1917D-10. "Facility of payment" construction of "facility of payment" clause in indus- trial insurance policy, 1918B-1193. "Family": persons included within the term "family" when used to desig- nate beneficiaries in insurance policy or benefit certificate, 1917C-694. "Family expenses": meaning of term "family expenses," 1917C-575. "Father" as including stepfather, 1&17B- 1118. "From" as word of inclusion or exclusion, 1918A-924. "General revenue": legal meaning of "gen- eral revenue," 1918B-207. "Hazardous": meaning of "hazardous" as used in workmen's compensation act, 1917D-10. "Implement": vehicle as "implement" within exemption statute, 1917D-96. "Inherit": meaning of "inherit," "in- herited," etc., 1917C-386. "Injury": what is "injury" within mean- ing of workmen's compensation act, 1918B-362. "Insolvent": when bank is "insolvent," 1916C-85. "Instrument": vehicle as "instrument" within exemption statute, 1917D-96. "Law": ordinance as "law," 1917C'-687. "Lawful heirs": meaning of term "lawful heirs" as used in will, 1917C-1156. "Lying in wait": what constitutes "lying in wait" within statute relating to homicide, 1916C-969. "More or less": construction of term "more or less" in deed of realtv, 1917D-155. "Natural heirs": meaning of term "nat- ural heirs," 1917A-1159. "Officer of the revenue": legal meaning of "officer of the revenue," 1918B-220. "Or": construction of "or" as "and" in construing will, 1917C-306. "Order of court": what constitutes "order of court," 1917C-1041. "Ordinary revenue": legal meaning of "ordinary revenue," 1913B-208. WORDS AND PHRASES Continued. "Otherwise": legal meaning of "other- wise," 1916C-644. "Personal injury": what is "personal in- jury" within meaning of workmen's compensation act, 1918B-362. "Plant": meaning of "plant" as used with reference to business, 1917A-317. "Premises": what is included in term "premises" as used with respect to land, 1916C-1192. "Recent": meaning of term "recent" or "recently," 1918A-814. "Rent": distinction between rent and royalty, 1916E-1225. "Residence": what constitutes "residence" in jurisdiction within personal prop- erty or inheritance tax, 1917B-726. "Revenue": legal meaning of "revenue," 1918B-200. "Revenue debts or charges": legal mean- ing of "revenue debts or charges," 1918B-219. "Revenue laws": legal meaning of "revenue laws," 1918B-209. "Revenue measure": legal meaning of "revenue measure," 1918B-218. "Revenue tax": legal meaning of "revenue tax," 1918B-219. "Royalty": distinction between rent and royalty, 1916E-1225. "Said": legal meaning of "said," 1917D- 603. "Salary": distinction between "salary" and "wages," 1917B-321. "Scaffolding": meaning of "scaffolding" as used in workmen's compensation act, 1917D-15. "Subcontractor": who is "subcontractor" within mechanic's lien law, 191YC-801. "Tent": legal meaning of "tent," 1918B- 138. "Tool": vehicle is "tool" within exemption statute, 1917D-96. "Wages": distinction between "salary" and "wages," 1917B-321. "Workman": who is "workman" within meaning of workmen's compensation act, 1918B-704. See also Alteration of Instruments; Com- mon Law; Deeds; Evidence; False Pretenses; Imprisonment for Debt; In- surance; Lost Property; Names; Poor and Poor Laws; Prostitution; Public Officers; Sales; Ships and Shipping; Treason. WORKMEN'S COMPENSATION ACTS. Accident or injury within act: disease as accident under workmen's compensa- tion act, 1918B-309. right to compensation under workmen's compensation act as dependent on loss of earning capacity, 1917E 156. total disability under workmen's com- pensation act, 1917E-240. what constitutes "loss" of eyesight within workmen's compensation act, 1918A-533. INDEX TO THE NOTES. 119 WORKMEN'S COMPENSATION ACTS Continued. Accident or injury within act: what con- stitutes "loss" of limb or part thereof within workmen's compensation act. 1918A-536. what is accident arising out of and in course of employment within meaning of workmen's compensation act, 1918B-768. rhat is "injury" or "personal injury" within meaning of workmen's com- pensation act, 1918B-362. workmen's compensation act as appli- cable to injury received in another jurisdiction, 1918B-625. Appeal and error: review of facts on ap- peal under workmen's compensation act, 1918B-647. "Average weekly earnings": meaning of phrase "average weekly earnings" in workmen's compensation or similar act, 1918B-640. tips as part of average weekly earnings under workmen's compensation act, 1918B-1122. Award or allowance: award or right to compensation under workmen's com- pensation act as vesting in benefi- ciary, 1917D-1169. increase, decrease, termination or sus- pension of allowance under workmen's compensation act, 1916E-889; 1918B- 733. lump sum award under workmen's com- pensation act, 1918B-694. Defenses: intoxication of employee as pre- cluding recovery under workmen's compensation act, 1918B-686. receipt of insurance or other benefit as affecting right to compensation under workmen's compensation act, 1918B 635. Dependents within act: award to minor under workmen's compensation act as affecting right of action by parent, 1916D-1172. "child" in workmen's compensation act as including illegitimate child, 1918B 258. residence of beneficiary as affecting right to compensation under work- men's compensation act, 1918B 634. who is "dependent" within workmen's compensation act, 1918B-749. Election to accept act: right to and ef- fect of election with respect to ac- ceptance of provisions of workmen's compensation act, 1918B-715. Employees within act: liability of master for injuries to domestic servant under workmen's compensation act, 1917D- 504. * maritimC employees as within purview of workmen's compensation act, 1918B-661. WORKMEN'S COMPENSATION ACTS f Continued. Employees within act: person employed in violation of law as entitled to com- pensation under workmen's compensa- tion act, 1918B-679. railroad employees as within purview of workmen's compensation act, 1918B- 664. who is "workman" within meaning of workmen's compensation act, 1918B- 704. Employments within act: occupations or employments within purview of work- men's compensation acts, 1917D-4. Evidence: admissibility in proceeding under workmen's compensation act of statement by injured employee re- specting cause of injury, 1916C-775. Medical examination: provisions in work- men's compensation acts respecting medical examination of workmen, 1918B-670. Notice of injury under workmen's com- pensation act, 1917D-867. "Plant": meaning of "plant" as used in workmen's compensation act, 1917A- 323. Repeal of statutes: what statutes are im- pliedly repealed by workmen's com- pensation act, 1916E-773. Retroactive operation of act: workmen's compensation act as retroactive in operation, 1918B-617. Validity of act: constitutionality of work- men's compensation act, 1918B-611. effect of partial invalidity of work- men's compensation act, 1916D-68. War: workmen's compensation act as ap- plicable to injury arising from war, 1917C-760. WORKSHOP. Employment in workshop as within pur- view of workmen's compensation act, 1917D-18. WORKS OF ART. See Art. WRITING. See Handwriting; Notice. WRITINGS. Lien of attorney on writing in his posses- sion connected with litigation, 1917D- 149. Measure of damages for loss or destruc- tion of writings having no market value, 1917B-579. WRITS. Proof by parol of contents of lost or de- stroyed writ, 1916D-252. UCSB X- A 000553170 2