^ J _£^^^^H ■ THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW the Property the NTY LAW LIBRARY vhere thaii^l^ please r^mn, or notify LibrariaiL^^T^ V Books belaJ^jJKJ tSn:his LibrarjiMfl i^ver sold, exchanged or given away. MAR 2 81931 CHiCAOO STAR BINDER 224 S. Spring St Te/. MUtiJii) 4434 LAW LIBRARY OF * LOS ANGELES COUNTY: 4f PRACTICE SERIES SUNDERLAND'S CASES ON PROC EDURE Sunderland's Cases on Trial Practice. Sunderland's Cases on Code Pleading. Sunderland's Cases on Common Law Pleading. Sunderland's Cases on Equity Pleading and Practice. Sunderland's Cases on Criminal Procedure. Sunderland's Cases on Appellate Practice. Sunderland's Cases on Evidence. CALLAGHAN & COMPANY CHICAGO CASES ON PROC^^^M ANNOTATED TRIAL PRACTICE By EDSON R. SUNDERLAND PBOFESSOR OF LAW IN THE LAW DEPARTMENT OF THE UNIVERSITY OF MICHIGAN. CHICAPO CALLAGHAN AND COMPANY 1912 * .* . • * T COPYEIGHT 1912 BY CALLAGHAN & COMPANY CASES ON PROCEDURE. The Series. The present volume, on Trial Practice, is the first of a series of case-books which the editor hopes to prepare for the use of law students, covering the broad subject of Pro- cedure. The plan contemplates separate volumes on the following special topics: — Trial Practice, Code Pleading, Common Law Pleading, Equity Pleading and Practice, Criminal Procedure, Evidence, and Appellate Practice. These books are to be prepared as separate and inde- pendent treatments of the subjects to which they relate. Each branch of procedure has its o^vn subject-matter and its independent problems, and no advantage would result from erasing the lines which mark its boundaries. But while this is so, it is nevertheless important to observe that an adequate conception of any one of these branches can be formed only by keeping constantly in mind the scope and function of procedure as a whole. In a very true and fundamental sense procedure is single and indivisible. Its aim is to furnish a mechanism for litigation, to supply a means and method for applying the law in the solution of legal controversies. One purpose runs through it all. Pleadings are drawn to present issues for trial; trials are had to determine issues raised by the pleadings. What the trial demands the pleadings must give. One is the counter- part of the other. Only in view of the trial are the plead- ings intelligible ; only by reference to the pleadings can the scope and course of the trial l)e determined. And as for the relation between procedure in nisi priiis and in appellate courts, the former is moulded to meet tlie requirements of the latter and the latter is leased strictly upon the founda- tion laid by the former. Thus ))leading, in its various forms, trial practice, and apjiellate practice may be correctly viewed as component parts of a highly developed system designed to enable parties to successfully resort to courts of law for the redress of grievan:^os. Together they furnish a complete mechanism for the administration of the law. (Hi) 740019 iv • •3Pi5i0^4^)D'ijCTORY Note. •/•'■in the present series of easJQ^bo.oks upon procedure it is .proposecljto: deyeloj> the snbj&c't, so far as possible, in this; B'lloa'^/'dajj :CohipK4}Vn§i,Y^ way. Each branch will be treated sejiarately, and its technical details will be fully and carefully exhibited, but at the same time it will be the definite aim to make each volume disclose its place and ])ur])ose as an integral part of an articulated system. In this way, if at all, may procedure be shown in its true character, as a logically developed and practically efficient means for accomplishing a very important end, instead of a mass of arbitrary and technical rules. No method Arill work well in the hands of those who lack an adequate perspective and who fail to take a comprehensive view of its scope and purpose. If the law schools are to turn out men able to meet the exacting demands of a critical and sorely-tried public, they must spare no effort to develop in their students a thorough, rational and enlightened ap- preciation of the true function and the basic principles of procedure. The series here proposed is an effort to sup- ply material to meet this need. Edson R. Sunderland. University of Michigan. PREFACE. The teaching of Practice has been neglected to a surpris- ing degree in American law schools. The subject is one of immense importance to the profession, as all lavN^yers understand. And yet, in fitting men to practice law the schools have seldom accorded it a prominent place in the curriculum. It is probable that in no profession do the technicalities of practice lAaj so large a part as in the law. Indeed, court procedure has really become a public problem in which the laity, who suffer from its abuses, are beginning to take a vigorous and aggressive interest. A subject of such vital concern to both the public and the profession should be worthy of a careful and discriminat- ing study. For many years the Law Department of the University of Michigan has offered an exceptionally large amount of work in Practice, and this has tended to increase from year to year as the methods have become better systema- tized. This work has consisted of two branches, class- room work in the principles of Practice and a practical application of these principles in the Practice Court. The former has proved particularly troublesome because there were no suitable books available for classroom use. Vari- ous general texts on Practice have been employed, and re- cently the work has been conducted as a research course, questions being prepared and handed to the students to be answered by reference to the statutes, digests, reports and text-books in the library. But neither the text-book nor the library method proved entirely satisfactor}^ Eacli tended to emphasize the rules of practice as such, instead of developing the reasons underlying them. In a law school largely devoted to the case system of instruction, it finally became clear that a case-book in Practice was an urgent necessity. This book has been prepared to meet that need. A comparative study of the decisions on Practice in the (V) .'rJifferent States will readily' tJispose of the commonly ac- 'ccj)4;iid fallac.v.tlmt.Ri^aGtica is'-.jJrimarily a local subject, to'fbe^istLVpi'S!:^^}^ taU^J^t*'^?,?' matter of local education in preparation for admission to a local bar. In truth, the principles of trial practice are largely of general applica- tion. The variations found in different jurisdictions are most of them on minor points. The major problems, in- volving the correlation of functions between judge, jury, attorney, party and witness, are always the same, wher- ever the jury system is in use. And the solution of these problems of trial practice has followed closely parallel lines in the different American jurisdictions. In every instance there were the same elements to work with, the same results to be reached, and the previous experience of other courts was at the disposal of each. Logic and experiment led along the line of least resistance, and re- sulted in the building up of a systematic and well-ordered body of principles which, if administered with intelligence and conscience, are, in the main, admirably adapted to meet the requirements of modern courts of justice. The present volume is intended to develop and disclose the rational basis for the main principles of practice em- ployed in the trial of civil actions at law. Recourse has l)een had to the whole body of American case law, and the choice of cases has been determined by the clearness with which the court has shown a logical justification for the de- cision made. By this means it is hoped that the book will lielp the student to analyze and understand the methods l)y which courts solve problems of practice, to appreciate the comparative value, importance and bearing of the dif- ferent elements involved, and to form sound notions of the underlying ])rinciples goveniing the complex field of mod- ern court procedure. The cases have been very freely edited, and everything not gei-mane to the subject for which the case was chosen has been omitted. Questions of procedure are usually raised in connection with questions relating to the sub- stantive law, so that few opinions can be advantageously used in toto in a work of this kind. It is believed, how- ever, tliat the facts of the various cases have never been Preface. ^** cut so far as to impair their value. The great advantage of cases over text-books as educational instruments lies in the presentation of facts out of which the court, by a lo.gi- cal process of demonstration which it develops and exhibits before the reader, is able to derive its legal conclusions. Cases with facts eliminated are usually of little more value than the abstract discussions of the text-books, and great care has therefore been taken to preserve them in every in- stance where the legal principles involved depend in any material degree upon the nature of the facts. While Evidence is essentially a branch of Trial Prac- tice, it has been entirely excluded from the present volume, for the obvious reason that it is everywhere recognized as of sufficient importance and difficulty to warrant an in- dependent treatment. Edson R. Sunderland. University of Michigan, Ann Arbor, September, 1912. Table of Contents. CHAPTER I. WRITS OF SUMMONS. Section Page 1. What Is ProcevSs? Brooks V. Nevada Nickel Syndicate (1898) 24 Nev. 311 1 2. Designation of Court and Parties. Eggleston v. Wattawa (1902) 117 la. 676 2 Lyman v. Milton (1872) 44 Cal. 632 4 3. Designation of Time fob Appearance. Lawyer Land Co. v. Steel (1906) 41 Wash. 411 7 4. Description of Cause of Action. Bewick v. Muir (1890) 83 Cal. 368 9 5. Signature, Teste and Seal. Lowe V. Morris ( 18.53 ) 13 Ga. 147 11 Choate v. Spencer ( 1S93 ) 13 Mont. 127 13 Ambler V. Leach (1879) 15 W. Va. 677 17 6. Indorsement of Amount Claimed. Elmen v. C. B. & Q. R. R. Co. (1905) 75 Neb. 37 24 7. Alias Writs. Parsons V. Hill (1900) 15 App. Cas. D. C. 532 28 CHAPTER II. SERVICE AND RETURN OF SUMMONS. Personal Service. McKenzie V. Boynton (1910) 19 N. D. 531 38 Krotter & Co. v. Norton (1909) 84 Neb. 137 39 Boggs V. Inter-American Mining and Smelting Co. (1907) 105 Md. 371 41 Substituted Service. Barwick v. Rouse ( 1907 ) 53 Fla. 645 44 Constructive Service. Harness v. Cravens (1894) 126 Mo. 233 46 D'Autremont v. Anderson Iron Co. (1908) 104 Minn. 165 52 Nelson v. C. B. & Q. R. R. Co. (1906) 225 111. 197 59 Kennedy v. Lamb (1905) 182 N. Y. 228 64 Place of Service. Wallace v. United Electric Co. (1905) 211 Pa. St. 473 69 Barry v. Wachosky (1899) 57 Neb. 535 73 (ix) X TABLE OF CONTENTS. Section Page 5. Return of Service. Jones V. Bibb Brick Co. (1904) 120 Ga. 321 76 Smoot V. Judd ( 1904 ) 184 Mo. 508 79 Crosby v. Farmer (1888) 39 Minn. 305 87 6. Privilege from Servue. Parker v. Marco (1893) 136 N. Y. 585 91 Greenleaf v. People's Bank ( 1903 ) 133 N. C. 292 95 CHAPTER III. APPEARANCE. 1. What Constitutes a Special Appearance? Belknap v. Charlton (1893) 25 Ore. 41 101 Fulton V. Ramsey (1910) 67 W. Va. 321 105 2. Manner of Making Special Appearance. Wall V. Chesapeake & Ohio Ry. Co. (1899) 37 C. C. A. 129 112 Greer v. Young (1887) 120 111. 184 116 3. Waiver of Special Appearance. Neosho Valley Investment Co. v. Cornell (1899) 60 Kan. 282. 123 Louisville Home Tel. Co. v. Heeler's Adm'x (1907) 125 Ky. 366 126 Linton v. Heye (1903) 69 Neb. 450 130 Wabash Western Ry. Co. v. Brow (1896) 164 U. S. 271 132 Fisher, Sons & Co. v. Crowley (1906) 57 W. Va. 312 135 Corbett v. Physicians' Casualty Ass'n (1908) 135 Wis. 505 140 4. Withdrawal of Appearance. Eldred v. Bank (1873) 17 Wall. (U. S.) 545 142 Ins. Trust & Agency v. Failing ( 1903 ) 66 Kan. 336 144 6. Authority of Attorney to Appear. Hamilton v. Wright (186S) 37 New York 502 146 Danville, etc., R. R. Co. v. Rhodes (1897) 180 Pa. St. 157.... 149 CHAPTER IV. CONTINUANCE. 1. StmPBTSE at the Trial. Pittsburg, Cincinnati, Chicago & St. L. Ry. Co. v. Grom (1911) 142 Ky. 51 152 Peterson v. Metropolitan St. Ry. Co. (1908) 211 Mo. 498 155 Rahles v. J. Thompson & Sons Mfg. Co. (1909) 137 Wis. 506. . 158 2. Absence of Witness. Campbell v. Dreher (1908) 33 Ky. L. R. 444 160 Teirapin v. Barker (1910) 26 Okla. 93 161 Bean v. Missoula Lumber Co. (1909) 40 Mont. 31 163 Hartford Fire Ins. Co. v. Hammond (1907) 41 Colo. 323 165 Brown v. Abilene Nat. Bank (1888) 70 Tex. 250 166 3. Absence of Attornkv. Cicerello t. Chesapeake & Ohio Ry. Co. (1909) 65 W. Va. 439. 167 Rankin r. Caldwell (1908) 15 Ida. 625 171 TABLE OF CONTENTS. xl Section Page 4. Absence of Pakty. Jeffe V. Lilienthal (1894) 101 Cal. 175 175 B. WlTHDEAWAL, OF JiTEOE. Usborn v. Stephenson (1899) 36 Ore. 328 177 6. Tebms. Maund v. Loeb (1888) 87 Ala. 374 180 CHAPTER V. THE JURY. 1. Right to a Jury Trial. Lee V. Conran (1908) 213 Mo. 404 181 2. Waiver of Jury. Schumacher v. Crane-Churchill Co. (1902) 66 Neb. 440 184 3. Objections to the Panel. Louisville, Henderson & St. Louis Ry. Co. v. Schwab (1907) 127 Ky. 82 188 Ullman v. State (1905) 124 Wis. 602 192 4. Qualifications of Jurors. Kumli V. Southern Pacific Co. ( 1892 ) 21 Ore. 505 197 Theobald v. St. Louis Transit Co. (1905) 191 Mo. 395 203 Wilson V. Wapello County (1905) 129 la. 77 208 Searle v. Roman Catholic Bishop of Springfield (1909) 203 Mass. 493 211 5. Questioning the Jury. GofE v. Kokomo Brass Works (1908) 43 Ind. App. 642 215 6. Method of Empanelling. Pointer v. United States (1894) 151 U. S. 396 220 7. Challenges. Coughlin v. People (1893) 144 HI. 140 225 State v. Myers (1906) 198 Mo. 225 227 McDonald v. State (1909) 172 Ind. 393 230 State V. Cady (1888) 80 Me. 413 236 8. Discharge of Juror. State V. Davis (1888) 31 W. Va. 390 238 9. Oath Administered. Wells V. Smith (1901) 49 W. Va. 78 241 CHAPTER VI. THE RIGHT TO OPEN AND CLOSE. Johnson v. Josephs ( 1884 ) 75 Me. 544 243 Buzzell v. Snell ( 1852 ) 25 N. H. 474 245 Lake Ontario Nat. Bank v. Judson (1890) 122 N. Y. 278 250 Gardner v. Meeker (1897) 169 111. 40 253 3^11 TABLE OF CX)NTENTS. Section Page CHAPTER VII. OPENING STATEMENT OF COUNSEL. Scrlpps V. Reilly (1877) 35 Mich. 371 255 Fosdiclc V. Van Arsdale ( 1889 ) 74 Mich. 302 262 San Miguel Mining Co. v. Bonner (1905) 33 Colo. 207 263 Pietsch V. Pietsch (1910) 245 111. 454 266 Lindley r. Atchison, T. & S. F. Rd. Co. (1891) 47 Kan. 432. . 270 Redding v. Puget Sound Iron, etc., Works (1905) 36 Wash. 642 272 CHAPTER VIII. JUDGMENT ON THE PLEADINGS. Cobb V. Wm. Kenefick Company (1909) 23 Okla. 440 275 Hoover v. Horn ( 1909 ) 45 Colo. 288 277 Sternberg v. Levy (1901) 159 Mo. 617 279 CHAPTER IX. DEMURRER TO THE EVIDENCE. Copeland v. New England Ins. Co. (1839) 22 Pick. (Mass.) 135 281 Galveston, Harrisburg & San Antonio Ry. Co. v. Templeton ( 1894 ) 87 Tex. 42 288 Fritz V. Clark ( 1881 ) 80 Ind. 591 290 Bennett v. Perkins (1900) 47 W. Va. 425 293 Hopkins v. Railroad (1895) 96 Tenn. 409 296 CHAPTER X. DISMISSAL, NON-SUIT AND DIRECTED VERDICT. 1. Dismissal. (a) Circumstances Under Which Plaintiff May Dismiss. Bertschy v. McLeod (1873) 32 Wis. 205 302 Carlton v. Darcy (1878) 75 N. Y. 375 305 (b) Time When Plaintiff May Dismiss. Carpenter & Sons Company v. New York, New Haven & Hart- ford R. R. Co. (1903) 184 Mass. 98 307 Oppenheimer v. Elmore ( 1899 ) 109 la. 196 310 Ashmead V. Ashmead (1880) 23 Kan. 262 313 (c) Effect of Dismissal. Southern Ry. Co. v. Miller (1909) 217 U. S. 209 314 Francisco v. Chicago & Alton Rd. Co. (1906) 79 C. C. A. 292. . 315 (d) Form of Motion. Ferguson v. Ingle ( 1900) 38 Ore. 43 321 2. NoN-SriT. Carroll v. Grande Ronde Elec. Co. (1907) 49 Ore. 477 322 Smalley v. Rio Grande Western Ry. Co. (1908) 34 Utah 423. . 325 Bopp v. N. Y. Elec. Vehicle Transp.'Co. (1903) 177 N. Y. 33.. 334 TABLE OF CONTENTS. xiii Section Page ■J. DiKECTKD Verdict. (a) Wh('7i Proper. Meyer v. Houck (1892) 85 la. 319 338 McDonald v. Metropolitan St. Ry. Co. (1901) 167 N. Y. 66.. 343 Giles V. Giles (1910) 204 Mass. 383 346 (b) Effect of Requests by Both Parties. Empire State Cattle Co. v. Atch., T. & S. F. Ry. Co. (1907) 210 U. S. 1 348 Wolf V. Chicago Sign Printing Co. (1908) 233 111. 501 352 (c) When Motion to Be Made. Rainger v. Boston Mut. Life Ass'n (1897) 167 Mass. 109 356 (d) Power of Court to Compel Verdict. Cahill V. Chicago, M. & St. P. Ry. Co. (1896) 20 C. C. A. 184. . 358 CHAPTER XL INSTRUCTING THE JURY. 1. Questions of Law axd Fact. (a) General Theory of Division of Functions Between Court and Jury. State V. Wright (1865) 53 Me. 328 360 (b) Qtiestions of Law Not to Be Submitted to the Jury. Aaron v. Missouri & Kan. Teleph. Co. (1911) 84 Kan. 117 369 Baker v. Summers ( 1903 ) 201 111. 52 372 Atch., Top. & S. F. Ry. Co. v. Woodson (1909) 79 Kan. 567. . 373 Mitchell V. Town of Fond du Lac (1871) 61 111. 174 375 Winchell v. Town of Camillus (1905) 109 N. Y. App. Div. 341 376 Diddle v. Continental Casualty Co. (1909) 65 W. Va. 170 378 (c) Questions of Fact Not to Be Taken from the Jury. Standard Cotton Mills v. Cheatham (1906) 125 Ga. 649 380 Illinois Cent. R. R. Co. v. Johnson (1906) 221 111. 42 381 Buttram v. .lackson (1861) 32 Ga. 409 385 (d) Comments by the Court on the Weight of the Evidence. New York Firemen Ins. Co. v. Walden (1815) 12 Johns (N. Y. ) 513 387 St. Louis, Iron Mountain & Southern Ry. v. Vickers (1887) 122 U S 360 392 Kleutsch V. Security Mutual Life Ins. Co. (1904) 72 Neb. 75. . 394 State V. Dick (1864) 60 N. C. 440 398 Commonwealth V. Barry (1864) 9 Allen (Mass.) 276 400 2. Scope of Instructioxs. (a) Relation to Pleadings and Evidence. Jacksonville, Tampa & Key West Ry. Co. r, Neff (1891) 28 Fla. 373 404 Hanson v. Kline (1907) 136 la. 101 408 Owensboro Wagon Co. v. Boling (1908) 32 Ky. L. R. 816 411 Douda V. Chicago, R. I. & P. Ry. Co. (1909) 141 la. 82 413 Buyken v. Lewis Construction Co. (1909) 51 Wash. 627 415 Karrer v. City of Detroit ( 1905 ) 142 Mich. 331 417 (b) Emphasis and Disregard of Portions of Evidence. Trustees of Schools v. Yoch (1908) 133 111. App. 32 418 Taubert v. Taubert ( 1908 ) 103 Minn. 247 420 McBride v. Des Moines City Ry. Co. (1907) 134 la. 398 422 xiv TABLE OF CONTENTS. Section Pago Seaboard & Roanoke R. R. Co. v. Joyner's Adm'r (1895) 92 Va. 354 425 Boyce v. Chicago & Alton Rd. Co. (1906) 120 Mo. App. 168. . 426 Life Ins. Co. of Va. v. Hairston (1908) 108 Va. 832 428 3. Form of Instructions. Murphy v. Central of Georgia Ry. Co. (1910) 135 Ga. 194 430 Parker v. National Mut. Bldg. & Loan Ass'n (1904) 55 W. Va. 134 432 West Kentucky Coal Co. v. Davis (1910) 138 Ky. 667 434 State V. Legg (1906) 59 W. Va. 315 439 City of Chicago v. Moore (1891) 139 111. 201 441 Klofski V. Railroad Supply Co. (1908) 235 111. 146 444 McDivitt V. Des Moines City Ry. Co. (1909) 141 la. 689 446 4. Requests fob Instructions. Central Railroad v. Harris ( 1886 ) 76 Ga. 501 449 Morgan v. Mulhall (1908) 214 Mo. 451 452 Chicago City Ry. Co. v. Sandusky (1902) 198 111. 400 455 Chesapeake & Ohio Ry. Co. v. Stock (1905) 104 Va. 97 459 5. Cautionary Instructions. (a) Admissions. Scurlock V. City of Boone (1909) 142 la. 580 461 Kaufman V. Maier (1892) 94 Cal. 269 463 (b) Burden of Proof. Crabtree v. Reed (1869) 50 111. 206 466 Altschuler v. Coburn (1894) 38 Neb. 881 467 (c) Positive and Negative Testimony. In re Estate of Wharton (1907) 132 la. 714 468 McLean v. Erie Rd. Co. (1903) 69 N. J. L. 57 469 (d) Credibility of Witnesses. Cline V. Lindsey (1886) 110 Ind. 337 470 Gustafson v. Seattle Traction Co. (1902) 28 Wash. 227 474 Higgins V. Wren (1900) 79 Minn. 462 476 Fifer v. Ritter (1902) 159 Ind. 8 478 (e) Falsus in Vno, Falsus in Omnibus. Chicago & Alton Rd. Co. v. Kelly (1904) 210 111. 449 479 Cameron v. Wentworth (1899) 23 Mont. 70 482 Ward V. Brown (1903) 53 W. Va. 227 486 CHAPTER Xn. ARGUMENT AND CONDUCT OF COUNSEL. Baldwin's Appeal from Probate (1876) 44 Conn. 37 488 Louisville & Nashville Rd. Co. v. Reaume (1908) 32 Ky. L. R. 946 490 Wagoner v. Hazle Twp. (1906) 215 Pa. St. 219 493 McCarthy v. Spring Valley Coal Co. (1908) 232 111. 473 495 Brown v. Swineford (1878) 44 Wis. 282 497 Toledo, St. L. & W. Rd. Co. v. Burr (1910) 82 Ohio St. 129.. 501 Fertig v. State (1S98) 100 Wis. 301 504 German-American Ins. Co. v. Harper (1902) 70 Ark. 305 507 Murphy's Executor v. Hoagland (1908) 32 Ky. L. R. 839 509 Williams v. BrooUlyn Elevated R. R. Co. (1891) 126 N. Y, 96. , 511 Wilkinson v. The People (1907) 226 111. 135 614 TABLE OF CONTENTS. XV Section Page Campbell v. Maher ( 1885 ) 105 Ind. 383 517 Hansell-Elcock Foundry Co. v. Clark (1905) 214 111. 399 519 CHAPTER XIII. SPECIAL INTERROGATORIES. Purpose, Scope and Effect. Chicago & N. W. Ry. Co. v. Dunleavy (1889) 129 III. 132.... 521 Constitutionality. Walker v. New Mex. & Pac. Rd. Co. (1897) 165 U. S. 593 530 Abgument and Insteuctions as to Proper Answers. Ryan V. Rockford Ins. Co. (1890) 77 Wis. 611 534 Chicago & Alton R. R. Co. v. Gore (1903) 202 111. 188 535 Capital City Bank v. Wakefield (1891) 83 la. 46 536 Coffeyville Vitrified Brick Co. v. Zimmerman (1900) 61 Kan. 750 538 FoBM OF Interrogatories. Louisville, New Albany & Chicago Ry. Co. v. Worley (1886) 107 Ind. 320 539 Chicago & Alton R. R. Co. v. Harrington (1901) 192 111. 9 541 Atchison, Topeka & S. Fe R. R. Co. v. Ayers (1895) 56 Kan. 176 547 Compelling .Icry to Give Direct Answers. Cleveland, Columbus, Cincinnati & Indianapolis Ry. Co. v. As- bury (1889) 120 Ind. 289 549 Effect of Answebs on General Verdict. Runyan v. Kanawha Water & Light Co. (1911) 68 W. Va. 609 551 Evansville & Southern Traction Co. v. Spiegel (1911) — Ind. App. — ; 94 N. E. 718 555 Devine v. Fed. Life Ins. Co. (1911) 250 111. 203 557 Effect of Answers Inconsistent with Each Other. Drake v. Justice Gold Mining Co. (1904) 32 Colo. 259 560 St, Louis & San. F. Ry. Co. v. Bricker (1899) 61 Kan. 224.. 562 CHAPTER XIV. SPECIAL VERDICTS. First National Bank v. Peck (1871) 8 Kan. 660 564 Standard Sewing Mach. Co. v. Royal Ins. Co. (1902) 201 Pa. St. 645 566 Wabash Railroad Co. v. Ray (1899) 152 Ind. 392 569 Darcey v. Farmers' Lumber Co. (1894) 87 Wis. 245 570 Baxter v. Chicago & Northwestern Ry. Co. (1899) 104 Wis. 307 572 CHAPTER XV. JUDGMENT NOTWITHSTANDING THE VERDICT. Plunkett v. Detroit Electric Ry. Co. (1905) 140 Mich. 299.. 577 Floyd v. Colo. Fuel & Iron Co. (1897) 10 Colo. App. 54 578 Cruikshank v. St. Paul Fire & Marine Ins. Co. (1899) 75 Minn. 266 582 xvi TABLE OF CONTENTS. Section Page CHAPTER XVI. ARREST OP JUDGMENT. 1. Fob What Defects. Pelican Assurance Co. v. Am. Feed & Grocery Co. (1909) 122 Tenn. 652 585 Gray v. Commonwealth (1895) 92 Va. 772 586 Hubbard v. Rutland R. R. Co. (1908) 80 Vt. 462 587 Bull V. Matthews (1897) 20 R. I. 100 589 Pittsburgh, Cincinnati, Chicago & St. L. Ry. Co. v. City of Chi- cago (1908) 144 111. App. 293 591 2. Time for Making Motion. Chicago & Alton R. R. Co. v. Clausen (1898) 173 111. 100 594 Newman v. Perrill (1880) 73 Ind. 153 597 Keller v. Stevens (1886) 66 Md. 132 598 3. Effect of Motion. State ex rel. Henry W. Bond v. Fisher (1910) 230 Mo. 325.. 599 Cincinnati, Indianapolis, St. L. & Chicago Ry. Co. v. Case (1889) 122 Ind. 316 604 Jewel T. Blandford (1838) 7 Dana 472 605 CHAPTER XVII. NEW TRIALS. 1. General Purpose. Gunn V. Union Rd. Co. (1901) 23 R. I. 289 607 Caldwell v. Wells ( 1909 ) 16 Ida. 459 615 Armstrong v. Whitehead (1902) 81 Miss. 35 617 State V. Phares (1884) 24 W. Va. 657 620 Dubcich V. Grand Lodge Ancient Order of United Workmen (1903) 33 Wash. 651 621 2. Disqualification of Jurors. Harrington v. Manchester & Lawrence Rd. (1882) 62 N. H. 77 623 Johns V. Hodges (1883) 60 Md. 215 631 Fitzpatrick V. Harris (1855) 16 B. Mon. (Ky.) 561 633 Knights of Pythias v. Steele ( 1901 ) 1 07 Tenn. 1 635 United States v. Christensen (1890) 7 Utah 26 637 Florence, El Dorado & Walnut Valley Rd. Co. v. Ward (1883) 29 Kan. 354 641 3. Misconduct of Jury or Party. Underwood v. Old Colony St. Ry. Co. (1910) 31 R. I. 253 645 Craig & Co. v. Pierson Lumber Co. (1910) 169 Ala. 548 648 Baker v. Brown ( 1909 ) 151 N. C. 12 650 Flesher v. Hale ( 1883 ) 22 W. Va. 44 652 Corley v. New York & Harlem Rd. Co. (1896) 12 N. Y. App. Div. 409 657 4. Accident, Mistake and Surprise. Mehnert v. Thleme (1875) 15 Kan. 368 659 GrifTin v. O'Neil (1891) 47 Kan. 116 661 Staunton Coal Co. v. Menk (1902) 197 111. 369 662 West. Un. Tel. Co. v. Chamblee (1898) 122 Ala. 428 664 Hoskins v. Hight (1891) 95 Ala. 284 666 TABLE OF CONTENTS. xvii Section Page Gotzian v. McCullum (1896) 8 S. D. 186 670 Hill V. McKay (1907) 36 Mont. 440 672 Nellums v. Nashville (1900) 106 Tenn. 222 677 5. Veedict Contrary to Evidexce. Series v. Series ( 1899 ) 35 Ore. 289 679 Harrison V. Sutter St. Ry. Co. (1897) 116 Cal. 156 685 Graham v. Consolidated Traction Co. (1900) 65 N. J. L. 539. . 689 Tathwell v. City of Cedar Rapids (1903) 122 la. 50 691 6. Verdict Contrary to Law. Lynch v. Snead Architectural Iron Works (1904) 132 Ky. 241 697 7. Newly Discovered Evidence. (a) Cumulative Evidence. Winfield Bldg. & Loan Ass'n v. McMullen (1898) 59 Kan. 493 703 Waller v. Graves ( 1850 ) 20 Conn. 305 705 German v. Maquoketa Savings Bk. (1874) 38 la. 368 710 Brown v. Wlieeler (1901) 62 Kan. 676 712 Layman v. Minneapolis St. Ry. Co. (1896) 66 Minn. 452 713 (b) Impeaching Evidence. Blake v. Rhode Island Company (1911) 32 R. L 213 715 Chicago & Eastern 111. Rd. Co. v. Stewart (1903) 203 111. 223. 718 Moore v. Chicago, St. L. & New Orleans Rd. Co. (1881) 59 Miss. 243 720 (c) Necessary Diligence. Nicholson v. Metcalf ( 1904 ) 31 Mont. 276 721 Coffer V. Erickson (1911) 61 Wash. 559 723 Wliittlesev v. Burlington, Cedar Rapids & Northern Ry. Co. (1903) 121 la. 597 726 (d) Probability of Change in Result. Parsons v. Lewiston, Brunswick & Bath St. Ry. (1902) 96 Me. 503 727 Oberlander v. Fixen & Co. (1900) 129 Cal. 690 732 Ellis v. Martin Automobile Co. (1909) 77 N. .L L. 339 735 8. Effect of Statutes Enumerating Grounds. St. Louis & San Francisco Rd. Co. v. Werner (1904) 70 Kan. 190 737 Valerius v. Richard (1894) 57 Minn. 443 739 Bottineau Land & Loan Co. v. Hintze (1911) 150 la. 646.. 744 9. On Court's Own Motion. Fort Wayne & Belle Isle Ry. Co. v. Wayne Circuit Judge (1896) 110 Mich. 173 746 Hensley v. Davidson Bros. Co. (1907) 135 la. 106 747 10. Discretion of Court. Loftus V. Metropolitan St. Ry. Co. (1909) 220 Mo. 470 751 York V. Stiles ( 1899 ) 21 R. I. 225 754 North Center Creek Mining & Smelting Co. v. Eakins (1880) 23 Kan. 317 756 Brooks V. San Francisco & North Pac. Ry. Co. (1895) 110 Cal. 173 758 Cohen v. Krulewitrh (1902) 77 N. Y. App. Div. 126 761 Stauffer v. Reading (1903) 206 Pa. St. 479 763 Gila Valley, Globe & Northern Ry. Co. v. Hall (1911) 13 Ariz. 270 765 xviii TAB1.E OF CONTENTS. Section Page 11. Notice of Motion. Hansen v. Fish (1871) 27 Wis. 535 768 Boarman v. Hinckley (1897) 17 Wash. 126 770 Anderson v. First Nat. Bank of Grand Forks (1895) 5 N. D. 80 771 Krakower v. Davis (1897) 20 Misc. (N. Y.) 350 772 Simpson v. Budd (Cal. 1891) 27 Pac. 758 773 12. Time fob Motion. City of St. Joseph v. Robison (1894) 125 Mo. 1 775 Bailey v. Drake (1895) 12 Wash. 99 776 Hayes v. Ionia Circuit Judge (1900) 125 Mich. 277 777 Roggencamp v. Dobbs ( 1884 ) 15 Neb. 620 779 Hellman v. Adler & Sons Clothing Co. (1900) 60 Neb. 580.. 780 Herz V. Frank (1898) 104 Ga. 638 782 People V. Bank of San Luis Obispo (1910) 159 Cal. 65 784 Seward v. Cease (1869) 50 111. 228 789 13. Form of Motion. Memphis St. Ry. Co. v. Johnson (1905) 114 Tenn. 632 791 King V. Gilson (1907) 206 Mo. 264.. 795 Rutherford V. Talent (1886) 6 Mont. 112 798 14. Affidavits. Vose V. Mayo (1871) 3 Cliff. (U. S.) 484 800 Draper v. Taylor (1899) 58 Neb. 787 801 Phillips V. Rhode Island Co. (1910) 32 R. I. 16 802 Mattox V. United States (1892) 146 U. S. 140 811 Wolfgram v. Town of Schoepke (1904) 123 Wis. 19 815 CHAPTER XVIII. TRIAL AND FINDINGS BY THE COURT. Fowler v. Towle (1870) 49 N. H. 507 820 Utah Nat. Bank v. Nelson (1910) — Utah — ; 111 Pac. 907.. 826 Darling v. Miles (1911) 57 Ore. 593 831 Slayton v. Felt (1905) 40 Wash. 1 833 Graham v. State ex rel. Board of Commissioners (1879) 66 Ind. 386 836 City of Owensboro v. Wier ( 1893 ) 95 Ky. 158 838 Gaines & Co. v. Whyte Grocery, Fruit & Wine Co. (1904) 107 Mo. App. 507 839 City of Buffalo v. Delaware, Lackawanna & Western R. R. Co. (1907) 190 N. Y. 84... 841 CHAPTER I. WRITS OF SUMMONS. Section 1. What is Process. BEOOKS V. NEVADA NICKEL SYNDICATE. Supreme Court of Nevada, 1898, 24 Nevada, 311, By the Court, Massey, J. : The first objection made to the validity of the judgment, based upon defects appearing in the judgment roll, is that no summons was ever issued in the action — that the paper purporting to be a summons is void for the reason that it runs in the name of "The People of the State of Nevada." Section 13, article VI of the constitution requires that the style of all process shall be "The State of Nevada." Is a summons issued under our law a process within the mean- ing of the provision of said article? Under our practice act, which has been in force since 1869, provision is made for the issuance of summons to be signed by the attorney for the plaintiif, or by the clerk, and, when issued by the clerk, requiring that it shall be under the seal of the court. The same act specifically de- fines the contents of the same. There is nothing in the act requiring the summons to run in any particular form. It has never been treated as a process within the meaning of our constitution either by the legislature or the courts, and, while there is conflict of authority upon a similar question, under constitutions and statutes similar to our own, in other states, we are disposed to hold that a summons is not a process, within the meaning of our constitution. Upon this point we quote from a decision of the Supreme Court of Colorado, in which it says: "As to the first point raised — that the summons is such a process as may be is- sued in the name of the people of Colorado — we are strong- T. p.— 1 2 Trial Practice [Chap. 1 ly inclined to follow the conclusion of the Supreme Court of Florida in Gilmer v. Bird, 15 Fla. 411. In this case the identical question here presented is discussed at some length — that is, 'that the summons, as authorized by the code, is a "process", within the meaning of the constitu- tional provisions which require the style of all process to be the "State of Florida"; that the summons had no such style; that this was essential to the validity of thb judg- ment, there having been no appearance.' And the court said: 'But is the notice given by an attorney of the insti- tution of a suit, in a form similar to a summons, but not issuing out of a court, a "process" within the meaning of the constitution? Baron Comyn, in giving the definition of the term "process" says it imports the writs which issue out of any court to bring the party to answer, or for doing execution. There is no definition of "process" given by any accepted authority, which implies that any writ or method by which a suit is commenced is necessarily "pro- cess." A party is entitled to notice and to a hearing under the constitution before he can be affected, but it is nowhere declared or required that that notice shall be only a writ issuing out of a court.' " {Comet Consolidated M. Co. v. Frost, 25 Pac. (Col.) 506; Hamia v. Russel, 12 Minn. 80; Bailey v. Williams, 6 Or. 71; Nichols v. The Planh Road Co., 4 G. Greene, 44.) Section 2. Designation of Court and Parties. EGGLESTON V. WATTAWA. Supreme Court of Iowa. 1902. 117 Iowa, 676. Action on a judgment recovered by default in the cir- r'uit court of South Dakota in and for Brule county. De- fendant denmrred on tlie ground tliat the summons in the action on which the judgment was recovered was not suffici- ent to give the court jurisdiction. The trial court sustained this demurrer, and, on phiintiff's election to stand on his Sec. 2] Writs of Summons 3 petition, rendered judgment for defendant, from whicli plaintiff appeals. — Affirmed. McClain, J. — Although the action on which the judg ment was rendered in South Dakota was entitled in the circuit court, the summons required defendant "to answer the complaint of N. W. Eggleston, plaintiff, wliich will be filed in the office of the clerk of the district court within and for said Brule county, at Chamberlain, Brule Co., S. D., and to serve a copy of your answer to the said com- plaint on the subscriber at the office in the city of Cham- berlain, S. D., in said county and state, within thirty days after the service of this summons, exclusive oi the day of service, or the plaintiff will apply to the court for the re- lief demanded in the complaint, besides costs." This sum- mons was served on January 9, 1892. The complaint on which judgment was rendered by the circuit court of Brule county was not filed until December 9, 1892, and judgment by default was entered on that day. The provisions of the statutes of South Dakota, set out by plaintiff in his petition, provide, with reference to the summons, that it shall re- quire defendant ' * to answer the complaint and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the state to be therein specified, in which there is a postoffice, within 30 days after the ser- vice of the summons, exclusive of the day of service." It is evident that under such statutory provision the sum- mons in question was fatally defective in not correctly nam- ing the court in which the complaint would be filed. The statutes of the state do not, so far as made to appear in this record, specifically require that the court in which the defendant is to appear shall be named, but certainly that is essential to such a notice as would be sufficient to consti- tute due process of law. Moreover, it is required by the statutes of that state, if a copy of the complaint is not served with the summons, that "the summons must state where the complaint is or will be filed." The summons in question did not state that essential fact, for no complaint was ever filed in the "district court." There was in fact no such court then in existence, the "district court" as known under the territorial government, having been re- placed by the "circuit court" by the provisions of the con- stitution under which the state was admitted. This change 4 Teial Practice [Chap. 1 of courts is pleaded in the case by plaintiff as an ex- cuse for the mistaken description, but the fact remains that defendant was not notified that the complaint would be filed in the circuit court, in which the judgment was rendered, but was advised that it would be filed in another court, which in fact did not exist. Under such circum- stances we think defendant was justified in assuming that no valid judgment could be rendered against him. The circuit court acquired no jurisdiction, and the judgment on which this action is based was therefore void. See, as bearing in general on the question, Lyon v. Vanatta, 35 Iowa 521. Other questions are argued, but, as they involve the construction of statutes of another state, their decision would be of no advantage to anyone. The demurrer was rightly sustained, and the judgment is affirmed. LYMAN V. MILTON. Supreme Court of California. 1872, 44 California, 630. By the Court, Belcher, J.: The plaintiff seeks by this action to enforce the execution of a resulting trust. The complaint names as defendants, Martha Ellen Mil- ton, administratrix of the estate of Daniel Milton, deceased, Martha Ellen Milton, and Ida May Milton. It alleges the death of Daniel Milton, leaving him surviving as his only heirs at law his widow, Martha Ellen Milton, and his daugh- ter, Ida May Milton, an infant of about the age of three years, and that Martha Ellen Milton had been duly ap- pointed the administratrix of his estate. Upon the complaint a summons was issued, entitled: '*W. Lyman, plaintiff, v. M. E. Milton {administratrix, etc.) et al., defrjidants." It was addressed to *'M. E. Milton, ad- ministratrix et al., defendants," the name of Ida May Mil- ton nowhere appearing in it. This summons was served upon both defendants, and afterwards, upon application of Sec. 2] Writs of Summons 5 the plaintiff, the adult defendant was appointed the guard- ian ad litem of the infant defendant. The said Martha El- len accepted the trust of guardian ad litem, and, thereupon, before filing answer, or otherwise appearing, appeared in court by counsel, stating to the court that she appeared on behalf of said infant for the purpose only of moving to quash the summons. The court refused to permit such an appearance, and refused to recognize counsel, or hear any- thing they might have to say on behalf of the infant, unless they entered an unqualified appearance for the general pur- pose of defense. Having duly entered an exception to this ruling, counsel then, in obedience thereto, stated without qualification that they appeared on behalf of all the de- fendants. Thereupon they submitted a written motion on the part of the said infant and her guardian, that the sum- mons be quashed on the ground, among others, that the same is radically defective in not stating the parties to the action. The court overruled this motion and the defendants excepted. Afterwards, upon answers filed in behalf of each defend- ant, the case was tried by the court and judgment entered in favor of the plaintiff. The statute (Practice Act, Sec. 24) provides that "the summons shall state the parties to the action, the Court in which it is brought, the county in which the complaint is filed, the cause and general nature of the action, and re quire the defendant to appear and answer the complaint within the time mentioned in the next section after the service of the summons, exclusive of the day of service, or that judgment by default will be taken against him accord- ing to the prayer of the complaint, briefly stating the sum of money or other relief demanded in the complaint." It is manifest that the summons in this case did not state the parties to the action. M. E. Milton, in her representa- tive capacity of administratrix, was but one of three parties defendant. The words ''et al.," in the connection in which they are used, are of no significance. They indicate, at most that there are still other parties who are not named. Without them, so far as a compliance with the statute is concerned, the summons would have been as complete as with them. Is a summons, in which one defendant onlv is named, 6 Trial Practice [Chap. 1 when in fact there are several defendants to the action, a good summons to the defendants not named in it? Must one who is served with a summons to which he does not appear to be a party take notice at his peril that he is really a party to the action? To hold so we must hold that the section of the statute referred to is only directory in its requirements. But if it be directory and not manda- tory, why may the summons not omit to state the court in which the action is brought, or the county in which the complaint is filed, or the cause and general nature of the action, or the time within which the defendant is required to appear, or the amount of money or other relief de- manded in the complaint, or all of them together, and still be held good? All of these things are stated in the com- plaint, except the time within which the defendant must appear, and that is a matter regulated by law, which every one is presumed to know. If notice only is required, the ])arty has that when he sees a copy of the complaint and liimself named in it as a defendant. And yet no one would contend that a summons which omitted to state the several matters required by the statute could be held good. The summons is the process by which parties defend- ant are brought into Court, so as to give the Court juris- diction of their persons. Its form is prescribed by law; and whatever the form may be it must be observed, at least substantially. It may be that a summons under our system is required to state more than is necessary for the informa- tion of the defendant ; that a copy of the complaint served by the Sheriff or the attorney would have been all that is needful. If that be so it is a matter for the legislature and not for the Courts. We entertain no doubt that a sum- mons must contain all that is required by the statute, whether deemed needful or not, and, among other things, must state the parties to the action. It may be that when the defendant moved to quash the summons for insufficiency the Court might have entertained u counter motion to have it amended by inserting the omit ted names of the defendants, and, on its being so amended, might have denied the original motion. In Polack v. Hunt, 2 Cal. 193, it was held that the court had power to amend the summons so as to make it conform to the law, when it operated no hardship or Sec. 3] Wbits of Summons 7 surprise to the defendants. No such counter motion, however, was made in this case, and we cannot pass up- on that question. A defendant has a right to appear for the purpose of moving to dismiss a defective summons, and it is error in the Court to refuse him that privilege. Nor does the fact that he afterwards appears and answers waive his. right or cure the error. {Deidesheimer v. Brown, 8 Cal. 339; Gray v. Haives, id. 569.) For the error named the judgment must be reversed and cause remanded for further proceedings, and it is so ordered.^ iln Saddler v. Smith, (1907) 54 Fla. 671, 45 So. 718, the court said; "Where there are several parties defendant it would not be suificient to give the name of one defendant in the tody of the subpoena or copy, followed by the words et al. Lyman v. Milton, 44 Cal. 630. And so we have held that in a writ of error or appeal, all parties thereto must be named and cannot be included in the words et al. * * * While the words et al. are incapable of standing in the place of the names of parties required by law to be stated in a subpoena or writ of error, they may be used in endorsing the title of the cause on the copy of subpoena where there is no statute or rule requiring the names of the parties to be indorsed thereon. ' ' Section 3. Designation of Time for Appearance. LAWYER LAND COMPANY V. STEEL. Supreme Court of Washington. 1906. 41 Washington, 411, Hadley, J. — ********** This appeal is from an order quashing a summons and the service thereof. The essential part of the summons reads as follows: "You and each of you are hereby summoned to appear within twenty days after the service of this summons, ex- clusive of the day of service, if served within the state of Washington, and within sixty days if served out of the state of Washington, and defend the above entitled action in the court aforesaid, and answer the complaint of the plaintiff and serve a copy of your answer on the 8 Tbiax. Peactice [Chap. 1 person whose name is subscribed to this summons at Spo- kane, Spokane county, state of Washington, and in case of your failure so to do, judgment will be rendered against you according to the demand of the complaint which will be filed with the clerk of said court, a copy of which is herewith served upon you." The summons and complaint were personally served up- on respondents in the state of North Carolina. The affidavit of service is in all respects regular and sufficient. Bal. Code, Section 4879, provides as follows: "Personal service on the defendant out of the state shall be equivalent to service by publication, and the summons upon the defendant out of the state shall contain the same as personal summons within the state except it shall require the defendant to appear and answer within sixty days after Fuch personal service out of the state." It is argued by respondents, and such seems to have been the view of the superior court, that inasmuch as the sum- mons was so drawn that it contemplated that a service might be made either within or without the state, it is fatally defective. It is contended that the duty was upon appellant in advance to determine whether service was to be made within or without the state, and that the sum- mons should have been drawn with reference to one or the other only. It seems to us that the essential inquiry is, Was the summons by its terms confusing or misleading to respondents? We cannot see that it was. It plainly told them that, if they were served without the state, they were required to appear within sixty days. That portion re- lating to service within the state became mere surplusage in view of the service that was made, and it was so mani- festly such that it was in no sense confusing. We there- fore think the court erred in quashing the summons and its service. Under the above statute, the service was equiv- alent to service by publication. The judgment quashing the summons and service is therefore reversed, and the cause remanded, with instruc- tions to vacate that part of the order appealed from and proceed with the action,^ ^ Return Dny. Tn C1ont,'h v. MrDoiialrl, (1877) 18 Kan. 114, the statute required that the summons should be served and returned by the officer with- Sec. 4] Writs of Summons 9 in ten days from its date. The sumnione .vas in fact made returnable In six days, and was served on the day before the return day. The court said: "Now a suninioii.s of tliis kind wo think is never void. It might l)e voidable however, if the oilier slioiild take the whole tiir.e (ten days) given him by law within which to .serve it uj>on the defendant, for in that case the time given to the defendant withiri which to answer or demur would be shortened. But V hen tJ'C olficcr serves the summons before the return day thereof, as in this case, we do not think that either the summons or the service is either void, or voidable. In such a case the defendant has lost nothing. He has his full twenty days after the return day of the summons within which to answer or demur, and that is all that the law gives him in any case. It is the time of the officer, and not that of the kfeudant, that is shortened, by makinir the return of the summons less th:.i, !(_ti days from its date." Where the retarn d:iy and ajijearance day arc the same, as in some states, the argument just quoted would of course not apply. See, also, Morris v. Uealy Lumber Co., (1903) 33 Wash. 451. 74 Pac. 662. Section 4. Desckiption of Cause of Action. BEWICK V. MUIR. Supreme Court of California. 1890. 83 California, 368. Sharpstein, J, This was an action to foreclose a num- ber of liens npon a mine for labor and materials under the act of 1880. There were forty-five plaintiffs, each claim- ing a separate lien. Judgment was given for the plaintiffs, and two of the defendants appealed. 1. The summons is sufficient. It states the nature of the action in general terms, and this is all the statute re- quires. It is apparent from the statements of the summons that the action in which it was issued was to recover money and to foreclose liens. This is the general nature of the action. It is unnecesary to state whether the right to the money sought to be recovered accrued from work and la- bor, or from goods sold and delivered, or to state the kind of lion, or on what property the lien attached. All these things appear in the complaint on file, of which filing he is notified by the summons, and if he is not notified he is bound in law to know it. He is bound to know that a com- plaint has been filed; for otherwise a summons could not issue. It makes no difference that a copy of the com- plaint is not served on the party moving. The above is in accordance with the dictum in Lyman v. Milton, 44 Cal. 631. 3.0 Trial Pbactice [Cbap. 1 The summons states what the statute requires and all thai is needful. The cases decided in Lyman v. Milton, supra, as also in Ward v. Ward, 59 Cal. 141, were different from this, and, as said above, there is a compliance with the dictum in the former case and with the statute. Why re- quire that to be inserted in the summons which must ap- pear in the complaint ? Our practice is cumbersome enough without its being made more so by judicial decision. We cannot understand how it can be said that the summons does not contain '*a statement of the nature of the action in general terms." The Code of Civil Procedure provides (which is equivalent to a command to all of the courts of the state) that all of its provisions are to be liberally con- strued, with a view to effect its objects and promote jus- tice. (Code Civ. Proc. Sec. 4.) The objects of the require- ments of the statute as to what the summons shall contain are carried out by serving it with a general statement which is specialized in the complaint, and it is injustice to turn a party out of court or reverse a judgment on a view of the summons merely technical, when the summons points to the complaint where the particular statement is made, and if a copy of the complaint is not served on the moving- party, he knows where to j&nd it. When the motion was made at the bar of the court, the complaint was no doubt within reach, or it could have been procured in a moment. King v. Blood, 41 Cal. 316, is precisely in point, and treats the question as it is here, as a perusal will at once show. The court did right in denying the motion. [Reversed on other grounds.] Sec. 5] Writs of Summons 11 Section 5. Signature, Teste and Seal. LOWE V. MOERIS. Supreme Court of Georgia. 1853, 13 Georgia, 147, Motion to dismiss writ of error. Lumpkin, J., concurring. Is a writ of error a nullity without a seal? My first impression was, that this defect was fatal. Up- on reflection, my final conclusion is, the other way. * * * ********** Lord Coke defines a seal to be, wax with an impression, (3 Inst. 169.) " Sigillum" says he, "est certa impressa, quia cera sine impressione non est sigillum." And this has been adopted as the Common Law definition of a seal. Perk. 129, 134, Bra. tit. Faits. 17, 30. 2 Leon. 21. But it is a curious fact that there is neither an Act of Parliament nor an adjudged case, up to Lord Coke's day, to bind the courts as to what constitutes a seal. His opinion was prob- ably founded on the practice of the country in his day. New York, and most of the States North, have held that a seal is an impression upon wax, wafer or some other tenacious substance, capable of being impressed. 5 John. Rep. 239, 2 Caine's Rep. 262. 21 Pick. Rep. 417. But in Pennsylvania, New Jersey, and the Southern and Western States generally, the impression upon wax has been dis- used, and a circular, oval, or square mark, opposite the name of the signer, is held to have the same effect as a seal, the shape of it being altogether indifferent. It is usually written with a pen, sometimes printed. 2 Serg. d Raivle, 503. 1 Ball. 63. 1 Watts, 322, 2 Halst. 272. The truth is, that this who^e sul)ject, like many others, is founded on the usage of the times, and of the country. A scroll is just as good as an impression on wax, wafer, or parchment, by metal, engraved with the arms of a prince, potentate, or private person. Both are now utterly worth- less, and the only wonder is, that all technical distinctions growing out of the use of seals, such as the Statute of Lim- itations, plea to the consideration, etc., are not at once uni- 12 Trial Practice [Chap. 1 versally abolished. The only reason ever urged at this, day, why a seal should give greater evidence and dignity to writing is, that it evidences greater deliberation, and there- fore should impart greater solemnity to instruments. Prac- tically we know that the art of printing has done away with this argument. For not only are all official and most in- dividual deeds, with the seals appended, printed previ- ously, and filled up at the time of their execution, but even merchants and business men are adopting the same prac- tice, as it respects their notes. Once the seal was everything, and the signature was nothing. Now the very reverse is true: the signature is everything, and the seal nothing. * * * So long as seals distinguished identity, there was pro- priety in preserving them. And as a striking illustration see the signatures and seals to the death warrant of Charles the First, as late as January, 16-1:8. They are 49 in num- ber, and no two of them alike. But to recognize the wav- ing, oval circumflex of a pen, with those mystic letters to the uninitiated, L. S. imprisoned in its serpentine folds, as equipotent with the coats of arms taken from the devices engraven on the shields of knights and noblemen; shades of Eustace, Roger de Beaumont, and Geoffry Gifford, what a desecration! The reason of the usage has ceased; let the custom be dispensed with altogether. ********** With these desultory remarks I am content to leave the law, learning and logic of the case to my brother Warner, to whom it legitimately belongs, and who, I have no doubt, will do ample justice to the argument, and with whom I concur, in retaining the writ of error.^ iThe entire opinion, only a small part of wLich is ^iven liere, is replete with Avit and learning, and a reading of it will afTi)rd both entertainment and profit. Sec. 5J Wkits of Summons 13 CHOATE V. SPENCER. Supreme Court of Montana. 1893. 13 Montana, 127. Action to annul sheriff's deed. Defendants' demurrer to the complaint was sustained by Henry, J. Reversed. Pemberton, C. J. ********** The appellant insists that the summons issued out of the district court of the fourth judicial district of the territory of Montana, in and for Choteau county, on the seventeenth day of June, 1888, in the suit of Jere Sullivan against this appellant, was absolutely void, because it was not authenti- cated by the seal of the said court. If this contention is cor- rect, the district court never acquired jurisdiction of this appellant, who was defendant in that suit, by the issuance and service of such summons ; and any judgment said court may have entered in said cause, as well as the execution issued for the enforcement of such judgment, and all other proceedings thereunder, including the levy thereof on the property of appellant, and the sale and execution and delivery of the sheriff's deed complained of, would neces- sarily be null and void. ***** At common law, a writ issuing from a court having a seal, in order to be considered authentic or of any value, must be attested by the seal of the court from which it is issued. The laws of this state provide that the district courts shall have a seal (Code Civ. Proc. Sec. 527) and that the clerk of the court shall keep the seal (Code Civ. Proc. Sec. 528). And section 68 of the Code of Civil Pro- cedure requires that the summons must be issued under the seal of the court. So that, under our statutes, there is no departure from the common law rule requiring such writs to be authenticated by the seal of the court from which they issue. The appellant has cited a number of authorities holding the common law doctrine that such writs must be authenticated by the seal of the court from which they are issued in order to give them validity, and without which they would be void. The principal case re- lied upon by appellant in support of his contention that the summons under discussion was void for want of M Teial Pkactice [Chap. 1 the seal of the court is Insurance Co. v. Hallock, 6 Wall. 556. This ease went to the supreme court of the United States, from Indiana, and involved the validity of a deed executed and delivered by a sheriff to real estate, under an order of sale, under a statute of that state. The statute re- quired the order of sale to be issued under the seal of the court. The seal was omitted from the order of sale. In delivering the opinion of the court, Mr. Justice Miller, says : *'If the paper here called an 'order of sale' is to be treated as a writ of execution or fieri facias issued to the sheriff, or as a process of any kind issued from the court, which the law required to be issued under the seal of the court, there can be no question that it was void, and conferred no authority upon the officer to sell the land. The authorities are uniform that all process issuing from a court which by law authenticates such process with its seal is void if is- sued without a seal. Counsel for plaintiffs in error have not cited a single case to the contrary, nor have our own re- searches discovered one. We have decided in this court that a writ of error is void for want of a seal, though the clerk had returned the transcript in obedience to the writ. We have held that a bill of exceptions must be under the seal of the judge." This was a collateral attack made upon the deed executed by the sheriff, under the order of sale from which the seal had been omitted. Counsel for the respondents contend that the case just cited is not control- ling, and claim that the Indiana courts have declined to follow the rule therein asserted, and cite a number of Indi- ana cases in support of their position. From an examina- tion of the Indiana cases cited by respondents we are of opinion that the departure from the rule asserted in Insurance Co. v. Hallock, 6 Wall. 556, has been occasioned by the legislation in Indiana since the decision in 6 Wall. 556. In support of this view, we quote from State v. Davis, 73 Ind. 360, this case being cited by respondents. In this case the court say: "It is undoubtedly true, as appellees insist, that at common law a writ issuing from a court nmst, in order to be entitled to be considered as regular and authentic, be attested by the seal of the court from whicli it issued. {Williams v. Vanneter, 19 111. 293; State v. Flemming, 66 Me. 142; 22 Am. Rep. 552; Wheaton r. Thompson, 20 Minn. 196; Reeder v. Murray, 3 Ark. 450.) Sec. 5] Wkits of Summons 15 The case of Insurance Co. v. Hallock, 6 Wall. 55G, does de- cide that an order of sale issued by a court of this state was void because not attested by the seal of the court. It has also been held by this court that, where there is no statute to the contrary, a writ or record must be attested by the seal of the court from which it comes. (Jones v. Frost, 42 Ind. 543; Hinton v. Brown, 1 Blackf. 429; San ford v. Sin- ton, 34 Ind. 539.) The older cases did hold that a writ lacking the seal of the court was absolutely void, but there is much conflict upon this point among the modern cases, many of them holding that such a writ is not void but mere- ly voidable. Our court long since held that such a writ was not void. It is true, as argued by appellees, that a sum- mons so clearly defective as to be insufficient to confer juris- diction cannot, after judgment, be so amended as to give jurisdiction. If a summons without a seal be conceded to be void, then there can be no amendment, for it is axiomatic that a void thing can not be amended. The liberal provis- ions of our statute respecting the summons would take such writs from under the old common-law rule, even if it were conceded that it is the rule which must be adopted respecting other writs. The provisions of the code upon this subject are contained in article IV., and the provision which directly bears upon this point is found in section 37, and is as follows: 'No summons or the service shall be set aside or be adjudged insufficient where there is sufficient substance about either to inform the party on whom it may be served that there is an action instituted against him in court.' " It must appear as conclusive that the court in this case would have held the summons void but for the statute of Indiana, quoted in their opinion. This case seems to us to be strong authority for holding that, but for the statute of Indiana in relation to the essentials of a summons, that court would have held to the doctrine con- tained in 6 Wall. 55G, to-wit, that such writs, without the seal of the court from which they issued, are void. ********** The appellant further contends that, at the time of the issuance and service of the summons under discussion, Mon- tana was one of the Territories of the United States, and for this reason the opinion of the supreme court of the United States in 6 Wall. 556, is decisive of the question as 16 Trial Pbactice [Chap. 1 to the validity of said summons, and controlling upon this court in the determination of this question ; and relies upon the authority and reasoning in Sullivan v. City of Helena, 10 Mont. 134. We are of opinion that this posi- tion is unassailable, our statute being, in effect, the same as that of Indiana at the time of the rendition of the opin- ion in 6 Wall. 556. This reasoning and holding do not in our opinion, contravene section 119 of our Code of Civil Procedure, which provides that "the court shall in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the sub- stantial rights of the parties; and no judgment shall be re- versed or affected by reason of such error or defect." This section presupposes an action pending, of which the court has acquired proper jurisdiction, and we are not passing up- on the powers of the court under such circumstances. We hold in the case at bar that the summons — the jurisdic- tional writ — under the law and decisions in force and con- trolling in this jurisdiction at the time of its issuance was void, because not issued under the seal of the court. If this case involved a defective process, issued subsequent to summons, and the acquiring of jurisdiction by the court thereunder, then the contention of respondents that such defect or irregularity could be amended or disregarded might be urged with great force. Judgment reversed and cause remanded, with directions to overrule the demurrer. Reversed.^ Harwood, J. and DeWitt, J., concur. iWliere the requisites of a summons or other writ are prescribed by consti- tution or statute, it is frequently held that such constitutional or statutory requirements are mandatory, that the writ is void without all of them, and that the want of any one cannot be supplied by amendment. Gordon v. Bod- well, (1898) 59 Kan. 51, 51 Pac. 906; Sharman v. Huot, (1898) 20 Mont. 555, 52 Pac. 558. Sec. 5 J Writs of Summons 17 AMBLER V. LEACH. Supreme Court of Appeals of West Virginia. 1879. 15 West Virginia, 677. At the fall term, 1869, an office-judgment was confirmed by the circuit court of Wood county in favor of James M. Stephenson, Thompson Leach and K. B. Stephenson, part- ners under the firm name and style of Stephenson, Leach & Co., against John Council and J. G. Blackford for $310.- 49, with interest from September 25, 1869, till paid, and costs of suit. * * * Tiie summons, by which this suit was commenced, was as follows: ''State of West Virginia. "To the Sheriff of Wood County, Greeting: ''We command you that you summon John Council and J. Gr. Blackford to appear before the judge of our circuit court for W^ood county at rules, to be held in the clerk's office of said court, on the first Monday in August next, to answer James M. Stephenson, Thompson Leach and K. B. Stephenson, partners under the name and style of Steph- enson, Leach & Co., of a plea of debt for $301.75, damages $20.00. And have then and there this writ. "Witness, William H. Hatcher, clerk of our said circuit court, at the court house of said county, the day of and in the year of the State." * * * At the time this judgment was rendered J. G. IMackford owned several parcels of land in said county, and also a considerable amount of personal property. On the 23rd day of February, 1876, he conveyed all his prop- erty, real and personal, to B. Mason Ambler, trustee, for the jDayment of all his debts ratably. This conveyance was duly recorded the same day, October 12, 1878, that this trustee instituted this suit. In his bill he states all the above facts, filing with it a copy of the record in this common law suit, a copy of this execution and return thereon and an abstract of this judg- ment from said judgment lien docket. He alleges in his bill that this judgment was a mere nullity, as the summons, which was the commencement of the suit, was not dated and was not signed by the clerk. But says that it being T. P.— 2 18 Trial Practice [Chap. 1 claimed to be a valid judgment, and being on the judgment lien docket, it is a cloud on the real estate conveyed to him as trustee, and prevents his selling to advantage tlif real estate conveyed by said deed, as he is thereby author- ized and directed to do. * * * The two Stephensons being dead, the bill makes Okey Johnson, their several executor, Thompson Leach, J, G. Blackford and John Con- nell defendants, and asks the court to declare said judg- ment null and void. * * * The court by its final decree * * * dismissed the bill and decreed that the plaintiff pay to said defendants their costs in said suit expended. From this decree the plaintiff, B, M. Ambler, on March 22, 1879, obtained from this court an appeal and super- sedeas. Green, President, delivered the opinion of the court: The first question presented by this record is : Was the judgment of the circuit court of the fall term, 1869, null and void, because the summons in the suit in which such judgment was rendered was blank as to its date, and be- cause it was not signed by the clerk or his deputy? The appellant's counsel claims that it is absolutely void, and should be so pronounced by this Court ; while the appellees claim that it was only voidable by plea in abatement, or motion to quash it in the original suit, or at furthest by having the judgment set aside by a motion by the defend- ants before the circuit court which rendered it, or, if it refused, by a writ of error after such refusal and a revers- al of this judgment by this Court; and these steps not hav- ing been taken, this judgment is valid, and a lien on the real estate of the defendant, Blackford, superior to the lien created by said deed of trust. * * * In some of the States their constitutions or laws require that process shall be signed by the clerk of the court, and sealed with the seal of the court, and as the sealing as well as signing is clearly intended for the like purpose, of autlienticating the process, the decision as to the effect of omitting to attach the seal of the court I regard as bear- ing directly on the question under discussion in this case. In Maine, where the process has to be under the seal of the '!0urt, it was decided that a writ returnable to the Supreme Judicial Court, wliirli ought to have had the seal of that Sec. 5] Wkits of Summons 19 Court attached to it, but did not have, was to be quashed on motion of the defendant, though made at a term long subsequent to the term at which the writ was returnable. The court say: ''Upon the whole we regard the seal as a matter of su])stance, and the process, being an original ivrit, not amendable. We regret that the defect was not pointed out at an earlier stage of the proceedings; but we are not satisfied that it is now too late to take the objection. We do not abate the proceedings so much for the sake of the defendants, as because the plaintiff has departed from a substantial requirement of law of a public nature, in bringing his action." It is obvious that the court did not regard this process as absolutely null and void, but as a voidable process; but the defect being a substantial one. the defendant was not confined to the term at which pro- cess was returnable to make his motion to quash this pro- cess, but was allowed to do so long afterwards. Still if he had permitted a judgment to be entered by default, the court would doubtless have held this judgment valid. All they did decide was, that at any time pending the case he might avoid this process ; but unless avoided, it was good. That it was not a mere nullity and absolutely void is shown by the case of Sawyer v. Baker, 3 Greenl. (8 Me.) 29, where the court held that an execution issued without the seal of the court, which the law required, was not ab- solutely void, but might be afterwards amended. And this decision is approved in the case of Bailey v. Smith, 3 Fairfield, (12 Me.) 196. So in Massachusetts. Upon a plea in abatement to a writ, that the seal of the court was not attached, the court held the plea good and refused to per- mit the writ to be amended by attaching the seal. Hall v. Jones, 9 Pick. 446. But in New York in the case of Pepron et al., V. Jenkins, Coleman & Caine's cases 60, on a motion to quash a writ, because not signed by the clerk, the court permitted the writ to be amended by the clerk's then sign- ing it. Both these cases evidently treat the writ as not void, but as voidable only. And in the People v. Dunning, 1 Wend. 16, the court expressly decide that an execution, to which the seal of the court was not attached as the law requires, was not void or a nullity, but only voidable, and the sureties of a sheriff were held liable for money collected under such an execution. In the case of Stayton v. New- 20 Trial Practice [Chap. 1 comer, 1 Eng. (Ark.) 451, there was a judgment by default on a writ to which the seal of the court was not attached. Upon writ of error this judgment was reversed. We could not from this infer that the writ was a mere nullity, but rather the reverse, that it was voidable, and was avoided by the defendants obtaining a writ of error. But Oldham, Judge, in delivering the opinion of the court, used very strong language to show that the writ was a mere nullity. He says, ''this writ totally fails to confer any jurisdiction over the person of the appellant. The writ being unsealed is a mere nullity, and as such imposes no legal obligation upon the appellant to appear and defend against the ac- tion. The judgment by default is therefore erroneous and ought to be reversed." This language is so specific that it is obvious that the court intended to hold that a writ to which the seal of the court was not attached, was an abso- lute nullity, unless confirmed by the defendant's appear- ance. And that a judgment by default based on it would also be null and void, even had it not been reversed by the Appellate Court. ********** In Parson v. Sweft, 32 N. H. 88, the court decided that, though the Constitution of New Hampshire expressly pro- vides that ''all writs shall bear the teste of the chief jus- tice of the court," yet a writ not bearing this teste was not void, but only voidable by motion to quash made at the Ijroper time in the progress of the suit. The court say: "The Constitution of this State, article 87, provides that all writs issuing out of the clerk's office in any court of law, shall be in the name of the State of New Hampshire, shall be under the seal of the court whence they issue, and bear teste of the chief, first or senior justice of the court, and shall be signed by the clerk of said court, yet a writ which issues without the proper teste is not in terms de- clared by the Constitution to be void, and wo think it is not to be held so by construction. In the same article of the Constitution writs are required to be signed by the clerk ; but a writ is not void because it wants the signature of the clerk; and the objection will be overruled, if not seasona))ly made. LoveU v. Sahin, 15 N. IT. 37. In Massa- chusetts, upon tlie construction of a similar provision of their Constitution, it has been decided that the want of ? Sec. 5] Writs of Summons 21 propor iesfe is mere matter of form, and must be taken ad- vantage of by seasonable objection; otherwise it will be held to be waived. Ripley v. Warren, 2 Pick. 592. In this ease the want of a proper teste did not make the writ void. If a motion to quash had been seasonably made, the writ might have been amended; for it was not void, and the court had jurisdiction. It was so decided in Bcyuolds v. Donnell, not reported. The ordinary process of the court never in fact bears the actual signature of the chief justice, but his name is printed into the blank writs before they are delivered out of the clerk's office. The teste of a writ is therefore in practice a mere matter of form." Yet in HiitcJiins v. Edson, 1 N. H. 139, a sheriff was held not liable for the escape of a prisoner, whom he held in custody, because the execution under which he held him was not under seal, and the court say: "A writ not under seal is not process warranted by law. The Constitution in our opinion has rendered a seal essential to the validity of all our writs; and no officer can justify anything done under a writ of execution not under seal. It is no better warrant for arrest than a piece of blank paper." Comment- ing on this case the court in Parson v. Sivett, 32 N. H, 89, say: ''The general language used in that case might tend to the conclusion that writs of mesne, as well as final, pro- cess were void, unless under the seal of the court. It is ob- vious, however, that there is an important distinction be- tween the two kinds of writs, because to a writ of final pro- cess the defendant has no opportunity to object, by plea or motion that it wants a seal or other constitutional requisite. It may perhaps be found, when a case shall arise which presents the question, that the doctrine of Hidchins and Edson ought not to be extended beyond the point expressly decided. Foote v. Knowles, 4 Mete. 586; Brewer v. Lihhey, 13 Mete. 175 ; People v. Dunning, 1 Wend. 17 ; Jackson v. Broivn, 4 Cow. 550." There has been in the State of Arkansas a very large number of decisions as to the effect upon a judgment of the writ being defective in almost all sorts of ways. The de- cisions at first were quite strong, or the language used in them strong, to indicate that for many of these defects the judgments would be void. These cases were all reviewed 22 Trial Peactice [Chap. 1 however in Mitchell v. Conley, 8 Eng. 414, and the court on full review of them then held an original summons not run ning in the name of tlie State is not void, but amendable, and may be amended after plea in abatement filed. In Rodcl. surv. V. Thompson d Barnes, 22 Ark. 363, the court held a writ of summons is not void for want of the official seal of the clerk. It is voidable only and may be amended on application to the court; but if no application to amend has been made, the defect is ground for a reversal of judg- ment by default. The court say: ''It has been the practice of this court to reverse judgments by default in cases where the summons were without the official seal of the clerk, and such writs were treated as void. But in Mitchell v. Con- ley, 13 Ark. 418, the court upon review of its previous de- cisions held that they were not void for such defects, but voidable, and the court below possessed the power to amend them on application. Here no application was made to amend; and the defect in the writ is cause of reversal." The authorities we have cited show that the decided weight of authorit}^ is against holding a writ absolutely void, because not signed by the clerk, or not having the seal of the court attached to it, or not being properly attached, or for not running in the name of the State, even where these things, or any of them, are required in the Constitu- tion; but such defects in a writ render it only voidable. In some States it is held that these things, or most of them, are so much a matter of form, that no advantage can be taken of them except by a plea in abatement, or by a mo- tion to quash made at the proper time. Others hold that while none of these defects render a writ void, or the judg- ment based on it a nullity; yet they, or some of them, are such defects of substance that the writ can be avoided by motions to quash, though not made promptly, and where on such a defective writ, at least where some of these de- fects exist, a judgment by default is obtained against the defendant, it will be ;feversed on writ of error. But no decision, which I have been able to find, holds in a collateral proceeding that such a judgment is a nullity. It is true, as we have seen, that some of the judges use very strong lan- guage, from which we m.ight infer, that in their opinion a judgment by default based on a wi-it in which some of these defects existed was an absolute nullitv; but we are liable Sec. 5] Writs of Summons 23 to mistake their views, as in none of the cases, we have seen, were they called upon to decide more than that the judgment might be reversed, or the writ quashed on mo- tion in the same suit; and it is obvious that this might properly be done, though the judgment was not a mere nullity. In this case the defendants in the common law suit had a summons regularly served on them by the sheriff, which on its face showed it came from the clerk's office, though not signed by the clerk. It was served on the 2nd. dav of August, 1869, and required them to appear at a speci- fied time to answer the plaintiff's demand. It is true the summons was not dated, but the law required that a writ should be returned in not exceeding ninety days. The defendants knew therefore that this writ had been issued at sometime within the preceding ninety days, and could not therefore have supposed it was issued in some pre- ceding year, as has been suggested, and must therefore have known at what specific time they were required to appear and answer. They also knew in what court to an- swer from the face of the writ, and at what particular time to answer. It does seem to me therefore that such a writ ought not to be regarded as an absolute nullity. It was no doubt very defective and might have been properly quashed; but as it really gave with reasonable certainty all the information to the defendants that a regular and perfect writ would have done, it cannot justly be regarded as a nullity. For these reasons the decree of the circuit court of Octo- ber 28, 1878, * * * dismissing the plaintiff's bill at his costs, must be affirmed. * * * Decree affirmed. 24 Trial Practice [Chap. 1 Section 6. Indorsement of Amount Claimed. ELMEN V. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY. Supreme Court of Nebraska. 1905. 75 Nebraska, 37. Letton, C. This action was brought by George P. El- men, as administrator of the estate of Robert Stewart, deceased, to recover damages for the widow and next of kin on account of the death of his intestate, which lie al- leges was caused by the negligence of the defendant rail road while the deceased was working in its Havelock shops. * * * * On July 17, 1901, one day before the time limited by the statute for the beginning of an action for death by wrongful act, a petition was filed in this action and a summons issued. The praecipe for the summons did not ask for the indorsement of any amount for which judg- ment would be taken if the defendant did not appear, nor did the summons which was issued have either upon its face or indorsed thereupon any amount for which judgment would be taken in such case. This summons was duly served upon the defendant and returned. No appearance wa** made and no default was entered. On February 10, 1902, the plaintiff filed a motion requesting to be permitted to amend the praecipe so as to show the amount for whicli plaintiff would take judgment, in case of default, to be $5,000, that the clerk be directed to amend the original summons by indorsing that amount upon it, and that an alias summons be issued, with that amount indorsed, re- quiring the defendant to answer on or before March 17, 1902, and that the amended summons, a copy of the mo- tion and order allowing it, and the alias summons, be served upon the defendant the same as an original sum- mons. The court, by an ex parte order, sustained the mo- tion. * * * * * * We have repeatedly held that no judgment can be rendered in excess of the amount indorsed upon the sum- mons in case of default in an action where the only relief sought is a money judgment. Croivell v. Galloway, 3 Neb. 215; Roggencamp v. Moore, 9 Neb. 105; Co-operative Stove Sec. 6] Writs of Summons 25 Co. V. Grimes, 9 Neb. 123; Forbes v. Bringe, 32 Neb. 757, The plaintiff in error contends that the amendments to the summons and praecipe, which were permitted by the court, relate back to the time of the issuance and service of the original summons, and that therefore the action was begun within the two year period, while the position of the rail- road company is that, since no judgment could have been rendered for any amount whatever upon the summons as it was when issued and served, an amendment which gave to the writ a force and effect of which it was entirely devoid was in effect the beginning of a new action, and that, in such case, if the bar of the statute had fallen, it could not over- ride the same. We have been cited to no cases directly in point in either this or any other jurisdiction. This court has held that a motion to amend an affidavit for attachment may be sustained, even though a motion is pending to quash the writ on account of the very defect which it is sought to cure by amendment. Struthers v. McDowell, 5 Neb. 491; Rathman v. Peycke, 37 Neb. 384; Moline, Milburn <& Stod- dard Co. V. Curtis, 38 Neb. 520; Dohry v. Western Mfg. Co. 57 Neb. 228. In such cases the amendment relates back to the issuance of the writ of attachment. The gen- eral rule is that irregular or voidable process may be amended, but that void process is incapable of amend- ment. The reasons are obvious. A void writ is not a writ, and an amendment which would give such a writ force and effect would call the process into being at the time of the so-called amendment. The courts of other states have not been uniform in their holdings as to the effect of the failure to include an ad damnum clause in a sum- mons or to indorse upon the back of the writ the amount claimed, where required by statute. See Campbell v. Chaf- fee, 6 Fla. 724:;Kagay v. Trustees, 68 111. 75; State v. Hood, 6 Blackf. (Ind.) *260. In Ohio, in such a case, it was held by an inferior court that such a summons could be amended, but unless appearance were made the amendment would have to be served. Williams v. Hamlin, 1 Handy 95. While in another such court in the same state it was held that a judgment rendered upon the service of a writ with no amount indorsed was erroneous, but not void, and there- fore valid and subsisting, since not directly attacked, Gil- lett V. Miller, 12 Ohio C. C. 214. 26 Trial Practice [Chap. 1 If the first position is correct the latter is wrong. Tho holdings are clearly irreconcilable. This court, however, in an early case, pointed out the proper procedure and in- dicated the effect of such an amendment. In Watson v. McCartney, 1 Neb. 131, the action was to enforce a ven- dor's lien upon certain lands. The summons was indorsed with the notice required in cases where a judgment for money only is sought. The defendants did not appear, and the indorsement was by leave of court amended so as to conform to the nature of the action, and judgment was rendered accordingly. In that case as in this both the praecipe and the summons were defective as to indorse- ment. In the opinion Judge Lake says : ''So well am I satisfied that this amendment was irregu- lar and unwarranted, that I have not undertaken to look into the cases relating to amendments cited by counsel for the defendant in error. Although cases might be found to support such a proceeding I should deem it unwise, in the settlement of the practice which is to govern in the courts of this state, to conform to precedents of that char- acter. ***** jjad the defendants appeared, the amendment might have been made by order of the court. The office of the notice indorsed on the summons is to advise the defendant of the amount claimed. He then is at liberty to consent or resist. ***** tj^^ plain- tiff's course was to take judgment for the amount indicated in the notice, with interest from April 1, 1897. If he desired a further or greater recovery, he should have ob- tained leave and issued another summons, such as was proper in the case." See also Reliance Trust Co. v. Ather- ton, 67 Neb. 305; Atchison, T. S S. F. Ry. Cc. v. Nicholls. 8 Colo. 188, 6 Pac. 512. In the instant case the summons was issued in all re- spects in conformity with the praecipe which was filed, and in conformity with law. It is not a case where an error has been made by a clerk of the court or other officer. In such a case, as, for instance, where an error has been made in the date of the return day of the summons or the answer day, we have permitted amendments to be made, and such amendments relate back to the time of the issuance of the summons. Barker Co. v. Central West In- vestment Co. 75 Neb. 43. The court, in such case, has Sec. G] Writs of Summons 27 y^ower to prosprve the riglits of tlie defendants by grant- ing such additional time to plead as may be necessary. In such cases, the defendant is fully advised of the nature of the judgment which is sought to be rendered against him, and the only prejudice which he can suffer is being deprived of the necessary time in which to prepare his de- fense. The case here, however, is different. Upon its face the summons was valid, but it failed in anjnvise to apprise the defendant of any money demand against it. No sum is mentioned either on the face or upon the back of the writ. This being the case, an amendment to the praecipe which directs the clerk to indorse a sum of money upon the writ, and an indorsemnt of the same upon the summons, the defendant not being in court, in- jects into the caF.e a liability upon the defendant to which he was not subject when the writ was issued, and the effect as to him is the same as the amendment of a peti- tion by setting forth a new cause of action, or the issu- ance of an alias summons. The defendant may have been, and evidently was, perfectly satisfied to let judgment go against him upon the process as it was first issued, but, when the same was made valid and effectual to charge him with a money judgment, it was the same as beginning a new action, and he had the right to the time prescribed by law for his answer after the indorsement. It is a significant fact that the plaintiff did not rely upon the amended praecipe and summons to bring the defendant into court, but procured the issuance and service of a new summons, fixing the answer day at a future date. Taking this fact into consideration, we conclude that the action was begun so far as the liability for the amount indorsed upon the summons is concerned, at the time the amendment was made and the new summons issued. If during the interval between the issuance of the summons and its amendment, or the issuance of the new summons, the bar of the statute of limitations has fallen, it cannot be removed by an amendment or a new summons which virtually begins the action. Since the bar of the statute had fallen at the time of the amendment and the issuance of the new summons, no right of action existed, and the judgment of the district court is correct. 28 Trim. Practice [Chap. 1 We recommend that the judgment of the district court be affirmed. Ames and Oldham, CO., concur. By the court: For the reasons stated in the foregoing opinion, the judgment of the district court is A-ffirmed.^ iln Lawton v. Nicholas, (1903) 12 Okla. 550, 73 Pac. 262, it was held (tyllabus by the court): "A Bummons in an action for the recovery of money only should have endorsed thereon the amount for which judgment will be rendered if the defendant fails to appear. Summons without such en- dorsement is sufficient to give the court jurisdiction of the person and of the subject matter, and the judgment rendered thereon is not void, but voidable only, and execution to enforce such judgment cannot be enjoined." Follow- ing ELansas cases. Section 7. Alias Writs. PARSONS V. HILL. Court of Appeals of District of Columbia, 1900. 15 Appeal Cases, 532. Mr. Justice Morris delivered the opinion of the Court: This cause comes here by special appeal; and the ques- tion involved in it is one of considerable importance in the practice of the law in this District under existing con- ditions. On November 2, 1896, the appellant, Joseph H. Parsons, as plaintiff, instituted a suit at common law against the appellee, Alice S. Hill, as defendant, in the Supreme Court of the District of Columbia, by filing a declaration in as- sumpsit to recover from the appellee the sum of ten thous- and dollars which he claimed to be due to him for profes- sional services rendered to the appellee and another per- son in the matter of the location of some land scrip. This claim was set forth with sufficient minuteness in a bill of particulars annexed to the declaration, which itself was in the common counts, but which, from the record before us, does not appear to have been supported by any affidavit; and, of course, no affidavit was required, except for the purpose of a summary judgment, if one should be sought. Sec. 7] Writs of Summons 29 On the same day on wliieh the declaration was filed, a summons was issued out of the office of the clerk of the court, in the form prescribed by the rules of the court, re- quiring the defendant to appear in court on or before the twentieth day after service of the writ, to answer the plain- tiff's suit, and to show cause why the plaintiff should not have judgment for his cause of action. This summons, with a copy of the declaration, according to the rules and practice of the court, was placed in the hands of the mar- shal for seryice, and was by him returned to the clerk's office on November 25, 1896, with the indorsement thereon that the defendant could not be found. It is understood that she was absent from the District at the time, and out of the jurisdiction. Nothing further was done for nearly two years. On Oc- tober 11, 1898, a second summons was issued ; and this was served on the same day on the defendant, and was returned by the marshal into the clerk's office with the indorsement thereon: "Served copies of the declaration, notice to plead, affidavit, and this summons on the defendant this 11th. day of October, 1898." * * * ***** Qjj November 2, 1898, the defendant, by her attorneys, moved to vacate the second or alias sum- mons issued and returned in the cause, on the ground, a^ alleged, "that the same was improvidently issued, since the original summons issued in the said cause was not legally and duly continued, and that therefore there has been a discontinuance of the said cause." This motion was allowed by the court, and the second or alias summons was accordingly vacated. Thereupon the plaintiff, by his attorneys, moved tlie court to direct the clerk to enter upon the docket continu- ances from the date of the original summons. This mo- tion was denied. Then the plaintiff moved for a judgment against the defendant for want of a duly verified plea. This motion also was denied. The plaintiff next moved for a judgment by default; but this motion likewise was denied. ********** ***** The error, if any there was, consisted in the order to vacate the second, or what is called the alias summons in the case, or else in the refusal of the court to direct the entry of continuances as preliminary to the 30 Trial Practice [Chap. 1 issue of a second or alias writ. And it was from either one or both of these orders that the appeal should have been sought. Yet, under the special circumstances of the present case, it does not seem to us that the ends of justice or any good purpose would be subserved by our refusal in this appeal to consider the true and substantial question in controversy between the parties. * * * That question is, whether, when a declaration in a suit at common law has been filed and a writ of summons has been issued under it in pursuance of the existing rules of the Suf)reme Court of the District of Columbia, and a re- turn has been made upon that writ that the defendant can- not be found, either by reason of absence from the juris- diction or for some other cause, and no further proceeding is had in the case, no further writs issued and no contin- uances entered, until nearly two years afterwards, when a second or alias writ of summons is issued and actually served upon the defendant, the suit has become abated or discontinued, and the plaintiff is compelled to have recourse to a new suit, if he would further prosecute his cause of action? Counsel in this case, with admirable ingenuity and in- cisive logic, have gone to the very foundations of the com- mon law on the subject of writs, and of continuances, and especially of proceedings under the old original writ, where- with, under the ancient English practice, suits in the Court of Common Pleas were always begun. * * * We do not think that it is necessary to follow counsel very far in their discussion of the practice under the old common law. The original writ, by which all civil suits in the Court of Common Pleas in England were formerly com- menced, with its incidents of summons, attachment, dis- fringas, distress infinite, and outlawry, was never in force in this country, either during the colonial period or since our Declaration of Independence. While our ancestors brought with them from England not only the substantive law of that country, so far as it was suited to their circum- stances, but also their law of civil procedure, there was never any place in our system for tlie original writ. From the very beginning we proceeded upon a radically differ- ent theory of jurisprudence in that regard. In England, Sec. 7] Writs of Summons 31 the sovereign was the source of all authority, and the courts were his courts, and had no right to proceed in any cause without his authority and permission. It was the princi- pal function of the original writ to give that permission. With us, on the contrary, the judicial power has always in fact been an independent co-ordinate branch of govern- ment; and the Constitutions adopted after the Declaration of Independence only recognized and emphasized that fact. It never required any special license or authority from any executive, by way of original writ or otherwise, to ex- ercise its functions. The proceedings in England under the original writ are, therefore, no safe criterion for us in our practice. In our practice, a simple writ of summons, or a capias ad respondendum, a form of proceeding derived to us, from the English King's Bench, was the usual mode for the commencement of suits; and these two, which were in form executive, and not judicial writs, although actually issued by the courts, took the place of the old original writ. But in neither practice was it sought to have, or was it supposed that there could properly be, any pleadings whatever, until both parties, the defendant as well as the plaintiff, were in court; and the plaintiff's cause of action, although in the summons or capias, and in the memorandum or praecipe given to the clerk of the court, as the preliminary to the issue of the process, it was to a certain extent indicated, was never formerly stated in the shape of a declaration until after the appearance of the defendant in court in response to the summons or capias. But a very radical departure from ancient usage, and from the former usage of our own jurisdiction, was ef- fected, when, by the Act of Congress of March 3, 1863, Chap. 91 (12 Stat. 762), the Supreme Court of the District of Columbia was established, with power given to it in the act of its creation " to establish such rules as it might deem necessary for the regulation of the practice of the several courts organized by the act, and from time to time to revise and alter sucli rules;" and when, soon after its organization, it accordingly promulgated new rules of pleading and practice to be observed in the conduct of legal proceedings thereafter to bo instituted in that court. The radical character of these rules with reference to the ante 32 Trial Practice [Chap. 1 cedent practice is well recognized by counsel in the state- ment advanced in argument, that if their validity had been properly tested in due time after their promulgation, thoy would not have stood the ordeal of judicial scrutiny. But this argument is not further insisted on than in the point made in the brief of counsel for the appellee, that rules of court cannot be permitted to contravene common right. With reference to this, however, it is sufficient to say here that ordinarily there can be no such thing as a common right in the retention of existing rules of plead- ing and practice. Courts have made these, and courts may unmake them, especially under legislative authority given for the pur^Dose. Alterations in the code of civil procedure must be assumed to have been made, as they are no doubt always intended to be made, for the better admin- istration of the substantive law, and not to impair individ- ual right. Certainly the change in the civil procedure of the District of Columbia effected by tlie promulgation of the rules of the Supreme Court of the District in 1863, being in line with the general modification of the ancient practice before and afterwards effected in other parts of our country, and now, it is believed, become universal through- out the United States, can not well be said to be antagon- istic to common right, when the common sentiment every- where has demanded the change. ********** Under these rules, as thus modified, it has become the settled practice for the marshal to make return of all writs of summons placed in his hands for service at or before the ('X})iration of twenty days. If he makes actual service of the writ, he returns it forthwith with the indorsement that he has so served it. If the defendant cannot be found, the marshal holds the writ for twenty days and then re- turns it into the clerk's office, with the indorsement thereon that the defendant is ''not to be found." In either case Ihe writ by the return becomes functus officio. In the •3vent tliat it has not been served, it cannot be taken out again for actual service — a new writ or alias must be re- sortcf] to for tluit ])nr))Ose. Now, the question is presented A'hetiier, under the rules of the Supreme Court of the Dis- Irict of Columbia, as they now exist and as they existed when the present proceedings were instituted, in order to Sec. 7] Writs of Summons. 3i1 keep a suit alive and to prevent a discontinuance, succes- sive ^^'Tits of summons without intermission must be is- sued until actual service is had upon the defendant, each successive writ to bear teste and to be issued on the date of the return of its predecessor into the office of the clerk of the court. It is not apparent to us what good puriK)se is to be sub- served by the continuous and uninterrupted issue of writs of summons in periods of twenty days, when they cannot be actually served, and it is perfectly well known to the plaintiff that they cannot be served, on account of the ab- sence of the defendant from the jurisdiction or for some other sufficient cause. A rule of practice that would re- quire such continuous issue of process might well become an intolerable burden, in consequence of the utterly useless trouble and the unnecessary costs to which the parties might be put, and which would be of no possible benefit to anyone. Such process might have to be continued for years, with the result merely of incumbering the clerk's dockets and the records of the courts with entries of conspicuous inutility. When a defendant has gone out of the jurisdiction within the period allowed for suit by the Statute of Limitations, and a plaintiff thereafter has brought his suit in due time, in order to prevent the accruing of the bar of the statute, as he is undoubtedly entitled to do, there would be neither justice nor sense in requiring him to have writs constantly issued periodically until the defendant returns. The time of such return being indefinite, the result upon litigation would be prohibitory. "Wlien the plaintiff is a trustee, executor, administrator, guardian, or something of the kind, and sues in his representative or fiduciary capacity, and it is not only his right, but perhaps his duty to sue, which he may not avoid without grave responsibility, a very grave burden is placed upon him, and a very great impediment is interposed to his assertion of just right, if he is compelled at the same time to incur the penalty of indefinite and interminable costs before the defendant is actually served with process. We cannot think that the law requires any- thing so unreasonable. ********** Undoubtedly, as opposed to the useless incumbrance of unserved and unser^^able writs and the risk of liability for T. p.— 3 34 Tbial Practice. [Cliap. 1 indefinite and unascertainable costs on the one side, there is the danger on the other side that, if snits were permitted for a long time to lie dormant by the failure to have notice given to defendants when such notice could well be given, these latter might be greatly and wrongfully prejudiced by being brought into court long after the subject matter of controversy has passed out of their minds, when perliaps witnesses are dead and testimony lost, and yet the Statute of Limitations might not be available as a defense. * * * ********** The suing out of successive writs of summons at inter- N'als of twenty days, each writ to bear teste as of the date of the return of its predecessor into the clerk's office by the marshal, is the only mode pointed out to us, and apparently the only mode that can be pointed out, to effect the actual continuance of process in the present case. But in the rules of the Supreme Court of the District we find no requirement for any such continuance. Those rules, in fact, are entirely silent on the subject; and we are apparently remitted to the ])ractice of the common law. But the common law fur- nishes no guide, and, in our opinion, no analogy even, for the determination of such a case as the present. As we have seen, the practice under the original writ in England affords no analogy; and, as we think has been sufficiently shown, a requirement for the continuous issue of suc- cessive writs, when those writs cannot be served, is un- reasonable. We are advised that the usage under the rules of the Supreme Court of the District for upwards of thirty- live years, that is, practically during the whole period of its existence, has been to the reverse of the contention that a continuous issue of successive writs is necessary in order to keep a cause alive, when the first writ has been returned without actual service on the defendant. * * * On the contrary the ])ractice has been quite the reverse — namely, that after the return of the first writ that the defendant can- not be found, no second or cdias writ is required, until actual service can be had. And that this has been the practice, we understand to be conceded, at all events not to be denied by the appellee; and it seems to be sufficiently established. It may Ix; that this ])ra('tice or usage is justly amenable to the criticism that it does not conform to the rigid rule of continuity and to the doctrine of continuances as applied Sec. 7] Writs of Summons. 35 iu the old common law. But we think that the radical change in the law of procedure effected by the rules of the Supreme Court of the District had the effect of dispens- ing with the requirement of actual continuances in tlie mat- ter of the service of original process to bring a defendant before the court, after one writ had been issued and re- turned without effect; and that, at the utmost, all that could reasonably be required in such a case would be the entry of fictitious continuances on the record to be made whenever a writ could be actually issued mth effect, in accordance with what is understood to have been the prac- tice of the English courts in analogous cases. The making of fictitious entries, however, is not appropriate in our American practice ; and it is understood that in the cases in which they are authorized in England, they are wholly dispensed wn^th and are unnecessaiy in our legal procedure. We are not to be understood to be holding that the law in regard to continuances is not yet in force. On the con- trary, we regard it as yet fully in force in many cases ; and it has been so held. Gait v. Todd, 5 App. D. C. 350 ; Crum- haugli V. Otterhack, 20 D. C. 434; Thompson v. Beveridge, 3 Mackey, 170. But wherever it has been held that continu- ance is necessary, actual continuance is meant. There is no place in our system for the entry of fictitious continuances. Nicholls V. Fearson, 2 Cranch C. C. Rep. 526 ; Banli v. Brent, 2 Cranch C. C. Rep. 538; Baker v. French, 2 Cranch C. C. Rep. 539; Thompson v. Beveridge, 3 Mackey, 170. But the usage which we regard as* having become a rule of practice under the code of rules promulgated by the Supreme Court of the District, has its limitations. That usage has already been stated to be, that when, upon a declaration at common law, filed in that court, a writ of summons has been issued, and has been duly returned by the marshal with the return that the defendant cannot be found, no further writs are required to be issued in order to keep the suit alive, until the defendant can actually be found and a writ can actually be ser\'ed upon him. But it follows that, when the defendant can be found and the writ can actually be served upon him, it then becomes ne- cessary' to follow up the proceeding by the issue of a writ to be actually served; and if the plaintiff fails to have a 36 Trial Practice. [Chap. 1 writ issued in due time for such actual sei-vice, he incurs the risk of having his suit discontinued. It is open to a defendant, when service of process has been improperly and unduly delayed, to show, upon a mo- tion to vacate the writ, when it has actually been issued, that there has been discontinuance in consequence of fail- ure to have it issued in due time. The writ will be pre- sumed to have been duly issued and duly served, until the contrary is shown; but actual discontinuance of the suit may be made to appear, upon affidavit or otherwise to the satisfaction of the court. And when such actual discon- tinuance has been made to appear, the court may properly vacate the writ which has been served upon the defendant, and discontinue the cause, and remit the plaintiff to a new action, if he chooses to avail himself of it. ********** Suits at common law, which have been duly commenced by tlie filing of a declaration and the issue of process thereunder, cannot thereafter be permitted to remain indefi- nitely within the control of the plaintiff alone. The suit should be effectively prosecuted in good faith, or dismissed. Due diligence in such prosecution is an essential require- ment on the part of the plaintiff. If that due diligence is wanting, effect should be given to the rule of law that works a discontinuance of the suit. But under the code of pro- cedure of the Supreme Court of the District, that ques- tion of due diligence is a question of fact to be shown to the court by the proper proof. This was not done in the present case ; and we think that it was error to vacate the writ without such proof. The cause will be remanded to the Supreme Court of the District of Columbia, with din^ctions to vacate or rescind the order vacating the alias writ of summons issued in the cause, and to vacate all the orders and proceedings had in the cause subsequent thereto; and with directions further to pemiit the defendant to renew her motion to vacate said alias writ, if slie so desires.^ 1 In Johnson v. Mead (1885) 58 Mich. 70, the court said: "An examina- tion of the authorities will show that the continuance roll for a long time came to he ni^^.irdod very much as a matter of form, although it is said in Bonie cases, if the ol)ject is to prevent the statute of limitations from run- ning, a strict compliance should Ixi shown. We have no statute upon the suhject, but the effect of continuing the suit by the successive issuing of writs has always been regarded as an arrest of the running of the statute when Sec. 7] Wkits of Summons 37 done in good faith with the intent of prosecuting the suit. Plowell v. Shepard, 48 Mich. 472 * * *In this case the record shows the longest interval between the filing of one writ and the issuing of the other was two days; and inasmuch as the return and filing of the one was precedent to the issuing of the other, we Bee nothing unreasonable in the time taken for issuing the pluries writ. It must be regarded as sufficiently regular to save the running of the statute against the plaintiff 's claim. ' ' CHAPTER 11. SERVICE AND RETURN OF SUMMONS. Section 1. Personal Service. McKENZIE V. BOYNTON. Supreme Court of North Dakota. 1910. 19 North Dakota, 531, FiSK, J. When the owner of the property is a resident of this state the statute requires personal service to be made on him of the notice of the expiration of time for redemption. It is respondent's contention, and the trial court so held, that the stipulated facts fail to show a compliance witli the statute in this respect. In this we think they are cor- rect. It is not contended by appellant that personal service of such notice was in fact made ; the contention merely be- ing that the stipulated facts show the equivalent of per- sonal service. In this they are in error. The delivery by the sheriff of a copy of such notice to W. J. Freede, an employee at the Sheridan House, falls far short of personal service upon McKenzie. For all that is contained in the alleged proof of such service McKenzie may have been actually in his room in said hotel at the time the Sheriff left with said employee the copy of the notice. The personal service required by the statute must, we think, be made in the manner of making personal service of a summons as pro- vided by section 6888. Kev. Codes 1905. That section so far as applicable, r(>ads as follows: "The summons shall be served by delivering a copy thereof as follows; ***** (7] III all other cases, to the defendant personally, and if the df'feiidant cannot conveniently be found, by leaving a copv tlierc'of nt liis dwelliTig house in the presence of one or more of his family over the age of fourteen years; or if the de fondant resides in the family of another, with one of the 88 Sec. 1] Service and Retuen of Summons 39 members of the family in which he resides over the ago (if fourteen years. Service made in any of the modes pro- vided in this section shall be taken and held to be personal service. * * *" Plaintiff had no family nor was he resid- ing in the family of another within the meaning of the statute. His residence was at a public hotel; hence the service which, under the statute, would be valid and bind- ing on him could be made only by delivering to him per- sonally the notice required. For like reasons the attempted substituted service by registered mail, even if the proof thereof was complete, is utterly unavailing. As said by this court in Bank v. Holmes, 12 N. D. 38, 94 N. W. 764; '^The term 'personal service' has a fixed and definite meaning in law. It is service by delivery of the writ to the defendant personally.^ Other modes of service may be given the force of such service by legislative enactment. But the use of the words 'personal service,' unqualified, in a statute means actual service by delivering to the person, and not to a proxy"— citing Hohhy v. Bunch, 83 Ga. 1, 10 S. E. 113, 20 Am. St. Rep. 301. See also 19 Encyc. PI. & Pr. 613, 630 et seq. ; 32 Cyc. 448, 457, and cases cited. See also R. I. Hos- pital Trust Co. V. Keencij, 1 N. D. 411, 48 N. W. 341. * * * lln the absence of any statutory provision on the subject, it was held in Ball V. Shattuck, (1855) 16 111. 299, that personal service must be by reading the writ to the defendant. Delivery of a copy is not sufficient. Law v Grommes, (1895) 158 111. 492, 41 N."E. 1080. KROTTER & CO. V. NORTON. Supreme Court of Nebraska. 1909, 84 Nebraska, 137. Epperson, C. Plaintiff instituted an action in equity to foreclose a '■battel mortgage given by the defendant, G. W. Norton, to ])laintiff upon a frame dwelling house and frame barn situ- ate on land in the possession of mortgagor under a five year lease. The mortgagor and his wife were made de- fendants, and a summons was issued in which they were 40 Tkial Peactice [Chap. 2 named as '*G. W. Norton and wife, Mrs. G. W. Norton." The return of the sheriff showed personal service. * * * * * Still later and upon default of defendants, the court rendered a decree of foreclosure, and directed a sale of the mortgaged property for the satisfaction of plaintiff's debt. After the sheriff had sold the property, but before confirma- tion, the defendants filed an application to set aside the sale,^ * * * Objection is made that there was no personal service of summons upon Mrs. Norton. It appears from the testi- mony of the sheriff that the summons was not served by the actual delivery of a copy thereof into the hand of Mrs. Norton, but such service is not necessary to constitute per- sonal service. According to Mrs. Norton's own testimony, we are convinced that there was personal service of the summons upon her. At the time of the service of the summons and the notice of application for injunction, she testified that the sheriff came to their home and into the room where she and her husband were; that the sheriff read the papers aloud, both the notice and the summons, in the presence of both defendants ; that she heard them read ; that the sheriff handed the two papers to her husband, saying one of them was for the husl)and and one for the wife ; that she knew that there was a paper left there for her, and that she was named therein as the wife of George W. Norton. At the time Mrs. Norton told the sheriff that she did not know what he summoned her for; that she did not sign any papers, nor have any dealings with the plaintiff. Her testimony is corroborated by her husband, also by the sheriff, except the latter testified that he laid the papers in- tended for Mrs. Norton upon the table, at which she was employed all the time he was there, attending to the break- fast dishes. As we view it, it is immaterial whether the sheriff laid the papers intended for Mrs. Norton upon the table or handed them to her husband. Whichever it was, it was done in Mrs. Norton's presence, with full knowledge on her part that one of the copies of each paper was in- tended for her. She so understood it, and was as fully in- formed as tliough the sheriff had actually delivered the papers into her own hands. This is clearly distinguishable 1 Thi'^ was ajijiarc'iitly (jratitefl, though the report does not expressly say so, and the appeal was taken from this order. Sec. Ij Service and Retubn of Summons 41 from Holliday v. Brown, 33 Neb. 657, in which it appears that the wife was not present, and knew nothing of the at- tempted service of the summons upon her. If the actual delivery into the hand of a defendant is necessary to consti- tute personal service, one might effectively and forever avoid service of process by refusing to disclose her true name, and by refusing to take a copy of a summons into her hands. ********** We recommend that the judgment of the district court be reversed. By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is reversed and this cause remanded for further proceedings. Reversed. BOGGS V. INTER-AMERICAN MINING AND SMELT- ING COMPANY. Court of Appeals of Maryland. 1907. 105 Maryland, 371. ScHMucKER, J., delivered the opinion of the Court. The first of the cross appeals in this case is by William R. Boggs, the plaintiff below, from an order of the Super- ior Court of Baltimore City striking out upon terms a final judgment theretofore rendered in his favor against the Inter- American Mining and Smelting Company. * * * Tliie Mining Company was incorporated in the District of Columbia, but for some time prior to March 7th, 1906, its office, where its records were kept and from which its general business was transacted was in the Calvert Build- ing in Baltimore, and during that time H. C. Turnbull, Jr., who did business in Baltimore City and resided in Balti- more County, was president of the corporation. During the time that the company was thus located in Baltimore City, its president, purporting to act in its behalf, em- ployed the plaintiff, Boggs, as a mining engineer at a sal- ary of $200 per month and personal and traveling expenses. 42 Trial Practice [Chap. '2 On Ma}^ 28th, 1906, Boggs sued the company in the Su- perior Court to recover his salary and expenses for Octo- ber, November, and December, 1905, and January, 1906, amounting in the aggregate to $1,188. The suit was brought under and in conformity to the Rule Day Acts in force in Baltimore City, and the defendant having been returned summoned, and having failed to appear to the action or plead, judgment by default was entered against it on June 27th, 1906. On the same day the judgment by default was duly extended for $1,188 and costs. ***** P. M. Gober, a deputy sheriff of Baltimore City, then testified that having been directed to serve the writ in the case upon Mr. Turnbull he went over to the Calvert Building and asked Turnbull if he was one of the officers of the company, and he replied that he was not, but had formerly been its president. To the best of witness' recollection Turnbull said that he knew the plaintiff Boggs and would like to see him get what was due him. The deputy reported this interview to the sheriff, who told him to serve the writ on Turnbull, as he was one of the directors and the deputy went back to do it but Turnbull shut the door in his face and would not let him serve it. The deputy fur- ther swore that he explained his object to Mr. Turnbull and the latter saw the writ, and said he was doing what he could to get Mr. Boggs righted in the matter, or something to that effect. He, the deputy, did not read the writ to Mr. Turnbull, but he explained it to him and Turnbull looked at the writ. Thatcher Bell, another deputy sheriff, testified that he was told by the sheriff to go over to the Calvert Building and serve the writ on Mr. Turnbull, that Gober had not been able to get a service. Witness went over to Turn- hull's office with the copies ready to serve and said to Turnbull, '*! have a paper to serve on you." Turnbull said, "I know what you have," and started to go out. Wit- ness reached for Turnbull with the copies and when the latter kept running, he commenced to read them, but Turn- bull got into the next room and slammed the door. Witness then laid the copies on the table and returned to the sher- iff's office. He left the copies of the narr., notice to plead, anil wi'il in this case on the table in Turnbull's office. Mr. Sec. 1] Service and Retuen ob Summons 43 TurnbuU was put on the stand and his account then given of the vists of the two deputy sheriffs to him substantially corrofDorated tlieir testimony except he denied that he said to the deputy Bell that he knew what he had or that he (TurnbuU) saw or looked at the writ. There was also evidence tending to show that Mr. TurnbuU never reported the service of the writ on him to the company or took any steps himself looking to a defense of the action, and that the motion had been promptly made by the company when it learned of the suit and judgment. Assuming that TurnbuU was a proper person upon whom to serve the writ and other papers, we are indisposed to consume much time in discussing the sufficiency of the service. It is apparent from the evidence that TurnbuU was fully informed as to the institution of the suit by Boggs against the company and the desire of the sheriff to sum- mon the company b}- serving the papers on him as one of its directors and knew that the deputy was about to make that service when he attempted to elude him and evade the service by running out of the room and slamming the door in the officer's face. Neither he nor the company he represented, if he did represent it for the purpose of the service, can be permitted to set up such a state of facts in support of the motion to strike out the judgment. He might as well have remained in his office and put his fingers in his ears while the deputy read the writ to him, and then claim to be without information as to its contents or pur- pose. Defendants have frequently sought to evade or de- feat service of process upon them by flight or refusal to accept the process handed them by the serving officer but the courts have held such efforts futile. Davison v. Baker, 24 How. Prac. 42; Slaught v. Bobbins, 13 N. J. L. 349 ; Borden v. Borden, 63 Wis. 377; Baker v. Carrecton, 32 Me. 334. The laws of this state do not prescribe precisely how a summons shall be served upon an individual defendant. The service must be a personal one, 2 Poe, Pleading and Practice, section 62, but the sheriff is not required to read the writ to the defendant, although it is usual for him to read it or explain its nature and leave a copy of it with the person served. Sees. 409 to 412 of Art. 23 of the Code provide for service of process upon corporations. 44 Trial Peactice [Chap. 2 ***** The court below in our opinion acquired juris- diction over the defendant in this suit by the service of the process upon its resident director, Mr. TurnbuU. Order striking out the judgment reversed with costs. Section 2. Substituted Service. BARWICK V. ROUSE. Supreme Court of Florida. 1907. 53 Florida, 643. Cockrell, J. : The action is in assumpsit on promissory notes and the return of the sheriff upon the summons ad re- spondendum is as follows: "The within summons came to hand this 21st day of February, 1906, J. W. Smith, sheriff, and executed on the 22nd. day of February, 1906, by de- livering a true copy on Mrs. Melvina Barwick, the wife of the within named Jnraes M. Barwick, this 24th day of Feb- ruary, 1906. J. W. Smith, Sheriff of said Wakulla couniy, Fla." The summons was returnable March 5, 1906, on which day a default for want of appearance was entered, reciting that service was had February 24th. On the April rules, no alias summons having been issued, a judgment final was entered reciting that the defendant had failed to appear at the March rules, and had further failed to plead, answer, or demur. The question, therefore, is, does the return of the sheriff show sufficient service upon James M. Barwick, to bring him into court in invituni, there being no amendment or offer to amend the return and tliere being nothing in iiie return of a voluntary appearance? Aa ancillary thereto it may be asked if the defects are such as to avail upon this appeal. Undoubtedly if the actual date of the service on Mrs. Barwick was the 24th day of February, as recited by the clerk, it was too late for the return day of the summons, it Sec. 2] Service and Retuex of Summons 45 not being '' served at least ten (10) days before the rule day." This, however, is not a fair construction of the language; it is evident that the service was made on the 22nd., while the return was endorsed on the 24th. The serious defect, however, is in the statement of the manner and place of service. The statute, Revised Sta- tutes of 1892, section 1015, provides that "service of the original writ or summons shall be effected by reading the writ or summons to the person to be served or by delivering him a copy thereof or leaving such copy at his usual place of abode with some person of the family above fifteen years of age, and informing such person of the contents thereof." A cursory inspection of the return will disclose several particulars wherein this statute was not complie^^ with. Service was not made upon the person to be served, but a copy was delivered to his wife ; where such copy was delivered does not appear; non constat the sheriff may have met her in Georgia, where she was living apart from her husband, and not "at his usual place of abode in Wak- ulla county, Florida, with some person of his family above fifteen years of age." It does not necessarily follow that because Mrs. Melvina Barwick is the wife of James M. Bar- wick that she is a member of his family at his usual place of abode and above fifteen years of age. Again, when an- other than the defendant himself is served, the law is not satisfied by merely delivering a true copy of the writ. It is further required that such other person be informed of the contents tliereof. This provision is not mere idle words, but is founded wisely, and must be given effect. We do not intend to hold that every criticism we have made upon this return is separtely to be taken as a decision that the defect pointed out would necessarily render the judgment void upon collateral attack, but there is a duty upon those charged with the entry of judgments before a clerk to see that there has been at least substantial com- pliance with the statute necessary to bring the defendant into court. We do hold that the return here is fatally de- fective and that tlie judgment based thereon will be set aside. The defendant lias, however, subjected himself to tlie jurisdiction of the court by prosecuting this writ of error, and further process is as to him unnecessary. 46 Trial I^ractice , [Chap. 2 The other assignments will not be considered. The judgment is reversed. Shackleford, C. J., and Whitfield, J., concur. Taylor, Hooker, and Parkhill, J J., concur in the opin ion. Section 3. Constructive Service. HARNESS V. CRAVENS. Supreme Court of Missouri. 1894. 126 Missouri, 233. The plaintiff lived in Barton county; had lived there some seventeen years, having previously lived in Newton county five years or more on a farm, all in cultivation. That farm consisted of a piece of ground, to-wit: The south- west quarter of the northeast quarter, and the west half of the southeast quarter, less ten acres off the west side thereof (seventy acres) all in section 7, township 24, range 29. The portion in litigation is the seventy acres, which has a house and orchard on it. ********** In March, 1889, Harness paid the taxes on the land for the year 1888, and took a recipt therefor, from Gracy, the collector in the tax suit controversy, and when in the col- lector's office on that occasion, Harness says he "called for all the taxes against the land." That suit was begui» September 14, 1889, and was for the taxes on the lana lor the year 1886, a duly certified tax bill accompanying the petition, which alleged defendant to be a non-resident of the state. An affidavit as to non-residency was also made. On the filing of the petition a summons was issued, and the sheriff having returned non est on the writ, publication was made, etc. Judgment was rendered in the suit thus insti- tuted, July 11, 1891. Execution was issued August 24, 1891, and on September 24 next thereafter a sale of the land in controversy occurred, at which the defendant became the purchaser at the i»vir'f of twenty-five dollars. Sec. 3] Seevice and Return of Summons 47 On hearing of the sale of his land, plaintiff applied to defendant for permission to redeem it, but defendant re- fused to do so, whereupon plaintiff instituted the present proceeding, in January, 1892, to cancel the sheriff's deed made to defendant as aforesaid, as a cloud on plaintiff's title and for other and further relief. ********** Sherwood, J. — 1. As appears from the record in this cause, the plaintiff herein, the defendant in the back tax suit, was proceeded against as a non-resident of the state. The petition alleged his non-residence and so did the ac- companying affidavit. But, instead of taking out an order of publication before the clerk in vacation as authorized by section 2022, Revised Statutes, 1889, a summons was issued to Harness returnable to the next November term. That summons was returned non est, October 25, 1889. This non est return was followed by an order of publication based on that return, and then judgment by default took place at the May term, 1891, followed by a sale and sher- iff's deed to defendant Cravens, September 24, 1891. As will be seen by sections 2013 and 2023, Revised Stat- utes, 1889, a summons in such cases is only authorized to issue against a resident defendant. And it is provided in section 2024 that when summons has been properly issued and return of non est made thereon, then the court, being first satisfied that the defendant cannot be found, makes an order of publication as required in section 2022. Of course such an order of publication made in the circum- stances mentioned would recite, among otL things, the issuance of the summons, and the fact that the defendant could not he found, etc. ; because the court could not make this class of publication unless "in conjunction with the return," and it must be "founded thereon." State ex rel. V. Finn, 87 Mo. 310.^ iThe statutes involved are as follows: "Sec 2022. Orders of Publication. — In suits in partition, divorce, attachment, suits for the foreclosure of mortgages and deeds of trust, and for the enforcement of mechanics' liens, and all other liens against either real or personal property, and in all actions at law or in equity, which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court, if the plaintiff or other person for him shall all(?ge in his petition, or at the time of filing the same, or at any time thereafter shall file an affidavit stating, that part or all of the defendants are not residents of the state, or is a corporation of another state, kingdom or country, and cannot be served in this stat« in the manner 48 Teial Practice [Chap. 2 So that here we have presented a defendant sued as a 'lon-resideni , summons issued against him as a resident, and publication issued against him as a resident who could not he found. In short, the order of publication was a clear departure from the allegations of the petition and affidavit. The issuance of the summons was, therefore, unwarranted by the statute, and the publication, being based thereon, necessarily partook of the writ's inceptional infirmity, and this is so, because, in the language of Mr. Justice Field, "the court is not authorized to exert its power in that way." Windsor v. McVeagh, 93 U. S. 283. This doctrine is abundantly established, that, where a mode of securing jurisdiction differing from that of the common law is prescribed by statute, nothing less than a rigid and exact compliance with the statute is an indispen- sable requisite to obtaining jurisdiction, 1 Elliott's Gen. Prac, sec. 247. Thus in Granger v. Judge, 4:4: Mich. 384, Campbell, J., says : ''Where cases and proceedings are not according to the usual course, and are special in their character, they are held void on slighter grounds than regular suits, because the courts have not the same power over their records to correct them. So, where there has been no personal service within the jurisdiction, the doctrine prevails that proceed- ings not conforming to tlie statutes are void. But this is on the ground that there has been no service whatever, and the party, therefore, has not been notified, in any pro- per way, of anything. The purpose of the statutory prescribed in this chapter, or have absconded or absented themselves from their usual place of abode in this state, or that they have concealed themselves so that the ordinary j)rocess of law can not be served upon them, the court in which said suit is brought, or in vacation the clerk thereof, shall make an order directed to the non-residents or absentees, notifying them of the com- mencement of the suit, and stating briefly the object and general nature of the iietition, and, in suits in partition, describing the property sought to be partitioned, and requiring such defendant or defendants to appear on a day to be named therein and answer the petition, or that the petition will be taken as coiifcF^ed. If in any case there shall not he sufficient time to make jHiblication to the first tei-m, the order shall be made returnable to the next term thorenfter, thnt will allow sufficient time for such publication. ' ' Sec. 202.3. Process against resident defendajits.— If in such case, part or the defendants are residents of the state, process shall be issued against them afl in other cases. "Hec. 2024. Pvblication to issiie on return of non est. — When, in any of the caHCB cont;iineply where the only ser\ice is by 2)ublication against a non-resident of Sec. 3] Service and Return of Summons 55 tlie state. In a case of that kind tlie true name of the party becomes of especial importance. It is well known that there are numerous persons having the same christian and sur- name, but with a different middle name, such aa John 0. Johnson, John A. Johnson, and John M. Johnson, James A. Green and James E. Green, and they are each identified and distinguished by the initial of the middle name. It would be intolerable in the practical affairs of life if persons by the name of Johnson, Green, or Brown, or even the numer- ous Jones family, should be required to take notice of every action brought by the publication of summons iu which a part of his name appeared as the party defend- ant. No personal service is made in such cases, and that the real defendant has knowledge of the pendency of the action is an inference of tha law only, and the use of a wrong initial is naturally misleading and likely to result to his prejudice. The statute authorizing this form of process is in derogation of the common law, and the mode prescribed must be strictly pursued. Reno, Non-residents, Sec. 190; Gilmore v. Lampman, 86 Minn. 493, 90 N. W. 1113, 91 Am. St. 376 ; Duxhury v. Dalile, 78 Minn. 427, 81 N. W. 198, 79 Am. St. 408. This method of acquiring jurisdiction and adjudicating the rights of parties constitutes due pro- cess of law only when the statutes providing therefor have been fully and completely complied with. Corson v. Shoe- maker, 55 Minn. 386, 388, 57 N. W. 134; Clary v. O'Shea, 72 Minn. 105, 75 N. W. 115, 71 Am. St. 485. Some of the courts have held that the use of a wrong initial, or other error in defendant's name, not coming within the rule of idem sonans, where the summons is served by publication, is not a compliance with the statute, and is fatal to the jurisdiction of the court. 66 Cent. Law. J. 338; 14 Enc. PI. & Pr. 302, and cases cited in note; Cleve- land V. Peirce, 34 Ind. App. 188, 72, N. E. 604; State v. Hughes, 31 Tenn. 261 ; King v. Clarke, 7 Mo. 269 ; Fanning V. Krapfl, 61 Iowa 417, 14 N. W. 727, 16 N. W. 293 ; Enewold V. Olsen, 39 Neb. 59, 57 N. W. 765, 22 L. R. A. 573, 42 Am. St. 557; Skelton v. Sackett, 91 Mo. 377, 3 S. W. 874; Free- man V. Hawkins, 77 Tex. 499, 14 S. W. 364, 19 Am. St. 769; Fitzgerald v. Salentine, 51 Mass. 436; Parker v. Parker, 146 Mass. 320, 15 N. E. 902; Davis v. Steeps, 87 Wis. 472, 58 N. W. 769, 23 L. R. A. 818, 41 Am. St. 51; 1 Black on 56 Tkial Practice / [Chap. 2 Judgments, Sec. 232. The cases just cited are not all pre- cisely in point, but they are analogous, and bear out the claim that a service by publication, (where there is a sub- stantial error in the name of the defendant, confers no jurisdiction on the court. We are not prepared to say that the mere omission of the middle narne, or the initial thereof, would wholly nullifj^ the proceedings; but where, as in this case, there is an attempt to give the full name of the de- fendant, and a wrong initial is used, it must, in view of the very common practice of identifying particular in- dividuals by adding their middle name, be held that the error is misleading, and likely to result in prejudice to those who may perchance notice the same as published in the newspaper. It would be straining the rule requiring a strict observance of the statute permitting service of process in this manner to hold an error so likely to mislead and prejudice an irregularity only. As bearing upon the question of jurisdiction, numerous in- stances are reported in the books where errors and defects of far less significance than the one here presented have been held to wholly vitiate a judgment based upon this form of constructive service. In Barber v. Morris, 37 Minn. 194, 33 N. W. 559, 5 Am. St. 836, and Brown v. St. Paul £ N. P. Eij. Co., 38 Minn. 506, 38 N. W. 698, judgments were held void on collateral attack for the failure of the plaintiff to file his affidavit for publication within the time prescribed by statute. In the first of these cases the affidavit was not filed until the day of the entry of judgment. In tho second case, a condemnation proceeding, the affidavit was not filed until after tlie summons had been published. An affidavit filed two days after the first publication was held insufficient in Murphy v. Lyons, 19 Neb. 689, 28 N. W. 328. If the affi- davit be technically, in point of substance, not in compli- ance with the statute, a judgment rendered on service by publication is void. Carrico v. Tarivater, 103 Ind, 86, 2 N. E. 227, where the affidavit fails to show that the action is one in which service by publication is authorized; Harris v. Claflin, 36 Kan. 543, 13 Pac. 830; Nelson v. Roundtree, 23 Wis. 367; Forhes v. Hyde, 31 Cal. 342. Insufficiently specific as to due diligence in ascertaining the residence of the defendant. Little v. Chambers, 27 Iowa, 522. In Illi- nois the statute requires the issuing and return of process Sec. 3] Service and Return of Summons 57 "not found" before publication, and a judgment rendered upon such service without the return was held void in Chick- ering v. Failes, 26 111. 507, and also in Firebaugh v. Hall, 63 111. 81. If the affidavit be not made by all the plaintiffs, where two or more join in bringing the action, the judg- ment rendered is void. Kane v. Rock River Canal Co., 15 Wis. 179; Mecklem v. Blake, 19 Wis. 397. And also where the sheriff fails in observance of the statutory re- quirement to continue in an effort to find the defendant in the state pending publication. Israel v. Arthur, 7 Colo. 5, 1 Pac. 438; Kennedy v. Lamb, 182 N. Y. 228, 74 N. E. 834, 108 Am. St. 800. And where the summons is defectively addressed to the defendant. Durst v. Ernst, 45 Misc. 627, 91 N. Y. Supp. 13. See also, Van Fleet, Collateral Attack, sections 331, 348 ; 6 Current Law, 1090, and cases cited. There is a conflict in the adjudicated cases upon the ques- tion whether defects of the nature of those here mentioned are jurisdictional. Many courts hold to the doctrine that a judgment rendered in the face of such defects is not ren- dered absolutely void, but irregular, and that the irregu- larity may be corrected by motion. But the two Minne- sota cases above referred to settle the rule in this state, and are in harmony with the general principle that to confer jurisdiction in cases of this kind the statutes must be strict- ly complied with. 1 Black, Judg. Sec. 232. But we need not pursue this subject. Reference is made to it only to emphasize the importance given by many courts to errors and defects in the proceedings leading up to the service of summons by publication. The affidavit of publication in such cases is not filed, nor required to be filed, for the information of the defendant. He receives no benefit therefrom by way of notice of the suit or otherwise, nor by the sheriff's certificate of "Not foimd," nor from the order for publication, where an order is required; and if a judgment rendered on service by publication is void for want of jurisdiction, for errors in these respects, and in others pointed out in the decisions referred to, for a stronger reason should the error of misnaming defend- ant be fatal, where the error does not come within the rule of idem sonans, and is such as is likely to mislead and re- sult in his prejudice. In A7tibs v. Chicago, St. P. M. £ 0. Ry. Co., 44 Minn. 266, 58 Trial Practice [Chap. 2 46 N. W. 321, it appeared that the land there in question was at one time conveyed to '^ William H. Brown," and the chain of title disclosed a subsequent conveyance from "Wil- liam B. Brown." The court there held, Judge Dickinson writing the opinion, that there was no presumption that the two Browns were one and the same person. If that be sound as to private writings, and we have no reason to question the decision, it follows naturally that the same rule should be applied to a judicial proceeding like that at bar, and, if so, we have no right to assume that "George W. Leslie" and "George H. Leslie" are one and the same person. It is urged by appellant that inasmuch as, in cases where the summons in an action is served by publication, the defendant, may, upon good cause shown, which has been construed as an answer stating a defense, come in and de- fend the action within a year after notice of its entry, the court should be more liberal in the consideration of errors of the character of those here involved, citing Qiiarle v. Abbet, 102 Ind. 233, 1 N. E. 476, 52 Am. Rep. 662. But we are not persuaded by this argument. If the error in the name is jurisdictional, as we hold, judgment entered is void, and to adopt the contention of appellant would result in compelling a defendant in a particular case to waive the want of jurisdiction in the court to enter judgment against him, and to come to this state and litigate the cause on its merits. This the court has no right to do. The law provid- ing for the manner of acquiring jurisdiction over non-resi- dents is plain, and should not be ignored, even in a case of apparent hardship. We are sustained in this view by the Supreme Court of Michigan in the case of Granger v. Judge, 44 Mich. 384, 6 N. W. 848, where the court speaking through Justice Campbell, said, "Where cases and proceedings are not according to the usual course, and are special in their character, they are held void on slighter grounds than reg- nhxr suits, because the courts have not the same power over their records to correct them. So where there has been no personal service within the jurisdiction, the doctrine pre- vails that proceedings not conforming to the statutes are void. But this is on the ground that there has been no ser- vice whatever, and the party therefore has not been notified in any proper way of anything." Sec. 3] Service and Return of Summons 59 Counsel called attention to the case of Illinois v. Hasen- winkle, 232 111. 224, 83 N. E. 815. While the court in that case in the course of the opinion said that the use of a wrong initial of the middle name of a non-resident defend- ant in condemnation proceedings would not necessarily render the judgment therein void, the real ground of the decision there made was that the defendant, so erroneous- ly named, had permitted the judgment to remain unques- tioned for over fifty years during which time the railroad f'ompany had occupied the premises granted by the judg- ment as its right of way. We therefore hold, in harmony with the views of the learned trial court, that the publication of the summons in the partition suit directed to "George H. Leslie" did not confer jurisdiction upon the court to adjudicate the rights of ** George W. Leslie." Judgmen t affirmed. NELSON y. THE CHICAGO, BURLINGTON & QUINCY RAILROAD CO. Supreme Court of Illinois. 1907. 225 Illinois, 197. Mr, Justice Hand delivered the opinion of the court. The appellant, Lars R. Nelson, on the 21st day of April, 1906, filed a praecipe in the office of the clerk of the Circuit Court of Kane county for a summons in an action on the case against the Chicago, Burlington, & Quincy Railway Company, an Iowa corporation, and the Chicago, Burling- ton & Quincy Railroad Company, an Illinois corporation. A summons was issued against both companies and deliv- ered to the sheriff of said county to serve, which summons was returned by said sheriff not served as to the railroad company, because the president or any other of the officers or agents of said railroad company with whom the statute provides a copy of the summons may be left to effect ser- vice of process on the company, could not be found by him in said county. The praecipe and summons were then 60 Tkial Peactice [Chap. - amended and the case discontinued as to the railway com- pany, and the railroad company was served with process by publication and mail, as in chancery cases, as is au- thorized by paragraph 5 of the Practice Act, (Kurd's Stat. 1905, Chap. 110), and a declaration was filed against the railroad company. * * * * The railroad company entered a special ap- pearance and moved to quash the service of process had upon it by publication and mail, which motion was sus- tained, and the appellant electing to stand by the service of j)rocess and refusing to proceed further, the court dis- missed the suit, and the appellant has prosecuted this ap- peal. It is * * * contended by the railroad company that * * * * if service of process by publication and mail is authorized by said paragraph 5 upon a defendant railroad company that has its principal office in this state in a suit where a judgment in personam is sought against the rail- road company, the statute is unconstitutional and void, as such service of process, it is said, does not constitute due process of law. The law provides for two methods of service of process ; the one actual and the other constructive. Actual service of process is made by reading the original process to the defendant or by delivering to him a copy thereof ; and con- structive service of process, which is a substituted service of process, is made by leaving a copy of the process at the de- fendant's residence when he is absent, or by posting or publishing notice of the pendency of the suit, and mailing a copy of the notice posted or published to the defendant, if his postoffice address is known. It is held that the ser- vice of process, either actual or constructive, upon a non- resident defendant outside the limits of the state where the action or proceeding is pending will not authorize the rendition of a personal judgment or decree against a de- fendant, but that such service of process is sufficient upon which to base a decree changing the marital status in a proceeding for divorce, or a judgment or decree disposing of property situated within the jurisdiction of the court wherein the action or proceeding is pending. It is also lield that each state may determine for itself in what Sec. 3] Service and Return of Summons 61 method process may be served upon its citizens within its own boundaries, and while such legislation will have no force outside the state, service of process within the state in the manner pointed out in the statute regulating- the method of obtaining such constructive service of process, if the method of service of process provided for is such as to amount to due process of law, as these terms are used in the State and Federal constitutions, will be sufficient to author- ize the courts of the State within whose jurisdiction the service of process is had to pronounce a personal judgment or decree against a defendant so served with process, al- though cases may arise in practice upon such constructive service of process where a personal judgment or decree might be obtained against a defendant without such defend- ant having received actual notice of the pendency of the ac- tion prior to judgment or decree. Constructive service of process, it is said, is authorized in a certain class of cases, such as when the defendant has gone out of the State, or when he cannot be found, or when he conceals himself so that process cannot be served upon him, as the result of necessity — that is, such constructive service of process is substituted for actual service of process when actual service of process cannot be had upon a defendant. In this case actual service could not be had upon the defendant although the suit was properly brought in the court from which the process was issued and the defendant was a resident of, and was in the State, and the question here is narrowed to this : Can the legislature provide a constructive or substituted service of process by publication and mail, in lieu of actual service of process, in a case where the process cannot be actually served upon the defendant in the county where the statute expressly authorizes the suit to be commenced, although the defendant resides and is in the State? The case of Bimeler v. Dawson, 4 Scam. 536, was an ac- tion of debt upon a judgment rendered by the Court of Common Pleas of Stark county, in the State of Ohio, against Welch and Dawson. There was service of process upon Dawson only, and he pleaded nul tiel record and that he was not personally served with process. The record showed personal service upon Welch and service on Daw son by leaving a copy of the summons at his residence, ana the rendition of a judgment by default against both de- (j2 Trial Practice [Chap. 2 fendants. The trial court held that for want of personal service upon Dawson the judgment was not evidence of in- debtedness against him, and rendered judgment in his favor. Upon an appeal to this court the judgment was re- versed, and in an opinion prepared by Justice Treat, on l)age 542, it was said: "The laws of the several states pro- vide different modes of bringing parties into court. In some states personal service of process is required, while in other states that mode is not indispensable, but a part}- may be required to appear and defend an action on notice by iniblication or by the leaving of process at his residence. It is doubtless competent for each state to adopt its own regulations in this respect, which will be binding and obligatory on its own citizens. "We can not doubt the right or power of the State of Ohio to provide that the kind of service which it appears was made in this case shall be sufficient to authorize its courts to take jurisdiction of the person of a defendant and proceed to hear the case and render judgment. A judgment thus rendered against one of its citizens would be binding and conclusive on him, for owing allegiance to the State, he is bound by its law and amenable to its judicial tribunals. That State, how- ever, cannot in that way get jurisdiction over the people of other States. Its laws can only operate within its own territory and on its own citizens. They cannot be made to operate extra-territorially, or on the citizens of other States unless they go voluntarily^ within its limits." And in Welch v. Sykes, 3 Gilm. 197, on page 201, it was said: "It is competent for each State to prescribe the mode for bringing parties before its courts. Although its regulations in this respect can have no extra-territorial operation, tliey are nevertheless binding on its own citi- zens." In iS^nilJi V. Smith, 17 111. 482, on page 484, it was said : " A State may nnd()u])tedly provide for bringing its own citizens or subjects before its tribunals by constructive notice, which may not in all cases come to the actual knowledge of the party; still tlie presumption is that he has actual notice, or might liave such notice by the exercise of proper care and diligence." W'liat is du<' jirocess of law in all instances is not easilv Sec. 3] Service axd Return of Summons 63 defined, but as applied to this case it clearly means pro- ceeding according to the course of the common law, and the common law has from time immemorial required that a de- fendant be personally notified of the pendency of an action, if he was within the jurisdiction of the court and could be found, before judgment or decree was rendered against him. The common law, however, never required actual service of process in all cases, but has always provided for a constructive service of process when actual service there- of could not be had, such as the leaving of a copy of the sum- mons at the defendant's residence, and latterly a posting or publishing of notice of the pendency of the suit or proceed- ing, when the defendant was out of the State or upon due inquiry could not be found, or when he concealed himself so that process could not be served upon him. In Bardwell v. Anderson, 9 L. R. A. 152, the Supreme Court of Minnesota said (p. 154) : "We think that from the earliest period of English jurisprudence down to the present, as well as in the jurisprudence of the United States derived from that of England, it has always been considered a cardinal and fundamental princiiDle that in actions in personam proceeding according to the course of the common law, personal service (or its equivalent as by leaving a copy at his usual place of abode), of the writ, process or summons must be made on all defendants resi- dent and to be found within the jurisdiction of the court. We do not mean that the term 'proceeding according to the course of the common law,' as used in the books, is to be understood as meaning, necessarily and always, personal or actual service of process, for although service by publication is of modern origin, there has always been some mode by which jurisdiction has been obtained at common law by something amounting to or equivalent to constructive ser- vice, where the defendant could not be found and served personally ; but what we do mean to assert is, that the right to resort to such constructive or substituted service in j^er- sonal actions proceeding according to the course of the com- mon law rests upon the necessities of the case, and has al- ways been limited and restricted to cases where personal service could not be made because the defendant was a non- resident, or had absconded, or had concealed himself for the purpose of avoiding service. As showing what means 64 Teial Pkactice [Chap. 2 were resorted to as amounting or equivalent to constructive service, and how strictly it was limited to cases of necessity by both courts of common law and courts of chancery, ref- erence need only be had to 3 Blackstone's Com. 283, 444." While the authorities are not in entire harmony upon the subject, the Illinois cases and the greater weight of authority clearly establish, we think, the proposition that a personal judgment in an action at law may be rendered against a defendant residing in and who is in the State where the suit or proceeding is pending, who has been notified of the pendency of the suit by constructive service of process, where it appears actual service of process could not be had upon the defendant, if the constructive service provided for was required ^^ be had in such manner that the reasonable probabilitie re that the defendant would receive notice of the pendiu^ action or proceeding before judgment or decree was rendered against him. ********** Reversed and remanded.^ 1 In Bardwell v. Collins, (1890) 44 Minn. 97, 46 N. W. 315, quoted above in Nelson v. Chicago, Burlington and Quincy Railroad Co., the statute author- ized service of summons by publication, in actions to foreclose mortgages, as to all parties to the action against whom no personal judgment was sought. The court held (1) thjit such actions were not «i rem but in personam, since they determined the rights and equities of the parties interested in the mortgaged premises; (2) that such actions were strictly judicial in character, proceeding according to the due course of the common law; (3) that it is a cardinal principle of "due process of law" that in actions in personam proceeding ac- cording to the course of the common law, jiersonal service of process must be had uj)on defendants resident and to be found within the jurisdiction of the court; (4) the statute is uuconstitutionfil in so far as it attempts to authorize service by mere publication upon resident defendants capable of being per- sonally served. KENNEDY V. LAMB. Court of Appeals of New York. 1905 182 Neiu York, 228. Vann, J. The purchasers at the sale in this action, whicli was bronglit to partition lands in the borough of ]*rooklyii. rcfiisod to complete their purchase upon the groiiiid that the title was defective. By an order, made at Sec. o] Service and Return of Summons 65 Special Term and affirmed by the Appellate Division, they were directed to comply with the terms of sale and they now appeal to this court for relief from what they consider an unlawful command. They claim that the court which ren- dered the judgment in partition did not acquire jurisdic- tion of several persons, each a necessary party defendant, because they were not personally served with process and the effort to serve them by publication was void, owing to a vital defect in the affidavits upon which the order to pub- lish was made. From the affidavits presented to the justice who granted the order of publication, one made by the plaintiff and the other by his attorney, it appeared that six of the defendants resided in the State of New Jersey, four at Jersey City and two at Plainfield. The only attempt to show compliance with the command of the statute in reference to ^^due dili- gence to make personal service of the summons" was an allegation in the affidavit of the attorney that ''the plain- tiff will be unable with due diligence to make personal ser- vice of the summons within the State as appears by the affidavit of Peter J. Kennedy hereto annexed." The affi- davit thus referred to contains nothing whatever upon the subject of diligence, discloses no effort to serve the sum- mons in this state, and gives no reason for not making the effort, aside from the bare fact of non-residence. It does not appear that the summons had been issued or that it was placed in the hands of anyone for service upon the defend- ants named, and for aught that appears they could have been served in this state without difficulty. They were nephews and nieces of the plaintiff and had visited and corresponded with him "for several years past," as he stated in his affidavit. He did not state how recently they had visited him, when he last heard from them, nor where he himself resided. Four of them lived just across the state line and two of them but a short distance therefrom. All may have been engaged in business in the State of Xew York and in daily attendance there for that purpose, as is the case with so many residents of the State of New Jersey. The affidavit did not state that they were not in New York or that they were actually in New Jprsey when the affiant swore to it. Aj> «rder may be made for service by publication upon a . p.— 5 - 66 ITeial Practice [Chap. 2 defendant who is a non-resident of the state, provided ''the plaintitf has been or will be unable with due diligence to make personal service" within the state. (Code Civ. Pro. Sections 438, 439.) The bare fact of non-residence is not enough to authorize the order, for the plaintiff must also show due diligence to make personal service, or state facts tending to show why personal service cannot be made. The statute now in force differs from the one which formerly governed the subject when some of the cases cited were decided, in that the latter authorized service by publication when the person to be served could not "after due diligence be found within the State." (Code of Pro. Section 135.) The old statute was satisfied with due diligence to find the defendant, while the present statute requires either due effort to serve, or sufficient reasons for not making the effort. In the case now before us there was no attempt to make personal service and no reason was given for not trying to serve personally, except the fact of non-residence. Even if residence in a distant state or in a foreign country permits the inference that the person to be served cannot be found in this State, residence in an adjoining state, just across the line, with no evidence that the non-resident is not in busi- ness in this state, or that he does not sojourn here, and no explanation whatever for not trying to serve him here, is not sufficient. As was said by this court in Carleton v. Carleton, (85 N. Y. 313, 315): "It is a well known fact that many persons who are residents of one state have places of business and transact such business in a state different from that in which their residence is located. They are frequently in the latter state, and pass most of their time there. Such persons could be readily found in the state where they do business if due diligence was used for that purpose and non-residence, of itself, does not nec- essarily show that they cannot be found within the state, or raise a presumption that due diligence has been used, or that it was not required." In a latel- case it was said: "Where the proof of non- rosi donee is clear and conclusive, and that the defendant is living out of the state and in a distant state, there may be strong reasons for holding that proof of diligence is not required;" and as it appeared that the defendant resided Sec. 3] Service A^'D Return of Summons 67 in Maryland, and that the summons, which had been duly issued and some effort made to serve it, could not be served owing to that fact, the affidavit was held sufficient. {Ken nedy v. Neiv York Life Ins. <& Trust Co., 101 N. Y. 487). In McCracken v. Flanagan, (127 N. Y. 493), it appeared that a summons had been issued against the defendant and ''that defendant is a non-resident of this state, nor can be found therein, but has a place of residence at Matewan, in the state of New Jersey." After a careful review of the leading cases it was held that the affidavit, which was made when section 135 of the Code of Procedure was in force, was insufficient to give jurisdiction. The court said: "Some degree of diligence must be exercised to find the party, and what is a due degree depends upon circumstances surround- ing each case, and the simple averments in the affidavit that the defendant is a non-resident and cannot be found within the state are not alone sufficient to support an order for the service of a summons by publication. Those facts do not imply that any diligence has been exercised to find and serve the defendant personally with process. It needs no argument to show that the averment in the affidavit that the defendant cannot be found in the state does not tend to prove the exercise of due diligence to find the defendant, for the statute in question not onlj^ requires that it be stated in the affidavit that the defendant cannot be found, but ex- pressly requires the averment that he cannot be found after due diligence." In Belmont v. Cornen, (82 N. Y. 256), the order was sus- tained upon proof of non-residence, followed by an aver- ment that the summons had been issued to the sheriff of the county where the premises, covered by the mortgage sought to be foreclosed, were situated; that the sheriff "had used due diligence to find the defendants and after such due diligence and inquiry they could not be found with- in said county or state." In C router v. Crouter, (133 N. Y. 55) an affidavit was held sufficient which stated the non-residence of the defend- ants ; that they had no place of business in this state ; that plaintiff believed that a summons could not, with due diligence, be served personally within the state and that he had present knowledge of defendants' movements, and was satisfied that they frequent no place in the state. (jS Trial Peactice [Chap. 2 In Fetes v. Vohner, (28 N. Y. St. Kep. 317), the court said : ** Though a non-resident, the defendant may be at the time temporarily in the state to the knowledge of the plaintitf, and within easy reach of personal service of the summons. No such proof was made by the plaintiff in this case. The affidavit of his attorney, upon which the order was pro- cured, states only that the action has been commenced, that a summons has been issued, and that the two defendants named are non-residents of the state and that they reside at Marion, Washington County, Iowa. The affidavit was, in this respect, plainly insufficient and the county judge was without jurisdiction to grant the order," While any evidence having a legal tendency to show com- pliance with the statute, even if inconclusive, would war- rant the exercise of judgment and thus confer jurisdiction to make the order, in this case there was no evidence as to the use of diligence, or to excuse the omission of effort to serve in this state. Even if a judge reached a wrong con- clusion upon the facts presented, so that his order would be set aside on direct attack by motion to vacate, still if he had some legal evidence to act upon, the order would be protected from collateral attack after the entry of judg- ment. There was no evidence presented to the justice who made the order now before us which authorized him to act judicially or to decide that the plaintiff would be unable with due diligence to make personal service in this state. An affiant who simply repeats the words of a statute merely states his opinion upon a proposition to be proved. Proof requires that facts be stated from which the conclusion sought may be logically drawn. We find no case in this court and no well considered case in any court which sus- tains an order founded simply on proof of non-residence in an adjoining state with no effort n de to find or serve, and no reason given why such effort if made would be use- less. Tlie purchasers were entitled to a marketable title, free from reasonable doubt and they were justified in refusing to cotiiplete their purchase because the affidavits upon which the order of publication was based were insufficient to con- fer jurisdiction. The order of the Appellate Division, as well as that of Sec. 4] Service and Return of Summons (^9 the Special Terin should bo reversed and the motion denied, with costs in all courts. CuLLEN, Ch. J., Gray, O'Brien, Bartlett, PTaight and Werner, JJ., concur. Order Reversed. Section 4. Place of Service. WALLACE V. UNITED ELECTRIC COMPANY. Supreme Court of Pennsylvania. 1905, 211 Pennsylvania State, 473. Opinion by Mr. Justice Brown, April 17, 1905. The first prayer of appellant's bill is for full dis- covery. * * * A decree for discovery is a personal one to be enforced against the person decreed to make it ; and, if the appellee was properly brought within the jurisdiction of the court below personally, a decree that it make discovery could be enforced against it personally by the appellant as his first move to obtain the ultimate relief asked for. In view of this, the proceeding must, as was held by the learned judge below, be regarded as in personam as to the appellee ; and tlie question whether the Act of April 6, 1859, P. L., 387, even if it does authorize extra-territorial service of process from a court of this state, is effectual to acquire jurisdic- tion over the person of a defendant residing and served in another state, is not an open one. Before the passage of that act, Chief Justice Gibson, in discussing the attempt to acquire jurisdiction over the per- son of the defendant by the extra-territorial service of pro- cess, said in Steel v. Smith, 7 W. & S. 447: "Jurisdiction or the person or property of an alien is founded on its presence or situs within the territory. Without this pres- ence or situs, an exercise of jurisdiction is an act of usurpa- tion. An owner of property who sends it abroad subjects it to the regulations in force at the place as he would subject his person by going there. The jurisdiction of either springs 70 Trial Pkactice [Chap. 2 from the voluntary performance of an act, of whose conse- quences he is bound to take notice. But a foreigner may choose to subject his property, reserving his person; and it is clear that jurisdiction of property does not draw after it jurisdiction of the owner's person; consequently, there can be no rightful action by the tribunals on the foundation of jurisdiction acquired by the attachment of property, which reaches beyond the property itself. ****** What, then, is the right of a state to exercise authority over the persons of those who belong to another jurisdiction, and who have, perhaps, not been out of the boundaries of it! 'The sovereignty united to domain,' says Vattel, 'estab- lishes the jurisdiction of the nation over its territories or the countries which belong to it. It is its province, or that of its sovereign, to exercise justice in all places under its jurisdiction, or the country which belongs to it; to take cognizance of the crimes committed and the differences that arise in the country.' 'On the other hand,' adds Mr. Jus- tice Stoey (Confl. Ch. 14, §539), no sovereignty can ex- tend its process beyond its own territorial limits, to sub- ject other persons or property to its judicial decisions. Every exertion of authority beyond these limits is a mere nullity, and incapable of binding such persons or property in other tribunals.' And for this he cites Picquet v. Swan (5 Mason, 35-42). Not to multiply authorities on a point so plain, it will be sufficient to add the name of Mr. Burge (1 Confl. 1), who says it is a fundamental principle, essen- tial to the sovereignty of every independent state, that no municipal law, whatever its nature or object, should, pro- prio vigore, extend beyond the territory of the state by which it has been established.' And again (3 Burge Confl. 1044), 'that the authority of every judicial tribunal, and the obligation to obey it, are circumscribed by the limits of the territory in which it is established.' Such is the familiar, reasonable and just principle of the law of nations; and it is scarce sujiposable that the framers of the constitution designed to abrogate it between states which were to re- main as independent of each other, for all but national pur- poses, as they wore before the revolution. Certainly it was not intended to legitimate an assumption of extra-terri- torial jurisdiction which would confound all distinctive I)rinciples of separate sovereignty; and there evidentl\^ Sec. 4] Seevice and Betuen of Summons 71 was such an assumption in the proceedings under consider- ation," Speaking of the act of 1859, under which the court made the order for the extra-territorial service of process upon the appellee, Sharswood, J., in Coleman's Appeal, 75 Pa. 441, in stating that it has not been the policy of our .jurisprudence to bring non-residents within the jurisdiction of our courts, unless in very special cases, said: ''In pro- ceeding against them for torts, even property belonging to them cannot be reached by process, and in cases of contract nothing but the property can be affected unless the defend- ant voluntarily appear and submit to the jurisdiction. We may congratulate ourselves that such has been the policy, for nothing can be more unjust than to drag a man thou- sands of miles, perhaps from a distant state, and in effect compel him to appear and defend under the penalty of a judgment or decree against him pro confesso. The act of 1859 ought, therefore, to receive a construction in harmony with this policy. There exists no good reason why courts of equity should be invested with a more enlarged jurisdic- tion against non-residents than courts of law." This was followed by the case of Scott v. Noble, 72 Pa. 115, in which we held that Noble was not bound by process directed to be served upon him by the supreme judicial court of Massa- chusetts outside the state, though he had accepted service of the writ in the state of Pennsylvania. By the Act of March 13, 1815, P. L. 150, regulating proceedings in di- vorce, the act provides for service upon the respondent "wherever found," but in Ralston' s Appeal, 93 Pa. 133, we said of that act: "It declares 'upon due proof at the return of the said subpoena that the same shall have been served personally on the said party wherever found, or that a copy had been given to him or her fifteen days before the return of the same,' a divorce may be decreed. It is con- tended in case the libellee in divorce is not found within the bailiwick of the sheriff, the latter may, under this act, depute some person to make the service in another state. If a legal service could thus be made in Delaware it can be in California. Such cannot be a true construction of the statute. The language 'wherever found' cannot be so con- strued as to give to a court of this state extra-territorial power to bring within its jurisdiction the person of a citi- zen and resident of another state. The property found 72 Teial Practioe [Chap. 2 within this state of a non-resident may be reached and charged and sold in the enforcement of a debt resting on a contract without an}^ personal service on the debtor. In the case of an ordinary debt, the person of a non-resident defendant not fonnd within the state cannot be reached by any process issued by a court of common law. In cases where the language of the statute would seem to give extra- territorial power this court has denied its exercise. Thus the 16th section of the Act of 13th June, 1836, relating to the removal of paupers, authorizes them to be removed 'at the expense of the district to the city, district or place where he was last legalty settled, whether in or out of Pennsylvania.' It has, however, been held the provision for a removal into another state is of no force or effect: Overseers of Limestone v. Overseers of Ohillisqiiaque, 6 Norris 294. The first section of the Act of 6th April, 1859, authorizes any court of this commonwealth having equity jurisdiction, in any suit in equity instituted therein con- cerning property within the jurisdiction of the said court, to order and direct that any subpoena or other process to be had in such suit be served on any defendant therein 'then residing or being out of the jurisdiction of said court wherever he, she or they may reside or be found.' It fur- ther provides for the proof of service both within and with- out the limits of the United States. It was held in Cole- man's Appeal, 75 Pa. 41, that process thus issued in this state and served in another state on a resident thereof could not give jurisdiction of the person thus served." In the federal courts the same view is entertained. By a statute of the state of Oregon provision was made for ser- vice upon a non-resident by publication. In Pennoyer v. Neff, 95 U. S. 714, it appeared that judgment had been entered against Neff on process which the plaintiff un- dertook to have served upon him extra-territorially, by I)ublication, in conformity to the statute. Judgment was entered in the proceeding against him, and, in holding that he was not bound by it, through Mr. Justice Field, it was said: ''Where the entire object of the action is to deter- mine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any j^urpose. Process from the tribunals of one state can- Sec. 4] Service and Return of Summons 73 not run into another state, and summon parties there domi- ciled to leave its territory and respond to proceedings against them." In the Circuit Court of the United States, for the western district of this state, in the case of McHenry V. New York P. & 0. B. R. Co., 25 Fed. Repr. 65, the Court of Common Pleas of Westmoreland county had made an order of service on aliens in pursuance of the act of 1851), but it was said by the Circuit Court: *'It is, indeed, true that pursuant to an order of the Court of Common Pleas, claimed to be authorized by the Pennsylvania Act of April 6, 1859, P. L. 387, process has been served on those defend- ants in England, where they reside, but, clearly, such extra- territorial service was ineffectual to bring them within the jurisdiction of the court or make them parties to the suit: 'Pennoyer v. Neff, 95 U. S. 714." The service upon the appellee was ineffectual to bring it into this jurisdiction, and the order of the court below set- ting it aside was properly made. That order is now affirmed and this appeal dismissed at the costs of appellant. BARRY V. WACHOSKY. Supreme Court of Nebraska. 1899. 57 Nebraska, 534. Ragan, C. James M. Barry, J. M. Brannan, and C. D. Ryan, made their promissory note for $500 and delivered the same to one D. F. Clarke. The note was payable to Clarke only. It was non-negotiable. Before the note matured Clarke seems to have sold it to Michael Wachosky. At any rate he wrote his name across the back of the note, and over that he re- cited in writing that he guaranteed the payment of the note, and delivered it to Wachosky. The latter, in the coun- ty court of Douglas county, brought a suit against Clarke, Barry, Brannan, and Ryan and set out in his petition the execution and deliver}^ of the note by the makers thereof to Clarke, and then that Clarke wrote his name on the back of the note, and wrote over his name his contract guaran- 74 Teial Practice [Cliap. 2 teeing the payment of the note, and delivered it to him, Wachosky. Clarke resided and was summoned in Douglas count5\ The makers of the note were found and summoned in Dakota county. The makers of the note on being brought into the county court, appeared specially and ob- jected to the jurisdiction of the court over them, upon the grounds that they were found and summoned in Dakota county, where they resided, and that Clarke was summoned in Douglas county. This objection of the makers to the jurisdiction of the county court over them was by it over- ruled. The makers of the note then answered to the merits of Wachosky 's petition, and interposed as a defense to the court's jurisdiction the fact that they were residents of and found and summoned only in Dakota county. Wachosky, by a reply to this answer, admitted that the makers were found and summoned only in Dakota county. Wachosky had a verdict and judgment in the county court, and the makers prosecuted a petition in error to the district court to re- verse that judgment. The district court affirmed the judg- ment of the county court, and its judgment is now before us on a petition in error. ********** Section 60 of the Code of Civil Procedure provides, in substance, that every action not otherwise specifically provided for must be brought in the county in which the defendant, or some one of the defendants, resides or may be summoned. Section 65 of the Code provides that when an action is rightly brought in any county a summons may be issued to another county against any one or more of the defendants at the plaintiff's request. Now Clarke was made a defendant to this action, and he was served with a summons in Douglas county, and therefore it was proper to summon the other defendants to the action in Dakota county, if the action was riglitly brought against Clarke in Douglas county. The test for determining whether an ac- tion be rightly brought in one county against the defendant found, and served therein, so that the other defendants may l)e served in a foreign county is whether the defendant served in the county in which the action is brought is a bona fide defendant to that action — whether his interest in the action and in the result thereof is adverse to that of the plaintiff. [Banna v. Emerson, 45 Neb. 708, and cases there Sec. 4] Service and Return of Summons 75 cited; Miller v. Meeker, 54 Neb. 452.) Pearson v. Kansas Mfg. Co., 14 Neb. 211, is no longer regarded as sound, but has in effect long been overruled. So that, looking at this action as a suit upon the promissory note executed by the plaintiffs in error to Clarke, we have the question, Did Clarke, by assigning this note to Wachosky become liable upon the note? We think not. The note was non-negotiable. It was merely a chose in action. It was assignable, and when assigned by Clarke, the payee, his assignee, Wach- osky, could maintain an action upon it in his own name, and to this action Clarke was not a necessary party. (Code of Civil Procedure, sec. 30.) Clarke, by assigning this note to Wachosky, did not become liable to him or his assignee on the note, and therefore, viewing this action as a suit upon the note, Clarke was not interested in the result of that action adversely to Wachosky, and therefore the action was not rightly brought on the note in Douglas county and the court had no jurisdiction over the plaintiffs in error. Of course, if the payee of a negotiable promissory note writes his name across the back thereof, without more, and delivers it to a third party, the law will write over that signature the promise on the part of such payee that, if the holder thereof presents it to the maker when due for pay- ment, and it be dishonored, and he be given due notice thereof, he will pay the note to the holder. But the payee of a non-negotiable note who sells it, writes his name across the back thereof, and delivers it to the vendee, without more, does not thereby become liable upon the note. His assignment and delivery of the note simply amounts to a quit claim upon his part of his interest in the note to his vendee. Such a payee of such a non-negotiable note may, of course, make himself liable to his assignee for the pay- ment of the said note by a writing evidencing such a con- tract over his signature. But in that case such a contract would be a separate and independent one from the contract evidenced by the note and would not affect the makers of the note nor their liability; nor enable the holder of the note to unite in one action the makers and the payee. In the case at bar Clarke did write over his signature on this note a guaranty of pajTuent, and by so doing he became liable to Wachosky as a guarantor of this note. But the makers of the note were not parties to the contract of 76 Trial. Pbactice [Ckap. 2 guaranty. The contract of guaranty was Clarke's con- tract, and a senarate and independent contract from the con- tract made by plaintiffs in error. Clarke was not, and is not, liable to Wachosky on the note. The makers of the note are not liable to Wachosky on Clarke's guaranty. There- fore, if we regard this as a suit upon the note, Clarke was not a proper party thereto, and the court had no jurisdic- tion over the plaintiffs in error. It we regard it as a suit upon the guaranty, Clarke was the only proper party there- to and the court had no jurisdiction over the plaintiffs in error. Wachosky has, perhaps, two causes of action. One cause of action is on the note and against the makers there- of. The other cause of action is against Clarke on his guaranty of pajTuent. These two causes of action cannot be united, for the obvious reason that each one does not affect all the parties to the action. {Mowery v. Mast, 9 Neb. 445 ; Code of Civil Procedure, sec. 88.) The judgment of the dis- trict court is reversed and the action, so far as it affects the plaintiffs in error, is dismissed. Reversed and dismissed. Section 5. Keturn of Service. JONES V. BIBB BRICK COMPANY. Supreme Court of Georgia. 1904. 120 Georgia, 321. ^* Motion to set aside judgment. Before Judge Hodges. City Court of Macon. October 17, 1903. [Judgment set aside. Plaintiff excepted.] ********** Lamar, J. A summons of garnishment directed to the Bibb Brick Company was served, August 23, 1902, the re- turn of tho officer showing that he had served the summons on "Bibb Brick Co., by handing the same to John T. Moore, its secretary and treasurer." * * * The motion to sot tliis judgment aside is verified by Moore, and does not deny tliat he was in charge of the office or of the business Sec. 5] Sekvice and Return of Summons 77 of the company in the county. * * * We are therefore to deal with a case in which the return of the officer, who had made good service, was incomplete and defective in its failure to allege that Moore, "secretary and treasurer," was "in r-hnt-g'e of the office or business*' oi the garnishee at the time the summons was handed to him in person. i-7. Process and service are essential. But the return, being only evidence of what the officer has done in serving, the writ, is not jurisdictional. Still it is manifest that a court ought not to proceed without having a legal return of record to show that its process had been actually served, and that it had acquired jurisdiction over the person of the defendant. If there is an entire absence of a return, or if the return made is void because showing service on the wrong person, or at a time, place, or in a manner not pro- vided by law, the court cannot proceed. Callaway v. Douglasville College, 99 Ga. 623. If, however, the fact of service appears, and the officer's return is irregular or in- complete, it should not be treated as no evidence, but rather as furnishing defective proof of the fact of service. The irregularity may be cured by an amendment which does not make or state a new fact, but merely supplies an omis- sion in the statement as to an existing fact. Where there has been valid service and no return, the deficiency may be supplied before taking further steps in the cause. If there has been service and a voidable or defective return, it may be amended even after judgment, so as to save that which has been done under service valid in fact but incompletely reported to the court. For in its last analysis it is the fact of service, rather than the proof thereof by the return, which is of vital importance. Ordinarily service is either good or bad. But process and return existing in writing may vary between void, voidable, and perfect. If either is void, the judgment predicated solely thereon is a nullity. Where process and return are not void, some classes of de- fects therein are cured by judgment. For many things are sufficient to prevent a judgTaent from being rendered which would be insufficient to set aside a judgment actually ren- dered. Hence the Civil Code, section 5365, declares that "a judgment cannot be arrested or set aside for any defect in the pleadings or record that is aided by verdict, or amendable as matter of form." This right to amend a 78 Trial Practice [Chap. 2 "return" so as to make it conform to the facts is allowed on general principles and by our statute. If the officer is in commission and liable on his bond, he may make this amendment voluntarily. Civil Code, section 5116. If he is dead or out of commission, or refuses to make the return which the facts require, then the amendment may be ordered by the court nunc pro tunc. * * * * * * * In Hargis v. E. T. Va. S Ga. Ry. Co., 90 Ga. 42, the return was attacked before judgment; there was no offer to amend, and no proof that the agent was in charge, or that service upon him would have bound the company. The court therefore properly declined to enter judgment against the garnishee. In Southern Ry. Co. v. Hagan, 103 Ga. 564, the original record shows that the process was void, and the garnishee attacked the judgment not on the ground that the return was defective but because it had never been served with a summons of garnishment. But none of these cases determine what would have been the effect of valid process and perfect service, with an incom- plete or defective return where the judgment rendered thereon was attacked and the motion to set aside and evi- dence thereunder showed valid service in fact. Such was the case of Third National Bank v. McCullough, 108 Ga. 249, where the service was perfect, but the return failed to recite that Hawkins, president, was in charge ; and yet the judgment against the garnishee by default was allowed to stand, there being no allegation in the attack thereon that Hawkins was not in fact the agent of the bank, in charge of its affairs in the county. In support of this ruling the court cited Sou. Ex. Co. v. Skipper, 85 Ga. 565, determined under a statute where service upon an agent was only al- lowed when the president of the garnishee company resided out of the State. The return was silent as to the residence of the president, and yet after service upon the local agent alone the default judgment was held sufficient, the court saying, tliat "in rendering judgment based on the service its sufficiency was adjudicated at least in an incidental way." Tlie same principle was involved in Holbrook v. Evansville Co., 114 Ga. 2, where the return did not follow the language of the statute, and was therefore not perfect in its ver))iage. Under the autliorities, therefore, it is evident that the Sec. 5] Service and Return of Summons 79 defective return might have been amended to conform to the facts, and that such amendment when made vrould have related back so as to make the record complete and the judgment perfect. But it may be claimed that here the defect was never cured, since no amendment was ever made. None was necessary. Whatever may be the rule in ordinary cases, both the allegations and the silence of this motion make it certain that the garnishee had been duly served. Judgment reversed. All the justices concur. SMOOT V. JUDD. Supreme Court of Missouri. 1904. 184 Missouri, 508. Marshall, J. — This is a bill in equity to set aside a judg- ment of the circuit court of Barton county rendered on September 18, 1891, in favor of G. S. Judd and against Ella G. Smoot and Samuel N. Smoot, and the execution issued thereunder, and the sheriff's deed to certain land in that county made to said Judd as purchaser at such execution sale. * * * Ella G. Smoot and Samuel N. Smoot are and at all times hereinafter mentioned were husband and wife, Mrs. Smoot owned lots 4, 5, and 6, in Jasper, Missouri, but it does rot appear whether it was her separate estate or only a legal estate. Being such owner, she and her husband, on April 15, 1887, executed and delivered to G. S. Judd their promis- sory note for $683.61, payable one day after date. * * * The debt was not paid, and on July 28, 1891, the debt being then over four years past due, Judd instituted suit in the Barton Circuit Court against Mr. and Mrs. Smoot. The petition did not describe the defendants as husband and wife. A summons was regularly issued, and was returned by the sheriff as having been served personally upon both Mr. and Mrs. Smoot. * * * The case was allowed to go by default, 80 Trial Practice [Chap. 2 and on September 18, 1891, a personal judgment was ren- dered against Mr. and Mrs. Smoot, for $925.13. On the 3rd. of February, 1891, Mrs. Smoot 's brother, Peter A. Gordon, died leaving certain land in Barton county, and Mrs. Smoot inherited an undivided one-fourth interest therein. On January 20, 1892, an execution was issued on said judgment and was levied on Mrs. Smoot 's interest in the land. * * * The land was then sold on March 10, 1892, and Judd became the purchaser of Mrs. Smoot 's interest therein for $510.00, and received a sheriff's deed therefor. The matter stood thus until October 30, 1893, when, the time for redemption having expired and the Smoots having done nothing, Judd instituted a suit for the partition of the land. * * * On April 14, 1894, a decree in partition was rendered and on September 3, 1894, the land was sold under that decree, and the defendants Brand and Jackson became the purchasers and received the sheriff's deeds therefor, entered into possession and have remained in possession ever since. It is conceded that at some time, the date is not disclosed by the record, Mrs. Smoot sued the sheriff on his official bond, for $3,000 damages, for the loss of her land, by the sale under said personal judgment, alleging that his return upon the summons that he had served it upon her personally was false, and that upon a trial of that case she recovered a judgment for nominal damages. On August 18, 1895, Mrs. Smoot instituted this suit in equity. The petition alleges nearly all the facts herein- before set out, and predicates a right to recover upon the falsitv of the sheriff's return aforesaid. The nction was brought against Judd, Brand, Jackson, and Mr. Smoot. Judd and Smoot though personally served made default, and the action is defended by Brand and Jackson, the pur- chasers of the property at the partition sale. * * * I. At some time, not definitely stated, the plaintiff sued the sheriff for damages for false return, and recovered a judgment. Tf tliat action was instituted before this suit was begun, it would clearly be a bar to this suit, for even if it should be conceded that the plaintiff was entitled to both remedies, the election to take one, would preclude a right Sec. 5] Sekvice and Return of Summons 81 thereafter to pursue the other. [Nanson v. Jacob, 93 Mo. 1. c. 345; Nalle v. Thompson, 173 Mo. 1. c. 616.) In any event, without regard to which action was begun first, it now appears that the plaintiff prosecuted her suit against the sheriff to a final and successful result. This being true, whatever wrong or loss she suffered in consequence of thr alleged false return of the sheriff, has been compensated for, and she has obtained satisfaction therefor. So that even if it could be conceded that her remedy was double, her wrong and loss was single and she could have only one satisfaction, and having received that in the other action, she is no longer entitled to pursue this remedy. {Rivers v. Blom, 163 Mo. 1. c. U8:Bank v. Bank, 130 Mo. 1. c. 168.) But, as hereinafter pointed out, I am of opinion that her remedy was confined to an action on the sheriff's bond, for false return, and that she cannot maintain a suit in equity to set aside the judgment or its consequences, because of the falsity of the sheriff's return showing personal ser- vice on her. n. When the case was here on former appeal, it was held that while the adjudications in this State had held that a sheriff's return is conclusive, except in an action against the sheriff for a false return, still in some other jurisdic- tions, a bill in equity would lie to set aside a judgment, by default, based upon a false return of the sheriff showing service of the summons upon the defendant, and accord- ingly it was then held that the return of the sheriff was not conclusive, and that this action would lie. {Smoot V. Judd, 161 Mo. 673.) With the greatest respect for the learned judge who wrote that opinion and for the equally learned judges who concurred in it, I am constrained to say, I think it does not announce the true rule of law in this State, and that it should be overruled. Ever since the decision of this court in Hallowell v. Page, 24 Mo. 590, the law has been uniformly declared in this State to be that ''the return of a sheriff on process, reg- ular on its face, and showing the fact and mode of service, is conclusive upon the parties to the suit. Its truth can T. p.— 6 82 Trial Pkactice [Ohap. 2 be controverted only in a direct action against the sheriff for false return." * * * In Steivart v. Stringer, 41 Mo. 1. c. 404, Wagner, J. ^id: ' ' The courts of some of the States have held that a sheriff's return is merely prima facie evidence of the facts therein stated; but the law is firmly settled in this State that a defendant cannot controvert the truth of the sheriff's re- turn. If the return of a sheriff to a process is regular on its face, it is conclusive upon the parties to the suit, and the remed}^ for the party injured is an action against the sheriff for a false return." But it is said that, in all the cases cited, the attack upon the sheriff's return was made in the original case, either before or after judgment and that while it was held that the sheriff's return was conclusive upon the parties in the original case, it was not held that such a return could not be attacked by a direct proceeding in equity, and upon former appeal it was pointed out that in Alabama, Ten- nessee, Kansas, Arkansas, Connecticut, Colorado and Illi- nois, it is held that a false return of the sheriff can be attacked and set aside by a direct proceeding in equity. iVccordingly it was held upon former appeal of this case that the alleged false return of the sheriff in the original r-ase of Jiidd v. Smoot could be attacked and set aside in this suit in equity. This raises the question whether or not a return of a sheriff can be attacked and, if found to be false, a judg- ment at law by default founded thereon, can be set aside in a direct proceeding in equity. Gw\Tine on Sheriffs, page 473, thus states the law: *'It is a well settled principle of the English law, that the sher- iff's return is not traversable, and the court will not try on afTidavits, whether the return of a sheriff to a writ is false, even though a strong case is made out, showing fraud and collusion, but the party must resort to his remedy by an action against the sheriff for a false return. In Conneftif'ut, the return of the sheriff on a mesne pro cess is held to be only prima facie evidence, but even ir that State, he cannot falsify it by his own evidence. In most, and y)robably all of tlie other States in the United States, llie rule is established, that as botweon parties to the suit, in whidi the icturn is made, and privies, and the Sec. 5] Service and Return of Summons 83 officer, except when the latter is charged in a direct pro ceeding against him for a false return, the sheritf's re- turn is conclusive and cannot be impeached. A party or privy may not aver the falsity of a return made by the proper officer, without a direct proceeding against the offi- cer, even in chancery." Walker v. Bobbins, 14 How. (U. S.) 584, was an injunc- tion to restrain the enforcement of a judgment, based upon a marshal's return of personal service, and which the deputy marshal who served the process testified was false. The Supreme Court of the United States, speaking through Mr. Justice Catron, said: "Assuming the fact to be that Walker was not served with process, and that the marshal's return is false, can the bill, in this event, be maintained? The respondents did no act that connects tliem with the false return; it was the sole act of the marshal, through his deputy, for whi^^h he was responsible to the complainant, Walker, for any damages that were sustained by him in consequence of a false return. This is free from controversy; still the marshal's responsibility does not settle the question made by the bill, which is, in general terms, whether a court of equity has jurisdiction to regulate proceedings, and to afford relief at law, where there has been abuse, in the various details arising on exe- cution of process, original, mesne and final. If a court o' chancery can be called on to correct one abuse, so it may correct another; and in effect, to vacate judgments, where the tribunal rendering the same would refuse re- lief, either on motion, or on a proceeding by audita querela, where this mode of redress is in use. In cases of false returns affecting the defendant, where the plaintiff at law is not in fault, redress can only be had in the court of law where the record was made, and if relief cannot be had there, the party injured must seek his relief against the marshal." Accordingly equitable relief was denied. ********** Hunter v. Stoneburner, 92 111. 75, was a bill in equity to set aside a judgment in partition and a sale thereunder, on the ground that the plaintiff had not been served with process, and for other reasons. The sheriff's return was personal service. The plaintiff succeeded in the lower court and the defendants appealed. The Supreme Court 84 Trial Peactice [Chap. 2 of Illinois said: ''It, then, appearing that appellee was served with process, he must be bound by the officer's re- turn. It is in rare cases only that the return of the officer can be contradicted, except in a direct proceeding by suit against the officer for false return. In all other cases, almost without exception, the return is held to be conclu- sive. An exception to the rule is where some other por- tion of the record in the same case contradicts the return, but it cannot be done by evidence dehors the record." Ac- cordingly the decree of the lower court was reversed. Stewart v. Stewart, 27 W. Va. 167, was a bill in equity to set aside a judgment at law, and the question arose on a motion for rehearing by a defendant who had made de- fault that the sheriff's return was false. The relief was denied, the Supreme Court saying: " * * * We see no rea- son for departing from the rule of the common law. If it is thought wise to permit the return of a sheriff on mesne or final process in any case, where the suit is not against him and his sureties for a false return, to be con- tradicted, the Legislature should furnish the remedy. We think the rule of the common law was founded in wisdom. Others besides the defendant to the suit are interested, that the return of the sheriff should be regarded as abso- lutely true. Rights of property would suffer under any other rule, and there is sufficient protection against fals' returns of sheriffs in the right of action directly against him and his sureties. If this rule is rigidly adhered to, sheriffs will be much more careful, and the rights of the citizens much better preserved, than if his returns either in mesne or final process could be contradicted. The only benefit, that could be given to the petitioner, would come tliroiigli permitting her to contradict the sheriff's return, that she was served with process in the suit. lie had no authority to serve the process as such officer outside of the State. If he had done so, such correction would entirely liave destroyed his return. As we said in Bowyer v. Knapp, 15 W. Va. 291, we do not mean to decide, whether under our statute the return of the sheriff on process may not be contradicted })y plea in abatement filed in the suit at the proper time. The court was justified in decreeing that the bill should be taken for confessed upon the return Sec. 5] Sekvice and Return of Summons 85 of the sheriff. The petition was properly dismissed." ********** Thomas v. Ireland, 88 Ky. 581, was a suit in equity to enjoin the enforcement of a judgment at law on the ground that the sheriff's return was false and that there was in fact no service. The court said: "It is well settled by this court that where the plaintitf acts in good faith in obtaining a judgment upon the return of the sheriff, en dorsed upon the summons, that it was executed on the defendant, though in fact it was not, the return is conclu- sive as between the plaintiff and defendant. The sta- bility of judgments require this rule; otherwise, judgments settling the rights of parties and giving remedies for the enforcement of these rights could never be regarded as permanent, but would be liable to be set aside, and the rights settled thereby be reopened, when the facts, not only appertaining to the service of the summons, but the merits of the controversy, had been forgotten or rendered un- availing by reason of the death of the parties or witnesses. Of course, if the plaintiff induces the sheriff to make a re- turn that he had served the summons, when he had not, whereby the plaintiff is enabled to obtain judgment against the defendant, the chancellor would not hesitate to set the judgment aside, upon the ground that it was fraudulently obtained. Also, if he knew the sheriff had made a false return and took judgment against the defendant, notwith- standing, he would be regarded as an aider and abettor of the fraud, and the chancellor would set aside the judgment. But as long as the plaintiff is an innocent party, no false return of the sheriff, though procured by one of the de- fendants, and that defendant the husband of the wronged defendant (which is exactly the case here if what the sheriff says as to the first return is true), will justify setting aside the judgment as against the plaintiff. His protection lies in the fact that he is an innocent party. When the plaintiff is an innocent party the sheriff and his coadjutor, if he has one, are the wrongdoers, and the wronged party may have an action against them, or either, for damages commensu- rate to the injury he has sustained growing out of the wrongful act. Also as the sheriff is tne wrongaoer ana p^ a party to the judgment, the proceeding to impeach his re- turn is collateral; and it is well settled that his re- S6 Tkial Practice [Cliap. '2 turn cannot be impeached in a collateral proceedins: for the purpose of setting aside or of getting rid of a judgment au- thorized by such a return." The petition in that case alleged that the husband of the plaintiff had induced the sheriff to return the summons as personally served on his wife, the plaintiff in that action, so as to conceal from her the fact that there was danger of her land being sold. Numerically, the State courts outside of Missouri ap- pear to be equally divided upon the subject, but the Su- preme Court of the United States and the English courts have always adhered to the rule that the officer's return is conclusive upon the parties to the suit and cannot be at- tacked even in equity, except where the plaintiff in the judgment has aided or abetted in the false return. ********** Upon principle and for practical purposes this is the better and wiser rule, and has become too deeply imbedded in the jurisprudence of this State, and the rights of too many purchasers at sheriff's sales have become fixed upon the faith of the rule, to permit it now to be changed. For it must be apparent that if judgments, and rights acquired under them by third persons, can afterwards be upset by a suit in equity, no one would risk money by buying at an execution sale, or, at best, would discount the risk by giving only a small proportion of the true value of the property. This would result in injury to the debtor and creditor both, for the debtor's lands would not sell for their true value, and the creditor would not realize on his claim in full. But in addition to this consideration, such a rule would offer a premium to a defendant to make default, let judgment go against him, let his land be sold, and a third party buy it, and thus have his debt paid, and then sue in cfiviity to set aside the deed and recover his land by dis- proving the sheriff's return. Thus his debt would be paid, his creditor would be satisfied, the debtor would recover his land, and the only sufferer would be the purchaser at the judicial sale. Under such a rule, judicial sales would not amount to much when the people once understood the risks inr-iirred. Tliis is exMftly the status of the case at bar. For tliese reasons I think this case was improperly decided on Sec. 5] Sebvice and Return of Summons 87 former appeal and that the former decision should be over- ruled. Robinson, C. J., concurs; Brace, J., concurs in para- graphs 2, 4, 5, 6, 12 and 13, and in the result ; Burgess, J., concurs in toto; Gantt and Fox, J. J,, concur in the result for the reasons expressed in the separate opinion of Fox, J. ; Valliant, J., dissents in an opinion filed by him. CROSBY V. FARMER. Supreme Court of Minnesota. 1888. 39 Minnesota, 305. Appeal by the plaintiff from an order of the municipal court of St. Paul, setting aside a judgment by default. Mitchell, J. Judgment- by default was rendered against defendant in the municipal court of St. Paul, upon the return of a police officer that he had served the sum- mons upon defendant in the city of St. Paul, Ramsey county, by leaving a copy at his last usual abode, with a person of suitable age and discretion then resident therein. Subsequently the judgment was vacated,' on motion of defendant made on affidavits showing that he was not and never had been a resident of Ramsey county, but at the time of the alleged service was and ever since has been a resident of Steele county. The plaintiff presented no counter-affidavits, but relied on the conclusiveness of the officer's return, — contending that it could not be impeached ; that, if false, defendant's only remedy was by action against the officer. This question has never been squarely decided by this court, — at least as to a return on original process. * * * * * * The rule of the English common law is that, as between the parties to the process or their privies, a sher- iff's return is conclusive, and that the court will not try the truth of it on motion to set aside the proceedings, or allow any averment against it to be taken in pleading; that, if false, the only remedy is against the sheriff by action. 88 Teial Peactice [Chap. 2 Com. Dig. tit. ''Eetorn" F 2 and G. The reason usually given for the rule is that it is necessary to secure the rights of the parties, and give validity and effect to the acts of ministerial officers. In England, process could only be served by the sheriff, who was the only ministerial officer known to the courts for that purpose. Moreover, under the common law practice which obtained there, it was almost impossible for judgment to be rendered against a party without actual personal notice to him. Under such a sys- tem, the rule might be convenient, and without much danger of working injustice. But, under the practice which obtains in this and other states, most of the old safeguards have been removed ; and the necessity for modifying the rule, and adapting it to the changed condition of the law, has been often felt and fre- quently acted upon, especially in the case of original process by which the court acquires jurisdiction. In the district court a summons may be served by any person not a party to the action, and his affidavit of service is placed virtually on the same footing as the return of the sheriff. In the municipal court of St. Paul the summons may be served by any policeman. The remedy by action for false return, under such a system, would often be inadequate or wholly fruitless. Again, the manner of service has been in other respects so materially changed that actual personal service is unnecessary, and the officer making service must often return as to facts not within his personal knowl- edge, but in the determination of which he must frequently rely upon information received from others. For example, service may be made by leaving a copy of the summons at the house of defendant's usual abode, with a person of suitable age and discretion then resident therein. In case of corporations service may be made, not oniy on certain specified general officers, but also, in certain cases, upon a managing or general agent, or even upon an acting ticket or freight agent. In case of minors under 14 years, the service must be both on the minor personally, and also upon his father, mother, or guardian, or, if none, upon tlie person having the care or control of the minor, or with whom he resides, or by whom he is employed. How can a slifriff determine where a man resides, or who resides with him, or who is the ticket or freight agent of a railway Sec. 5] Service and Return of Summons 89 company, or who has the care or control of a minor, or by whom he is employed, except upon information? And why should his return as to these facts be conclusive? If the'^ officer makes a mistake, why should the defendant be com- pelled to allow the judgment against him to stand, and re- sort to his suit against the officer, instead of being per- mitted to apply in a direct proceeding in the action to set aside the false return! We can see no good reason why the plaintiff should have a sum of money to which he is not entitled, and the officer be compelled to pay the de- fendant a like sum for making what may have been an honest mistake. If somebody must suffer loss for the mis- take, it is right it should fall on him who made it; but, if discovered in time to prevent loss to anyone, why should not the mistake be corrected on motion! There are very good reasons why the return of a ministerial officer should be held conclusive in all collateral proceedings, but we can see none, either upon principle or considerations of policy, why it may not be impeached for falsity in direct proceed- ings in the action; assuming always, of course, that no rights of third parties have intervened. Any evils or in- convenience which can possibly arise from permitting this to be done would, in our judgment, be greatly outweighed by the injustice that would often result from prohibiting it. The general tendency, especially in states having a Code practice like ours, is to allow the return to be impeached by an affidavit, on motion or other direct proceedings to vacate. Bond v. Wilson, 8 Kan. 228; Walker v. Lutz, 14 Neb. 274, (15 N. W. Eep. 352) ; Wendell v. Mugridge, 19 N. H. 109; Carr v. Commercial Bank, 16 Wis. 52; Stout v. Sioux City d Pacific Ry. Co., 3 McCrary, 1, (8 Fed. Rep. 794) ; Van Rensselaer v. Cliadivick, 7 How. Prac. 297; Wal- lis V. Lott, 15 How. Prac. 567 ; Watson v. Watson, 6 Conn. 334; Rowe v. Table Mt. Water Co., 10 Cal. 442. Some of the cases seem to make a distinction between mesne and final process and the original process, like a summons, by which the court acquires jurisdiction of the defendant. We confess that we cannot see at present why there should be any such distinction ; but, without deciding that question, we are of opinion that, upon a motion madr in the action to vacate a judgment by default on the ground 90 Teial Peactice [Chap. 2 of no service of the summons, the return of the officer may be impeached by affidavits, as was done in this case. Order affirmed.^ iConclusiveness of Sheriff's Betnrn. There is a great diversity of judicial ot)inion upon this subject, and a close inquiry into the various rules and their limitations -would be of little value here. The cases given above illustrate the antagonistic views which lead to the extreme positions on each side of the question. Between these there are numberless gradations. The following quotations will illustrate the extent and variety of the considerations which control the decisions upon this subject. Kochman v. O'Neill, (1903) 202 ill. 110, 66 N. E. 1047: "A sound public policy, the security of litigants and the stability of legal proceedings demand that the return of the sworn officer shall not be set aside or impeached except upon satisfactory evidence. Every presumption in favor of the return is indulged, and it will not be set aside upon the uncorroborated testimony of the party upon whom service purports to have been made. (Davis v. Dresback, 81 111. 393.) Justice, however, requires that the rules shall not be so strict as to prevent all relief against a return which is untrue through fraud, accident or mistake, and if it is clear from the evidence that the defendant has not been served the judgment should be set aside. ' ' Similar statement in West- man V. Carlson, (1910) 86 Nebr. 847, 126 N. W. 515. Waterbury National Bank v. Eeed, (1907) 231 111. 246, 83 N. E. 188: "It is, however, the law of this state that when a judgment of a court of general jurisdiction recites that there was actual service of process upon the defend- ant in apt time and there is nothing in the record to contradict such record or return, the finding or return cannot, at law, be impeached by evidence dehors the record, (Rust v. Frothingham, Buese, 331; Barnet v. Wolf, 70 111. 76; Zepp v. Hager, id. 223; Harris v. Lester, 80 id. 307; Hunter v. Stone- burner, 92 id. 75;) although in a proper case a false return may be set aside in equity; (Owens v. Ranstead, 22 111. 161; Hickey v. Stone, 60 id. 458;) and it may be questioned before judgment by plea in abatement, (Mineral Point Railroad Co. v. Keep, 22 111. 9; Holloway v. Freeman, id. 197; Sibert v. Thorp, 77 id. 43; Ryan v. Lander, 89 id. 554; Union National Bank of Chicago v! First National Bank, 90 id. 56; Chicago Sectional Electric Underground Co. v. ('ongdon Brake-Shoe Manf. Co., Ill id. 309); or in case of default entered ni.on such return, on motion promptly made, the same may be set aside (Brown v. Brown, 59 111. 315.)" Meyer v. Wilson, (1906) 166 Ind. 651, 76 N. E. 748: "If, however, the pjocess was not served by the officer, and false return was procured by the fraudulent acts of the plaintiff, or by a conspiracy between him and the o.Ti^tr, the same is not conclusive." Hilt V. Heimberger, (1908) 235 111. 235, 85 N. E. 304: "Where rights of third persons have been acquired in good faith, the return of an officer show- ing the service of summons cannot be contradicted, but as against parties ac- quiring rights Mith notice of the facts the return is not conclusive." Schott V. Linscott, (1909) 80 Kan. 536, 103 Pac. 997: "As to the fact of service, the general rule is that as between the parties to an action the return of the sheriff is conclusive; but if his return is of a fact not within his personal knowledge but dependent upon information received from others, a party is not jtrecluded from an inquiry into the facts on which jurisdiction de- pends. " Snme rule stated in Krutz v, Isaacs, (1901) 25 Wash. 566, 66 Pac. 141. Lofke v. Locke, (1894) 18 R. I. 716, 30 Atl. 422: Motion to set aside decree and roinstiite the case for trial on the ground that defendant had no notice of the [lending thereof. "While it is true that an officer's return upon a writ is conclusive and cannot be controverted incidentally by motion or plea ex- cept in cases especially provided for by statute, Angell v. Bowler, 3 R. I. 77, yet, as \inder section 2 of chapter 26 of the Judiciary Act, the court has control over its decrees for the period of six months after the entry thereof, and ' may, for caus« shown, set aside the same and reinstate the ease, or Sec. 6] Service and Return of Summons 91 make new entry and take other proceedings, with proper notice to the parties, with or without terms, as it may by general rule or s]iecial order direct,' it is clearly within the power of the court to grant the relief asked for in this ease without any infringement of the rule above stated, and without any rc- ilection upon the officer who served the writ. ' ' Michels v. Stork, (1883) 52 Mich. 260, 17 N. W. 833. This case contains an extended review of the authorities on this question in an opinion by Justios Oooley. Section 6. Privilege from Service. PARKER V. MARCO. Court of Appeals of New York. 1893, 136 New York, 585. Maynard, J. The defendant is a resident of South Car- olina and an action had been brought there against him in the Federal Circuit Court, by the plaintiff, who is a resi- dent of this state. On April 6, 1892, the defendant came to the city of New York at the instance of the plaintiff to attend an examination of the plaintiff and his witnesses be- fore a notary public, which by the agreement of the counsel for the respective parties had been set down for that date. The plaintiff procured the defendant's assent to the examin- ation upon the statement that he desired to be in readiness to try the cause at the ensuing April Circuit, to be held at the city of Charleston. When the time for taking the testi- mony arrived the defendant was informed by plaintiff's counsel that he had abandoned his intention to take the evi- dence as proposed, for the reason that on account of sick- ness in his, the counsel's family, the plaintiff would not be prepared to go to trial at the April Circuit, and he expected to be able to produce his witnesses in court when the trial should take place at a subsequent term. It was then late in the afternoon and the defendant returned to his hotel and remained over night, and the next morning started for liis home in South Carolina. He was intercepted at the ferry by a process server, who served him with a summons in this action brought by the plaintiff in the supreme Court of this state for the same cause of action at issue in the Federal Court in South Carolina. The defendant had no 92 Tkial Pkactice [Chap. 2 business in New York except that which related to the pro- posed examination. The defendant has appealed from an order of the General Term, reversing an order of the Spe- cial Term, which set aside the service of the summons upon the ground that, when served, he was privileged from service. Under Section 863 of the Revised Statutes of the United States the plaintiff had an absolute right to take the testi- mony of his witnesses in this state to be used upon the trial of the action in South Carolina upon giving reason- able notice to the defendant. The compulsory character of the proceeding was not affected by the waiver of notice and the fixing of the time by the agreement of parties. {Plimpton V. Winslotv, 9 Fed. R. 365.) The same section provides that a person may be required to appear and testify before the notary in the same manner as witnesses in open court, and section 915 of our own Code authorizes any state judge to issue a subpoena to compel the attend- ance of a witness in such a case. In the trial of the action the notary thus becomes the arm of the court, and, as was held In re Rindskopf (24 Fed. R. 542) represents the court pro hac vice. The privilege of a suitor or witness to be exempt from service of process while without the jurisdiction of his res- idence for the purpose of attending court in an action to which he is a party or in which he is to be sworn as a wit- ness is a very ancient one. (Year Book 13, Hen. IV., I. B. Viner's Abr. "Privilege.") It has always been held to extend to every proceeding of a judicial nature taken in or emanating from a duly con- stituted tribunal which directly relates to the trial of the issues involved. It is not simply a personal privilege, but it is also the privilege of the court, and is deemed neces- sary for the maintenance of its authority and dignity and in order to promote the due and eflicient administration of justice. (Person v. Grier, QQ N. Y. 124; Mattheivs v. Tufts, 87 id. 568.) At common law a writ of privilege or protec- tion would be granted to the party or witness by the court in which the action was pending, which would be respected l)y all other courts. We cannot find that the power to issue Huch a writ has been abrogated by legislation, and it doubt- less exists, and the writ may still be granted by courts Sec. 6] Sekvice and Retuen of Summons 93 possessing a common law jurisdiction; but while the grant- ing of the writ is proper, it is not necessary for the enjoy- ment of the privilege, and the only office which it can per- form is to afford "convenient and authentic notice to those about to do what would be a violation of the privilege, and to set it forth and command due respect to it." {Bridges V. Sheldon, 7 Fed. R. 4-1:.) The tendency has been not to re- strict but to enlarge the right of privilege so as to alford full protection to parties and witnesses from all forms of civil process during their attendance at court and for a reasonable time in going and returning. {Lamed v. Grif- fin, 12 Fed. Rep. 592.) Hearings before arbitrators, legislative committees, reg- isters and commissioners in bankruptcy, and examiners and ( ommissioners to take depositions, have all been declared to je embraced within the scope of its application. (Bacon's Abr. "Privilege"; Sand ford v. Chase, 3 Cow. 381; Mat- thews V. Tufts, supra; Hollender v. Hall, 18 Civ. Pro. 394; 19 id. 292; Thorp v. Adams, id. 351; Bridges v. Sheldon; Plimpton V. Winslow; and Lamed v. Griffin, supra.) It has even been extended to a suitor returning from an appoint- ment with his solicitor for the purpose of inspecting a paper in his adversary's possession in preparation for an examin- ation before a master, {Sidgier v. Birch, 9 Ves. 69) and while attending at the registrar's office with his solicitor, to settle the terms of a decree {Neivton v. Askeiv, 6 Hare, 319) ; and while attending from another state to hear an argu- ment in his own case in the Court of Appeals {Pell's case, 1 Rich. L. 197.) No good reason can be perceived why the privilege should not be extended to a party appearing upon the examination of his adversary's witnesses, where the testimony is taken pursuant to the authority of law, and can be read upon the trial with the same force and effect as if it had been taken in open court. It is a proceeding in the cause, which materially affects his rights, and the necessity for his attendance is quite as urgent as it would be if the examination was had at the trial. But we do not think that the question of the necessity of his presence is material. It is the right of the party, as wpU as his privilege, to be present whenever evidence is to be taken in the action, which may be used for the purpose of affecting its final determination. It is essentially a part 94 Trial, Practice [Chap. 2 of the trial, and should be so regarded so far as it may be necessary for the protection of the suitor. There have l)een many analogous cases in the Federal Courts where the right to the privilege has been upheld. In Bridges v. Sheldon, (supra), the action was pending in the U. S. Cir- cuit for Vermont. A reference had been ordered to a master to take and state an account. The master on motion of the plaintiff had made an order for the taking of a deposition before a commissioner in the state of Iowa. The defendant, while attending before the commissioner in Iowa, was served with process in a suit brought by the plain- tiff for the same cause of action as in the Federal court. Judge Wheeler, in very strong terms, condemned the pro- cedure, and held that the defendant was absolutely priv- ileged from service, and that the conduct of the plaintiff in causing such service to be made was a contempt of court, and could be punished as such. It seems that in such a case a party has a two-fold remedy. He may move in the court, whose privilege has been violated, to punish the party in that court who has been guilty of such violation, or he may move in the court out of which the process has been im- properly issued to vacate it, and the motion will be granted. ********** It may be assumed that the plaintiff acted in entire good faith, and that his procedure was not a device to secure the presence of the defendant within the territorial jurisdic- tion of the courts of this state. In the view we take of the privilege of the defendant, the plaintiff's motive is of no importance. The order of the General Term should be reversed, and the order of the Special Term affirmed, with costs. All concur except Gray, J., dissenting. Order reversed. Sec. 6] Sbbvice and Return of Summons 95 GREENLEAF Y. PEOPLE'S BANK OF BUFFALO. Supreme Court of North Carolina. 1903. 133 North Carolina, 292. Clark, C. J., concurring. The defendant Morey was served with summons in this case while at a hotel in this State. He contends that because he was a lawyer, resident in another State, and was attending court in this State as counsel in a cause therein pending, the service should be struck out. The proposition is a novel one in a land where equality before the law is the ruling principle and where special privilege to any class of our citizens is not only not recognized by law but is prohibited by the Constitution. A careful examination shows no ground for the alleged ex- emj^tion of lawyers from service of summons. There is no precedent in England to sustain the proposition, and none in this country save a single case, a very recent one — Hoff- man V. Circuit Judge, 113 Michigan, 109 ; 38 L. R. A. 663 ; 67 Am. St. Rep., 458 — which holds that a lawyer, resident in the same State, is privileged from service of a summons while attending the Supreme Court of the State or going or returning therefrom, but none of the authorities cited in that opinion sustain its conclusion. The reason given in the opinion is that while by statute in that State the pro- hibition of the arrest of counsel in a civil suit is restricted to the actual sitting of a court at which he is engaged, that this does not repeal the common-law exemption of counsel from service of summons. But, on the other hand, the most eminent lawyer which that State (Michigan) has produced. Judge Cooley, in a note to his work on Constitutional Limi- tations (5th Ed.), p. 161, says: "Exemption from arrest is not violated by the service of citation or declaration in civil cases." Besides, there was at common law no exemp- tion of lawyers from service of process other than arrest, and the reason for the latter was that it would be an in- jury to clients whose cause had been prepared for trial by such coansel to suddenly deprive them of his services, but service of a summons does not have that effect. In Bobbins v. Lincoln, 27 Fed. Rep., 342 (United States Circuit Court for Illinois), it is well said: "Inasmuch as 96 Trial Peactice [Chap. 2 resident attorneys may be served with summons while in attendance upon court, an attorney from another State has no greater privilege. " This is exactly in point here. It is well known that no lawyer in this State has ever in its his- tory been privileged, or contended even that he was priv- ileged, from service of summons while attending court. If he were, as the Constitution, Art. IV., sec. 22, now provides that "the courts are always open," no lawyer or judge could ever be served with summons. In England, Black- stone says (3 Bl. Com., 289), that lawyers could not be ar- rested on civil process while in attendance upon court, but could be served with a bill, without arrest, which was equiv- alent to service of a summons. The same is stated in 8 Bacon's Abr. ''Privilege" B., with the modification that if an attorney is sued with another (as in this case), "he is not privileged from arrest, even though it is during his attendance in court," the evident reason being to prevent class discrimination. The exemption of lawyers from ar- rest, it seems, has now been repealed in England. In this State the English privilege of exemption of lawyers from arrest has never been recognized. It is well known that one of the most distinguished lawyers and judges of this State, whose portrait now hangs on the walls of this cham- ber, was arrested and imprisoned for debt, and long pre- vented from attending upon court. This barbarous pro- ceeding of imprisonment for debt, handed down from the common law, should have been repealed long before it was, but while it was in force our predecessors applied it im- partially, and the bench did not hold their own members or their profession exempt. There was not at common law, and has not been in this State, any exemption of any one from service of summons, and the exemption from arrest under our statute is conferred only upon witnesses and jurors. Tlie Code, sees. 13G7 and 1735. And even wit- nesses and jurors are not exempted from service of sum- mons, since such service would not deprive the court of their presence. There is no reason why lawyers should be privileged from either arrest or service of summons any more than other oHicers of the court, as sheriffs, clerks, criers and the like, and the legislative power has therefore seen fit to make the exemption apply only to witnesses and Sec. 6] Service and Beturn of Summons 07 jurors, and, as to them, to make the exemption extend to freedom from arrest only. As to non-residents, in Cooper v. Wyman, 122 N. C, 784, this Court held that non-resident witnesses and suitors coming into this State solely for the purpose of litigation were exempt from service while here for that purpose only. This was put upon the ground of necessitv, because the State could not compel their presence, and that since no one else could fill their functions it was in the interest of justice to give them "a safe conduct." But this reasoning has not obtained in some States, notably Illinois, which holds that neither are exempt from service of summons. Greer v. Young, 120 111. 184, citing authorities. In Nichols V. Goodlieart, 5 111. App., 574, it was held that a defendant involuntarily in the State, by virtue of criminal process, is not exempt from service of summons, citing Williams v. Bacon, 10 Wend. (N. Y.), 636. Other States hold that the rule is restricted to witnesses only. Shearman v. Gunlatch, 37 Minn., 118. Other States extend the exemption to parties also, since they have become competent as witnesses {Mitchell v. Huron, 53 Michigan, 541), and our State has adopted that rule, but restricts the exemption to those two — "non-resident witnesses and parties." An exhaustive brief of all the authorities, showing that the privilege ex- tends only to non-resident witnesses and parties, will be found in the notes (eighteen pages) to Mullen v. Sanborn, 25 L. R. A., 721-738. No court whatever has in any case extended the exemption to non-resident lawyers. The nearest approach to it is Trust Co. v. Railroad, 74 Fed, Rep., 442, in which a subpoena served upon non-resident counsel, which prevented his returning home and attending to business he had left unprovided for, was set aside. That case is not sustained by any previous authority, and evi- dently rests more upon the ground stated therein, that the non-resident subpoenaed was president of a railway com- pany, than because he was also a lawyer, but, if sound, it is very far from sustaining an alleged exemption from ser- vice of summons, which did not prevent Morey from re- turning home and adjusting his business, for the trial of his case is for a subsequent term. The United States Constitution, Art. I, sec. 6, prohibits the arrest of a member of the House of Representatives or T. p.— 7 " 98 Teial Peacticb [Chap. 2 a Senator during the session, except for treason, felony and breach of the peace. There is a similar provision as to the members of the Legislature in Nebraska. The nu- merous and uniform authorities that such privilege from arrest does not exempt from service of process without arrest are collected in a very recent and able opinion (1903) in Berlet v. Weary, 93 N. W., 238 (Neb.) ; 60 L. R. A., 609; and in Rhodes v. Walsh, 55 Minn., 542 ; 23 L. R. A., 632 ; Gentry v. Griffith, 27 Tex., 461. For a stronger reason this is so where, as in most States as well as in this, lawyers are not exempt even from arrest. In Lyall v. Goodivin, 4 Mc- Lean, 29, a service of a summons from a United States Court upon a judge of the State Supreme Court, in his own court and while actually on duty, was set aside because being a supposed indignity to the court and interference with its business. Even if this can be sustained and ex- tended to counsel, neither the dignity of the court nor the despatch of business in this case could be interfered with by the service of summons upon Morey at the hotel. Nor, in the nature of things, is there any reason why a non-resident lawyer, coming here for a consideration in the pursuit of his profession, should be exempt from the ser- vice of summons any more than a non-resident physician or minister or a member of any other calling. The plain- tiff sues for services rendered to the defendants in this State at their request. If Morey is exempt from service because here in the exercise of his profession, a ''commer- cial tourist" is by the same right exempt from being served with summons in an action for a hotel bill incurred while prosecuting his calling. Indeed, his ground for ex- emption would be more plausible, for he is engaged in interstate commerce and the lawyer is not. Service of summons upon neither will interfere with the dignity of the courts or their despatch of business. Our State extends no preference to non-resident lawyers over those living liere. The Code, sees. 18 and 19; Manning v. Railroad, 122 N. C, p. 828. As far back as 1769 (10 George III., ch. 50), England f)assed a statute confirming the ruling of Sir Orlando Bridgeman in Benyon v. Evelyn Tr., 14 Car., 2 C. B. Roll, over a century before (1661), and cited in Knoivles' Case, 12 Mod., at p. 64 (1694), that the privilege which members Sec. 6] Service and Return or Summons 9'j of Parliament enjoyed of being exempt from arrest did not exempt them from being sued or from service of ordinary process without arrest. The privilege was deemed too in- vidious a class privilege even for that age and country, and the claim was denied by Parliament itself and the conten- tion put at rest. Cassidey v. Stewart, 2 Man. & Gr. 437. It is not for an American court to reverse the process and hold that because lawyers were formerly privileged from arrest during attendance upon court, therefore, they are exempt from being sued and being served with a sum- mons. By the census of 1900 there were 114,703 practicing lawyers in the United States, of whom 1,263 were in North Carolina. If, during all these years, lawj^ers had possessed the privilege of exemption from the service of summons, assuredly more than one case could be found to assert it. If it had been so asserted it would have been promptly re- pealed by statute, seeing that the Parliament in England passed an act denying a similar claim that its own mem- bers were exempt from service of summons because priv- ileged from arrest, and that members and Senators in Con- gress are not privileged from service of summons, though expressly exempted from arrest on civil process by the Con- stitution. Even the former privilege of lawyers from ar- rest has been modified in some States and expressly re- pealed in others, and in others still, as in North Carolina, it has never been recognized or acknowledged. Equally unfounded is the claim that service upon the other defendant, the officer of a corporation {Jester v. Steam Packet Co., 131 N. C, 54), was invalid because made when he was attending a sale of land under a decree of court. Such sale may, like other acts, come before a court for review, but the sale itself is not a judicial proceeding, and no exemption from service of process extends to it. Such exemptions are restricted to non-resident witnesses and parties, and are permitted, not on their own account or for their own benefit, but for the benefit of the court in obtaining evidence at a trial, when the court cannot compel the presence of those who can testify to facts in issue in the litigation. This can have no application to the attend ance of a party at a sale, under a decree in the cause, for his own convenience or benefit. In the days of Privilege, under the rule of Ecclesiastics 100 Tkial Peactice [Chap. 2 'q England, they held their own profession exempt from the jurisdiction of the civil courts, and set apart certain places where all men were exempt from service of process under the * 'Privilege of Sanctuary." The last remnant of such class privileges was repealed. 21 James I. Judges have never claimed for the legal profession or the courts any similar exemption, either as to persons or places. With lawyers for judges, justice knows neither class nor caste, and admits no special privileges, and for its administra- tion "every place is a temple and all seasons summer." The judgment setting aside the service of summons must ])e reversed. Douglas, J., concurs in the above concurring opinion. CHAPTER III. APPEARANCE. Section 1. What Constitutes a Special Appeakance. BELKNAP V. CHARLTON. Supreme Court of Oregon. 1893, 25 Oregon, 41. This action was commenced by H. A. Belknap, H. P. Belknap and S. I. Belknap, partners, in the Circuit Court for Crook county against C. M. and Mamie Charlton, resi- dents of Morrow county, to recover the sum of sixty-one dollars and twenty cents upon an account for goods, wares, and merchandise sold and delivered, and for services ren- dered. A writ of attachment was duly issued and served in Crook county by attaching in the hands of one J. F. Moore certain moneys belonging to the defendants, but the summons in the action was not served on the defend- ants. Some three months after the action was commenced, and the writ of attachment had been served, the defendants appeared specially by their attorney for the purpose of .applying to the court to discharge the attachment because the action had been commenced in the wrong county, and because no service had been made upon them, which motion l)eing overruled, judgment was rendered against them by default. They now appeal, claiming that such appearance, being special, gave the court no jurisdiction to render a judgment against them. Reversed. Opinion by Me. Justice Bean. 1. It is admitted that the voluntary appearance of a defendant in an action is equivalent to the service of a summons, and waives all defects in the process (Code, § (52), but the contention for defendant is that no appear- ance, except as provided in section 530 of the Code, — that is, either by answer, demurrer, or giving plaintiff written notice, — can be deemed an appearance within the meaning of 101 102 Teial Pkactice [Chap. 3 section 62 of our Code. Section 530 provides, that a defend- ant appears in an action wiien lie answers, demurs, or gives plaintiff written notice of his appearance, and until he does so appear he shall not be entitled to be heard, or be served with notice of subsequent proceedings in such action or suit, or in any proceeding pertaining thereto, except the giving of an undertaking in the provisional remedies of arrest, at- tachment, or the delivery of personal property. The ar- rangement of this section in the Code under the title of "Notices and Service and Filing of Papers," as well as its language, indicates clearly that its only purpose is to define what shall constitute such an appearance in an action as will entitle the defendant to be heard, as a matter of right, and entitle him to the service of notice of motions and sub- sequent proceedings in the action required by law to be served : Bank v. Rogers, 12 Minn., 529 ; Grant v. Schmidt, 22 Minn., 1. It was not, we think, intended to define a voluntary appearance within the meaning of section 62, and has no bearing upon the question of jurisdiction. A defendant may appear and submit himself to the jurisdic- tion of the court in many ways, without either answering, demurring, or giving i^laintiff written notice of his appear- ance. He may do this by appearing in person, or by attor- ney in open court, by attacking the complaint by motion, or by an application for a continuance, and in many other ways which will readily suggest themselves to one familiar with the course of judicial proceedings. But before he is entitled, as a matter of right, to be heard in the action, or in any proceedings pertaining thereto, or to be served with notice, he must appear in one of the ways provided in sec- tion 530. The question before us, therefore, must be deter- mined without reference to that section, which, as we con- ceive, has no bearing upon tlie question as to whether a special appearance for the purpose of applying for the dis- charge of an attachment is a submission to the jurisdiction of the court so as to authorize it to proceed to judgment in the action without the service of summons. 2. It is claimed by the plaintiffs that while a defendant may appear specially to object to the jurisdiction of the court over him on account of the illegal service of process, (Kinkade v. Myers, 17 Or. 470, 21 Pac. Bep. 557), he must keep out of court for every other purpose, and that any Sec. 1] Appearance 103 appearance which calls into action the power of the court Tor any purpose except to decide upon its own jurisdiction. is a general appearance, and waives all defects in the ser vice of process, and many authorities are cited to sustain this position. The principle to be extracted from the de- cisions on this subject is, that where the defendant appears and asks some relief which can be granted only on the hypothesis that the court has jurisdiction of the cause and the person, it is a submission to the jurisdiction of the court as completely as if he had been regularly served with process, whether such an appearance by its terms be limited to a special purpose or not: Coad v. Coad, 41 Wis. 26; Blackburn v. Siveet, 38 Wis., 578; Pry v. Hannibal S St. Jo. R. R. Co., 73 Mo., 126; Sargent v. Flaid, 90 Ind., 501; Layne v. Ohio River R. R. Co., 35 W. Va. 438, 14 S. E. Rep. 123; Handy v. Ins. Co., 37 Ohio St., 366; Bucklin v. Strick- ler, 32 Neb., 602, 49 N. W. Rep., 371; Burdette v. C organ, 26 Kansas, 102; Aidtman & Taylor Co. v. Steinan, 8 Neb., 109. This seems to be a reasonable rule, and one which will adequately protect the rights of the parties, and it de- termines the effect of defendant's appearance from the nature of the relief which he seeks to obtain. If he asks the court to adjudicate upon some question affecting the merits of the controversy, or for some relief which pre- supposes jurisdiction of the person, and which can be granted only after jurisdiction is acquired, he will be deemed to have made a general appearance, and to have submitted himself to the jurisdiction of the court, and can- not, by any act of his, limit his appearance to a special purpose. But, if granting the relief asked would be con- sistent with a want of jurisdiction over the person, he may appear for a special purpose without submitting himself to the jurisdiction of the court for any other purpose. It has consequently been held that an attachment and the action out of which it issues, are so inseparately connected that the defendant cannot appear and question the validity of the attachment by a traverse of the facts alleged in the affidavit, or by contesting the truth of the grounds upon which it issued, without submitting himself to the jurisdic- tion of the court in the action, because by so doing the court is called upon to entertain and determine questions which can be considered only after jurisdiction has at- 104 Trial Pkactice [Chap. 3 taclied: Greenivell v. Greenwell, 26 Kan. 530; Bury v. Conklin, 23 Kan., 460; Wood v. Young, 38 Iowa, 102; Dun- can V. Wkkliife, 4 Met. (Ky.) 118. But where a defendant appears, and without questioning the merits of the action, or the truth of the grounds upon which the attachment issued, moves to discharge the attachment for want of the jurisdictional facts to sustain it, he asks no relief the grant- ing of which would be inconsistent with an entire want of jurisdiction over the person, and hence does not appear in the action so as to authorize the court to proceed to judg- ment against him : Drake, Attach. § 112 ; Glidden v. Pack- ard, 28 Cal., 649; Johnson v. Buell, 26 111., QQ; Bonner v. Brown, 10 La. Ann. 334. Now, in the case at bar, the appearance of the defend- ants was not for the purpose of contesting the truth of the grounds upon which the attachment issued, or the merits of the action, but to vacate the attachment for the reason, as appears from the affidavit accompanying the motion, that the action had been commenced in the wrong county, and that it was a great injustice and wrong to them to have their property thus held under an attachment when there was no means of obtaining jurisdiction over their persons. This appearance was, therefore, not for the purpose of sub- mitting to the jurisdiction of the court, or asking it to entertain or determine any question which could only be considered after jurisdiction had attached, but it was for the sole purpose of objecting to the validity of the attach- ment for irregularities in the proceedings, the granting of which would have been entirely consistent with the claim that the court had no jurisdiction of the person. By their motion to discharge the attachment for the reason stated, the defendants appeared for no purpose incompatible with the supposition that the court had acquired no jurisdiction over them on account of a want of service of the sum- mons, and we therefore think there was no waiver of pro- cess. Nothing less than the express language of a statute, or the necessary implication therefrom, or the overbearing weight of autliority, will justify a court in holding that a defendant in an action commenced in the wrong county, in violation of section 44 of the Code, could not appear and apply for the discharge of an attachment against his prop- erty, for irregularities, without being required to submit Sec. 1] Appearance. 105 himself to the jurisdiction of the court for the purpose of the entire action; and it is not material in such case, whether the motion happened to be well founded or not, but the question is, did it go to the merits, or was it based upon some technical grounds supposed to be sufficient to render the attachment invalid. If a defendant may not thus appear and resist what he supposes to be a wrongful attachment without subjecting his person to the jurisdic- tion of the court, he must either suffer his property to be held under a pretended attachment for an indefinite time, or waive a statutory right to be sued in the county where he resides or may be found. This the law will not exact or require. 4. It was suggested that the remedy of the defendants in such case is by motion to dismiss the action for want of jurisdiction, but such a motion would be unavailing. The court has jurisdiction of the subject-matter, and an action is commenced by filing the complaint, and there is no pro- vision of the law authorizing it to be dismissed because the summons has not been served: Code, <§ § 51, 59. It follows, therefore, that the action of the court below in entering judgment against the defendants without service of process upon them was unauthorized, and the judgment must be reversed. Reversed. FULTON V. EAMSEY. Supreme Court of Appeals of West Virginia. 1910. 67 West Virginia, 321. PoFFENBAEGER, J. The solo qucstlou iu this cause, name- ly, whether Joseph Eamsey, Jr., George J. Gould, and Will- iam E. Guy, non-resident defendants, proceeded against by order of publication, appeared herein, in the court below, by attorneys, so as to enable that court to render a personal decree against them, grows out of the operations of what is styled in an agreement, and popularly known, as "the Little Kanawha Syndicate," which agreement is dated De- 106 Teial Practice [Chap. 3 cember 2, 1901, and was signed by said Ramsey, Gould, Guy, and others. That syndicate seems to have been formed for the pur- pose of purchasing the Little Kanawha Railroad, large areas of coal lands, and other properties in this state. * * * In anticipation of the launching of this enterprise, Mr. Edward D. Fulton had acquired an option on the Little Kanawha Railroad as well as the title to, and options upon, large areas of coal and coal lands and other property in the counties of Braxton, Gilmer, and Lewis. Under certain agreements, and with intent to dispose of the same to the syndicate, he assigned the option on the railroad, at the op- tion price, and assigned his coal and coal land options, and conveyed his coal and coal lands, at certain prices named in the assignments and deeds, to the St. Louis Union Trust Company, to hold as trustee for the syndicate. For some reason, the syndicate concluded to abandon its plan and sell all its property. Accordingly, it failed to carry out its con- temjDlated arrangements with Fulton, and he brought this suit, in the Circuit Court of Braxton county, to compel specific performance of his alleged contract with the syndi- cate. * * * On the 1st day of December, 1908, the following order, relied upon by Fulton as showing a general appearance, was entered: ''This day R. W. McMichael and John B. Morrison, attorneys practicing in this court, appeared and asked the court to permit them to appear specially for Joseph Ramsey, Jr., George J. Gould, and William E. Guy, as managers of the Little Kanawha Syndicate, and ask a continuance of this cause for thirty or sixty days to enable them to prepare their defense, or to determine whether they would desire to appear generally, and stating that they did not desire to appear generally for said parties at this time, but that they desired to move the court to con- tinue the cause without appearance otlier than specially for the purposes of the continuance. The plaintiff, by his counsel, resisted the said motion to continue the hearing, and thereupon said counsel for said defendants Ramsey, Gould, and Guy, announced that it was their desire to with- draw and not appear to the case, and thereupon counsel for plaintiff, and while said counsel for defendants were pres- ent, asked that the cause be submitted for hearing and ac- Sec. 1] Appearance. 107 cordingly the said cause was submitted for hearing." * • * ********** We think the order was nothing more than an inquiry, addressed to the court, for information as to what could be done by way of obtaining a postponement of action in the cause, without submitting to the jurisdiction of the court for all purposes, or a conditional, not an absolute and unqualified, motion for a continuance. The motion, as re- corded, if it can be regarded as a motion, signified a desire for a continuance, if it could be had without a waiver of service of process upon the defendants, but distinctly de- clared unwillingness to ask or take a continuance, if it in- volved such a waiver. It does not say in express terms that a motion to continue was made. On the contrary, it says McMichael and Morrison asked the court to per- mit them to appear specially for their clients and ask a continuance, to enable them to determine whether they would desire to appear generally, and stated that they did not desire to appear generally at that time. It then says counsel for plaintiff resisted "said motion to continue." That means the motion or request made. It was not in terms a motion, and, read in the light of the protest, sub- mitted along with it, it cannot be regarded as anything more, in substance and effect, than an offer to move for a continuance, if it could be done without waiving process, accompanied by a declaration of intent not to move at all, if such action involved waiver, and an immediate dec- laration of determination not to say or do anything more, after having been informed that a motion for a continu- ance, so made and described upon the record, would be in law a submission to the jurisdiction of the court. We apprehend no dissent from the pro^DOsition that the establishment of the jurisdiction of a court, whether over the person or the subject matter, must be affirmatively shown by the record. Groves v. Grant County Court, 42 W. Va., 587, 600, 26 S. E. 460. Something must be done to confer it. Jurisdiction of the person may be acquired by implication, arising out of some act done, or by direct and positive acknowledgement thereof; but in either event it should clearly appear. It ought to be reasonably free from uncertainty and doubt. A favorite statement of the rule, respecting the acquisition of jurisdiction by implication or 108 Trial Practice [Chap. 3 waiver, is this: "By appearance to the action in any case, for any other purpose than to take advantage of the de- fective execution, or non-execution, of process, a defendant places himself precisely in the situation in which he would be if process were executed upon him, and he thereby waives all objection to the defective execution or non-execu- tion of process upon him." State v. Coal Co., 49 W. Va. 143, 38 S. E. 539; Lumber Co. v. Lance, 50 W. Va. 640, 41 S. E. 128; Layne v. Railroad Co., 35 W. Va. 438, 14 S. E. 123; Blankenship v. Railivay Co., 43 W. Va. 135, 27 S. E. 355; Mahany v. Kephart, 15 W. Va. 609; Bank v. Bank, 3 W. Va. 386. This is a declaration of a general principle, to be read in the light of the facts and circumstances under which it is applied, in seeking its true meaning. Some at- tention must also be paid to its terms. It must be an ap- pearance for a purpose in the cause, not one merely col- lateral' to it. In this state, litigants have put themselves within this rule, for the most part, by asking or accepting some sort of relief in the cause, consistent with the hypothe- sis of a submission and inconsistent with any other view, such as a continuance. No instance can be found in which a party has been held to have impliedly bound himself to submission, without having asked or received some relief in the cause or participated in some step taken therein. Mere presence in the court room when the case is called, or ex- amination of the papers in it filed in the clerk's office, is not enough. Nor could a conversation with plaintiff's counsel or the judge of the court, about the case, be regarded as an appearance. No decision goes that far. Under this text in 3 Cyc. 504, ''Any action on the part of defendant, except to object to the jurisdiction, which recognizes the case as in court, will amount to a general appearance," a long list of decisions is cited, but, in every one of them, something was done in the cause — some affirmative act was done to delay, speed, or defend the cause. In every instance the conduct, deemed a waiver, amounted to more than a mere inquiry or conversation about it. The test, according to a late decision of the Federal Supreme Court {Merchant's Heat & Light Co. V. Cloiv S Sons, 204 U. S. 286, 27 Sup. Ct. 285), is whether the defendant became an actor in the cause. The instances of the assumption of the role of actor in a suit disclosed by the federal decisions, are such as the taking Sec. 1] Appearance. 109 of a continuance; filing a demurrer to plaintiff's pleadings, without limiting it to the question of jurisdiction; filing a plea of intervention, pleading to issue or to the merits in the first instance ; or filing sets-off, counter-claims, or notices of recoupment. Broad as is this doctrine of waiver, it does not cover all acts done by a defendant. He may talk even to the court about the merits of the cause without subject- ing himself to it. In Citizens' Saving £ Trust Co. v. Rail- road Co., 205 U. S. 46, 27 Sup. Ct. 425, argument upon the merits of the cause was indulged in, at the hearing upon the sufficiency of the pleas to the jurisdiction, and this was relied upon as constituting a general appearance; but Mr. Justice Haelan, speaking for the court, said: "This is too harsh an interpretation of what occurred in the court be- low. There was no motion for the dismissal of the bill for want of equity. The discussion of the merits was per- mitted or invited by the court in order that it might be in- formed on that question in the event it concluded to con- sider the merits along with the question of the sufficiency of the pleas to the jurisdiction. We are satisfied that the defendants did not intend to waive the benefit of their qual- ified appearance at the time of filing the pleas to the juris- diction." * * * In Fairhank S Co. v. Cincinnati, etc., Ry. Co., 54 Fed. 420, 4 C. C. A. 403, 38 L. R. A. 271, the court held as follows: ""Where a defendant appears specially for the purpose of moving to quash the return on the sum- mons, the fact that, in such motion, it also prays judgment whether it should be compelled to plead, for the reason that it is a non-resident corporation, does not constitute a waiver of the objection to the service." These precedents amply sustain the view that something substantially bene- ficial to the defendant or detrimental to the plaintiff, re- lating to or affecting the progress of the cause, asked, done, or accepted by the former, is essential to the establishment of a waiver of process or service thereof. There must be something more than a mere pretext for the claim of juris- diction over him. He must either enter an appearance, ask some relief in the cause, accept some benefit as a step there- in or do something from which the necessary implication of submission to the jurisdiction of the court over his person arises. "The principle to be extracted from the decisions on the subject as to when a special appearance is converted 110 Trial Peactice [Chap. 3 into a general one is that, where the defendant appears and asks some relief which can only be granted on the hypothe- sis that the court has jurisdiction of the cause and the person, it is a submission to the jurisdiction of the court as completely as if he had been regularly served with pro- cess, whether such an appearance, by its terms, be limited to a special purpose or not." 2 Ency. PI. & Pr. 625. ''The expression 'for any purpose connected with the cause,' how- ever, is not to be taken as wholly unrestricted in meaning. The appearance must have some relation to the merits of the controversy, and the purpose must be to invoke some action on the part of the court having direct bearing in some way upon the question of the judgment or decree proper to be entered." Bank v. Knox, 133 Iowa, 443, 446, 109 N. W. 201. The general principle, upon which we rely, was applied by the Supreme Court of Massachusetts in Loivrie v. Castle, 198 Mass. 82, 83 N. E. 1118, under circum- stances even more unfavorable to the defendant than those presented here. The non-resident defendant in that case, within 10 days after the return day of the writ, applied to the court for an extension of the time within which he could appear, in order that he might decide whether to waive the lack of proper service and voluntarily appear, or to insist upon his rights as a non-resident, and the court allowed such extension. After the expiration of the 10 days, but within the period of the extension allowed, he moved to dis- miss the action, stating in his motion that he appeared only for the purpose of moving a dismissal, and the motion was sustained. The appellate court held it to be within the in- herent power of the trial court to grant such an extension, without prejudice to the right to except to the jurisdiction, and affirmed the judgment of dismissal. In delivering the opinion of the court, Hammond, Judge, said: "It is to be borne in mind that this is not a case where a defendant, upon whom process has been duly served, and who, there- for, is within the jurisdiction of the court and liable to de- fault if he does not seasonably appear, asks for delay. It is a case where a non-resident defendant who, for lack of service upon him, is not within the jurisdiction and cannot be brought within it, fearing lest the court may regard the service sufficient and default him, comes into court, and says, in substance, that he is in doubt whether to waive Sec. IJ Appearance. Ill proper service and voluntarily appear, or to insist upon liii^ rights as a non-resident, and ask for time to decide. Cer- tainly it is a part of the inherent power in a court to set a time within which the non-resident must make up his mind and act accordingly, and that was all the court did. The motions for dismissal were properly before the court." Against this express decision of a reputable and able court, under a state of facts less favorable to the defendant than those presented here, and other decisions, showing that something substantial must be asked or done by the defend- ant, relating to or affecting the merits of the cause, we have nothing but a generalization, founded upon, and, there- for, to be interpreted by, facts falling far short of those disclosed here, for the proposition that [a defendant, who makes] ^ a mere offer to move for a continuance provided it can be done without a waiver of service, accompanied by his declaration of intention not to appear generally nor to ask or take such continuance, if it involved such waiver, and signification of his desire and determination to with- draw the request, for nothing but a request had been made, on being informed that such a motion would be a general appearance, is bound thereby. We feel amply justified, upon authority as well as upon reason and principle, in withholding our assent to it, and saying such action did not constitute a general appearance. * * * Affirmed. [Beannon and Williams, J. J., dissent.] 1 There appears to be a misprint in the published opinion, which is here sought to be corrected bj introducing the words inclosed in brackets. 112 Trial Practice [Chap. 3 Section 2. Manner of Making Special Appearance. WALL V. CHESAPEAKE & OHIO EAILWAY COMPANY. United States Circuit Court of Appeals, Seventh Circuit. 1899. 87 Circuit Court of Appeals, 129, BuNN, District Judge. * * * The summons issued by the Superior Court of Cook county was returned with an in- dorsement of service as follows: "Served this writ on the within-named Chesapeake & Ohio Railway Company, a corporation, by delivering a copy thereof to U, L. Truitt, the northwestern passenger agent of said corporation, this 12th day of April, 1898. The president of said corporation not found in my county. "James Pease, Sheriff. "By B. Gilbert, Deputy." After this return was made, and the declaration filed, the defendant proceeded to remove the case to the United States Circuit Court for the northern district of Illinois, and, when so removed, entered its special appearance for the purpose of moving to set aside the return of the sum- mons on the ground that U. L. Truitt, the person on whom it was served, was not the defendant's agent, or a person on whom proper service of summons could be made. The motion to set aside was founded upon the affidavits of Ulysses L. Truitt and H. W. Fuller, the general passenger agent of the defendant, setting forth that at the time of the service Truitt was jn the employ of the defendant com- pany for the purpose of influencing persons who might be desirous of travelling from Chicago and vicinity to points east of Cincinnati and Lexington to patronize those rail- way lines loading out of Chicago that made connections with defendant's road at Cincinnati and Lexington; that Truitt had no other connection with the defendant, and had no power or autliority from said defendant, either express or implied, to make any contract or rates for transportation over the railway of the defendant, and that his authority was strictly limited to conveying information concerning Sec. 2] Appearance. 113 existing rates as established by the officials of the defend- ant company, and concerning the connections and time made and facilities possessed by the defendant in and about its passenger traffic, and had no other authority whatevei- ; ♦hat the defendant was a resident of the state of Virginia, having its principal office at Eichmond, in that state, and was not operating any railway in said county of Cook, and had no place of business therein. Upon these affidavits (no counter affidavits being filed) the court below, by its order, set aside the service of the summons, to which ruling the plaintiff duly excepted. ***** The contention is that the practice adopted to get rid of the service by motion to quash and set aside was irregular and unjustified in law, and that, instead of proceeding by motion, the defendant should have filed a plea in abatement, and had a trial of the question by a jury. This is an im- portant and radical contention, and the ground upon which it is sought to support it is that it is the practice in such cases recognized and established by the Supreme Court of the state of Illinois. That court first made such a ruling in Railicay Co. v. Keep, 22 111. 9, and has in numerous de- cisions since adhered to it, and it is contended that this court should follow the state practice. But this contention cannot be supported, either upon reason or authority. Under these decisions, it is evident that the law vests a reasonable discretion in the federal courts to judge in any f^iven case how far they will feel bound to follow the prac- tice or decisions of the state courts. There can be no doubt that the rule upon this question of practice prevailing in the Illinois state courts is contrary to the general rule on the subject in this country, as well as in England. There is no more reason for requiring a plea in abatement and a jury trial to test the question of a sufficient service of a summons than there would l)e to require the same proceed- ing, including a jurj^ trial, in ail cases where now a motion is held to be the proper remedy. The constitutional right to a jury trial obtains whenever there is any question at issue involving the life, liberty, or property of the citizen. But a motion to quash a service of summons, or any other process or order, for insufficiency in the service, involves no such substantial right. The setting aside of service T. p.— 8 114 Tbial Peacticb [Chap. 3 does not affect the writ or the status of the action in court. Another service can be made, and the action proceed. If the original process were exhausted, a new summons could be issued. If the objection were to the writ itself, a plea in abatement would be the proper remedy, the office of which is to give the plaintiff a better writ. 1 Chitty PI. 446-457. But here the plaintiff still has his writ. The order only sets aside the service, as being un- warranted and insufficient in law. No substantial right is affected by the decision. There are many matters pend- ing in the progress of a case which are daily determined upon motion that are much more important in affecting substantial rights than a motion to set aside an irregular service of process. Take, for instance, the motion for a new trial upon newly discovered evidence after the plaintiff has recovered a substantial verdict. The court, in its dis- cretion, may set aside the verdict upon a motion. Whether the plaintiff will ever be able to obtain another is uncertain, and yet no one would think of objecting to trying such a question before the court upon motion supported and op- posed by affidavits. The practice in the United States Circuit Court for this circuit was fairly well established by precedent when this action was begun. So that if the defendant had resorted to a plea in abatement, instead of making a motion, he would have subjected himself to the criticism that he was departing from the usual practice adopted in such cases. In Fairhank & Co. v. Cincinnati, N. 0. S T. P. Ry. Co., supra, [9 U. S. App. 212, 4 C. C. A. 403, 54 Fed. 420] a sim- ilar motion was made and heard before Judge Blodgett at the circuit without question as to the propriety of the prac- tice, and an order made quashing the service. Judge Blod- gett delivered an opinion, holding the service insufficient, which was affirmed by this court, where no question was made as to the proper practice being by motion. In Ameri- can Cereal Co. v. Eli Pettljohn Cereal Co., 70 Fed. 276, the same practice was adopted, and the service set aside upon motion; Judge Showalter delivering an opinion justifying the practice, and giving good and sufficient reason for it, as follows : "Tlie determining consideration is that the matter at issue, however it may result, will not end the suit. If Sec. 2] Appearance. 115 found against the defendant, tlie defendant is in court and must plead ; if in favor of the defendant, the return of the writ is vacated or quashed, and the suit remains pending; whereas a plea, either in abatement or in bar, if made out by proofs, puts an end to the proceeding. The view that a motion to be determined upon affidavits is the proper prac- tice in such cases is sustained by English decisions," — citing Hemp v. Warren, 2 Dowl. (N. S.) 758; Preston v. Lamont, 1 Exch. Div. 361. In the last of the above-named English cases, Amphlett, B., in a concurring opinion, gives the reason for having the question of service determined summarily upon mo- tion, instead of by plea, as follows : ''The decision of the judge at chambers can be contested on appeal, and, if necessary, in the house of lords. There is convenience in this, because it is a speedy and inexpen- sive mode of determining that question before any expense is incurred upon the merits of the action, whereas, if the question may be raised by plea, all the expenses of the ac- tion may be thrown away * * * Convenience and jus- tice, I think, require that this question should not be the subject of a plea." In the state courts in this country, while some question has been made as to the conclusiveness of the sheriff's return, it has generally been held, that it is only prima facie true, and that the truth or falsity of the return may be determined upon motion supported by affidavit. The rule in England at the common law was that the sheriff's return was conclusive and could not be disputed, and the defendant's only remedy was by an action against the sheriff for a false return. But in this country, where we have so many different codes of practice, and so many kinds of substituted service, such a rule would be incon- venient, unjust, and impracticable. Upon examination of a great many American cases, we believe the general rule in this country, with some dissenting cases like those in Illinois, to be this: That the sheriff's return stands in the first instance as the affidavit of the sheriff, but is subject to be disputed by affidavits on the part of the defendant showing to the satisfaction of the court, upon motion to quash, that the return is not true in point of fact, or, as in the case at bar, is insufficient in law. Carr v. Bank, 16 Wis. 116 Tkial Peactice [Chap. 3 50; Bond v. Wilson, 8 Kan. 228; Crosby v. Fanner, 39 Minn. 305, 40 N. W. 71; Walker v. Lutz, 14 Neb. 274, 15 N. W. 352 ; Wendell v. Mugridge, 19 N. H. 109 ; Stout v. i^aiZ- roa^ Co., 3 McCrary 1, 8 Fed. 794; Van Rensselaer v. Chad- luick, 7 How. Prac. 297; Wallis v. Lo^^, 15 How. Prac. 567; Watson V. Watson, 6 Conn. 334; i^oi(;e v. Water Co., 10 Cal. 442. In this case the sheriff returned that he had made service upon U. L. Truitt, Northwestern passenger agent of the defendant. If this return had been true, the service would have been good. But it is very clear from the affidavits filed that it was not true. Truitt was not Northwestern passenger agent of the com^Dany, or any other agent, but a mere employe for a certain purpose. The sheriff was mistaken, and there was no need to resort to the clumsy method of a plea in abatement and a trial by jury to ascertain this fact. It has been suggested that, allowing the practice by mo- tion to be correct and preferable, still, in analogy to the practice under a plea in abatement of giving the plaintiff a better writ, the defendant should state in his affidavits on whom the summons may be properly served, or, if there be no such person in the district, to state that fact. No authority is cited for such a rule, and we have searched in vain for a precedent to warrant it. * * * There is no suggestion in any of the adjudicated cases that this doc- trine has any application to a motion to set aside service. It only applies to a plea in abatement where the objection is to the writ itself. * * * The judgment of the circuit court is affirmed. [Dissenting opinion filed by Woods, Circuit Judge.] GREER V. YOUNG. Supreme Court of Illinois. 1887, i 120 Illinois, 184. Mr. Justice Mulkey delivered the opinion of the Court : Robert C. Greer, on the 23rd of July, 1884, commenced an action of assumpsit in the Superior Court of Cook county, Sec. 2] Appeaeance. 117 against George Young. A summons in the usual form, returnable on the first Monday of the following month, was served on the defendant, and due return thereof made by the sheriff of Cook county, on the same day. On the 4th of August, 1884, the plaintiff filed in the cause a declara- tion in the usual form, containing the common counts only. On the 18th of the same month, the defendant filed, by his attorneys a special appearance in the case, "for the pur- pose, only, of moving to quash the writ of summons, and dismiss the suit." On the 19th of the same month the de- fendant filed a written motion in the cause, "to quash the service of the writ of summons," for the reason, as is al- leged in the motion, "that the defendant is a non-resident of the State of Illinois, and at the time of said service was within the jurisdiction of this court for the purpose of at- tending legal proceedings, and for no other purpose." This motion was supported by an affidavit of the defendant, showing, in substance, that both the plaintiff and the de- fendant were residents of Missouri; that the plaintiff, prior to the commencement of the present suit, had brought an action against the defendant, in the circuit court of Lafayette county, in the State of Missouri, "for the identi- cal cause of action for which this suit is brought," and that said former suit was still pending and undetermined in the State of Missouri; that in defending said last men- tioned suit, it became necessary to take depositions in Chi- cago, and that, under the instructions of his attorneys, he went to Chicago for the sole purpose of assisting his said attorneys in taking said depositions; that shortly after the taking of the same, and while in the office of his at- torneys, consulting with them as to the probable effect of the depositions, the sheriff made service of the summons upon him in the present case. Upon consideration of the facts set forth in the affidavit, the Superior Court sustained the motion to quash the ser- vice, and entered an order dismissing the suit, which was affirmed by the Appellate Court for the First District. The case is brought here by plaintiff in error on a certificate of the Appellate Court, and a reversal of the judgment of affirmance is asked on a number of grounds. It is first contended, that as the defence was of a dilatory character, it should have been made at the verv earliest 118 Trial Peactice [Chap. 3 opportunity, which it is claimed was not done. Of the cor- rectness of the rule of law suggested there can be no ques- tion; but whether the motion was made at the earliest op- portunity, is a question of fact, that may be materially affected by the rules of the court where the action was pending, of which this court can not take judicial notice, and as all presumptions are to be indulged in favor of the correctness of the rulings of that court, in the absence of anything to the contrary, we are not fully prepared to say that the motion was not made in time, though it must be confessed the objection is not without force. However this may be, we prefer to place our decision upon other grounds. The most important question in the case, is whether the circumstances shown, even if properly pleaded in due time, warranted the court in setting aside the service of the pro- cess and dismissing the suit. There is clearly no ground for the claim that the plaintiff or his counsel had any agency in inducing the defendant to leave Missouri and go to Chicago, for the purpose of having process served on him in the latter place, — in other words, it is not claimed, nor is there any ground for the claim, that service of pro- cess upon the defendant was obtained by any artifice, trick, or fraud, on the part of the plaintiff, his counsel, or any one else acting in his interest. The question then arises, can one who voluntarily leaves his own State, and comes to this, for the purpose of taking depositions before a notary, be lawfully served, by reading, with civil process, while here on such business? The fact that the plaintiff had sued the defendant in Mis- souri, on the same cause of action, we do not regard as hav- ing any bearing on the question, as it is the settled law in this State, tliat the pendency of a suit in another State can not be pleaded in abatement of a suit brought here on the same cause of action. {McJilton v. Love, 13 111. 486; Allen V. Watt, 69 id. 655.) But even where the pendency of a suit in a sister State can be made available as a defence at all it must, by all the authorities, be formally pleaded in abate- ment, which was not done here. Tlie riglit of the plaintiff then, to sue the defendant here, was the same as that of any one else having a claim against him. The ruling of the court, therefore, must be rested entirely upon the privi- Sec. 2] Appeaeance. 119 lege or immunity which the common law has, from a very early period, extended to parties and witnesses in a lawsuit while attending court, including going and coming. This rule is found in all the text books, and, in most of the cases we have examined, is expressly limited to cases of arrest on civil process. 1 Tidd, (1st Am. ed.) 174; 3 Blackstone, side page 289; 1 Greenleaf on Evidence, sees. 316, 317; 2 Bouvier's Law Die. 284. The rule as laid down in the above works, is fully sus- tained by an almost unbroken current of authority, as is fully shown by the following cases : Meckius v. Smith, 1 H. Blac. 635; Kinder v. Williams, 4 Term Rep. 378; Arding v. Floiver, 8 id. 534; Spence v. Bert, 3 East, 89; Blore v. Booth, 3 Ves. 350 ; Ex parte Hawkins, 4 id. 691 ; Ex parte King, 7 id. 313 ; Sidgier v. Birch, 9 id. 69 ; Ex parte Jackson, 15 id. 117. The above authorities are also valuable as throwing light upon the procedure or practice in cases of this kind. The arrest of a party to a suit, by civil process, being regarded as a breach of the defendant's privilege, the usual course was to appear in the cause in which the arrest was made, and procure a rule against the plaintiff and his attorney to show cause why the defendant should not be discharged out of custody by reason of his alleged privilege, upon his filing common bail. The rule to show cause was always supported by affidavit setting up the fact of the arrest, and attendant circumstances. On the hearing, the rule, depend- ing upon the proofs, was either made absolute or dis- charged. If the former, the defendant, upon filing common or nominal bail, was discharged, and if he had given special bail, the bail bond was ordered to be surrendered and can- celled. Nevertheless, the defendant was in court, and was bound to answer the action. While, as we have just seen, the exemption, by the gen- eral current of authority, applies only to arrests, yet in some of the States, notably New York, it has been extended to cases of service by summons, merely, particularly where the defendant is a non-resident. {Person v. Grier, 66 N .Y. 124; Mathews v. Tufts, 87 id. 568.) No sufficient reason is perceived for departing from the general current of au- thority on this subject, merely because some two or throe of the States have, through perhaps a spirit of comity, more 120 Teial Peactice [Chap. 3 than anything else seen proper to do so. The mere service of a summons upon a non-resident, when in another State for the purpose of taking depositions to be used in an action to which he is a party in his own State, imposes no greater hardship upon him than to be served with process out of his own State when attending to any other kind of business. In either case, he is usually afforded ample time to prepare his defence, if he has any. Parties thus circumstanced have no difficulty in getting a temporary postponement or continuance of the causes, when necessary to the attain- ment of justice, or to avert any serious loss or inconven- ience. It is clear that such a case does not come within the reasons of the rule as laid down in the authorities above cited. But outside of this consideration, it is essential that the party invoking the protection of the rule should come pre- pared to show that he is clearly within it. The rule, as well as the principle on which it is founded, is thus expressed by Tidd, supra: "The parties to a suit, and their witness- es, are, for the sake of public justice, protected from arrest in coming to, attending upon and returning from the court, — or, as it is usually termed, eundo morando et redeundo." The term "court," within the meaning of the rule, has received a very liberal construction. Greenleaf, in section 317, above referred to, thus summarizes the result of the authorities on this subject: "This privilege is granted in all cases where the attendance of the party or witness is given in any matter pending before a lawful tribunal having jurisdiction of the cause. Thus, it has been extended to a party attending on an arbitration under a rule of court; or on the execution of a writ of inquiry; to a bankrupt and witnesses attending before the commissioners, on notice; and to a witness attending before a magistrate to give his deposition, under an order of court." To the last instance, given by the author may be added the case of a party, or his witnesses, appearing before a master to give or take testimony, which would fall within the same principle. Where a master, magistrate or other person takes evidence in a cause, under an order of the court wherein the cause is pending, such officer or other person is the mere instrument of the court, and is subject to its orders. In legal effect, such evidence is taken be- Sec. 2] Appearance. 121 fore the court. But a notary public, when taking deposi- tions in one State to be used in a suit pending in another, can in no sense be regarded as an instrument or agency of the court wherein such suit is pending. Neither the notary, nor any of the parties appearing before him, are answer- able to the court for anything said or done while there, the vvhole matter being outside of its jurisdiction. Not so with a master, magistrate or other person taking evidence under an order of the court within its jurisdiction. In such case, all parties appearing before him for such purpose, if wil- fully guilty of any improper conduct, might summarily be attached, brought before the court, and punished as for a contempt in its presence. In taking the depositions, the notary performed purely ministerial functions. He could decide no questions or determine any matter affecting the rights of the parties to the suit, nor was he, as we have just seen, connected with any court or other tribunal having the power to do so. Hence he could in no sense, in the lan- guage of Greenleaf, be said to have ''jurisdiction of the cause," and therefore he does not fall within the category of any of the tribunals contemplated by the rule in ques- tion. Looking at the action of the trial court from another point of view, we do not think it in harmony with the de- cisions of this court. The case was disposed of upon a sim- ple motion to quash the service. The writ, the service and return, as they appear of record, were in strict conformity with law, but it was sought to assail the validity of the service on account of certain matters alleged to exist dehors the record, and set forth by wa.y of affidavit. This we do not think can be done. Had the defendant been arrested, and it was desired to raise the question of privilege for the purpose of obtaining his discharge, then, in conformity with the well settled practice in such cases, a rule nisi should have been taken against the plaintiff, as heretofore indicated, and the question would then properly have been heard on affi- davit, as was done in this case. But no such case as the one suggested was before the court. There was simply an attack upon the service, founded upon extrinsic facts. Whatever may be the pi^ctice in States where the code system pre- vails, it is clear the course pursued was not proper. Here, the common law practice prevails generally, except in so far 122 Trial Practice [Chap, o as it has been modified by legislative enactment, or per- haps, in some instances, by long and uniform custom; but we are aware of no change in the practice, by legislation or otherwise, so far as the procedure in cases of this kind is concerned. The rule, as recognized here in repeated decis- ions, and which is in strict accord with the common law practice, is, that any defect in the writ, its service or re- turn, which is apparent from an inspection of the record, may properly be taken advantage of by motion, but where the objection is founded upon extrinsic facts the matter must be pleaded in abatement, so that an issue may be made thereon, and tried, if desired, by a jury, like any other issue of fact. If the plaintiff is successful upon such issue, the judgment is quod recuperet. It is therefore to him a valuable right to have the issue thus made up and tried. To permit the defendant to try an issue of this kind on affidavit, as was done, gives him a decided advantage, for if he fails, his motion would be simply overruled, and he would still have a right to a trial on the merits. To permit a party to thus speculate on the chance of succeeding on a purely technical ground, without incurring any risk, and without any compensation to the plaintiff in case of failure, is contrary to the spirit of the common law, and is in direct conflict with the decisions of this court. Holloivay v. Free- man, 22 111. 197 ; McNah v. Bennett, QQ id. 157 ; Union Na- tional Bank v. First National Bank, 90 id. 56; Rubel v. Beaver Falls Cutlery Co., 22 Fed. Rep. 282 ; Holton v. Daly, 106 111. 131; Hearsay v. Bradbury, 9 Mass. 96; Bean v. Parker, 17 id. 601; Guild v. Richarson, 6 Pick. 368; Char- lotte V. Webb, 7 Vt. 48; Lilkird v. Lillard, 5 B. Mon. 340. For the reasons stated, the judgments of the courts be- low are reversed, and the cause remanded to the Superior Court of Cook county, for further proceedings in conform- ity with the views here expressed. Judgment reversed. Sec. 3] Appearance. 123 Section 3. Waiver of Special Appearance. NEOSHO VALLEY INVESTMENT CO. V. CORNELL. Supreme Court of Kansas. 1899, 60 Kansas, 282. The opinion of the court was delivered by Smith, J. : On January 15, 1897, judgment was rendered in the dis- trict court of Bourbon county in favor of plaintiffs below, Carrie A. Cornell and others, against the Neosho Valley In- vestment Company, for the sum of $5665, with interest at the rate of ten per cent, per annum and costs, declaring the same to be a first lien upon certain real estate located in said county, and directing foreclosure. Upon the summons in the cause was indorsed the following return: ''Received this summons May 17, 1896; executed it by de- livering to the Neosho Valley Investment Company, by de- livering a true and certified copy of the within summons to L. M. Bedell, its cashier and treasurer; the president or other chief officer not found in mv countv. May 19, 1896. 'M. W. Bennett, ''Sheriff Labette County, Kansas." The judgment was rendered by default, the investment company making no appearance. On April 19, 1897, the investment company filed its petition for a new trial of the foreclosure case, under section 606 of chapter 95, General Statutes of 1897 (Gen. Stat. 1889, §4671), wherein it at- tacked the service of summons in the cause, and alleged that L. M. Bedell, mentioned in the return of the sheriff, was not during the month of May, 1896, nor had he ever l)een, the cashier of the company, and that the vice-presi- dent, secretary and treasurer of the company, during the month of May, 1896, had resided in the city of Chetopa, in Labette county, Kansas. Coupled with this attack on the service was an allegation in the petition for a new trial in substance as follows : * * that the judgment was taken in fraud of the rights of the company. * * * * [Proceedings under this petition for a new trial were apparently dropped, and when the sheriff was about to sell 124 Trl\l Peactice [Chap. 3 (he land upon which the judgment was a lien, this action was commenced by a petition alleging the same facts as the petition for a new trial, an injunction being prayed for. Trial was had and judgment went against the company.]^ Our view of this case renders it unnecessary to consider the questions raised on the sufficiency of the service of the summons. That question has been put past our considera- tion by the act of the plaintiff in error. In the petition for a new trial the investment company was not content with an attack upon the service of summons only, but sought to impeach the validity of the judgment on other grounds not jurisdictional in character. This appeal to the court for relief against the judgment, for reasons other than that the court failed to obtain jurisdiction over the person of the party defendant, involved the admission that the judg- ment was valid, and the plaintiff in error by this act treated it as such. In one paragraph of the petition for a new trial it is alleged that the court was without jurisdiction by reason of a fatal defect in the service. In another para- graph the judgment is attacked on the ground that there was no consider.ation for the note sued on, etc. In Adolph Cohen v. C. B. Trowbridge, 6 Kan. 385, it is held that the filing of a motion to set aside a judgment, based partly on lack of jurisdiction and partly on error in the judgment itself, is a general appearance. (2 Encycl. PI. & Pr. 632). Where a party voluntarily appears in court it is unnecessary to inquire what, if any, process has been served upon him. {Carr v. Catlin, 13 Kan. 393.) In Meix- ell V. Kirkpatrick, 29 Kan. 679, a party filed a demurrer to the petition upon several grounds, some jurisdictional and some not, claiming that the court had no jurisdiction of the person of tlie defendant, that the petition did not state facts constituting any cause of action, and that several causes of action were improperly joined. This demurrer was sus- tained on the ground that several causes of action were im- ])roperly joined. Justice Brewer, speaking for the court, said : "When served with the summons he (the defendant) ap- peared and filed a demurrer, which, while it alleged a lack of jurisdiction, presented also a number of other defenses, and defenses on the merits. Such plea, by the prior adju iMatter within brackets is a condensation by the editor. Sec. 3] Appeaeance. 125 dications of this court, was equivalent to an appearance. A party who denies the jurisdiction of a court over his person must first present this single question. He may not min- gle with his plea to the jurisdiction other pleas which con- cede jurisdiction, and thereafter insist that there was error in overruling his plea to the jurisdiction. As heretofore stated, the defendant by his demurrer raised a number of questions other than those which were jurisdictional, and invoked the judgment of the court thereon. By such other ]ileas he submitted himself and his rights to the jurisdic- tion of the court, and can no longer be heard to say that it had no jurisdiction." The plaintiff in error earnestly contends that this peti- tion for a new trial, being filed after judgment, cannot be construed into an entry of appearance in the cause, for the reason that the judgment was originally based upon void service and was wholly inoperative to affect any rights or ]3roperty of the defendant below. This contention cannot be sustained under the authorities. The case of Life Asso- ciation V. Lemke, 40 Kan. 142, 19 Pac. 337, is substantially similar in its facts to the case at bar. There, after judg- ment, defendant filed a motion on jurisdictional and non- jurisdictional grounds to set the judgment aside, and it was held that he entered a general appearance to the action. The latest expression of this court is found in Frazier v. Douglass, 57 Kan. 809, 48 Pac. 36. Douglass was served with a summons, which he alleged to be void, and moved the court so to rule. Coupled with this motion was a sworn statement, in which he alleged ''that he is the owner in fee, and has the valid title to the land described in the said plaintiff's petition filed in said cause, and is in the peace- able and rightful possession of the same, and that said plaintiff has no right or title thereto or to its possession ; and further says that the said land is of great value, to- wit, of the value of $3000." In the opinion in that case it is stated: "As will be readily seen, the plaintiff [defendant] sets up matters which were non-jurisdictional and had no bearing upon the motion he had made. ^Vliere a defendant alleges and submits to the court matters that are non-jurisdictional he recognizes the general jurisdiction of the court and waives all irregularities which may have intervened in 126 Tkial Peactice [Chap. :' bringing him into court. Whatever may have been the pur- pose of the defendant in alleging these matters, it is clear that they do not relate to the question of service or of juris- diction. Although not entirely formal, the averments relate to the merits of the controversy, and amount to a complete answer to the allegations of the petition. When the defend- ant set up matters and submitted questions which were not jurisdictional, he submitted himself and his rights to the jurisdiction of the court, and he cannot be heard to say that it had no jurisdiction." For the reasons above stated, the judgment of the district court will be affirmed. LOUISVILLE HOME TELEPHONE CO. V. BEELER'S ADM'X. Court of Appeals of Kentucky. 1907, 125 Kentucky, 366. Opinion of the Court by Special Judge Clay — Reversing. This action was instituted by Maggie Beeler, administra- trix of her deceased husband, E. C. Beeler, against the Cumberland Telephone & Telegraph Company and the Louisville Home Telephone Company, to recover damages for the death of her husband, which occurred in Louisville, Jefferson county, Ky., and which is alleged to have re- sulted from the joint negligence of the two companies. In addition to the allegations of negligence, the petition states that decedent was a resident of Bullitt county, and that each of the defendants was a common carrier, and passed into Bullitt county. Summons was served upon the Home Telephone Company by delivering a true copy thereof to its president, and also by delivering copies to parties who were stated in the return to be agents of said company, re- siding in Bullitt county. * * * Xhe defendant Louisville Home Teleplione Company filed an answer in three para- graphs. In the first paragraph defendant raised the ques- tion of jurisdiction by setting forth that its residence was in Jefferson county, that it did not have any office or Sec. 3] Appearance. 127 agent in Bullitt county, and that it did not pass into said county. In the second and third paragraphs defendant, without waiving its objection to the jurisdiction of the court, pleaded to the merits of the case. * * * [The Bullitt Circuit Court held that the plea to the merits was a waiver of the plea to the jurisdiction ; a trial was had, and verdict and judgment were rendered against the Home Telephone Company. From an order overruling its motion for a new trial the Company appeals.]^ At the outset there is presented for our consideration the question, did the Bullitt circuit court have jurisdiction of the appellant, Louisville Home Telephone Company? In passing upon this point, we should first discuss the ques- tion whether or not appellant entered its appearance by fil- ing its answer both to the jurisdiction and to the mer- its. * * * Among the cases relied upon by appellee is the case of City of Covington v. Limerick, 107 Ky. 680, 19 Ky. Law Rep. 330, 39 S. W. 836, in which the court, after holding that the circuit court undoubtedly had jurisdiction over the person of the defendant, added the following: "But, in addition to the plea of jurisdiction, the answer of the de- fendant goes to the merits of the controversy, and is a waiver of any objection to the jurisdiction over the person of the defendant. This is the common law doctrine, and was held to be the law in this State in the case of Baker v. L. £ N. R. R. Co., 4 Bush 623." In the case of Baker v. L. & N. R. R. Co., 4 Bush 623, we find, however, that the defendant first answered to the merits without suggesting any objection to the jurisdiction, and trial was then had, resulting in a verdict which was set aside and a new trial ordered. Next came a hung jury. About a year and a half thereafter the defendant at- tempted to plead to the jurisdiction of the court. The court very properly held that its appearance had been en- tered long before. In the case of Guenther & Bros. v. American Steel Hoop Company, 25 Ky. Law Rep. 795, 116 Ky. 419, 76 S. W. 480, the question involved was the construction and validity of subsection 6 of section 51 of the Code, authorizing service upon the agent of a non-resident doing business in this iThe matter inclosed in brackets has been condensed by the editor. 128 Trial Practice [Chap. 3 State. In that case the motion to quash the process was overruled. The defendant did not follow the practice adop- ted by appellant in the case under consideration. He did not file an answer as provided by section 118 of the Civil Code; but, along with the denial of other facts, simply put in issue the allegation of the petition that he was a non- resident of the State. Under the circumstances this court Jield that, having gone into the merits of the case as he did by his answer, he had entered his appearance to the action. ********** In favor of the view that a defendant who files an answer to the jurisdiction, and in the same answer, without waiving the question of jurisdiction, pleads to the merits, does not thereby enter his appearance, we find the following cases: First, the case of Meguiar v. Rudy, 7 Bush 432, in which a demurrer, as in the case at bar, to the jurisdiction of the court was first filed, but overruled because the defect did not appear on the face of the petition. The defendant then filed an answer in which he first pleaded to the jurisdiction of the court, and then pleaded to the merits, including a counterclaim. The circuit court tried the case on all the issues raised and came to the conclusion that it had no jurisdiction over the person of defendant. Judgment was then entered in his favor, and, upon appeal to this court, the judgment was affirmed. Now, in the case under consideration, defense could not be made by demurrer to the jurisdiction because the peti- tion stated facts sufficient to show jurisdiction. Nor could defense be made by motion to quash the summons, because, if the court had jurisdiction at all, the summons had been served upon the proper officer, the president of the corpo- ration. Under the circumstances, therefore, the only kind of a defense that could be made by appellant, Louisville Home Telephone Company, was by answer. This method is provided for by section 118, which is as follows: *'A party may, by an answer or other proper pleading, make any of the objections mentioned in section 92, the existence of which is not shown by the pleadings of his adversary; a faihue so to do is a waiver of any of said objections ex- cept that to the jurisdiction of the court of the subject of the action." An answer heing the only kind of defensive Sec. 3] Appeakance. 1^0 pleading that could be filed, the question arises, what sort of an answer should be filed? Should a party be required to file first an answer to the jurisdiction, and afterwards an answer to the merits, or should he have the right to file ■^'Oth at the same time? There is certainly no authority in the Code for filing one answer and then another answer : any answer subsequent to the original answer must be an amended answer. While in every case, no doubt, the trial court would permit an answer to the merits to be filed after an answer to the jurisdiction had been passed upon, yet the right to file an amended answer has always been held to be a matter within the sound discretion of the court. That being the case, would it not be the better practice to join all defenses in the same answer? There is certainly noth- ing in section 118 to the contrary. All that that section requires is that the party shall not answer to the merits without first making objection to the jurisdiction of the court. This view is not without authority to sustain it. Maxwell on Code Pleading, p. 394, speaks as follews: "At- common law pleas must be pleaded in their order; that is, dilatory pleas must be made and disposed of before a plea in bar could be determined. Under the code, however, all the defenses which a defendant may have are to be pleaded at one time, and in one answer. Therefore, matter in abate ment may be joined with a plea to the merits." ********** The New York court of appeals has taken the same view. In Siveet v. Tuttle, 14 N. Y. 465, we have the following: ''The first question is whether a defendant along with other defenses may set up in his answer the non-joinder of other parties who ought to have been sued with him. Under the former practice the non-joinder of defendants could be pleaded only in abatement, and could not be joined with a plea in bar; but, under the Code, there is no classification of answers or defenses corresponding with the distinction between pleas in abatement and in bar. The distinction is entirely gone, with the system to which it belongs. The defendant now answers but once, and he ma}^ set forth as manv defenses as he thinks he has, but must state them separately* * * * * " And in the case of Little v. Harrington, 71 Mo. 390, we T. P— ^ ' 130 Trial Practice [Chap. 3 find the following: ''It is evident from these statutory pro- visions that only one answer is contemplated, and this to contain whatever defense or defenses the defendant may have, thus dispensing with the common law rule that a plea in bar waives all dilatory pleas or pleas not going to the merits." And the same court, in the case of Johnson v. Detrick, 152 Mo. 243, 53 S. W. 891, says: "A plea to the jurisdic- tion, even when coupled with a plea to the merits, is permis- sible under our Code; and the latter plea does not, as at common law, waive the former." In view of the foregoing authorities, * * we have reached the conclusion that a defendant may in one answer plead both to the jurisdiction and to the merits. It necessarily follows that a plea to the merits that recites that the de- fendant does not waive his objection to the jurisdiction of the court is not a waiver of the plea of the jurisdiction. We, therefore, hold that appellant's answer did not enter its appearance to this action. * * * Judgment reversed, and cause remanded for a new trial consistent with this opinion. LINTON V. HEYE. Supreme Court of Nebraska, 1903. 69 Nebraska, 450. Albert, C. This is an action to quiet the title to several tracts of land, each plaintiff asserting title to a separate tract. * * * Service on the defendants was had by publica- tion. They appeared specially and objected to the jurisdic- tion of the court over their persons, on the grounds that the affidavit for service by publication and the notice, published in pursuance thereof, were defective in certain particulars, and that such notice was not published for the period re- quired by law. The objections were overruled, and the de- fendants answered. [In their answer defendants again objected to the juris- Sec. 3] Trial Practice 131 diction of the court, and also pleaded a counterclaim.]^ * * * A trial to the court resulted in a finding and decree for the plaintiffs. The defendants prosecute error. It is first urged that the court had no jurisdiction over the defendants. The general rule, settled by a long line of authorities, is, that if a defendant intends to rely on a want of jurisdiction over his person, he must appear, if at all, for the sole purpose of objecting to the jurisdiction of the court. If he appear for another purpose, such ap- pearance is general, and a waiver of all defects in the orig- inal process, and an acknowledgment of the complete juris- diction of the court in the action. Bankers Life Ins. Co. v. Bobbins, 59 Neb. 170 ; Omaha Loan & Trust Co. v. Knight, 50 Neb. 342; Leake v. Gallogly, 34 Neb. 857; South Omaha Nat. Bank v. Fanners S Merchants Nat. Bank, 4:5 Neb. 29; Dryfus v. Moline, Milburn & Stoddard Co., 43 Neb. 233; Hurlburt v. Palmer, 39 Neb. 158, 173. An exception to this rule is, that,, where the lack of jurisdiction does not appear on the face of the record, the defendant may unite a plea to the jurisdiction with his other defenses to the action, without waiving his rights to insist on the lack of jurisdic- tion of the court. Hurlburt v. Palmer, supra. But, we think, such exception must be limited to cases where the plea to the jurisdiction is joined only with such defenses as go to defeat a recovery by the plaintiff, and should not be ex- tended to cases where, as in this case, such plea is joined with a cross petition, or counter-claim, which necessitates 1 trial on the merits of the issues tendered by the peti- tion. Such pleading, though denominated an answer, con- tains all the essential elements of a petition or complaint, and might be made the basis of an independent action and decree against the plaintiffs. It puts it beyond the lawful power of the court to dispose of the case, by a finding on t!ie issues tendered by the plea to the jurisdiction, and compels an adjudication on the merits. The defendants, having thus compelled an adjudication on the merits, can not now be heard to question the authority of the court whose jurisdiction they thus invoked. ********** By the Court: For the reasons stated in the foregoing iThe portion in brackets has been condensed by the editor. 132 Trial Practice [Chap. 3 opinion, tlie decree of the district court is affirmed.^ lOn appeal to the Supreme Court of the United States, this case was aflBrmed. Linton v. Heye, 194 U. S. 628. The same rule was announced by the Supreme Court of the United States in Merchants' Heat and Light Co. V. J. B. Clow & Sons, (1906) 204 U. S. 286, where defendant filed a plea of set-off, under the Illinois practice, after saving an exception to an order over- ruling its special appearance, though it was conceded that a purely defensive plea would not have waived defendant 's right to rely upon its objection to the jurisdiction of the court over its person. WABASH WESTERN RAILWAY V. BROW. Supreme Court of the United States. 1896. 164 United States, 271. Joseph Brow commenced suit in the Circuit Court of Wayne County, Michigan, against the Wabash Western Railway to recover the sum of twenty thousand dollars for personal injuries, caused, as he alleged, by defendant's negligence, by the service, September 24, 1892, of a declara- tion and notice to appear and plead within twenty days, on Fred J. Hill, as agent of the company, which declaration and notice were subsequently filed in that court. On the 7th of October defendant filed its petition and bond for removal in that court, and an order accepting said bond and removing the cause to the Circuit court of the United States for the Eastern District of Michigan, and directing the transmission of a transcript of record, was entered. ********** The record having been filed in the Circuit Court of the United States for the Eastern District of Michigan, a mo- tion to set aside the declaration and rule to plead was made in the cause in these words and figures: ''And now comes Mie Wabash Western Railway, defendant (appearing spec- ially for the purpose of this motion), and moves the court, upon the files and records of the court in this cause, and upon the affidavit of Fred J. Hill, filed and served with this motion, to set aside the service of the declaration and rule to plead in this cause, and to dismiss the same for want of •in-is(li(*tion of the person of the defendant in the state court from which this cause was removed, and in this Sec. 3] Appearance 133 court." The affidavit was to the effect that Hill, on Septem- ber 24, 1892, was the freight agent of "the Wabash Rail- road Company, a corporation wliich owns and operates a railroad from Detroit to the Michigan state line, and was not an agent of the Wabash Western Railway, defendant in this suit;" ***** Mr. Chief Justice Fuller, after stating the case, deliv- ered the opinion of the court. This was not a proceeding in rem or quasi in rem, but a personal action brought in the Circuit Court of Wayne county, Michigan, against a corporation wliich was neither incorporated nor did business, nor had any agent or prop- erty, within the state of Michigan; and service of declara- tion and rule to plead was made on an individual who was not, in any respect, an officer or agent of the corporation. The state court, therefor, acquired no jurisdiction over the person of the defendant by the service. Did the applica- tion for removal amount to such an appearance as con- ceded jurisdiction over the person? We have already decided that when in a petition for removal it is expresed that the defendant appears specially and for the sole purpose of presenting the petition, the ap- plication cannot be treated as submitting the defendant to the jurisdiction of the state court for any other purpose. Goldey v. Morning News, 156 U. S. 518. The question "how far a petition for removal, in general terms, without specifying and restricting the purpose of the defendant's appearance in the state court, might be considered, like a general appearance, as a waiver of any objection to the jurisdiction of the court over the person of the defendant," was not required to be determined, and was, therefor, reserved ; but we think that the line of rea- soning in that case and in the preceding case of Martin v. Baltimore & Ohio Railroad, 151 U. S. 673, compels the same conclusion on the question as presented in the case before us. In Goldey v. Morning Neics, Mr. Justice Gray, speaking for the court, observed: "The theory that a defendant, by filing in the state court a petition for removal into the Cir- cuit Court of the United States, necessarily waives the riorht to insist that for anv reason the state court had not 134 Trial Practice [Chap. 3 acquired jurisdiction of his person, is inconsistent with the terms, as well as with the spirit of the existing act of Con- gress regulating removals from the court of a State into the Circuit Court of the United States. The jurisdiction of the Circuit Court of the United States depends upon the acts passed by Congress pursuant to the power conferred upon it by the Constitution of the United States, and can- not be enlarged or abridged by any statute of a State. The legislature or the judiciary of a State can neither defeat the right given by a constitutional act of congress to re- move a case from a court of the State into the Circuit Court of the United States, nor limit the effect of such re- moval * * * Although the suit must be actually pending in the state court before it can be removed, its removal into the Circuit Court of the United States does not admit that it was rightfully pending in the state court, or that the defendant could have been compelled to answer therein ; but enables the defendant to avail himself, in the Circuit Court of the United States, of any and every defense, duly and seasonably reserved and pleaded, to the action 'in the same manner as if it had been originally commenced in said Circuit Court.' " 156 U. S. 523, 525. Want of jurisdiction over the person is one of these defenses, and, to use the language of Judge Drummond in Atchison v. Morris, 11 Fed. Rep. 582, we regard it as not open to doubt that ''the party has a right to the opin ion of the Federal court on every question that may arise in the case, not only in relation to the pleadings and merits, but to the service of process; and it would be contrary to the manifest intent of Congress to hold that a party, who has the right to remove a cause, is foreclosed as to any question which the Federal court can be called upon, under the law, to decide." Moreover the petition does not invoke the aid of the court touching relief only grantable in the exercise of juris- diction of the person. The statute imposes the duty on the state court, on the filing of the petition and bond, "to accept such petition and bond and proceed no further in such suit," and, if the cause be removable, an order of the state court denying the application is ineffectual, for the Sec. 3] Appeaeance 135 petitioner may, notwithstanding, file a copy of the record in the Circuit Court and that court must proceed in the cause. ********** It is conceded that if defendant had stated that it ap- peared specially for the purpose of making the application, that would have been su;licient; and yet when the purpose for which the applicant comes into the state court is the single purpose oi removing the cause, and what he does has no relation to anything else, it is not apparent why he should be called in to repeat that this is his sole purpose; and when removal is had before any step is taken in the case, as the statute provides that ' ' the cause shall then pro- ceed in the same manner as if it had been originally com- menced in said Circuit Court," it seems to us that it cannot be successfully denied that e^ery question is open for de- termination in the Circuit Court, as we have, indeed, al- ready decided. ********** We are of opinion that the filing of a petition for removal does not amount to a general appearance, but to a special appearance only. ********** Me. Justice Bbewer and Me. Justice Peckham dis- sented. FISHER, SONS & COMPANY V. CROWLEY. Supreme Court of Appeals of West Virginia. 1906. 57 West Virginia, 312. [Action of assumpsit. The defendants moved to quash the summons. After the motion was overruled a plea of non- assumpsit was tendered. Judgment for the plaintiffs. De- fendants assign error.] ^ Poffenbarger, J. * * * It has been suggested that, by tendering the plea of non-assumpsit after the motion to quash had been overruled and making other defenses, the defendants submitted themselves to the jurisdiction of the iThe matter in brackets has been condensed hj the editor. 136 Trial Peactice [Chap. 3 court, waiving the defect in the writ. * * * No decision of this court holds that there is a waiver of a defect in a summons by proceeding to trial after an adverse ruling on a Emotion to quash and an exception taken thereto. Sears v. Starhird, 78 Cal. 225, and Desmond v. Superior Court, 59 Cal. 274, so hold, but they are not in accord with the more carefully considered cases of Lyman v. Milton, 44 Cal. 630, and Deidesheimer v. Brown, 8 Cal. 339, neither of which is noticed in the opinion in the two subse- quent inconsistent cases. Desmond v. Superior Court went up from a justice court and Sears v. Starhird simply adopted the rule without comment. In view of this, it may be fairly said they are not well considered cases. In Michi- gan, Indiana, Colorado, Nebraska, Florida and Missouri, it has been held that defective service is waived by going to trial, 2 Ency. PI. & Pr. 631 and cases cited, but the au- thority for the decisions, in some instances, is found in pe- culiar statutes, and most of the cases originated in justice's courts where practically all formalities are dispensed with. Against this doctrine of waiver in cases of defective ser- vice stand the decisions of many states and the high author- ity of the Supreme Court of the United States. Harkness v. Hyde, 98 U. S. 476, holds that ''Illegality in the service of process by which jurisdiction is to be obtained is not waived by the special appearance of the defendant to move that the service be set aside; nor after such motion is denied, by his answering to the merits. Such illegality is consid- ered as wavied only when he, without having insisted upon it, pleads in the first instance to the merits." Mullen v. Railroad Co., (N. C.) 19 S. E. 106, says: ''Where a motion made on special appearance to dismiss for want of service of summons is overruled, and defendant excepts, his sub- sequent appearance to the merits, waives none of his rights." Ames v. Windsor, 19 Pick (Mass.) 247, says: "So, where the defendant, upon the entry of the action in the court of common pleas, moved that court to dismiss it, on the ground that the writ was not duly served, and this motion was overruled, and the defendant thereupon joined in the common de- murrer, and the action was thereupon entered in this court, it was held, that the defendant had not thereby waived his exception to the legality of the service." To Sec. 3] Appearance 137 the same effect are State v. Dupre, 46 La. Ann. 117, and Railroad Co. v. Heath, 87 Ky. 651. Authorities of greater dignity in this court, however, are its own decisions in Chapman v. Haitian d, 22 W. Va. 329, (Syl. pt. 3), Price v. Finnell, 4 W. Va. 296, and Steele v. Harkness, 9 W. Va. 13. * * * That pleading to the merits, without previous objection to the process or return, is a waiver of process, defects in process, defects in return, defective service and total want of service is in no sense denied. The proposition is asserted by a vast array of authorities. See 2 Ency. PI. & Pr. 646. It is ancient law in this state. Tuherville v. Long, 3 H. & M. 2>QQ;Winston v. Overseers, 4 Call. 357; Harvey v. Skipivith, 16 Grat. 410; Mahamj v. Kephart, 15 W. Va. 619; Todd & Smith V. Gates, 20 W. Va. 604; Bank v. Bank, 3 W. Va. 386. But the principle, as sound in law as it is in reason and justice, that the appearance, to have such effect, must be voluntary, has never been departed from except in the single case of Railway Co. v. Wright, 50 W. Va. 653, and that, as has been shown, compelled only a waiver of service, a matter of less consequence than the requisites of a valid summons. A man may waive perfect defenses to any de- mand, however large, though without a shadow of merit, by a mere failure to appear and defend, but, by any law or decision which would prevent his appearance or cut off his opportunity to make defense, he would be more effect- ually robbed of his money than if it were taken from him by a highwayman. It must be voluntary and free from constraint, else it is not binding. Nor can he be deprived of any other legal right except by his own voluntary act. He has a perfect right to remain out of court until regu- larly and legally brought in, and, if an attempt is made to bring him in irregularly, he has a perfect right to object, on the ground of irregularity, in proper time, and manner. To force him to waive it, by saying, if he does not do so, he can make no defense on the merits, is a palpable denial of a legal right. He must then determine whether he will risk his whole case on the question of insufficiency of the writ or return, as the case may be, however full and com- plete he might be able to make his defense on the merits, or waive the defect and submit himself to a jurisdiction not lawfully obtained, in order to prevent his being forever 138 Trial Peactice [Chap. 3 deprived of bis defense in case his objection to the writ or return should prove to be not tenable. A test of the courts jurisdiction could never be made except at great peril, a result of which would be that no attempt to do so would ever be made in a case in which defense on the merits could be made. In order to do so it would be necessary to suffer a judgment by default, then go back to the same court with a motion to set it aside for insufficiency of process, vainly ask the court to reverse itself, suffer the same adverse rul- ing, and then, if possible, obtain a writ of error from this Court and reverse the judgment for the defect in process alone, and, on failure of that, to be forever barred of any defense on the merits. For the court to present to a party the alternative of waiving a jurisdictional defect or giving up his defense, and compel him to choose, is not to allow a voluntary submission to its jurisdiction, but to coerce such submission or a relinquishment of the defense on the merits, however ample and just it may be, and give to the plaintiff what he is clearly not entitled to — the appearance of the defendant without process or relinquishment of defense in that action. How can the action of a court, in arbitrarily taking from one man a right, trivial and unimportant though it be, and conferring it upon another, be justified, either legally or morally I Is the right to stay out of court until legally brought in worth nothing? Is process a mere idle formality? If so, whj^ allow a default judgment to be set aside for want of it? That this will be done all admit, and, in admitting, confess that the acquisition of jurisdic- tion by process is a matter of substance and not of form. To say in the same breath that a man may not test it with- out surrendering his defense to the merits is squarely and flatly inconsistent, contradictory of the admitted nature of the right, and violative of law in that it forcibly deprives the citizen of a substantial legal right. To say that the office of process is to bring the defendant into court and that, after his appearance, it is wholly unimportant and may be disregarded, falls far short of justifying the ruling. His appearance is involuntary. He must come or risk every- thing on the question of insufficiency of the process. If he does not, a judgment by default goes against him, forever precluding any defense, be it a release, payment, fraud or what not, unless he can have it set aside for the defect in Sec. 3] Appeaeance 139 the process or some other error. It puts him under com- pulsion from the moment of service. The court has laid its powerful hand upon him and will render judgment against him without a hearing if he does not bring to its attention the defect in its process and ask to be discharged. For the court to say, upon such compulsory appearance and protest against jurisdiction, now that you are here, you must stay, no matter how you were dragged in, is but bit- ter mockery, utterly inconsistent with the principles of the law, eulogized in these days of enlightenment for their justice and fairness even in those periods in which society was comparatively crude and barbarous. To test the sufficiency of the summons, the appearance must be special, of course, but it is not necessary in a court of record to make the order, plea or motion expressly state that the appearance is only for the purpose of excepting to the jurisdiction. * * * Groves v. County Court, 42 W. Va. 587, seems to impliedly hold that if the record show that a defendant came into court without saying he came for a special purpose, his ajDpearance is presumed and taken to have been a general appearance, but the record showed that the case, commenced by notice, had been dock- eted and the cause removed to another court, on motion, after appearance, and before any exception to the notice was taken. Hence the record showed more than mere pres- ence in court. Here the record as a whole negatives any intent to voluntarily submit to the jurisdiction. An immedi- ate and direct attack was made upon the writ, and an ex- ception to the action of the court in refusing to quash it put upon the record. However it may be when the objection is insufficiency of service, and defectiveness of the sum- mons in a justice's court, the uniform holding by this court has been that where the writ commencing an action in a court of record is excepted to before any plea has been tendered or continuance had, or other step taken, import- ing a general appearance, the defendant is deemed not to have waived or lost the benefit of his motion, if an exception was taken and saved, although he afterward plead to the merits and went to trial. For the foregoing reasons, the judgment must be re- 140 Tkial Practice [Chap. 3 ^•el•sed, the summons quashed and the action dismissed, with costs both in this court and the court below. Reversed. Sanders, Judge, dissented in part. CORBETT V. PHYSICIANS' CASUALTY ASSOCIATION. Supreme Court of Wisconsin. 1908, 135 Wisconsin, 505. Action to recover on an accident insurance policy issued on the mutual assessment plan. * * * The answer stated three defenses, as follows, in effect: (1) The defendant is a Nebraska corporation which has never complied with the laws of this state authorizing service of process upon it by serving ujDon the commissioner of insurance and the only service made was of that character; (2) without waiving the plea to the jurisdiction of the court the defendant shows that it never qualified to do business in this state and, there- fore, the making of the insurance contract was prohibited by sec. 1978, Stats. (1898), and is not enforceable in the courts of this state; (3) without waiving any right under the foregoing, the allegations of the complaint as to the assured being a member in good standing of the association at the time he was injured are denied. * * * The plea to the jurisdiction was tried first and over- ruled. Defendant by its counsel excepted to the ruling. No specific objection was made to then proceeding to a trial upon the merits, which was done. * * * Judgment was rendered in favor of the plaintiff, from which this appeal was taken. Marshall, J. At the threshold in the consideration of this case is presented the question of whether a defendant can challenge the jurisdiction of the court in which he is f'ited to appear, upon the ground that the summons in the action was not efficiently served, and failing in that can submit to a trial upon the merits and in case of an adverse Sec. 3] Appeabancb 141 decision can, on appeal, have the benefit of the objection made at the start. * * * As we view the case we need not follow and endeavor to answer counsel's argument in detail on the jurisdictional question, because it is firmly settled in respondent's favor by numerous decisions of this court. Loive v. Stringhmn, 14 Wis. 222 ; Grantier v. Rosecrance, 27 Wis 488 ; Blackivood V. Jones, 27 Wis. 498; Anderson v. Cohurn, 27 Wis. 558; 3 Ins. Co. of N. A. V. Swineford, 28 Wis. 257; Alderson v. White, 32 Wis. 308; Dikeman v. Struck, 76 Wis. 332, 45 N. W. 118. The following language by Dixon, C. J., in Alderson v. White, supra, referred to by counsel for re- spondent, is often quoted as an unmistakable indication of the doctrine prevailing in this state : "The party seeking to take advantage of want of juris- diction in every such case, must object on that ground alone, and keep out of court for every other purpose. If he goes in for any purpose incompatible with the supposi- tion that the court has no power or jurisdiction on account of defective service of process upon him, he goes in and submits for all the purposes of personal jurisdiction with respect to himself, and cannot afterwards be heard to make the objection. It is a general appearance on his part, equivalent in its effect to proof of due personal service of process." It will be thus seen that the right to proceed to a trial on the merits after a decision against the defendant on the jurisdictional question, efficiently saving an objection to the ruling in that regard, is not recognized as having any place in our practice. The quoted language was only a reiteration, in effect, of what was said in Loive v. String- ham, supra. There the doctrine which has from the start prevailed here, was thus plainly stated in these words: "We think it is also a waiver of such a defect for the party, after making his objection, to plead and go to trial on the merits. To allow him to do this, would be to give him this advantage. After objecting that he was not prop- erly in court, he could go in, take his chance of a trial on the merits, and if it resulted in his favor, insist upon the judgment as good for his benefit, but if it resulted against him, he could set it all aside upon the ground that he had never been properly got into court at all. If a party 142 Trial Practice [Chap. 3 wishes to insist upon the objection that he is not in court, he must keep out for all purposes except to make that objection. ' ' We recognize that there are very respectable authorities to the contrary of the foregoing, among which are the fol- lowing : Harhness v. Hyde, 98 U. S. 476 ; Miner v. Francis, 3 N. D. 549, 58 N. W. 343; 2 Ency. PI. & Pr. 629, 630, and note 1. However, it is believed that the great weight of authority, or at least the better reasoning, is the other way. These are but a few of the many cases that might be cited in support of that : In re Clarke, 125 Cal. 388, 392, 58 Pac. 22; Manhard v. Scliott, 37 Mich. 234; Stevens v. Harris, 99 Mich. 230, 58 N. W. 230 ; Union Pac. R. Co. v. De Bush, 12 Colo. 294, 20 Pac. 752 ; Lord v. Hendrie S B. Mfg. Co., 13 Colo. 393, 22 Pac. 782 ; Ruhtj Chief M. S M. Co. v. Gurley, 17 Colo. 199, 29 Pac. 668; Stephens v. Bradley, 24 Fla. 201, 3 South. 415 ; Thayer v. Dove, 8 Blackf. 567 ; Kronshi v. Mo. Pac. R. Co., 77 Mo. 362. By the Court — The judgment is affirmed. Section 4. Withdrawal of Appearance. ELDRED V. BANK. Supreme Court of the United States. 1873, 17 Wallace, 545. Error to the Circuit Court for the Eastern District of Wisconsin. * * * The Michigan Insurance Bank, on the 14th of Au- gust, 1861, sued Anson Eldred, Elisha Eldred, and Uri Balcom, trading as Eldreds & Balcom, in the court of Wayne County, Michigan, as indorsers on a .promissory note for $4,000. * * * Publication-notice under the laws of Michigan was given. * * * The defendant, Anson Eldred, filed a plea of non-assumpsit, with notice of set-off, De- cember 27th, 1861, and demanded a trial. On the 22nd of April, 1862, as the record of the case Sec. 4] Appearance 143 stated, the cause came on to be heard, and the plea of the defendants theretofore pleaded by them was withdrawn, and the default of Elislia Eldred and Uri Balcom entered, and on the 10th day of May the said default was made ab- solute. On the 13th of May, the record continues : "The plea of the defendant, Anson Eldred, heretofore pleaded by him, having been withdrawn, and the default of the defendants, Elisha Eldred and Uri Balcom, having been duly entered, * * * therefor, it is considered that said plaintiffs do recover against said defendants their damages aforesaid, together with their costs aforesaid to be taxed, and that said plaintiff have execution therefor." In this state of things the bank brought this, the present suit, in the court below, on the same note against the same Anson Eldred, Elisha Eldred, and Uri Balcom. * * * Ansov Eldred, who alone was served or appeared, pleaded the general issue; and the case came on for trial. * * * The defendant * * * then oft'ered in evidence the record of the above mentioned suit on the same note in the Wayne County Court : 1st. * * * 2nd. As being a bar to recovery on this note in suit. ********** Judgment having gone accordingly for the bank, Anson Eldred brought the case here on error; the error assigned being the refusal of the court to instruct the jury that the judgment was a bar, ******##** Mr. Justice Miller delivered the. opinion of the court. It is argued by the counsel of the defendant in error that the withdrawal of the plea of Anson Eldred left the case as to him as though he had never filed the plea, and that never having been served with process he was not liable to the personal judgment of the court. We do not agree to this proposition. The filing of the plea was both an appearance and a defense. The case stood for the time between one term and another with an appear- ance and a plea. The withdrawal of the plea could not have the effect of withdrawing the appearance of the de- fendant, and requiring the plaintiff to take steps to bring that defendant again within the jurisdiction of the court. Having withdrawn that plea he was in a condition to de- 144 Trial Pbactice [Claap. 3 mur, to move to dismiss the suit if any reason for that could be found, or to file a new and different plea if he chose, either with the other defendants jointly, or for him- self. He was not, by the withdrawal of the plea, out of court. Such a doctrine would be very mischievous in cases where, as it is very often, the first and only evidence of the appearance of a party is the filing of his plea, answer, or demurrer. The case might rest on this for a long period before it was ready for trial, when, if the party could obtain leave of the court to withdraw his plea (a leave generally granted without objection), he could thereby withdraw his appearance, the plaintiff is left to begin de novo. We are of opinion that the record of the suit in Michigan shows a valid personal judgment against Anson Eldred, and that that judgment was a bar to recovery in the present suit. Judgment reversed, but without costs to either party in this court, and a new trial granted in the Circuit Court. INSUEANCE TRUST AND AGENCY V. FAILING. Supreme Court of Kansas. 1903, 66 Ka7isas, 336. The opinion of the court was delivered by Johnston, C. T . * * * * * On April 3, 1900, the defendants appeared by their at- torney and filed separate demurrers, in each of which the following grounds were stated: *'l. That the court had no jurisdiction of the person of the defendant or the subject of this action. "2. That there is a defect of parties defendant. **3. That several causes of action are improperly joined and ''4, That the petition does not state facts sufficient to constitute a cause of action." On June 29, 1900, the defendants, without notice to the Sec. 4] Appearance 145 plaintiff, orally asked and obtained leave to withdraw the demurrers and appearances previously filed. * * * * * * Was jurisdiction lost by the attempted withdrawal of the demurrers and appearances several months after- ward? We think not. The code (<^67; Gen. Stat. 1901, <^4497) declares that "the voluntary appearance of a de- fendant is equivalent to service." Will it be contended that a defendant served with summons, who has tired of the litigation, can withdraw from the case and the juris- diction of the court at will? Where a defendant pleads and makes a general appearance, he waives the service of summons and any defect that there may be in the pro- cess, and is in court as fully and effectually as though per- sonal service had been made on him. A submission to the jurisdiction of the court, whether coerced by process or voluntary as in this case, cannot be retracted or withdrawn to the prejudice of the plaintiff. To allow a withdrawal which would divest the court of jurisdiction obtained by a general appearance would be a great injustice to a plaintiff who had relied on the appearance of a non-resident defend- ant until the time and opportunities to obtain service other- wise had passed. The court may permit a withdrawal, or rather set aside an appearance made without authority, or procured by fraud, but under a code provision making a general appearance co-equal with service, the court has no more right to permit a withdrawal of such appearance con- ferring jurisdiction, than it would have to set aside service of a summons regularly made. Here there was no claim of fraud, or of misapprehension, as the appearance was made by counsel who was shown to have full authority to repre- sent the defendants. The action of the court in permitting a withdrawal of appearance was unwarranted. ********** Reversed. T. p.— 10 146 Trial Practice [Chap. 3 Section 5. Authority of Attorney to Appear. HAMILTON V. WRIGHT. Court of Appeals of New York. 1868. 37 Nerv York, 502. This was an action of ejectment, brought in the name of the appellants [Hamilton and Livingston] and one Glea- son, to recover possession of certain lands in the town of Shandaken, Ulster county. * * * Judgment in favor of the defendant for his costs, was rendered against all of the jolaintiffs, and was affirmed on appeal to the General Term. Hamilton and Livingston moved at the Poughkeepsie Special Term that the judgment against them be vacated, or, in case Gleason failed to pay the costs, that William Lounsbury, plaintitfs' attorney, should pay the judgment, upon the ground that the use of their names as plaintiffs was unauthorized and unknown to them. The special Term denied the motion with costs. From this order denying the motion, Hamilton and Livingston appealed to the Gen- eral Term, where the order was modified, directing that the judgment be in the first instance collected, if collecti- ble, of W. S. Gleason, their co-plaintiff, who caused the action to be brought, and that the question of the liability of plaintiffs' attorney to Hamilton and Livingston, in case they are to pay the judgment, be left open : neither of the parties to have costs, as against the other, upon such appeal. From this last order, Plamilton and Livingston appealed to this court. Woodruff, J. The general rule, that an appearance by attorney, whether for the plaintiff or the defendant, if there be no collusion, may be recognized by the adverse party as authentic and valid, I deem important to the safe administration of justice, and well founded in the scheme and plan of such administration in England and this coun- try ever since such officers were commissioned to repre- sent litigants in the courts. Receiving their authority from the court, they are deemed its officers. Their commissions declare them entitled to confidence, and, in a just sense, their license is an assur- Sec. 5] Appearance 147 ance, not only of their competency, but of their character and title to confidence. The direct control of the courts over them as officers, by way of summary discipline and punislunent to compel the performance of their duty, or to suspend or degrade them, is retained and exercised as a guaranty of their fidelity. It is no denial of the rule that, where there are special cir- cumstances calling for its relaxation, the courts may and do relieve from its rigid application. The exception aris- ing from such special circumstances strengthens, as well as recognizes the rule itself. Hence, when an appearance is entered by an attorney without authority, the inquiry, whether such attorney is of sufficient responsibility to answer for his unauthorized conduct to the party injured thereby, is entertained. And it may be proper always to inquire, whether the injury to the party is irremediable unless such appearance be set aside, and the i3roceedings founded thereon vacated. In exercise of their general equitable control over their own judgments, the < -t may and should consider whether they can relieve the party for whom an unauthorized ap- pearance is made, without undue prejudice to the party, who has in good faith relied upon such appearance and the official character of the attorney who appears. But it would be at variance with the scheme and plan upon which we universally administer the law, if a de- fendant could be prosecuted by a responsible attorney, in full authority to practice in our courts, and after having successfully and in good faith defended, as the case might be, through all the tribunals of justice, and to final judg- ment in the court of last resort, be required to submit to an order setting aside the proceedings, and be left to be again prosecuted for the same cause of action, on the mere ground that the plaintiff's attorney had no authority from the plaintiff to bring the action. The law which gives to at- torneys their commissions, must be deemed to guarantee to defendants protection against such a result. And, at the same time, the rule should jaeld to equitable considerations, where they arise, and should permit the courts to give relief when they can thereby prevent irremediable wrong to either party. And if it be asked, why should the party for whom he 148 Tkial Practice [Chap. 3 appears be left to seek his remedy against the attorney? — why should not the party who has been subjected to an un- authorized litigation pursue that remedy, rather than cast that hazard and burden on one who has done nothing to deserve it? — the answer lies in the suggestion already made, that the law warrants a party in giving faith and confidence to one who, by law, is authorized to hold himself out as a public officer, clothed with power to represent others in the courts. And besides this, the consequences of the contrary rule would often be altogether disastrous. Evidence would be lost; witnesses die; the statute of limita- tions bar claims; and death of parties themselves might often happen. In various ways, to set aside proceedings at the end of a protracted litigation would be to work inevit- able wrong to the party who had relied upon an appear- ance. It may be said that proof of the authority of the attor- ney to appear and prosecute should be demanded, if the party would be safe. If such demand could in all cases be insisted upon, it would be only one step toward safety. It might often be practically, ineffectual. Ex parte evidence of authority might be produced, and yet, if the party might afterward impeach it, the question would again arise, in all its force. Besides, it is not the practice to require at- torneys to produce their authority, except in special cases. No doubt there is power in the courts to order it: it has sometimes been done. {Ninety-nine Plaintiffs v. Vanderhilt, 4 Duer, 632.) When, pending a litigation, the authority of the attorney to appear is denied, and application is made in due season, the court, if probable cause appears, would, in general, protect the party applying. Still, the general rule remains, that a retainer will be presumed; and the adverse party, having no notice or ground of suspicion, may act on that presumption. (3 Merivale, 12; 2 Mylne & Keen, 1; 1 Ves. 196; 6 Johns. 297; 9 Paige, 496.) And in general where there are no circumstances of suspicion, of facts indicating fraud, and no evidence of bad character discrediting the appearance, the courts do not require a respectable and responsible attorney to exhibit his authority to appear. (6 Johns. 34; 5 Duer, 643.) It is, however, suggested, that, as in ejectment, the Sec. 5] Appearance 149 defendant is authorized by statute to require the attorney for the plaintiff to produce his authority (2 R. S. 306), this action should be deemed an exception to the general rule, and it be held that the defendant's own laches have caused his misfortune, if it afterward appear that the plaintiff did not authorize the suit. But it is obvious that the statute itself does not furnish complete protection. It only makes the production of apparent written authority, sustained by affidavit, presumptive evidence. And if the authority do not actually exist, the same question will arise in ejectment as in other actions : How far is the plaintiff bound by the appearance of an attorney for him! And, as respects an appearance for a defendant, the statute makes no provision. I do not think, therefore, that the omission of the defend- ant to demand the production of authority, where he has nothing to put him on his guard, awaken his suspicion, or to lead him to distrust the good faith of the attorney who prosecutes the action, should affect his right to insist upon his judgment, when it is not claimed that the attorney is not of full and sufficient responsibility to answer to the plaintiff for any costs or other damage he may have sus- tained. Judgment affirmed. DANVILLE, HAZLETON AND WILKES-BARRE RAILROAD COMPANY, APPELLANT, V. RHODES. Supreme Court of Pennsylvania. 1897. 180 Pennsylvania State, 157, Appeal by plaintiff from order striking off warrant of attorney. David C, Harrington, for appellant. George L, Crawford, for appellee. Opinion of Mr. Justice Williams : — On the seventh day of June, 1892, D. C. Harrington, Esq., an attorney at law reg- ularly admitted to practice in the courts of Philadelphia 150 Trial Practice [Chap, o filed tlie bill in equity in this case as the attorney of the plaintiff. On the eighteenth day of the same month a rule was entered in the minutes by the prothonotary, on the direction of Crawford & Laughlin, attorneys for Rhodes et al. and the D. H. and W. Eailroad Co., requiring D. C. Harrington to file his warrant of attorney. No affidavit or statement of facts tending to throw doubt upon his authority was filed and no application whatever was made to the court of which Harrington was a sworn officer. On the twenty-fifth of the same month Harrington filed a warrant of attorney in due form executed by the corporation under its seal. This was a compliance with the rule and it should regu- larly have been discharged. The court however without any formal disposition of the warrant of attorney, and without even a suggestion on the record that it was not what it purported to be, granted a rule on Harrington to show cause why the warrant should not be struck from the records. This rule it subsequently made absolute and the w^arrant was struck off. For what reason this rule was granted, or for what reason it was made absolute, it is im- possible to tell so far as the records in this case are con- cerned. Having thus disposed of the attorney of the plain- tiff, a rule was at once granted requiring the plaintiff" to show cause why the bill should not be struck from the records. This was soon after made absolute. The cause was sent out of court, after the attorney, in a novel and peremptory manner. The record shows no reason what- ever, given by Messrs. Crawford & Laughlin, for asking either of these rules, and none given by the court below for making them absolute. We know of no authority for such a practice. It is elementary law that an attorney is an officer of the court in whicli he is admitted to practice. His admission and license to practice raise a presumption ])rima facie in favor of his right to appear for any person whom he undertakes to represent. When his authority to do so is questioned or denied the burden of overcoming this presumption in his favor rests on liim who questions or denies his authority, and such person must show by affi- davit the existence of facts tending to overcome tlie pre- sumption before lie can be called upon to file his warrant of attorney: Weeks on Attorneys at T^aw, 387 to 400. Sec. 5] Appeakance 151 The established practice in this country and England is to apply to the court by petition stating the facts relied on to overcome the presumption and asking a rule upon the attorney to file his warrant. When he has complied with the rule by filing a warrant sufficient in form and in the manner of its execution, the rule has been complied with and is functus officio. If the warrant is alleged to be defective, or forged, or in any manner insufficient to justify the court in treating it as authority for the appearance of the attorney, the defect should be pointed out by exceptions and its sufficiency passed upon by the court. If the court holds the warrant sufficient the case proceeds. If it is held insufficient proceedings therein will be stayed or in a proper case the suit may be dismissed. In Campbell v. Galhreath, 5 Watts, 423, Justice Kennedy discusses the practice to some extent and says at page 430, that after it is ascer- tained that the attorney for the plaintiff has no authority to appear for him in the suit pending, the defendant may proceed to have it dismissed. The same practice prevails in the United States courts and in those of most of the states. * * * * * * [Order affirmed on other grounds.] CHAPTER IV. CONTINUANCE. Section 1. Sueprise at the Tkiax,. PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY V. GROM. Court of Appeals of Kentucky. 1911. 142 Kentucky, 51. Opinion of the Court by Wm. Rogees Clay, Commis- sioner — Affirming. Appellee, William Grom, brought this action against the appellants, Pittsburg, Cincinnati, Chicago & St, Louis Railway Company and Pennsylvania Railroad Company, to recover damages in the sum of $1,999 for personal injuries, alleged to have been due to the negligence of the railroad companies while he was a passenger on their lines of rail- road. The jury awarded him a verdict for the full amount sued for, and the defendants have appealed. The facts, briefly stated, are as follows : Appellee bought a ticket from Louisville to Atlantic City and return. The accident occurred between Pittsburg and Altoona, in the State of Pennsylvania. At the- time of the accident appel- lee was sitting in the middle of the sixth seat from the front end of the car. He was struck by some hard and heavy substance over the left eye. The frontal bone was fractured and his eye so seriously injured that the sight thereof is permanent!}^ impaired. At the time of the acei dent a freight train was passing. Just before and after the injury, witnesses heard something rattling against the side of the car. It sounded like a chain. Indentations were found on the side of the car which looked as if they had been made by an irregular object in the form of a chain. One of the witnesses saw the passing shadow of the object that struck appellee, and it looked like a chain. Immediate- ly after the injury several persons searched the car, and nothing was found therein which could have caused the 152 Sec. 1] Continuance 153 injury. Appellant's testimony was to the effect that on the freight trains ordinarily used there are no chains in a position to be swung out so as to strike or enter a train on an adjacent track, and, even if there were such, they would hang by the side of the car by reason of their own weight, and would not swing out from the car by reason of the vel- ocity of the train. The witnesses, however, had no knowl- edge of the condition of the particular train in question and they admit, on cross-examination, that there were num- erous chains in and about freight cars. ********** At the conclusion of the evidence for appellee, appel- lants' senior counsel filed his affidavit and moved for a continuance on the ground of surprise. In this affidavit counsel stated, in substance, that he had had sole charge of the defense of the action that was being tried; that there- tofore he had made a most thorough investigation of the facts of the case and had had submitted to him full reports made by the agents of appellants as to all facts connected with the injur}-. He had never heard until the day before the trial that any attempt would be made to show that appellee was struck by a chain, when he was then informed in a general waj^ by appellee's counsel that he would show that fact. In all the investigations made and in the reports submitted to him, it had never been sug- gested that the accident could have happened in that way. He was, therefore, taken completely by surprise, as were the appellants, by the evidence introduced by appellee, and he was not then prepared to rebut such evidence. He had taken the deposition of the train conductor, but did not ask him about a chain, because he had never heard it suggested or thought it possible that a chain could have anything to do with the accident. If allowed an opportunity to do so he could and would procure testimony of witnesses — all residing in the state of Pennsylvania — which would prove (1) that there were no marks on the car on which appellee was injured indicating that it had recently been struck by anything; (2) that all the persons who were in the coach and near appellee were asked by the conductor and brake- man as to the cause of the accident, and none of them could give any explanation of it, and none of them said anything about hearing a chain or seeing a chain, and none 154 Trial Practice [Chap. 4 of tliem suggested that a chain had anything to do with the accident; (3) that at the time there were no chains npon or attached to appellants' engine or cars, or forming any part of the equipment thereof that were long enough to reach into the window of a passenger coach on an ad- jacent track and strike a passenger, as appellee was struck; (4) that all chains connected with such equipment were, however, short chains, and in the event of their breaking they would drag on the ground, and could not swing out in a horizontal position so as to come in contact with a train on an adjacent track; that such a thing is a physical im- possibility; (5) that "shortly after the accident to plain- tiff the conductor caused telegraphic notice to be given of it and instructions were immediately given to inspect all west- bound freight trains that had met plaintitf 's train to see if anything was attached to or projected from them that could have caused the accident, and such investigation was made and nothing found to explain the cause of the accident;" that these facts could be established by the testimony of several witnesses (naming them) and could not be estab- lished by any witnesses living in the State of Kentucky. Did not anticipate, nor did the railroad companies antici- pate, and no one could have reasonably anticipated, that appellee would attempt to prove that his injuries were caused in such an unusual or unheard-of manner as being struck by a chain. If the railroad companies had known in time that such proof would be offered, they could and would have met it by showing facts to the contrary. The foregoing affidavit was not filed until appellants' motion for a peremptory instruction, at the conclusion of appellee's evidence, had been overruled. Before asking for a continuance on the ground of surprise, therefore, counsel for appellants first took the chance of appellee's failing to make out his case. Though apprised of the fact in a gen- eral way on the day before the trial that appellee would attempt to show that he was struck by a chain, he did not ask for a continuance of the case when it was called for trial. At the time of the trial the law of Pennsylvania was in proof. Tounsel knew that under that law upon mere proof of iii.iiiry, unaccompanied by any facts tending to show a collision or a defect of cars, track, roadway, ma- chinery or other negligence appellee could not recover, Sec, 1] Continuance 155 The deposition of the conductor showed that there was absolutely nothing the matter with the train on which ap- pellee was a passenger. A search was made to find whether or not the object which had struck appellee was in the car, and nothing was found. Knowing the law of Pennsylvania, counsel should have anticipated that appellee would at- tempt to prove facts tending to show negligence in the operation or mechanical appliances of the passing train, as appellee could not recover by merely showing that he was injured by some object, without showing the source from which it came. Furthermore, counsel admits in his affidavit that immediately after the accident, the conductor caused telegraphic notice of the fact to be given, and in- structions were immediately sent out to inspect all west- bound freight trains that had met the train on which appellee was a passenger, to see if anything was attached to, or projected from them that could have caused the acci- dent and such investigation was made and nothing found to explain the cause of the accident. This being true, coun- sel should have taken the depositions of witnesses ac- quainted with such facts, and should not have gone into the trial in the hope that appellee would fail to make out his case, and, in the event that he did make out his case, ap- pellants w^ould be granted a continuance and a further opportunity to prove facts which they could have estab- lished before the trial. We, therefore conclude that the court did not err in failing to grant the continuance asked for. ********** Judgment affirmed. PETERSON V. METROPOLITAN STREET RAILWAY COMPANY. Supreme Court of Missouri. 1908, 211 Missouri, 498. Lamm, J. — Peter L. Peterson sued for damages — his cause of action the negligence of defendant's servants man- Jiing one of its street cars in Kansas City, Missouri, on the 156 Teial Peactice [Chap. 4 13th dsLj of December, 1902. Defendant appeals from a judgment in favor of Peterson for $5,000. Here, his death was suggested and proceedings had reviving the the cause in the name of Henrietta, administratrix of his estate. Did the court err in allowing amendments ; and err again in refusing a continuance? We think not; because; (a) The statutory right to amend a petition is not open to discussion. The right of a court to permit a petition to be amended is nothing more than plain, everyday, hard- headed sense. The right to act with good sense may (modestly) be assumed to be inherent in any court, and (it is likely) would exist without written law. Counsel make the point that plaintiff had no right to amend the petition at the trial, but they give no reason or cite no authority. All things, says Coke, are confirmed or impugned in one of two ways — by reason or authority. The point should not have been made; for the only possible question is one of terms on which the amendment may go and that question is not raised. (b) The principal proposition under this head is the refusal to grant a continuance after amendment. It is argued that prior to the amendments the petition stated no cause of action because there was no averment that the car had stopped to receive passengers who might undertake to get on; that the amendments supplied that omission; that after amendment the petition for the first time stated a cause of action; and that amendments of that character, made at the commencement of a trial, entitling the defend- ant to a continuance as of course, much more should one go in view of the application and affidavit filed in this in- stance. But we can agree neither to the premise, nor to the con- clusion if the premise were true. The petition did state a cause of action. It alleged that defendant's Main street cars regularly stopped about ten feet north of Twelfth for the purpose of permitting passengers to get on and off. That plaintiff on the 13th day of December, 1902, attempted to enter defendant's car at said point to take passage and that, while in the act of doing so with his foot upon the step at the back end of the car, defendant's servants care- Sec. Ij Continuance 157 lessly and negligently started said car forward with a vio- lent jerk. The allegation that the car '^ started" was by necessary implication an allegation that the car was stationary at the time. A thing can't start without a stop. The one in- cludes the other, ex vi termini. We had occasion to discuss a similar contention in Flaherty v. Railroad, 207 Mo. 1 c. 335, where it was said: "But in ordinary speech, if A says B 'moved forward,' there is a fair implication, at least, that A means that B was in a condition of repose when the movement began. If A was bent on expressing the idea that B was going at the time, but then and there began to hasten his pace, he would naturally have inserted some word to convey the accelerated motion. The absence of such modifying word, here, is not without significance." What was said in the Flaherty case, though in discussing an instruction, applies here. If the petition had said that the car started forward "more rapidly" that would convey the idea it was moving at the time, but there is no such word used and the petition is only subject to the criticism that it defectively or obscurely stated a cause of action — not that it stated none whatever. It would have been good after verdict. But, if it were conceded that the petition stated no cause of action before amendment, defendant would not be en- titled to a continuance, as of course, on that ground. The canonized rule is, and all the cases hold, that a continuance is addressed to the sound discretion of the trial court — a discretion to be soundly exercised. It is trite law that every intendment exists in favor of the trial court's action on an application for a continuance. The statute under which tliese particular amendments were allowed is Re- vised Statutes 1899, section 688, reading: "When a party shall amend any pleading or proceeding, and the court shall be satisfied, by affidavit or otherwise, that the oppo- site party could not be read}' for trial in consequence thereof, a continuance may be granted to some day of the same term, or at the next regular term of the court." It will be seen from that statute that an affidavit is not essential. The court may be satisfied "by affidavit or otherwise" that the opposite party could not be ready for trial in consequence of the amendment. 158 Tkial, Practice [Chap. 4 There was no attempt, except by the affidavit, to satisfy the court that the defendant could not be ready for trial; attending to that affidavit, it does not show defendant had not subpoenaed witnesses on the issues made by the amend- ments. Subsequent events showed it had — and all it knew of. It does not state that the allegations, as amended, are not true, or that it had a meritorious defense to the new matter, nor does it point out that defendant could be ready to meet those allegations at any other time. Hence, we find no fault with the court's ruling on the application. It is fully sustained by the following cases cited by counsel construing section 688, supra: Colhoun v. Craivford, 50 Mo. 458; Keltenhaugh v. Railroad, 34 Mo. App. 147; Pifer V. Stanley, 57 Mo. App. 516; Keeton v. Railroad^ 116 Mo. App. 281. The point is ruled against defendant. EAHLES V. J. THOMPSON & SONS MANUFACTUR- ING COMPANY. Supreme Court of Wisconsin. 1909. 137 Wisconsin, 506. Timlin, J. The original complaint was quite inartistic. But after setting forth the age, nationality, and occupation of the plaintiff and his lack of knowledge of the English language and the corporate character and the business of the defendant, it averred lack of knowledge of machinery and of tlie dangers attending its operation and lack of ex- perience on the part of the plaintiff. Defendant had and used a described drop hammer, out of repair and defec- tive. Defendant, knowing the plaintiff's want of experi- ence, and without instructing the plaintiff concerning his duties except as specified, and without warning the plain- tiff that there was any danger in working about the drop hammer or that it was liable to fall, ordered the plain- tiff to assist the operator of tlie drop hammer. Plaintiff, assisting without knowledge of the danger, was injured by Sec. 1] Continuance 159 the hammer dropping upon his hand, which in consequence of this injury was amputated. That if the said defendant by its officers or agents, its superintendent and foreman acting as vice-principals, had warned or in any manner in- structed the plaintiff as to the dangers and the use of the said hammer, the precautions to be taken about the same, plaintiff would not have been injured in any manner and would have avoided the said injury. Again: ''That the cause of the injury to this plaintiff was the neglect of the said defendant * * * to warn the said plain- tiif of the dangers and of the dangerous condition of the said machine." No defect in the machine having been shown, but the evidence on the part of the plaintitf tending to show that the plaintiff accidentally stepped on the treadle of the drop hammer while having his hand in the path of the descend- ing hammer, the defendant at the close of the plaintiff's evidence moved that the plaintiff be non-suited. Plain- tiff then asked leave to amend his complaint, presenting an amended complaint, which is the same as the original com- plaint except that therein the negligence of the defendant was predicated, not upon any defect in the machine, but upon the ignorance and inexperience of the plaintiii, known to the defendant, and the failure of the defendant to instruct or warn the plaintiff before or at the time of placing plaintiff to work upon the drop hammer. The court allowed this amended complaint to be filed, whereupon counsel for the defendant asked for the ''continuance of the case over the term, the immediate taxing by the clerk of this court of the taxable disbursements of the defendant down to this time, and the usual attorney fee of $25. By the Court: The motion is granted upon the sole ground that $10 costs be paid forthwith." Exception to this ruling was taken, and error is assigned on this ruling. We perceive no error in the ruling. It was proper to allow the amendment on the trial. Gates v. Paul, 117 Wis. 170, 9-1: N. W. 55. Where the complaint is amended on the trial, in order to entitle the defendant to a continuance he must make a showing, if not by affidavit, at least by a statement to the court based on the pleadings apparently supporting such statement, that he is unprepared to meet ^nd cannot, with the evidence at hand or available, meet the 160 Triai^ Peacticb [Chap. 4 issues raised by the amended complaint. W'ithee v. Simon, 104 Wis. 116, 80 N. W. 77. The amendment here brought about no radical change of the issues and the terms were in the discretion of the court. III. S. Co. v. Budzisz, 106 Wis. 499, 82 N. W. 534; Mcllquham v. Barber, 83 Wis. 500, 53 N. W. 902 ; Pellage v. Pellage, 32 Wis. 136, 141 ; Schaller V. C. & N. W. R. Co., 97 Wis. 31, 71 N. W. 1042. * * * Section 2. Absence op Witness. CAMPBELL V. DREHER. Court of Appeals of Kentucky. 1908. 33 Kentucky Law Reporter, 444. Lassing, J. In a collision between appellee, a 16-year- old boy, on a bicycle and appellant's automobile appellee was injured. Conceiving that his injuries were the direct result of appellant's negligence in operating his machine, appellee, through his father as next friend, instituted suit to recover damages. Appellant denied liability, and plead- ed that the injuries, if any, to the boy were the result of his own carelessness and negligence. Upon the issues thus joined a trial was had, which resulted in a verdict in favor of appellee for $500. To reverse this judgment this appeal is prosecuted. Appellant relies upon four grounds: * * *; second, be- cause the trial court erred in refusing him a continuance on his showing, made at the time of the trial, that the wit- ness Dr. Geo. W. Leachman, was absent from the state, and that his testimony could not be procured at that time; * * * * Appellant's second ground for reversal is not well taken for two reasons: First, it is not shown that he used any diligence whatever to secure the presence of this witness at his trial. The record show!^ that his answer was filed on the 15th day of December, 19Q§. The reply was filed on the. Sec. 2] CoNTINtJANCE 161 22nd day of December, 1906, completing the issues. The case was called for trial the 26th of March, 1907, or more than 90 days after the issues were made up. During all of this time, save about two weeks prior to the date of the trial, as shown by the affidavit, the witness. Dr. George W. Leachman, was within the jurisdiction of the court, and could have been subpoenaed, and his attendance procured. This was not done, and the fact that appellant did not know he was going to leave offers no excuse for his failure to have a subpoena issued for this witness at a time when he knew he was within the jurisdiction of the court and could have been served. The court did not err in refusing to continue the case because of the absence of this witness for the further reason that it is shown that his evidence would have been merely cumulative. He was in the automobile with the witness John Straus, and the facts to which he would have testified, if present, as disclosed by the affi- davit, were testified to by the witness John Straus. The ruling of the trial judge, in permitting this affidavit for continuance to be read as the deposition of the absent wit- ness, was certainly as favorable to appellant as he could ask. Perceiving no error in the conduct of the trial prejudicial to the rights of appellant, the judgment is affirmed. TERRAPIN V. BARKER. Supreme Court of Oklahoma. 1910. 26 Oklahoma, 93. This action was brought in the District Court of Wash- ington county by defendant in error to recover for services rendered by him to plaintiff in error as an attorney, of an alleged reasonable value of $1,000, and for expenses in- curred and paid out by him for plaintiff in error in render- ing said services. From a verdict and judgment in favor of defendant in error, hereafter called ''plaintiff," plaintiff in error, hereafter called ' ' defendant, ' ' brings this proceed- T. P.— 11 162 Teiai. Practice [Chap. 4 ing in error. The facts alleged in the pleadings and estab- lished by the evidence, in so far as they are necessary in the consideration of the questions presented by this pro- ceeding, will be stated in the opinion. ********** Hayes, J. (after stating the facts as above.) After an- nouncement of both parties in the trial court that they were ready for trial, a motion by defendant to strike out certain 23ortions of plaintiff's reply to his answer was over- ruled, and he thereupon filed a motion for continuance, which was also overruled. His motion for continuance stated, that he was informed that two certain persons who were absent had information material to his case; that he has a right to expect that they would be in attendance at the trial of his cause. Section 5836 of the Compiled Laws of Oklahoma of 1909 prescribes what an application for con- tinuance on account of the absence of evidence shall con- tain. It must show the materiality of the evidence ex- pected to be obtained ; that due diligence has been used to obtain it; where the witnesses reside, if their residence is known to the party; the probability of procuring their tes- timony within a reasonable time ; and what facts mover be- lieves the witness will prove; and that he believes them to be true. The motion in this case fails to contain several of these essential elements. No showing whatever is made in the application of any diligence used by plaintiff in error to obtain the attendance of the absent witnesses ; nor does the affidavit state the residence of but one of said witnesses. No showing is made that their testimony can be procured within a reasonable time; nor is any statement made as to any facts that can be established by them that would be material to the case. It is stated that if one of the wit- nesses was present he would testify that, "so far as he is informed, defendant in error was not plaintiff in error's attorney in the matter in which he alleges he rendered the services for plaintiff in error." But such evidence would be incompetent. The witness could not be permitted to testify as to liis information. The application also fails to state that applicant believes that the alleged facts which tlie absent witness will testify to are true. An application for continuance could hardly be more defective than the Sec. 2j Continuance 163 one here relied upon. It is not an abuse of discretion to overrule an application for continuance, where no diligence is shown to procure the attendance of the witnesses. {Siuope d Son V. Burnliam, Hanna, Hunger & Co., 6 Okla. 736, 52 Pac. 924; Kirk v. Territory, 10 Okla. 46, 60 Pac. 979), and the party applying must clearly state the facts he expects to prove, and their materiality must be made to appear from the application {Murphy v. Hood, et al., 12 Okla. 593.) And even when all the matters prescribed by the statute are set forth in an affidavit for continuance, a continuance will not be granted, if the adverse party consents that on a trial the facts alleged in the affidavit shall be read and treated as a deposition of the absent witness. Section 5836. supra; Chandler v. Colcord, 1 Okla. 260, 32 Pac. 330. De- fendant is in no position to complain that his motion was overruled, for plaintiff would, in all events have been en- titled to know what facts he intended to establish by the absent witnesses, in order that he might determine whether he would admit that the witness would so testify; and that such facts might be read to the jury as a deposition of the absent witnesses, rather than to suffer the inconvenience of a continuance. ********** Finding no error in the record requiring a reversal, the judgment of the trial court is affirmed. All the Justices concur. BEAN V. MISSOULA LUMBER COMPANY. Supreme Court of Montana. 1909. 40 Montana, 31. Mr. Chief Justice Brantly delivered the opinion of the court. Contention is made that the court erred in refusing to grant to defendant a postjionement of the trial because of the absence of one Wendorf, a witness who was expected to be present and testify in defendant's favor. The appli- 164 Trial Practice [Chap. 4 cation was made upon affidavit by defendant's counsel. Be- sides setting forth the facts to which the witness would testify, the affidavit shows that the witness was a resident of the state of Idaho; that he was then in that state and had been for some months; that he was the only witness who could testify to the facts set forth ; that the defendant expected to have him present, but that, after the cause was set for trial, counsel ascertained that he was ill at his home and was unable to attend ; and that, if granted a postpone- ment, he could secure the attendance of the witness in per- son. However meritorious the application may have been in other respects, it was properly denied, because it wholly failed to show diligence by defendant in its efforts to se- cure the evidence of the witness. The cause had been at issue for several months. The witness was a non-resident of the state of Montana, and beyond the jurisdiction of the court. If the defendant chose to rely upon his promise to attend — if he did make such promise — it did so at its own risk. Under the circumstances, the only safe course to pursue was to take the deposition of the witness. The re- fusal to grant a continuance was, under the circumstances, not such an abuse of discretion as to call for interposition by this court. The case of State v. Metcalf, 17 Mont. 417, 43 Pac. 182, cited by counsel, is not in point. Though the application there made showed that the witness resided in the state of Kansas, it appeared that the defendant knew not] ling of his whereabouts until within so short a time be- fore the trial that it was impossible to take his deposition, and the postponement was asked in order that the defend- ant might be given time to take it. Let tlie judgment and order be affirmed. 'Afirmed. Mr. Justice Smith and Mr. Justice Holloway. concur. Sec. 2J Continuance 165 HARTFORD FIRE INSURANCE COMPANY V. HAMMOND. THE LIVERPOOL AND LONDON AND GLOBE IN- SURANCE COMPANY V. HAMMOND. Supreme Court of Colorado. 1907. 41 Colorado, 323. Mr. Justice Bailey delivered the opinion of the court : The same questions are presented in each of these cases, and we will, therefore, dispose of them in one opinion. The first contention is that the court should have granted a continuance of the trial, asked for by defendants, appel- lants here. It appears that Charles F. Hawkins was a material witness on behalf of the defendants and that he was ill and unable to attend the trial. Because of his absence, defendants requested a postponement and filed an affidavit wherein were stated the facts which Hawkins had been expected to testify to. Plaintiff objected to a continu- ance and admitted that if the witness, Hawkins, were pres- ent he should testify as stated in the affidavit. When this was done the application for a continuance upon that ground was properly overruled. — Code of Civil Proc, sec. 177; Baldwin Coal Co. v. Davis, 15 Colo. App. 371; Flor- ence Oil Co. V. Oil Well Supply Co., 38 Colo. 124. We are unable to find any error in the proceedings in these cases, and therefore, are of the opinion that each of the judgments should be affirmed. Affirmed. Chief Justice Steele and Mr. Justice Goddard concur. 166 Trial Practice [Chap. 4 BROWN V. ABILENE NATIONAL BANK. Supreme Court of Texas. 18S8. 70 Texas, 750. Stayton, Chief Justice. On January 25, 1886, the Abilene National Bank brought an action against B. M. Dangherty on several promissory notes, and sued out a writ of attachment that was levied on property belonging to Daugherty. On March 9, 1886, the appellant filed a plea in intervention, in which he alleged that he had also brought an action against Daugherty, and caused a writ of attach- ment to be levied on the property which the appellee had first caused to be attached. The intervener set up several grounds on which he claimed that precedence should be given to the lien acquired through the attachment sued out by him. On March 12, 1886, a judgment was rendered in favor of the appellee against Daugherty, whereby the at- tachment lien was foreclosed and the proceeds of the at- tached property — the same having been sold and deposited with the clerk — was directed to be paid to the appellee. By that judgment no disposition of the intervention was made. On April 2, 1886, the appellee announced ready for trial on the matters set up in the intervention, and the inter- vener made an application for continuance, which was by the court overruled, and a judgment was then rendered in favor of the appellee against the intervener, who offered no evidence. The action of the court in refusing a continuance is assigned as error. The ruling of the court refusing a continuance, was on the ground that the intervener could not delay the appellee in the assertion and collection of his claim against Daugh- erty. In view of the grounds on which the continuance was sought, it is unnecessary to inquire whether an intervener, in any case, is entitled to a continuance whereby a plaintiff will be delayed in the collection of a judgment against a defendant; or, if he be so entitled, to determine on what terms a continuance upon sufficient showing should be granted. The a])plication for a continuance was based on the absence of witnesses, and it showed that sul)poenas for them were obtained by the intervenor on the day that he Sec. 3] Continuance 167 filed his pleadings in intervention, but it did not show when they were placed in the hands of an officer for service. It showed that the witnesses had been served, but did not state when they were summoned. When a first application for a continuance is sought, by one entitled to ask it, for the want of testimony, the statute requires that such applicant shall state "That he has used due diligence to procure the same, stating such diligence." (Rev. Stats., art. 1277.) No such statements are found in the application, which was verbal, and is con- tained in a bill of exceptions. On an application for a con- tinuance, a court will not assume a necessary fact to exist when the applicant fails or is unwilling to state its exist- ence. Every fact stated in the application may be true, and still due diligence not have been used. The time when the subpoenas were served on the wit- nesses should have been stated, in order that the court might determine whether this was such reasonable time before the trial as would enable the witnesses to be present. {Conner v. Sampson, 22 Texas 20; Stanley v. Epperson, 45 Texas, 650.) No facts are shown by the application which can take this case out of the general rule. There is no error in overruling the application for con- tinuance, and the judgment will be affirmed. Affirmed. Section 3. Absence of Attorney. CICERELLO V. CHESAPEAKE & OHIO RAILWAY COMPANY. Supreme Court of Appeals of West Virginia. 1909. 65 West Virginia, 439. Miller, President. The plaintiff, as personal representative of Frank Olvino, deceased, seeks recovery of damages from defendant, for negligently causing the death of decedent on February 8th, 1907, while employed by Rinehart and Dennis, inde- 168 Trial Practice [Chap. 4 pendent contractors, near Scott Station, in Putnam county, in excavating and widening a hillside cut for another track along defendant's main line. Olvino's duty, as alleged, was to keep defendant's main track cleared of the dirt and rock which fell from the steam shovel employed in making the excavation. The negligence charged is, that defend- ant's servants and employes so carelessly and negligently and with such great force and violence drove and struck against the said Frank Olvino, a certain locomotive with cars attached, thereby inflicting upon him such severe and fatal wounds and injuires, that he then and there died. On the trial there was a verdict and judgment for the plaintiff for $1,500.00, and for errors alleged to have been committed preliminary to and during the progress of the trial, and for refusal of the court below to set aside the ver- dict and award defendant a new trial, the defendant seeks a reversal of the judgment below. Of the preliminary rulings complained of, the first is, that the court refused to continue the case on motion of de- fendant, when called for trial, because of the absence of F. B. Enslow, defendant's leading counsel; and because of the absence of J. B. Thomas, one of its witnesses ; and the sec- ond is, the rejection of defendant's special plea number two tendered. The motion to continue was supported by the affidavits of said Enslow and R. M. Baker, another at- torney for the defendant. Baker was also cross examined on the matter of his affidavit, and the clerk of the court was also examined in relation to the issuance of subpoenas for the witnesses, and the want of service and return thereof. This evidence shows that Enslow was necessarily absent in attendance upon the United States Circuit Court of Ap- peals at Richmond, on the day this case was set for trial, but that Baker, who assisted in the conduct of the trial on behalf of the defendant, was present. The record of the trial shows that Enslow was a member of the well known firm of Simms & Enslow, or Simms, Enslow, Fitz- patrick and Baker, that defendant's special plea number two was signed by Alexander & Barnhart and R. M. Baker, Attorneys, and not by either of the other firms of which Enslow was a member, and that Mr. Alexander was also present and assisted in the trial, and that the defense was conducted with skill and ability. In the case of Rossett v. Sec. 3] Continuance 169 Gardner, 3 W. Va. 531, relied upon, upon the question of the absence of counsel, it was shown that appellant had used due diligence to be prepared for trial ; that one of his coun- sel was unavoidably absent, and that the other, though present on a preceding day, was for some cause, not ex- plained in the record, absent when the cause was heard, and the appellant was left without the aid of any coun- sel. In the present case defendant had able counsel pres- ent to conduct the trial. In the case of Myers and Axtell, Receivers, v. Trice, 86 Va. 835-841-2, the absence of leading counsel on account of sickness, in connection with the ab- sence of an important witness, not summoned by reason of mistake in name, was held good cause for continuance, and denial of the continuance was, on writ of error, held suffi- cient cause for a reversal of tlie judgment. Several cases are cited by the Virginia court in support of its ruling, two from Georgia, one United States Circuit Court decision, and the case of Rhode Island v. Massachusetts, 11 Peters 226. In the latter case, says the Virginia Court, a contin- uance was granted by the Supreme Court of the United States upon the ground that the leading attorney for the state of Rhode Island was ill, although the attorney general of that state was present. The case was of exceptional im- portance says the court, and that the inference was that the court was influenced more by the deep concern and the high importance of the case than by any purpose to ex- emplify the rule in such cases. ''In all such cases, however," says the Virginia court, *'the application should be watched with jealousy, and the discretionary power of the court ex- ercised with caution; but if there is no sufficient reason to induce the belief that the alleged ground of the motion is feigned, a continuance should be granted, rather than to seriously imperil the just determination of the cause by refusing it." This court further says: "Under the pecu- liar circumstances of the present case, and especially in view of the very harsh ruling on the preceding motion, we are clearly of opinion that the circuit court erred in re- fusing to continue the case on the ground of the absence of the leading counsel of the defendants, by reason of sick- ness." With respect to the absence of the witness Thomas, the evidence shows that he was or had been in the emploj^ of the 170 Tbial Peactice [Chap. 4 defendant company, was in fact the fireman on the engine at the time of the killing of Olvino; that a subpoena for him and another witness was secured from the clerk only six days before the case was called for trial and sent to the company's counsel at Huntington; that no return of service thereof on Thomas was made, and the testimony of Baker, counsel for defendant on cross-examination, shows that he sent the subpoena for Thomas to the company's superintendent requesting him to secure the presence of Thomas, who, he was told, was at Hinton, and gave direc- tions that an order be given him on the ticket agent there for transportation. He did not know whether Thomas had been served or provided with transportation. We do not think the record shows due diligence on the part of defend- ant to secure the presence of Thomas. Besides he was only one of the numerous witnesses present at the time of the killing of the deceased, including the engineer, and who were present and examined as witnesses on the trial and gave testimony. Motions for continuance are generally ad- dressed to the sound discretion of the trial court. The judgment of the court thereon not being reviewable on writ of error and appeal unless there has been manifest abuse of such discretion. Mullinax v. Waybrig-ht, 33 W. Va. 84; Halstead v. Eorton, 38 W. Va. 727; State v. Lane, 44 W. Va. 730. It was not shown what was proposed to be proven by the witness. Where the motion to continue is based on the absence of a witness it must be shown that proper diligence to secure his presence has been used, and if there is any ground to suspect that the continuance is for delay, it must appear what evidence the absent witness is expected to give. State v. Broivn, 62 W. Va. 546. In Thompkins v. Burgess, 2 W. Va. 187, and Dimmey v. Wheel- ing, etc., R. Co., 27 W. Va. 33, it is said that on such motion it must be shown that the same facts cannot be proved by any other witness in attendance and that the party whose witness is absent cannot proceed in the absence of such witness. The affidavit of Baker, is that the witness is mater- ial and that defendant cannot prove the same facts by any one else, as he is informed; but on cross examination it is shown that he does not know what Thomas will swear, ex- cept from his report. It is not shown what this report was. U is suggested in brief of counsel, however, that as Thomas Sec. 3] Continuance 171 was fireman on the engine that killed deceased, he would be a material witness, he and the engineer being the only two persons on the engine, and that each seeing what oc- curred from different points of view, this rendered Thomas a most important witness. But other witnesses were pres- ent and gave testimony as to what was seen and heard by them from their several view points, including the ringing of the bell and the blowing of the whistle, and we cannot see that the defendant was greatly prejudiced by the absence of Thomas. We cannot say from this record that there was any abuse of the discretion of the court on the motion to continue. We do not think this a parallel case to the Vir- ginia case. Evidently the court there was more influenced by the arbitrary ruling of the trial court in refusing to con- tinue on the ground of the absence of an important witness than because of the absence of counsel. Affirmed. RANKIN V. CALDWELL. Supreme Court of Idaho. 1908. 15 Idaho, 625. Stewart, J. This is an action to recover possession of two diamond rings, alleged to be of the value of $250 each. The plaintiff alleges that she is the owner and entitled to the possession of said property. The plaintiff did not file the affidavit provided for by the statute, where immediate de- livery is claimed. The defendant answers the complaint and denies the plaintiff's ownership and right of possession of said rings, and denies that they are of the value of $250 each, or any greater sum than $125 each. The defendant admits that he holds and detains said property from the possession of plaintiff, but denies that he does so unlaw- fully, and alleges that said rings were pledged to him as security by one Harry Noyes, and that such pledge was made by and with the consent and approval of the plaintiff. The case was set for trial before a jury sometime prior to February 5,. 1908, and when the case was called for trial 172 Trial, Practice [Chap. 4 on February 5th, the defendant made a motion for a con- tinuance and filed his affidavit made on that day in which he swears "that he cannot safely go to trial at this term of the above-entitled court on account of the absence of his attorney, John Green, who is confined to his bed with ill- ness in Culdesac, Nez Perce county, state of Idaho, and conduct the trial of this case ; that affiant did not know that the said Green would be unable to appear in court at the time this case was set for trial until yesterday morning, the 4th day of February, A. D. 1908; that affiant has con- sulted no other attorney regarding this case, and had re- tained no other attorney, and it would be an injustice to affiant to compel him to go to trial without the presence of his attorney. "That affiant expects to have present for the purpose of testifying in this cause at the trial of the same one George Martin, who is the cashier of the Bank of Culdesac, and who is confined to his bed with illness, and unable to ap- pear to attend the trial of this cause; that affiant did not have a subpoena issued for the said George Martin, for the said Martin agreed and intended to attend upon the trial of this cause, and would have been present had he not been detained on account of illness." The affidavit then continues to set forth what the affiant claims Martin will testify to if present at the trial. An affidavit of Dr. E. L. Burke was also filed, to the effect that Mr. Green was suffering with la grippe, confined to his bed under the instruction of the physician, and that it would be injurious and probably fatal for him to leave his bed or make any effort whatever to appear as an attorney on the 5th day of February. The affidavit of Mr. Green, made February 4th, was also filed to the effect that he was at- torney for the defendant in the above action, and that the defendant had consulted no other attorney concerning his interest in said action, and that he was unable to appear in the district court on the 5th as attorney for the defendant, because of illness. The district court overruled the motion for a continuance, and tlie cause went to trial before a jury and a verdict re- turned for the plaintiff, assessing the damages at $450. A motion for a new trial was made and overruled, and this appeal is from the judgment and from the order overruling Sec. 3] Continuance 173 the motion for a new trial. The first error assigned is, that the trial court erred in overruling the motion for a continuance. It will be observed from an examination of the affidavit that the continuance was asked for upon two grounds : first, because of absence of counsel on account of illness; second, on account of absence of witness, Ijecause of illness and failure to attend. The affidavit shows that John Green, defendant's counsel, was ill and unable to at- tend the trial of said cause ; that defendant had knowledge of this fact on the 4th day of February, the day prior to the day upon which the cause was set for trial. The defend- ant made no effort to secure other counsel and there is no showing in the affidavit that the case was in any way com- plicated or difficult, or that other counsel could not have been procured who could have familiarized himself with and properly tried said case on the 5th. In this respect the affidavit is insufficient. A party to a suit cannot have a post- ponement of the trial upon the ground of illness of coun- sel, without showing diligence on the part of such applicant to secure other counsel or to consult other counsel as to the merits of the case for the purpose of ascertaining whether or not other counsel can be secured who can properly try said case. If the mere fact that counsel for the applicant is ill is sufficient to secure a continuance, then it might be possible to prevent a cause from ever reaching trial. The applicant must show diligence on his part in supplying the place of the counsel who is ill, or show some reason why it is not done. A motion for a continuance is addressed to the sound discretion of the trial court, and his ruling thereon will not be disturbed on appeal, unless it appears that there has been an abuse thereof. (Herron v. Juiy, 1 Ida. 164; Lillienthal v. Anderson, 1 Ida. 676; Cox v. Northwestern Stage Co., 1 Ida. 376; Richardson v. Ruddy, 10 Ida. 151, 77 Pac. 972; Robertson v. Moore, 10 Ida. 115, 77 Pac. 218; Holt V. Gridley, 7 Ida. 416, 63 Pac. 188; Reynolds v. Corhus, 7 Ida. 481, 63 Pac. 884.) It is not an abuse of the legal discretion vested in the trial court to deny an application for a continuance upon the sole ground that applicant's counsel is ill, where no affidavit of merits is filed showing that the applicant has a meritor- ious cause or defense and that other counsel cannot be pro- cured who are able to try said case. {Condon v. Brockway, 174 Trial Practice [Chap. 4 157 111. 90, 41 N. E. 634; Earloe v. Lambie, 132 Cal. 133, 64 Pac. 88; Berentz v. Belmont Oil Co., 148 Cal. 577, 133 Am. St. Rep. 308, 84 Pac. 47; Thompson v. Thornton, 41 Cal. 626.) As to the sufficiency of the affidavit on account of the absence of a witness, the affidavit as to the absence of the witness Martin does not show the facts upon which the statement is made that the witness is ill and unable to at- tend said trial. The affidavit does not allege that the appli- cant knows this as a fact, or disclose from whom he pro- cured the information, or that he himself or the person from whom he procured the information was qualified to say that such witness was too ill to attend said trial. It does not disclose whether the statement is made upon per- sonal knowledge of the affiant or upon information. Nei- ther does the affidavit show any diligence exercised by the applicant to procure the attendance of the witness. The fact that the witness agreed to be present is not such a showing of diligence as will be sufficient to secure a con- tinuance for failure of such witness to attend. A party is not entitled to a continuance of a cause without showing due diligence and the use of legal means to procure the desired evidence. A bare request to furnish the evidence is in no sense a compliance with the requirements of the law. {Alvord V. United States, 1 Ida. 585; Kuhland v. Sedgwick, 17 Cal. 123; Lightner v. Menzel, 35 Cal. 452.) For these reasons the court committed no error in overruling the motion for a continuance. ********** We find no error in the record in this case, and the judg- ment will be affirmed. Costs awarded to respondent. AiLSHiE, C. J., and Sullivan, J., concur. Sec. 4] Continuance 175 Section 4. Absence of Party. JAFFE V. LILIENTHAL. Supreme Court of California. 1894. 101 California, 175. Haynes, C. — On the 21st of December, 1891, this cause was set for trial for January 6, 1892. On that day plaint- iff's attorney moved for a continuance upon affidavits of the plaintiff and his physician showing in substance that the plaintiff, who then and for about a year prior thereto re- sided in Seattle, Washington, was confined to his room by an attack of acute rheumatism to which he was subject, and was wholly unable to move or leave his room, and in the opinion of his physician would not be able to leave his room in less than two months. The affidavit of plaintiff further stated that his presence at the trial was indispensably nec- essary; that he was the only person who knew the where- abouts of the witnesses necessary to be called on his behalf; that their names had not been communicated to his attor- ney, nor the matters to which they would testify. D. M, Delmas, Esq., attorney for plaintiff, also presented his own affidavit that plaintiff's presence was necessary, that he did not know the names of plaintiff's witnesses, nor the details of the case. No counter-affidavits were presented. The continuance was denied, plaintiff's attorney left the courtroom, and a judgment was entered for nonappearance of the plaintiff, and the plaintiff appeals. "VVe think the court erred in not granting a continuance. Respondent suggests that it does not appear that plaintiff was a witness, nor that his attorney used any diligence to prepare for the trial. It seldom happens that a trial can be properly liad in thS absence of the plaintiff, even where he is disqualified as a witness, especially where it is to be tried upon oral testi- mony. With all the care that can reasonably be taken' by both attorney and client, some matter of vital importance is liable to be overlooked by them until the trial calls it to the recollection of the plaintiff, and this is especially true in relation to matters purely in rebuttal. It is the right 176 Trial Practice [Chap. 4 of parties tb be present at the trial of their cases. This right may be waived, and should be held to be waived where the absence of the party is voluntary and under cir- cumstances which ought not to induce a reasonable man having a due regard for the rights and interests of others and of the public, all of whom are interested in the due and prompt administration of justice, to absent himself. So far as the want of preparation on the part of the at- torney is concerned, the most laborious and painstaking preparation on his part would not have prevented the sick- ness and absence of his client; nor does it appear that if the plaintiff had not been sick the necessary preparation could not have been made after the case was set for trial. Eespondent further contends that the affidavits do not show the materiality of the evidence expected to be ob- tained. The application for continuance was not made under sec- tion 595 of the Code of Civil Procedure, but under section 594, which authorizes the court ''for good cause" to post- pone the trial in the absence of a party. The consequences of a dismissal of an action because of the absence of a plaintiff should always be considered, especially where any reasonable excuse is shown for his absence, as where a plea of the statute of limitations could be interposed to a new action. In such case the dismissal is the absolute destruc- tion of the plaintiff's right, and so serious a penalty should not be imposed unless the due administration of justice clearly requires it. The judgment appealed from should be reversed. Vanclief^ C, and Searls, C, concurred. For the reasons given in the foregoing opinion, the judg- ment appealed from is reversed. Fitzgerald, J., De Haven, J. McFarland, J. — I concur in the judgment. Sec. 5] Continuance 177 Section 5. Withdrawal of Jurob. USBORNE V. STEPHENSON. Supreme Court of Oregon. 1899. 36 Oregon, 328. * * * On the day set for the trial, but before the jury was called, the plaintiff moved for a continuance on account of the absence of material testimony; basing his motion upon an affidavit of his counsel to the effect that he could not safely proceed to trial without the depositions of several residents of London. The motion being denied, a jury was impaneled and sworn; but, before any evidence had been given, the plaintiff filed a motion for permission to with- draw a juror, based upon an affidavit of his counsel sub- stantially the same as the one filed in support of the motion for a continuance, except that it contained a statement to the effect that the cause had been set down for hearing in violation of a verbal understanding and agreement with counsel for defendants, which, however, was denied by a counter affidavit. This motion was likewise denied, and the cause proceeded to trial, resulting in a judgment in favor of defendants for the sum of $537. Oi, from which the plain- tiff appeals, assigning as error the overruling of his mofion to withdraw a juror, and certain instructions given to the jury. Ajjirmed. Mr. Justice Bean, after stating the facts, delivered the opinion of the court. 1. This is the first attempt, so far as we are advised, to invoke in this state the practice of withdrawing a juror. There is but little satisfactory information to be obtained from the books in regard to the ancient practice, which used to be resorted to when a party was taken by surprise on a trial, of withdrawing a juror, and thus causing a mis- trial, and, of necessity, a postponement of the case. It was originally confined to criminal cases, and seems to have been adopted for the purpose of avoiding a rule which once obtained, based largely upon a dictum of Lord Coke, that a jury sworn and charged in any criminal case could not be T. p.— 12 178 Tbial Pkacticb [Chap. 4 discharged without giving a verdict. To escape the effect of this rule, and yet apparently observe it to the letter, the courts resorted to the fiction of directing the clerk to call a juror out of the box, when it appeared that the prosecution was taken by surprise on the trial, whereupon the prosecu- tion objected, or was supposed to object, to proceeding with the eleven jurors, and the trial went over for the term: 2 Hawk, P. C. 619; 2 Hale, P. C. 294; Wedderburn's Case, Fost. 22; People v. Olcott, 2 Johns. Cas. 301 (1 Am. Dec. 168); United States v. CooUdge, 2 Gall. 363 (Fed. Cas. No. 14,858). It was nothing more, however, than a means of obtaining a continuance or postponement of the trial after the jury had been impaneled and sworn. At first it was thought this could be done only by the court ordering the discharge of one of the jurors, and then holding that, as the case could not be tried before the remaining eleven, it must be continued. But after the doctrine of Lord Coke had been repudiated, and it became the settled rule that it was within the power of the court, in a proper case, to discharge the jury after it had been impaneled and sworn, and continue the cause, the device of withdrawing a juror seems to have become practically obsolete, and but little, if any, reference to it as a substantive practice is to be thereafter found in the books. That it ever prevailed at common law in civil cases is very doubtful. No case has come under our observation in which it was resorted to in England. Indeed, the only reference we have been able to find to the question in the early authorities is a note to Chedwick v. Hughes, Carth. 464, in which it is stated that Lord Chief Justice Holt, in a case of perjury tried before him, said that it was the opinion of all the judges of Eng- land, upon debate between them, that in civil cases a juror cannot be withdrawn but by consent of all parties. And while the authority of this note underwent a critical exami- nation in the subsequent case of Sir John Wedderhurn, Fost. 28, from which its authority is rendered rather ques- tionable, it seems to be the only reference to the practice in civil cases. It was early ruled, however, in this country, by the courts of New York, after some hesitation, that a court may allow a juror to be withdrawn in a civil case, when necessary to save the plaintiff from the consequence of a fatal mistake in his testimony: People v. Judges of Sec. 5] Continuance 179 'Bew York, 8 Cow, 127. And we believe it is still regarded as a proper practice in that state, and is open to either party: Bishop, Code PI. sec. 428; Dillon v. Cockcroft, 90 N. Y. 649; Messenger v. Fourth Nat. Bank, 48 How. Prac. 542. But, so far as we have been able to ascertain, it does not prevail elsewhere in this country; the same result being accomiDlished by a direct application to the court for a post- ponement of the trial: 4 Enc. PI. & Prac. 863. We are therefore of the opinion that the motion was properly denied on the ground that no such jDractice prevails in this state. 2. But, however that may be, whatever authorities there are on the subject all agree that the practice can be re- sorted to only when a party finds himself taken by surprise on the trial, and when further proceeding therewith would be productive of great hardship or manifest injustice to him. Mr. BishojD, in the section of his work on Code Pleading al- ready recited, in speaking of the New York practice, says : '* Instead of submitting to a nonsuit, the plaintiff, if he finds himself taken by surprise on the tiral, — as by the absence of a witness who has been in attendance, or by the unex- pected presentation of evidence by his adversary which he is not prepared to meet, or by any accident which might render the further progress of the trial disastrous and un- fair to him, — may ask the court to withdraw a juror. The result of this application, if granted, will be to produce a mistrial; and the court may then continue the pending ac- tion, and set the trial over to a future da}^, when the plaintiff may come properly prepared to try the case afresh. ' ' With- in this rule, the plaintiff's motion was likewise properly denied, because it is not based upon anything occurring at the trial, but upon matters happening long prior thereto, and which could be, and were, properly submitted to the court in support of the motion for a continuance made be- fore the jury was empaneled. ********** This disposes of the questions made on the appeal, and, there being no error in the record, we have no alternative but to affirm the judgment. Affirmed.^ ^The practice of withdrawing a juror in civil causes is familiar in several states. Eosengarten v. Central Railroad Company of New Jersey, (1903) 69 N. ISO Trial Peactice [Chap. 4 J. L. 220, 54 Atl. 564; McKahan v. Baltimore & Ohio R. R. Co., (1909) 223 Pa. St. 1, 72 Atl. 251; Smith v. Chicago Junction Ry. Co., (1906) 127 111, App. 89; Crane v. Blaekman, (1901) 100 111. App. 565; Cattano v. Metropolitan Street Ry. Co., (1903) 173 N. Y. 565, 66 N. E. 563; Rawson v. Silo, (1905) 105 N. Y. App. Div. 278, 93 N. Y. Suppl. 416. In Planer v. Smith, (1876) 40 Wis. 31, the court said: "The power of the circuit court, in a proper case, to permit a juror to be withdrawn, or to order a nonsuit, is undoubted; but there is no necessary connection between the two processes. The withdrawal of a juror operates to continue the cause, and does not of itself entitle the defendant to a judgment of any kind. If a nonsuit be properly granted, the withdrawal of a juror as preliminary thereto is en- tirely superfluous and harmless. But if judgment of nonsuit be rendered merely because a juror has been withdrawn, such judgment is founded upon a misapprehension of the legal effect of withdrawing a juror, and is erroneous." Section 6. Teems. MAUND V. LOEB. Supreme Court of Alabama. 1888. 87 Alabama, 374. Clopton, J. The continuance of a case is in the discre- tion of the court, and such terms may be imposed, under the rule of iDractice, as to the court may seem proper. At the Fall term, 1888, of the Circuit Court, defendant obtained a continuance, upon payment of all the costs as a condition precedent, to be paid in ninety days, or judgment to go against him at the next term. The costs were not paid until the first day of the next term, and after the case was called for trial, which was more than ninety days from the time of the order. Defendant having applied for, obtained, and accepted the continuance, we must infer that he consented to the terms upon which it was granted. It was no excuse, that an itemized bill of costs had not been furnished, when it is not shown that defendant otfered to pay the costs, or applied for such bill; and the court was not bound to ac- cept payment after the expiration of the prescribed time, as a compliance with the condition upon which the con- tinuance was obtained. The court was authorized to render judgment nil dicit against defendant. Waller v. Sultz- lacher, 38 Ala. 318. Afirmed. CHAPTER V. THE JURY. Section 1. Eight to a Juey Trial. LEE V. CONRAN. Supreme Court of Missouri. 1908. 213 Missouri, 404. Woodson, J. — This suit is based upon section 650, Ee- vised Statutes 1899, to determine and quiet title to the lands described in the petition. ********** 1. The first insistence of appellant is that the action of the trial court in refusing him a trial by jury was error. So far as I am aware, this court has never jDassed directly upon the question as to whether or not the parties to a suit based upon section 650, Revised Statutes 1899, are entitled to a jury. In order to properly determine that question we must first ascertain the nature of the issues joined and the rem- edy the parties are entitled to under the pleadings. If the issues joined entitled the parties to an ordinary judg- ment at law, then, under the Constitution and the laws of the State, the parties are entitled to a trial by a jury; but if the issues tendered are equitable in their nature and call for equitable relief, then the cause is triable before the chancellor. Section 28 of article 2 of the Constitution of 1875 pro- vides that "The right of trial by jury, as heretofore en- joyed, shall remain inviolate." This court, in the case of State V. Bockstruck, 136 Mo. 1. c. 358, held that the constitu- tional guaranty of "the right of trial by jury as hereto- fore enjoyed" has reference to the status of that right as it existed at the time of the adoption of the Constitution. And this court, in the case of State ex rel. v. Withrow, 133 181 182 Trial Practice [Chap. 5 Mo. 1. c. 519, held that said section 28 ''means that all the substantial incidents and consequences which pertained to the right of trial by jury are beyond the reach of hostile legislation, and are preserved in their ancient substantial extent as existed at common law." In order to determine whether the case at bar comes within the meaning of that section of the Constitution, as interpreted by those adjudications, we must first de- termine what the issue tendered by the pleadings is, and, after doing so, we must then ascertain how that issue was triable before the adoption of that constitutional provis- ion ; if by jury, then either party is entitled to a trial of that issue by a jury regardless of any statutory provision; but if it was not triable by jury prior to that time, then the Constitution does not govern, and we would then look to the statutes and the common law for a rule by which to solve the question. We will first determine the nature of the issue presented by the pleadings. The petition charges that the plaintiff is the owner of the land described therein, and that de- fendant claims some interest or estate therein, the nature of which is unknown to plaintiff, except that it is adverse and prejudicial to his interests. The answer denies the allegations of plaintiff's ownership, and alleges that the lands are accretions; that plaintiff claims that they ac- creted to his patent land on the Missouri side of the Missis- sippi river; that he claims and charges the fact to be that they are accretions to an island formed and located in the Mississippi river ; that under an act approved April 8, 1895, the title to such lands vested in the county for the use of the public schools ; and that he purchased them from the county of New Madrid. When reduced to its final analysis, the issue is plainly one of accretion — that is, was the land in question accreted and added to the shore line of plaint- iff's land, by gradual and imperceptible alluvial deposits, or was it added by that means to the lands of the island? Tf to the former, then the title is in plaintiff as charged in bis petition; but if to tlie latter, tlion they belong to the defendant. That is the sole and only question presented by the pleadings; and that was the finding and judgment of tlie trial court. Having rk'teiniined that the issue is one of accertion, we Aw w I Sec. 1] The Juey 183 will DOW ascertain in what manner that issue was triable at common law and under the statute of this State prior to the adoption of the constitutional provision. I have been unable to find a case in this State where that precise ques- tion has been decided, yet by an examination of numerous cases, which fill our reports, involving the question of ac- cretion, I find that they were invariably tried before a jury, except in a few cases where a jury was waived. In addi- tion to that, I might add that during the thirty years I have been practicing law and occupying the bench, I have never seen or heard of a case in which it was contended that the question of accretion was not triable by a jury. Clearly that was the practice prior to the passage of section 650, Kevised Statutes 1899, which was enacted in the year 1897. All suits in this State prior to that enactment involving questions of accretion were possessory actions, and were for the recovery of specific real property. In fact, without that section, I know of no way in which the question of ac- cretion could be tried, except by ejectment, which has al- ways been triable by jury, excepting, of course, those cases where the answer set up an equitable defense and crossbill and asked for affirmative relief, which were and are triable before the chancellor without the aid of a jury. If it be true that prior to the adoption of the constitutional pro- vision mentioned the question of accretion was triable alone in some action involving the recovery of the specific land accreted, then under the express provisions of section 691, Kevised Statutes 1899, which was enacted long prior to the adoption of the Constitution of 1875, the issue was triable by a jury. That section of the statute provides that, ''An issue of fact in an action for the recovery * * * of specific real or personal property must be tried by a jury," etc. From these observations it seems to be clear that the question of title by accretion was one triable by a jury prior to the adoption of said section 28 of the Constitution; and, consequently, in obedience to its mandate, any action in- volving that issue must still be triable by a jury regardless of any subsequent legislation upon the subject. We are, therefore, of the opinion the court erred in re- fusing defendant a trial by a jury. 184 Trial Peactice [Chap. 5 We are, therefore, of the opinion that the judgment shoiild be reversed and the canse remanded for a new trial. It is so ordered. AU concur, except Valliant, P. J., absent. Section 2. Wai\t:r of Jury. SCHUMACHER V. CRANE-CHURCHILL COMPANY. Supreme Court of Nebraska. 1902. 66 Nebraska, 440. Pound, C. Although a number of difficult and interesting questions were argued, we need only consider the assignment that the court erred in denying the plaintiff a jury trial. The action is in ejectment. After the defendant had answered, plaint- iff moved that the cause be transferred to the equity docket, for the reason that certain equitable defenses were set up. This motion was granted, the cause was transferred, and at the May term, 1900, the whole case was tried to the court, without objection, and a judgment rendered. At the same term this judgment was vacated and the cause re- submitted, without further trial, after which a new judg- ment was entered. Thereupon the plaintiff moved for a new trial under section 630, Code of Civil Procedure, and an order was entered, pursuant to said section, sus- taining the motion and continuing tlie cause to the next term. At the February term, 1901, as the cause was com- ing on for trial, tlie plaintiff filed a written motion or de- mand that a jury pass upon the issues of a legal nature, namely, whether he had a legal estate in the premises in controversy and was entitled to possession thereof. The motion was overruled, and the request was denied, to which the plaintiff excepted. Thereafter, in due course, the whole cause was tried to the court, over plaintiff's objection, and findings and judgment were entered, from which he pro- secutes error. We are satisfied that the order transferring the cause to Sec. 2] The Juky 185 the equity docket because of the equitable defenses set up in the answer did not preclude the party who procured the order from demanding that the purely legal issues be tried by jury, if his request for a jury trial was timely and was insisted upon. It has been decided that an order transfer- ring a cause to the equity docket is not an adjudication that the parties are not entitled to a jury trial, and that if demand is made prior to the time the cause is called for trial, it is error to deny a jury. Lett v. Hammond, 59 Nebr. 339. In that case, the cause was transferred at the instance of one party, while the other demanded a jury. But the distinction would not be material unless it could be said that the application to have the cause transferred was an assertion that there was nothing for a jury to trj^, and es- topped the moving party from assuming a contrary posi- tion subsequently. This car not be true, for the same rea- son that the order transferring the cause is not a decision whether the parties are entitled to a jury. The whole case is not of necessity triable to the court without a jury be- cause there are incidental issues which are equitable in their nature. Lett v. Hammond, supra; Yager v. Exchange Nat. Bank, 52 Nebr. 321. By asking for the transfer, plaintiff merely asserted that there were equitable issues proper for the court to decide. He did not assert that there was nothing for a jury. Under a practice not unlike ours, it has been held more than once that consent that a case in which the facts require both equitable and legal relief should be placed on the equity docket for trial does not of itself waive the right to have the issues requiring purely legal relief tried bv a jury. Wheelock v. Lee, 74 N. Y. 495 : Underhill v. Manhattan R. Co., 27 Abb. N. Cas. (N. Y.), 478; Eggers v. Manhattan R. Co., 27 Abb. N. Cas. (N. Y.), 463. This must be so, since the practice of trying to the court the equitable defenses, by reason of which the right to maintain the action at law is challenged, and thereafter, if the disposition of the equitable defenses makes it neces- sary, trj'ing the purely legal controversy, which is the gist of the case, to a jury, is well settled. Arguello v. E dinger, 10 Cal. 150; Sicasey v. Adair, 88 Cal. 179, 25 Pac. Rep. l\V^',Basey v. Gallagher, 20 Wall. (U. S.), 670; Smith v. Bryce, 17 S. Car. 538, 544. AVe think, therefore, that the motion to transfer the cause to the equity docket and the 186 Trial Practice [Chap. 5 order in accordance therewith, did not, of themselves, amount to waiver of a jury, especially as the equitable de- fenses in this case were relatively of little moment. There can be no doubt, however, that the plaintiff waived a jury at the first trial by going to trial upon all the issues with- out demanding a jury as to any of them. The statutory method of waiving a jury is not exclusive. Any unequivocal acts or conduct which clearly show a willingness or intention to forego the right, and are so treated by the trial court without objection, will have that effect. McCarty v. Hop- kins, 61 Nebr. 550; Poppitz v. German Ins. Co., 85 Minn, 188, 88 N. W. Rep. 438. AYhen the whole case was tried and submitted to the court without objection, the right to a jury was waived. Baumann v. Franse, 37 Nebr. 807; Gregory v. Lancaster County Bank, 16 Nebr. 411. It becomes necessary to consider next whether waiver of a jury at the first trial operated to prevent the plaintiff from demanding one at the second trial, after the judg- ment had been set aside under section 630, Code of Civil Procedure. The waiver arose by implication only, and was not made by stipulation or agreement in open court. But we do not think that circumstance material. In either event, when a trial has been had to the court, pursuant to the waiver, the waiver has done its work and lost its force ; and when subsequently, for any reason, an entirely new trial becomes necessary, neither party is precluded by the action taken with reference to the former trial, but may de- mand a jury, or not, as he is advised or may elect. In Cochran v. Stewart, 66 Minn. 152, 68 N. W. Rep. 972, this very question was presented under circumstances not with- out analogy to the case at bar. The action was one in eject- ment, and it was claimed that a waiver of a jury at the first trial operated to waive a jury at the second trial, ob- tainable as of course under the statute. The court held that it was of no force at the second trial, saying: '^ Con- ditions may be wholly different at the second trial from what they were at the first. There may be a different judge, and the jury to be obtained may also be different in char- actor. Then it is hardly fair to presume that by waiving a jury for one trial the parties intended to waive a jury for any further trial that may be had under the statute, and we can not hold this to be the meaning of their agree- Sec. 2] The Jury 187 ment." In Cross v. State, 78 Ala. 430, the court held for substantially the same reasons, that such a waiver should be construed, ordinarily, to apply only to the partic- ular trial with reference to which it is made. And it seems to be well settled that the waiver will not prevent a de- mand for jury trial at a second trial after the cause has been remanded from an appellate court. Hopkins v. San- ford, 41 Mich. 243, 2 N. W. Rep. 39; Benhoiv v. Bobbins, 72 N. Car. 422; Osgood v. Skinner, 186 111. 491, 57 N. E. Rep. 1041; Burnliam v. North Chicago St. B. Co., 32 C. C. A. 64, 88 Fed. Rep. 627. The many cases which bold that a waiver of jury trial may not be withdrawn are not in point, since, until the trial has been had, it may be said plausibly that the parties are bound by their election as to the form of trial. Moreover, there are well-considered authorities to the contrary. Ferrea v. Chabot, 121 Cal. 233, 53 Pac. Rep. 689, 1092; Wittenberg v. Onsgard, 78 Minn. 342, 81 N. W. Rep. 14, 47 L. R. A. 141; Broivn v. Cheno- ivorth, 51 Tex. 469. Neither is our conclusion affected by Boslow v. Shenberger, 52 Nebr. 164, QQ Am. St. Rep. 487. In that case, there had been a waiver, at a previous term, and it was presumed that the waiver was general, and not limited to the term at which it was made, in the absence of anything in the record to the contrary. No trial had been had, and until there was a trial, the waiver entered into with reference thereto remained in force. We recommend that the judgment be reversed and the cause remanded for a new trial. Bar^stes and Oldham, CO., concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause is remanded for a new trial. Reversed and remanded. 188 Trial Practice [Chap. 5 Section 3, Objections to the Panel. LOUISVILLE, HENDERSON & ST. LOUIS RAILWAY COMPANY V. SCHWAB. Court of Appeals of Kentucky. 1907, 127 Kentucky, 82. Opinion of the Court by Judge Carroll — Reversing. Appellee, alleging that she was injured in a collision be- tween a freight train operated by appellant Louisville, Henderson & St. Louis Railway Company and one of the cars of appellant Louisville Railway Company, caused by the negligence of the companies, brought this action to re- cover damages from each of them. A trial was had before a ju-ry, and a verdict rendered against both appellants. The principal error assigned by appellants is the failure of the trial court to sustain the motion made by them at the beginning of the trial to discharge the panel for miscon- duct of the jury commissioners in failing to select the jurors in the manner prescribed by the statute, "in that the com- missioners did not write the name of each juror on a slip of paper and place them in the drum wheel, but merely checked off names on the assessor's book and employed others not under oath to do the really important work of writing off the names and putting them in the wheel; the persons so employed not being under the direct supervision of the commissioners, who did not know whether they did the work assigned to them right or wrong." * * * Ky. St. 1903, section 2241, provides in part that ''the cir- cuit judge of each county shall at the first regular term of circuit court therein after this act takes effect, and annual- ly thereafter, appoint three intelligent and discreet house- kee})ers of the county, over twenty-one years of age, resid- ing in different portions of the county, and having no ac- tion in court requiring the intervention of a jury, as jury commissioners for one 3'ear, who shall be sworn in open coiii't to faithfully discharge their duty. They shall hold their meetings in some room to be designated by the judge, and while engaged in making the list of juries and select- ing the names, writing and dej^ositing or drawing theit Sec. 3] The Jury 189 from the drum or wheel case, no person shall be permitted in said room with them. They shall take the last returned assessor's book of the county and from it carefully select from the intelligent, sober, discreet and impartial citizens, resident housekeepers in different portions of the county, over twenty-one years of age, the following number of names of such persons, to-wit: (then follows the number that shall be selected from each county, graded according to the population.) Each name so selected they shall write in jDlain handwriting on a small slip of paper, each slip of paper being as near the same size and appearance as practicable ; and each slip with the name written thereon shall be by them enclosed in a small case made of paper or other material and deposited unsealed in the revolving drum or wheel case hereinafter provided for." In answer to the argument made for appellants, it is said for appellee that the record does not show that the substantial rights of appellants were prejudiced by the action of the court in overruling the challenge to the array ; * * * The record does not disclose that the members of the panel from which the jurors were selected to try the case were in any respect objectionable, and in this partic- ular the substantial rights of appellants were not preju- diced by the rulings of the trial court ; but, in a matter that strikes at the very foundation of our system of selecting jurors, we do not deem it material or necessary that any prejudicial error shall be made to apj)ear, other than a substantial one committed in failing to select the juries in the manner pointed out in the statute. It is probable that the jurors selected to and that did try this particular case were men who possessed all the statutory qualifications; and it may also be conceded that they were entirely ac- ceptable to counsel and parties on both sides. But back of this is the more important question that litigants have the unqualified right to demand that juries shall be selected in the manner prescribed in the statute, and in passing on this right the individual qualification of the juror or the fact that he may be entirely acce]itable to the parties is not to be considered. If the contention of appellee was sound, the careful and elaborate scheme devised for selecting juries would be nullified, the statute would be a dead letter, and no inquiry could be made into the manner in which jurors 190 Trial Peactice [Cliap. 5 were originally chosen, if those selected to try the particular case possessed the statutory qualifications and were person- ally satisfactory. The Legislature, in obedience to a pop- ular demand that a radical change be made in the manner of selecting juries, after long delay and much discussion, enacted the statute now in force; and this court in more than one case has given to this law the sanction of its ap- proval and declared that its efficiency shall not be impaired or destroyed by the failure of public officers to observe its requirements. Thus, in Curtis v. Com., 23 Ky. Law Rep. 267, 62 S. W. 886, a motion was made to discharge the entire panel of petit jurors, because the names of the jurors were not drawn from the jury wheel as they should have been, but were selected from a list regularly summoned in a previous month. This being a criminal case, this court had no power to review the action of the trial court in overruling the challenge to the array, but in the course of the opinion said: "These men so selected may have been, and doubt- less were, of the very best citizenship in the county; but they were not drawn impartially from the body of legally qualified jurymen of the county. The mode provided by law for the selection of qualified and impartial jurymen was ignored, and the jury were selected by the judge of the circuit court himself. This was clearly erroneous. He may have done this with the very best of motive, but it was not the method provided by law, and should not have been done." In Covington & Cincinnati Bridge Co. v. Smith, 25 Ky. Law Kep. 2292, 88 S. W. 440, in discussing this jury law, the court said: "The statutes quoted provide an elab- orate system for the selection monthly in courts of con- tinuous session of impartial jurymen fresh from the body of the people. If these provisions are enforced, each liti- gant is guaranteed that the best effort possible has been made to secure for the trial of his case an impartial jury. It is not believed that the requirements in the statute in regard to the selection of juries would have been set forth with such minute particularity and detail, if it had been intended that the court might nullify the manifest inten- tion of the Legislature by ignoring them." In Risner v. Com., 95 Ky. 539, 26 S. W. 388, 16 Ky. Law Rep. 84, the jury commissioners did not put in the wheel the number of names Sec. 3] The Juby 191 required, and the court said: "Wliile it is not made to di- rectly or certainly appear that appellant was thereby sub- stantially prejudiced, still he had the right to insist upon be- ing tried by only a jury obtained according to the statute, which was passed for the purpose of securing fair and im- 13artial jurors; and, to more effectually accomplish that end, the names of at least 200 persons should have been placed in the drum or wheel case. This provision cannot be disre- garded in any substantial particular without defeating one of the principal purposes of the statute." Central Ken- tucky Asylum for the Insane v. Hauns, 21 Ky. Law Rep. 22, 50 S. W. 978, to which our attention is called by counsel for api)ellee, is not in point; nor is it in conflict with the authorities cited. There the objection to the manner in which the jury was selected was not made until after the trial was completed, and hence came too late to be avail- able. If the methods avowed to have been adopted in this case by the commissioners are upheld, all the safeguards thrown around the selection of juries will be virtually abolished, and the effort of the legislative department to improve and elevate the jury system a failure. The juries are almost entirely composed of men selected by the commissioners, and this power confided to them cannot be delegated in whole or in part to others. No minor officers connected with the administration of justice have more important duties to perform than do the jury commissioners. Upon their judgment and discretion in the selection of intelligent, sober, discreet, and impartial citizens and housekeepers of the county depends in a large measure the pure and im- partial administration of justice in the conduct of jury trials, and this valuable privilege ought not and will not be frittered away merely because delay or inconvenience to the court or litigants may result from sustaining a chal- lenge to the array because of substantial irregularity in the selection of the juries. It is iafinitely better that there should be some delay in the trial of cases or inconvenience suffered by individuals than that a statute intended to safe- guard the rights of all litigants should be totally disre- garded. If the mistake or irregularity was a minor one, we would not regard it as material; but, if the avowals made are true, the statute was violated in several substan- 192 Teial Peactice [Chap. 5 tial particulars. The provisions disregarded are not direc- tory, but mandatory. They constitute the very substance and life of the law, and may not lightly be ignored or dis- obeyed. No fraud or improper purpose can be imputed to these commissioners, nor is it necessary that it should be. Doubtless they acted in good faith, but nevertheless in open disobedience of the law under which they were selected, and their conduct can neither be overlooked nor approved. For the error mentioned, the judgment must be re- versed} * * * ULLMAN V. STATE. Supreme Court of Wisconsin. 1905. 124 Wisconsin, 602. Plaintiff in error was duly informed against as having on the 3rd day of August, 1902, at Dodge County, Wiscon- sin, made an assault on Ida Ullman with a loaded revolver with intent her, the said Ida Ullman, to kill and murder. In due time and form he entered a plea of not guilty, and was tried in October, 1903, in the circuit court for Dodge county. Makshall, J. Before the impaneling the jury for the trial was commenced, counsel for the accused said he de- sired to "file a challenge to the array of jurors," accom- panying such statement by presenting a paper in that re- gard, which was placed on file. Such paper was not in- corporated into the bill of exceptions, neither does the bill show in any formal way the grounds of the challenge. The proceedings had in respect to the matter show i3retty clearly what such grounds were. The point is made by the attorney general tliat such a challenge must be made in writing, stat- ing specifically the grounds thereof, and that the writing must bo embodied in the bill of exceptions in order to en- aI)lo this court to review the decision of the trial court in re- spect thereto. If that be correct, whether the decision over- Sec. 3] The Jury 193 ' ruling the challenge to the array was proper or not, is not before us. At common law a challenge to the array was required to be made in writing, stating specifically the grounds relied on. An issue of law or fact was then formed in respect thereto, which was tried by the court, if one of law, and by triers appointed by the court, if of fact. Under our statu- tory system for selecting and returning jurors there is no challenge to the array in the strict common-law sense. The Code was designed to be as complete for the trial of crimi- nal as for the trial of civil cases. It makes no provision for a challenge to the array, or for any equivalent pro- ceeding. One is liable to fall into confusion in respect to the matter by failing to note the fact that most of the de- cisions in this country in Code states, where it is said that a challenge to the array must be in writing, are based on statutory requirements. In Iowa, where there is an ex- press provision for a challenge to the entire panel, it is said that the common-law challenge to the array does not exist. State v. Davis, 41 Iowa, 311. It is said in cases de- cided in New York, California, Texas, Michigan, Minne- sota, Mississippi, and other states that might be mentioned, that a challenge to the array must be in writing, but it will be found on investigation that such decisions merely follow statutory requirements. The ancient method of trying is- sues of fact raised on such challenge is obsolete. All is- sues, whether of law or fact, on an abjection to the entire panel of jurors are now triable summarily by the court, whether the making of the challenge is regulated by statute or is a mere matter of practice regulated by the court. Trial courts have inherent authority, and it is their duty, to permit and give consideration to objections seasonably and properly made to the entire panel of jurors, based upon grounds specifically stated, which, if true, indicate that the statutory method of selecting jurors was prejudicially de- parted from. The motion or objection may properly be, as it commonly has been in this state under the Code, called a challenge to the array. State v. Cameron, 2 Pin. 490; ConJi-ey v. Norfhern Bank, 6 Wis. 447; Perry v. State, 9 Wis. 19. But that does not imply that it must be regarded as having all the common law characteristics. It has only such of them as are appropriate to our judicial system. It T. p.— 13 194 Trial Peactice [Chap. 5 is said in 12 Ency. PI. & Pr. 426: ''At common law a chal- lenge to the array was required to be in writing, and where this requirement has not been abrogated by statute the rule of the common law is still in force," citing authorities from seven states, in each of which, however, the matter is regu- lated by statute. There is neither any statute nor rule of court nor de- cisions in this state regulating definitely the practice as to objecting to the entire panel of jurors. The right to make such an objection, however, has always been recognized, and exists by well established practice. It makes no very great difference how the question of the validity of the panel is raised so long as the grounds thereof are brought definitely to the attention of the court. It may be in the form of an objection to the entire panel, or a motion to quash the return thereof, or be made in the set phrase of a challenge to the array. Mere form is of little consequence when not necessary by statute. The spirit of the Code, gen- erally speaking, is that the substance of things only is material. If it were the practice to make the objection only in writing and to denominate it by any particular name, and the trial court were to permit a violation thereof and entertain the matter nevertheless, unless it appeared that the adverse party was prejudiced thereby the error would be regarded as harmless under sec. 2829, Stats. 1898. While it is good practice to make a challenge to the ar- ray, so called, in writing, since there is no statute requir- ing it to be so made, and a stenographer is now a part of the regular machinery of a trial court, who is expected to take down accurately everything that occurs in the course of a trial, the reason, in the main, for the common-law rule as to the manner of presenting the challenge, no longer ex- ists. It should therefore be deemed entirely sufficient if the challenge is stated definitely at the bar of the court and taken down by the stenographer. It was early held here in harmony with the common-law rule that the grounds of a challenge to the array should be specifically stated. Conhey v. Northern Bank, 6 Wis. 447. That should be regarded as the settled practice. Though the trial court has some discretion as to how specifically the grounds of challenge must be stated, the statement should be sufficiently full and definite to inform the trial Sec. 3] The Jury 195 court and the adverse party reasonably of the precise de- partures from the legal requirements relied upon. The right of challenge should be exercised before commencing to impanel the jury, otherwise it should be deemed waived. 12 Ency. PI. & Pr. 424. No departure from that rule is per- missible except for extraordinary reasons. In this case the practice as to the time of making the objection, motion, or challenge and the manner thereof, ex- cept in that the specific grounds relied on do not appear in the bill of exceptions, the writing in respect thereto being absent therefrom, was proper. The practice of the court also in treating the grounds assigned for the challenge, not admitted by the adverse party, as at issue and sum- marily trying the issues, was proper. Since such grounds were not formerly stated, taken down by the stenographer, and preserved in the bill, and the writing filed was not so preserved we might properly omit consideration thereof. However, since it appears that the questions raised by the challenge were fully tried and the grounds with reason- able clearness appear from the evidence, we have concluded to treat the matter. The evidence taken upon the trial of .the issues involved in the challenge indicates that the grounds relied on were as follows: First, whereas the statute provides that the jury commissioners shall furnish the clerk of the circuit court one list of names of persons qualified to serve as jurors, to be drawn from the body of the county, each com- missioner proposed and furnished a partial list, and such lists were treated as satisfying the statute. Second, the commissioners did not furnish the clerk of the circuit court a complete list of names verified or certified in proper form. Third, the clerk did not make a copy of the lists filed and deliver the same to the commissioners or any one of them. Fourth, the names furnished to the clerk as aforesaid were not written upon separate slips of paper, and the slips folded and put into a box by the clerk or his deputy, as the law requires. The facts appear to be these .• Each commissioner made a list and submitted it to the three for consideration. They approved of such three lists, which in the aggregate included the requisite names, as the one list which the statute required, and delivered the same to the clerk of the circuit court. Such clerk did not make 196 Tbial Practice [Chap. 5 a copy of the lists so furnished and deliver the same to at least one of the commissioners, as the law requires, but each of the commissioners, to the knowledge of the clerk, preserved a copy of the list proposed by him. The law does not require the commissioners to make any verification or formal certification of the list furnished to the clerk. While neither the clerk nor his deputy wrote the names of the persons appearing upon the lists furnished, as aforesaid, on separate slips of paper, and it is not certain that either one of them folded the slips after the names were written thereon, and placed the same in a box in the presence of the commissioners, as the law requires, the names were so written by a person acting under the direction of* the clerk in his presence and in the presence of the deputy and the commissioners, and the slif)s were then by the direction of the clerk, in his presence and in the presence of the commissioners, either by the deputy clerk or the person who wrote the names, placed in the box. The names so written upon slips of paper and put in the box were the identical names on the list furnished by the commissioners. There is an entire absence in the record of any showing of prejudicial departure from the letter of the statute. The mere fact that each commissioner proposed a list of names for a part of the entire list -to be agreed upon, and the several partial lists were approved and in tliat form handed to the clerk, instead of the three lists being transferred to one and in that form delivered, is of no consequence whatever. The fact that the physicial acts of writing the names on slips of paper and folding such slips ready for the box and putting them therein, if such be the fact, in the whole, is likewise of no consequence, since it appears that such person acted under the immediate direction of the clerk, in his presence and in the presence of the commissioners, and there is not only no indication clear proof of injury before setting aside a verdict for a cause of this kind. West v. Forrest, 22 Mo. 344; Southern Pacific Co. V. Rauh, 49 Fed. Kep. 696; Pittsburg, Cincin- nati, Chicago S St. Louis Railroad v. Montgomery, 152 Ind. 1, 23 ; People v. Searcey, 121 Cal. 1 ; Tatum v. Young, 1 Por- ter, (Ala.) 298; Abilene v. Hendricks, 36 Kans. 196, 200. It is also generally held that an appellate court will not review an exercise of discretion, or a mere finding of fact of a trial judge, determining whether a person shall sit upon a jury. Commonwealth v. Hayden, 4 Gray 18; Grace v. Dempsey, 75 Wis. 313; People v. Searcey, 121 Cal. 1, 3; Commonivealth v. Moore, 143 Mass. 136, and cases cited. Whether an error of law like that in the present ease, if it arose only in determining the qualifications of a single juror, should be held so far to injure an objecting party as to require the verdict to be set aside, we do not find it necessary to determine; but when, as in the present case, the ruling applies to a class of persons, we feel constrained to say that there was an injury of which the law should take notice. Exceptions sustained. Section 5. Questioning the Jury. GOFF V. KOKOMO BRASS WORKS. Appellate Court of Indiana. 1909, 43 Indiana Appellate, 642. Myers, J. — Action by appellant to recover damages for [)ersonal injuries alleged to have been sustained by him while in the. service of appellee. The issues were formed 216 Trial Practice [Chap. 5 by the complaint and answer of general denial. The cause was tried by a jury and a verdict returned for appellee. From a judgment in favor of appellee appellant has ap- pealed to this court, assigning as error the overruling of his motion for a new trial. The reasons assigned in support of the motion relate solely to the action of the court in sustaining the objections of appellee to certain questions, propounded by appellant to the persons called to act as jurors, touching their compe- tency and qualifications so to act. These questions called for information as to whether they were acquainted with any of the officers or agents of the Travelers Insurance Company, whether any of them ever had any business re- lations with that company, whether they were then or ever had been the agents or in the employ of that company, or whether they were then acquainted with any agent of that company? Preliminary to these questions appellant offered to introduce evidence to the court tending to show that the Travelers Insurance Company was interested in the result of the suit, and this offer was refused. A complete examination of each of the jurors upon his voir dire is made a part of the record by a bill of exceptions. Appellee contends that, the jury being accepted by appellant, without making any peremptory challenge or objection to the com- petency of any juror, he thereby waived any error that may have been committed in impaneling the jury. From the objections made to the various questions pro- pounded by appellant to each of the jurors, and from the rulings of the court as disclosed by the record, it appears that the court proceeded upon the theory that, as appellee was the only defendant of record, the latitude of appellant's inquiry did not extend to elicit the suggested informa- tion. The matter of impaneling a jury must, to a great ex- tent, be left to the sound discretion of the trial court, and only in cases where an abuse of that discretition is clearly shown will appellate tribunals disturb the judgment of that court. Courts of last resort having to do with questions, in principle, not unlike the one here presented, with al- most 0'i.ie accord, have held that where parties are acting ui good faith considerable latitude should be allowed along lines touching the competency of persons called as jurors Sec. 5] The Juey 217 to act in the matter under investigation, as also for the purpose of furnishing a basis upon which the court and parties may proceed intelligently, to the end that a fair and impartial jury may be obtained. 2 Elliott, Gen Prac, Sees. 507; Epps V. State (1885), 102 Ind. 539, 545; Evansville Metal Bed Co. v. Loge (1908), 42 Ind. App. 4:61; Donovan v. People (1891), 139 111. 412, 28 N. E. 964; SJioots v. State (1886), 108 Ind. 415; Connors v. United States (1895), 158 U. S. 40'8, 15 Sup. Ct. 951, 39 L. Ed. 1033; 24 Cyc. 341; StepJienson v. State (1887), 110 Ind. 358, 362, 59 Am. Rep. 216. The juror is, no less than a witness, obliged to dis- close, upon his oath, true answers to such questions as may be asked touching his competency to serve as a juror in the case about to be tried (Thornton Juries and Instructions, Sees. 128; Burt v. Panjaiid (1878), 99 U. S. 180, 25 L. Ed. 451), and the court should exclude questions which are ir- relevant, and would not, however answered, affect the juror's competency in the particular case, or which would tend to mislead or confuse a juror, or would, as said in the case of ChyhoivsU v. Bncyrus Co. (1906), 127 Wis. 332, 106 N. W. 833, 7 L. R. A. (N. S.) 357, clearly give ''undue im- portance to the insurance company's connection with the case, since no such basis was necessary." Howard v. Beld- enville Lumber Co. (1906), 129 Wis. 98,* 108 N. W. ^8;Faber V. C. Reiss Coal Co. (1905) 124 Wis. 554, 102 N. W. 1049; Connors v. United States, supra; 24 Cyc. 341. In M. O'Connor & Co. v. Gillaspy (1908), 170 Ind. 428, it is said: "Parties litigant in cases of this class are entitled to a trial by a thoroughly impartial jury, and have a right to make such preliminary inquiries of the jurors as may seem reasonably necessary to show their impartiality and disinterestedness. In the exercise of this right counsel must be allowed some latitude, to be regulated in the sound discretition of the trial court, according to the na- ture and attendant circumstances of each particular case. The examination of jurors on their voir dire is not only for the purpose of exposing grounds of challenge for cause, if any exist, but also to elicit such facts as will enable counsel to exercise their right of peremptory challenge in- telligently. Questions addressed to this end are not barred though directed to matters not in issue, provided they are pertinent, and made in god faith. It does not appear from 218 Trial Practice [Chap. 5 the record that an accident or indemnity insurance com- pany was in any manner interested in this action, but the laws of this state authorize the incorporation of companies for indemnifying employers against liability for accidental injuries to employes, and it is a matter of common knowl- edge that numerous companies are engaged in such insur- ance in this State." In the case at bar the Travelers Insurance Company was not a party to the record, and for aught that appears from the complaint was not interested in the result of the suit, but the record shows that appellant offered to introduce evidence to the court tending to show that it was present in court by hired counsel actively engaged in defending the action ; and that it had issued a policy of insurance to ap- pellee. This evidence was admissible only in the discretion of the court, and for its sole use in determining counsel's good faith in pursuing the inquiry. Therefore, meeting the question, does the record before us show an abuse of that discretion lodged with the trial court as will authorize this court to set aside the judgment? Limiting our inquiry to the particular information desired by appellant, as in- dicated by the questions propounded to each juror, and to which objections were sustained, it seems to us quite clear that the questions should have been answered. For, in case the insurance company was pecuniarily interested in the litigation, a person in its employ or otherwise interested in it, naturally would be more liable to be unduly influenced to grant an advantage on the side of his employer or in the protection of a private interest than one having a single purpose — returning a verdict according to the law and the evidence. In Spoonick v. Backus-Brooks Co. (1903), 89 Minn. 354, 358, 94 N. W. 1079, it is said: ''That either litigent has the right to challenge for implied bias must, of course, be admitted, and we think it would be impossible to say, or for the court to hold in the exercise of its proper discretion, that any person connected with the indemnifying company as a stockholder or otherwise could be a proper person to sit as a juror in a case the result of which might l)e of pecuniary interest to such company. If the proposed juror was a stockliolder.or otlierwise interested in such a company his disqualification would seem to follow as a matter of law. If this be so, it is difficult to see upon what. Sec. 5] The Jurv 219 ground the court could refuse to permit counsel to ascertain the facts while impaneling the jury. It is no answer to this to say that the insurance company is not named as a party to the action, for the bias of the juror is not to be determ- ined by this fact. Xor is it an answer to say that counsel may protect his client by using a peremjDtory challenge. It is his right first to learn the facts, and he must do so to exercise intelligently his right to challenge peremptorily. The authorities all go to show that a very insignificant in- terest in the result of an action, and frequently a ver\^ trif- ling relationship to one of the parties, is sufficient to dis- qualify a person from sitting as a juror. In order to secure to litigants unbiased and unprejudced jurors, we are com- pelled to hold that plaintiff's counsel had a right to ascer- tain whether there was such a relationship between the per- sons called as jurors and the insurance company, a cor- poration vitally interested in the result, which would dis- qualify these persons, because, by implication, they would be biased and prejudced." And see Block v. State (1885), 100 Ind. 357; Burnett v. Burlington, etc., R. Co. (1884), 16 Neb. 332, 20 N. W. 280; Ensign v. Harney (1883), 15 Neb. 330, 18 N. W. 73, 48 Am. Rep. 344; Martin v. Farmers, etc. Ins. Co. (1905), 139 Mich. 148, 102 N. W. 6D6;Hearn v. City of Greenshurgh (1875), 51 Ind. 119; Terre Haute Electric Co. v. Watson (1904), 33 Ind. App, 124; Johnson v. Tyler (1891), I Ind. App. 387; 2 Elliott, Gen. Prac. Sees. 507, 514, 515; Beall v. Clark (1883), 71 Ga. 818. The weight of authority affirms the right of parties to examine persons called as jurors on their voir dire, as coun- sel sought to do in this case. He was denied that right. The information indicated by the questions does not appear in the record as having been furnished in any other manner. Whether any or all of the jurors who tried the case had any interest in the insurance company, which counsel for appellant offered to show to the court was financially in- terested in the result of the litigation, nowhere appears. The action of the court in refusing to permit counsel for appellant to examine the persons called as jurors along the line suggested in this opinion was error, and, in the ab- sence of a showing that it was harmless, entitles appellant to reversal of the judgment without first showing that 220 Trial Pkactice [Chap. 5 some disqualified juror sat in the case. * * * Judgment reversed.'^ iStatutory restrictions. In some states the character and scope of the questions to be asked a juror are prescribed by statute. See Commonwealth v. Warner, (1899) 173 Mass 541, 54 N. E. 353; Commonwealth v. Poisson, (1893) 157 Mass. 510, 32 N. E. 906; State v. Bethum, (1910) 86 S. C. 143, 67 S. E. 466; State v. Eoberts, (1910) (Del.) 78 Atl. 305; Woolfolk v. State, (1890) 85 Ga. 69, 11 S. E. 814. Section 6. Method of Empanelling. POINTER V. UNITED STATES. Supreme Court of United States. 1894. 151 United States, 396. Me. Justice Harlan delivered the opinion of the court. At the February term, 1892, of the Circuit Court of the United States for the Western District of Arkansas, the grand jury returned an indictment against John Pointer for the crime of murder. The entire panel of the petit jury was called and the jurors were examined as to their qualifications, and, the journal entry states, thirty-seven in number were found to be generally qualified under the law, that is, in the words of the bill of exceptions, ''qualified to sit on this case." The defendant and the government were then fur- nished, each, with a list of the thirty-seven jurors thus selected, that they might make their respective challenges, twentv by the defendant and five by the government, the remaining first twelve names, not challenged, to constitute the trial jury. Tlie defendant at the time objected to this mode of selecting a jury: ''1st, because it was not accord- ing to the rule prescribed by the laws of the State of Ar- kansas; 2d, because it was not the rule practiced by com- mon law courts; 3d, because the defendant could not know the particular jurors before whom he would be tried until after his cliallcngos. as guaranteed by the statutes of the Unitod Sfntos. bnd been exhausted; 4th, because the gov- ernment did not tender to the defendant the jury before Sec. 6] The Juky 221 whom he was to be tried, but tendered seventeen men in- stead of twelve, and made it impossible for defendant to know who the twelve men before whom he was to be tried were until after his right to challenge was ended." At the time this objection was made the defendant's counsel saved an exception to the mode pursued in form- ing the jury, and said: ''The point we make is, that the government must offer us the twelve men they want to try the case." The court observed: ''They offered you thirty-seven." "We understand," counsel said, "but we want to save that point." The right to challenge a given number of jurors with- out showing cause is one of the most important of the rights secured to the accused. "The end of challenge," says Coke, "is to have an indifferent trial, and which is required by law; and to bar the party indicted of his law- ful challenge is to bar him of a principal matter concern- ing his trial." 3 Inst. 27, c. 2. He may, if he chooses, peremptorily challenge "on his own dislike, without show- ing any cause;" he may exercise that right without reason or for no reason, arbitrarily and capriciously, Co. Lit. 156 b; 4 Bl. Com. 353; Leivis v. United States, 146 U. S. 376. Any system for the empanelling of a jury that presents or embarrasses the full, unrestricted exercise by the ac- cused of that right, must be condemned. And, therefore, he cannot be compelled to make a peremptory challenge until he has been brought face to face, in the presence of the court, with each proposed juror, and an opportunity given for such inspection and examination of him as is re- quired for the due administration of justice. Were his rights in these respects impaired or their exer- cise embarrassed by what took place at the trial? We think not. The jurors legally summoned for service on the petit jury were, as we have seen, examined in his pres- ence as to their qualifications, and thirty-seven were ascer- tained, upon such examination, to be qualified to sit in the case. Both the accused and the government had ample opportunity, as this examination progressed to have any juror who was disqualified rejected altogether for cause. A list of all those found to be qualified under the law, and not subject to challenge for cause, was furnished to the 222 Teial Peactice [Chap. 5 accused and to the government, each sMe being required to make their challenges at the same time, and having no- tice from the court that the first twelve unchallenged would constitute the jury for the trial of the case. It is apparent, from the record, that the persons named in the list so furnished were all brought face to face with the prisoner before he was directed to make, and while he was making his peremptory challenges. Was the prisoner entitled, of right, to have the govern- ment make its peremptory challenges first, that he might be informed, before making his challenges, what names had been stricken from the list by the prosecutor? In some jurisdictions it is required by statute that the chal- lenge to the juror shall be made by the State before he is passed to the defendant for rejection or acceptance. Such is the law of Arkansas, and the court below was at liberty to pursue that method. Mansfield's Digest, sec. 2242. And such is regarded by some courts as the better practice, even where no particular mode of challenge is prescribed by statute. State v. Cummings, 5 La. Ann. 330, 332. But as no such provision is embodied in any act of Congress, it was not bound by any settled rule of criminal law to pursue the particular method required by the local law. The uniform practice in England, as ap- pears from the observations of Mr. Justice Abbott, after- wards Lord Tenterden, in Brandeth's Case, 32 Howell's St. Tr. 755, was to require the accused to exercise his right of challenge before calling upon the government. He said: ''Having attended, I believe, more trials of this kind than any other of the judges, I would state that the uniform practice has been that the juryman was presen- ted to the prisoner or his counsel, that they might have a view of his person; then the officer of the court looked first to the counsel for the prisoner to know whether they wished to challenge him ; he then turned to the counsel for the crown to know whether they challenged him." p. 771. In the same case. Lord Chief Baron Richards said that he conceived it to be clear that ''it is according to the prac- tice of the courts that the prisoner should first declare his resolution as to challenging." p. 774. Mr. Justice Dallas expressed his concurrence in those views, pp. 774, 775. But the general rule is, that where the subject is not Sec. 6] The Jtjey 223 controlled by statute, the order in which peremptory chal- lenges shall be exercised is in the discretion of the court. Commonwealth v. Piper, 120 Mass. 185; Turpin v. State, 55 Maryland, 464; Jones v. State, 2 Blackford, 475; State V. Hays, 23 Missouri, 287; State v. Pike, 49 N. H. 406; State V. Shelledy, 8 Iowa, 477, 480, 504; State v. Boat- ivright, 10 Rich. (Law), 407; Shuflin v. State, 20 Ohio St. 233. In some jurisdictions the mode pursued in the challeng- ing of jurors is for the accused and the government to make their peremptory challenges as each juror, previous- ly ascertained to be qualified and not subject to be chal- lenged for cause, is presented for challenge or acceptance. But it is not essential that this mode should be adopted. In Regina v. Frost, 9 Car. & P. 129, 137, (1839), the names of jurors were taken from the ballot-box, and each was sworn on the voir dire as to his qualifications before be- ing sworn to try. When the government peremptorily challenged one who had been sworn on the voir dire as to his qualifications, it was objected that the challenge came too late, because the juror had taken the book into his hand to be sworn to try. In disposing of this objection Chief Justice Tindal said: ''The rule is that challenges must be made as the jurors come to the book and before they are sworn. The moment the oath be begun it is too late, and the oath is begun by the juror taking the book, having been directed by the officer of the court to do so. If the juror takes the book without authority, neither par- ty wishing to challenge is to be prejudiced thereby." These observations, it is apparent, had reference only to the question whether a peremptory challenge could be permitted after the juror had, in fact, taken the book into his hand for the purpose of being sworn to try. At most, in connection with the report of the case, they tend to show that the practice in England, as in some of the States, was to have the question of peremptory challenge as to each juror, sworn on his voir dire and found to be free from legal objection, determined as to him before another juror is examined as- to his qualifications. But there is no suggestion by any of the judges in Frost's case that that mode was the only one that could be pursued without embarrassing the accused in the exercise of his 224 Tkial Practice [Chap. 5 right of challenge. The authority of the Circuit Courts of the United States to deal with the subject of empanel- ling juries in criminal cases, by rules of their own, was recognized in Lewis v. United States, subject to the condi- tion that such rules must be adapted to secure all the rights of the accused. 146 U. S. 379. We cannot say that the mode pursued in the court be- low, although different from that prescribed by the laws of Arkansas, was in derogation of the right of peremptory challenge belonging to the accused. He was given, by the statute, the right of peremptorily challenging twenty jurors. That right was accorded to him. Being required to make all of his peremptory challenges at one time, he was entitled to have a full list of jurors upon which ap- peared the names of such as had been examined under the direction of the court and in his presence, and found to be qualified to sit on the case. Such a list was furnished to him, and he was at liberty to strike from it the whole num- ber allowed by the statute, with knowledge that the first twelve on the list, not challenged by either side, would con- stitute the jury. And after it was ascertained, in this mode, who would constitute the trial jury, it was within the discretion of the court to permit them to be again ex- amined before being sworn to try. But no such course was suggested, and the record discloses no reason why a further examination was necessary in order to secure an impartial jury. The right of j^eremptory challenge, this court said, in United States v. Marchant, 12 Wheat. 480, 482, and in Hayes v. Missouri, 120 U. S. 68, 71, is not of itself a right to select, but a right to reject, jurors. It is true that, under the method pursued in tliis case, it might occur that the defendant would strike from the list the same persons stricken off by the government. But that circumstances does not change the fact that the ac- cused was at liberty to exclude from the jury all, to the number of twenty, who, for any reason, or without reason, were objectionable to him. No injury was done if the government united with him in excluding particular per- sons from the jury. He was not entitled, of right, to know, in advance, what jurors would be excluded by the govern- ment in the exercise of its right of peremptory challenge. He was only entitled, of right, to strike the names of twen- Sec. 7] The Jury 225 ty from the list of impartial JTir}Tnen furnished him by the court. If upon that list appeared the name of one who was subject to legal objection, the facts in respect to that juror should have been presented in such form that they could be passed upon by this court. But it does not ap- pear that any objection of that character was made, or could have been made, to any of the thirty-seven jurors found, upon examination, to be qualified. Thus, in our opinion, the essential right of challenge to which the defendant was entitled was fully recognized. And there is no reason to suppose that he was not tried by an impartial jury. The objection that the government should have tendered to him the twelve jurors whom it wished to try the case, or that he was entitled to know before making his challenges the names of the jurors by whom it was proposed to try him, must mean that the gov- ernment should have been required to exhaust all of its peremptory challenges before he peremptorily challenged any juror. This objection is unsupported by the authori- ties, and cannot be sustained upon any sound principle. We perceive no error in the record to the prejudice of the substantial rights of the plaintiff in error. Judgment affirmed. Section 7. Challenges. COUGHLIN V. PEOPLE. Supreme Court of Illinois. 1893. 144 Illinois, 140, 164. Mr. Chief Justice Bailey delivered the opinion of the court : ********** Challenges to jurors, based upon an allegation of bias, favor or partiality, were, at the common law, di\dded into two classes, viz., principal challenges and challenges to the favor. A principal challenge was grounded on such mani- T. p.— 15 226 Tkial Practice [Chap. 5 fest presumption of partiality, that if the fact alleged was proved to be true, the disqualification of the juror follow- ed as a legal conclusion, incapable of being rebutted, in case of a challenge to the favor, on the other hand, the dis- qualification arose as a conclusion of fact to be determined by the triers, the evidence adduced in support of the chal- lenge leading to no presumption which might not be over- come by other evidence. Among the various matters which, at common law, were held to be principal cause of challenge, that is, cause from which bias or partiality would be inferred as a legal con- clusion, were these: consanguinity or affinity of the juror with either of the parties within the ninth degree ; that the juror was god-father to the child of either party, or e con- verso; that the juror was of the same society or corpora- tion with either party; or was tenant or ''within the dis- tress" of either party; or had an action implying malice depending between him and either party; or was master, servant, counsellor, steward or attorney for either party; or after he was returned, he ate and drank at the expense of either party; or had been chosen as arbitrator by either party. By most of the authorities it was held to be ground of principal challenge, that the juror had formed and de- clared his opinion touching the mater in controversy. 5 Bac. Abridg. 353; 3 Black Com. 363; 2 Tidd's Prac. 853; Coke Litt. 155; 3 Burns' Justice of the Peace (28th Ed.) 519; 21 Viner's Abridg. 252; 1 Chit. Crim. Law, 541; 3 Chit. Gen. Prac. 794; Pringle v. Hulse, 1 Cow. 436, note 1 ; People V. Bodine, 1 Denio, 304. According to these authorities and others like them, where the matter alleged was held to be ground for principal challenge, all the chal- lenging party was called upon to do was, to prove the ex- istence of the fact alleged by him as a ground of challenge, and that being shown, the incompetency of the juror fol- lowed as a necessary legal consequence, and in such case, no inquiry was permitted as to whether, notwithstanding the fact shown, he could sit as a juror and render a fair and impartial verdict. The law, from the fact proved, con- clusively presumed bias, and permitted no further inquiry. In til is State, triers are not appointed, according to the mode of procedure at common law, all challenges, by our practice, being determined by the court. Nor has the com- Sec. 7] The Juey 227 mon law distinction between principal challenges and chal- lenges to the favor been kept up in this State, still many of the principles growing out of that distinction have been habitually recognized and enforced. Indeed, most of the objections to jurors which at common law were held to be ground of principal challenge, are held with us to be ab- solute disqualifications, that is, ujDon mere proof of the fact alleged, the disqualification follows as a legal conclu- sion, and evidence is not admitted to show that, notwith- standing the fact proved, the juror is really impartial. STATE V. MYERS. Supreme Court of Missouri. 1906, 198 Missouri, 225. Gantt, j # * « * * 2. It is next insisted that the court erred in overruling the defendant's challenge to the Jurors Lancaster, Golden, Cossett, Borgnier, Wharton, Miller, Soper and Capps for the reason that the said jurors on their voir dire examina- tion testified that they had formed opinions as to the guilt or innocence of the defendant from having read a copy of the confession of Frank Hottman published in the Kansas City newspapers. To this assignment of error the State makes two answers: First, no specific ground of challenge was stated by the defendant to either or all of said jurors ; and, second, that the jurors were not incompetent because they had formed an opinion from the reading of the news- paper report of the Hottman trial, and what purported to be Hottman 's confession published in the newspapers. The record discloses that upon the close of the exauiination of each of the said jurors, the defendant made the general challenge, "Defendant challenged this juror;" no specific ground of challenge was given in either case. "Were the challenges sufficient to preserve the error now complained of for review by this court? In Kansas City v. Smart, 128 Mo. 1. c. 290, it was said: "The grounds of challenge to a 228 Trial Practice [Chap. 5 juror must be stated when it is offered and tested on his voir dire. The trial court is entitled to know the reason for the challenge. {State v. Broivnfield, 83 Mo. 453, 454; Thompson & Merriam on Juries, sec. 253, and cases cited ; 1 Thompson on Trials, sec. 98.)" In State v. Taylor, 134 Mo. 142, Judge Sherwood, speaking for this court, review- ed the authorities on this point and said: "The defendants of course, were entitled to a full and competent panel of forty men before announcing their final challenges, but in reaching this stage of the proceedings it became necessary to make what might be termed interme- diary challenges. In making such preliminary challenges that is, challenges for cause, this formula was observed at the close of the examination of each venireman: 'Counsel for defendants objected to this juror as disqualified and not qualified to sit as a competent juror in this cause, and challenged said juror for cause. Objection and challenge overruled, to which ruling defendant excepted.' Nothing is better settled than that challenges for cause must be specifically stated. The particular cause must be set forth, {People V. Reynolds, 16 Cal. 128; Mann v. Glover, 14 N. J. L. 195; Powers v. Presgroves, 38 Miss. 227; Southern Pa- cific Co. V. Rauh, 49 Fed. 696; Drake v. State, 20 Atl. 747; 2 Elliott's Gen. Prac, sec. 530, and other cases there cited.) The facts constituting the cause of complaint were not given in this instance ; the challenge simply amounted to the state- ment of a legal conclusion. The rule should be the same here as it is where general objections are taken to the evi- dence, that it is incompetent, immaterial, etc., and where it is held that general objections amount to nothing more than saying, 'I object.' Indeed, there seem to be more cogent reasons why specific objections should be urged in a case of this sort, where the question is as to the admission of a juryman, than where it is as to the admission of a piece of evidence. At any rate, in either case, fairness to the court and to adverse counsel alike demand the grounds of the challenge for cause to be particularly set forth." The doctrine announced in that case on this point was roafTirincd in State v. Bced, 137 Mo. 1. c. 132; State v. Mc- Ginvis, 158 Mo. 1. c. 118; and in State v. Evans, 161 Mo. 1. c. 108. Counsel for the defendant, however, insists that in this Sec. 7] The Jury 229 case the ground of the challenge was so apparent to the court and the opposite counsel that they could not have been misled as to the ground of the challenge. AVe are un- able to concur in this view. These jurors had been fully examined as to their competency, and among other things as to their opinions formed from reading newspaper reports. If the objection was intended to be based specifi- cally upon the ground of opinions formed or expressed, it should have been so stated and the matter properly pre- served for our review. Moreover, we are of the opinion that the jurors were not disqualified because they had formed an opinion from read- ing the newspaper reports of the Hottman trial and what purported to be Hottman 's confession, because each one of said jurors testified that he could sit as a juror in this case and be governed solely by the evidence and render an im- partial verdict, notwithstanding his opinion formed from the reading of such newspaper reports and such opinion as he had was based entirely upon the newspaper reports. Sec- tion 2616, Revised Statutes 1899, provides: *'It shall be a good cause of challenge to a juror that he has formed or delivered an opinion on the issue, or any material fact to be tried, but if it appear that such an opinion is founded only on rumor and newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn." It is a well-settled law in this state that a person other- wise qualified to sit as a juror in a criminal case is not dis- qualified by reason of having formed an opinion as to the guilt or innocence of the accused, from reading partial news- paper accounts of the homicide, or from rumor when he states on his voir dire that he can give the defendant a fair and impartial trial. [State v. Reed, 137 Mo. 132, and State V. Forsha, 190 Mo. 1. c. 323, 324.) In the last cited case, certain of the jurors upon the voir dire examination an- swered that they had read a report of the Bailey trial, in which Bailey had been tried for the same murder, and that they had read what purported to be the evidence on that trial, including the testimony of the Biggs woman, who was present with Bailey and Forsha when the murder was com- mitted, and from such reading had formed an opinion as to the guilt of the defendant, but that they could give the defendant a fair and impai-tial trial notwithstanding such 230 Teial Pkactice [Chap. 5 an opinion, and it was ruled that they were not disqualified. The grounds of disqualification in that case were almost identical with those urged in this, and we do not think ren- dered the jurors incompetent. The judgment of the Circuit Court must be and is af- firmed, and the sentence which the law pronounces is di- rected to be carried into execution. BuKGEss, P. J., and Fox, J., concur. M 'DONALD V. STATE. Supreme Court of Indiana. 1909, 172 Indiana, 393. Myeks, J, Appellant was convicted on an indictment charging him and another with conspiring for the purpose and with the intent unlawfully, feloniously and designedly to defraud the Adams Express Company, by preparing a package, securely wrapped, which package contained, among other things, two damp sponges, excelsior and damp phosphorus, so arranged that when sufficiently dried the phosphorus would ignite and cause such package and its contents to be burned and consumed ; that, in pursuance of the conspiracy, they delivered the package to said express company to be transported from Indianapolis, Indiana, to Louisville, Kentucky, and falsely represented that the pack- age contained papers of the value of $10,000; that the con- spirators intended, by the preparation of such package, and its delivery to the express company, that the contents of the package, while in possession of the company, should l)e('ome sufliciently dry to ignite, burn and destroy the pack- age, and to claim to have been damaged in the sum of $10,- 000, and fraudulently and unlawfully to make demand upon the company tlu^-efor, and cheat and defraud the latter by obtaining money from such company by virtue of such false pretenses. The only error assigned is upon the overruling of the motion for a new trial. Sec. 7] The Juky 231 The questions sought to be presented arise upon alleged error in refusing the peremptory challenge of a juror on his voir dire, and in giving instructions. The evidence is not in the record. A bill of exceptions discloses that in impaneling the jury, when the jury had been passed back to the defendant's counsel for re-examination for the third time, and defendant had used but three peremptory chal- lenges, being entitled to ten, the defendant peremptorily challenged a juror who had been in the jury box from the time the impaneling of the jury began, and the challenge was disallowed, ''for the reason that, under a rule of said court, which had been in existence for many years, the de- fendant's peremptory challenge was made too late," said rule was stated by the court at the time as follows: "That each side, the defendant and the State, is entitled to examine each juror twice, and challenge, if desired, but cannot chal- lenge a juror after the jury has been passed twice with each juror in the box. Said rule is an oral rule, and is not entered in the records of the court, but has been regularly enforced for many years." It is further recited that the defendant and his attorney, at the time of the challenge, did not know of the rule, but they did not inform the court on being advised of such rule that either or both of them were ignorant of it, and did not ask that it be suspended, nor that an exception be made to its enforcement, on ac- count of such ignorance. We think it quite clear that there can properly be no such thing as an oral rule of a court. Rules of court, when legally adopted and promulgated, have the effect of positive laws. Sec. 1443, Burns 1908, sec. 1323 R. S. 1S81 iMagnuson v. Billings (1899), 152 Ind. 177 ; State V. Van Cleave (1902), 157 Ind. 608; Smith v. State, ex ret. (1894), 137 Ind. 198; 11 Cyc. 742. They ought not only to be formally promulgated, but they should be definiteiy stated, which could not be true of a practice reposing solely in the breast of a judge. They should be published and made known in some permanent form, so that they might be known to all. The so-called rule was clearly not a rule at all, and binding upon no one — clearly not upon one who has no notice of it. The statutory provision (sec. 2099 Burns 1908, Acts 1905, pp. 584, 634, sec. 228), is as follows: ''In prosecutions for capital of- fenses, the defendant may challenge, peremptorily, twenty 23^ Trial Peactice [Chap. 5 jurors; in prosecutions for offenses punishable by imj^ris- onment in the state prison, ten jurors; in other prosecu- tions, three jurors. When several defendants are tried to- gether, they must join in their challenges. Irrespective of the so-called rule, was appellant denied a statutory right? No provision is made by statute nor by rule as to how or when the right shall be exercised, and it is claimed by appellant that it may be done at any time until the jury is sworn. In some jurisdictions the passing of a juror after he has been examined, tendered to and ac- cepted by the other party, is a waiver of the right to challenge. In others, the right to challenge is in the sound discretion of the court. In others, a party who accepts a juror with knowledge of an objection waives the objection, but if a cause of objection is afterward discovered it is not waived, unless he is guilty of negligence in not discovering the objection. 24 Cyc. 322, 323. There is no showing made that appellant did not know from the beginning the grounds for the peremptory challenge, and he stands here upon the bare proposition that he was entitled to the challenge in any event, without offering any excuse to the court, or making any request for exemption or relief from the local practice. Had any request for exemption upon the ground that the so-called rule was void, or that the appellant or his counsel had no knowledge of it, been made, or if any reason were shown why the juror twice passed by appellant as satisfactory had been discovered to be unacceptable, a dif- ferent question would be presented, for, independently of the so-called rule, appellant shows no ground for relief from his own act and acquiescence. We think it cannot be said that the right of challenge is denied where it is restricted to a defined number of oppor- tunities for challenge, nor that there must be a definite rule fixing the time wlien, or the manner in which, it must be exercised, for we think it may be controlled either by a fixed rule, or by any reasonable limitation imposed in any specific case, so long as the right of peremptory challenge is not taken away; in other words, that, when reasonable oppor- tunity is given to challenge, the spirit of the statute is com- l)li(Hl with, and that it does not mean that the right is an open on(! at all times until the jury is sworn, irrespective of all else J that there is no good reason why there may be spec- Sec. 7] The Juby 233 ulation as to what the opposite party may do, and the jury passed backward and forward to await the action of the adversary; that the statute means that when the jury is passed to a partj^ he must challenge peremptorily if he would challenge, in the absence of an after-arising condi- tion, and that, when the opportunity was twice given, as here, and not exercised, a party cannot complain, unless new conditions arise, calling for an exception to, or relaxa- tion of, the practice or the order in the particular case, and that if a given practice, not rising to the dignity of a rule, is invoked, as here, one to be exempt from its operation, on account of his ignorance of it, must seasonably apply to be relieved from its operation. At common law no challenge to the array or panel could be made until the full jury was present. 1 Chitty, Crim. Law (4th Am. ed.),*544. Our statute (sec. 210l' Burns 1908, Acts 1905, pp. 584, 634, sec. 230), was evidently adopted with this practice in mind, and the right to challenge contemplated the right to challenge as the panel thus full stood, or as it might stand, and not that the right should be one arising out of indefinitely pass- ing the jury as acceptable. In Ward v. Cliarlestoivn City R. Co. (1883), 19 S. C. 521, 45 Am. Rep. 794," after a plaintiff had announced that she had no objection to the jury, the defendant challenged two jurors, and plaintiff then claimed the right of peremptory challenge. The court said: "There was no denial on the part of the court; on the contrary the right was tendered to her at the proper time, and having waived the exercise of it then, for the reasons given by the circuit judge, we think it was too late to demand it after the defendant had exer- cised his right." It is said in Mayers v. Smith (1887), 121 111. 442, 448, 13 N. E. 216: "Under the practice at common law, no such case would arise as is here presented, of a party reserving his power of peremptorj^ challenge until after he had examined and passed upon the whole twelve jurors, or eight of them, for causes of challenge, and then to claim the exercise of such right of peremptory challenge as to jurors who had previously been passed upon and ac- cepted, for the reason that the practice there was to require each juror to be sworn when his examination was com- pleted." In State v. Potter (1846), 18 Conn. 166, a talesman was 234 Trial Pbactice [Chap. 5 called and examined by the counsel for defendant as to his bias, or for cause of challenge, and no objection appearing the court informed defendant's counsel that they could challenge him peremptorily. They declined to exercise the right at that time, as the panel was not full, and after it was full they challenged the juror peremptorily, and the court inquired whether any cause then existed which did not exist when they first declined the right. They answered in the negative, and the court held that the challenge came too late, and this ruling was upheld. The reasoning, which is per- tinent here, is as follows: ''Again, it is said, the prisoner has been deprived of a right to a peremptory challenge, which he was entitled to. It is not denied that time and opportunity were given to the prisoner to challenge a juror ; but it is claimed, that he had not all the time the law allows him. Dickerman, a talesman, had been examined, and there was no cause of challenge known against them. The court then told the counsel, if they intended a peremptory chal- lenge, they must make it at that time. They then had a reasonable opportunity to make their challenge; but they claim they may make it at their own time^ provided it is done before the jurors are sworn. The statute, it is said, gives them power to challenge peremptorily twenty jurors summoned and impaneled, — and much criticism has been had upon the word 'impaneled.' It is claimed, that it means the jury sworn to try the cause ; and that until sworn, they are not impaneled. * * * But it is said, that by the Eng- lish practice, the party has a right to challenge until the jury is sworn. There, each juror is sworn, as soon as he has been examined and opportunity given for challenge. By our practice, jurors are none of them sworn until all have been examined, and an opportunity offered for chal- lenge." Under the statute of Arkansas, the state in criminal cases is required to exhaust its challenges before passing a jury to the defendant, and it was held that when the state had passed a jury to the defendant it was error to permit a jtcremptory challenge by the state. Williams v. State (1897), 63 Ark. 527, 39 S. W. 709. Where, upon impaneling a jury, the judge announced that he would require the defendant to make his challenges as he desired, to each juror as called, it was held not error to re- Sec. 7] The Juey 235 fuse a peremptory challenge after the juror was sworn and accepted, and it was held that, when there was a fair oppor- tunity to interpose a peremptory challenge, the defendant cannot complain of a refusal to be allowed the further exer- cise of the right. People v. Carpenter (1886), 102 N. Y. 238, 6 N. E. 584. We are not unaware that in the earlier cases in this State and in other states it is held that the right of challenge con- tinues up to the swearing of the jury, but we are unable to perceive that any substantial right of a defendant is in- vaded when an opportunity for challenge of the full num- bers is afforded and it is not availed of up to the time the jury is sworn. The object to be attained is an impartial jury, and while the right of peremptory challenge is an absolute one, it is not, we think, so far so that it may be exercised under all conditions. If, by the introduction of new men upon the panel, a cause for challenge should arise — such as the coming on of a person at such enmity to one already passed that they could not work in harmony, or the introduction of anything which might prejudice the right of a defendant — he would have a clear right to exercise his preference, and challenge the man already acceptable, rather than the new man, and the right would thus be pre- served until the full panel is complete and the jury sworn. He has a right to a full panel to begin with, the right of canvass and comparison among jurors, and if his full right of challenge is preserved, within the line here indicated, it is practically a right of peremiDtory challenge until the jury is sworn, but it does not follow that the opportunity must be open under all circumstances or conditions, for it is a right which may be waived. Neither do we understand that the rule here declared is in conflict with the earlier holdings of the court, which upon examination are found to be gen- eral declarations as to the right of peremptory challenge ex- tending until the jury is sworn, and did not involve any question of practice as to the mode of conducting the im- paneling of juries, and of exercising the right of challenge, or of the right and power of courts to direct the manner of its exercise. * * * No reversible error is shown, and the judgment is affirmed.^ Wrder of challengef!. "The right to challenge jurors is one given and secured by law, and cannot be taken away by the court. Until the challenges 236 Trial Peactice [Chap. 5 to which a party is entitled under the statutes are exhausted, the right extends to every juror called. The juror is first challenged for cause, either actual or implied bias; then peremptorily. In civil actions, each party is entitled to three peremptory challenges. G. S. 1894, $ 5370. The usual practice in the selection of a jury in such actions is to require the peremptory challenges to be made by the parties alternately, one at a time, beginning with defendant." Swanson v. Mendenhall, (1900) 80 Minn. 56, 82 N. W. 1093. STATE V. CADY. Supreme Judicial Court of Maine. 1888, 80 Maine, 413, Peters, C. J. Two respondents were arraigned together under a joint liquor indictment, having the same counsel to answer for them. The judge allowed each respondent two peremptory challenges in impaneling tbe jury, and when one respondent in person challenged a juror, the other dis- puted the challenge, claiming that he had a right to have the challenged juror on the panel. One respondent accepted and the other rejected the juror. The judge accorded to them two challenges each, while they were entitled to two jointly, and no more. In capital cases each prisoner, under a joint trial, is entitled to his personal challenges. The statute in that case prescribes that ''each person" shall be so entitled. In all other crim- inal cases it is ''the party" that is entitled to the two chal- lenges. If they do not agree upon the persons to be ob- jected to, they lose their challenges. The presumption is, where respondents in criminal cases, not lately capital, con- sent to be tried togetlier, or where the judge in his discre- tion orders a joint trial, that their interests are alike, and differences between them are uncalled for. By R. S., c. 134, sec. 20, it is provided that issues in fact in criminal cases not capital, shall be tried by a jury drawn and returned in the same manner, and cliallenges shall be allowed, as in civil cases. By E. S., ch. 82, sec. 74, it is provided that in civil cases, and criminal cases not capital, "each party" is en- titled to two peremptory challenges when a jury is im- panclU'd by lot. Party does not mean person. Allowing challenges without cause is a merely statute right, not to Sec. 7] The Jury • 237 be extended by construction. Wliere defendants are numer- ous, if each had personal challenges, it would require the presence of an impracticable number of jurors. This ques- tion is settled by several authorities. State v. Reed, 47 N. H. 4G6; Stone v. Segur, 11 Allen, 568; State v. Sutton, 10 R. I. 159. These cases show that several respondents are but one party, and are entitled to no more challenges than one defendant. But if in his discretion, the judge extended a greater privilege than the statute concedes, neither re- spondent is in a position to complain of it. We have held in Snoiv V. Weeks, 75 Maine, 105, that to a ruling of a judge, in excusing or rejecting a juryman, exceptions will not lie. It is there said: "He may put off a juror when there is no real and substantial cause for it. That cannot legally in- jure an objecting party as long as an unexceptionable jury is finally obtained. He may put a legal juror off. He can- not allow an illegal juror to go on." This question was ex- haustively and learnedly examined in a case of piracy, United States v. Marchant, 12 Wheat. 480, in which Judge Story maintains the same doctrine, and he there says: "The right of peremptory challenge is not of itself a right to select but a right to reject jurors." He further remarks that the right "enables the prisoner to say who shall not try him, but not to say who shall be the particular persons who shall try him." The objection to the county attorney's remarks is with- out force. He was expressing his judgment upon the testi- mony and giving illustrations of it in an unobjectionable manner. He was not relating outside facts. The other ob- jections have no weight. Exceptions overruled. Walton, Danforth, Virgin, Libbey and Foster, JJ., con- curred. 238 Trial Practice [Chap. 5 Section 8. Discharge of Juror. STATE V. DAVIS. Supreme Court of Appeals of West Virginia. 1888. 31 West Virginia, 390. Johnson, President : On the 20th day of February, 1888, William Davis was, in the Circuit Court of Ritchie county, indicted for maliciously, etc., stabbing one Creed Wilson, with intent to maim, dis- figure, disable, and kill him. The prisoner moved to quash the indictment, which motion was overruled, and the pris- oner pleaded not guilty. The jury was sworn on the 24th day of February to try the issue. It appears from an order entered on the next day that '*it appearing to the court that Peter G. Six, a juror, is unable to perform his duty, George W. Hammer, a qualified juror, was selected, tried, and sworn in his place," etc. The prisoner objected to the swearing of a new juror, which objection was overruled. • * * * The prisoner moved the court to discharge him, because he had not been tried before a proper jury. He also moved in arrest of judgment, and also for a new trial ; which sev- eral motions were respectively overruled, and the court pro- nounced judgment on the verdict, and sentenced the pris- oner to confinement in the penitentiary for the term of two years. ********** Upshur, Judge, in delivering the opinion of the court in Fell's Case, 9 Leigh 617, said, after reviewing a number of FiUglish and American cases: ''One general rule is de- ducible from all the cases, which is that the court may dis- charge the jury whenever a necessity for so doing shall arise; but what facts and circumstances shall be considered as constituting such a necessity can not be reduced to any general rule. The power to discharge is a discretionary power, which the court, as in all other cases of judicial dis- cretion, must exercise soundly according to the circum- *:tances of the case. The object of the law is to obtain a fair and just verdict, and, whenever it shall appear to the Sec. 8] The Jury 239 court that the jury impaneled can not render such a ver- dict, it ought to be discharged and another jury impaneled. This is emphatically the case of necessity contemplated in the authorities we have referred to ; as where the prisoner became too sick to attend to his defense or one of the jury was rendered physically unable to discharge his duty. There are other cases of necessity equally strong, one of which probably is where a juror, from the peculiar condition of his mind and feelings, is manifestly disqualified from bestow- ing upon the case that attention and impartial considera- tion which is necessary to a just verdict. * * * The actual sickness of a juror, and his consequent inability to discharge his duty, is admitted on all hands to present such a neces- sity. In the case before us, the juror was not actually sick, but there was every reason to believe that he would become so through longer confinement. Was the court bound to wait till the case actually occurred! We think not. * * * A necessity not less strong was presented by the situation of the wife of another juror. If the object of the trial be, as it undoubtedly is, to obtain a fair, just and impartial ver- dict, there can be but little prospect of such a result from the constrained and reluctant action of minds wholly ab- sorbed in the deep and peculiar interest of their domestic relations." It was held that it would be improper, under such circumstances, to discharge the prisoner. Here it appears from the record that the juror, Six, was informed that his son had just died. It would, indeed, be a stout-hearted father who could, unmoved, receive news of the death of a child. Some men could receive such news and proceed with their work with steady nerve and mind clear and strong ; but observation teaches us, if, indeed, we have not learned from sad experience, that the natural re- sult of information, suddenly imparted to a father, of the death of a child, is to unfit him, for the time, to attend to business. It would have been cruel to have required the juror to remain on the jury under such circumstances. His grief would naturally unfit him for the discharge of such an important duty. And if, as the court said in Fell's Case, the object of the trial is to obtain a fair, just and impartial verdict, there could be little prospect of it under such cir- cumstances. * * * 240 Tbial Practice [Chap. 5 The statute says — and it is in perfect accord with the principles of the common law — that if a juror, after he is sworn, be unable from any cause to perform his duty, the court may, in its discretion, cause another qualified juror to be sworn in his place. Code, ch. 159, sec. 1. '^ ^ ^ # # Both on principle and authority, the court, in this case, did not err in discharging the juror Six, for the reason shown by the record, because a manifest necessity existed therefor. Neither did the court err in ordering the trial to proceed with the jury as constituted after the substitution of the juror Hammer for Six, as he had had his legal chal- lenge to the original jurors and to the substituted juror. Every right guaranteed to him by the constitution was granted him. * * * * * * The prisoner was not prejudiced by the fact that the juror Hammer had not heard everything that the other jurors heard. When the substituted juror was sworn, the trial commenced de novo. Then the prosecuting attorney introduced the evidence just as if the jury was entirely dif- ferent from what it was before, and the defence, of course, had the right to bring forward all the evidence it could. We can not perceive how the prisoner was prejudiced by this. Certainly, nothing appears in the record to his prejudice in this respect. The court did not, therefore, err in refusing to exclude the evidence of the State. There is no error in the judgment of the Circuit Court and it is affirmed. Affirmed. Sec. 9] The Juey 241 Section 9. Oath Administered. WELLS V. SMITH. Supreme Court of Appeals of West Virginia. 1901. 49 West Virginia, 78. Brannon, President. — This is an action of ejectment * *. It resulted in a verdict and judgment for the plaintiffs. The defendant complains of the overruling a motion in arrest of judgment. The ground for this motion is that the oath of the jury was not such as the law requires. The record says that a jury came "who were the duly tried and sworn the truth to speak upon the issue joined in this case ;" whereas it should have been sworn, ''You shall well and truly try the issue joined between Charles E. Wells and others, plaintiffs, against H. L. Smith, defendant, and a true verdict give according to the evidence." The oath to try the issue joined is good in civil cases. It is the oath given as proper in that excellent work of late date, Encylopaedia of Pleading and Practice, Vol. 12, p. 516. What does the oath in this case lack? Only the injunction to try the issue and render a verdict according to the evidence. Of course, the omission to enjoin the jury to render a verdict is im- material, and as to the omission of the oath to enjoin the jury to render a verdict according to the evidence, that is immaterial, since the law requires a jury to pass on tlie evidence, to respond to facts shown by the evidence. By what else could the jury try the case? It is necessarily to be understood, in a legal point of view, that the trial must be by evidence. Even in a felony case the entry would be sufficient. In Lawrence's Case, 30 Grat. 845, the order book showed that the jury ''were sworn the truth of and upon the premises to speak," and it was held good. The court said that while the oath in felony cases, "You shall well and truly try and true deliverance make between the common- wealth and the prisoner at the bar, whom you shall have in charge, and a true verdict give according to the evidence. So help you God," — is the correct oath, still no law pre- scribed it, common or statute, and one of the same import T. p.— 16 242 Tkial Peactice [Chap. 5 would be sufficient, and that it was not necessary that the full form of the oath should be literally inserted in the rec- ord, but it would be sufficient that it should therein simply appear that the jury was duly sworn according to law. The court said that the statement of the record as to the oath was obviously not the form of oath actually administered, but was merely intended to state the fact that the jury was sworn. So we can say in this case. * * * I must not be under- stood as saying that if the record shows the oath actually administered in full, and it is not substantially good, it is not error, but I mean to hold that unless it so appears a mere statement of the record, in any words, attesting the swear- ing of the jury, both in civil and criminal cases, is sufficient. But this case being a civil case I think the oath shown by the record, even if regarded as t'he full literal oath, is good, though we are not compelled to so regard it, but may pre- sume that the injunction to well and truly try the case according to the evidence was really in the oath adminis- tered. I just now discover that State v. Ice, 34 W. Va. 244, so holds. Ample authority so settles the point. See 12 Ency. PI. and Prac. 522, where it is stated that the better entry is, not to give the oath in full but simply state that the jury was duly sworn according to law. I think so. Can we say that the oath in this case is not substantially good? **If the oath is substantially in the prescribed or recognized form, it will be sufficient, and a literal adherence to form will not be required." 12 Ency. PI. and Prac. 518. Mere technicality should not be allowed such sway as is proposed in this case. There is another reason why this point should not reverse the trial. The defendant had right to object to the oath when administered and to demand a proper one, if not sat- isfied with the one used, and he could not sit silent, take his chances of a verdict in his favor, and then take advantage of such a defect. He could have shown the oath actually administered by bill of exceptions, and must do so, as held in Lawrence's Case, 30 Grat. 650, and in Dysen v. State, 26 Miss. 32, and many other cases cited in 1 Thompson on Trials, s. 108. I will add that an oath such as that in this case, to try tlio issue joined, was held good on principle and authority in civil cases. Pierce v. Tate, 27 Miss. 283; Windham v. Williams, Id. 313. We affirm the judgment. Afirmed, CHAPTER VI. THE RIGHT TO OPEN AND CLOSE. JOHNSON V. JOSEPHS. Supreme Judicial Court of Maine. 1884. 75 Maine, 544. Trespass in which the plaintiff claimed damages in the sum of two thousand dollars for an alleged assault and bat- tery by the defendant upon the person of the plaintiff. The pleadings and the question presented to the law court are stated in the opinion. ********** Petees, C. J. Plaintiff sued for an assault and battery. Defendant pleaded ''son assault demesne," and plaintiff replied " de injuria." Under these pleadings the defendant, against the plaintiff's protest, was allowed by the court "to open and close." This was contrary to what we regard as the well settled practice in this state. The rule of practice and of law in this state, is that, when a plaintiff has to prove anything to make out a full and perfect case, he is entitled to open and close. The test is, whether he need put in any proof of any part of his claim. In this case, the burden fell upon him to prove the extent of the damages sustained. It is a case of unliquidated damages, and not a case of nom- inal damages, or of damages to be assessed by computation merely. The plaintiff certainly had something to prove. The counsel for the defendant contends that the defendant's plea confessed everything alleged against him. "We think not. It did not admit more than a general demurrer or a default would admit, and that would be nominal damages only. Hanley v. Sutherland, 74 Maine, 212, and cases cited. The plea of "son assault demesne" is but a qualified ad- mission of the injury alleged. The point may be tested in this way: Suppose that, after the pleadings were com- 243 244 TffE JuEY [Chap. 6 pleted the defendant had rested without any proof what- ever. Judgment wonld go for the plaintiff, no doubt. But for how much? Would the court order judgment for the sum of one thousand dollars, the amount of damages which the plaintiff alleges, or would the plaintiff be required to prove the damages? Can it be, that a plea of son assault demesne admits any amount of damages which a plaintiff inserts in the ad damnum of his writ? If so, a plaintiff may prevent the plea in many cases by alleging exaggerated damages. In fact, the defendant cautiously worded his plea to avoid admitting the whole injury charged. He says he did ''un- avoidably a little beat, bruise and ill-treat the said plain- tiff." One of the issues of the case, therefore, was whether the beating was little or much. The declaration for an as- sault and battery is usually formal and general. Under the common form, in our practice, the plaintiff may prove malice as the foundation for punitive damages. The dam- ages are necessarily a matter of uncertainty. The judicial discretion of a jury can be invoked by a plaintiff to settle them, and whatever the pleadings, if in the common form, there must be proof of the nature and extent of the injury sustained. We think there might be great abuse of the practice, if the ruling in this case be sustained. Defendants would adopt the plea of self defence, in order to have th'3 last word, in cases where no real question exists but to have the amount of damages ascertained. It is not the natural order of things to hear the accused before the accuser is lieard. In the trial of this cause there was testimony upon both sides. No one would doubt that the plaintiff proceeded with testimony after the defendant's side was closed. The de- fendant had the privilege of closing the argument upon the ut this is far from holding that a Federal court obtains jurisdiction of a suit thus removed in such wise that it can never again be brought in a state court, although there has been no judgment upon the merits in the Federal court, and the case has been dismissed therein without any other Sec. 1] Dismissal, Non-Suit, Directed Veedict 315 disposition than is involved in a voluntary dismissal witii the consent of the court. While it is true that a compliance with the act of Con- gress entitling the party to remove the case may operate to end the jurisdiction of the state court, notwithstanding it refuses to allow such removal, it by no means follows that the state court may not acquire jurisdiction in some proper way of the same cause of action after the case has been dis- missed without final judgment in a Federal court. By com- plying with the removal act the state court lost its jurisdic- tion, and upon the filing of the record in the Federal court that court acquired jurisdiction. It thereby had the au- thority to hear, determine and render a judgment in that case to the exclusion of every other court. But where the court permitted a dismissal of the action by the plaintiff it thereby lost the jurisdiction which it had thus acquired. We know of no principle which would permit the Federal court under such circumstances, and after the dismissal of the suit, to continue its jurisdiction over the case in such wise that no other court could ever entertain it. After the voluntary dismissal in tJie Federal court the case was again at large, and the plaintiff was at liberty to begin it again in any court of competent jurisdiction. We find no error in the judgment of the Court of Appeals of Georgia, and the same is affirmed. Affirmed, FKANCISCO V. CHICAGO «& ALTON RAILWAY COMPANY. United States Circuit Court of Appeals, Eighth Cir- cuit. 1906. 79 Circuit Court of Appeals, 292. Before Sanborn, Hook and Adams, Circuit Judges. Sanborn, Circuit Judge. The plaintiff below is the plaintiff in error here. He brought an action against the defendant to recover $5,000 damages for the negligent killing of George L. Gerew. The 316 Teial Peactice [Chap. 10 defendant denied its liability. There was a trial of the issues before a jury. At the close of the evidence the de- fendant moved the court to instruct the jury that under the pleadings and evidence they must find a verdict for the de- fendant. The court granted the motion, and the plaintiff excepted. But before the jury were actually instructed the })]aintiff prayed leave of the court to take an involuntary nonsuit. The court granted him permission and a judg- ment was rendered accordingly. Subsequently the plaintiff moved the court to set aside this judgment of nonsuit and to grant a new trial of the action, and this motion was denied. He has sued out this writ of error to secure a reversal of this judgment of nonsuit on account of numerous alleged er- rors in the trial of the action, and especially because the court held that the evidence was insufficient to sustain his cause of action and that the defendant was entitled to a ver- dict thereon. But invited error is irremediable. If the court erred in the rendition of the judgment of nonsuit, it erred at the plaintiff's request and to the prejudice of the defendant, and that error can form no ground for the reversal of the judgment at the suit of the plaintiff who procured it. A judgment of nonsuit upon the motion or request of the de- fendant and against the objection or protest of the plain- tiff is reviewable by writ of error. Central Transp. Co. v. Pullman's Car Co., 139 U. S. 24, 29, 39, 40, 11 Sup. Ct. 478. 35 L. Ed. 55; Median v. Valentine, 145 U. S. 611, 614, 618, 12 Sup. Ct. 972, 36 L. Ed. 835. But a judgment of nonsuit on the motion, at the request or with the consent of the plaintiff, is not reviewable by writ of error at his suit, because he is estopped from con- victing the trial court of an error which he requested it to commit. * * * In Parks v. Southern Ry. Co., 143 Fed, 276, a case which arose in North Carolina, where, in the state courts, a plain- tiff may take a nonsuit at any time before verdict, the de- f(3ndant at the close of the evidence had moved the court to instruct the jury to return a verdict in his favor, and the court liad sustained the motion. Plaintiff then moved for leave to tak(! a nonsuit. The court denied his motion and instructed the jury to return a verdict for the defendant. Sec. 1] Dismissal, Nox-Suit, Dieected Verdict 317 The Circuit Court of Appeals held that, when the motion to instruct the jury for the defendant was made, the plain- tiff was put to his election to then take his nonsuit or to submit the whole case upon the motion to instruct, that the motion for leave to take a nonsuit after the decision upon the motion to instruct came too late, and that there was no error in the subsequent refusal of the court to grant the non- suit. While a different rule has been established in this cir- cuit in cases coming from Missouri, in deference to a statute of that state and in conformity to the practice in its trial courts {Chicago, M. S St. P. Rij. Co. v. Metalstaff, 41 C. C. k. 669, 101 Fed. 769), the opinion in the Parks case con- tains a statement of the duty of courts to respect the rights of defendants, as well as plaintiffs, to a lawsuit, to make an end of litigation and to prevent the abuse of the means of administering justice by the trial of experiments upon the courts with defective causes of action, which strongly ap- peals to our judgment and presents a persuasive argument in support of the rule under consideration. Judge Pritch- ard said: "It is highly important that the court in the exercise of its discretion should not only see that equal and exact jus- tice is done between litigants, but it is equallj' important that needless litigation should be speedily determined, and in the trial of cases the court should consider the rights of the defendant as well as those of the plaintiff, and, where it appears that all the evidence which it is possible to obtain has been offefed and the case has been submitted to the jury or to the court, it is the duty of the court, if In its opinion the evidence is not sufficient to justify a verdict in favor of the plaintiff, to direct the jury to return a ver- dict in favor of the defendant. The courts are not organ- ized for the purpose of permitting the jDlaintitf in an action to experiment with a certain state of facts for the purpose of ascertaining the opinion of the court as to the law ap- plicable to the same and then permit him to withdraw from the scene of conflict and state a new cause of action and mend his licks in another direction. Such policy, if adopted, would be productive of much mischief, and should not be tolerated." The difference between a judgment upon an instructed verdict and a judgment of nonsuit is that the former pre 318 Trial Pbactice [Chap. 10 vents, while the latter permits, the maintenance of another action for the same cause. When the evidence was closed in the suit before us, each party had established rights in the trial of this action. The plaintiff had the right to elect whether he would take a nonsuit (section 639, Rev. St. Mo. 1899; Chicago, M. S St. P. Ry. Co. v. Metalstaff, 41 C. C. A. 669, 101 Fed. 769), or would submit the whole cause upon the motion to instruct and endeavor to secure a ver- dict in his favor. The defendant had a right to elect whether it would endeavor to obtain a nonsuit or a verdict on the merits in its favor. It chose the latter alternative and moved the court for a directed verdict. This motion the plaintiff opposed and submitted the cause to the court for decision. The court granted the motion, and the plain- tiff excepted, lie then had the right to elect whether he would take a nonsuit and bring another action on the same cause, or would take a verdict against himself and secure a review of the rulings of the court by a writ of error. He chose the former remedy. He moved the court for leave to take an involuntary nonsuit. The parties then stood in this situation: The defendant asked and pressed for an instructed verdict and thereby necessarily objected to the nonsuit which gave the plaintiff an opportunity to bring an- other action. The plaintiff prayed for the nonsuit and thereby necessarily objected to the instruced verdict and to a judgment whi(?h would prevent his maintenance of another action. The court granted the request of the plaintiff and denied that of tlie defendant. Plaintiff thereby secured his right to maintain his action for the same cause, and the de- fendant lost the judgment in its favor and the entire bene- fit of a trial in which it had succeeded. The nonsuit was obtained by the act and request of the plaintiff against the motion and objection of the defendant, and it may not be successfully challenged by a writ of error procured by the former. It is said that this was an involuntary nonsuit because the plaintiff was forced to take it by the decision of the trial court that he had proved no cause of action, and that the Supremo Court of Missouri has often so decided and has reviewed cases from the inferior courts of that state uf)ori writs of error to such judgments. Williams v. Finks, 156 Mo. 597, 57 S. W. 732; Ready v. Smith, 141 Mo. 305, 42 Sec. 1] Dismissal, Non-Suit, Dieected Verdict 319 S. W. 727; English v. Mullanphy, 1 Mo. 780; Coll'ms v. Bowmer, 2 Mo. 195; Bates County v. Smith, 65 Mo. 464; Schulter's Adm'r v. Bockivinkle's Adm'r, 19 Mo. 647; Dumey v. Schoeffler, 20 Mo. 323; Greene Co. v. Gray, 146 Mo. 568, 48 S. W. 447. The answer is (1) that whether the nonsuit was voluntary or involuntary in the conception of the Supreme Court of Missouri, and whether or not it would have been reviewable by that court, if it had been granted by an inferior court of that state, an indispensable condition of its review at the instance of a plaintiff in error in a national court is that it was granted "without his con- sent and against his objection," and this judgment lacks this condition, for the nonsuit was granted at his request and by his active procurement; (2) that the plaintiff was not forced by the decision of the court below that he had failed to prove his case to take a nonsuit, but he had the option to take the verdict and judgment against him and to review it, and if it was erroneous to reverse it by writ of error, or to take the dismissal of the action and try again; and (3) that his choice of the latter alternative cannot be made involuntary by placing that deceptive adjective be- fore it in the face of the record that he was free to proceed to verdict, judgment, and review, or to a judgment of non- suit, and that of his own free will and against the motion and objection of his opponent he asked and secured the dis- missal. The real character of this nonsuit cannot be re- versed or concealed by applying to it a false epithet. It has been a fixed rule of practice of the appellate courts of the United States for almost 100 years that no writ of error will lie at the suit of a plaintiff to review a judg- ment of nonsuit which has been rendered at his request or with his consent, and that no judgment will be reversed for an error which the plaintiff in the writ has invited the court to commit, and the fact that the Supreme Court of Missouri calls such a nonsuit "involuntary" and reviews it presents no persuasive reason why one of the national appellate courts should depart from this salutary rule while there are many why it should abide by and enforce it. Courts are established and maintained to settle and terminate contro- versies between citizens and to enforce their rights, not to furnish debating societies for the trial of legal experiments. 320 Trial Practice [Chap. 10 The chief reason of their being is to end, not to perpetuate, disputes. "Interest reipublicae ut sit finis litium/' A practice which permits a plaintiff to experiment with the courts and to harass the defendant interminably at will runs counter to the basic purpose of legal tribunals and of all civilized governments, and, instead of assisting to wisely administer justice, it inflicts and perpetuates wrong. Yet this is the practice which a grave review of such nonsuits as that in hand would establish. Under it a plaintiff could introduce his evidence and try the Circuit Court to see whether or not it would sustain his action. If it granted a motion to instruct a verdict against him, he could procure from the court an involuntary nonsuit, then sue out a writ of error and try the appellate court, and, if it would not sus- tain his action, he could pay the costs, bring another action for the same cause, and continue his actions and experi- ments interminably. The federal courts ought not to per- mit themselves to be made the subjects of such experiments. The only material interests involved in the review of such judgments are the costs of the actions, for the plaintiffs may try their causes again whatever the decisions of the appellate courts, and the demands upon these courts for the decision of real and important issues are too grave and pressing to permit them to devote their time to litigation so frivolous. There is a more compelling reason why proceedings of this nature should not be sustained. The plaintiff is not the only party to a lawsuit who has rights. The defendant has some, and one of them is the right, not only to a fair and impartial trial of the action against him, but to a final adjudication of the alleged cause which the plaintiff pre sents and to a termination of the litigation upon it. This right he can never enforce, this termination he can never secure under the practice here proposed, for there is no limit to the number of actions on the same cause, or on the want of it, which the plaintiff may bring, review, and dis- miss under it. The conclusion is that a writ of error will not lie in a national appellate court at the suit of the plaintiff to re- view a judgment of nonsuit or dismissal which has been rendered at his request or with his consent after the court Sec. ]J Dismissal, Non-Suit, Directed Verdict 321 has held at the close of the trial that the defendant is en- titled to a verdict. This case has been considered and determined upon the theory that the evident intention of the plaintiff and of the court to render a judgment of nonsuit has been effected. But the form of the judgment is such that a claim may be made that it was a judgment on the merits. For this rea- son alone the judgment will be reversed, the defendant in error will recover its costs in this court, and the case will be remanded to the Circuit Court, with directions to render a judgment that the action be dismissed without prejudice to the right of the plaintiff to maintain another for the same cause, and that the defendant recover its costs of the plaintiff, and it is so ordered. (d) Form of Motion. FERGUSON V. INGLE. Supreme Court of Oregon. 1900. 38 Oregon, 43. Mr. Justice Moore, after stating the facts, delivered the opinion of the court. 1. It is contended by plaintiff's counsel that the court erred in refusing to grant a voluntary nonsuit requested by their clients; while defendant's counsel insist that, the motion therefor not having specified the ground upon which it was predicated, no error was committed in this respect. Considering those questions in inverse order, the rule is well settled that the motion of an adverse party for a non- suit must specify the grounds therefor, and, unless it does so, an appellate court will not review the action of the trial court in denying the motion : 14 Enc. PI. & Prac. 117, 136 ; Silva V. Holland, 74 Cal. 530 (16 Pac. 385) ; Flijnn v. Dougli- f.rtij, 91 Cal. 669 (27 Pac. 1080, 14 L. R. A. 230) ; Wright v. Fire Ins. Co., 12 Mont. 474 (31 Pac. 87, 19 L. R. A. 211.) The reason for this rule is found in the fact that an appel- late court will consider only such questions as have been T. p.— 2r 322 Trial Practice [Chap. 10 l)resented to the trial court at the projier time, and in an appropriate manner; and when it appears that the ques- tion sought to be reviewed was not thus submitted to such court the presumption that its decision thereon is correct ought to prevail. But, whatever reason may be adduced for the existence of this rule, the point insisted upon is without merit, for the motion in this case was not made by the ad- verse party. The statute provides, in effect, that the plain- tiff, upon his own motion, may secure a judgment of non- suit at any time before trial, unless a counter-claim has been pleaded as a defense. Hill's Ann. Laws, sec. 246. A volun- tary nonsuit is, therefore, peremptory, and, whatever mo- tive may have prompted a plaintiff to dismiss his suit or action, he is not required to state it; for if the motion be made before trial, and in the absence of a counter-claim ])leaded as a defense, the trial court is without discretion in the matter, and must give the judgment requested. The judgment is therefore reversed, and the cause re- manded, with instructions to grant the nonsuit. Reversed. Section 2. Nonsuit. CARROLL V. GRANDE RONDE ELECTRIC COM- PANY. Supreme Court of Oregon. 1907. 49 Oregon, 477. Statement by Mr. Chief Justice Bean. This is an action by Eliza Carroll, administratrix, against tlie Grande Ronde Electric Co. On August 28, 1905, Leon- ard Carroll was killed by an electric wire belonging to de- fendant company. The administratrix of his estate })rouglit an action to recover damages on account of his dcatli, alleging that it was caused by the negligence of de- fendant. The defendant answered, denying the allegations of tJK; complaint, and, for a further and separate defense, Sec. 2] Dismissal, Non-Suit, Dieected Verdict 32.^ setting up contributory negligence on the part of de- ceased. The trial was begun before a jury on issues join- ed, and, after the plaintiff had introduced her testimony and rested, the defendant moved for a nonsuit, on the ground, among others, that the evidence showed that the death of her intestate was caused bv liis own negligence. This motion was allowed ; the record of such allowance re- citing 'Hhat the plaintiff's intestate Leonard Carroll, at the time of the accident complained of, resulting in his death, was guilty of contributory negligence, which was the proximate and direct cause of the injury resulting in his death." The judgment was subsequently affirmed: Carroll v. Grande Ronde Elec. Co., 47 Or. 424, (84 Pac. 389; 6 L, R. A., N. S. 290). Thereafter the plaintiff com- menced this action on the same cause as is alleged in the action heretofore referred to. The defendant pleads the judgment in the former action as a bar, and, such plea be- ing sustained, judgment was rendered in its favor, and plaintiff appeals. Reversed. Opinion by Mr. Chief Justice Bean. The statute, after providing that a judgment of nonsuit may be given against the plaintiff on motion of the defend- ant, when upon the trial the plaintiff fails to prove a cause sufficient to be submitted to the jury (Section 182, B. & C. Comp.), declares that, when such judgment is given, the action is dimissed, but it shall not have the effect to bar another action for the same cause: Section 184, B. & C. Comp. The statute would seem to leave no room for argument as to the effect of an involuntary judgment of nonsuit. But the defendant contends that because, in the case at bar, the entry of the order sustaining the motion contains a statement or finding that the contributory negli- gence of the plaintiff's intestate was the proximate cause of his death, it is a judgment on the merits, and therefore a bar to another action. The vice of this position lies in the fact that, on a motion for a nonsuit, the court has no jurisdiction or authority to pass upon the merits or adjudi- cate the rights of the parties, and an attempt to do so is a nullity. A motion by defendant for a nonsuit does not challenge the facts as shown by plaintiff, nor call upon the 324 Teial Practice [Chap. 10 court to determine the rights of the parties, but only to decide as a matter of law whether upon the evidence of plaintiff, as it now stands, he is entitled to take the opinion of the jur}" on his case. It is a motion based on some de- fect or neglect of the plaintiff, and does not involve the merits. The plaintiff, therefore, is, under all the authori- ties, authorized, if the motion is sustained to bring his action again: Black, Judgments (2 ed.), sec. 699; Freeman, Judgments, sec. 261; Reynolds v. Garner, 66 Barb. 319; Lindvall v. Woods, (C. C), 47 Fed. 195; Manhattan Life Ins. Co. V. Broughten, 109 U. S. 121 (3 Sup. Ct. 99, 27 L. Ed. 878) ; United States v. Parker, 120 U. S. 89 (7 Sup. Ct. 454, 30 L. Ed. 601) ; Gardner v. Michigan Cent. R. Co., 150 U. S. 349 (14 Sup. Ct. 140, 37 L. Ed. 1107). And it can make no difference upon what point the motion is al- lowed, or how the judgment may be framed, or what reci- tals it may contain, or that the motion was ordered upon the failure of plaintiff's evidence: 23 Cyc. 1137; 24 Am. & Eng. Enc. Law (2 ed.), 801; Black, Judgments (2 ed.), sec. 699; Glimmer v. Trustees of Village, 50 Wis. 247 (6 N. W. 885) ; United States v. Parker, 120 U. S. 89 (7 Sup. Ct. 454, 30 Law. Ed. 601). It is still nothing but a judgment of nonsuit, which has been likened to the blowing out of a candle, which a man, at his own pleasure, may light again, and wliich the statute declares shall not be a bar to another action for the same cause. At the time the motion was made by the defendant, the plaintiff, on her own motion, could have taken a voluntary nonsuit, which certainly would not have been a bar, and she is in no worse position because the court on motion of defendant did what she herself voluntarily could have done. The defendant could have had a judgment which would have been a bar to another action if it had rested, and submitted the case io the jury on plaintiff's evidence, instead of moving for a nonsuit, but it has no right to experiment with a motion for a nonsuit, thus reserving to itself the right, if the ruling is against it, to go into a full trial on the merits, and deny the ])laiiitirr, if she is the losing party, the right to bring her Mclioii anew. If the defendant would not be bound by tlic nilidg on the motion, the plaintiff ought not to be. If a judgment of nonsuit, on the motion of defendant, is an adjudication upon the merits, conclusive on the plaintiff. Sec. 2] Dismissal, Non-Suit, Directed Verdict 325 and a bar to another action, then the correlative rule must be adopted, that a denial of such motion is conclusive upon the defendant, and operates as a judgment for the plaintiff, a position nowhere asserted. No judgment can be an estop- pel unless it is on the merits : Freeman, Judgments, sec. 260. And a motion for a nonsuit is a waiver of the right to have a judgment on the merits, and submits to the court the single question whether the plaintiff has proven a case sufficient to be submitted to a jury, and the sustaining or overruling of the motion is an adjudication of no other matter. The case of Bartelt v. Seehorn, 25 Wash. 261 (65 Pac. 185), seems to be contra to this conclusion, but no authorities are cited in its support, and we have been un- able to find any, and the rule there announced is against the plain provisions of our statute. Judgmicnt reversed, and cause remanded for such other proceedings as may be proper, not inconsistent with this decision. Reversed. SMALLEY V. RIO GRANDE WESTERN RAILWAY COMPANY. Supreme Court of Utah. 1908. 34 Utah, 423. Straup, J. This action was brought by the plaintiff to recover dam- ages alleged to have been sustained by him by reason of the defendant's negligence. The accident happened in the de- fendant's railroad yard at Ogden. It was alleged in the complaint that the yard was located between two streets in a well-settled portion of the city ; that in the vicinity of the accident it had been the custom of the public to cross the yard and walk along the tracks, and of children to play about the yard and ride on cars, with the knowledge and consent of the defendant ; that the yard and cars operated therein were alluring and attractive to young children, who 326 Teial Pkactice [Chap. 10 were attracted to tlie yard aud tempted to ride on cars; that it was the duty of the defendant to fence the yard, and in switching cars to have a sufficient number of men engaged at such work to perform it with reasonable safety to those who might be in and about the yard, and to have persons stationed on the cars to control their movements and to ob- serve proper lookout for the presence of children about the tracks; that the defendant negligently failed to perform such duties, by reason of which the plaintiff, a boy five years of age, who had been attracted to the yard and at play on or about the tracks, was run against and injured by a car moved and switched about the yard. The defendant denied the negligence charged in the complaint, and alleged that the plaintiff unlawfully, and without the knowledge and consent of the defendant, entered the yard and while tres- passing therein attempted, without the defendant's knowl- edge and consent, to board a moving car, which was being switched about the yard, and in so doing fell and was in- jured without fault on the part of the defendant, and that the custodian of the plaintiff, in whose charge the child had been placed by its father, was guilty of negligence in permitting it to wander about and to enter the yard. The case was tried to the court and jury. * * * At the conclusion of the evidence the court, on the defendant's motion, directed the jury to render a verdict, *'in favor of the defendant, no cause of action." The jury rendered a verdict, finding ''the issues joined in favor of the defendant, and against the plaintiff, no cause of ac- tion." A judgment was entered on the merits in favor of the defendant, from which this appeal is prosecuted by plaintiff. It is contended by appellant that, though the evidence was not sufficient to let the case to the jury, the court never- tlieless was not authorized to direct a verdict and enter a judgment on merits, as was done. This claim is made up- on tlio following statutory provisions (section 3181, Comp. Tiuws 1907) : "An action may be dismissed or a judgment of nonsuit entered in the following cases: (1) By the plain- tiff himself at any time before trial, upon the payment of costs, if a counter-claim has not been made, or affirmative relief sought by the answer of the defendant, etc. (2) By Sec. 2] Dismissal, Non-Suit^ Directed Verdict 327 cither party upon the written consent of the other. (3) By the court when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal. (4) By the court when upon the trial and before the final submis- sion of the case the plaintiff abandons it. (5) By the court upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury; pro- vided, that the offering of evidence after the overruling of a motion for a nonsuit shall not be deemed or considered a waiver of the exception taken by the defendant to the order overruling such motion. (6) By the court when after ver- dict or final submission the party entitled to judgment neg- lects to demand and have the same entered for more than six months." Section 3182: ''In every case, other than those mentioned in the next preceding section, judgment must be rendered on the merits." By reason of these pro- visions, especially subdivision 5 of section 3181, it is ar- gued that the direction of a verdict in favor of the defend- ant, when the plaintiff fails to prove a sufficient case for the jury, can have no greater effect than the granting of a mo- tion of nonsuit. * * * * ********** In some respects the principles applying to a motion of nonsuit also apply to a motion for a direction of a verdict. In a general sense it may be said that both take the place of a demurrer to the evidence and are governed by the same principles. But a demurrer to the evidence was a submis- sion of the case for final determination, which determina- tion called for a judgment on the merits. Our Code has provided under what circumstances a motion of nonsuit may be granted, and that the granting of such a motion shall not be an adjudication on merits, nor shall the over- ruling of such a motion preclude the moving party from thereafter offering evidence, as was the case on a demurrer to evidence. The court may, at the close of plaintiff's evi- dence, on plaintiff's motion, grant a voluntary, and on the defendant's motion an involuntary, nonsuit. The court may do the same thing at the close of all the evidence, and before the case has been submitted for firial determination. In each of such cases the judgment is not on the merits The plaintiff, however, at the close of liis evidence may rest and submit the case for final determination. The defend- 328 Trial Peactice [Chap. 10 ant may do likewise witliout offering any evidence. So, too, at the close of all the evidence offered by both parties, the plaintiff may still submit the case for final determination, as also may the defendant. Wlienever a party ''rests" his case, he indicates that he has produced all the evidence he intends to offer, and submits the case, either finally, or sub- ject to his right to afterwards offer rebutting evidence. When both parties have "rested," they indicate a submis- sion of the case for final determination. The determination on such a submission is on the merits. If the facts are in dispute, the case must be sent to the jury for their finding, upon which a judgment on merits is entered accordingly. If the facts are not in dispute, the determination presents a mere question of law, to be decided by the court, upon whose decision, or upon the rendition of a verdict directed by him, a judgment is also entered on the merits. Upon a final submission of the case, when there is no evidence to sustain the case of the party having the affirmative, it is proper for the court to direct a verdict against him. It is as proper for the court to direct a verdict against the plain- tiff, in the absence of proof to establish a fact essential to his case, as to direct a verdict against him when the proof, either upon his own evidence or that of the defendant, con- clusively establishes some affirmative defense. We do not understand the statute to mean that the court is authorized to direct a verdict in the one instance, but not in the other, or that the court is unauthorized to direct a verdict in any case. In the case in hand, upon the evidence adduced by both parties, the case was submitted for final determina- tion without the making of a motion of nonsuit or dismissal by either party. Upon such a submission the defendant urged that the facts were not in dispute, and that, on the esta])lished facts, it, as matter of law, was entitled Lo a judgment in its favor. On the other hand, the plaintiff ui-ged that the facts were in dispute, and that the question of the defendant's negligence was one of fact, and not of law, and hence the determination of the case required a finding by the jury. In such case the determination, wheth- er made by the court as matter of law, or by tlie jury as matter of fact, called for a judgment on the merits. We are tliorefore of the opinion that the court was fully au- thorized to direct such a verdict and to enter such a judg- Sec. 2] Dismissal, Non-Suit, Directed Verdict 329 ment. Whether the ruling was erroneous remains to be considered. It is urged that the court erred in directing a verdict because no grounds were stated for such action. This court has repeatedly held that the particular grounds upon which a motion for nonsuit is based must be stated in order that the attention of the court and counsel may be called thereto, and that the defects in the proof may be obviated and corrected, if such defects admit of correction. Frank V. Bullion-Beck, etc., M. Co., 19 Utah, 35, 56 Pac. 419 ; Skeen V. 0. S. L. R. R. Co., 22 Utah, 413, 62 Pac. 1020 ; Leivis v. Mining Co., 22 Utah, 51, 61 Pac. 860; Wild v. Union Pac. Ry. Co., 23 Utah, 266, 63 Pac. 886, and other cases there cited. From the above cases it will be seen that a judgment of nonsuit in a number of them was reversed because the grounds upon which the motion was based were not suffici- ently specified, regardless of the question of the sufficiency of the evidence to send the case to the jury. The general rule, when a motion is denied or an objection overruled, the moving party is permitted, on appeal, to urge only such grounds for a reversal as were specifically pointed out or made by him before the trial court, but when the motion or objection is sustained, because of the presump- tion against error coming to his aid, a party is permitted, on appeal, to defend the ruling on any ground inhering in the record, was, either in effect or expressly, held, in a number of cases in this jurisdiction, not applicable to a motion of nonsuit. In the case of White v. Rio Grande Western Ry. Co., 22 Utah, 138, 61 Pac. 568, it was expressly decided that there is no difference with respect to the rule requiring a specification of grounds when the motion is denied and when the motion is sustained. In Mclntyre v. Ajax Min. Co., 20 Utah, 332, 60 Pac. 552, this court held that ''an appellate court will not sustain a motion for nonsuit, except on the grounds alleged in the motion, ' ' and approvinglv quoted the syllabus, in the case of Palmer v. Marysville Dem. Puh. Co., 90 Cal. 168, 27 Pac. 21 that ''It is error for the trial court to grant a nonsuit, unless the grounds therefor are called to the attention of the trial judge and the plaintiff at the time the motion is made; and, where none of the grounds upon which the nonsuit is asked are sufficient to warrant the court in granting the 330 Trial Practice [Chap. 10 motion, the order granting it will be reversed, although another gronnd, not specified in the motion, might have warranted the order." We think the reasons given by courts, requiring the grounds upon which a motion for nonsuit is based to be specified, in order that the court ma_y know upon what question of law the case is asked to be taken from the jury, and the party against whom the motion is directed may be afforded opportunity to correct the defects, if they ad- mit of correction, and can be obviated by additional evi- dence, apply with equal force to a motion for a direction of a verdict. If such opportunity should be afforded him on a motion of nonsuit, which, if granted, would not be an adjudication on the merits, and not a bar to another action, for much stronger reasons should such opportunity be given him on a motion for a direction of a verdict, which, if granted, would be a bar to another action. * * * * * * In the case of Tandercup v. Hansen, 8 S. D. 375, 66 N. W. 1073, it was said: "Where such a motion is made, the specific ground upon which the motion is made must be stated. It is due to the court and the opposing counsel, that their attention should be called to the precise defect in the evidence, or the omis- sion of evidence, that the party claims entitles him to the direction of the verdict. It is due to the court to enable it to pass understandingly upon the motion, and it is due to counsel that he may, if possible, supply the defective or omitted evidence if permitted to do so by the court." The same doctrine is stated in 6 PI. & Pr. 699, in the fol- lowing language: "The motion to direct a verdict, and the judge in mak- ing such direction, should specify the particular ground or grounds which justify it." We have not been referred to, nor have we seen, any case holding to the contrary. This, however, does not mean that the movant of the motion or the court is required to state reasons supporting the grounds. If the grounds are sulliciently specified to call attention to the particular de- fects and the (luostion of law on which the case is taken from the jury, that is all that is required. A mere general statement that, under the evidence, the plaintiff is not Sec. 2] Dismissal, Non-Suit, Dihelted Verdict 331 entitled to recover, or that the defendant is entitled to a verdict, or that the plainiff has not made a sufficient case to go to the jury, does not point to an\i;hing. If, however, in a case of negligence a specification is made that the evi- dence is insufficient to show negligence on the part of the defendant, or that under the evidence the plaintiff is conclusively shown to be guilty of contributory negligence, or that he assumed the risk, etc., such a specification is ordinarily sufficient. If a verdict is directed on the ground that the evidence is insufficient to show negligence on the part of the defendant, it sufficiently is made to appear on what question of law the case was taken from the jury. The making of such a specification ordinarily points out the defect within the meaning of the adjudicated cases. The court in such instance may give reasons why in his opinion the e\ddence is insufficient to show such negligence. Though the reasons given may be groundless, yet, if upon an examination of the record the evidence is found insuffici- ent to show such negligence, the ruling must be upheld. The rule is also qualified to the extent that, if it is otherwise made manifest upon what question of law the case was taken from the jury, and the defects upon which it was based do not admit of correction, or could ni('k(Ml ii]) the burden first, put in its evi- Sec. 2] Dismissal, Nox-Suit, Directed Veedict 335 dence and again moved for a nonsuit. Assuming that an exception was taken to tlie denial of its motion, for the second time it was in a situation to rely on its exception and refuse to take any further part in the trial. It did not do so. On the contrary, it continued to take an active and aggressive part in the trial by cross-examining the wit- nesses of its codefendant, thoroughly and at length. It aided in developing the facts and attempted to defend it- self against the allegations of the plaintiff and the effort of the other defendant to fasten the responsibility upon it alone. It did not succeed, and it now claims that all its action, after its motions to nonsuit were denied, should go for naught and be ignored upon the ground that the ques- tion is the same as if it had withdrawn from the case at that time. We do not think so. It did not remain in the case for amusement, but for self-defense, and it could not make further efforts to defend itself without running the usual risks. The plaintiff had the right to rely upon any evidence in her favor, whether it was put in by herself or by either defendant, and the Vehicle Company by failing to withdraw when it had the right to and continuing to take part in the trial, ran the risk that evidence tending to make it liable would be received. The situation does not differ in principle from the ordinary case where a sole defendant, instead of withdrawing when he fails to secure a nonsuit, continues to take part in the investigation to the end. In so doing, even if his motion should have been granted when made, the exception is undermined and becomes of no avail, provided at the close of the whole case the evidence pre- sents a question for the jury. Thus in Jones v. Union Railway Company (18 App, Div. 267, 268) Judge Cullen said: "When the defendant enters into its proof, the question never is, whether the plaintiff's evidence is sufficient to justify the submission of the case to the jury, but whether, on the whole case, there is a ques- tion of fact as to the defendant's liability. If, at the close of a plaintiff's case, the defendant is confident that no eause of action has been made out, the only method of se- curing a review of an erroneous ruling on the point is to let the case stand without further evidence. If the defend- ant enters upon its evidence, it takes the chances of supply- ing the deficiencies of the plaintiff's case." 336 Trial Practice [Chap. 10 So in Hopkins v. Clark (158 N. Y. 299, 304) we said through Judge Bartlett: ''The rule laid down by the Supreme Court of the United States seems the proper one, to the effect that when a defendant, after the close of the plaintiff's evidence, moves to dismiss, and, the motion be- ing denied, excepts thereto, and then proceeds with his case, and puts in evidence on his part, he thereby waives the exception, and the overruling of the motion to dismiss cannot be assigned as error." Judge Martin relied upon the case last cited, when, speak- ing for us all, he said: "Where after a motion to dismiss at the close of the plaintiff's evidence, a defendant pro- ceeds with his case and puts in evidence on his part, he thereby waives the exception to the refusal to nonsuit when the plaintiff rested." {Sigua Iron Co. v. Broivn, 171 N. Y. 488, 506). The rule of the Federal courts was expressed by Chief Justice Waite as follows: "It is undoubtedly true that a case may be presented in which the refusal to direct a ver- dict for the defendant at the close of the plaintiff's testi- mony will be good ground for the reversal of a judgment on a verdict in favor of the plaintiff, if the defendant rests his case on such testimony and introduces none in his own behalf ; but if he goes on with his defense and puts in testi- mony of his own, and the jury, under proper instructions, finds against him on the whole evidence, the judgment can- not be reversed, in the absence of the defendant's testi- mony, on account of the original refusal, even though it would not have been wrong to give the instruction at the time it was asked." {Grand Trunk Railway Co. v. Cum- mings, 106 U. S. 700, 701. See, also, Littlejohn v. Shaiv, 159 N. Y. 188, 191; Wangner v. Grimm, 169 N. Y. 421, 427; Accident Insurance Co. v. Grandal, 120 U. S. 527; Northern Pacific R. R. Co. v. Mares, 123 U. S. 710; Robertson v. Per- kins, 129 U. S. 233 ; Columbia S P. S. R. R. Co. v. Haiv- thorne, 144 U. S. 202, 206; Union Pacific R. Co. v. Daniels, 152 U. S. 684.) In the cases cited the defendant ran the risk that his own evidence might supply any defect in the plaintiff's evidence. So, in this case, the Vehicle Company, by con- timrmg to try its case, for that is what it did, ran the risk tbut tiie evidence of its codefendant would supply the de- Sec. 2] Dismissal, Non-Suit, Directed Verdict 337 fects in the plaintiff's case against itself. It could not keep on trying its case without abiding by the condition of the evidence when all the testimony was in. At that time there was a question for the jury as to its liability, and hence its j^revious exceptions, taken when the evidence did not present that question, became of no avail. It did not let go of the case when it could have done so in safety, but hung on until there was evidence enough to warrant a vt^rdi-^t against it. Courts sit to do justice according to the rules of law after giving all parties an opportunity to be heard. The Vehicle Company had its day in court and was fully heard. No legal evidence was excluded and no incompetent evi- dence was received to its injury. It took no exception to the charge of the court. Under these circumstances public business and private rights should not be delayed by grant- ing a new trial on account of an error which was waived by the subsequent course of the party now complaining. The Vehicle Company was not compelled to remain in the case in order to get an exception when its second mo- tion was not granted, because an effort to except, made at the proper time and in the proj^er form, is an exception, whether allowed by the court or not. After considering all the exceptions taken by both de- fendants we find none upon which a new trial should be granted in behalf of either. The judgment should be affirmed, with costs. Gray, J. (dissenting). ********** Haight, Maetin and "Wernee, JJ., concur with Vann, J. ; Parker, Ch. J., and O'Brien, J., concur with Gray, J. Judgment affirmed. T. p.— 22 338 Trial Practice [Chap. 10 Section 3. Directed Verdict. (a) Whe7i Proper. MEYER V. HOUCK. Supreme Court of Iowa. 1892, 85 Iowa, 319. The defendants are husband and wife. On the twenty- seventh day of November, 1889, the defendant C. F. Houck executed and delivered to Calla Houck his promissory note for about twelve hundred dollars, and a chattel mortgage upon a stock of goods and merchandise, to secure the pay- ment of the note. The mortgage was filed for record on the fourth day of December, 1889, and duly recorded. On the seventh day of December, 1889, the plaintiffs commenced an action against C. F. Houck upon an account for goods sold and delivered to him, and sued out an attachment, and caused the same to be levied upon the mortgaged goods. Calla Houck intervened in the action, and claimed the goods as mortgagee. The plaintiffs answered her petition of intervention by claiming that the mortgage was invalid and void as to creditors of C. F. Houck, because it was made with intent to defraud said creditors. There was a trial by jury, and when the plaintiffs completed the intro- duction of their evidence the intervenor moved the court to direct the jury to return a verdict against the plaintiffs. The motion was sustained, and the jury returned the ver- dict as directed, upon which judgment was entered. The plaintiffs appeal. — Affirmed. Rothrock, J. But it is further claimed that there was some evidence tending to show that the transaction in question was fraud- ulent, and that it was the duty of the court to submit the case to tlie jury if there was any evidence, however slight. It may ])e conceded that there was some evidence. There are one or two facts which might be regarded as badges of fraud; but, wlien weighed in tlie balance with the other evidence, tliey do not constitute such a conflict as would authorize a verdict for the plaintiffs. The rule of practice Sec. 3] Dismissal, Non-Suit, Directed Verdict 339 in relation to directing verdicts which has prevailed in this state is well understood. A motion to direct a verdict for the defendant has been regarded as a demurrer to the evidence, and it has always been held that such a motion not only admits the truth of the fact found, but every fact and conclusion which the evidence conduces to prove, or which the jurj^ might have inferred therefrom in his favor. The rule was stated in very nearly the foregoing language in Jones v. Ireland, 4 Iowa, 63. And that practice has ob- tained in this state up to the present time. There are a multitude of cases adhering to the rule. It is unnecessary to cite them. They will be found collected in McClain's Digest (volume 2, pp. 335-338). The practice has been that where there is what is called a "scintilla of evidence" to be considered by the jury, it is error to direct a verdict. The rule has been stated in various forms of expression, as will be seen by an examination of the cases. In Way v. Illinois Central R'y Co., 35 Iowa, 585, the following langu- age is employed: "Hence, under the statute, and our pre- vious rulings, it follows that it is the duty of a nisi priiis court in this state to submit the case to the jury upon the evidence where it only tends even to prove it, although the court should feel in duty bound to set aside a verdict for the plaintiff if the jury should so find." It is further said in that case that "in other states a different, and perhaps better and more consistent rule obtains whereby the court may direct the jury how to find, where it would set aside a verdict otherwise." Citing Broivn v. R'y Co., 58 Me. 389; Wilds V. Hudson River R'y Co., 24 N. Y. 430. In other cases the statement of the rule has been modified, as in Starry v. Dubuque & S. W. R'y Co., 51 Iowa, 419, in which the district court directed a verdict for the defendant, this court said: "Such being the case, it would have been the duty of the court to set aside a verdict in favor of the plaintiff. Why, then, occupy the valuable time of the court at the public expense for the purpose of going through a useless form and ceremony?" Language to the same ef- fect will be found in the case of Botliwell v. C. M. (& St. P. R'y Co., 59 Iowa, 192. After a thorough examination of ad- judged cases, we have reached the conclusion that the prac- tice should be changed so as to harmonize with that "better and more consistent rule" referred to in Way v. R'y Co., 340 Tkial Peactice [Chap. 10 supra, which now obtains in England and in the United States courts, and in nearly all the states of the Union. The doctrine in England on this question is well stated in the following language: "But there is in every case a pre- liminary question, which is one of law, namely, whether there is any e\^dence on which the jury could properly find the verdict for the party on whom the onus of proof lies. If there is not, the judge ought to withdraw the question from tlie jury, and direct a nonsuit if the onus is on the plain- tiff, or direct a verdict for the plaintiff if the onus is on the defendant. It was formerly considered necessary in all cases to leave the question to the jury if there was any evidence, even a scintilla, in support of the case, but it is now settled that the question for the judge (subject, of course, to review) is, as is stated by Maule. J., in Jewell v. Parr, 13 C. B. 916, 'not whether there is literally no evi- dence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is es- tablished.' " Ryder v. Womhivell, L. R. 4 Exch. 32; The Di- rectors, etc., of the Metropolitan R'y Co. v. Jackson, L. R. 3 App. Cas. 193; The Directors, etc., of the Dublin, W. S W. R'y Co. v. Slatterly Id. 1155. The rule, as stated by the supreme court of the United States, is as follows: "The judges are no longer required to submit a case to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would tear rant the jury to proceed in finding a verdict in favor of the party introducing such evidence. Decided cases may be found where it is held that, if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule, to-wit: that before the evidence is left to the jury there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it upon whom the burden of proof is imposed." Commissioners v. Clark, 94 U. S. 278. See also. Improve- ment Co. v. Munson, 14 Wall. 448; Pleasants v. Fant, 12 Wall. 120; Parks v. Ross, 11 How. 373; Merchants Bank v. State Bank, 10 Wall. 637; Hickman v. Jones, 9 Wal). 201. Sec. 3] Dismissal, Non-Suit, Directed Verdict 341 In Pleasants v. Fant, supra, the following language is used: '*It is the duty of the court, in its relation to the jury, to protect parties from unjust verdicts arising from ignorance of the rules of law and of evidence, from im- pulse of i^assion or prejudice, or from any other violation of his lawful rights in the conduct of a trial. This is done by making plain to them the issues they are to try; by admitting only such evidence as is proper in these issues, and rejecting all else; by instructing them in the rules of law by which that eivdence is to be examined and applied; and finally, when necessary, by setting aside a verdict which is unsupported by evidence, or contrary to law. In the discharge of this duty it is the province of the court, either before or after verdict, to decide whether the plaintiff has given evidence sufficient to support or justify a verdict in his favor ; not whether on all the evidence the joreponderat- ing weight is in his favor; that is the business of the jury. But conceding to all the evidence offered the greatest pro- bative force which, according to the law of evidence, it is fairly entitled to, is it sufficient to justify a verdict? If it does not, then it is the duty of the court, after a verdict, to set it aside, and grant a new trial. Must the court go through the idle ceremony, in such a case, of submitting to the jury the testimony on which the plaintiff relies when it is clear to the judicial mind that, if the jury should find a verdict in favor of jDlaintiff, that verdict would be set aside, and a new trial had? Such a proposition is absurd, and accordingly we hold the true principle to be that, if the court is satisfied that, conceding all the inferences which the jury could justifyably draw from the testimony, the evidence is insufficient to warrant a verdict for the plain- tiff, the court should say so to the jury." The same doc- trine may be found in the following cases: Rahy v. Cell, 85 Pa. St. 80, in which it is said that "at one time, indeed, it was the admitted doctrine that, if there was any, the least evidence, — a mere scintilla, — the question must be submit- ted to the jury. But that doctrine has been very justly ex- ploded both in England and in this state." Wittkowsky v. Wasson, 71 N. C. 451; Zettler v. City of Atlanta, QQ Ga. 195; Weis v. City of Madison, 75 Ind. 241; Dryden v. Brit- ton, 19 Wis. 31; Baldiuin v. Shannon, 43 N. J. Law, 596. Brown v. R'y Co., 58 Me. 384, in which it is said: "It would 342 TIBIAL Practice [Chap. 10 be absurd to send a cause to a jury when the verdict, if ren- dered in favor of the plaintiff, would not be permitted to stand. Wilds v. Hudson River R\j Co., 24 N. Y. 430, in which it is said: "No legal principle compels him (the judge) to allow a jury to render a merely idle verdict." Brown v. Massachusetts M. S L. Insurance Co., 59 N. H. 298; Brooks v. Somerville, 106 Mass. 271; Ensminger v. Mclntire, 23 Cal. 593; Morgan v, Durfee, 69 Mo. 469; Sim- mons V. Chicago S T.R'y Co., 110 111. 340. We might cite other adjudged cases to the same effect, but it is unneces- sary. It will be seen from what we have cited that the whole turn of legal thought in this country and in England is contrary to the rule of practice which requires a court to go on for several days with the trial of a case to a jury when the verdict must in the end be either for the defend- ant, or be set aside if for the plaintiff. It is true there are decisions to be found in a few states in which a scin- tilla of evidence is allowed to go to the jury. But an ex- amination of the later cases in some of these states will show that the rule has not been adhered to. We have cited enough cases to show that the great weight of modern au- thority is contrary to the rule which this court has adhered to, though it has more than once intimated that the other rule adopted by the large majority of courts of last resort is better and more consistent. Our conclusion is that when a motion is made to direct a verdict, the trial judge should sustain the motion when, considering all of the evidence, it clearly appears to him that it would be his duty to set aside a verdict if found in favor of the party upon whom the burden of proof rests. The adoi)tion of this rule is no abridgment of the right of trial by jury. A party against whom a verdict has been directed by the court can have the ruling of the court reviewed by exception and appeal just as well as he can if the rule were otherwise, and he takes an appeal to this court from an order granting a new trial after verdict. He has no right to insist that the trial of his cause be continued as a mere idle form, or a mere experiment, that he may have the gratification of securing a verdict which must be sot aside. As wo have soon, courts very generally now designate sudi a |)i-ocooding as absurd. Probably this court has too huig folhnvod the rule to be in a position to de- Sec. 3] Dismissal, Non-Suit, Directed Verdict 343 nounce it in that way; but we think that, as the question involves no more than the change of a mere rule of practice, which will be of material advantage in the trial of cases in the saving of the time of the trial courts, — time which ought to be devoted to the transaction of legitimate busi- ness, — and the saving of court expenses to the counties, with no detriment to the rights of any one, it is high time that this state should adopt the more consistent and logical practice which now generally prevails elsewhere. The judgment of the district court is affirmed. McDonald v. metropolitan street railway COMPANY. Court of Appeals of New York. 1901, 167 New York, 66. Maetin", J. This action was for personal injuries resulting in death of the plaintiff's intestate, and was based upon the al- leged negligence of the defendant. An appeal was allowed to this court upon the ground of an existing conflict in the decisions of different departments of the Appellate Division as to when a verdict may be directed where there is an issue of fact, and because in this case an erroneous principle was asserted which, if allowed to pass uncor- rected, would be likely ''to introduce confusion into the body of the law." {Sciolina v. Erie Preserving Co., 151 N. Y. 50.) The court having directed a verdict, the appel- lant is entitled to the most favorable inferences deducible from the evidence, and all disputed facts are to be treated as established in her favor. {Laid v. Aetna Ins. Co., 147 N. Y. 478, 482 ; Higgins v. Eagleton, 155 N. Y. 466 ; Ten Eyck V. Whitbeck, 156 N. Y. 341, 349; Bank of Mononga- Jiela Valley v. Weston, 159 N. Y. 201, 208.) If believed, the testimony of the plaintiff's witnesses was sufficient to justify the jury in finding the defendant negli- gent and the plaintiff's intestate free from contributory negligence. -The evidence of the defendant was in many 344 Trial Pkactice [Chap. 10 respects in direct conflict, and if credited would have sus- tained a verdict in its favor. Whether the defendant was negligent, the plaintiff's intestate free from contributory negligence, and the amount of damages, were submitted to the jury. It, however, having agreed upon a general ver- dict and failed to answer the questions submitted, the trial judge withdrew them and directed a verdict for the defend- ant. Upon the verdict so directed a judgment was entered. Subsequently an appeal was taken to the Appellate Divi- sion, where it was affirmed, and the plaintiff has now ap- pealed to this court. Although there was a direct and somewhat severe con- flict in the evidence, the questions of negligence and con- tributory negligence were clearly of fact, and were for the jury and not for the court unless the right of trial by jury is to be partially if not wholly abolished. It was assumed below that the plaintiff's evidence established a case which, undisputed, was sufficient to warrant a verdict in her favor. But the court said that at the close of the defendant's evidence the plaintiff's case had been so far overcome that a verdict in her favor would have been set aside as against the weight of evidence. Upon that alleged condition of the proof, it held that the trial court might have properly submitted the case to the jury if it saw fit, but that it was not required to as the verdict might have been thus set aside. The practical result of that decision, if sustained, is in every close case to vest in the trial court authority to determine questions of fact, although the parties have a right to a jury trial, if it thinks that the weight of evidence is in favor of one and it directs a ver- dict in his favor. There have been statements by courts which seem to lend some justification to that theory, but we think no such broad principle has been intended and that no such rule can 1)0 maintained either upon principle or authority. The rule that a verdict may be directed whenever the proof is such that a decision to the contrary might be set aside as against the weight of evidence would be both un- certain and delusive. There is no standard by which to determine whori a verdict may be thus set aside. It de- pends upon the disci'etion of the court. The result of set- ting aside a verdict and the result of directing one are Sec. 3] Dismissal, Non-Suit, Directed Verdict 345 widely different and should not be controlled by the same conditions or circumstances. In one case there is a re- trial. In the other the judgment is final. One rests in discretion; the other upon legal right. One involves a mere matter of remedy or procedure. The other de- termines substantive and substantial rights. Such a rule would have no just principle upon which to rest. While in many cases, even where the evidence is suffic- ient to sustain it, a verdict may be properly set aside and a new trial ordered, yet, that in every such case the trial court may, whenever it sees fit, direct a verdict and thus forever conclude the parties, has no basis in the law, which confides to juries and not to courts the determination of the facts in this class of cases. We think it cannot be correctly said in any case where the right of trial by jury exists and the evidence presents an actual issue of fact, that the court may properly direct a verdict. So long as a question of fact exists, it is for the jury and not for the court. If the evidence is insufficient, or if that which has been introduced is conclusively an- swered, so that, as a matter of law, no question of credi- bility or issue of fact remains, then the question being one of law, it is the duty of the court to determine it. But whenever a plaintiff has established facts or circumstances which would justify a finding in his favor, the right to have the issue of fact determined by a jury continues, and the case must ultimately be submitted to it. The credibility of witnesses, the effect and weight of conflicting and contradictory testimony, are all questions of fact and not questions of law. If a court of review having power to examine the facts is dissatisfied with a verdict because against the weight or preponderance of e\ddence, it may be set aside, but a new trial must be granted before another jury so that the issue of fact may be ultimately determined by the tribunal to which those questions are confided. If there is no evidence to sustain an opposite verdict, a trial court is justified in directing one, not because it would have authority to set aside an opposite one, but because there was an actual defect of proof, and, hence, as a matter of law, the party was not entitled to recover. {Colt v. Sixth Ave. R. R. Co., 49 N. Y. 671; BaglejfY. Bowe, 105 N. Y. 171, 179.) ^46 Tkial Peactice [Chap. 10 We are of the oiDinion that a plain issue of fact was pre- sented for the jury; that the court erred in directing a verdict; that the judgment and order should be reversed and a new trial granted, with costs to abide the event. Parker, Ch. J., Bartlett, Vann^ Cullen and Webner, J J., concur ; Gray, J., dissents. Judgment reversed, etc. GILES V. GILES. Supreme Judicial Court of Massachusetts. 1910. 204 Massachusetts, 383. Knowlton, C. J. — This was a trial in the Superior Court upon three issues, framed upon an appeal from a decree of the Probate Court allowing the will of Charles E. Giles. The first issue presented the question whether the will was duly executed. The second raised the question whether it was procured by the undue influence of the petitioner. The third issue was as follows: ''Was said instrument revoked by the said Charles E. Giles subsequently to the date, exe- cution and publication thereof by the making, execution and publication of another will which has been lost or de- stroyed, and its contents cannot be proved so that it can be propounded for probate?" Upon the first issue, after testimony by the subscribing witnesses tending to show that the will was properly exe- cuted, it was admitted in evidence, subject to the appellant's exception, and at the close of the testimony the jury were directed to return a verdict in favor of the petitioner. To this direction the appellants excepted. Tlie will was rightly admitted in evidence, and the testi- mony well warranted a finding that it was duly executed, ir. indeed, full credence was given to the testimony of these witnesses, this conclusion followed almost necessarily. It is true that two of the witnesses had little definite recollec- tion of the transaction, apart from their knowledge that llieir signatures to the clause of attestation were genqine, Sec. 3] Dismissal, Non-Suit, Directed Verdict 347 and that they knew from their signing that tliey saw the exe- cution of the will by the testator in the presence of the three witnesses. While the jury, upon the facts, could not have been expected to reach any other conclusion than that which was recorded under the direction of the court, the issue was one to be passed upon by a jury, which is the or- dinary tribunal for the determination of questions of fact. Where a proposition is only to be established by testimony of witnesses, the judge cannot properly direct a jury to de- cide that the fact is proved affirmatively by testimony. It is for the jury to say whether the witnesses are entitled to credit. Merchants' National Bank v. Haverhill Iron Works, 159 Mass. 158; Commonwealth v. McNeese, 156 Mass. 231; Way v. Butterwortli, 106 Mass. 75; Whitteu V. Haverhill, ante, 95. We know of no case in this Com- monwealth in which it has been determined that a jury can be directed to return a verdict, upon the oral testimony of witnesses, in favor of a party who has the burden of prov- ing the facts to which they have testified. This direction was erroneous and the exception must be sustained. Verdict on the first issue set aside; verdict on the third issue to stand. ^ lAccord: Haughton v. Aetna Life Ins. Co., (1905) 165 Ind. 32, 73 N. E. 592; Wolff V. Cam] bell, (1892) 110 Mo. 114, 19 S. W. 622; Anniston Na- tional Bank v. School Committee, (1897) 121 N. C. 107, 28 S. E. 134; Perkio- men E. E. Co. v. Kremer, (1907) 218 Pa. St. 641, 67 Atl. 913. On the other hand, there are many cases to be found where a directed verdict for the party having the burden of proof, based on parol evidence, has been approved. See Inhabitants of Woodstock v. Inhabitants of Canton, (1897) 91 Me. 62, 39 Atl. 281; Harding v. Eoman Catholic Church, (1906) 113 N. Y. App. Div. 685; Israel v. Dav, (1907) 41 Colo. 52, 92 Pac. 698; Shumate v. Evan, (1906) 127 Ga. 118, 56 S. E. 103; Hillis v. First National Bank, (1894) 54 Kan. 421, 38 Pac. 565; Murray v. Bush, (1902) 29 Wash. 662, 70 Pac. 133. This vrould seem to be the only logical rule in those jurisdictions where the doctrine of Meyer v. Houck, {supra) is in force. 348 Tbial Pkactice [Chap. 10 (b) Effect of Requests hy Both Parties. EMPIRE STATE CATTLE COMPANY V. ATCHISON, TOPEKA & SANTA FB RAILWAY COMPANY. MINNESOTA AND DAKOTA CATTLE COMPANY V. SAME. Supreme Court of the United States. 1907, 210 United States, 1. Me. Justice White delivered the opinion of the court. With the object of saving them from destruction by the flood which engulfed portions of Kansas City on May 31 and the first week of June, 1903, more than three thousand head of cattle belonging to the petitioners, which were in the Kansas City stock yards, were driven and crowded upon certain overhead viaducts in those yards. For about seven days, until the subsidence of the flood, they were there detained and could not be properly fed and watered. Many of them died and the remainder were greatly lessened in value. These actions were brought by the petitioners to recover for the loss so sustained upon the ground that the cattle were in the control of the defendant railway company as a common carrier, and that the loss sustained was oc- casioned by its negligence. The railway company defended in each case upon the ground that before the loss happened it had delivered the cattle to a connecting carrier, but that if the cattle were in its custody it was without fault, and the damage was solely the result of an act of God, that is, the flood above re- ferred to. As the cases depended upon substantially similar facts and involved identical questions of law, they were tried together, and at the close of the evidence the trial court de- nied a peremptory instruction asked on behalf of the plain- tiffs, and gave one asked on behalf of the railway company. 135 Fed. Rep. 135. While there was some contention in the argument as to wliut took place concerning the requests for peremptory in- structions, we think the bill of exceptions establishes that at the close of the evidence the plaintiffs requested a per- Sec. 3] Dismissal, Non-Suit, Directed Verdict 349 emptory instruction in their favor, and on its being refused duly excepted and asked a number of special instructions, which were each in turn refused, and exceptions were sepa- rately reserved, and the court then granted a request for a peremptory instruction in favor of the railway company, to which the plaintiffs excepted. On the writs of error which were prosecuted from the Cir- cuit Court of Appeals for the Eighth Circuit that court affirmed the judgment on the ground that as both parties had asked a peremptory instruction the facts were thereby submitted to the trial judge, and hence the only inquiry open was whether any evidence had been introduced which tended to support the inferences of fact drawn by the trial judge from the evidence. One of the members of the Circuit Court of Appeals (Circuit Judge Sanborn) did not concur in the opinion of the court, because he deemed that as the request for peremptory instruction made on behalf of plaintiffs was followed by special requests seek- ing to have the jury determine the facts, the asking for a peremptory instruction did not amount to a submission of the facts to the court so as to exclude the right to have the case go to the jury in accordance with the subsequent special requests. He, nevertheless, concurred in the judg- ment of affirmance, because, after examining the entire case, he was of opinion that prejudicial error had not been com- mitted, as the evidence was insufficient to have justified the submission of the issues to the jury. 147 Fed. Eep. 457. The cases are here because of the allowance of writs of certiorari. They present similar questions of fact and law, were argued together and are, therefore, embraced in one opinion. The scope of the inquiry before us needs, at the outset, to be accurately fixed. To do so requires us to consider the question which gave rise to a division of opin- ion in the Circuit Court of Appeals. If it be that the re- quest by both parties for a peremptory instruction is to be treated as a submission of the cause to the court, despite the fact that the plaintiffs asked special instructions upon the effect of the evidence then, as said in Beuttell v. Magone, 157 U. S. 154, **the facts having been thus submitted to the court, we are limited in reviewing its action, to a considera- tion of the correctness of the finding on the law and must affirm if there be any evidence in support thereof." If, on 350 Teial Pkactice [Chap. 10 the other hand, it be that, although the plaintiffs had re- quested a peremptory instruction, the right to go to the jury was not waived in view of the other requested instruc- tions, then our inquiry has a wider scope, that is, extends to determining whether the special instructions asked were rightly refused, either because of their inherent unsound- ness or because, in any event, the evidence was not such as would have justified the court in submitting the case to the jury. It was settled in BeuUell v. Magone, supra, that where both parties request a peremptory instruction and do nothing more, they thereby assume the facts to be un- disputed and in etfect submit to the trial judge the deter- mination of the inferences proper to be drawn from them. But nothing in that ruling sustains the view that a party may not request a peremptory instruction, and yet, upon the refusal of the court to give it, insist, by appropriate re- quests, upon the submission of the case to the jury, where the evidence is conflicting or the inferences to be drawn from the testimony are divergent. To hold the contrary would unduly extend the doctrine of BeuUell v. Magone, by causing it to embrace a case not within the ruling in that case made. The distinction between a case like the one be- fore us and that which was under consideration in BeuUell V. Magone has been pointed out in several recent decisions of Circuit Courts of Appeals. It was accurately noted in an opinion delivered by Circuit Judge Severns, speaking for the Circuit Court of Appeals for the Sixth Circuit in Mina- han V. Grand Trunk Ry. Co., 138 Fed. Rep. 37, 41, and was also lucidly stated in the concurring opinion of Shelby, Circuit Judge, in McCormack v. National City Bank of Waco, 142 Fed. Rep. 132, where, referring to BeuUell v. Magone, he said (p. 133) : ''A party may believe that a certain fact which is proved without conflict or dispute entitles him to a verdict. But there may be evidence of other, but controverted facts, which, if proved to the satisfaction of the jury, entitles him to a verdict, regardless of the evidence on which he relies in the first place. It cannot be that the practice would not permit him to ask for peremptory instructions, and, if the court refuses, to then ask for instruction submitting the otlicr rjuestion to the jury. And if he has the right to do tliis, no request for instructions that his opponent may ask Sec. 3] Dismissal, Non-Suit, Dieected Verdict 351 can deprive him of the right. There is nothing in Beuttell V. Magone, supra., that conflicts with this view when the announcement of the court is applied to the facts of the case as stated in the opinion. "In New York there are many cases showing conformity to the practice announced in Beuttell v. Magone, but they clearly recognize the right of a party who has asked for per- emptory instructions to go to the jury on controverted ques- tions of fact if he asks the court to submit such questions to the jury. Kirtz v. Peck, 113 N. Y. 226; S. C, 21 N. E. 130; Sutter v. Vanderveer, 122 N. Y. 652; S. C, 25 N. E. 907. "The fact that each party asks for a peremptory instruc- tion to find in his favor does not submit the issues of fact to the court so as to deprive the party of the right to ask other instructions, and to except to the refusal to give them, nor does it deprive him of the right to have questions of fact submitted to the jury if issues are joined on which con- flicting evidence has been offered. Minahan v. G. T. W. Ry. Co., (C. C. A.), 138 Fed. Rep. 37." From this it follows that the action of the trial court in giving the peremptory instruction to return a verdict for the railway company cannot be sustained merely because of the request made by both parties for a peremptory instruc- tion in view of the special requests asked on behalf of the plaintiffs. The correctness, therefore, of the action of the court in giving the peremptorj^ instruction depends, not upon the mere requests which were made on that subject, but upon whether the state of the proof was such as to have authorized the court, in the exercise of a sound discretion, to decline to submit the cause to the jury. That is to say, the validity of the peremptory instruction must de- pend upon whether the evidence was so undisputed or was of such a conclusive character as would have made it the duty of the court to set aside the verdicts if the cases had been given to the jury and verdicts returned in favor of the plaintiff. McGuire v. Blount, 199 U. S. 142, 148, and cases cited; Marande v. Texas d P. R. Co., 184 U. S. 191, and cases cited ; Southern Pacific Co. v. Pool, 160 U. S. 440, and cases cited. To dispose of this question requires us to consider some- what in detail the origin of the controversy, the contracts of shipment from which the controversy arose and the proof 352 Trial Peactice [Chap. 10 which is embodied in the bill of exceptions relied on to justify the inference of liability on the part of the railway company. * * * As we think the undisputed proof to which we have referred not only established the existence of the necessity for the change of route, but also, beyond dispute, demonstrated that there was an entire absence of all negli- gence in selecting that route, we are clearly of opinion that no liability was entailed simply by reason of the change, even if that change could in law be treated as a concurring and proximate cause of the damages which subsequently resulted. Affirmed. WOLF V. CHICAGO SIGN PRINTING COUP ANY. Supreme Court of Illinois. 1908. 233 Illinois, 501. Me. Justice Caetweight delivered the opinion of the court: Fred W. Wolf, appellee, brought this suit in assumpsit in the circuit court of Cook county against the Chicago Sign Printing Company, appellant, and his declaration consisted of the common counts, to which a plea of the general issue was filed. There was a jury trial, and at the close of all the evidence the defendant moved the court to direct a ver- dict in its favor. The court denied the motion and the de- fondant excepted. The plaintiff then moved the court to direct a verdict in his favor, and the court granted the mo- tion and instructed the jury to find the issues for the plain- tiff and assess his damages at $4,000, with interest thereon at five per cent from August 19, 1902. The defendant ex- cef)ted to the granting of the motion and giving the instruc- tion. A verdict was returned, in accordance with the di- rection of the court, for $4,716.66, and the court, after ()V(!rruling motions for a new trial and in arrest of judg- ment, entered judgment on the verdict. The Branch Ap- Sec. 3] Dismissal, Non-Suit, Directed Verdict 352 pellate Court for the First District affirmed the judgment. The defendant is a corporation with a capital stock of $5,000. In 1902 Ernest Salmstein was president and Albert H. Ernecke was secretary and treasurer of the corpora- tion. The stockholders had considered the question of in- creasing the capital stock from $5,000 to $25,000, and Salm- stein and Ernecke had tried to induce the plaintiff to sub- scribe for part of the increase, but no proceedings had been taken for such increase. On August 18, 1902, Ernecke ob- tained from plaintiff a check, payable to the defendant, for $4,000, and the proceeds were received by the defendant the next day. The suit was for the money represented by the check, with interest, and the disputed question of fact was whether the money was loaned by plaintiff to defend- ant or was a partial payment upon an agreement to sub- scribe for $9,500 of capital stock when an increase should be effected. At the time the check was delivered the follow- ing receipt was left with the plaintiff : "Chicago, 8-18, 1902. "Eeceived of Mr. Fred W. Wolf the sum of four thou- sand dollars ($4,000) account Chicago Sign Printing Co. A. H. Ernecke, Secy, and Treas. Chicago Sign Printing Co. "$4,000.00. 8-18, 1902. "The above amount is part payment on stock in above con- cern to be issued shortly. A. H. Ernecke." The evidence for the defendant was that this entire paper expressed the agreement between the parties and that it was all written when the check was given. The evidence for the plaintiff was that he had refused to take any stock, but agreed to and did loan the money to the corporation ; that the receipt was written, and that the recital that the money was part payment on stock was added without his knowl- edge by Ernecke and the paper was left lying on the plain- tiff's table. * * * The assignment of error to which the argument is de- voted is that the court erred in instructing the jury to re- turn a verdict for the plaintiff, and especially in directing an assessment of interest from the date of the check. In answer to the argument on that question it is contended that each party having moved the court to direct a verdict "J, P. 99- 354 Trial Practice [Oiiap. 10 in favor of such party, they waived the right to submit any question to the jury and elected to submit the case to the court for its decision, both upon the law and the facts. Section 60 of the Practice act provides for the waiver of a jury trial and a trial by the court of both matters of law and fact in case both parties shall so agree, and in the event of such agreement section 61 provides for submitting written propositions to be held as the law in the decision of the case, and section 82 provides for taking exceptions to decisions of the court either relating to receiving improper or rejecting proper testimony or to the final judgment upon the law and evidence. There was no such waiver of a jury trial in this case, and if the right to a verdict of the jury upon the facts was waived it was only by implication, and this court has not recognized any waiver of the kind insisted upon here. When the practice of demurring to the evidence fell into disuse and that of making a motion that the court direct a verdict was substituted, some difference arose in the de- cisions of the different courts as to the nature and effect of such a motion, but the ground of the motion and the prac- tice have been thoroughly settled in this State. The motion to direct a verdict raises only a question of law as to the legal sufficiency of the evidence to sustain a verdict against the party making the motion. {Angus v. Chicago Trust and Savings Bank, 170 111. 298 ; RacJi' v. Chicago City Rail- ivay Co., 173 id. 289; Marshall v. Grosse Clothing Co., 184 id. 421; Martin v. Chicago and Northwestern Railway Co., 194 id. 138.) In the event of an adverse ruling on the motion to direct a verdict, an exception preserves the question of law for the consideration of an appellate tribunal. The submission of a question of fact to the jury does not waive the question of law already passed upon by the court whore the rights of the party have been properly preserved. {Chicago Union Traction Co. v. O'Donnell, 211 111. 349; Illinois Central Railroad Co. v. Swift, 213 id. 307 ; Chicago Teryyiinal Transfer Railroad Co. v. Schiavone, 216 id. 275.) Some courts have held that where both parties ask the trial court to direct the verdict it amounts to a request that the court shall find the facts and a waiver of any right to the judgment of the jury upon controverted questions of fact- Tho Supreme Court of the United States held to that doc- Sec. 3] Dismissal, Non-Suit, Directed Verdict 355 trine in Beuttell v. Magone, 157 U. S. 154, and saia that by making the motion both parties affirmed that there was no disputed question of fact which could operate to deflect or control the question of law, and that this was necessarily a request that the court find the facts. That decision has, of course, been followed by the Circuit Court of Appeals, and there is a formidable list of cases in which it has been ap- plied by those courts. In New York, if any party asks the court to direct a verdict and his motion is denied, he must then ask the court for leave to go to the jury upon questions of fact, and it is held that there is no question for the jury unless such a request is made. Accordingly, it is there held, that if both parties ask the court to direct a verdict, and the court grants the motion of one party and the other makes no request to be allowed to go to the jury on questions of fact but acquiesces in the determination of such questions by the court, he has waived all objection to the mode of trial. In Thompson v. Simpson, 128 N. Y. 270, it is said that the effect of a request by each party for a direction of a verdict in his favor clothes the court with the functions of a jury, and the courts declare that the request by both parties for the direction of a verdict amounts to the submission of the whole case to the trial judge, and his decision upon the facts has the same effect as if the jury had found a verdict after the case was submitted to them. [Adams v. Roscoe Lumber Co., 159 N. Y. 176; Smith v. Weston, id. 194; Clason v. Baldivin, 46 N. E. Rep. 322; Sigua Iron Co. v. Brown, 64 id. 194.) It will readily be seen that such a rule would not be in harmony with our decisions, and to say that a request to the court to decide a pure question of law clothes the court with power to decide controverted questions of fact would be both illogical and inconsistent with the nature of the motion. Under our practice a request to withdraw a case from the jury could scarcely be converted into an ap- plication to the court to take the place of the jury and de- cide disputed questions of fact. After the court refuses to withdraw the case from the jury it is not requisite, in our practice, for the party to ask the court to allow the jury to decide it, which the court has already done by denying the motion. When one party asks the court to direct a verdict in his favor, the fact that the other party makes a similar motion cannot in any way affect the rights of the first party. 356 Teial Practice [Chap. 10 If that were true, no party could make a motion for a direct- ed verdict without waiving his right to trial by jury if his opjoonent chose to make the same motion. The decisions relied upon to establish the doctrine that if both parties ask the court to decide a question of law they each waive the right to trial by jury of controverted questions of fact are inapplicable to the practice in this State, and the fact that each party in this case asked the court to direct a verdict did not amount to a submission of controverted questions of fact to the court. * * * If the jury should believe the plaintiff and con- clude that the transaction was a loan of the money, then, under the statute, the plaintiff would be entitled to recover five per cent from the time the money was loaned; but if the jury credited the evidence for the defendant and con- cluded that the transaction was an agreement to take stock, there could be no recovery of interest until the arrange- ment was repudiated by the plaintiff and a demand made for tlie return of the money. The plaintiff would only be entitled to interest from the time that he refused to carry out the agreement and take the stock. The court was not authorized to decide that disputed question of fact and to direct a verdict including interest from the date of the check. The defendant was entitled to the verdict of the jury on that question. The judgments of the Appellate Court and Circuit Court are reversed and the cause is remanded to the Circuit Court. Reversed and remanded. (c) When Motion to he Made. RAINGER V. BOSTON MUTUAL LIFE ASSOCIATION. Supreme Judicial Court of Massachusetts. 1897. 167 Massachusetts, 109. Contract, upon a policy of insurance for $1,000, issued by tlie defendant on the life of Fred S. Eainger, and payable tu the plaintiff, who was his wife. The answer set up, Sec. 3] Dismissal, Non-Suit, Directed Veedict 357 among other defences, false and fraudulent representations by Eainger in bis application for insurance. Trial in the Superior Court, before Dewey, J., who directed the jury to return a verdict for the defendant ; and the plaintiff alleged exceptions. The facts material to the jDoints decided ap- pear in the opinion. Morton, J. The plaintiff further contends that it was not within the power of the judge to order the jury to return a verdict for the defendant at the time when and under the circumstances which he did. All that the exceptions state on this point is: ''At the close of the evidence arguments were made by counsel, and the presiding justice charged the jury. After the jury had deliberated upon the case for nearly six hours, they were called back into court. The foreman stated that they were unable to agree, and the presiding justice direct- ed the jury to return a verdict for the defendant, to which the plaintiff duly excepted." So far as appears from the exceptions this took place in open court, and, if so, it is clear that the presiding justice had a right to call back the jury and direct them to return a verdict as he did. He did not lose his control over the jury because they had retired to a side room, under his direction, to deliberate on their verdict, and in the further conduct of the trial he could re- call them and give them such additional directions or in- structions as the case seemed to him to require. Kidlherg V. O'Donnell, 158 Mass. 405; Merrift v. Neiv York, New Haven & Hartford Railroad, 164 Mass. 440. Exceptions overruled. 358 Trial Practice [Chap. 10 (d) Poiver of Court to Compel Verdict. CAHILL V. CHICAGO, MILWAUKEE, & ST. PAUL RAILWAY COMPANY. United States Circuit Court of Appeals, Seventh Circuit. 1896. 20 Circuit Court of Appeals, 184. Before Woods and Jenkins, Circuit Judges, and Gross CUP, District Judge. Woods, Circuit Judge. This is an action on the case for personal injury suffered by Maria Cahill, the plaintiff in error, who, when attempting, afoot, to cross a switching track of the defendant in error at the Union Stock Yards, in Chicago, was struck and run over by a backing engine, whereby she lost both feet, and suffered other serious bodily injuries. * * * * * * The Court below directed a verdict for the de- fendant. * * * While we have treated the judgment in this case as if it had been rendered upon a verdict of the jury delivered in accordance with the court's peremptory direction, the fact is not literally so. The record shows that the jurors, at the conclusion of the charge, refused to render a verdict for the defendant, severally stating that they could not conscientiously do so, whereupon the court said: "Very well. You may retire to your room, and return with such a verdict as you may find." The jury accordingly retired, but were recalled into court at a later hour, and directed again to return a verdict for the defendant; but, one juror still holding out, counsel for the plaintiff was permitted to stipulate of record that a judgment of dismissal might be entered, to have the same force and effect, and none other, than a verdict for the defendant under the direction of the court, but that plaintiff should be considered as excepting to such direction, and also to such order of dismissal, and tliereupon tlie court ordered such dismissal, and the plain- tiff thereupon excepted to such ruling. The stipulation should not have been accepted. The authority and duty of a judge to direct a verdict foi- one party or the other, when, Sec. 3] Dismissal^ Non-Suit, Directed Verdict 359 in his opinion, the state of the evidence requires it, is beyond dispute ; and it is not for jurors to disobey, nor for attorneys to object, except in the orderly way necessary to save the right to prosecute a writ of error. The conduct of the juror in this instance was in the highest degree repre- hensible, and might well have subjected him, and any who encouraged him to persist in his course, to punishment for contempt. His conduct was in violation of law, subversive of authority, and obstructive of the orderly administration of justice. In fact, by his course he put in jeopardy the in- terests which he assumed to protect, because it is only by treating the case as if the verdict directed had been re- turned that we have been able to review the judgment and to order a new trial. We deem it proper to observe here that it is not essential that there be a written verdict signed by jurors or by a foreman, and we have no doubt that, in cases where the court thinks it right to do so, it may an- nounce its conclusion in the presence of the jury and of the parties or their representatives, and direct the entry of a verdict without asking the formal assent of the jury. Until a case has been submitted to the jury for its decision upon disputed facts, the authority of the court, for all the pur- poses of the trial, is, at every step, necessarily absolute; and its ruling upon every proposition, including the ques- tion whether, upon the evidence, the case is one for the jury, must be conclusive until, upon writ of error, it shall be set aside. That remedy is provided by law, and pre- sumably will be eifective and adequate, if there be just ground for invoking it. Certainly the obstinacy of a con- ceited juror is not likely to prove a wholesome substitute. The judgment is reversed and the case remanded, with in- structions to grant a new trial. [Jenkins, J., dissented on other grounds.] CHAPTER XI. INSTRUCTING THE JURY. Section 1, Questions of Law and Fact. (a) General Theory of Division of Functions Between Court and Jury. STATE V. WRIGHT. Supreme Judicial Court of Maine. 1863. 53 Maine, 328. The defendant was indicted, tried and convicted of mur- der in the first degree, at the October term, 1863, Walton, J., presiding. The case came before this Court on exceptions which appear in the opinion. Wai^ton, J. — The most important question raised by the bill of exceptions in this case is whether, in the trial of criminal cases, the jury may rightfully disregard the in- structions of the Court, in matters of law, ana, if they think the instructions wrong, convict or acquit contrary to such instructions. In other words, whether they are the ulti- mate, rightful and paramount judges of the law as well as the facts. Our conclusion is that such a doctrine cannot be main- tained; that it is contrary to the fundamental maxims of the common law; contrary'' to the uniform practice of the highest courts of judicature in Great Britain, where our jury system originated and matured; contrary to a vast preponderance of judicial authority in this country; con- trary to the spirit and meaning of the constitution of the United States and of this State; contrary to a fair inter- pretation of our legislative enactment, authorizing the res- ervation of qnostions of law for the decision of the law court, and the alk)wance of exceptions; contrary to reason and fitness, in withdrawing the interpretation of the laws 360 Sec. 1] Instructing the Juby 361 from those who make it the business and the study of their lives to understand them, and committing it to a class of men who, being drawn from non-professional life for occa- sional and temporary service only, possess no such qualifi- cations, and whose decisions would be certain to be con- flicting in all doubtful cases, and would therefore lead to endless confusion and perpetual uncertainty. 1. It is contrary to the fundamental maxims of the com- mon law. It was very early provided that the jury should not entangle themselves with questions of law, but confine themselves simply and exclusively to facts. This rule is expressed in the well known maxim, ad questionem facti non respondent judices, ad questionem legis non respondent juratores. It is the office of the judge to instruct the jury in points of law — of the jury to decide on matter of fact. Broom's Legal Maxims, 77. ''An invaluable principle of jurisprudence," says Mr. Forsyth, in his History of Trial by Jury, "which, more than anything else, has upheld the character and maintained the efficiency of English juries, as tribunals for judicial investigation of truth." The author says it is impossible to uphold the doctrine that the jury are in any case to give a verdict according to their own view of the law ; that it is founded on a confusion be- tween the ideas of power and right. ''The law," continues he, "cannot depend on the verdict of a jury, whose office is simply to find the truth of disputed facts; and yet such must be the result if they may decide contrary to what the judge, the authorized expounder of the law, lays down for their guidance. This would introduce the most miserable uncertainty as to our rights and liberties, the misera ser- vitus of vagum, jus, and be the most fatal blow that could be struck at the existence of trial by jury." Fors}i;h's History of Trial by Jury, 259, 265. 2. It is contrary to the uniform practice of the highest Courts of judicature in England. Mr. Forsyth, after as- signing as a reason for the unpopularity and final disuse of juries in Scandinavia and Germany, that they carried in their very constitution the element of their own destruction, in this, that the whole judicial power, — the right to deter- mine the law as well as the fact, — was in their hands, says: "Far otherwise has been the case in England. Here the jury never usurped the functions of the judge. They were orig- 362 Tkial Practice [Cliap. 11 inally called in to aid the court with information upon ques- tions of fact, in order that the law might be properly ap- plied; and this has continued to be their province to the present day. * * * Hence it is that the English jury flour- ishes still in all its pristine vigor, while what are improper- ly called the old juries of the continent have either sunk into decay or been totally abolished." Trial by July, 11, 12. Parties have often endeavored to appeal from the court to the jury in matters of law, especially in state prosecu- tions for treason and libel ; but it is believed that no Eng- lish case can be found in which such an appeal has been sanctioned by the court. In 1784 the Dean of St. Asaph was indicted for a libel. Lord Erskine defended him and insisted that the jury had a right to pass upon the whole issue, including the law as well as the fact. Being overruled by Mr. Justice Buller, he moved for a new trial for misdirection ; and in support of his motion is said to have made one of the most capti- vating arguments ever listened to in Westminister Hall. But he did not succeed. The judges were unanimously against him. Lord Mansfield, in delivering judgment, declared that in matters of law the judge ought to direct the jury, and the jury ought to follow the direction; that this practice ought not to be shaken by general theoretical arguments or popular declamation; that the jury do not know and are not presumed to know the law; that they do not under- stand the language in which it is conceived, or the meaning of the terms in which it is expressed; and have no rule to go by but their passions and feelings ; that if they should happen to be right it would be by chance only; that to bo free is to live under a government of law; that if the law is to be in every case what twelve men who shall happen to l)e the jury shall be inclined to think, liable to no review, subject to no control, under all the pojoular prejudices of the day, no man could tell, no counsel could advise, what the result would be; that such a doctrine was contrary to judicial practice, contrary to the fundamental principles constituting trials by jury, contrary to reason and fitness, and lie was glad that he was not bound to subscribe to such an absurdity. 3 T. K., 428, note. Sec. 1] Instructing the Jury 363 3. It is contrary to a vast preponderance of judicial authority in this country. Before the revolution the doc- trine seems to have met with some favor. It was undoubt- edly believed that in the then condition of things it would be safer for the colonies that the power of determining the law should be vested in the jury than to leave it in the hands of the judges. And even after the revolution the doctrine seems to have obtained some currency that in all cases, civil as well as criminal, the jury had a right to determine the law as well as the facts. In a case tried in the Supreme Court of the United States, in 1794, the full Court instructed the jury that they had a right *'to deter- mine the law as well as the fact in controversy." This was in a civil suit. Georgia v. Brailsford, 3 Dall., 4. But this mode of administering justice could not con- tinue. The federal courts soon discovered that however useful such a doctrine might have been to us as colonies, it was wholly incompatible with our new and improved system of government under the federal constitution. It was seen that to concede such a power to the jury would deprive the Judges of the Supreme Court of that supremacy in matters of law which the constitution had wisely con- ferred upon them. In a case before Mr. Justice Baldwin, of the Supreme Court of the United States, a man by the name of Shive was tried for counterfeiting notes of the United States Bank. His counsel gravely argued to the jury that they ought to acquit his client on the ground that the act chartering the bank was unconstitutional and void, and that to counter- feit the bills of such an institution was no crime. True, he said, the Supreme Court of the United States had decided otherwise, and, as it was composed of very respectable gentlemen, he would not deny that their opinion was en. titled to some consideration ; but he contended that, never- theless, it was the right and the duty of the jury to revise the decision, and if in their judgment it was wrong to dis- regard it. Judge Baldwin at once saw the absurdity of such a doc- trine. ''Should you assume and exercise this power," said he, in his charge to the jury, ''your opinion does not be- come a supreme law; no one is bound by it; other juries will decide for themselves, and you could not expect that 364 Trial Practice [Chap. 11 courts would look to your verdict for the construction of the constitution as to the acts of the legislative or judicial departments of the government; nor that you have the power of declaring what the law is, what acts are criminal, what are innocent, as a rule of action for your fellow citi- zens or the court. If juries once exercise this power we are without a constitution or laws. One jury has the same power as another. You cannot bind those who may take your places. What you declare constitutional to-day an- other may declare unconstitutional to-morrow. We shall cease to have a government of law when what is the law depends on the arbitrary and fluctuating opinions of judges and jurors, instead of the standard of the constitution, ex- pounded by the tribunal to which has been referred all eases arising under the constitution, laws and treaties of the United States." United States v. Shive, 1 Bald., 512. In United States v. Battiste, 2 Sum., 243, Judge Story charged the jury that it was their duty to follow the law as it was laid down by the Court. '^I deny," said he, "that in any case, civil or criminal, they have the moral right to decide the law according to their own notions or pleasure. On the contrary, I hold it a most sacred constitutional right of every party accused of a crime tliat the jury should respond as to the facts, and the Court as to the law. It is the duty of the Court to instruct the jury as to the law, and it is the duty of the jury to follow the law as it is laid down by the Court." 4. It is unconstitutional. The constitution of the United States confers upon tlie Judges of the Supreme Court the power to adjudicate and finally determine all questions of law properly brouglit before them. To allow juries to re- vise, and, if they think proper, overrule these adjudica- tions, would deprive them of their final and authoritative character, and tliiis destroy the constitutional functions of the Court. The Supreme Court of the United States and of this State have decided that prohibitory liquor laws, like the one now in force in this State, are constitutional. Is it witiiiii the legitimate power of eacli successive jury im- pannelled to try a liquor case, to reconsider that question, and, if they think proper, overrule those decisions? Is Sec. 1] Instructing the Jury 365 each successive jury impannelled to try a person charged with counterfeiting our national currency, to be told that they may rightfully disregard the decisions of the Supreme Court of the United States and the rulings of the presiding Judge, if they, in the exercise of their own judgment, think them wrong, and acquit the defendant upon the ground that the Act of Congress authorizing our national banks is un- constitutional? Every intelligent mind must perceive that it is impossible to maintain such a doctrine. Law should be certain. It is the rule by which we are to govern our conduct. To enable us to do so we must know what the law is. Doubtful points ought therefore to be settled, not for the purpose of a single trial only, but finally and definitely. If each successive jury may decide the law for itself, how will doubtful points ever become settled? They will be bound by no precedents. They may not only disregard the instructions of the presiding Judge, and the verdicts of all former juries, but they may also disre- gard the decisions of the law court. They will be authorized to construe statutes, declare the meaning of teclmieal terms, and pass upon the constitutionality of legislative and con- gressional enactments, and acquit or convict according to their own view of the law. In doubtful cases — cases where authoritative expositions of the law are most needed — we should undoubtedly have conflicting verdicts, and the law would remain in perpetual uncertainty. Difficult and important questions of law arise in criminal as well as civil suits. There is scarcely an Act of Congress, or of our State Legislature, the construction, interpreta- tion or validity of which may not be brought in question in a criminal prosecution. Technical terms are to be ex- plained, conflicting provisions reconciled, their prospective or retrospective operations ascertained, their effect to re- peal or restore former statutes considered, and their .con- stitutionality determined. To do this often requires much time, careful thought, the examination of numerous au- thorities, and a familiarity with the law as a science whicii a lifetime ot preparatory study is scarcely sufficient to supply. Juries are generally composed of upright men, willing and_ anxious to discharge their duty to the best of their ability. But they are drawn froyn. non-professional life. 366 Teial Practice [Cliap. 11 and lack the advantage of a legal education. When a cause is finally committed to them they are put under duress of an officer, and are not allowed to separate till their con- sideration of the case is closed. They are not allowed the use of books, not even the statutes which they may be re- quired to construe. Twelve men thus situated may be ad- mirably qualified to weigh evidence and determine facts, and may be justly entitled to all the encomiums passed upon them in that respect; but it is impossible to believe they constitute a suitable tribunal for the determination of important and intricate questions of law. ^'The founders of our constitution," said Chief Justice Shaw, (5 Gray, 235,) "understood, what every reflecting man must understand, from the nature of the law, in its fundamental principles, and in its comprehensive details, that it is a science, requiring a long course of preparatory training, of profound study and active practice, to be ex- pected of no one who has not dedicated his life to its pur- suit; they well understood that no safe system of juris- prudence could be established, that no judiciary depart- ment of government could be constituted without bringing into its service jurists thus trained and qualified. The judiciary department was intended to be permanent and co-extensive with the other departments of government, and, as far as practicable, independent of them ; and there- fore, it is not competent for the Legislature to take the power of deciding the law from this judiciary department, and vest it in other bodies of men, juries, occasionally and temporarily called to attend courts, for the performance of very important duties indeed, but duties very different from those of judges, and requiring different qualifica- tions." Origin of the doctrine. The doctrine that the jury are judges of the law in criminal cases originated in a contro- versy in relation to the law of libel. The doctrine of im- plied malice, which, when applied to homicides, lias been resisted by some of the best judicial minds in this country and in England, was exceedingly distasteful to the defend- ants, when applied to libels. The Judges, (in England,) formerly lield tliat the cliaracter of the publication,— that is, whether it was or was not libellous, was to be deter- Sec. 1] Instructing the Jury 367 mined by the Court; and, if the Court declared it to be libellous, then malice was implied and need not be proved; and, what was still more objectionable, the Judges were in the habit of directing the jury to return a verdict of guilty upon proof of publication and the truth of the innuendos, without telling the jury whether the paper was or was not a libel, and without permitting the jury to determine that question for themselves ; and then putting the defendant to the trouble and expense of moving in arrest of judgment, or suing out a writ of error, if he thought the publication innocent. Thus, in the trial of the Dean of St. Asaph, for publishing a very harmless pamphlet, entitled a dialogue between a gentleman and a farmer, written by Sir William Jones, Mr. Justice Buller told the jury that it was no part of their duty to form any opinion as to the character of the i)amplilet, or the motives of the defendant in publish- ing it, and did not himself express any opinion upon these points; and, after long and vexatious litigation, judgment was finally arrested, because not a single sentence in the whole pamphlet could be pointed out that was libellous. If the Judge had told the jury that the pamphlet was not libellous, or had allowed them to determine that question for themselves, or had allowed them to pass upon the ques- tion of malice, the defendant would have been acquitted at the trial. This manner of trying libel suits led to a contro- versy in relation to the law of libel, which lasted for more than half a century in England ; and finally resulted in an Act of Parliament, known in history as "Fox's Libel Act," declaring the right of the jury to pass upon the whole issue, and the duty of the Court to give their opinion and direction to the jury, as in other criminal cases. But this Act has never been construed in England as giving the jury the right to determine the law, even in libel suits. "The judge is the judge of the law in libel as in all other cases," said the Court in Rex v. Burdett, 4 Barn. & Aid., 131. It was passed to correct the practice of requiring the jury to re- turn a general verdict of guilty without the sanction of the judge's opinion that it was one warranted by law. In the course of this controversy the argument was in- vented and urged with great plausibility by Lord Erskine, that, in all cases tried under the general issue, the jury had a right to determine the law as well as the facts. But tnis 368 Tkial Pkactice [Chap. 11 doctrine never met with favor in England. The principal ground relied upon was, not that the jury were judges of the law, but that the malicious intent with which a libel is always charged to have been made, is a question of fact and not a question of law; and the judges were charged with invading the province of the jury, not in withholding from them the decision of questions of law, but in with- holding from them the decision of a question of fact; and it was upon this ground that the advocates of the right of the jury to pass upon the whole issue in libel suits, and to have the opinion of the Court whether the facts, if proved, would or would not warrant a verdict of guilty, finally triumphed. In this country the right of the jury to pass upon the whole issue in prosecutions for libel is universally ad- mitted. In this and many other States it is secured by con- stitutional provisions. In many of the constitutions it is provided that the jury may do this ''under the direction of the Court," or "after having received the direction of the Court." The latter is the form of expression in tliis State. Upon these and similar provisions the question has been frequently raised, whether the jury are bound to fol- low the directions of the Court in matters of law, or are at liberty to disregard them, and determine the law for them- selves. "Upon this point," asys Mr. Greenleaf, "the decisions are not entirely uniform ; and some of them are not perfectly clear from the want of discriminating between the power possessed by the jury to find a general verdict, contrary to the direction of the Court in a matter of law, without being accountable for so doing, and their right so to do, without a violation of their oath and duty. But the weight of opinion is vastly against the right of the jury in any case, to disregard the law as stated to them by the Court; and. on the contrary, is in favor of their duty to be governed by such rules as the Court may declare to be the law of the land; the meaning of the constitutional pro- visions being merely this, that the jury are the sole judges of all the facts involved in the issue, and of the application of the law to the particular case." 3 Green]., Ev., sec. 179. We thus see that the doctrine that the jury are judges of the law as well as the facts in criminal cases, is con- trary to the fundamental principles of the common law, Sec. 1] Insteucting the Juey 369 contrary to a vast preponderance of judicial authority, con- trary to reason and fitness ; and, if allowed to prevail, will destroy the constitutional functions of the judicial depart- ment of the government. Whether under the provisions of our State constitution they may do so in prosecutions for libel, we express no opinion ; but in all other criminal pros- ecutions we have no hesitation in saying it is the duty of the jury to be governed by the law as it is laid down by the court. We fully concur in the opinion expressed by Chief Justice Shaw, (5 Gray, 198,) that, ''the true glory and ex- cellence of trial by jury is this : that the power of deciding fact and law is wisely divided; that the authority to decide questions of law is placed in a body well qualified, by a suitable course of training, to decide all questions of law; and another body, well qualified for the duty, is charged with deciding all questions of fact, definitively; and whilst each, within its own sphere, performs the duty entrusted to it, such a trial affords the best possible security for a safe administration of justice and the security of public and private rights." ********** Exceptions overruled. Judgment on the verdict. Appleton, C. J., Cutting, Kext, Dickeesox, Baekows and Danfoeth, J. J., concurred. (b) Questions of Law Not to he Submitted to the Jury. AARON V. MISSOURI AND KANSAS TELEPHONE COMPANY. Supreme Court of Kansas. 1911. 84 Kansas, 117. The opinion of the court was delivered by Johnston, C. J.: The appellees, Michael Aaron and Jeanette Aaron, recovered a judgment for $10,000 against the appellant, the ^Missouri and Kansas Telephone Com- pany, for the violation of its duty to their son, Walter, T. p.— 24 370 Trial Practice [Chap. 11 through which he lost his life. The action was brought against the appellant and the Delaware Mutual Telephone Company, of Lansing, but before the case was submitted to the jury the Delaware Mutual Telephone Company was dismissed from the case. In the petition it was alleged that Walter Aaron was an employee of the Delaware com- pany, which, under contract with appellant, had two wires upon the poles of appellant, and that it was the duty of appellant to have proper poles and maintain them in a safe condition for its own operatives as well as those of the Delaware company who found it necessary to climb and work upon them; that appellant had planted new poles along the line and had removed its own wires from the old and attached them to the new poles; that Walter Aaron came along afterward and was transferring the two wires of the Delaware company from the old to the new poles, and that when he had climbed an old pole for that purpose and had stripped the wires from that pole, to which he was strapped, it broke and fell, crushing and killing him. * * * The testimony included two written contracts between appellant and the Delaware company relating to an inter- change of business, the connections to be made, the use of telephones and switchboards, the maintenance of lines, the placing of the wires of one on the poles of the other and fix- ing the compensation for such use, a provision releasing one from loss or damage caused by wires or fixtures, and con- taining other stipulations as to the duties of each company and its obligations to the other. In submitting the case to the jury the court instructed "that if you believe from the evidence in this case that it was the duty of the Missouri and Kansas Telephone Com- pany, under a contract with the Delaware Mutual Tele- phone Company, to maintain the line of poles in question, including the particular pole in question, in a reasonably safe condition for the linemen of the Delaware Mutual Telephone Company to climb and operate upon; that it failed so to do, and because thereof the death of Walter Aaron was caused, without fault on his part, then I instruct you sliall find for the plaintiffs," etc. * * * The duty of appellant to the Delaware company in re- spoct to the maintenance of the poles, including the one Sec. 1] Instructing the Jury 371 which fell, depended mainly npon the terms of the con- tracts between these companies. The contracts were in writing, and their meaning and effect w^ere questions of law, exclusively within the province of the court. To send the jury to a written contract to find the respective duties and obligations of the contracting parties was to leave the jury to decide the law as well as the facts. It was the province of the jury to determine all questions of fact in- volved in the case, after the court had advised them as to the governing rules of law and instructed them how to apply those rules to the facts brought out in the testimony. To impose on the jury the task of interpreting a contract and of determining the duty and responsibility of appellant under the contract is to require them to perform a function which belongs to the court alone — a duty which it can not surrender or evade. In Belil v. Keepers, 37 Kan. 64, it was ruled that "when a written instrument is admitted in evi- dence, it then becomes the duty of the court to construe and determine its legal effect, the relation of the parties thereto, and to include such determination in the instruc- tions to the jurv." (Syl. Par. 2; see, also, Broivn v. Trust Co., 71 Kan. 134.) The duty of appellant to one employed by and working for another company is not only a matter of law, but it is one of vital consequence in the action. The instruction was little less objectionable than would have been one that if the jury believed the appellant was responsible for the in- jury and death the plaintiffs were entitled to recover. The instructions required the jury to cover the entire field, in- cluding the province of the court, and left them to deter- mine both the law and the facts. It has been held that the failure of the court to define the issues in a case and state them to the jury is error, and likewise it has been decided that to send the jury to the pleadings to learn the issues or contentions of the parties is reversible error. (Railroad Co. V. Eagan, 64 Kan. 421; Stevens v. Maxwell, 65 Kan. 835; Railroad Co. v. Dalton, 66 Kan. 799.) The duty of the court to define to the jury the issues made by the plead- ings is no more imperative than to determine the questions of law arising in the case and to state them to the jury. It is in fact a greater departure from good practice to leave the jury to interpret written contracts and determine their 372 Teial Practice [Chap. 11 effect on the relations and obligations of the parties than to leave them to ascertain the effect of the pleadings or the issues which they present. For the error of the court in submitting the case to the jury the case is reversed and the cause remanded for a new trial. BAKER V. SUMMERS. Supreme Court of Illinois. 1903. 201 Illinois, 52. Mr. Justice Cartwright delivered the opinion of the court. The second instruction told the jury that they should find the issues for the plaintiff if she had establish-ed, by a pre- ponderance of the evidence, the material allegations of any of the counts in the amended declaration. There was no instruction telling the jury what the material allegations of the several counts were, and what were the material allega- tions was a matter of law for the court. Although it is a practice not to be commended for the 'Court to refer the jury to the declaration for the issues, it has not been con- sidered error to make such reference where the instruction requires proof of the averments of the declaration. The proper method is for the court to inform the jury, by tiie instructions, in a clear and concise manner, as to what ma- terial facts must be found to authorize a recovery. The averments in the declaration which would be clear to a lawyer would often be obscure and unintelligible to the average juryman. (Moshier v. Kitchell, 87 111. 18.) Where the jury are not only referred to the declaration to deter- mine the issues, but are instructed to find a verdict for the plaintiff if the material allegations of the declaration are proved, they are left to decide, as a matter of law, what are the material allegations, and might conclude that some allegation essential and material in the law was not ma- Sec. 1] Instructing the Jury 373 terial or necessai^y to be proved to justify a recovery; and such an instruction as this was liehl to be undoubtedly erroneous in Toledo, St. Louis and Kansas City Railroad V. Bailey, 145 111. 159. ********** The judgments of the Appellate and Circuit Courts are reversed and the cause is remanded to the Circuit Court. Reversed and remanded. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY V. WOODSON. Supreme Court of Kansas. 1909. 79 Kansas, 567. [Arthur Woodson, on June 27, 1905, while a passenger on one of defendant's trains, got into an altercation with a Pullman porter, in the course of which Woodson stabbed the porter, under circumstances not clearly disclosed. Soon afterwards the conductor of the train arrested Woodson, put him. off the train at Ottawa and had him locked up in the county jail. Subsequently Woodson was tried for the assault and acquitted. This action was brought for false imprisonment.]^ The opinion of the court was delivered by Graves, J.: The arrest and detention of the plaintiff, prior to July 1, 1905, was without a complaint or warrant. Wlien the arrest >eomplained of was made the plaintiff was not engaged in the commission of any offense whatever. He was quietly seated in a chair, like other passengers. The defendant interposed the defense that the conductor, when the arrest was made by him, had probable cause to believe that a felony had been committed, and this belief, if honestly and in good faith entertained, justified the ar- rest, whether the felony had been committed or not. As indicated by this issue, the pivotal question in the case was whether this alleged probable cause existed or not. This question could not be intelligently determined by the jury unless they understood what in law constitutes probable iStatement of facts condensed by the editor. 374 Trial Practice [Chap. 11 cause. It was the duty of the court to define this phrase clearly, so that the evidence could be easily applied to such definition by the jury. The only instruction given by the court upon this question, reads : '*If the plaintiff was a passenger on one of the passenger trains of the defendant company, and the conductor of said train arrested the plaintiff and removed him from said train at Ottawa, a station on said road, or removed plain- tiff from the train and then caused his arrest and imprison- ment, the defendant company would be liable for said ar- rest and imprisonment if said arrest and imprisonment was false ; that is, wrongfully made under the circumstances of the case." Wlien is an arrest legally false or wrongfun When may a conductor on a passenger-train, without a warrant, right- fully imprison a passenger while such passenger is 'Con- ducting himself in a quiet and orderly manner and there are no reasonable grounds to apprehend misconduct on his part? The answer given by the law to the last question is : \Vhen the conductor has probable cause for believing that the passenger has committed a felony, and acts in good faith upon such belief. What in a legal sense constitutes probable cause. What is a felony? These questions in- volve both law and fact, and are vital to the issue presented in this case. The jury are not supposed to know the law, and they should be clearly advised by the court as to the law which governs the case on trial. This was not done, but the law and the fact were both submitted to the jury for their determination. ***** Because of the erroneous and misleading character of the instructions given, * * * * the judgment of the district court is reversed, with directions to grant a new trial and proceed in accordance with the views herein expressed. Sec. 1] Instkucting the Jury 375 MITCHELL V. TOWN OF FOND DU LAC. Supreme Court of Illinois. 1871. 61 Illinois, 174. Mr. Justice McAllister delivered the opinion of the court. This was assumpsit, brought by appellant as adminis- trator of the estate of William Mitchell, deceased, against appellee, to recover for the support and maintenance by the intestate in his lifetime of one Eliza McFerren, from the 23d of March, 1857, to the 23d of January, 1858, said Eliza being an alleged pauper and resident of the said township. The first instruction on behalf of appellee is as follows : "If the jury believe, from the evidence, that the person, Eliza McFerren, was boarded and lodged and furnished with clothing by William Mitchell (whose administrator brings suit) from the 1st day of March, A. D. 1857, until his death in 1858, yet, unless they further believe, from the evidence, that during that time the said Eliza McFerren was a pauper for whose support the defendant was legally liable, or for whose support the defendant had, by its proper officer, contracted to pay the said William Mitchell for dur- ing said time, they will find for the defendant." This instruction submits to the determination of the jury two questions of law, without an}' aid from the court, viz. : First — What shall constitute the legal liability of a town to support a pauper? Second — Wlio is the proper officer to make a binding con- tract on the part of the town for such support by another ? The impropriety of leaving questions of law to the deter- mination of the jury has been so often decided by the courts that the citation of authorities seems unnecessary. The court should have instructed the jury as to what facts were indispensable to create the legal liability of the town for the support of the person in question, and then told them that if such facts were not established by the evi- dence, to find for the defendant; and should likewise have informed the jury who the proper officer to bind the town for such support was, and what would be necessarv to con- 376 Trial Peactice [Chap. 11 stitute a contract express or implied, and then left it for them to say whether such officer acted in the premises, and if he did nothing to create a contract within the definition given, that then they should find for the defendant. A majority of the court think the instruction erroneous. For this error, the judgment of the court below must be reversed and the cause remanded. Judgment reversed. WTNCHELL V. TOWN OF CAMTLLUS. Appellate Division of the Supreme Court of New York. 1905. 109 New York Appellate Division, 341. Williams, J. : The judgment and order should be reversed upon ques- tions of law only and a new trial granted, with costs to the appellant to abide event. The action is to recover damages for negligence in per- mitting a sluiceway across a highway under the traveled part thereof to become filled up so as to set back surface water accustomed to flow through the same upon the plain- tiff's premises. In 1890 the Highway Law (Chap. 568) was passed, and by section 180 of that law the statute of 1881 was repealed to take effect on March 1, 1891. (Id. Sec. 183). Substan- tially the same provision was substituted for it, however, by section 16 of that law, Vviiich is as follows: ''Every town shall be liable for all damages to x>erson or property sustained by reason of any defect in its highways or bridges, existing because of the neglect of any commis- sioner of highways of such town." The basis of the ngat to recover is here plainly stated to be the neglect of the commissioner and not the town. The trial court read this section to the jury, and then made the following statement to them: "Now, it is the Sec. 1] Instructing the Jury 377 contention of the defendant in this case, that the defects therein referred to only relate to the defects in the traveled portions of the highway, or defects affecting the traveler. Now, that contention is one which I leave with you with other matters; as a matter of fact to determine." This statement in the charge was excepted to by the de- fendant's counsel, and the court was requested to charge that the defect complained of in the case was not one con- templated by section 16 of the Highway Law, but the court declined so to charge. The court did charge that no recovery could be had ex- cept under the provision of this section. The jury evident- ly found as matter of fact that the defect complained of was within the provisions of this section. Otherwise they could not have rendered a verdict for the plaintiff. "We are unable to perceive how the legal meaning or effect of a statute can be a question of fact for a jury. We had supposed it was always a question of law for the court. There was no dispute in this case as to what the defect was claimed to be, the stopping up of a sluiceway under the traveled part of the highway, and the damage re- sulting was not to a traveler on the highway, but to an adjacent property owner, the setting of surface water back upon his land, and damaging the same. The highway was in no way obstructed or interfered with so far as travel along the same was concerned. The de- fendant's contention was that the defects referred to in the statute related only to the traveled portion of the highway and affecting the traveler, and the court was asked to con- strue the statute and to instruct the jury as to its meaning so they could follow those instructions in considering the evidence and deciding the case. The court declined to do this and left the jury to construe the statute as a matter of fact and not of law. We think it was the duty of the court to pass upon ques- tions of law, and that it could not properly refuse to do so. Very likely if tlie jury decided the law properly, as a ques- tion of fact, the defendant was not prejudiced, but we think they went wrong, and held the defendant liable under this section, when it was not liable at all. 378 Trial Practice [Chap. 11 There was clearly no legal right to recover in this action, and it was erroneously submitted to the jury. The motions for nonsuit should have been granted. All concurred, except McLennan, P. J., who dissented in an opinion in which Spring, J., concurred. DIDDLE V. CONTINENTAL CASUALTY COMPANY. Supreme Court of Appeals of West Virginia. 1909. 65 West Virginia, 170. POFFENBARGER, JudgC : Thomas D. Diddle, insured for the benefit of his wife, Lydia Diddle, in the Continental Casualty Company, for $2,000.00, was struck by a railway water column, while riding on a railway engine, and killed. His wife brought this action on the policy and recovered a judgment for the sum of $2,049.30. The defense was predicated on a limited liability clause in the policy, reading as follows: ''Where the accident or injury results from voluntary exposure to unnecessary danger or obvious risk or injury, or from the intentional act of the Insured or of any other per- son; * * * * or (2) where the accidental injury re- sults from or is received while quarreling, fighting or violating the law; * * * * then and in all cases re- ferred to in this Part III, the amount payable shall be one-tenth of the amount which otherwise would be payable under this policy, anything in this policy to the contrary notwithstanding, and subject otherwise to all the conditions in this policy contained." Deeming this clause applicable and controlling, under the circumstances attend- ing the death of the assured, the insurance company tend- ered the beneficiary $200.00, one-tenth of the amount of the policy, less $20.00, due it on account of unpaid premium, which she refused. The following facts are disclosed by the evidence: The insured was a car-repairer in the shops of the Chesapeake and Ohio Railway Company at Pluntington. In the even- Sec. 1] Instructing the Jury 379 ing of the day he was killed, after the completion of his work, he came out of the shop, walked down tlie railway track in a westerly direction a short distan-ce, passing the water column, standing midway between two railway tracks, about nine feet apart, and stepped on one of two engines, drawing a train of cars over a switch from the west bound track to the east bound track, as he had often done be- fore. Instead of getting into the cab of the engine, he stood on the step on the outside, holding to a hand-grip, while his body projected or swung from the side of it, and was riding in that way, or he was in the act of climbing into the cab and before he had accomplished it, the engine came to the water column and his body came into violent contact with it. * * * * Over the objection of the defendant, the court gave one instruction for the plaintiff in which the jury were told, first, that the boarding of the engine was not a violation of the statute, making it criminal to jump on or off of trains; and, second, that they might find a verdict for the jilaintiff if they believed from the facts, circumstances and evidence that the water tank was a dangerous obstruction, unless they should further believe that the danger was known to tlie insured and could have been reasonably ex- pected by him. The court erred in giving the instruction, since the second proposition, involved in it, submitted to the jury a matter which it was the duty of the court to pass upon and declare as a matter of law. Upon the admitted and uncontroverted facts, disclosed by the evidence, the danger and risk were palpably obvious. The insured was bound to know it. The law did not permit him to say, nor the jury to find, that he did not know it, or to excuse him because, though having opportunity for deliberation and voluntary action," he did not make use of the faculty of sight, which would have revealed to him the danger and the risk. There was no basis in the evidence for a finding in favor of the plaintiff. Under such circumstances, it is error to give an instruction telling the jury they may so find. Kuyliendall v. Fisher, 61 W. Va. 87, 102; Parker v. Bmlding & Loan Ass'n, 55 W. Va. 134. For the errors aforesaid, the judgment will be reversed, the verdict set aside and the case remanded for a new trial. 380 Trial Practice [Chap. 11 (c) Questions of Fact Not to he Taken From the Jury. STANDAED COTTON MILLS V. CHEATHAM. Supreme Court of Georgia. 1906, 125 Georgia, 649. Beck, J. The petition of Cheatham contained substan- tially the following allegations; that he was employed by the Standard Cotton Mills to work at certain machines called '^ carders," which were operated by a belt from a pulley, and it was a part of his duty to clean the machines by opening certain lids thereon, placing his hand inside of the same, and taking therefrom accumulations of trash and lint called "strippings." In order to clean the carders it was necessary to stop them, and this was done by switch- ing the belt from the tight pulley, upon which it worked, to a loose pulley. Plaintiff alleges that he had stopped the machines in the manner described, and had opened the lid and placed his hand inside of one of the carders, when the belt slipped from the loose pulley on to the tight one, the machine started, caught his hand, and mangled it se- verely * * * Movant also complains that the court erred in chargfng the jury as follows: ''If the carder machine was stopped by slipping the belt from the tight to the loose pulley, and that was the proper way to stop the machine and keep it stopped until the operator himself slipped the belt from the loose to the tight pulley, if the plaintiff did not know or ought to have known to the contrary, he would have the right to presume tliat Ihe belt, once shifted from the tight to the loose pulley, and the machine thereby stopped, would remain stopped until again started. That I charge you as correct law, gentlemen, provided the defect was one that the plaintiff could not have discovered by the exercise of ordinary diligence." It is alleged that this portion of the charge was error, "because it was a question for the jury to determine whether the plaintiff would have the right to presume that the belt would stay shifted when once Sec. 1] Instructing the Jury 381 shifted, considering all the facts before them." And this point seem? to be well taken. In charging as here alleged, the trial court went directly in the teeth of the statute which declares that it is error for a trial judge to express or intimate his opinion as to what has or has not been proved (Civil Code, Sec. 4334). We cannot imagine a more direct invasion of the province of the jury than for the court to instruct them that as to one of the facts ma- terial to be considered by the jury in passing upon the question as to whether or not the plaintiff himself was guilty of negligence, "he would have the right to presume that the belt, once shifted from the tight to the loose pulley, and the machine thereby stopped, would remain stopped until again started." This did not fall far short of in- structing them that if the plaintiff took certain precautions while inserting his hand into a dangerous machine, he havl the right to presume that the precautionary measure so taken would be equivalent to the exercise of due care and caution in guarding against an injury that might be brought about by the machine being set in motion. In brief, the court attempted to and did in one breath deal with and dispose of a vital question of fact. If any presumption at all arose as to what would be the effect of shifting the belt in question from the tight to the loose pulley, it was a presumption of fact, and should have been left for the jury's consideration alone, unaided by the court. ********** Judgment reversed. All the Justices concur, except Fish, C. J., absent. ILLINOIS CENTRAL RAILROAD COMPANY V. JOHNSON. Supreme Court of Illinois. 1906. 221 Illinois, 42. Mr. Chief Justice Cartwright delivered tiie opinion of the court : This is an action on the case brought by appellee, as ad- 382 , Teial Practice [Chap. 11 ministratrix of the estate of her son, Carl Eobert George Johnson, in the circuit court of Cook coiintv, to recover damages from appellant for causing his death. The declaration alleged that the deceased, who was a minor, became a passenger on November 3, 1900, on one of defendant's trains, in the front car next tc the engine, at West Pullman station, to be carried to Pullman station; that the train arrived at Pullman station about 7 :45 in the evening; that at Pullman station was an elevated plat- form between the tracks for north-boujad and south-bound trains for the use of passengers; feat when the train stopped at Pullman the deceased leit the car at the forward end, as was cutsomary and as directed by defendant; that the train and car had passed by and beyond said elevated platform, and on leaving the car deceased found himself on the ground a few feet north of the elevated platform between said tracks, with the engine and cars on the east side and a vacant space on the west and a high picket fence across the platform on the south; that the depot and exit were on the west west, and as the deceased went from the place where he alighted, in a westerly and southerly direc- tion, toward the gates, using due care, one of the locomo- tive engines of the defendant going in a southerly direction on the south-bound track struck and killed him. The plea was the general issue, and upon a tiial the jury returned a verdict finding the defendant guilty and assessing plain- tiff's damages at $5000. Judgment was entered on the verdict, and the judgment was affirmed by the Appellat< Court for the First District. The instruction given at the request of the plaintiff which purported to state the relative duties of the parties, the theory of the plaintiff and ground for recovery alleged in the declaration, and the amount of damages which might be awarded, was as follows: "The jury are instructed, as a matter of law, that if you find, from the evidence, that the defendant corporation was engaged in the business of transporting passengers and freight, for hire, upon a railroad o])erated by said company, then the law denominated the defendant a common carrier. The court instructs the jury that common carriers of per- sons are required to do all that human care, vigilance and Sec. 1] Instructing the Jury 385 foresight can reasonably do, in view of the character and mode of conveyance adopted, to prevent accidents to pas- sengers. So, too, persons who become passengers must at all times exercise ordinary care and caution for their own safety. And if the jury believe, from the evidence in this case, that the defendant was at the time of the acci- dent a common carrier, and if you further believe, from the evidence, that the deceased was a pasesnger on the defend- ant's train and in the exercise of due care on his part, if the jury so believe from preponderance of the evidence, and that the defendant carelessly or negligently operated its said train or car by running the same past the station platform, so as to cause the deceased to alight upon the ground and tracks of the defendant instead of upon the platform where the passengers are usually unloaded, and that by reason of such negligent acts, if any are proven by the preponderance of the evidence in the case, of the defendant, their agents, and employees, the deceased, Carl Robert George Johnson, while exercising due care for his safety, if you so find from the preponderance of the evi- dence, was struck by an engine controlled and operated by the defendant and was then and there killed, then you may find the defendant guilty, and assess the plaintiff dam- ages at such reasonable sum as she may be entitled to re- cover under all the facts and circumstances proved in the case, not exceeding $5000." The instruction was erroneous in three respects. It was proved, and not disputed, that the train ran three or four feet past the north end of the platform, and that deceased alighted upon the ground instead of on the platform where passengers were usually unloaded. The questions in dis- pute were whether the act of defendant in running past the platform constituted negligence on its part, and whether such act caused the deceased to alight upon the ground at an improper place, or whether he was negligent in going down the steps where he did. They were questions of fact for the jury to determine from the evidence, and it was the exclusive province of the jury to determine whether the act of the defendant was negligent and whether tlie de- cased was J^ilty of negligence. No other act of the de- fendant was alleged and no other fact stated in the declar- ation which could have been construed to be a negligent 884 Trial Peactice [Chap. 11 one, and the court could not say that either of the parties was negligent as a matter of law. The Appellate Court, in considering whether the evidence warranted the jury in finding the defendant guilty of negligence which caused the injury, expressed no opinion as to whether the running of the train past the station platform constituted negli- gence or not, but held that the defendant was negligent in the management of the south-bound train, saying that it was the duty of the engineer to have been on the lookout for the north-bound train; that he must have known his train was late; that he ran the train at the rate of from twelve to fifteen miles an hour, and that the evidence tended to show he did not exercise the required degree of care in the operation of his train so as to be able to stop for the safet}^ of passengers getting on or off the north-bound train. There was no averment in the declaration as to the speed of the south-bound train or failure to keep a look- out, or mismanagement of it in any respect. The crossing place for passengers was south of the platform, more than three hundred feet distant, and where the train would have come to a full stop ; and if the question as to the manage- ment of the south-bound train had been submitted to the jury, they would doubtless have considered the question whether the engineer had, or ought to have had, any rea- son to expect that a person would be on the track at the north end of the platform. It appears, however, that such questions were not submitted, and that the verdict was based on the negligent character of the act in running past the platform. On that question the instruction assumed both that the act was a careless and negligent one, and that it caused the deceased to alight upon the ground on the tracks of the defendant instead of upon the platform, and it afterwards refers to the acts as ''such negligent acts." The plaintiff was entitled to recover if the jury should de- cide that the act of the defendant was negligent, that it caused the injury, and that the deceased was in the exer- cise of ordinary .care; but it was the exclusive province of the jury to determine those facts, and they should have been submitted to the jury for determination without any intimation or assumption as to the proper conclusion. In the case of Chicago and NortJiwestern Raihvay Co. v. Mo- randa, 108 111. 576, the CQurt said : "Where there is evidence Sec. 1] Insteuctixg the Jury 385 before a jury upon which it is legally admissible there may be difference of opinion, it is error to allow any opinion of judge or court to be obtruded upon the jurors to influence their determination." Where the evidentiary facts will justify different conclusions the question of negligence is one of fact, and instructions should alwaj^s be dra\\Ti so as to state th^ law upon a supposed or hn^othetical state of facts, leaving the jury to find the fact. Instructions as- suming the existence of any material fact have always been condemned. {Sherman v. Dutch, 16 111. 283; Michigan Southern and Northern Indiana Railroad Co. v. Shelton, 66 id. 424; Chicago and Eastern Illinois Railroad Co. v. O'Connor, 119 id. 586; Swigart v. Hawley, 140 id. 186; Illi- nois Central Railroad Co. v. Griffin, 184 id. 9; Allmendin- ger v. McHie, 189 id. 308; Pittsburg, Cincinnati, Chicago and St. Louis Railway Co. v. Banfil, 206 id. 553.) Under this instruction, when the jury found that the train was run past the platform, they would understand that the court regarded such act to be a careless and negligent operation of the train, and that it caused the deceased to get off the train at the place where he did. It did not call upon the jury, as it should have done, to decide whether the act con- stituted negligence on the part of the defendant. Because of the material and prejudicial errors which have been pointed out, the judgments of the Appellate Court and circuit court are reversed and the cause is re- manded to the circuit court. Reversed and remanded. BUTTRAM V. JACKSON. Supreme Court of Georgia. 1860, 32 Georgia, 409. The questions in this case arise out of the following state of facts: Some time in December in 1857, Ira G. Jackson sold to Andrew J. Buttram a mule, and received in payment there- T. p.— 25 386 Trial Practice [Chap. 11 for two promissory notes, given by one D. H. Harris, one of the notes dated 10th November, 1857, and due twelve months after date, payable to said Buttram, or bearer, for the Slim of $30.00 ; the other dated 22d October, 1857, and due 25th December, 1858, payable to Martha McElreath, or bearer, for $40.00. On the 22d January, 1859, Jackson instituted suit in Carroll Superior Court, against Buttram, to recover the value of the mule, alleging, in one count of his declaration, that Buttram, at the time of the trade, warranted the notes to be good, and that Harris was perfectly solvent, and that if the notes were not paid by Harris at their maturity, he, Buttram, would pay the amount due on the same, whereas, in truth and in fact, Harris was insolvent at the time, and afterwards absconded, and went to parts unknown. The defendant pleaded the general issue. When the testimony and argument had closed, the pre- siding judge charged the jury, "that if the defendant told the plaintiff, at the time of trading him the notes on Harris, that he considered Harris good, but that he would not be bound, yet he was bound, if Harris was not good at that time, if Jackson took the notes on such representation, al- though there was no guaranty by defendant to stand good for the notes, the notes being taken by Jackson, who was ignorant of the condition of Harris at the time, whose con- dition was known to Buttram." By the Court. — Jenkins, J., delivering the opinion. Error was further assigned, in the grounds of the motion for a new trial against the charge of the Court as set forth in the statement. In that charge the presiding judge deemed it necessary, in order to facilitate the application of the law by the jury to the case, to advert to certain facts claimed bj^ one party to have been proven, but the proof of which was denied by the other. This practice is not objectionable; indeed, it is sometimes necessary, to enable the jury to understand clearly the relation existing between the law and the facts of the case; but the utmost caution should be observed to Sec. 1] Instructing the Juey 387 guard the jury against the inference, that the judge con- siders any disputed fact to have been proven. Juries are usually very open to influence from the Bench, and it is right that they should be so; but that influence should never be extended to their conclusions, in matters of fact. A careful analysis of the charge under review makes it apparent that the judge put his reference to some of the facts hypothetically, as ''*/ the defendant told the plain- tiff," etc., 'S/ Harris was not good at that time," etc., whilst his reference to other facts was in terms which as- sume that they were incontestably proven, as ''Jackson, who was ignorant of the condition of Harris, at the time, and whose condition ivas Jinoivn to Buttram," etc. The hypothetical is the proper form of putting facts in such cases, because it distinctly puts the jury on the inquiry as to those facts ; but in relation to other facts, put positively be- fore them, put as facts ascertained in the same connection, in the same sentence, they are much less apt to feel the ne- cessity of inquiry. Indeed, these different modes of treat- ing different facts, would seem to give a double assurance, that they are relieved from the necessity of scrutinizing the evidence for the proof of some of them : 1st. Because the judge has treated them as proven. 2nd. Because he has cautiously treated others as doubtful. We think there was error in this * * * The judgment of the Court, therefore, must be reversed and a new trial ordered. Let the judgment he reversed. (d) Comments by the Court on the Weight of the Evidence. NEW YORK FIREMEN INSURANCE COMPANY V. WALDEN. Court for the Trial of Impeachments and the Correction of Errors in the State of New York. 1815. 12 Johnson, 513. This cause came up from the Supreme Court on a writ of error. 388 Trial Practice [Chap. 11 For the plaintiffs in error, it was contended. 1. That there was a concealment of certain letters and matters, rela- tive to the conduct and character of the master, which were material to the risk, and ought to have been disclosed to the plaintiffs in error, at the time the policy was under- written. * * * 2. That under the circumstances of -the case, the policy did not protect the ship against the barratry of Cartwright, the master ; and that there was not sufficient evidence of barratry to entitle the plaintiffs below to re- cover on that ground * * *. 3. That the materialty of the concealment was a question of fact, and ought to have been left to the jury. * * * The Chancellor. This case comes up upon a bill of ex- ceptions, and we are accordingly to be confined to the ob- jections taken at the trial, and appearing on the face of the bill. The question is, whether there was error in the charge which the learned judge delivered to the jury. This charge was, ''that the several matters given in evidence on the part of the plaintiffs, were, in his opinion, conclusive evidence of the barratry of the master of the vessel, on the voyage; and that the plaintiffs were not bound to communi- cate, or disclose, to the defendants, any of the letters, mat- ters, or circumstances, which were, at the time of the insur- ance, in their possession, relative to the master; and tli;^ the matters given in evidence, on the part of the defend- ants, were not sufficient to maintain the issue on their part, or; to bar the action of the plaintiffs; and that if the jury agreed with him in opinion, they ought to find a verdict for the plaintiffs;" and with that charge, he left the matter to the jury. The counsel went at large into the discussion of the ques- tion, whether the assured were bound to communicate to the underwriters, at the .time they applied for insurance, the letters and other knowledge they possessed of the im- proper conduct of the master. But it appears to me that this question is not for the. decision of tliis Court, because, wlietlier the circumstances relative to the master ought to have been disclosed, depends upon the question, whether those circumstances were material to the risk; and the ma- teriality is a question of fact for a jury and not a question of law for the Court. It is a well-settled principle in the Sec. 1] Instbucting the Jury 389 law of insurance, that what facts, in the knowledge of the assured, are material, and necessary to be commnnicated to the underwriter, when insurance is asked for, is for a jury to determine; and I will briefly notice a few cases, in illustration of this point. My whole opinion will rest upon the admission and the solidity of this principle. ********** It is thus settled, (as far as authority goes,) beyond all doubt or contradiction, that, whether the matters not dis- closed in this case were material, was a question that ought to have been submitted to the consideration and decision of the jury; and here, I apprehend, lies the error committed by the learned judge, that he has given a binding direction to the jury, upon matter of fact, as if it had been matter of law. It appears to me, that the true and necessary con- struction of the charge, as stated in the bill, is, that it was a positive direction, in point of law, as to the materiality of the non-disclosure, and that it must have been so received and obeyed by the jury. If the charge had been intended as a mere opinion to the jury, on a matter of fact, on which they were to exercise their judgment, the jury would, un- doubtedly, have been told, that the defence in the case rested upon the question of the materiality of the letters and facts not disclosed, and that it was for them to judge, from the evidence, whether the disclosure would have va- ried the premium, or increased the risk, in respect of the barratry of the master; and that if the jury should be of opinion that the facts not disclosed were in that sense ma- terial, they must find for the defendants; and that, if they thought otherwise, they must find for the plaintiffs. This would have been the language of a charge suited to the submission of such a point; and we have an example of this species of charge (if, indeed, an example can be wanting) in the bill of exceptions taken in the case of Smith V. Carrington, (4 Cranch, 64.) If, then, the judge had deemed it proper to add his own opinion on that fact, for the assistance or satisfaction of the jury, it might have been done with utility, and with safety. But the charge, as stated in the case, is not of this nature, but it is in the usual style and language of a direction of the Court, on matter of law. The precedent of a bill of exceptions, which was cited from Buller's N. P. 317, and which is given 390 Teial Practice [Chap. 11 as for misdirection, is in the language of the charge in this case. "And the said chief justice did then and there (says the precedent) declare and deliver his opinion to the jury, that the said several matters so produced and proved, on the part of the defendants, were not, upon the whole case, sufficient to bar the plaintiff of his action; and, with that direction, left the same to the jury." There is a preced- ent of a bill of exceptions given in 3 Burr. 1742., and which was taken to a charge on the subject of search-warrants, made by Lord Camden, when Ch. J. of the C. B., and the language of this very authentic precedent is almost in the very words of the one before us: "And the said chief jus- tice did then and there declare and deliver his opinion to the jury, that the said several matters so produced and proved, on the part of the defendants, were not, upon the whole case, sufficient to bar the action, and, with that opin- ion, left the same to the jury." In this case, from Burrow, it was never doubted but that the opinion of the chief justice, so stated in that bill, was taken and received as a direction in point of law ; and if the charge in the case before us is not to be deemed of that character, it will be impossible, hereafter, to discriminate between a charge containing a positive direction in point of law, and mere advice on a matter of fact. I shall not en- ter into any minute criticism on words. No one who con- sults the precedents can well be at a loss for the meaning of this charge. The language of the learned judge was, that the plaintiffs were not hound or required to make the disclosure; that the matters offered in evidence were not su-fficient to bar the action, and nothing was said about the weight of evidence for the consideration of the jury. If even it was doubtful, by the bill, whether the charge was in- tended as direction, or otherwise, the result of my opinion would be the same ; because, when the judge interposes his opinion to the jury, on a point of fact, it ought not to be left in doubt in what light they are to receive his charge. In order to preserve a just balance between the distinct powers of the Court and the jury, and that the parties may enjoy, in unimpaired vigor, their constitutional right of having tlie law decided by the Court, and of having the fact der-ided by the jury, every charge should distinguish clearly between the law and the fact, so that the jury cannot misun- Sec. 1] Instbucting the Juey 391 derstand their rights or their duty, nor mistake the opinion of the judge upon matter of fact, for his direction in point of law. The distinction is all important to the jury. The direction of the judge, in the one case, is obligatory upon their consciences, and so they will, and so they ought to, regard it; but his opinion, in the other case, is mere ad- vice, and the jury are bound to decide for themselves, not- withstanding the opinion of the judge, and to follow that opinion no farther than it corresponds with the conclusions of their own judgment. Unless this distinction be kept stead- ily in view, and be defined with all possible precision, the trial by jury may, in time, be broken down, and rendered nominal and useless. I am far from wishing to restrain the judges of the Courts of law from expressing freely their opinions to the jury on matters of fact, and still less from interfering with their power of controlling the mistaken verdicts of juries, by a liberal exercise of the discretion of awarding new trials. No man can be more deeply sensible of the value and salutary tendency of this judicial aid and discretion, and none, certainly, can possess higher confidence in the character and wisdom of the Court whose judgment is now under review. All that I feel it my duty to contend for is, that whenever the judge delivers his opinion to the jury on a matter of fact, it shall be delivered as mere opinion, and not as direction, and that the jury shall be left to under- stand, clearly that fJiei/ are to decide the fact, upon their own view of the evidence, and that the judge interposes his opinion only to aid them in cases of difficulty, or to inspire them with confidence in cases of doubt. It is for this prin- ciple that I feel solicitous, and not for anything that may have taken place in this particular cause. The case before us is, comparatively, of trifling consequence; but the dis- tinction I have suggested goes to the very root and es- sence of trial by jury, and may, indeed, become of ines- timable value, and, perhaps, of perilous struggle, when the present generation shall have ceased to exist. I am disposed to hand to posterity the institution of juries as perfect, in all respects, as we now enjoy it; for I believe it may, in times hereafter, be found to be no incon- siderable security against the systematic influence and ty- ranny of party spirit, in inferior tribunals. S92 Teial Peactice [Chap. 11 I am, accordingly, of opinion, that the judgment of the Supreme Court be reversed, and that the cause be re- manded, with directions that a venire de novo be awarded. A majority of the Court being of this opinion, it was thereupon ordered and adjudged, that the judgment of the Supreme Court be reversed, and that a venire de novo be awarded, for the trial of the issue joined between the par- ties in the said Court ; and that the costs in this Court abide the final decision of the cause. Judgment of reversal. ST. LOUIS, lEON MOUNTAIN AND SOUTHERN RAILWAY V. VICKERS. Supreme Court of the United States. 1887. 122 United States, 360. The defendant in error sued the plaintiff in error in a state court of Arkansas to recover damages for personal injuries sustained by him while a passenger on one of the trains of the company. * * * The case was tried before a jury. * * * The assignments of error were the following: 1. The court erred in instructing the jury as follows; *' Counsel for the plaintiff told you that you might find a verdict for plaintiff for any sum from one cent to $25,000. This is true in one sense. You have the power to render a verdict for one cent or for $25,000, but a verdict for either of these sums would obviously be a false verdict, for if the plaintiff is entitled to a verdict at all, and upon this point you will probably have no difficulty, as the evidence clearly shows negligence and consequent liability on the defend- ant, though this is a question of fact exclusively within your province to determine — I say, if plaintiff is entitled to a A'crdict at all he is entitled to recover more than one cent, and it is equally clear that $25,000 would be greatly in ex- cess of what he ought to recover." Sec. 1] Instructing the Juey 393 Mk. John F. Dh^lon for plaintiff in error. The constitution of Arkansas, Art. VII, Sec. 23, provides that * 'judges shall not charge juries with regard to mat- ters of fact, but shall declare the law, and in jury trials shall reduce their charge or instructions to writing on the request of either party." In this case the matters of fact in issue were the alleged negligence of the defendant and contributory negligence of the plaintiff. We submit that this constitutional provision should be followed by the Federal courts sitting as courts of common law in the state of Arkansas; and that this case is to be distinguished from Nudd v. Burroivs, 91 U. S. 426, and Indianapolis Railroad v. Horst, 93 IT. S. 291. Chief Justice Taney, delivering the opinion of this court in Mitchell v. Harmony, 13 How. 115, said: ''The practice in this respect differs in different states. In some of them the court neither sums up the evidence in a charge to the jury nor expresses an opinion upon a question of fact. Its charge is strictly confined to questions of law, lea\dng the evidence to be discussed by counsel, and the facts to be de- cided by the jury without commentary or opinion by the court. But in most of the states the practice is otherwise ; and they have adopted the usage of the English courts of justice, where the judge always sums uj) the evidence, and points out the conclusions which in his opinion ought to be drawn from it ; submitting them, however, to the considera- tion and judgment of the jury. It is not necessary to in- quire which of these modes of proceeding most conduces to the purposes of justice. It is sufficient to say that either of them may be adopted under the laws of Congress. And as it is desirable that the practice in the courts of the United States should conform as nearly as practicable to that of the state in which they are sitting, that mode of proceeding is perhaps to be preferred which, from long established usage and practice, has become the law of the courts of the state." It is submitted that the act of Congress of June 1, 1872, 17 Stat. 197, Sec. 5, should be construed in harmony with this decision. It has been repeatedly held in Arkansas that it is error 39i Tbial Pbactice [Cbap. 11 to assume, in the instructions to the jury, the existence of the facts in issue. Montgomery v. Erwin, 24 Ark. 540; Floyd V. Bids, 14 Ark. 286 (S. C. 58 Am. Dec. 374) ; State Bank v. McGuire, 14 Ark. 537; Atkins v. State, 16 A^k. 568, 593; Armistead v. Brooke, 18 Ark. 521; Burr v. Williams, 20 Ark. 171. And that an instruction should not be given which intimates to the jury the opinion of the court as to the weight of the evidence. BandolpJi v. McCains' Admin- istrator, 34 Ark. 696. Mr. F. W. Compton for defendant in error submitted on his brief. Mr. Chief Justice Waite delivered the opinion of the court. This judgment is affirmed on the authority of Vickshurg and Meridian Bailroad Co. v. Putnam, 118 U. S. 545 ; Nudd V. Burrows, 91 U. S. 426, 441; Indianapolis etc. Bailroad v. Horst, 93 U. S. 291, 299. A state constitution cannot, any more than a state statute, prohibit the judges of the courts of the United States from charging juries with regard to matters of fact. Affirmed. KLEUTSCH V. SECURITY MUTUAL LIFE INSUR- ANCE COMPANY. Supreme Court of Nebraska. 1904, 72 Nebraska, 75. Baknes, J. Augusta 0. Kleutsch, by her guardian and next friend, and Katherine Kleutsch Mills, commenced an action in the district court for Lancaster County, against the Security Mutual Life Insurance Company of Lincoln, Nebraska, on a policy issued l)y that company on the life of one George W. Kleutsch, the plaintiffs being the bene- ficiaries. The case was first tried before his honor, Judge TTolmes, and a verdict returned in favor of the plaintiffs for the amount named in the policy. This verdict was set nsirlo nnd a now trial granted, and from that order the lilaiiitiffs prosecute error. The case was again tried be- Sec. 1] Instructing the Juby 395 fore his honor, Judge Cornish, and a verdict again re- turned for the plaintiffs. From an order demdng a new trial and a judgment on the verdict, the defendant prose- cutes error. * * * ********** We come now to consider the assignments of error pre- sented by the defendant company. It appears that on the second trial the court instructed the jury as follows : '*In this case the burden of proof is upon the plaintiffs to establish by a preponderance of evidence the payment of the second premium on the policy in suit, which premium was due November 28, 1900, and on which a grace of 30 days in pajTuent was allowed by the terms of the policy. To prove payment the plaintiffs produced the defendant's re- ceipt for the same. A receipt is evidence of a high grade, to be overcome only by clear and convincing testimony. On the other hand it constitutes only prima facie evidence of what it contains, and it is entirely competent and proper for the defendant company to show that the payment in fact was not made, and that the receipt was issued by mis- take." Defendant contends that this instruction was erroneous ; that it was wrong in this, that the court should not have told the jury that ''a receipt is evidence of high grade, to be overcome only by clear and convincing testimony." And it would seem that by this statement the court called the attention of the jury directly to this part of the testi- mony; in fact, singled it out, commented on its character and weight, and stated that it could only be overcome by clear and convincing evidence. This must have left the impression that the testimony of the defendant's witnesses, by which they attempted to explain the existence of the re- ceipt, how it came to be issued, and in which they stated positively that the premium which it represented was never paid, was not e\Tdence of such a high grade as the receipt itself, and the jury might therefore well conclude that the prima facie evidence of pa^Tnent, to-wit, the receipt itself, was not overcome thereby. Wliatever may be the rule in other jurisdictions, we have frequently held that it was error to single out and to direct the attention of the jury to any particular part of the evidence, and comment on its weight or probative force. In Smith v. Gardner, 36 Neb, 396 Tkial Practice [Chap. 11 741, the question involved was, whether a certain promis- sory note had been paid. After the death of one of the defendants, the note was found among her papers. The plaintiff testified positively that the note had never been paid, but that the deceased had obtained possession of it on the pretence of examining it, and thereafter fraudulently refused to surrender it. The trial court gave iJie following instruction: ''You are further instructed that the posses- sion of the note by Margaret Green is a strong circumstance to show pa;\Tiient unless explained by the plaintiffs in the action." The court, speaking through Post, J., held this instruction error, and in commenting thereon said : ''We think the giving of the above instruction was error. "We do not question the soundness of the proposition that possession of a note by the maker thereof after maturity is prima facie evidence of payment, but what is denominated a presumption of payment in such a case is a mere logical inference from the fact of possession, and may be strong or weak, according to the circumstances of the particular case. * * * Possession of the note by the deceased at the time of her death is not only a circumstance tending to prove pajTnent, but from which payment would ordinarily be the logical inference. It is therefore proper in such a case to instruct the jury that possession is presumptive or prima facie evidence of payment, which will, if uncontradicted or unexplained, warrant a verdict in favor of the party alleg- ing it. But the force of such presumption must always de- pend upon the circumstances of the case. It is therefore error to advise the jury that possession of a note by the maker raises a strong presumption of payment or is a strong circumstance to prove payment." In Smith v. Meyers, 52 Neb. 70, which was an action for criminal conversation, the trial court refused to instruct the jury that, "if you find from the evidence that the plaintiff continued to live with his wife after he has heard of her alleged illicit connection with the defendant, the jury is jus- tified in concluding that the plaintiff has condoned the of- fense of the wife, and this circumstance is entitled to great weight in considering the question of damages the plaintiff has sustained by the wrongful conduct of the defendant, provided the jury shall believe that the defendant has, in fact, committed any wrong against the plaintiff." Sec. 1] Instbucting the Jury 397 This was assigned as error, and in determining that ques- tion the court said: ''This instruction was properly refused, because loss of comfort and society of the wife were not the only injuries for which compensatory damages could be awarded. Again, it was not the province of the court to tell the jury what circumstance was 'entitled to great weight.' It was for the jury alone to determine the weight to be given the testimony." ********** In Show V. Locke, 3 Neb. (Unof.) 176, it was said: "Com- plaint is next made that the trial court should not have instructed the jury as follows : 'The jury are instructed that where the testimony of witnesses is irreconcilably conflict- ing they should give great weight to the surrounding cir- cumstances in determining which witness is entitled to credit.' This is complained of because it did not confine the attention of the jury to the surrounding circumstances proved at the trial, and also because it sought to instruct them what weight to attach to these circumstances. De- fendant in error replies that the instruction complained of was just as good for one party as the other and did not prejudice plaintiff in error; and also says that the cases cited by plaintiff in error are not in point on a general in- struction, such as the one complained of. * * * We are constrained to think that the learned trial judge erred in expressing an opinion as to the degree of weight to be at- tached to the surrounding circumstances in determining the credibility of witnesses." In First Nat. Bank v. Loivrey, 36 Neb. 290, where the is- sue was fraud, the jury was told that certain matters par- ticularly mentioned by the instruction were strong evi- dence of secret trust, and this was held prejudicial because of the singling out of particular evidence on one side. The same rule is announced in Gillet v. Phelps, 12 Wis. 437 ; Wil- cox V. Young, QQ Mich. 687. See also Davis v. Lambert, 69 Neb. 242. It thus appears that we are fully committed to the rule that it is error to single out a particular part of the evi- dence and express an opinion as to its weight, its strength or its probative force. In the case at bar the only ques- tion in issue was, whether or not the premium on the policy 398 Trial Peactice [Chap. 11 in suit liad been paid for the year 1900. The plaintiffs produced the receipt in question as their proof of such pay- ment. The defendant produced the officers of the com- I^any who had charge of its business, as witnesses, and es- pecially its secretary who, it was claimed, had executed and delivered the receipt, in order to explain its existence and overcome its effect. This witness testified positively that the receipt was made out by mistake and enclosed in a let- ter to the assured, which contained the policy as changed; that it was intended to evidence the payment of the full amount of the premium for the year 1899. In addition to such positive statement, the witness. gave evidence of facts surrounding the issuance of the policy, which at least tended to corroborate his further statement that the pre- mium for the year in question was never paid. With the evidence in this condition, the jury Were told that the re- ceipt was a "high grade" of evidence "to be overcome only by clear and convincing testimony." It is true that this was followed by a fairly correct statement of the law ; and yet we are unable to say that the jury were not influenced to the defendant's prejudice thereby. The instruction ap- pears to fall within the rule announced in the cases above cited, and is not distinguishable from the instructions there- in condemned. It thus clearlj^ appears that the court erred in giving the instruction quoted. As the case will be tried again, it is neither necessary nor proper for us to comment on the weight of the evidence, or discuss any of the other assignments of error contained in the record. For the giving of the instruction complained of, the judgment of the district court is reversed and the cause remanded for a new trial. Reversed. STATE V. DICK. Supreme Court of North Carolina. 1664, 60 North Carolina, 440. Manly, J. In looking into the record in this case, two errors appear to have been committed on the trial, for one Sec. 1] Insteucting the Jury 399 of whicL, at any rate, the prisoner is entitled to a venire de novo. On the trial, a question arose as to the withdrawal of certain confessions of the prisoner. The Court declined withdrawing them, but remarked to the solicitor for the State, that, after the other evidence already given in the cause, he, the solicitor, might withdraw them, if he chose to do so, which the Solicitor declined. This seems to us, to be an expression of opinion, on the part of the Judge, tliat the case was sufficiently proved without the aid of the con- fessions. This is not directly asserted, but is a matter of inference plainly from the manner in which the expedient of withdrawing the testimony is suggested. ''After the other evidence, already given in the cause, the Solicitor might withdraw," etc. The sense, which we attribute to this language, is that, which his Honor himself seems to have ascribed to it; for he takes pains to explain to ^ the jury, that they were not bound, by any opinion or judg- ment of his, as to the facts. He endeavored to obviate the effect of his opinion, by announcing, in distinct terms, the jury's independency of him in all matters of fact pertain- ing to the issue; but this it was not practicable for him to do. The opinion had been expressed, and was incapable of being recalled. The statute declares, that "no Judge, in delivering a charge to the petit jury, shall give an opinion whether a fact is fully or sufficiently proved, such matters being the true office and province of a jury. ' ' The object is not to inform the jury of their province, but to guard them against any invasion of it. The division of our Courts of record into two depart- ments — the one, for the judging of the law, the other, for judging of the facts — is a matter lying on the surface of our judicature, and is known to everybody. It was not infor- mation on this subject the Legislature intended to furnish ; but their purpose was to lay down an inflexible rule of practice — that the Judge of the law should not undertake to de^cide the facts. If he can not do so directly, he can not indirectly; if not explicitly, he can not by inuendo. What we take to be the inadvertence of the Judge, there- fore, was not cured of its illicit character by the informa- tion which he immediately conveyed. Knowledge on the 400 Teial Peactice [Chap. 11 part of the jury, of their proper province, is not the criter- ion for determining the propriety or impropriety of an opinion from the Judge, as to the sufficiency of the proofs. It is the same, whether the jury know their rights or not. The provision of the law in question, has been in exist- ence since 1796. On the various occasions, when the law has been digested and re-enacted, it has been continued in the same words ; and the interpretation which we now give it, is that which has been given it from the beginning. The Judge can not properly express an opinion, whether a fact pertinent to the issue, is sufficiently or insufficiently proved. Many questions of fact, especially inquiries into mental capacity, and frauds, require as much experience, science, and acumen, as the abstruser questions of law; and yet their decision is left by law in the hands of the compara- tively inexperienced and unlearned. This, we suppose, has been to maintain undisturbed and inviolate, that popu- lar arbiter of rights, the trial by jury, which was, without some such provision, constantly in danger, from the will of the Judge acting upon men mostly passive in their natures, and disposed to shift off responsibility; and in danger also, from the ever-active principle, that power is always steal- ing from the many to the few. We impute no intentional wrong to the Judge who tried this case below. The error is one of those casualties, which may happen to the most circumspect in the progress of a trial on the circuit. When once committed, however, it was irrevocable, and the pris- iner was entitled to have his case tried by another jury. ********** This opinion is to be certified to the Superior Court, to the end, that it may take further proceedings according to law. COMMONWEALTH V. BARRY. Supreme Judicial Court of Massachusetts. 1864. 9 Allen, 276. Indictment for keeping and maintaining a tenement in School Street in Boston, used for the illegal sale and il- Sec. 1] Instructing the Jury 401 legal keeping for sale of intoxicating liquors. At the trial in tlie superior court, before Vose, J., all the witnesses were policemen, two of them being officers whose daily beat included School Street. The defendant's coun- sel, in his argument to the jury, commented with some se- verity upon their testimony, as the testimony of policemen. The judge in his charge told the jury that the same rules were applicable to policemen as to all other witnesses, in determining the credit to be given to their testimony; that in very many of the cases which had been tried at the pres- ent term of the court policemen had been the principal wit- nesses, and he thought the jury would agree with him in the opinion that in all these cases they had manifested great in- telligence, and testified with apparent candor and impar- tiality. The jury returned a verdict of guilty, and the defendant alleged exceptions. BiGELow, C. J. Upon mature consideration we have come to the conclusion that we cannot give our sanction to the instructions under which this case was submitted to the jury. Viewed in either of the two aspects of which they are susceptible, it appears to us that they cannot be sup- ported, consistently with the rules of law. If they are to be regarded only as an expression of opin- ion by the court concerning the credibility of certain wit- nesses who had testified in other cases than the one on trial, they were clearly of a nature to mislead the jury. The implication from the language of the court is direct and positive, that the jury might properly infer that the wit- nesses in support of this prosecution were entitled to credit for the reason that other persons engaged in the same occu- imtion had testified with candor and impartiality in the trial of other cases. The objection to this instruction is twofold. In the first place, it authorized the jury to draw an inference which was not a legitimate deduction from the premises. It by no means follows naturally or logical- ly that witnesses employed in the same or similar occupa- tions will testify on all occasions with equal fairness and impartiality. In the next place, the instructions gave the jury to understand that they might travel beyond the case as proved before them, to seek for corroboration and sup- port of the testimony adduced in behalf of the prosecution T. p.— 26 402 Tkial Practice [Chap. 11 in facts which not only were not proved, but which could not have been properly offered in evidence by the govern- ment. Nor is this the whole extent of the objection. The facts thus introduced into the case were submitted to the jury with a distinct expression of opinion by the court as to the effect to be given to them, at a stage of the trial when the defendant could not controvert them, and without any opportunity being given to his counsel to address the jury on the weight which was due to them. Such a course of proceeding is certainly unusual, and, as we think, does not accord with the due and orderly conduct of a criminal trial. But in another aspect it seems to us that the instruc- tions were objectionable. The credibility of the witnesses who had testified in support of the charge in the indictment was a fact which it was the exclusive province of the jury to determine. As essentially affecting their bias, and the credit to be given to their testimony, their occupation and connection with the origin of the prosecution against the defendant might be important elements, and, within proper limits, proper subjects of comment by counsel, and of con- sideration by the jury. If the instructions are to be con- strued, as we think they fairly may be, as the expression of the opinion of the court on the degree of credit to whicti these witnesses were entitled, the court exceeded its author- ity in stating such opinion to the jury. By Gen. Sts. c. 172, Sec. 15, the duty of charging the jury in criminal cases is specially enjoined upon the court. By Gen. Sts. c. 115, Sec. 5, which is applicable alike to civil and criminal trials, the rule is prescribed by which courts are to be guided in the performance of this duty. It must be admitted that this provision of the statute is not expressed in terms which are free from ambiguity. But although there is a seeming repugnancy in the two branches of the section, we think that they are susceptible of a reasonable interpretation, which will give full force and effect to both of them, and at the same time carry out what seems to have been the manifest purpose of the legislature. It is clear beyond controversy, that the first clause contains a distinct and ab- solute prohibition, that the "courts shall not charge juries with respect to matters of fact." To reconcile this with the clause that follows, which provides that the courts "may state the testimony and the law," the prohibition Sec. 1] Insteucting the Juky 403 must be regarded as a restraint only on tlie expression of an opinion b}^ the court on the question whether a particu- lar fact or series of facts involved in the issue of a case is or is not established by the evidence. In other words, it is to be construed so as to prevent courts from interfering with the province of juries by anj^ statement of their own judgment or conclusion upon matters of fact. This con- struction effectually accomplishes the great object of guarding against any bias or undue influence which might be created in the minds of jurors if the weight of the opin- ion of the court should be permitted to be thrown into the scale in deciding upon issues of fact. But further than this the legislature did not intend to go. The statute was not designed to deprive the court of all the power to deal with the facts proved. On the contrary, the last clause of the section very clearly contemplates that the duty of the court may not be fully discharged by a mere statement of the law. By providing that the court may also state the testimony, the manifest purpose of the legislature was to recognize and affirm the power and authority of the court, to be exercised according to its discretion, to sum up the evidence, to state its legal effect and bearing on the issues, and to indicate its proper application under the rules of law. In the case at bar, the court exceeded the limit prescribed by the statute. If the language used by the court was in- tended to be applicable to the witnesses who had testified in behalf of the prosecution, it was an expression of opinion as to their credibility. As this was a matter of fact, within the exclusive province of the jury to determine, such expression of opinion went beyond a ''statement of the testimony," and trenched on prohibited ground, being a charge to the jury "with respect to matters of fact." We have already said that the occupation of a witness, in connection with other facts, may have a material bearing on the credibility of his testimony in a particular case. But we feel bound to add that we do not intend to express an opinion on the question whether in the case at bar there was any valid ground for calling in question the veracity or candor of the witnesses whom the defendant's counsel sought to impeach. No such point seems to have been raised at the trial, nor are the facts bearing upon it stated 404 Tkial Pkactice [Chap. 11 in the exceptions. The inference from the course of the trial, especially from the line of argument which the coun- sel for the defendant was permitted to take, and from the instructions to the jury, is, that the ground on which the impeachment of the witnesses was placed was deemed to have been proper matter for the consideration of the jury. Exceptions sustained.^ 1 Summing up evidence. The judge may sum up the evidence without in- fringing the rule against commenting upon the weight jf the evidence, and in so doing he may properly ' ' state, analyze, compare and explain the evi- dence. " Hamlin v. Treat, (1895) 87 Me. 311, 32 Atl. 909. Some state con- stitutions couple with the prohibition against charging on the facts an ex- press permission for the judge to state the evidence. Thus, the constitution of Tennessee, Art. 6, Sec. 9, provides: "Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law. ' ' The California constitution has identically the same provision. Art. VI, Sec, 19. Section 2. Scope of Insteuctions. (a) Relation to Pleadings and Evidence. JACKSONVILLE, TAMPA & KEY WEST RAILWAY COMPANY V. NEFP. Supreme Court of Florida. 1891. 28 Florida, 373. Mabry, J. : The appellee, Neff, in April, 1887, sued the appel- lant railway company in the Circuit Court for Clay County, Florida, for $5,000 damages for the destruction of certain property of appellee by fire, caused by the alleged es-cape of sparks from a locomotive engine under the con- trol of appellant * * * Tlie third point calls in question the correctness of the second charge given for plaintiff below. This charge is ns follows: "That if the jury believe from the evidence that without fault or neglect of the plaintiff, defendant's employes negligently permitted a lot of loose dry hay to remain for some time prior to the 18th of March, A. D, Sec. 2] Instructing the Jury 405 1887, exposed in a box car near plaintiff's property whicli was set on fire on said day, and that tlie employes of said defendant railroad comiDany negligently permitted said fire to be communicated from said car so left exposed by said employes to plaintiff's said property, and to burn and de- stroy the same, the verdict should be for the plaintiff." This charge was excepted to by defendant below. The ob- jection urged by appellant to this charge is, that "it has no relation whatever to the issues raised by the pleadings, and the jury were thereby instructed that if a loss resulted to the plaintiff by reason of a cause of action of which no mention was made in the pleadings, they should find for the plaintiff."* * * The declaration contains but one count, and the gist of the action as therein stated is, that the defendant company so neglected and unskill fully managed its engine and the fire and the burning matter therein contained, and said en- gine was so insufficiently and improperly constructed, that sparks from said fire and portions of said burning matter escaped and flew from said engine to and upon a building in which plaintift's property was situated, whereby said building and property were burned and totally destroyed. Issue was joined upon all the pleas of defendant. The ob- ject of pleading is to ascertain with certainty and precision, the matters of fact which are affirmed on the one hand and denied on the other, and which are mutually proposed and accepted by the parties for decision. It is clear that plain- tiff's cause of action is based upon the negligent construc- tion or negligent use of defendant's locomotive engine, whereby sparks and burning matter escaped from it and caused the fire. The question submitted by the pleadings is whether or not defendant caused the fire by reason of a defective engine or the unskillful management of the en- gine. The negligence of defendant submitted to the jury for investigation by the charge under consideration con- sists not in causing the fire, but in allowing loose dry hay to remain in a box near plaintiff's property, and in negli- gently permitting fire to be communicated from said car to plaintiff's property. The origin of the fire is lost sight of in this charge, and under it the jury were authorized to find for the plaintiff although the defendant did not in any way cause the fire, provided they believed that it neg- 406 Trial Practice [Chap. 11 ligently permitted loose dry hay to remain in the car near plaintiff's property, and negligently permitted the fire to be communicated from said car to plaintiff's property and destroy it. If it be conceded that this charge embodies a good cause of action against the defendant, it is evident that it is not contained within the issues made by the plead- ings. Appellee contends, however, that his right to re- cover is co-extensive with the case made by the evidence introduced on the trial, and the trial judge was authorized to go outside of the issues joined between the parties and instruct the jury to find for the plaintiff to the extent jus- tified by the evidence. Respectable authorities hold that the pleadings are merely to notify the opposite party of the ground of action or defense, and where a party fails to object to evidence because it is not relevant to the issues, the court is justified in instructing the jury upon the whole evidence, and is not confined in his instructions to the issues made in the pleadings. The correct view, we think, is that the instructions must be confined to the issues made by the pleadings; and this rule has been recognized in our state. In the case of Porter v. Ferguson, 4 Fla., 102, an action of assumpsit was instituted by Ferguson against Porter, based upon' a verbal agreement by which the former undertook to make and send to the latter, who was a merchant at Key AVest, arrowroot to be shipped thence to New Orleans, and Porter promised to receive the arrowroot and ship it to New Orleans for sale in that market, and to account to Ferguson for the proceeds. The declaration further averred that in pursuance of such agreement and under- standing, Ferguson shipped to Porter 1725 pounds of ar- rowroot worth $140, which was received by him, but con- trary to said agreement and understanding he shipped it ta Charleston and it got lost at sea, by reason whereof the defendant became liable to pay plaintiff the value of said arrowroot. The plea was non assumpsit. The following instruction was given for the plaintiff on the trial of that cause, viz.: ''If the jury believe from the testimony that it was the usage of trade for consignees for shijmient at Key West to insure on goods of others sent to tliem for sliipment, without instructions as to insurance, and that J. Y. Porter sliippod the arrowroot in question without in- suring it, and it was lost at sea, lie was liable for the loss, I Sec. 2] Trial Peactice . 407 and they ought to find for plaintiff." In spealdng of this charge this conrt says: "Now, what has this instruction to do with the issue which the jury were sworn to try? The instruction directs the attention of the jury to a breach of the contract or agreement, when the breach is not put in issue by any plea — a breach, too, which is not alleged in the declaration. The breach alleged is for shipping to Char- leston, when he was bound by his undertaking to ship to New Orleans, whereby the goods were lost — the deviation is the gist of the breach ; the negligence or omission to ef- fect an insurance on the goods against the perils of the sea, which, by the usage of trade, he should have done is not charged. Whether the instruction is or is not correct in point of law, is here not necessary to be decided — it was not in issue, and therefore, irrelevant, and should not have been given; and if it tended to mislead the jury, and withdraw their minds from the consideration of the true issue it is erroneous. In the case of McKay v. Friehele, 8 Fla., 21, the court in speaking of the relevancy of instructions to the issues says: "In order to determine the correctness and appropriateness of an instruction which may be given to the jury, resort must always be had to the evidence upon which the instruction is based. That evidence, whether parol or documentary, is to be found only in the 'bill of exceptions, ' whose peculiar office it is to give the incidents occurring in the progress of the trial, from the joining of the issue to the rendition of the verdict. It may be laid down as a general rule, subject to but one exception, that wherever the error complained of is predicated upon the instructions of the court below, the whole evidence, or, at least, so much thereof as forms the basis of the instruction, must appear in the 'bill of exceptions' accompanying the record of the cause. The exception alluded to is where the instruction is manifestly without the limits of the issue joined between the parties, and is likely to mislead the jury in making up their verdict. In such case, no reference to the evidence can be of any avail in determining the cor- rectness of the instructions, and the court may pronounce upon it even in the absence of the bill of exceptions, pro- vided it be properly attested bv the signature of the judge below." * * * ' The judge who presided at the trial of this case pre- 408 Trial Practice [Chap. 11 sented by instructions to the jury defendant's liability un- der the issues raised by the pleadings, but the second in- struction presented a view of the case not embraced in the issues and was calculated to mislead the jury in their ver- dict. We cannot say that the jury did not base their find- ings against defendant under this instruction. The view of this charge, that defendant is liable if its employes neg- ligently permitted fire to escape from the car to plaintiff's property, would call for further consideration, even if the charge were not obnoxious to the rule above pointed out. Our decision is based, however, upon the view that the in- struction under consideration was without the limit of the issues joined between the parties and was likely to mislead the jury in making up their verdict, and was for this reason erroneous. For the error in giving the second charge in behalf of the plaintiff below, the judgment is reversed, and a new trial awarded.^ 1 To the same effect see Knnst v. City of Grafton (1910) 67 W. Va. 20, 67 S. E. 74; W. L. Moodey & Co. v. Eowland (1907) 100 Tex. 363, 99 S. W. 1112; Latourette v. Meldrum (1907) 49 Ore. 397, 90 Pac. 503; Goldman v. New York, N. H. & H. E. K. Co. (1910) 83 Conn. 59, 75 Atl. 148. HANSON V. KLINE. Supreme Court of Iowa. 1907, 136 Iowa, 101. Action at law to recover damages arising out of false rep- resentations in connection with an exchange of properties. The defendants, additional to Kline, are W. E. Gray and J. E. Gray, and at the time in question all the parties lived in Rockwell Oity, Calhoun county. The petition alleges that in July, 1904. plaintiff was the owner of a stock of mer- chandise in Rockwell City, valued by him at $2,000, which ho was induced by the defendants Gray to trade to the de- fendant Kline for a farm of one hundred and sixty acres situated in Hayes county, Nebraska. The specific aver- Sec. 2] Instructing the Jury 409 nent is that defendants entered into a conspiracy to bring about such trade by false representations respecting the Nebraska farm, and that, pursuant thereto, the farm was falsely represented, and the trade thereby accomplished, greatly to his damage. The defendants answered separ- ately, and each denied the charge of fraud as contained in the petition. On the trial plaintiff had a verdict as against all the defendants jointly, on which judgment was entered, and the defendants appeal. — Reversed and remanded. Bishop, J. The theory of the petition was that the rep- resentations claimed to have been made by defendants were made as from personal knowledge — such is the dis- tinct allegation. In a request presented, the defendant asked that the jury be instruced that if the false representa- tions were made as alleged, but that it was stated to plain- tiff at the time that they were made on information derived from others, and not on personal knowledge, then plaintiff could not recover. The request was refused, and the jury was instructed strictly on the theory of the petition ; that is, they were told that if defendants in representing the condi- tion of the farm did so as of their own personal knowledge, and so stated to plaintiff, and the representation was false, and plaintiff relied on such representation to his damage, the defendant would be liable. And, contra, if the rep- resentations were not so made as alleged, then plaintiff could not recover. The jury was not otherwise instructed on the subject. We think here was error. Should it be conceded that the instruction given correctly stated the law applicable to the case, the defendants were entitled to a ver- dict. This is so because there was no evidence on which to base a finding to the contrary, but, as we have seen, plaintiff himself declares that in making the representa- tions alleged defendants expressly disavowed any and all personal knowledge. Hence the proof did not meet the issue. Accordingly, we must go ba^ck to the query: Did the instruction correctly state the law applicable to the case? If we are to judge alone from the issues made in pleading, the answer must be in the afhrmative. If we are to judge from the issues as developed on the trial, then the call for a negative answer is imperative. We say issues developed on the trial, because it is plain that plaintiff did not go into the trial relying upon representations made as 410 Trial Peactice [Chap. 11 of the personal knowledge of the defendants. At the very outset, he testified that defendants denied having any per- sonal knowledge. And it is evident that from beginning to end the defendants did not consider that they were called npon to face the strict issue as made by the pleadings. Plaintiff did rely on representations professedly made on information and belief, and defendants trained their forces accordingly. This being true, there arises the further question whether or not it was competent for the court, and its duty, to disregard the strict issue as made in the plead- ings, and instruct according as the parties had made the is- sue on the trial. That it was competent for the court to do so we have no doubt. Beach v. Wakefield, 107 Iowa, 567; Fenner v. Crips, 109 Iowa, 455. So, also, we think it was its duty to do so, and, in view, of the case presented by the record, that failure amounted to error. Under our system, it is left for the parties to frame the issues, and, if they proceed without objection — and such is the case here — to the trial of an issue not presented by the plead- ings, it amounts to a consent to try such issue. The issue is then rightfully in the case. Mitchell v. Joyce, 76 Iowa, 449; Bank v. Boesch, 90 Iowa, 47; Beach v. Wakefield, supra; Erickson v. Fisher, 51 Minn. 300 (53 N. W. 638). And, the issue being rightfully in the case, the court must instruct upon it. Potter v. Railway, 46 Iowa, 399; Hill v. Aultmann, 68 Iowa, 630. We must presume that the court was fully advised of the shift in the issue. Attention to the course of the trial as it proceeded was its duty. More- over, there was before it the request for instruction pre- sented by defendants, and, while not adequately stating the law it was sufficient to arrest attention and call for a proper instruction on the subject. Kinyon v. Railway, 118 Iowa, 349. We may add that as the issue made by the pleadings respecting the subject-matter under discussion was, in ef- fect, withdrawn by the parties, such issue should not in any event have been presented to the jury. Lumber Co. v. Raymond, 76 Iowa, 225; Erickson v. Barber, 83 Iowa, 367. For the reasons pointed out in this opinion, the judgment api)eal('d from must be, and it is, reversed, and the cause is ordered remanded for a new trial.^ 1 To the Rame cfFort see Mitchell v. Samford (1910) 149 Mo. App. 72, 130 S. W. 99; Johnson v. Caughren (1909) 55 Wash. 125, 104 Pac. 170; Central Sec. 2] Trial Practice 411 R. R. & Banking Co. v. Attaway (1892) 90 Ga. 656, 16 S. E. 956; Brusie v. Peck Bros. & Co. (1892) 135 N. Y. 622, 32 N. E. 76; Flanders v. Cottrell (1875) 36 Wis. 564. In Schwaninger v. McNeeley & Co. (1906) 44 Wash. 447, 87 Pac. 514, the court said: "When evidence is received without objection upon any particu- lar ground not covered by the complaint, the court may assume that the complaint is as broad as the evidence when charging the jury, and the com- plaint will be deemed amended to conform with the evidence and charge, since the amendment could have been made as of course at the trial. ' ' But in Budd v. Hoffheimer (1873) 52 Mo. 297, it was held that if a party wishes an instruction upon a matter duly proved but not alleged in his pleading, he must first ask leave to amend his pleading to conform with the proof, and unless he does so such an instruction is properly refused. OWENSBORO WAGON COMPANY V. BOLING. Court of Appeals of Kentucky. 1908, 32 Kentucky Law Reporter, 816. NUNN, J. * * * The petition was sufficient and stated a cause of action. It was alleged that appellee lost his hand by the negligence of appellant's servants superior in author- ity to him, and particularlized the acts and omissions which constituted the negligence — i. e., that he was raised on a farm, was only 18 years old and had never worked with machinery before he was employed by appellant, of which fa'Ct he informed appellant's superintendent at the time he employed him ; that the rip saw, at which he was placed to perform labor, was defectively constructed in the fasten- ings and bolts that held it ; that it was left unguarded, mth nothing to keep his hand from coming in contact with it; and that defendant failed to furnish him a reasonably safe place in which to perform his labor. Appellant filed an answer, controverting all the affirmative matter contained in the petition, and pleaded contributory negligence on the part of appellee. The testimony showed that appellee was, at the time of his emplojTnent by appellant, only 18 years of age, and had had no experience in working with machinery, and that he informed appellant's superintendent of this fact ; that he was put to off-bearing lumber from a rip saw, and after he had worked 8 days, but not consecutively, he was directed by the foreman, who had authority to do so, 412 Tkial Practice [Chap. 11 to remove the belt, by the use of a lever, from the pulley which operated the saw to a loose pulley called the "idler," to raise the table, under and through which the saw re- volved, and then to remove two taps, or screws, which were situated about 4 and 6 inches from the saw, for the purpose of oiling the machine. In attempting to comply with the directions of the foreman and at the moment he undertook to remove the oil caps, for some reason not explained, the saw cut off his hand. ********** There was no testimony introduced tending to show that this rip saw or its attachments were defective or out of re- pair. The only thing that tended in the least to show this was a statement by appellee that the tap, or screw, failed to move, and if it did it is more than probable it was because of his inexperience, especially when all the evidence shows that it was in proper repair and condition. There was no testimony introduced by appellee showing that the saw was improperly guarded. Appellant's testimony showed that it could not have been guarded or made safer than it was. There was no proof that the place at which appellee worked could have been made safe and still have operated the saws. The building in which the saws were located was a large one, and contained many saws of different kinds, and a number of people were working therein. There was no testimony introduced showing or tending to show any negligence or dereliction of duty upon the part of appellant, other than failing to warn and instruct appellee with refer- ence to the dangers incident to his duties and how to avoid same. Yet the court gave eight instructions in which he sub- mitted to the jury all, or about all, the different acts of negligence alleged in the petition. This was calculated to r-onfuse and mislead the jury. As stated, there was but one issue made by the testimony, and the court should have sub- mitted to the jury that issue only. * * * * * * * # The case is reversed, and remanded for further proceedings consistent herewith. Sec. 2] Instkucting the Juby il3 DOUDA V. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY. Supreme Court of Iowa. 1909. 141 Iowa, 82. Ladd, J. — Plaintiff's employment at the time of his injury was that of eieaning out clinkers from the fire boxes of de- fendant's engines in its roundhouse at Cedar Rapids. The usual method of performing this work was to drop the "dump" by means of a bar from outside the wheels of the engine while it was standing over the ash pit, and to re- place the dumping mechanism in the same way. But in this particular instance the plaintiff thought it necessary to crawl under the engine into the ash pit in order to close the dump. He advised the "hostler" in charge of the engine, who was in the engineer's cab, of his intention to go under, having had the engine moved to what he considered a proper place for that purpose, and then proceeded to crawl, feet first, through the narrow opening between the drive wheels and above the side bar or connecting rod. When his body was part way through, the engine moved backwards, and the consequent rising of the side bar pinched or crushed the plaintiff causing the injuries of which he complains. There was a question under the evidence as to whether plaintiff was not guilty of contributory negligence in attempting to go under the engine at all or in attempting to go under it in the manner above described, but there is no complaint as to the instructions with reference to contributory negli- gence, and that feature of the case may be passed without further notice. The defendant is alleged to have been negligent in two respects: (1) in that its hostler in charge of the engine, with knowledge that plaintiff was under it, without warn- ing him started, moved, or permitted the engine to move; and (2) the engine was unsafe and defective, in that it would start forward without the lever being moved or steam being turned on or any action of the person in charge, and defendant, knowing this and plaintiff's posi- tion, took no precaution to prevent this, but allowed the engine to move, and thereby injure him. The evidence 414 Tkial Peacticb [Chap. 11 failed to point out any defect in tlie engine, or that it had ever started before without steam being turned on, or that defendant had any reason to anticipate such an occur- rence. Nevertheless the jury was instructed that if they found ''that said locomotive was unsafe and defective, in that it would start after being stopped without moving the lever therefor or turning on the steam for the purpose of starting it, and that it would with the knowledge of de- fendant or its emi3loyes in charge thereof start without any action on the part of those in charge thereof, and the de- fendant took no precaution or safeguards to prevent its said movements, and that said locomotive was by reason thereof and the careless and negligent acts of the person in charge thereof, without notice or warning or signal to the plaintiff, started and permitted to run upon the body of plaintiff while under said engine and doing said work, and tlmt by reason thereof plaintiff was injured," then, if such injuries were without fault of plaintiff contributing there- to, plaintiff was entitled to recover. Even though this in- struction be conceded to be correct in the abstract, the evi- dence was not such as to authorize it. There was nothing in the record to charge the employees operating the engine with knowledge of any defect therein or to indicate any information concerning it on defendant's part. Even if the engine be conceded to have been defective, this was not shown to have been apparent or discoverable on reasonable inspection, nor does it appear from the evidence that the defect had existed prior to that night, or that defendant was negligent in failing to discover and repair it or in using it in the condition it was in. So that, even though it might be inferred from the moving of this locomotive engine with- out the application of steam or other agency, if it did so move, that it was then out of repair, there is no basis in the evidence on which to found a charge of negligence against the defendant, unless the doctrine of res ipsa loqui- tur be applied, and this under the peculiar facts of this case was precluded by a previous instruction, "that the accident occurred will not of itself show negligence on the part of defendant, but you should determine the ques- tion (defendant's negligence) from all the facts and cir- cumstances before you." Nor does the instruction first quoted proceed on the theory that such doctrine is applic- Sec. 2] Instructing the Juey 415 able, but exacts specific findings from tlie evidence constitut- ing the elements of negligence alleged. ***** For the reasons pointed out, the judgment of the trial court is reversed. BUYKEN V. LEWIS CONSTRUCTION COMPANY. Supreme Court of Washington. 1909. 51 Washington, 627. RuDKiN, C. J. — This was an action in trespass to re- cover damages for sluicing down and removing earth from a certain lot in the city of Seattle owned by the plaintiffs. The defendant admitted the commission of the acts com- plained of, though not in manner and form as alleged, and pleaded by way of justification that the sluicing was done pursuant to a verbal contract between the plaintiffs and the defendant which was afterward reduced to writing and signed by the defendant, though not by the plaintiffs. The reply denied the plea of justification as set forth in the an- swer. The cause was submitted to a jury under instruc- tions from the court, and a verdict in favor of the plain- tiffs in the sum of $1,500 was returned. From a judgment on this verdict, the defendant has appealed. The principal assignment of error arises out of the following charge of the court, which was duly excepted to : *'If you find from the evidence that there was no such contract as alleged by the defendant in its affirmative de- fense, which is exhibit No. 2 in the case, but do find from the evidence that the acts performed by the defendant upon the said premises of the plaintiffs were performed with the knowledge and consent of the plaintiffs, then I instruct you that the plaintiffs cannot recover for such acts even though in your opinion the plaintiffs have been damaged thereby, unless you find froyn the evidence that defendant negligently or carelessly performed the acts and hy reason of such negligence and careless performance the plaintiffs had been damaged." 416 Trial Practice [Chap. 11 The latter part of this instruction is clearly without the issues presented by the pleadings. The action was prose- cuted by the respondents solely on the theory that the acts complained of were committed without their knowledge or consent and against their will, and all their testimony was directed toward establishing the allegations of the com- plaint and proving the amount of the resultant damages. The testimony on the part of the appellant, on the other hand, was in support of its affirmative defense, and in re- duction of the claim for damages. The question of negli- gence in the prosecution of the work was not an issue in the case under the pleadings, nor was it made an issue at any stage of the trial. There was no claim that any particular act committed by the appellant was negligently or carelessly committed, nor was there any attempt to segregate damages resulting from negligence from dam- ages resulting from other and independent causes. The instruction was therefore erroneous, and calls for a re- versal of the judgment unless we are able to say that the error was not prejudicial, and this we cannot do. There was a direct conflict in the testimony, and the right of re- covery was questionable at least. The jury may have found that the acts committed by the appellant were so com- mitted with the knowledge and consent of the respondents, but that damages resulted from the performance of the work in a manner the jury deemed negligent. Under such circumstances, it is incumbent on this court to order a new trial. Bernliard v. Reeves, 6 Wash. 424, 33 Pac. 873; Comegys v. American Lumber Co., 8 Wash. 661, 36 Pac. ]087;"irir&?/ v. Rainier-Grand Hotel Co., 28 Wash. 705, 69 Pac. 378. In Comegys v. American Lumber Co., supra, the court said: ''This instruction, although a correct statement of the law in a proper case, was not pertinent to the issues to be determined by the jury. The plaintiff in his complaint had htatod the facts constituting his cause of action in ac- cordance with the requirements of the code, and the cause of action stated was based upon an express contract, and could not be proved by showing that the defendant was guilty of a tort. The question as to whether the defendant had converted the property of the plaintiff to its own use, and was, therefore, liable for its value, was not in issue, Sec. 2] Instructing the Juey 41? and should not have been submitted to the jury. It is not in accordance with either the letter or spirit of the code to permit a plaintiff to allege one state of facts in his complaint and to recover by proof of an entirely different state of facts at the trial." The appellant further contends that the court erred in ruling on the competency of one of the witnesses, and in refusing to grant a new trial for insufficiency of the evi- dence to justify the verdict. The former of these assign- ments is without merit and the latter is obviated by the reversal of the judgment on other grounds. For error in the instructions of the court, the judgment is reversed and a new trial ordered. Chadwick^ Fullerton, Mount, and Crow, J. J., concur. KAERER V. CITY OF DETROIT. Supreme Court of Michigan. 1905. 142 Michigan, 331. [The plaintiff was injured by running his automobile into an excavation in the street at the intersection of Mack avenue and Grand Boulevard, while he was driving north up the boulevard at night. He saw a red light, but think- ing it was in the west curb of the boulevard he tried to pass to the east of it, putting on power for the purpose and proceeding at the rate of 8 or 10 miles an hour. In fact the light was at the west end of a trench which extended from the east almost across the boulevard. When the plaintiff discovered the trench he was going too fast to stop his car, which went into the excavation.]^ Hooker, j, *********** The court also said to the jury: "The plaintiff in this case desires me to say that the boulevard is used especially for fast riding and for the use of automobiles, and I think, gentlemen of the jury, you may take that in consideration, if your own experience satisfies you of that. I don't remember what the ordi- 1 Statement of facts by the editor. T. P.— 27 418 Teial PkacticE [Chap. 11 nance is relative to that particular part of the street, but doubtless some of you do, and you may have your own ex- perience with reference to the using of the boulevard for that purpose; but I think the whole question, gentlemen, as to the degree of care, becomes a question for you rather than for the court." This was in effect allowing the personal knowledge of the jurors to have the weight of evidence in the case. It con- templated not only their determination as to the use of the boulevard from their personal observation, but also the character of the ordinances relating thereto. This was erroneous. The judgment is reversed, and a new trial ordered. MooEE, C. J., and Carpentek and Montgomery, J. J., concurred with Hooker, J. (b) Emphasis and Disregard of Portions of Evidence. TRUSTEES OF SCHOOLS V. YOCH. Appellate Court of Illinois. 1908. 133 Illinois Appellate, 32. Mr. Presiding Justice Creighton delivered the opinion of the court. This was an action in case, in the Circuit Court of St. Clair county, by appellants against appellees, to recover damages alleged to have resulted to appellants' school house and premises by reason of the failure of appellees to leave proper and sufficient support for the "superin- cumbent soil" upon which tlie school house stood. Trial by jury. Verdict in favor of appellees. Judgment in favor of appellees in bar of action and for costs, and ordering execution to issue therefor. The court gave to the jury the following erroneous in- structions on behalf of appellee: ''The court instructs the jury that if you believe, from Sec. 2] Instructing the Jury 419 the evidence, that the pillars in said mine and the roof in said mine are intact and in good condition under the plain- tiffs' premises and for a distance of three hundred feet beyond and adjacent to plaintiffs' premises, then yot! have a right to take this fact into consideration in determining the question whether the defendants have caused any sub- sidence of the surface of plaintiffs' land, as alleged in plaintiffs' declaration, or one count thereof, if you believe from the evidence there has been any subsidence in such surface. ********** )f The instruction first above quoted contains all the vices of that class of instructions so often condemned by the courts of this State. It singles out particular facts from the other facts in evidence and specially directs the atten- tion of the jury to them. This instruction bore upon a close and controverted issue of fact in the case and it was equally as important in an honest effort to arrive at a just verdict that the jury should take each and every other pertinent fact in evidence ''into consideration in determin- ing the question whether the defendants have caused any subsidence of the surface of plaintiffs' land," as it was to take the facts particularly singled out in this instruc- tion. All the evidence admitted bearing upon that issue, was admitted for the consideration of the jury, and it was error to make any detached portion of it or to make any fact which any detached portion of it might tend to prove, more prominent than any other part of the evidence, or other pertinent fact. This instruction gave undue prom- inence to the facts specified, and magnified their import- ance, and tended to divert the minds of the jury from the main issue. Counsel suggest in support of this instruction that: ''While it is a well-settled and long-established rule that an instruction should not single out and call attention of the jury to one alleged fact more than another, yet this rule is subject to another one, that each party is entitled to an instruction h}T)othetically outlining the evidence and state of the case upon which he relies for obtaining a ver- dict, and directing the jury to find for the party in whose favor they find the facts constituting the cause of action or the defense," and cite; Chicago City Ry. Co. v. Math, 420 Trial Practice [Chap. 11 114 111. App. 353, and West Chicago Street Ry. Co. v. Dougherty, 170 111. 379. The instruction in the case at bar is not of the class of instructions discussed in either of the cases cited. It does not hypothetically outline either the evidence or the facts of a full defense and direct the jury to find in favor of the defendants in case they find the hypothesis proven by the evidence, as in Chicago City Ry. Co. V. Math, supra. What it does is to unduly emphasize one feature of a supposed defense. ******** For and on account of the errors in this opinion noted, the judgment of the Circuit Court is reversed and the cause remanded. Reversed and remanded. TAUBERT V. TAUBERT. Supreme Court of Minnesota. 1908. 103 Minnesota, 247. Start, C. J. This is an action brought by a young man seventeen years old, by his guardian, against his mother, to recover damages for personal injuries which he claims to have sus- tained while in her employ by reason of her negligence. Verdict for the plaintiff for $5,000. The defendant appeals from an order of the district court of the county of Henne- pin denying her motion for judgment notwithstanding the verdict or for a new trial. The record discloses the fact that the action was defended by an indemnity company, wliich had issued its policy to the defendant. The assignments of error raise two general questions: (a) Was the defendant entitled to a directed verdict in her favor? (b) If not, was she entitled to a new trial for errors in the instructions of the trial court to the jury? 2. Tliis brings us to the question whether the defend- ant is entitled to a new trial on account of alleged errors in the charge of the court to the jury. The defendant urges Sec. 2] Instkucting the Juey 421 several errors in the instructions; but we find it neces- sary to consider only one of them. The court charged the jury that: "If you believe the plaintiff's testimony, believe that it is true, and believe that it measures up to the law as I have defined it to you, he would be entitled to recover, although every other wit- ness in the case had lied." It is claimed that this was prejudicial error. It was certainly error, for the reason that it violated the well-settled rule that it is error for a trial court in its instructions to a jury to single out the testimony of a designated witness and lay particular stress upon it, in cases where the evidence is contradictory. 11 Enc. PI. & Pr. 185; State v. Yates, 99 Minn. 461, 109 N. VV. 1070. See Wilkinson v. City of Crookston, 75 Minn. 184, 77 N. W. 797, and Harriott v. Holmes, 77 Minn. 215, 79 N. W. 1003. The reason for the rule is obvious. Each party to an action is entitled to have all the evidence relevant to the issues considered fairly by the jury, and this right is seriously prejudiced, if not defeated, when the court singles out and isolates the testimony of a particular party or wit- ness and gives to it undue importance. It is, however, urged by the plaintiff that the instruc- tion, even if erroneous, was not prejudicial, when read in connection with the entire charge. It is true that the jury were instructed that they should give fair consideration to all of the testimony in the case; but the instruction com- plained of was given near the close of the charge, and it was terse, clear, specific, and mandatory in case the jury believed the plaintiff's testimony. It in effect invited the jury to first inquire whether the plaintiff's testimony was true, and directed them that, if they so found, they need not concern themselves about the other testimony in the case, for the reason that if the plaintiff had told the truth he was entitled to recover. Some of the issues of fact in this case were close ones under the evidence, and we are of the opinion that the instruction was not only erroneous, but i3rejudicial, and for this reason a new trial must be granted. So ordered. 422 Trial Practice [Chap. 11 M 'BRIDE V. DES MOINES CITY RAILWAY COMPANY. Supreme Court of Iowa. 1907, 134 Iowa, 398. McLain, C. J. — The facts appearing in the record which are essential to the determination of the questions of law raised on this appeal are as follows: Plaintiff's intestate was a member of the paid fire department of the city of Des Moines, and in response to a fire alarm, about half past ten in the morning, with eight other members of the department, he started on a hose wagon from the fire station on Eighth street going north. One Nagle was the driver of the wagon. Plaintiff's intestate rode in his proper place on a running board or step on the west side of the wagon, facing east and near the rear end. As the wagon approached the crossing of Grand avenue running east and west, on which there was a double track of defendant's railway, the driver saw a car coming from the west, and without checking the speed of the wagon drove on across the track on which the car was approaching. The car struck the rear wheel on the west side of the wagon, and deceased was violently thrown to the pavement and his skull was fractured. From this injury he died within a few hours. 1. After stating very elaborately and in great detail the claims of the parties as to the facts bearing upon the ques- tion of the negligence of the defendant's motorman, in charge of the car which collided with the hose wagon on which plaintiff's intestate was riding, and defining negli- gence, the court instructed the ju^y to consider '^ whether or not the motorman having charge of the running and operating of the car in question was negligent or not in not stopping or checking the speed of the car before the collision with the fire hose wagon occurred"; and he then proceeded to detail a variety of circumstances which the evidence for plaintiff tended to establish, such as the clear- ness and calmness of the day, the ringing of the bell on the hose wagon, and the distance at which such bell might Sec. 2] Instbucting the Juby 423 be beard, the rate of speed of the wagon, etc., none of which were controlling on the question of the motorman's negli- gence. And he concluded the instruction with this sen- tence : ''After carefully considering these facts, if they be facts, and all other facts and circumstances proved on the trial, if you believe from a preponderance of the evidence that the motorman by the use of the means at his command could have stopped the car, or checked the speed thereof, in time to have avoided the accident, and that ho failed to do so, that would be negligence on his part; and his negli- gence, if he was so negligent, would be the negligence of the defendant, and your verdict should be for the plaintiff, unless you find the deceased, B. McBride, was negligent, and that his own negligence contributed to his injury in any degree, in which case you would find for the defendant." The first objection urged to this instruction as a whole is that therein the court called to the attention of the jury the facts which the evidence tended to establish favorable to plaintiff's recovery, and omitted special reference to those relating to defendant 's theory of the accident. This objection we think was well taken. An instruction was asked on behalf of defendant, calling attention to other cir- cumstances which the evidence tended to establish, which should have been considered as bearing on the motorman's negligence, and which were favorable to defendant's con- tentions in the case. It was clearly improper for the court to thus emphasize the circumstances from which negli- gence might be inferred, and omit any reference to cir- cumstances tending to support the opposite inference. Per- haps the court might properly have omitted to catalogue the circumstances which the testimony tended to establish bearing on the question of negligence, and simply have re- ferred in a general way to the facts and circumstances proved on the trial. But in suggesting to the jury that they should take into consideration some of the circum- stances which were favorable to the plaintiff, and omitting reference to others favorable to defendant, he put the case unfairly to the jury. Another serious objection to the instruction is that the portion thereof above set out withdraws from the jury the /424 Trial Peactice [Chap. 11 question whether the motorman was negligent in not stop- ping the car or checking the speed thereof in time to have avoided the accident. There could be no question under the evidence as to the ability of the motorman by the use of the means at his command to stop the car or check the speed thereof in time to have avoided the accident, if he had endeavored to do so a sufficient length of time before the accident occurred, nor was there any doubt that he failed to stop the car or check its speed so as to prevent the result of a collision ; and the court specifically instructs the jury that this ability on the part of the motorman and his failure to act constituted negligence. The real ques- tion in the case was, not whether the motorman could have stopped the car, but whether he was negligent in not doing so; and this was a question for the jury, and not for the court. Had the evidence shown without controversy that the motorman, in the exercise of care, could and should have anticipated the collision long enough beforehand to enable him to stop the car or check its speed so as to avoid the accident, then the instruction might have been correct. But the facts were in dispute. There were circumstances supporting either conclusion, and the question of negli- gence should have been left to the jury. It is no answer to this position to say that in the first part of the instruction the jury were told that they must consider whether or not the motorman was negligent in not stopping or checking the speed of the car. After this gen- eral statement, the court proceeded to enumerate a large number of circumstances indicating that the motorman was negligent, and then told the jury that if these circum- stances were found to be established, and they believed from these and other circumstances proved on the trial that the motorman could have stopped the car, he was negligent. It was not the physical ability of the motor- man to stop or check the speed of the car that was in ques- tion, but his failure to use due care. The instructions as a whole are lengthy and intricate in their statements, and the one now specially under consideration is particularly obscure, and the bald statement at its conclusion that the motorman was negligent if he could have stopped or checked the speed of the car in time to avoid the accident, Sec. 2] Instructing the Jury 425 and failed to do so, may very well have been seized upon by the jury as the solution of the whole difficulty. We reach the conclusion that in the two respects pointed out the instruction was erroneous and misleading. For the errors pointed out in the first division of this opinion, the judgment is reversed. SEABOAED & ROANOKE EAILROAD COMPANY V. JOYNER'S ADM'R. Supreme Court of Appeals of Virginia. 1895. 92 Virginia, 354. Keith, P., delivered the opinion of the court. This is an action of trespass on the case, brought in the Circuit Court of the county of Southampton by Joyner's administrator against the Seaboard and Roanoke Rail- road Company, to recover damages for the death of the plaintiff's intestate, caused, as alleged, by the negligence of the defendant company. * * * Nor is there any error in the refusal of the court to grant the instruction asked for by the plaintiff in error, and set out in Bill of Exceptions No. 3, which is in the follow- ing words: ''The court instructs the jury that if they believe from the evidence that Sinclair Joyner went upon the track of the defendant company without its consent, and placed himself thereon in such a position as to be struck by a train, then the said Joyner was a trespasser, and guilty of such contributory negligence as will prevent a recovery by his administrator in this action, unless the jury further be- lieve that the accident was caused by the willful negli- gence of the company." It will be observed that the hypothetical case upon which this instruction is predicated omits any reference to evi- dence upon the part of both plaintiff and defendant tend- 426 Trial Practice [Chap. 11 ing to prove that before the accident occurred the engineer became aware of the dangerous position of Joyner. The engineer himself admits that, when he had approached to within sixty yards of Joyner, he recognized that the object near the track was not an abandoned tie, as he had sup- posed, but a man, and that as soon as he made the dis- covery he used all proper efforts to avert the catastrophe. The evidence upon the part of the defendant in error tends to prove that when at a much greater distance from the body of the deceased, warning of danger was given, which it was the duty of the engineer to heed, but did not. In any aspect of the case, whether in that presented by the plain- tiff or defendant, here was a most material fact for the consideration of the jury, upon their determination of which, under proper instructions, depends their reaching a just conclusion in this case. There may be a state of facts under which the instruction as presented would be good law, but, upon the evidence set out in this record, its tendency was to mislead the jury, and it was properly re- jected by the court. We think the judgment of the Circuit Court is without error, and should be affirmed. BOYCE V. CHICAGO & ALTON RAILROAD COMPANY. Court of Appeals of Missouri. 1906. 120 Missouri Appeals, 168. Broaddus, p. J. — This is a suit for damages for negli- gence. The facts of the case are as follows. On the even- ing of October 16, 1903, the plaintiff, in company with her danghter-in-law, Mrs. Dorothy Boyce, started to go to the opera house in the town of Odessa. They took the usual route on the south side of Mason street, which crosses the defendant's track at its station. When they got to de- fendant's tracks, they stopped and waited for a passenger Sec. 2] Instructing the Jury 427 train to go by. They also saw a freight train standing on the passing track, which was cut in two to allow the passing of traffic on the street, which crossed the track parallel with the sidewalk, and to enable foot passengers to con- tinue their journey. At this opening of the train they saw a man dressed in overalls with a railroad lantern in his hand, who appeared to be connected with the train, who told them they ''could cross if they wanted to." Where- upon plaintiff started to cross the tracks, at which time the train began to move, which alarmed her, and in order to prevent being crushed between the cars when they came together she got off the sidewalk onto the streetway, trod upon a stone, fell to the ground, but got up in time to get out of the way of the mo\dng cars. She did not dis- cover that she was injured until she got to the opera house, when she says she felt a pain in her ankle, which according to the evidence turned out to be a severe sprain. The defendant asked an instruction, which was refused, to the effect that if the woman, who was with plaintiff, saw that the train was about to move and warned her not to proceed, and that thereafter she persisted in attempting to cross the track ahead of the moving train, the finding should be for defendant. The vice of the instruction is that it singles out particular facts, to the exclusion of other facts, upon which the jury are authorized to find a verdict. This left out of consideration the fact that plaintiff had already started to make the passage and, such being the case, it was a question for the jury to say whether it was safest for her to proceed or turn back. We all know from experi- ence that in case of danger it is sometimes a question whether it is safer to proceed or to retreat. And the law will not place a strict construction upon the acts of a per- son in such a situation because of want of time for deliber- ation, and because the imminence of peril is calculated to confuse the judgment. It was a question for the jury to say whether she acted in a reasonable and prudent manner under the circumstances. [Reversed on other grounds.] 428 Trial Practice [Chap. 11 LIFE INSURANCE COMPANY OP VIRGINIA V. HAIRSTON. Supreme Court of Appeals of Virginia. 1908. 108 Virginia, 832. Error to a judgment of the Circuit Court of the city of Roanoke in an action of assumpsit. Judgment for the plaintiff. Defendant assigns error. Reversed. (Instructions given on motion of the plaintiffs.) *'(1). The court instructs the jury, that although you may believe from the evidence that the deceased was found the evening of his death, having convulsions, and that he continued to have them until he died, and that strychnine was found in his stomach, this alone is not suflficient to prove suicide. The defendant company must go further and show that the deceased intentionally and willfully for the purpose of committing suicide, took strychnine, and this must be shown by such evidence as will exclude every reasonable supposition of accidental death, and unless this is so shown from all the evidence you must find for the plaintiff on the issue of suicide. Keith, P., delivered the opinion of the court. S. W. Hairston, as the next friend of certan infants, re- covered a judgment against the Life Insurance Company of Virginia in the Circuit Court of the city of Roanoke; and upon the petition of the defendant company the record is now before us to review certain rulings of the trial court. On the 6th of February, 1906, the company issued a policy of insurance upon the life of David Peter Willis, the father of the infant plaintiffs, in consideration of the application for said policy, which is made a part thereof, and upon condition that the quarterly annual premium of $20.41 should be paid in advance on the delivery of said policy, which the declaration alleges was duly paid. It is also averred that Willis died on the 23rd of March, 1906, while the policy was in force; that due proof of his death Sec. 2] Instructing the Jury 429 had been furnished the defendant; that all the conditions of the policy had been complied with ; and that, neverthe- less, the defendant refused to pay it. We come now to the instructions given and refused at the trial. Instruction No. 1 given on behalf of the plaintiff is erroneous, in this, that it is predicated upon only a por- tion of the facts shown in evidence, bearing upon the ques- tion of suicide. It is proper for the court to tell the jury what is the law as applied to a hypothetical statement of facts, but that statement must present the case shown in evidence fairly to the jury. The instruction under consid- eration tells the jury, that if the deceased on the evening of his death was found in convulsions which continued until he died, and that strychnine was discovered in his stomach, this alone is not sufficient to prove suicide. Another in- struction then might have been given presenting another part of the evidence, in which the jury might with pro- priety be told that it was insufficient to warrant a con- viction; while, if all the facts had been grouped in one instruction, a wholly different conclusion should have been reached. The tendency of such a method of presenting the facts of a case to the jury is to distract and mislead them, and the court should content itself with giving the jury general principles of law and leaving them to apply those prin- ciples to the facts in evidence before them, or else it should be careful, if it prefers to present a hypothetical case to the jury, to put before the jurors all the facts bearing upon the issue which the evidence proves or tends to prove. ********** The judgment of the circuit court must be reversed, the verdict of the jury set aside, and the case remanded for a trial to be had in accordance with the views herein ex- pressed. Reversed. 430 Trial Practice [Chap. 11 Section. 3. Form of Instructions. MUEPHY V. CENTRAL OF GEOEGIA EAILWAY COMPANY. Supreme Court of Georgia. 1910, 135 Georgia, 194. Beck, J. The dispute between the parties in this case is over a strip of land 20 feet in width and about 1,381 feet in length extending from Glenn street on the north to Shelton street on the south, in the City of Atlanta, the issue being as to whether the same constitutes the eastern edge of a 100-foot right of way of the defendant railroad company or the western third of a 60-foot public road for said distance. The plaintiff, in 1881, acquired title to the lands l.^'ing east of and abutting on the strip of land in dis- pute. He alleged, that at that time this 20-foot strip was a road traveled by the public, and had been so used for more than twenty years; that in 1884, upon petition of citizens, the commissioners of roads and revenues of Ful- ton county passed an order formally opening and accept- ing the same as a public road ; that upon the passing of this order the petitioner and other abutting landowners on the east, desiring that the road in front of their property should be 60 feet in width, dedicated an additional 40-foot strip for that purpose, adjoining said 20-foot road; that the county authorities took charge of and worked the entire 60-foot road ; and that the same has ever since been a pub- lic road. A short time prior to the bringing of this suit the defendant railroad company began changing the grade of the 20-foot strip in question and laying its tracks there- on, and the plaintiff filed suit to enjoin any further inter- ference with the alleged 60-foot road in front of his lands and the use of any portion of same by the defendant as its right of way. It is complained that the court erred in refusing a writ- ten request to give in charge to the jury the following: "Any uninterrupted use by the public generally of lands Sec. 3] Instructing the Juey 431 as a roadway for a period of time extending througli 20 years, accompanied by acceptance by public authorities, gives a prescriptive right to the public to such road or highway." We do not think that the failure of the court to instruct the jury in the language of the request was error. It is manifest that the charge which the court re- fused to give is ambiguous. It is susceptible of two con- structions. First, it might be construed to mean that an uninterrupted use by the public generally of lands as a roadway for a period of time extending through twenty years, accompanied by acceptance by the public authorities extending through that period of time, from the beginning to the end thereof, would give a prescriptive right to the public to such road. Second, it might be construed to mean that an uninterrupted use by the public generally of the strip of land in question as a roadway for a period of time extending through 20 years and acceptance by the public authorities at any time within that 20 years, even at or near the close of that period, would give a prescrip- tive right to the public to such road. These two construc- tions embody very different statements of the law upon the question involved. If the first construction which might have been placed upon the written request was the state- ment of the law desired by counsel offering the request to charge, then the principle embodied in the request was suf- ficiently covered by the charge as given; and as the court might fairly have placed this construction upon the written request, he should not be held to have committed error in refusing to give another charge upon a subject which was already sufficiently covered by his charge as given. If counsel had desired a charge laying down the doctrine as stated in the second eonstruction of the written request, he should have framed it in terms more aptly embodying the principle which he sought to have incorporated in the court's instructions. ********** Judgment affirmed. All the Justices concur. 432 Trial Practice [Chap. 11 PARKER V. NATIONAL MUTUAL BUILDING & LOAN ASSOCIATION. Supreme Court of Appeals of West Virginia. 1904. 55 West Virginia, 134. PoFFENBARGER, President : ********** Bill of exceptions No. 4 contains all the instructions in the record. The argument and references in the bill of ex- ceptions seem to proceed upon the theory of two instruc- tions. "Whether given as one or as two is unimportant. The matter is set out in the bill of exceptions as follows: **The court instructs the jury that where an agent is em- ployed to sell real estate for his principal if the agent was the procuring cause of the sale of said real estate the agent is entitled to his commissions, without regard to the extent of his exertions, and although the contract commenced by said agent was consummated by the principal himself or through the intervention of another; and the court further instructs the jury that where a broker or agent employed to negotiate a sale procures a customer for the sale of the said property on the terms proposed by the owner and the principal takes the further proceedings out of the hands of the broker, and completes the sale himself, the agent is nevertheless entitled to his commissions, and the principal cannot deprive him of his rights to compensation by a dis- charge before the sale is consummated, and this is true where the principal completes the contract with the cus- tomer presented by the broker on different terms from those stipulated to the broker." The legal propositions stated by these instructions are no doubt correct, but they are purely abstract. They make no reference whatever to the evidence, nor do they submit to the jury the finding from the evidence of the facts giving rise to the law enunciated in them. One of them says: "Where a broker or agent employed to negotiate a sale procures a customer for the sale of said property on the terms proposed by the owner, and the principal takes the further proceedings out of the hands of the broker," Sec. 3] Instructing the Jury 433 etc., the broker is entitled to his commission. Had the court given this instruction in the concrete instead of the abstract form it would have said: **If the jury believe from the evidence that the defendant employed the plain- tiff to sell the property mentioned in the evidence at a cer- tain price, and agreed to pay him, in case he made such sale, a commission, and, in pursuance thereof, the plaintiff procured a customer for the sale of the property on the terms fixed by the defendant, and the defendant prevented him from making the sale by interfering and consummating the sale himself with the customer, they should find for the plaintiff." This would have directed the minds of the jury to the facts necessary to be ascertained by them in order to reach a proper conclusion. An instruction for the de- fendant embodying the same proposition of law might have been given, and in it the jury would have been told, in sub- stance, that if the plaintiff, acting under such contract of employment, failed to procure such a purchaser, they should find for the defendant. Instructions should apply the law to the facts in the case. ''It is not the proper course for the judge to lay down the general principles of law applicable to a case, and leave the jury to apply them ; but it is his duty to inform them what the law is as ap- plicable to the facts of the case. An instruction, however pertinent and applicable it may be, is abstract unless it be made to apply, in express terms, either to the attitude of the parties or to the very facts in issue." Blashfield on Instr. s. 92. ''It is not the province of the judge to impress any particular view of the facts upon the jury, but it is his province to make his charge so directly applicable to the facts as to enable the jury to render a correct verdict. To leave as little room as possible for them to make mis- takes in applying the law to the facts, which they may be very liable to do when they have only general abstract propositions given to them in charge, there ought, if pos- sible, to be no room for misunderstanding the charge or its application, and to this end it ought to be specific and di- rect." East Tennessee V. (§ G. R. Co. v. Toppins, 10 Lea. (Tenn.) 64. "Courts should apply the principles to the facts in evidence, stating the facts hypothetically." Blash- field on Instr. s. 92. T. p.— 28 434 Trial Practice [Chap. 11 Whether the legal proposition should have been in both forms, or only one of them, depends upon whether or not, looking at the evidence introduced, the court could say there was room or ground for either of the two conclusions presented, dependent upon an issue of fact to be deter- mined by the jury. If there is no evidence whatever upon which one of the conclusions may stand, there is no reason for giving an instruction embodying the hypothesis upon which it is based, nor can the court do so except at the risk of confusing and misleading the jury. The statement of the principle without any application of it to the facts or direction to the jury as to what facts they should look for in the evidence, is even more likely to mislead for the reason that, in the effort to apply it, they are called upon by the court to wrestle with both the law and the facts and form for themselves the hypothesis upon which the con- clusion depends, and it leaves room for the jury to form two, where there may be no evidence whatever to support one of them. That is exactly what has occurred here. No evidence of the performance of the contract proved was be- fore the jury. The instructions raised and presented to the jury a question which had no root or foundation in the evi- dence. Hence, it could perform no function except to mis- lead the jury. On account of the misleading character of the instruc- tions given and the want of sufficient evidence to support the verdict, the judgment must be reversed, the verdict set aside, a new trial granted, and the case remanded. Reversed. WEST KENTUCKY COAL COMPANY V. DAVIS. Court of Appeals of Kentucky. 1910. 138 Kentucky, 667. Opinion of the court by Wm. Rogers Clay, Commissioner. Reversing. Sec. 3] Instructing the Juey 435 Appellee, J. B. Davis, instituted this action against ap- pellant, West Kentucky Coal Company, to recov^er dim^'ges for personal injuries alleged to have been caused by appel- lant's negligence. The trial in the lower court resulted in a verdict and judgment in favor of appellee for the sum of $1,600. To reverse that judgment this appeal is prose- cuted. The appellant is a corporation operating a coal mine near the town of Sturgis, Union county, Ky. It also owns and operates a mine at Wheatcroft, and at one or two other places. In connection with these mines it owns and operates a railroad. Under appellant's tipple, there are three railroad tracks upon which cars are transported and placed for the purpose of loading. These tracks are known as tracks Nos. 1, 2, and 3. The engine which appellant operates was taken daily down track No. 1 to the scale- house; thence it was run up track No. 2 to the tipple for the purpose of coaling before beginning its regular opera- tions for the day. On the occasion in question, those in charge of the engine backed it down to the scale house on track No. 1; thence up track No. 2, where appellee was at work at the tipple. It was appellee's duty to check the cars, and see that they were properly loaded. When the engine arrived at the tipple, it pushed the car which ap- pellee was loading out of the way, placed its tender upon the tipple, and received its coal. It then went back, placed a partially loaded car in. position, and proceeded to the scale-house. It was standing there when appellee resumed his labors of loading the car on track No. 2. According to its usual custom, the engine then started up track No. 1, pushing an empty car. While it was proceeding in the direction of appellee, the car which the latter was loading on track No. 2 became unmanageable. When this took place, appellee's assistant jumped upon the car for the purpose of stopping it. Appellee stepped back and moved up the track for the purpose of notif>dng the tipple men to stop the machinery. There was a distance of four or five feet between tracks No. 1 and No. 2. When appellee rose up and stepped backward to give the tipple man the re- quired notice, he came in contact with the car which was being pushed by the engine up track No. 1, and was in- 436 Trial Practice [Chap. 11 jured. The evidence shows that there was a flagman on the front end of the car that was being pushed by the engine. His testimony is to the effect that appellee backed into the car so suddenly that it was impossible to stop the train after his peril was discovered. There was evidence to the effect that the whistle was not blown nor the bell rung as the engine approached the place of accident. ********** The instructions complained of are as follows: **(1) Gentlemen of the jury, the court instructs you that it was the duty of the defendant's employee in charge of the engine and cars attached thereto at the time and place in question to exercise ordinary care, as hereinafter defined, in running and operating the same so as to pre- vent injury to its employes; so, if you shall believe from the evidence that defendant's said employes in charge of said engine and cars failed to exercise such care as above required, but negligently ran said cars against the plain- tiff, thereby injuring him, while plaintiif was exercising ordinary care, as hereinafter defined, for his own safety, if he was then doing so, then in that event you should find for the plaintiff and award to him such an amount in dam- ages as will fairly and reasonably compensate him on ac- count of any mental and physical suffering endured by him as a direct result of such injury, if any, and also for the reasonable value of the time necessarily lost from his business on account thereof, if any, and also for any per- manent reduction in his power to earn money, if any, as was the direct result of such injury, not exceeding the sum of $2,000, the amount claimed in the petition. But unless you shall so find and believe from the evidence as above required, you must find for the defendant." ''(4) The court further instructs you that it was like- wise the duty of the plaintiff performing his duties and doing the work in question to exercise ordinary care for his own safety, and, although you may believe from the evidence that the defendant's said employe was at said time negligent and careless, yet if you shall also believe from the evidence that plaintiff at said time when he was injured was also careless or negligent, and that but for his own carelessness or negligence the accident and injury Sec. 3] Instbucting the Jury 437 would not have occurred, then in that event you should find for the defendant." It will be observed that the instructions complained of do not present to the jury the reciprocal duties of appellant and apjDellee. They are so general and abstract in form as to make the jury the judges of both the law and the facts. Smith v. Cornett, 38 S. W. 689, 18 Ky. Law Rep. 818 ; C. N. 0. (& T. P. Rij. Co. V. EilVs Adm'r, 89 S. W. 523, 28 Ky. Law Rep. 530. The jury may have concluded that cer- tain acts constitute negligence, when, as a matter of fact, such was not the case. That this conclusion is sound may be gathered from the fact that one witness was permitted to testify that the car which struck appellee was not equipped with a fender or pilot ; indeed, much stress is laid upon this fact in appellee's brief. Doubtless it was com- mented upon by counsel in their argument to the jury. We can not, then, say that the jury were not influenced by this fact in returning a verdict in favor of appellee. Certainly the failure of appellant to e-quip the car in question with a fender or pilot was not negligence. To so hold would be to impose upon appellant a greater liability than has ever been imposed upon ordinary railroads, and would almost defeat the practical operation of its engines and cars. Nor do we think the failure of appellant to offer more specific instructions than those given deprived it of its right to complain. The rule is that in civil cases the court is only required to give such instructions as are offered by the parties. If, however, an instruction offered is defective in form or substance, the court should prepare, or direct the preparation of a proper instruction on the point at- tempted to be covered bv the instruction offered. L. & N. R. R. Co. V. Barrod, lis Ky. 877, 75 S. W. 233, 25 Ky. Law Rep. 250; A^ico^a Bros. v. Hurst, 88 S. W. 1081, 28 Ky. Law Rep. 87.^ But when no instructions are requested by either party, and the court on its own motion undertakes to instruct the jury, the instructions so far as they go should present cor- rectly the law of the case. Soitth Corinqton £ Cincinnati Street By. Co. v. Core, 96 S. W. 562, 29 Ky. Law Rep. 836 ; Sivope v. Scliafer, 4 S. W. 300, 9 Ky. Law Rep. 160 ; Turner, Jr. v. Terrill, 97 S. W. 396, 30 Ky. Law. Rep. 89. 438 Trial Practice [Chap. 11 Upon the next trial of the case the court will instruct the jury as follows : "It was the duty of the defendant's agents in charge of its engine and cars on the occasion in question to give rea- sonable warning of the approach of the train by blowing the whistle or ringing the bell, and to keep a reasonable lookout in front of the train as it was moved. It was the duty of the plaintiff to exercise reasonable care to watch for the approaching train and keep out of its way. If you believe from the evidence that a reasonable warning of the approach of the train was not given or a reasonable look- out was not kept, and that by reason of this plaintiff was struck and injured by one of defendant's cars, while exer- cising ordinary care for his own safety, you will find for the plaintiff. Unless you so believe, you will find for the defendant. "(2) Although you may believe from the evidence that defendant's agents in charge of said train failed to give reasonable warning of its approach and failed to keep a reasonable lookout, yet if you believe from the evidence that the plaintiff himself failed to exercise ordinary care to discover the approach of the train and to keep out of its way, and that such failure on his part, if any, so con- tributed to his injury that but for said failure his injury, if any, would not have been received, you will find for de- fendant. ** (3) If you believe from the evidence that a reasonable lookout was kept, and that reasonable warning of the ap- proach of the train was given, and that plaintiff went upon the track so close to the approaching train that the injury to him could not be avoided by the exercise of ordinary care upon the part of those in charge of the train after they perceived his danger, or could have perceived it by the exercise of ordinary care, you will find for the defendant. "(4) Reasonable or ordinary care is such care as an ordinarily prudent person will usually exercise under cir- cumstances the same or similar to those proven in this case. *'(5) If you find for the plaintiff, you will award him such sum in damages as you may believe from the evidence will fairly comijensate him for his mental or physical suf- Sec. 3] Instructing the Juey 439 f ering, if any ; for his loss of time, if any ; and for the per- manent imi^airment, if any, of his power to earn money, which you may believe from the evidence was the proxi- mate result of his injury, if any ; not exceeding in all, how- ever, the sum of $2,000." No other instructions will be given. The judgment is reversed, and cause remanded for a new trial consistent with this opinion. 1 In Kansas City, Mexico and Orient Ry. Co. v. Loosley (1907) 76 Kan. 103, 90 Pac. 990, the court said: "The defendant claims the court erred in re- fusing its request. The plaintiff argues that the instruction tendered wa^ faulty and hence was properly refused. For present purposes it may be conceded that this is true. it may further be conceded that without a re- quest the court was not obliged to instruct upon the matter involved. But if a defective request actually brings to the court's notice an important prin- ciple of law which ought to be stated to enable the jury to render an intelli- gent verdict, it may be prejudicial error to disregard it; and if an attempt be made by an instruction to submit the subject defectively covered by the request to the consideration of the jury, it should be sufficiently explicit and comprehensive to cover fairly the field of the request." STATE V. LEGG. Supreme Court of Appeals of West Virginia. 1906, 59 West Virginia, 315. Sanders, Judge: This writ of error is to a judgment of the circuit court of Clay county, convicting the defendant, Sarah Ann Legg, of the murder of her husband, Jay Legg, and sentencing her to be hanged. As to instructions Nos. 2, 3, 4 and 5. By these instruc- tions it is undertaken to define reasonable doubt. We see no objection to these instructions as such. They seem to define reasonable doubt correctly, and no objection to their correctness is pointed out. But it is urged that the court erred in gi\'ing them, because they are upon the sams point, and for the same purpose, and that a continued re])etition of instructions upon a single point is calculated to preju- dice tin defendant. It was entirely unnecessary to repeat these instructions. It is manifestly improper to do so. 440 Teial Pkactice [Chap. 11 The purpose of instructing a jury is to aid them in arriving at a proper verdict, and not to confuse them, and in order to be of aid, instructions should not be repeated, but when once given, presenting a particular theory of a case, no other instruction presenting the same theory should be given, because to do so is to destroy the very purpose for which instructions are given, and to mystify and confuse the jury. It is true these instructions present the defini- tion in different language, but there is no necessity for it to be defined more than once. Four long instructions upon reasonable doubt, which has never yet been defined or made clearer than the words themselves import, can certainly be of no service to a jury. The practice of repeating instruc- tions should be condemned. It is wrong to do this, and thereby prominently impress a single feature of a case upon a juror. Either of these instructions would have been sufficient, but as to whether or not the repetition of them is reversible error, we will not determine, because, on other grounds the judgment will have to be reversed, and upon a second trial, the necessity for this criticism can be obviated. The judgment of the circuit court is reversed, and a new trial awarded the defendant. Reversed.^ 1 Bepetition not error vnlr.^s jury misled. Tn Gran v. Houston (1895) 45 Nebr. 813, 64 N. W. 245, the court said: "While there may have been repetitions which were not necessities, or which in the opinion of counsel or this court were unnecessary, yet there were none which tended, nor did they as a whole tend, to mislead the jury, nor can we believe the jury was misled by them, hence there was no prejudice to the rights of plaintiff in error, and the action of the court, the grounds for this complaint, furnishes no tenable reason for a reversal of the case." Sec. 3] Instructing the Jury 441 CITY OF CHICAGO V. MOORE. Supreme Court of Illinois. 1891. 139 Illinois, 201. Mr. Justice Shope delivered the opinion of the court: This was a suit for personal injury, alleged to have been received by defendant because of a defective sidewalk over and upon which she was passing with due care and caution, and which appellant was required to keep in safe repair and condition. The trial resulted in a verdict for plaintiff, which, on appeal to the Appellate Court, was afiRrmed. Counsel for appellant have, seemingly, filed in this court their brief filed in the Appellate Court, containing an elab- orate discussion of the facts, which must in this court be deemed as being settled adversely to their contention by the judgment of the Appellate Court. The first point made which we will consider is that, the court erred in refusing all instructions asked, and giving one prepared by the court in lieu thereof. It is insisted with great earnestness, that under the practice in this State, and under the statute, the respective parties have the right to have instructions given or refused by the court as asked by them, and that it is error for the court to refuse an in- struction containing a correct proposition of law applicable to the facts, although an instruction embodying every ma- terial phase thereof be given in an instruction or instruc- tions prepared by the court. It is said ''that there is no place under our law for instructions by the court sua sponte, except when counsel have failed to present proper instructions, and the justice of the case demands that the judge supply the omission." The contrary to this conten- tion has been so repeatedly held, and the practice of giving a charge prepared by the court, and containing all of the material points covered by the instructions asked, has been so often commended by this court, that the question ought to be regarded as settled in this state. Hill ef al v. Parsons et al, 110 111. Ill ; Haucliett v. Kimhark et al, 118 id. 132 ; Birmingham Fire Ins. Co. v. Pulrer, 126 id. 329. In the latter case, in speaking of this practice, we said : 442 Trial Practice [Chap. 11 "The propriety of the practice thus adopted is challenged, the proposition contended for seeming to be, that in this State the functions of the court in the matter of instruct- ing a jury are practically limited to giving or refusing the written instructions asked by counsel. Such, clearly, is not the case. True, he may, if he sees fit, limit himself to giv- ing the instructions submitted by the counsel which proper- ly state the law, and then, even though the law be inade- quately given to the jury, no error can ordinarily be predi- cated upon such action, because if counsel had deemed other instructions necessary, they might and should have asked them. But where the judge sees proper to do so, it is competent for him to prepare his own charge to the jury, but if he does so, he should embody in it, either literally or in substance, all proper instructions asked by counsel." See, also, Chicago and loiva Railroad Co. v. Lane, 30 111. App. 443. The statute prescribes that the court charging the jury shall instruct as to the law, only, (Practice act, sec. 51,) and that no judge shall instruct a petit jury unless the in- structions be reduced to writing. (Practice act, sec. 52.) Section 54 provides, that when instructions are asked "which the judge can not give," he shall mark the same refused, "and such as he approves he shall write on the margin thereof, given," and he is then prohibited from qualifying, modifying or explaining the same, otherwise than in writing. The court must see that the instructions given to the jury, not only separately, but as a whole, con- form to the rules of law and practice in our courts. It by no means follows, because an instruction contains a correct proposition of law, that it must meet the approval of the judge, and must therefore be given. Each party to the litigation has a right to demand that the law applicable to his case shall be given with accuracy and clearness to the jury. But this is all that he has a right to demand, and it was early held, under this statute, that the court might re- fuse erroneous instructions, modify them, or give instruc- tions of its own, as it might deem expedient, {Vanlanding- ham V. Huston, 4 Gilm. 125,) and such has been the uniform holding ever since. And it has been so repeatedly held that it is not error to refuse instructions, however applicable Sec. 3] Insteucting the Juky 443 and pertinent, wlien the material parts are given in other instructions, that the citation of authority seems unneces- sary. Here appellant asked seventeen instructions. A care- ful consideration of them will show, as it is conceded, that the instruction prepared and given by the court contained every important or material proposition embodied therein, except the fourth instruction asked and refused, in respect of which, as we shall see hereafter, appellant has no cause of complaint. If the jury were accurately instructed in re- spect of each proposition contained in the instructions asked, proper to be given, the party can not be heard to complain. It is, however, said, that the instructions prepared by the counsel presented the questions sharply and incisively, while those of the court are more moderate in expression and less forceful. This may be conceded without affecting the result. As said by the Appellate Court: ''The instruc- tions handed up come to the judge from partisan hands, and have been drawn as carefully as the skill of a lawyer can accomplish it to present a partisan view, or to convey a hint, suggestion or intimation of advantage to his client. The same legal rule may be stated in a differently arranged combination of words by the judge, and be, as it is very likely to be, coldly impartial, and entirely colorless in its statements of facts on which it is based." The utmost care should be taken by the judge to include within the charge every i^roposition of law applicable to the facts of the case embraced within the instructions asked, and such others as he may deem necessary to the attainment of jus- tice. His language should be clear and impartial, and con- vey to the jury the law of the case in terms they will com- ])rehend. When this is done the practice is to be com- mended, rather than the other, which too freqently leaves the mind of the juror in uncertainty as to what is meant by the disjointed, and, to his mind, disconnected and conflict- ing, propositions of law, and which embarrass and mislead him perhaps quite as often as they lead him to correct con- olusions. ********** Finding no error in this record for which the judgment should be reversed, it is affirmed. Judgment affirmed.^ 444 Tbial Pkactice [Cliap. 11 1 A number of courts have declaretl that the practice of charging the jury in the language of the court instead of in the language of counsel, is decidedly preferable, even where the requested charges are unexceptionable in law when separately examined, for the reason that thereby the charge can be made more orderly and harmonious and is freed from the partisan spirit and want of proper perspective which instructions usually show when prepared by coun- sel. Eosenstein v. Fair Haven v. Westville E. E. Co. (1905) 78 Conn. 29, 60 Atl. 1061; Kinney v. Ferguson (1894) 101 Mich. 178, 59 N. W. 401. On the other hand, some courts hold that the court is bound to give a cor- rect instruction in the language of the request. Thus, in Morrison v. Fair- mont & Clarksburg Traction Co. (1906) 60 W. Va. 441, 55 S. E. 669, the court said : "A party is entitled to an instruction in his own language, if it cor- rectly propounds the law applicable to the case, and is not misleading and there are facts in evidence to support it. State v. Evans, 30 W. Va. 417; Jordan v. Benwood, 42 W. Va. 312. Where such instructions are asked a court should, without hesitation, give them. It is a right a party has to couch his instructions in his own language, and when he has done so, if they fulfill the legal requirements, they should be given. But while this is true, yet what should be the effect after verdict, where such instruction is refused, but modified and given? Can we say that it is reversible error for the court to make a slight or immaterial change in an instruction? Must in- structions be given literally as offered, and if this is not done, must we over- throw the verdict? We cannot so hold. While such an instruction should be given, yet a verdict will not be set aside where this is not done, when it is modified and given, if we can clearly see that the instruction as modified is the same in legal effect as the one offered." And in some states it is provided by statute that the court shall instruct in the language of the request when such request is correct in law. Ala- bama, Code, 1903, <$ 5364; North Dakota, Eev. Codes, 1905, $ 7021; South Dakota, Code Civ. Pro., 1903, $ 256. KLOFSKI V. RAILROAD SUPPLY COMPANY. Supreme Court of Illinois. 1908. 235 Illinois, 146. Me. Justice Vickees delivered the opinion of the court: The second count in the declaration alleges that appellant carelessly and negligently employed an incompetent and reckless servant and permitted such incompetent servant to operate and manage ladles filled with molten metal ; that such incompetency of the said servant was, or ought to have heen, known to appellant and was unknown to appel- lee, hy means whereof the appellee was injured, as afore- said, through the incompetency, recklessness and careless- ness of said servant of appellant. The gist of the second count of the declaration is, that appellant, with notice, Sec. 3] Instructing the Juey 445 negligGntly employed an incompetent servant to handle a ladle full of molten metal, by means whereof the appellant, by its said servant, carelessly caused the said metal to spill upon the ground and explode against the appellee. ********** It is next urged by appellant that the court erred in giv- ing instruction No. 4. That instruction is as follows : *'It was the duty of the defendant to use reasonable care to learn and know whether its servants were competent and fit for their work, so that it would be reasonably safe for the defendant's other servants to work with them without being exposed to unnecessary danger to life or limb by reasons of incompetency, if any; and if defendant's servant known as 'Scotty' was incompetent for his work, and if by reason thereof other servants of defendant were exposed to unnecessary dangf^r to life and limb, and if defendant by reasonable care would have known of such incompetency and danger, if any, before the alleged injury to plaintiff, in time by reasonable care to prevent such danger, then it was defendant's duty to use reasonable care not to expose the plaintiff to the danger, if any, of working with such in- competent servant, if any." Appellant concedes that this instruction states a correct proposition of law as far as it goes, but contends that under the evidence in this case the instruction should have gone further and explained to the jury that if appellee had knowl- edge, or equal means of knowledge, with appellant of the in- competency of the servant "Scotty" and made no objec- tion to working with him, appellee would assume the risk of injury that might result from such incompetency. This criticism cannot be sustained. The instruction under con- sideration does not purport to state all the facts upon which a right of recovery depends. It does not conclude with a direction to find a verdict for appellee, and does not, therefore, fall within a class of instructions often con- demned by this court which conclude with a direction to find a verdict for a particular party without stating all the essential facts to support such conclusion. It is unneces- sary, and aften impracticable, to state the whole law of a case in one instruction. Efforts to do so are more likely to confuse than enlighten the jury. Besides, the liability to 446 Trial Practice [Chap. 11 commit error is minimized by stating the law applicable to a particular question or particular parts of the case in separate instructions. This court has often had occasion to announce the familiar rule that instructions are to be considered as a series, and, when so considered, if, as a whole, they state the law correctly that is sufficient. The jury were informed by other instructions in the series of the effect the facts omitted from this one would have upon Mie relative rights of the parties. Instruction No. 36 given on behalf uf appellant advises the jury that appellee could not recover under the second count of his declaration unless he proved that he did not know, and by the exercise of reasonable diligence would not have known, that the ser- vant "Scotty" was incompetent, careless and reckless. Ap- pellant had the full benefit of the doctrine of the assump- tion of risk, so far as it applied, resulting from the in- competency and carelessness of the fellow servant of the appellee by instructions 18, 19, 20, 21, 22, 30, 33, 35, 36 and 38 given at its instance by the court. There being no reversible error in this record the judg- ment of the Appellate Court for the First District is af- firmed. Judgment affirmed. McDIVITT V. DES MOINES CITY RAILWAY COM- PANY. Supreme Court of loiva. 1909. 141 Iowa, 689, Evans, J. — * * * The appellant complains further that the instructions of the court were contradictory, and that, although the court held the deceased to have been guilty of contributory negli- gence, it nevertheless laid upon the plaintilY the burden of proving freedom from contributory negligence before she Sec. 3] Instructing the Juey 447 could recover even upon the theory of the ''last clear chance. ' ' After a statement of the issues, the court presented its instructions in paragraphs numbered from 1 to 19, inclu- sive. The first six are as follows: (1) The burden of proof is ujDon the plaintiff to estab- lish by preponderance of the evidence each of the follow- ing propositions: First, that the deceased, Edith Mc- Divitt Lawson, was struck and injured by the defendant's car about the time, at the place, and substantially in the manner alleged in plaintiff's petition; second, that said decedent was not g^i^^ty of negligence causing or contrib- uting to her said injury; third, that the defendant was guilty of negligence substantially as alleged by plaintiff and hereafter in these instructions more fully specified; fourth, that said injuries so received by decedent were the direct and approximate result of the negligence of the de- fendant; fifth, that the estate of decedent has been dam- aged in some amount thereby. If you find affirmatively as to each and all of the above propositions, then your verdict will be for the plaintiff. If you fail to find affir- matively as to any one of the above propositions, your verdict will be for the defendant. ********** (4) The undisputed evidence in this case shows that the deceased approached the railway track of defendant, and, after having so approached the railway track of de- fendant, waited for the west-bound car to pass her, and that, after such car had passed, decedent immediately pro- ceeded across the north track, and the mtervenmg space of almost five feet between the north and south tracks, and stopped in front of an east-bound car on the south track, there passing, and was struck by said car without taking any precautions to avoid the accident. You are instruc- ted as a matter of law that this action of decedent would constitute negligence, and plaintiff cannot recover unless you find as hereinafter instructed. The only question therefore which you have submitted to you for considera- tion is whether or not the defendant's employees in charge of the east-bound car, which came in contact with the de- ceased, were guilty of the negligence charged in failing to avoid the injury which resulted in the death of decedent 448 Trial Practice [Chap. 11 after the deceased stepped from behind the west-bound ear and onto the south track of defendant, and she was seen by the motorman in a position of danger * * * (6) You have been heretofore instructed, gentlemen, that the decedent was negligent in going upon the track in front of the east-bound car, which struck her; but you are further instructed that, while the law holds that plaintiff cannot recover on account of the contributory negligence of the decedent in stepping in front of the east-bound car in the manner in which she did, yet if, after the motorman saw her in a place of danger or about to step upon the track in front of the approaching car, he negligently fail- ed to stop said car within a reasonable time or distance under the circumstances shown by the testimony, and such failure was the direct and proximate cause of the in- jury which resulted in the death of decedent, then your verdict will be for the plaintiff. From an examination of instruction 1, it will be ob- served that the jury was instructed, expressly, that, if it failed to find that the decedent was not guilty of contrib- utory negligence, the verdict must be for the defendant. Instructions 4 and 6 expressly stated to the jury that the decedent was guilty of contributory negligence. This pre- sents the alleged contradiction of which appellant com- plains. It is contended by appellee that instructions 4 and 6 expressly state to the jury that the plaintiff may re- cover notwithstanding contributory negligence, and this contention is correct; but this does not eliminate the con- tradiction in the instructions. Appellee contends that the instructions must be considered as a whole, and this is true. It is argiied also, that the error in the first instruc- tion is cured by the statement in the fourth and sixth; but it is cured only in the form of a contradiction. Our pre- vious cases cited by appellee are not in point. It has been held that where an instruction is ambiguous, or where standing alone, it is erroneous because of some omission, it may be cured by other instructions that are clear upon the omitted or ambiguous point; but where an instruction is free from ambiguity, and is aflirmatively erroneous, the error is not cured by a contradiction contained in another instruction. There is no way in such case to determine which instruction the jury may follow. The question pre- Sec. 4] Instructing the Jury 449 sented in this case is almost parallel with Christy v. City Raihvay Company, 126 Iowa, 428, and the cases therein cited. The error in this case was somewhat emphasized by the sixteenth instruction, which contains the following: "Contributory negligence is such negligence as contrib- utes to an injury" — a definition which was quite unneces- sary in view of the withdrawal of the question from the consideration of the jury. The natural effect of it would be to impress the jury that the question was still in the case, and to emphasize the error contained in instruction The judgment below is reversed, and cause remanded for a new trial. — Reversed. Section 4. Requests for Instructions. CENTRAL RAILROAD V. HARRIS. Supreme Court of Georgia. 1886. 76 Georgia, 501. Lucinda Harris brought suit against the Central Rail- road to recover damages for the killing of her husband. The testimony for the plaintiff tended to show that the husband was in the depot in the city of Atlanta ; that he walked alongside the train to go beyond the engine, which projected from the depot into a street-crossing at its end; that he undertook to cross the track at the street-crossing, when the train started rapidly without giving any signal and ran over him. ********** The jury returned a verdict for the plaintiff for one thousand dollars. The defendant moved for a new trial upon the following grounds: ********** (2) Because the court failed entirely to put before the jury the main defense relied upon by the defendant, and to sustain which abundant evidence had been introduced, T. p.— 29 450 Trial Practice [Chap. 11 to-wit, that defendant had boarded the passenger train in the depot without having purchased a ticket, and without having any intention of leaving the city thereon, but simp- ly to say good-bye to a crowd of colored servants on their way to Florida, and that he had attempted to jump from said train when in motion, and from a platform having no steps attached thereto by which to descend to the ground, and having a railing extending around the entire plat- form to prevent persons from getting on and off the car to which it was attached, at that end. The charge of the court failed to call the attention of the jury in any way to these facts, but singled out the one element of negli- gence arising from the failure, if such failure existed, to toll the bell on crossing Pryor street. Jackson, Chief Justice. The very able and distinguished counsel for defendant in error saw the force of this exception to the charge, and endeavored to meet it by the reply that the counsel for the plaintiff in error could not use the exception, because he did not call the attention of the court to the omission of which he now complains, and cited decisions of this court bearing upon the necessity of his doing so before he could take advantage of the omission. "We think, however, that the cases cited, and the princi- ples on which they rest, do not apply to the clear omission to notice in the charge a plain defence of the company arising out of his evidence so as not to escape the obser- vation of the judge, but to omissions to expand the charge, so as to make more clear the point on which he has charged substantially, but not as fully as would have been done had attention been called to it. The courts will not allow a party to lie in wait for the judge when he charges substantially the law covering the case, and then object to the insufficiency of a portion of it; but in every case, the law of it must be given in substance to the jury, because if it is not given, the general verdict they give is not upon the law, the law of the case, but on facts without instruc- tions on the law of the case. The ship is at sea without chart or pilot, and can never reach the port to which it is bound without their guidance. The verdict can never be a legal verdict unless instructions on the law of the case Sec. 4] Instructing the Jury 451 be given by him who presides for that pur^Dose. The omis- sion to cover the case substantially must always set it aside. An so this court has often ruled. In the case of Har- din, Executor vs. Almand, 64th Ga. 582, the 8th head-note lays down the rule thus: "Where the case is fully cov- ered by the general charge, the failure to instruct the jury on a particular branch of it is not error in the ab- sence of a request." The case at bar is not fully covered, in that it ignores one defence, and makes an act of negli- gence in the company affect that defence, if meant to be alluded to at all, which act could not have possibly affec- ted it. So from an early date this court has uniformly held that the law of the case must be given to the jury to the extent of covering the substantial issues made by the evidence, whether requested or not, or attention be called to it or not; otherwise the verdict will be set aside. ********** In all these cases, it is believed, from an examination of each, the principle is clearly deducible that without any request of counsel or reminder of the court by counsel, the instructions of the court must substantially embrace the rule of law on the issues between the parties which the evidence makes. If that be done substantially, then there is a line of decisions cited by counsel for the defendant in error, to the effect that if the charge be not full enough or clear enough or omits something that would put one side or the other more fairly before the jury than the charge given does, then the notice of the court must be called thereto, or the party complaining will not be heard here. If there be any exception to this general rule in this court from 11th Ga. down to 69th, it is very scarce, and will be found approximating closely to the rule laid down, if not clearly within it. ********** The judgment is reversed solely because the court in the charge ignored the defence set up by the defendant be- low, that plaintiff's husband's own negligence — his own rash act — in jumping from the cars killed him, without any negligence at all of the defendant which contributed 452 Trial Peactice [Chap. 11 to that act of his, — the only negligence proved being the neglect to ring the bell, which did not affect in the least the disastrous result of the rashness of the deceased. Judgment reversed} \ Accord: Owen v. Owen (1867) 22 Iowa, 270; Capital City Brick & Pipe Co. V. Des Moines (1907) 136 Iowa, 243, 113 N. W. 835; York Park Bldg. Ass'n V. Barnes (1894) 39 Neb. 834, 58 N. W. 440. MORGAN V. MULHALL. Supreme Court of Missouri. 1908, 214 Missouri, 451. Lamm, J. — Suing Mulhall, Ernest Morgan hj his next friend asked $20,000 damages, grounding his right of ac- tion on a negligent shooting and wounding. At a trial with the aid of a jury, he got a verdict of $5,000. From a judgment entered, defendant appeals. The petition follows: ''The plaintiff' for his cause of action showeth to the court that on the 24th day of May, 1905, upon the petition of said Ernest Morgan the said circuit court did appoint Joseph Morgan as his next friend to commence and prose- cute this suit, and said Joseph Morgan has consented in writing to act as such next best friend for said purpose. "And the plaintiff further showeth to the court that on the 18th day of June, 1904, in said city of St. Louis and on the grounds of the Louisiana Purchase Exposition Company, the defendant by shooting into a crowd of peo- ple negligently shot the plaintiff, Ernest Morgan, with a ])istol * * * Defendant stood mute and neither prayed nor got any instructions whatever. Plaintiff asked none on the trial issue of negligence nor on issues relating to the defence. Pie asked and got two — one on the measure of damages, the other a rule of law relating to the credibility of the wit- nesses and the weight of their testimony. In this state of the record, defendant does not contend the instructions Sec. 4] Instbucting the Jury 453 given were bad law in and of themselves, but his counsel in- sist it was error to not give instructions bearing upon the issues and announcing rules of law by which the jury could be guided to a just verdict on them. ********** (b) An excellent law writer states the general doctrine in civil cases to be: '*It is then, a general rule of pro- cedure, subject, in this country, to a few statutory inno- vations, that mere non-direction, partial or total, is not ground of new trial, unless specific instructions, good in point of law and appropriate to the evidence, were reques- ted and refused. A party cannot, by merely excepting to a charge, make it the foundation for an assignment of er- ror, that it is indefinite or incomplete." (2 Thompson on Trials, sec. 2341). Judge Thompson supports his text by a wealth of authorities in a note, adding: ''The English rule seems to be that non-direction, where specific direc- tion is not requested, is no ground of a new trial, unless it produce a verdict against the evidence." (Citing Ford V. Lacey, 30 L. J. (Exch.) 351; Railroad v. Braid, 1 Moore, P. C. Cas. (N. S.) 101.) To question that general rule in Missouri at this late day would be to spin cobwebs before the eyes of justice and mischievously unsettle the law. This is so because our stat- ute on procedure in civil cases does not contemplate in- structions whether or no. Parties litigant have their op- tion to ask or not ask for them. That statute ordains (R. S. 1899, sec. 748) : "When the evidence is concluded, and before the case is argued or submitted to the jury or to the court sitting as a jury, either party may move the court to give instructions on any point of law arising in the cause, which shall be in writing and shall be given or refused. The court may of its own motion give like instructions, and such instructions as shall be given by the court on its own motion or the motion of counsel shall be carried by the jury to their room for their guidance to a correct verdict according to the law and evidence; which instructions shall be returned by the jury into court at the conclusion of the deliberations of such jury, and filed by the clerk and kept as a part of the record in such case." In construing that section, the better view is that it is permissive, not mandatory. Doubtless it conduces to the 454 Teial Pkactice [Chap. 11 science of jurisprudence and the orderly administration of the law to have instructions defining the issues, putting it to the jury to find the fact and declaring the law on the fact when found, but it is within the knowledge of the profession (and our decisions show) that cases are not infrequently tried, nisi, without them. That mere non-direction is not misdirection is a familiar, settled rule of appellate proce- dure. Under that rule, before appellant can predicate re- versible error on what a trial court does not say to the jury, he must first put the court in the wrong by asking it to say something, or else the court in trying to cover the case by instructions holds a false voice, or omits in general instruc- tions essential elements of the case. [Tetherow v. Rail- road, 98 Mo. 74; Coleman v. Drane, 116 Mo. 1. c. 394; Brown- ing V. Railroad, 124 Mo. 55; Nolan v. Johns, 126 Mo. 159; Wilson V. Railroad, 122 Mo. App. 1. c. 672, et seq., and cases cited; Nugent v. Armour Packing Co., 208 Mo. 1. c. 500; Flaherty v. Railroad, 207 Mo. 1. c. 339.) Here, manifestly, appellant was as much to blame as the court or respondent for the omission to instruct on vital is- sues ; for he by his silence joined in the general silence and made it more profound. At most it was common error, if any, and error common to all is not reversible error. Ho who does not speak when he should, will not be heard to speak when he would. The premises considered, we have nothing to do but look to the record and see if it supports the verdict. We find ample testimony to support it. Accordingly, the judgment is affirmed. It is so ordered. All concur.^ y Accord: Stuckey v. Fritsrhe (1890) 77 Wis. 329, 46 N. W. 59; Osgood V. Skinner (1904) 211 111. 229, 71 N. E. 869; Palatine Tnp. Co. v. Santa Fe Meroantile Co. (190.5) 13 N. Mex. 241, 82 Pac. 363; Womaek v. Circle (1877) 29 Gratt (Va.) 192; Texas & Pacifiic Ry. Co. v. Volk (1894) 151 U. S. 73. Sec. 4] Insteucting the Juby 455 CHICAGO CITY EAILWAY COMPANY V. SANDUSKY. Supreme Court of Illinois. 1902. 198 Illinois, 400. Me. Justice Boggs delivered the opinion of the court : Between eight and nine o'clock in the evening of April 18, 1898, a cable car which the appellant company was opera- ting northwardly along its tracks in State street, in the city of Chicago, collided with a junk wagon in which the ap- pellee was riding and threw him from his seat to the surface of the paved street, and thereby inflicted injuries upon his person for which he was awarded judgment in the sum of $1,000 in an action on the case which he instituted against the company in the superior court of Cook county. On ap- peal perfected by the company to the Appellate Court for the First District the judgment was affirmed, and the cause is before us on a further appeal in the same behalf. After the plaintiff had rested his case, and while the de- fendant was adducing its evidence, the court called the at- torneys for the parties and read to them the following order which the court had drawn and entered in the case: ''It is ordered at this time, while the witnesses on the part of the defendant are being examined, that the instructions to be tendered to, examined or given by the court to the jury be limited to twenty-four, — twelve on the part of the plaintiff and twelve on the part of the defendant, — and that no in- struction in excess of said numbers will be received or ex- amined by the court or given to the jury." The defendant excepted to the order, and, afterwards, to the decision of the court in refusing to give or examine twenty instructions presented in a body, in addition to the twelve handed up under the order of the court. The appellant company, in recognition of the rule but under protest, presented twelve instructions to be given or refused by the court under the rule, and also presented twenty additional instructions. The court declined to examine or pass upon any of the twenty additional instructions, for the reason they were each in excess of the number of twelve limited by the rule. Counsel 456 Trial Peactice. [Chap. 11 for appellant preserved exceptions to this ruling of the court. So far as we are advised, the power of a trial court to limit requests for instructions to an arbitrary number from each litigant has never received the consideration of a court of review. The power of the judge to prescribe a reason- able rule regulating the presentation of instructions to be given or refused is everywhere conceded. Rules that in- structions will not be considered if presented after the be- ginning of the argument to the jury, or during the course of the argument to the jury, or during the course of the gen- eral charge, or after the judge has concluded his general charge, or after the cause has gone to the jury, or after the jury had come in and disagreed, have been sustained, (11 Ency. of PI. & Pr. 240; Prindiville v. People, 42 111. 217.) In Prindiville v. People, supra, the rule had been adopted by the trial court requiring that the instructions should be presented before the commencement of the argument of the cause. The appellant presented additional instructions while the attorney for the People was making his closing argument to the jury, and they were refused under the rule. The instructions were not embodied in the bill of exceptions, and we held we could not know but that the court ought to have refused them independently of the rule, and therefore did not determine whether the rule under consideration was reasonable. We there indulged in the following ob- servations, (p. 222) which meet our approval, viz.: "The dispatch of business, the rights of litigants, jurors and wit- nesses, all require that the time of the court shall not be unnecessarily consumed in the trial of causes, and to avoid such consequences courts must be invested with power to adopt all reasonable rules for the practice of their courts. Ever since the adoption of the statute requiring all instruc- tions to be reduced to writing before they are given, it is believed that similar rules have been in force in all of the circuit courts in th» State. They have varied slightly in their requirements, but all are designed to attain the same end. The rule which is believed to have most generally ob- tained requires all instructions to be furnished the court by the commencement of the closing argument. That, it seems to us, is well calculated to meet the convenience of both parties and the court and to economize time, and can in no Sec. 4] Instructing the Jury 457 way hinder or prevent the attainment of a fair trial by both parties. So far as our observation has extended such a rule has operated well. It gives ample time after the close of the evidence and the case fully opened to the jury for both parties to prepare their instructions, and the court, being thus apprised of the legal propositions they have assumed, has, after the instructions are thus presented, usually ample time for their examination and to determine upon their cor- rectness. It is essential that the court shall exercise such power, through reasonable and proper rules, as shall enable him to dispatch business at least so fast as the proper ad- ministration of justice may require." We do not wish, however, to bQ understood to hold that another mode or manner of regulating the presentation of instructions than that referred to may not be adopted. We are inclined, however, to regard as unreasonable a hard and fast rule that instructions shall be limited to a given num- ber. It is the prolixity and confusing character of the charge, as a whole, that rules of this character are designed to obviate. Restriction in point of number, only, of the in- structions will not remove the evil. A number of concise, clear instructions, each of which is confined to a distinct branch or phase of the contention or distinct proposition of law, is preferable to one long, diffuse and complicated instruction, which includes within its range all or several of the propositions or phases of the case and attempts to advise the jury as to different and independent legal propo- sitions. A general charge, consistins: of instructions of the latter character, though not exceeding the number permit- ted by the rule, would be more objectionable, from every proper point of view, than a charge composed of instruc- tions which, though short and clear and of a character to enlighten the jury, exceeded the number allowed by the rule. It is unreasonable to a!5roper. The distinguished counsel who tried the case for appellee, has since died. He was an able, resourceful and zealous lawyer. His experience on the bench, where he presided with honor and dignity, well qualified him to un- derstand and appreciate when counsel, in the trial of a case, were overstepping the bounds of propriety, and he must have known, as did the excellent judge before whom this case was tried, that the evidence he was trying to get before the jury was wholly irrelevant and incompetent. Except for the fact that this case, on a retrial, will be conducted by other coun- sel, and our failure to call attention to the misconduct of former counsel might leave the impression that it was not open to criticism, we would not, under the circumstances, direct attention to it. Cliap. 12] Akgument and Conduct of Counsel 493 WAGONER V. HAZLE TOWNSHIP. Supreme Court of Pennsylvania. 1906. 215 Pennsylvania State, 219. Opinion by Mr. Justice Mestrezat, May 7, 1906. The proximate cause of Mrs. Wagoner's injuries was the hole or opening in the bridge, and if the jury found, as they did, that the hole was caused by the negligence of the defendant township, its liability necessarily followed. The question of Mrs. Wagoner's contributory negligence was for the jury. The facts were not undisjrated. The plaintiffs claim that after the wheel of the wagon had gone into the opening in the bridge she attempted to alight from the wagon, and was in the act of doing so at the time it was struck by the car of the Lehigh Traction Com- pany, and that her conduct in no way contributed to her injuries. What she did on that occasion, and whether she acted with the prudence required of her, were for the jury. Prior to the present action the plaintiffs brought suit against the Lehigh Traction Company to recover damages for the same injuries, and obtained a verdict of $6,000. The case, on appeal, was heard by this court last year, and the judgment was reversed and a new trial was awarded. On the trial of the present action the counsel for the plaintiff in the presence of the jury and where they could distinctly hear it, made the following offer: ''We now offer in evi- dence the record in that case, for the purpose of show- ing that the jury gave the plaintiff a verdict of six thous- and dollars, and that the case was appealed to the Supreme Court and that the Supreme Court reversed the judgment of the court below, practically saying that it was not re- sponsible, but that the township was bound to keep its own road in repair." Thereupon the defendant's counsel said: "We object and move that a juror be withdrawn, because of the statement made by the attorney for the plaintiff, in full voice before the jury, as to the amount of the other verdict." The court declined to withdraw a juror and the defendant excepted to the ruling. We think the court com- mitted error ft)r which the judgment must be reversed. 494 Trial Peactice [Chap. 12 The offer was clearly incompetent, and the only purpose it could serve, or effect it could have, would be to place before the jury the amount of the large verdict in the Le- high Traction Company case. The counsel should not have made the otfer, and after he had made it, it was the duty of the court to protect the defendant against its effect. The purpose of the offer was obvious, and its effect would be equally apparent. Such conduct on the part of counsel is different from an unintentional or inadvertent remark to a jury which does the opposite party no injury. When such remarks are made they may or may not have an in- fluence upon the jury, but there can be no question about the effect upon the tribunal of an offer to show what a former jury, dealing with the same facts, had determined as to the amount of damages due the plaintiffs for the injuries which they sustained. It was a criterion for the jury in considering the case which they evidently would accept, and which no language of the trial judge could drive from their minds. The offer got before the jury what was clearly incompetent and what manifestly would, to some extent at least, control their verdict. The only way to remedy the wrong was to w^ithdraw a juror and compel the plaintiffs to submit the cause to another jury, uninfluenced by such wholly irrelevant and incompetent matter. When an attorney in the trial of a cause willfully and in- tentionally makes an offer of wholly irrelevant and in- competent evidence, or makes improper statements as to the facts in his address to the jury, clearly unsupported by any evidence, which are prejudicial and harmful to the opposite party, it is the plain duty of the trial judge, of his own motion, to act promptly and effectively by repri- manding counsel and withdrawing a juror and continuing the cause at the costs of the -client. In no other way can justice be administered and the rights of the injured party be protected. The imposition of the costs will remind the client that he has an attorney unfaithful to him as well as to the court. The obligation of fidelity to the court wliich an attorney assumes on his admission to the bar is ever thereafter with him, and when he attempts to de- foat the justice of a cause by interjecting into the trial wholly foreign and irrelevant matter for the manifest pur- Chap. 12] Argument and Conduct of Counsel 495 pose of misleading the jury, he fails to observe the duty required of him as an attorney and his conduct should re- ceive the condemnation of the court. This condemnation can and should be made effective. The ninth assignment of error is sustained and the judg- ment of the court below is reversed with a venire facias de novo. M'CARTHY V. SPRING VALLEY COAL COMPANY. Supreme Court of Illinois. 1908. 232 Illinois, 473. This is an action on the case in the circuit court of Bureau county to recover damages for personal injury sustained in the appellant's coal mine. * * * Me. Justice Dunn delivered the opinion of the court: Complaint is made of the conduct of counsel for the ap- pellee in the course of the trial. The counsel who made the opening statement to the jury began: ''In this case Patrick McCarthy, thirty-three years of age, with a wife and five children," when he was interrupted with an objec- tion, which the court sustained. In cross-examining one of appellant's witnesses in regard to the taking of a writ- ten statement of a witness for the appellee at the offi'ce of appellant, appellee's counsel asked if Mr. Bayne, the attor- ney of the Aetna Insurance Company, was present. On objection the question was withdrawn, counsel saying that he meant Mr. Bayne, the attorney for The Spring Valley Coal Company. Several objections were also made in the course of the argument of appellee's counsel to the jury. The statement to the jury that the appellee had a wife and five children was manifestly improper. Its only object could have been to enhance the damages by getting before the jury, in this improper and unprofessional manner, facts calculated to arouse their s^Tupathy, which counsel knew could not in any legitimate way be brought to their atten- tion. To admit evidence of such facts is error. {Jones & 496 Trial Peactice [Chap. 12 Adams Co. v. George, 227 111. 64.) The fact once lodged in the minds of the jury could not be erased by an instruction, and appellee by this statement secured the benefit of the fact to the same extent as if he had introduced evidence to prove it. The question in which Mr. Bayne was referred to as the attorney of the Aetna Insurance Company was also justly subject to criticism. The question asked was as follows: ''At the time that this statement was taken from Luke Frain at the office of The Spring Valley Coal Company, was Mr. Bayne, the attorney for the Aetna Insurance Com- pany, there?" It is as strange as it is unfortunate that this question should have been asked through mere inad- vertence, as stated in appellee's brief. It is strange that with the name of appellant in counsel's mouth, the name of Mr. Bayne, who was then present assisting in the trial as attor- ney for the appellant, should have associated itself in coun- sel's mind and speech with the name of the Aetna Insurance Company as attorney instead of with the name of the ap- pellant. The question and the circumstances were well adapted to intimate strongly to the jury that the appellant was insured against liability for accidents of this character, and that the party which would have to respond for any judgment which might be rendered was the Aetna Insur- ance Company. Evidence of this character was not compe- tent. The intimation may not have been true, and it is un- fortunate that the suggestion should have been inadvert- ently made. The only effect it could have would be to con- vey an improper impression to the jury. The Appellate Court required a remittitur of $2000 from the judgment as the alternative of a reversal on account of the effect on the minds of the jury of the improper state- ment in regard to appellee's wife and children. Such re- mittitur does not, however, cure the error. {Jones S Adams Co. v. George, supra.) It is impossible to tell the effect, on the verdict, of the impressions wrongfully con- veyed to the jury's mind by the improper conduct of coun- sel. The judgment will be reversed and the cause remanded for a new trial. Reversed and remanaed. Chap. 12] Argument and Conduct of Counsel 497 BEOWN V. SWINEFORD. Supreme Court of Wisconsin. 1878. 44 Wisconsin, 282, Action for an assault and battery. Ryan, C. J. * * * ********** II. Following for once a bad practice, the learned coun- sel for the respondent, in closing the argument of the case to the jury, forgot himself so far as to exceed the limits of professional freedom of discussion. It appears by the bill of exceptions, that he waived the opening argument to the jury. A very strict rule might hold this to give the other side the right to close. If sucli a waiver should still leave the closing argument to the plaintiff, it certainly confined it to a strict reply to the de- fendant's argument, excluding general discussion of the case. The sole object of all argument is the elucidation of the truth, greatly aided in matters of fact, as well as in matters of law, by full and fair forensic discussion. And this is always imperiled when either party, by any practice, is able to present his views of the case to the jury without opportunity of the other to comment on them. And if the party entitled to the opening argument, relying on the strength of his case without discussion, waive the right to open, he waives the right to discuss the case generally, and should not be permitted to do so out of his order, and after the mouth of the other party is closed. His close, if per- mitted to close the argument, should be limited to com- ments on the argument of the other side. This is essential to the fairness and usefulness of juridical discussion at the bar. It sufficiently appears in the present case, that the learned counsel for the plaintiff did not properly confine his closing argument to a reply. It is very doubtful if that alone would be error sufficient to reverse the judgment, if an exception had been taken by the appellant, which does not appear to be the case. But the learned counsel went hevond the le£>Mtimate scope of all argument, by stating and commenting on facts not in evidence. T. p.— 32 498 Trial Practice [Chap. 12 In actions of tort, calling for exemplary damages, evi- dence of the pecuniary ability of the defendant to pay them is admissible. Birchard v. Booth, 4 Wis. 67; Barnes v. Mar- tin, 15 Wis. 240. This appears to be, as Mr. Justice Cole remarks in Birchard v. Booth, a fair corollary of the rule of exemplary damages. Perhaps the corollary is not bet- ter founded in principle than the rule; but the court takes them as it finds them established. It appeared in evidence, that the appellant was an officer of a railroad company, and that the locus in quo was within depot grounds of the company. No evidence appears to have been given of the ability of the appellant to pay ex- emplary damages. The learned counsel appears to have undertaken to supply this want of evidence, by comment- ing to the jury upon the appellant's connection with the railroad company, and the wealth and power of the com- pany as a great corporation, and the defendant's ability, from his connection with it, to pay any judgment which might be rendered against him. The bill of exceptions states, that "no record was kept of these remarks, and the court is unable to state more specifically the substances of the language used." But enough appears to show, not that the learned counsel commented on facts not in evi- dence, but in effect testified to the facts himself. It was in effect telling the jury that the appellant's position with the corporation gave him the ability to pay large damages, and nearly — if not quite — that they might measure the damages by the wealth of the railroad company itself. Amongst other evidence of the appellant's ability to pay, it might undoubtedly have been shown that he received large emoluments from his position in the railroad com- pany; and possibly that the railroad company had assumed the appellant's tort and the payment of the judgment. And it was not the duty or the right of counsel, was not within the proper scope of professional discussion, to assume the facts as proven, or to state them to the jury as existing; founding his argument pro tanto upon them. And this was the more marked in the present case, because it was made for the first time in what should have been a mere reply; and still more, because the court below had already admonished counsel to confine himself to the evidence, and not to go outside of the record. Chap. 12] Trial Peactice 499 The appellant took his exceptions; and his counsel now supports it by numerous cases, some of which are — as far as they go — admirable discussions of professional ethics, and all of which are well worth the attention of the bar. All of them support the rule now adopted by this court, that it is error sufficient to reverse a judgment, for counsel, againsi objection, to state facts pertinent to the issue and not in evidence, or to assume arguendo such facts to be in the case when they are not. Some of the cases go further, and reverse judgments for imputation by counsel of facts not pertinent to the issue, but calculated to prejudice the case. Tucker v. Eenniker, 41 N. H. 317; State v. Smith, 75 N. C. 306; Ferguson v. State, 49 Ind. 33; Hennies v. Vogel, Sup. Court III, 7 Cent. L. J., 18. There are cases in conflict with those which support this rule. But, in the judgment of this court, the rule is sup- ported by the weight of authority and by principle. Doubtless the circuit court can, as it did in this case, charge the jury to disregard all statements of fact not in evidence. But it is not so certain that a jury will do so. Verdicts are too often found against evidence and without evidence, to warrant so great a reliance on the discrimin- ation of juries. And, without notes of the evidence, it may be often difficult for juries to discriminate between the statements of fact by counsel, following the evidence and outside of it. It is sufficient that the extra-professional statements of counsel may gravely prejudice the jury and alTect the verdict. The profession of the law is instituted for the adminis- tration of justice. The duties of the bench and bar differ in kind, not in purpose. The duty of both alike is to es- tablish the truth and to apply the law to it. It is essential to the proper administration of justice, frail and uncer- tain at best, that all that can be said for each party, in the determination of fact and law, should be heard. Forensic strife is but a method, and a mighty one, to ascertain tlie truth and the law governing the truth. It is the duty of counsel to make the most of the case which his client is able to give him ; but counsel is out of his duty and his riglit, and outside of the prin-ciple and object of his profession, when he travels out of his client's case and assumes to sup- ply its deficiencies. Therefore is it that the nice sense of 500 Trial PRACTICE [Chap. 12 the profession regards with such distrust and aversion the testimony of a lawyer in favor of his client. It is the duty and right of counsel to indulge in all fair argument in favor of the right of his client ; but is outside of his duty and his right when he appeals to prejudice irrelevant to the case. Properly, prejudice has no more sanction at the bar than on the bench. But an advocate may make him- self the alter ego of his client, and indulge in prejudice in his favor. He may even share his client's prejudices against his adversary, as far as they rest on the facts in his case. But he has neither duty nor right to appeal to their prejudices, just or unjust, against his adversary, dehors the very case he has to try. The very fullest free- dom of speech within the duty of his profession should be accorded to 'Counsel; but it is license, not freedom of speech, to travel out of the record, basing his arguments on facts not appearing, and appealing to prejudices irrele- vant to the case and outside of the proof. It may some- times be a very difficult and delicate duty to confine coun- sel to a legitimate course of argument. But, like other difficult and delicate duties, it must be performed by those upon whom the law imposes it. It is the duty of the cir- cuit courts, in jury trials, to interfere in all proper cases of their own motion. This is due to truth and justice. And if counsel persevere in arguing upon pertinent facts not before the jury, or appealing to prejudices foreign to the case in evidence, exception may be taken by the other side, which may be good ground for a new trial, or for a re- versal in this court. It is with regret that the court is obliged to hold that both appear to have been done in this case. It was no fair inference for argument that, because the appellant was the servant of a wealthy railroad company, he himself was wealthy; or that the jury might take into consideration, in assessing damages, the power, wealth and influence of the corporation. Popular prejudice against great corpora- tions is, perhaps, a sufficient difficulty in the way of the administration of justice, in cases in which such corpora- tions themselves are parties; it is intolerable that it should be extended to their servants. For all that appears in this case, the apjx'llant may be as poor as Job in his down- fall. Ilis wealth, if he had it, was legitimate subject of Chap. 12] Akgument and Conduct of Counsel 50] evidence, not legitimate subject of argument, without evi- dence. And his fortune or misfortune in being the ser- vant of a corporation was legitimate ground for no appeal against him in a court of justice. It is to the honor of the bar that this is the first time that this question has come before this court. Yet it is not to be ignored that the practice here condemned has some- times been indulged in. And it is, perhaps, not to be re- gretted that the question has first come here in the case of an eminent member of the bar; a gentleman of high character, personal and professional, known to every mem- ber of this court; whose professional ability needs no ad- ventitious aid, and who probably fell into this error cas- ually and inadvertently. His professional standing shields him from personal censure, while it will give emphasis to the rule laid down. By the Court. — The judgment is reversed, and the cause remanded to the court below for a new triaL TOLEDO, ST. LOUIS & WESTERN RAILROAD COMPANY V. BURR. Supreme Court of Ohio. 1910. 82 Ohio State, 129. This action was originally commenced in the court of common pleas of Henry ^county, Ohio, by Burr & Jeakle and The Ohio German Fire Insurance Company as plain- tiffs, against The Toledo, St. Louis & Western Railroad Company as defendant, to recover damages from said rail- road company for the destruction by fire— alleged to have been commnr^! 111. 538, whore the evidence on the part of the state established the guilt of the accused, the court held that, assuming the truthfulness of the people's evidence, which assumption the prosecuting attorney had a right to make on the argument, it was not such an abuse of the privilege of counsel in argu- Chap. 12] Argument and Conduct of Counsel 507 ment to the jury, to speak of the accused, with reference to the offense for which they were on trial as robbers and burglars, as to work a reversal on that ground. So we may say it was not an abuse of the rules of legitimate argument, in this case, to speak of the accused, from the evidence of the state, as a murderer. ********** By the court. * * * The judgment is affirmed. GERMAN-AMERICAN INSURANCE COMPANY V. HARPER. Supreme Court of Arkansas. 1902. 70 Arkansas, 305. Wood, J. Appellees sued upon an insurance policy which contained this clause: "$2,000 total concurrent insurance permitted, including this policy." Subsequent to the is- suance of this policy, appellees took a policy in another com- pany for $2,000, which it was conceded avoided the policy sued on, unless the appellant had notice of the additional in- surance before the loss, and failed to object to such insur- ance. Appellant conceded that if its local agent had notice of the additional insurance, and failed to object thereto, the forfeiture was waived. Appellant's local agent testified that he had no notice of the additional insurance before the loss. Witnesses for appellees testified that he had such notice. The issue was sharply drawn on this question of fact. Marshall, the witness upon whom appellant relied to establish the want of notice of the current insurance, re- sided and was the local agent at Fort Smith. The cause was being tried, on change of venue, at Greenwood. James Brizzolara, one of the attorneys for appellees, in the first or opening argument to the jury, used this language: "Gen- tlemen of the jury, if you knew Marshall's business meth- ods, you would say, 'God save the plaintiffs, and God save all those who deal with him.' " Appellant objected to this remark of counsel, and the court said to the jury: "Col. Brizzolara 's remark is entirely imj^roper, and should not 508 Tkial Peactice [Chap. 12 have been made, and I now instruct you to pay no atten- tion to it in making up your verdict, and it must not be con- sidered by you. and give it no weight, but your duty is to consider the evidence admitted by the court in the progress of the trial." Coh Brizzolara was not a witness in the case. There was no evidence as to Marshall's business methods, — no impeachment of his business integrity or efficiency, nor of his moral character in the community where he lived. The rule of procedure to which this court is committed is very well expressed in Rudolph v. Landwerlen, 92 lud. 34, 40, where it is said: "Very many abuses in argument may be sufficiently corrected by the instructions of the court to the jury, and a large discretion as to the refusing of new trials because of such violations belongs to trial courts, and this court will not interfere because of an abuse in argu- ment which was sufficiently counteracted by the action of tlie trial court in the premises ; but it will interfere where, notwithstanding the efforts of the trial court to correct the abuse, the irregularity appears to be such as to prevent a fair trial, and the particular circumstances of each case will guide this court to its decision," In Chicago, B. & Q. Uy. Co. V. Kellogg, 76 N. W. Rep. 462, it is said: "If the trans- gression be flagrant, — if the offensive remark has stricken deep, and is of such a character that neither rebuke nor re- traction can entirely destroy its sinister influence, — a new trial should be promptly awarded, regardless of the want of objection or exception." In the language of Judge Mulkey in Quinn v. People, 123 111. 333: "As well might one attempt to brush off with the hand a stain of ink from a piece of white linen" as to eradicate from the jury the im- pression that was created by the remarks of Col. Brizzolara. The appellant was wholly dependent upon the testimony of Marshall to sustain its contention. He testified that he bad no knowledge and had not acquiesced in the additional insurance. In this statement he was in direct conflict with several witnesses for appellees, yet it was the jury's pro- vince to believe him in preference to all the rest. This the jurors would not likely have done, even without the deroga- torv statements of counsel. Still, they might have done so, and it is not for thi-^ r-ourt to sav that they would not have given more weight to his evidence than the other witnesses, Chap. 12] Akgument akd Conduct of Counsel 509 had it not been for the improper remarks. These remarks were gravely prejudicial. True, they were not made un- der the sanction of an oath as a witness. But the state- ment of matters of fact by counsel of high character and excellent standing in the profession might be as read- ily accepted and believed by the jurors, and make as profound and ineradicable impression upon their minds, as if they had been uttered under oath. The remarks of the learned counsel, if not directly, certainly by insinua- tion conveyed to the jury a knowledge on his part of Mar- shall's business methods which were so inefficient or disre- putable as to make him untrustworthy, and one whom all having business in his line should shun. The statement of counsel that an acquaintance with Marshall's business meth- ods would make ihe jurors feel like imploring the Almight> to save plaintiffs and all who had dealings with him was well calculated to make the jury regard him as entirely un- reliable, to say the least. We cannot see how it is pos- sible for the jury not to have been prejudiced, notwithstand- ing all the commendable efforts of the presiding judge to prevent such result. The only 'Cure for such prejudice is a new trial. For that purpose the judgment is reversed, and the cause remanded. EiDDicK, J., dissenting. ' MUHPHY'S EXECUTOR V. HOAGLAND. Court of Appeals of Kentucky. 1908. 32 Kentucky Law Reporter, 839. Opinion of the court by Judge Lassing, reversing. This is a contest over the will of John, commonly known as *' Pat" Murphy. * * * ********** Appellant also complains of the misconduct of counsel for the contestants during the progress of the trial. Dur- ing the course of the cross-examination of the witness, ^far- garet Devereaux, counsel for contestants asked this ques- tion: *'Do you know how many of the jurors wanted to 510 Trial Practice [Chap. 12 break it," (referring to the will of John Murphy at the last trial thereof), and continued, ''Don't jou know, as a matter of fact, that eight stood for breaking the will?" This question was at once objected to by counsel for the propounder and the objection was sustained. The learned counsel must have known that any question which referred to the result or the partial result of a former trial of the case was very improper, in fact inexcusable. Propoun- der 's counsel could not permit the question to go unnoticed, and the very fact that he objected, but served to emphasize it's importance in the minds of the jurors. They may have, and doubtless did, attach much importance to the question which was asked and objected to by counsel for the propounder, and even though it was excluded by the court, the jurors, being sensible and intelligent men, could not rid their minds of the information which this question gave them, to-wit: That eight jurors had, on a previous trial, stood for breaking the will. They no doubt reasoned amon^^ themselves that had this not been true, the propounder would not have objected to its being asked, and, being taken as true, it was in fact stating to the jury that, while you are to try this case according to the evidence, we want you to know that, at least, eight jurors on a former trial believed that the will should not be permitted to stand. In the case of the Illinois Central Railroad Co. v. Jolly, 27 Ky. Law Rep., 119, counsel, in closing his argument in the lower court, used this language: "That this action had been in the courts some four or five years, and that the railroad company was furnished with lawyers and steno- graphers for the purpose of catching at every little thing to take the case to the Court of Appeals again, in order to defeat the claim by reversing it, it having lieretofore been reversed in the Court of Appeals on a technicality," and other similar statements. On appeal this court said: ''When counsel, in the heat of argument, oversteps the bounds and objection is made by the opposing side, the court should exclude the improper matter. The remarks of appellee's counsel that this lady had obtained a judg- ment on the former trial; that it had been appealed from and reversed by this court upon a toiphnicality, and that ap- pellant was then preparing, witli the assistance of skilled lawyers and stenographers, to appeal from any verdict Chap. 12] Aegument and Conduct of Counsel 511 that might be rendered and obtain another reversal, were improper. ' ' And in the case of the L., H. & St. L. Ry. Co. v. Morgan, 23 Ky. Law Rep., 121, appellee's counsel had used this lan- guage: "The railroad can appeal this case, but the plain- tiff, Morgan, is a poor man and has no money to appeal with, and will have to accept what you do, but the railroad has money to appeal this case, and it will do so.' ' And this court, in passing upon that case on review here, said: "There is a latitude allowed in oral argument, but it should not extend as far as was done in the quotation." In each of these cases above referred to the judgment was reversed because of improper argument and other errors. For the reasons given the judgment is reversed and cause remanded, for further proceedings consistent with this opinion. WILLIAMS V. BROOKLYN ELEVATED RAILROAD COMPANY. Court of Appeals of Neiv York. 1891. 126 Neiv York, 96. This action was brought to recover damages to plaintiff's premises in Brooklyn, caused by the erection and operation of defendant's elevated railroad upon the street in front of them. Andrews, J. * * * *#«♦**♦*** The counsel for the plaintiff, in his address to the jury, after referring to "the utter disregard of the rights of the private citizens by corporations," proceeded to read from a newspaper, "The New York Tribune," an article headed "Only a Boy Peddler," purporting to be an account of the death of a boy, "a little fellow fifteen years old, a Rouman- ian, a stranger in this great city (New York), selling collar buttons and pocket combs from a modest tray, to help sup- 512 Teial Practice [Chap. 12 port his mother and eight brothers and sisters," caused by his touching an electric wire which, the article stated, had been left swinging for months from a pole near which the boy had taken his stand. This was made by the writer the text for comment on the neglect of the city officials in failing to take effective measures to have electric wires placed under ground, and the article concluded with the statement: *'It is shameful that where such perils are in question there sliould be procrastination, shiftlessness and incompetency which would not be tolerated in a private business." When the counsel for the plaintiff commenced reading the article the defendant's counsel interposed and objected to the reading, and asked the court to prevent it. The court overruled the objection, and the defendant's counsel ex- cepted. The plaintiff's counsel then resumed the reading, and was reminded by the court that the reading was under exception, but the counsel proceeded and read the remainder of the article. It is the privilege of counsel in addressing a jury to com- ment upon every pertinent matter of fact bearing upon the questions which the jury have to decide. This privilege it is most important to preserve and it ought not to be narrowed by any close construction, but should be inter- preted in the largest sense. The right of counsel to address the jury upon the facts is of public as well as private consequence, for its exercise has always proved one of the most effective aids in the ascertainment of truth by juries in 'Courts of justice, and this concerns the very highest interest of the state. The jury system would fail much more frequently than it now does if freedom of advocacy should be unduly hampered and counsel should be prevented from exercising within the four corners of the evidence the widest latitude by way of comment, denunciation or appeal in advocating his cause. This privilege is not be- yond regulation by the court. It is subject to be controlled by the trial judge in the exercise of a sound discretion, to prevent undue prolixity, waste of time, or unseemly critic- ism. The privilege of counsel, however, does not justify the introduction in his summing up of matters wholly im- material and irrelevant to the matter to be decided, and wliich the jury have no right to consider in arriving at their Chap. 12] Argument and Conduct of Counsel 51o verdict. The jury are sworn to render their verdict upon the evidence. The law sedulously guards against the intro- duction of irrelevant or incompetent evidence, by which the rights of a r^arty may be prejudiced. The purpose of these salutary rules might be defeated if jurors were al- lowed to consider facts not in evidence, and the privilege of counsel can never operate as a license to state to a jury facts not in evidence, or to present considerations which have no legitimate bearing upon the case and which the jury would have no right to consider. ^Yhere counsel in summing up proceeds to dilate upon facts not in evidence or to press upon the jury considerations which the jury would have no right to regard, it is, we conceive, the plain duty of the court, upon objection made, to interpose, and a refusal of the court to interpose, where otherwise the right of the party would prejudiced, would be legal error. There are many cases sustaining this conclusion. Among them are Mitchum v. State of Georgia (11 Geo. 6J6) ; Tucl-er v. Henniker (41 N. H. 317) ; Rolfe v. Rumford (66 Me. 564). The reading by counsel in summing up to the jury of tlie newspaper article ' ' Only a Boy Peddler, ' ' was wholly irre- levant to the case. It could have been read for no purpose except to influence the jury against corporations and to lead them, under the influence of a just anger ex^cited by the incident narrated, to give liberal damages to the plain- tiif in the case on trial. The refusal of the court to inter- fere, under the circumstances of this case, was legal error. The privilege of counsel and the largest liberality in con- struing it did not authorize such a totally irrelevant and prejudicial proceeding. The counsel also, during the sum- ming up, read a passage from the opinion of this court in the Lahr case (104 N. Y. 291), after objection taken by the defendant's counsel had been overruled by the court. It is not important to consider the exception to this ruling, as the appellant is entitled to a reversal for the reason already stated. It may be observed, however, that it is the function of the judge to instruct the jury upon the law, and where counsel undertake to read the law to the jury, the judge may properly interpose to prevent it ; but if the judge sees fit to permit this to be done and the law is correctly laid down in the decision or book used by counsel, it would not, we think, constitute legal error or be ground of ex- T. p.— 33 514 Trial Practice [Chap. 12 ception by the other party, although snch a practice is not to be encouraged. If, however, the reading from a de- cision was to bring before the jury the facts of the case decided, or the amount of the verdict, or the comments of the judge on the facts, to influence the jury in deciding upon the facts in the case on trial, or in fixing the amotint of damages, then dearly the reading ought not to be permit- ted. We think the judgment in this case should be reversed upon the exception taken to the reading of the newspaper article. Judgment reversed and new trial ordered. All concur. Judgment reversed. WILKINSON V. PEOPLE. Supreme Court of Illinois. 1907. 226 Illinois, 135. Mr. Justice Wilkin delivered the opinion of the court: It appears that an action on the case had been brought l)y one Rose Strang against the Lake Street Elevated Rail- road Company for personal injuries, in wliich the defend- ant and others testified on behalf of the plaintiff. The suit resulted in a verdict in favor of the plaintitf. William Elmore Foster and Joseph B. David, who were attorneys for the railroad company, were engaged with one L. L. Austin, a claim agent, and Thomas McGuire, a detective, in endeavoring to obtain affidavits in support of a motion for a new trial, and claiming to have learned from the defendant that his testimony in the ^case was not true, after some preliminary conversations a meeting was arranged for the 22nd of April, 1904, in the office of Foster, at which Foster, McGuire, David, Miss Neville, (a stenographer,) and the defendant were present. Conversations then took place as to the testimony given by Wilkinson upon the trial of the personal injury case, at which time it is claimed the Chap. 12] Argument and Conduct of Counsel 515 writing set up in the indictment as an affidavit was read to the defendant. The defendant, together with Rose Strang and others, was subsequently indicted in the criminal court of Cook county for having conspired to extort money from the said elevated railroad company, upon the trial of which it is charged the defendant committed the perjury at- tempted to be assigned. As above stated, Josex)h B. David was one of the attor- neys for the elevated railroad company in the personal injury case and testified on behalf of the People in this case. He swears he was also special counsel for the People in the trial of the conspiracy case, and appears prominently in the argument of this -case * * * ********** It is insisted that the judgment below should be reversed because one of the attorneys who appears as counsel for the People and argued the case orally in this court was a leading and material witness on behalf of the prosecution in the court below. In justification of his conduct it is in- sisted that there is no law in this State, statutory or other- wise, forbidding an attorney to be a witness and at the same time an attorney in a case. Doubtless that is true; but courts have generally condemned the practice as one which should be discountenanced and of doubtful profes- sional propriety. We said, speaking by Justice Breese, in Morgan v. Roberts, 38 111. 65, on page 85: ''We are not advised that it is contrary to any statute or to any maxim of the common law to make the attorney in a cause a wit- ness in the cause he is managing. This is a matter which appeals to the professional pride of an attorney and his sense of his true position and duty. In the English courts, in several cases, it was held that an attorney cannot appear in the same cause in the double capacity of witness and advocate, and it has been so ruled in Pennsvlvania and in Iowa, on the circuit. In Indiana it was held by Judge McDonald, now United States district judge, that an at- torney in a cause could not be permitted to testify to the general merits of the ease. In Frear v. Drinlrr, 8 Pa. St. Rep. 521. the court said that it was a hiirhly indecent prac- tice for an attornev to cross-examine witnesses, address the jury and give evidence himself to contradict the witness: that it was a practice to be discountenanced by court and 516 Teial Practice [Chap. 12 counsel ; that it was sometimes indispensable that an attor- ney, to prevent injustice, should give evidence for his client. It, however, leads to abuse. But at the same time there was no law to prevent it. All the court can do is to discounten- ance the practice, and, when the evidence is indispensable, to recommend to the counsel to withdraw from the cause. This subject has engaged the attention of other courts and of this court, and however indecent it may be in practice for an attorney retained in a case and managing it, to be a witness also, we cannot say he is incompetent, and must leave him to his own convictions of what is right and pro- per under such circumstances." And again, in Ross v. Demoss, 45 111. 447, Justice Lawrence said: ''On the trial below the evidence was conflicting, but it seems to prepon- derate in favor of the decree. The weight of the evidence of Garner is somewhat impaired from the fact that he was proved to have been one of the attorneys in the case, and had a conditional fee, dependent on the result of the suit. It is of doubtful professional propriety for an attorney to become a witness for his client without first entirely withdrawing from any further connection with the case, and an attorney occupying the attitude of both witness and attorney for his client subjects his testimony to critic- ism, if not suspicion ; but where the half of a valuable farm depends upon his evidence he places himself in an unpro- fessional position and must not be surprised if his evidence is impaired. While the profession is an honorable one, its members should not forget that even they may so act as to lose public confidence and general respect." The foregoing language of eminent judges of this court was used in civil cases and is peculiarly applicable to this case, in which the People are generally understood to be represented by public officers. Here the witness first ap- peared as an attorney for the Lake Street Elevated Rail- road Company in the personal injury case, and was promi- nent in procuring affidavits in support of the motion for a new trial, and one of which he attempted to obtain from the defendant, Wilkinson. He next appeared, he says, as special counsel for the People in the prosecution of the conspiracy case, and while he may not have actively ap- peared in the prosecution of this case on the trial below, it is quite apparent that he had more or less to do with shap- Chap. 12] Argument and Conduct of Counsel 517 ing the course of the prosecution, and voluntarily, as we have already said, appeared as a prominent witness in the case. There is substantial ground for the inference that he regarded the litigation throughout as between the elevated railroad company and the defendant or defendants, rather than as by the People for the enforcement of public rights. The fact that he does appear in this record in the unenvi- able attitude of a willing witness and a zealous attorney should not, perhaps, work a reversal of the judgment be- low if the record were in all other respects free from error, but we cannot overlook such professional impropriety when our attention is called to it. Other grounds of reversal urged have received consider- ation, but we think they are without substantial merit. For the errors indicated the judgment below will be re- versed. Judgment reversed. Mr. Justice Carter, dissenting. CAMPBELL V. MAHER. Supreme Court of Indiana. 1885. 105 Indiana, 383. Elliott, J. In the course of his argument to the jury the counsel for the appellee said: ''The record in this case shows that the plaintiff was not willing to try this case at his home in Daviess county, among his neighbors, but has brought the case to Pike county on a change of venue, among strang- ers." The appellant objected, and the court, as the record recites, "remarked that it was not improper for counsel to refer to matters which were disclosed by the record, since the whole record was before the jury, but that the argument of counsel had gone too far, and should be limited to the record." lYliat followed is thus exhibited in the record: "And thereupon counsel for the plaintiff resumed his seat, and the counsel for the defendant again turned to the jury, and, resuming his argument, said: 'The court says T may 518 Teial Practice [Chap. 12 refer to the record. Gentlemen, the record of this case shows that the cause was brought from Daviess .county to this county on the motion of the plaintiff.' To which statement the plaintiff's counsel again objected, and again assigned in support of his objection the reasons assigned by him in support of the objection to argument of defend- ant's counsel herein above set out, but the court overruled said objection, to which the plaintiff's counsel excepted, whereupon the defendant's counsel again turned to the jury and said: 'Gentlemen of the jury, I have only stated to you what the record in this cause shows to be true, and the court has decided that I have a riglit to do this.' " The trial court was unquestionably wrong in ruling that everything that appears in the record is the subject of argument to the jury, for there are many things which the record discloses that the jury have no right to consider. Juries, as every one knows, are sworn to try the case ''ac- cording to the law and the evidence," and an argument must be confined to the evidence and the law. AYhere a party secures a legal right according to law, the fact that he has secured it can not be used to his prejudice. A change of venue is a legal right, and where it is awarded by the court in conformity to law, it can not be used to the pre- judice of the party by wiiom it was obtained, nor can it be commented on in argument. It would be a perversion of law to permit the exercise of a legal right, under the order of the court, to be made the subject of consideration by a jury. We need not, however, discuss this question further for it is settled against the appellee by authority. Farnian V. Lauman, 73 Ind, 568. The comments of counsel were not mere general, fugitive statements, but they were reiterated, and they were also sanctioned by the ruling of the court, so that there was a deliberate and emphatic presentation of an improper sub- ject to the jury, and unless we can ascertain from the record that no harm resulted, we must reverse. The record does not enable us to declare that the appellant was not injured, for the case is a close one upon the evidence, and we can not say tliat the misconduct of the appellee's counsel did the appellant no injury. There are cases where a reversal will not be adjudged, although there is some misconduct in argu- ment. Shular v. State, ante, p. 289, and authorities cited; Chap. 12] Argument and Conduct of Counsel 519 ''Misconduct of Counsel in Argument," 14 Cent. L. J. 406. This is not such a case. Judgment reversed. HANSELL-ELCOCK FOUNDEY COMPANY V. CLARK. Supreme Court of Illinois. 1905. 214 Illinois, 399. Me. Chief Justice Ricks delivered the opinion of the court : This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment of the superior court of Cook county for $8,000 in favor of appellee, against appellant, for damages for personal injuries sustained by the appellee while in appellant's employ. Appellee, at the time of the injury, July 16, 1901, was a structural iron worker in appellant's service, engaged in the construction of the St. Cecilia school building, — a three-story structure in the city of Chicago, — and while so engaged was struck by a large iron beam, sustaining the injuries for which this suit was brought. The court limited the time of the argument to forty-five minutes for each side, but extended the time seven minutes for defendant's counsel, at their request, but refused to grant further extension although requested so to do, and this refusal of the court is also assigned as error. It is earnestly insisted by counsel for appellant that because of this limitation they were unduly hampered in the presenta- tion of the case to the jury. We have always held this question to be one within the sound discretion of the trial court, but that where it appears that the discretion has manifestly been abused this court would reverse the case for such error. In cases of this character each side should have ample time to present its case to the jury and to thor- oughly argue the facts. The bare possibility of compromis- ing the rights of either the plaintiff or defendant because of not allowing counsel ample time in which to present a client's cause should be carefully guarded against. Under 520 Teial Practice [Chap. 12 our system of jurisprudence the power of the jury is so great, trial courts should be liberal in their allowance to counsel of time in which to review and argue the evidence. The trial court, however, who hears the case is in a far bet- ter position to judge as to the time proper to be given counsel for argument than can be a court of review, and we are not disposed to reverse a case, for the reason alone, that the time allowed counsel for argument was too short, unless we are thoroughly satisfied the complaining party has in fact been wronged by an undue limitation. In this case we think the trial court might very properly have granted counsel more time for argument, but we do not think we would be justified in reversing the case on the simple ground that the limitation was unjust. But seven witnesses testified for appellee and nine for appellant. The record shows that the examination of the witnesses began on the 17th of March, 1903, and that upon the convening of the court on the 19th the verdict of the jury was returned. But five witnesses on each side testified as to the condition and scene of the accident. We cannot say from a review of the evidence that the time allotted counsel for argument was manifestly too short. The judgment of the Appellate Court will be affirmed. Judgment affirmed. CHAPTER XIII. SPECIAL INTERROGATORIES. Section 1. Pukpose, Scope and Effect. CHICAGO AND NORTHWESTERN RAILWAY COM- PANY V. DUNLEAVY. Supreme Court of Illinois. 1889, 129 Illinois, 132. Mr. Justice Bailey delivered the opinion of the Court : This was an action on the case, brought by Annie Dun- leavy, administratrix of the estate of John Dimleavy, de- ceased, against the Chicago and Nortliwestern Railway Company, to recover damages under the statute for the death of the plaintiff's intestate. The declaration consisted of nine counts, to the fifth, sixth and seventh of which a demurrer was sustained. To the remaining counts the de- fendant pleaded not guilty, and on trial before the court and a ,iury, the issues were found for the plaintiff and her damages assessed at $1800, and for that sum and costs, the court, after denying the defendant's motion for a new trial, gave judgment for the plaintiff. Said judgment was af- firmed by the Appellate Court on appeal, and by a further appeal the record is now brought to this court. The first count of the declaration alleges that the defend- ant, on the 26th day of July, 1886, by its servants, ran one of its locomotive engines with a train of freight cars thereto attached, from east to west over one of its tracks under a viaduct at Blue Island avenue, in the city of Chicago ; that the plaintiff's intestate was then and there in the employ of said city cleaning and painting the iron columns, etc., of said viaduct, and that "the said train was, by and through the negligence, carelessness and improper conduct of the said defendant, through its servants in the premises, run at a high and dangerous rate of speed," and that while being so run, it was driven against and upon said Dun- 521 522 Trial Practice [Chap. 13 leavy, whereby he was instantly killed. The second count alleges that the defendant, through its servants, "so care- lessly, improperly and unskillfully managed and conducted said engine and train, that the said John Dunleavy was forcibly knocked down by said engine and train" and thrown under the wheels of the train and instantly killed. The third count sets up an ordinance of said city requiring the bell of each locomotive engine to be rung continually while running within the city, and alleging that the defend- ant's servants in charge of said train failed to comply with said ordinance, and that in consequence of such failure said Dunleavj'- was killed. The fourth count is substantially like the second. The eighth count alleges that the engineer and fireman could, by looking, have seen Dunleavy standing at his work, and by sounding a whistle have given him notice of the approach of a train, but that they failed to sound the whistle, and that in consequence of such failure said Dunleavy was killed. The ninth count alleges substantially the same act of negligence as the eighth, though in different language. Each count alleges in proper form that Dun- leavy at the time he was killed, was in the exercise of due care. At the close of the trial the counsel for the defendant asked the court to instruct the jury that the evidence in the case was insufficient to sustain a verdict for the plaintiff, and that their verdict should therefore be for the defendant. This instruction the court refused to give, and such refusal is assigned for error. The next questions to be considered are those which relate to the special findings of the jury. Upon this branch of the case it is urged, first, that the court improperly re- fused to submit certain questions of fact to the jury; second, that certain of the questions of fact submitted were not properly answered; and third, that the special findings of fact are inconsistent with the general verdict. The statute under which special findings may be required is but recent, ?ind the rules of practice thereby established have never be- fore been presented to this court for its consideration. We must therefore look mainly to the statute itself for our guide in determining the propositions now raised. The statute is as follows: Sec. 1] Special Intehkogatories 523 Section 1. "That in all trials by jury in civil proceed- ings in this State in courts of record, the jury may render, in their discretion, either a general or a special verdict; and in any case in which they render a general verdict, they may be required by the court, and must be so required on request of any party to the action, to find specially upon any material question or questions of fact which shall be stated to them in writing, which questions of fact shall be submitted by the party requesting the same to the adverse l)arty before the commencement of the argument to the jury. Sec. 2. "Submitting or refusing to submit a question of fact to the jury when requested by a party as provided by the first section hereof may be excepted to and be reviewed on appeal or writ of error as a ruling on a question of law. Sec. 3. "When the special finding of fact is inconsistent with the general verdict, the former shall control the latter and the court may render judgment accordingly." This statute, so far as it relates to special verdicts, is merely declaratory of the common law. It has been compe- tent for juries at common law, since the statute of 13 Edward 1, to find a general verdict, or when they have any doubt as to the law, to find a special verdict, and refer the law arising thereon to the decision of the court. By a special verdict, the jury, instead of finding for either party, find and state all the facts at issue, and conclude con- ditionally, that if upon the whole matter thus found, the court should be of the opinion tliat the plaintiff has a good cause of action, they then find for the plaintiff, and assess his damages ; if otherwise, then for the defendant. 2 Tidd's Practice, (Am. ed.) 897, and note. The rules of law as to special verdicts and their requisites have long been settled both in this country and in England. Thus, it is held that they should find facts, and not the mere evidence of facts, so as to leave nothing for the court to determine except questions of law. Vhicrnt v. Morrhon, Breese, 227 ; Brown v. Balson, 4 Rand. 504; Seward v. Jack- son, 8 Cow. 406; Henderson v. Aliens, 1 Hen & Mun. 2.35; Hill V. Covell, 1 N. Y. 522; Lanqleij v. Warren, 3 id. 327; Kinsley v. Coyle, 58 Pa. St. 461; Thompson v. Farr, 1 Spears, 93 ; Leach v. Church, 10 Ohio St. 149 : LaFromhios v. Jackson, 8 Cow. 589. To authorize a judgment upon a 524 Trial Practice [Chap. 13 special verdict, all the facts essential to the right of the party in whose favor the judgment is to be rendered, must be found by the jury; finding sufficient evidence, prima facie, to establish such facts, is not sufficient. Blake v. Davis, 20 Ohio, 231; Hambleton v. Dempsey, id. 168. If probative facts are found from which the court can declare that the ultimate facts necessarily result, the finding is suf- ficient. Alhambra Addition Water Co. v. Richardson, 72 Cal. 598 ; Coveny v. Hale, 49 id. 552. A special verdict can- not be aided by intendment, and therefore any fact not ascertained by it will be presumed not to exist. Lee v. Campbell, 4 Porter, 198 ; Zumull v. Watson, 2 Munf. 283 ; Laivrence v. Beaiibun, 2 Bailey, 625. It is manifest of course that a special finding by a jury upon material questions of fact submitted to them under the provisions of the statute is not a special verdict, but an es- sentially different proceeding. A special verdict cannot be found where there is a general verdict, but the special findings of fact provided for by the statute can be required only in case a general verdict is rendered. But while this is so, much light in relation to special findings upon ques- tions of fact, and their office and objects may be derived from the rules applicable to special verdicts. Both forms of verdict are provided for by the same statute, and they must therefore be construed as being in pari materia. In giving construction to the statute, the first, and per- haps the most important question, relates to the scope and meaning of the phrase, "material question or questions of fact." May such questions relate to mere evidentiary facts, or should they be restricted to those ultimate facts upon which the rights of the parties directly depend? Evidently the latter: Not only does this conclusion follow from an- alogy to the rules relating to si)ecial verdicts, but it arises from the very nature of the case. It would clearly be of no avail to require the jury to find mere matters of evi- dence, because, after being found, they would in no way aid the court in determining what judgment to render. Dou])tloss a probative fact from which the ultimate fact necessarily results would be material, for there the court could infer such ultimate fact as a matter of law. But where the probative fact is merely prima facie evidence of the fact to be proved, the proper deductions to be drawn Sec. 1] Special Interrogatories 525 from the probative fact presents a quefc>tion of fact and not of law, requiring further action by the jury, and it cannot therefore be made the basis of any action by the court. Re- quiring the jury to find such probative fact is merely requir- ing them to find the evidence and not the facts, and results in nothing which can be of the slightest assistance to the parties or the court in arriving at the proper determination of the suit. The vievf^ we take is strongly fortified by the provision of the third section of the statute, that, when a special find- ing of fact is inconsistent with the general verdict, the former shall control. This necessarily implies that the fact to be submitted shall be one which, if found, may in its na- ture be controlling. That can never be the case with a mere evidentiary fact. A fact which merely tends to prove a fact in issue without actually proving it, can not be said to be, in any legal sense, inconsistent with a general ver- dict, whatever that verdict may be. Such inconsistency can arise only where the fact found is an ultimate fact, or one from which the existence or non-existence of such ulti- mate fact necessarily follows, and that is never the case with that which is only prima facie evidence of the fact sought to be proved. The common law requires that verdicts shall be the de- claration of the unanimous judgment of the twelve jurors. Upon all matters which they are required to find they must be agreed. But it has never been held that they must all reach their conclusions in the same way and by the same method of reasoning. To require unanimity not only in their conclusions but in the mode by which those conclusions are arrived at would in most cases involve an impossibility. To require unanimity therefore, not only in the result but also in each of the successive steps leading to such result, would be practically destructive of the entire system of jury trials. To illustrate, suppose a plaintiff trying his suit before twelve jurors, should seek to prove a fact alleged in his declaration by giving evidence of twelve other facts, each having an independent tendency to prove the fact al- leged. The evidence of each probative fact, or the con- clusions to be drawn from it, might appeal with peculiar force to the belief or judgment of some one of the jurors, but less so to his fellows. The cumulative effect of all the 526 Trial Peactice [Chap. 13 evidence might be such as to leave no doubt in the mind of any member of the panel as to the truth of the fact alleged, still, if the jury were required to find specially as to each probative fact, no one of the twelve facts would be at all likely to meet with the unanimous concurrence of the entire jury. As to each they would be compelled to confess their inability to agree, or what would be its equivalent, say they did not know or could not tell, which, if we apply the rules governing special verdicts, would be tantamount to a finding that the fact was not proved or did not exist. If such find- ing should be required, and should be given the effect of controlling the general verdict, the result would be, that under such system of trial, general verdicts could but sel- dom stand. However natural the curiosity parties may have to know the precise course of reasoning by which jurors may arrive at verdicts either for or against them, they have no right, under gise of submitting questions of fact to be found specially by the jury, to require them to give their views upon each item of evidence, and thus practically subject them to a cross-examination as to the entire case. Such practice would subserve no useful purpose, and would only tend to embarrass and obstruct the administration of jus- tice; and we may further say that such practice finds no warrant in our statute. We are referred to one case in another State, where, in a suit for personal injuries against a railroad company, the defendant was permitted under a statute somewhat similar to ours, to put to the jury no less than one hundred and thirty-six interrogatories as to the facts, covering, ap- parently every possible phase of the evidence. The judg- ment against the railroad company" was reversed for an erroneous instruction to the jury as to the form to their answer to questions where the evidence was not sufficient, but no suggestions seems to have been made that any por- tion of the questions put to the jury were improper. What- ever may be the view of such practice taken by the courts of other States, we are unwilling to give our countenance to its adoy)tion here. In the present case the defendant's counsel prepared and submitted fifteen questions of fact upon which the court was asked to require the jury to make special findings. Of these Sec. 1] Special Interrogatories 527 the eleventh and twelfth were refused. The first was mod- ified and suhmitted to the jury in its modified form. The residue of the questions were submitted as asked. We do not understand that the defendant is now complaining of the action of the court in relation to its eleventh and twelfth questions of fact. The first, as prepared by the defendant's counsel, was as follows : 1. ''^^Hiat precaution did the deceased take to inform himself of the approach of the train which caused the in- jury?" This was modified by the court so as to read as follows : 1. ''Was the deceased exercising reasonable care for his own safety at the time he was killed?" The ultimate fact which it was incumbent upon the plain- tiff to prove, and which the defendant sought to disprove, was that the deceased, at the time he was killed, was in the exercise of due care. That was one of the issues made by the pleadings, and it was one of the ultimate facts upon which the plaintiff's right to recover necessarily depended. What the deceased did to inform himself of the approach of the train was material only as tending to show reasonable care on his part or the want of it. His acts in that behalf, then, whatever they may have been, were facts which were merely evidential in their nature, and while they doubtless would have had a tendency to prove reasonable care or the contrary, there were none of them, so far as the evi- dence shows, which would have been conclusive of that question. The question then, as submitted by the defend- ant's counsel, sought to obtain a finding as to mere pro- bative facts, and the court, therefore properly refused to require the jury to answer it. The question substituted by the court submitted to the jury a material and controlling fact, and one which could be properly made the subject of a special finding. Complaint is made to the answers given by the jury to the fourth and fifth questions. Those questions were as fol- lows: 4. ''Did the deceased look to a&certain if the train in question was approaching? 5. "Did the deceased listen to ascertain if said train was approaching?" To both of those questions the jury answered: "Don't 528 Tkial Pkactice [Chap. 13 know." It is perhaps questionable whether the defendant, in order to avail itself of the objection that no proper an- swer was made to these questions, should not have made it at the time the verdict was returned and before the jury were discharged, for then the jury might have been required to complete their verdict by making proper answers. Moss V. Priest, 19 Abb. Prac. 314. But however that may be, it is manifest that the error, if it be one, cannot have been prejudicial to the defendant unless it can be seen that answers to said questions most favorable to the defendant, which of course would have been answers in the negative, would have constituted a finding inconsistent with the general verdict. If then we treat said questions as having been answered in the negative, would such answers, either alone or in con- nection with the answers to the other questions, have consti- tuted a finding necessarily inconsistent with the general ver- dict? To the second question, viz., "If the deceased had looked before the accident, could he have discovered the approach of the train in time to have avoided the accident?" the jury answered, "Yes," and to the third question, viz., "If the deceased had listened before the approach of said train, could he have discovered the approach of the train in time to have avoided the accident?" they answered, "If he had concentrated his attention in that particular direc- tion, yes." The first question, viz., "Was the deceased exer- cising reasonable care for his safety at the time he was killed?" was also answered, "Yes." The question then presents itself, whether, if it be ad- mitted that the deceased neither looked or listened for the train, and also that if he had looked he could have seen it, and if he had listened with his attention concentrated in that direction, he could have heard it in time to avoid the accident, such facts would constitute such conclusive proof of contrilmtory negligence on the part of the deceased as would have barred a recovery. Undoubtedly a failure to look or listen, especially where it affirmatively appears that looking or listening might have enabled the party exposed to injury to see the train and thus avoid being injured, is evidence tending to show negligence. But they are not conclusive evidence, so that a charge of negligence can be predicated upon them as a matter of law. There may be Sec. 1] Special Interrogatoeies 529 various modifying circumstances excusing the party from looking or listening, and that being the case, a mere failure to look or listen cannot, as a legal conclusion, be pronounced negligence per se. In determining whether the special findings are inconsis- tent with the general verdict so that the latter must be held to be controlled by the former, this court cannot look at the evidence. All reasonable presumptions will be entertained in favor of the verdict, while nothing will be presumed in aid of the special findings of fact. The inconsistency must be irreconcilable, so as to be incapable of being removed by any evidence admissible under the issues. Pennsylvania Co. V. Smith, 98 Ind. 42; McComas v. Haas, 107 id. 512; Redelsheimer v. Miller, id. 485. Under these principles it must be held that there is no necessary or irreconcilable inconsistency between the special findings and the general verdict, especially in view of the fact that the jury, not- withstanding their finding that the deceased did not look or listen, also found that he was in the exercise of reason- able care. We are of the opinion that the record contains no ma- terial error, and the judgment of the Appellate Court will therefore be affirmed. Judgment afirmed} 1 Clementson, in his work on Special Verdicts and Findings, ingeniously observes: — "The submipsion of interrogatories under the statute is a sort of 'exploratory opening' into the abdominal cavity of the general verdict (if I may be pardoned a surgical metaphor) by which the court determines whether the organs are sound and in place and the proper treatment to be pursued." Page 45. T. P.— 34 530 Trial Practice [Chap. 13 Section 2. Constitutionality. WALKER V. NEW MEXICO AND SOUTHERN PA- CIFIC RAILROAD COMPANY. Supreme Court of the United States. 1897, 165 United States, 593. Mr. Justice Brewer delivered the opinion of the court. The testimony was not preserved, and the case is submit- ted to us upon the pleadings, the verdict, the special findings of fact and the judgment; and on the record as thus pre- sented plaintiff in error rests her claim of reversal upon three propositions : First, that the act of the territorial legislature, authorizing special findings of fact and provid- ing for judgment on the special findings, if inconsistent with the general verdict (Laws of New Mexico 1889, c. 45, page 97), is in contravention of the Seventh Amendment to the Constitution of the United States, which reads : * ' In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than accord- ing to the rules of the common law." First, with regard to the constitutional question, the specific objection is thus stated in the brief : ''It is not contended, although the English authorities would appear to warrant the contention, that at the common law the judge might not require the jury to answer special questions, or interrogate the jury as to the grounds upon which their general verdict was found ; but it is most earn- estly contended that the extent of the power of the judge, if in his opinion the special findings or answers of the jury to interrogatories were inconsistent with the general ver- dict, was to set aside the general verdict and award a ven- ire de novo, while under this statute authority is attempted to be conferred upon the judge to render final judgment upon tlie special findings." We deem it unnecessary to consider the contention of defendant in error that the territorial courts are not courts Sec. 2] Special Intereogatokies 531 of the United States, and that the Seventh Amendment is not operative in the Territories, for by the act of April 7, 1874,^ c. 80, 18 Stat. 27, Congress, legislating for all the Territories, declared that no party ''shall he deprived of the right of trial by jury in cases cognizable at common law;" and while this may not in terms extend all the provisions of the Seventh Amendment to the Territories, it does secure all the rights of trial by jury as they existed at common law. The question is whether this act of the territorial legis- lature in substance impairs the right of trial by jury. The Seventh Amendment, indeed, does not attempt to regulate matters of pleading or practice, or to determine in what way issues shall be framed by which questions of fact are to be submitted to a jury. Its aim is not to preserve mere mat- ters of form and procedure but substance of right. This requires that questions of fact in common law actions shall be settled by a jury, and that the court shall not assume directly or indirectly to take from the jurj^ or to itself such prerogative. So long as this substance of right is preserved the procedure by which this result shall be reached is wholly within the discretion of the legislature, and the courts may not set aside any legislative provision in this respect because the form of action — the mere manner in which questions are submitted — is different from that which obtained at the common law. Now a general verdict embodies both the law and the facts. The jury, taking the la^v as given by the court, apply that law to the facts as they find them to be and express their conclusions in the verdict. The power of the court to grant a new trial if in its judgment the jury have misin- terpreted the instructions as to the rules of law or misap- plied them is unquestioned, as also when it appears that there was no real evidence in support of any essential fact. These things obtained at the common law; they do not tres- pass upon the prerogative of the jury to determine all questions of fact, and no one to-day doubts that such is tlie legitimate duty and function of the court, notwithstanding the terms of the constitutional guarantee of right of trial by jury. Beyond this, it was not infrequent to ask from the jury a special rather than general verdict, that is. in- stead of a verdict for or against the plaintiff or defendant 532 Trial Peactice [Chap. 13 embodying in a single declaration the whole conclusion of the trial, one which found specially upon the various facts in issue, leaving to the court the subsequent duty of determ- ining upon such facts the relief which the law awarded to the respective parties. It was also a common practice when no special verdict was demanded and when only a general verdict was returned to interrogate the jury upon special matters of fact. Whether or no a jury was compelled to answer such interrogations, or whether, if it refused or failed to answer, the general verdict would stand or not, may be questioned. Mayor &c V. Clark, 3 Ad. & Ell. 506. But the right to propound such interrogatories was undoubted and often recognized. Walker v. Bailey, 65 Maine, 354; Spurr v. Shelburne, 131 Mass. 429. In the latter case the court said (page 430) : "It is within the discretion of the presiding justice to put inquiries to the jury as to the grounds upon which they found their verdict, and the answers of the foreman, as- sented to by his fellows, may be made a part of the record, and will have the effect of special findings of the facts stated by him. And no exception lies to the exercise of this dis- cretion. Dorr V. Fenno, 12 Pick. 521; Spoor v. Spooner, 12 Met. 281 ; Mair v. Basset, 117 Mass. 356 ; Lanier v. Earle, 5 Allen, 22." So that the putting of special interrogatories to a jury and asking for specific responses thereto in addi- tion to a general verdict is not a thing unknown to the com- mon law, and has been recognized independently of any statute. Beyond this we cannot shut our eyes to the fact that in many States in the Union, in whose constitutions is found in the most emphatic language as assertion of the inviolability of trail by jury, are statutes similar to the one enacted l)y the territorial legislature of New Mexico; that those statutes have been uniformly recognized as valid, and that a large amount of the litigation in the courts is carried through in obedience to the provisions of such statutes. It would certainly startle the profession to be told that such stf^tntes contravene a constitutional requirement of the in- vi'tlnbility of jury trials. Indeed, the very argument of counsel for plaintiff in error is an admission that up to a certain extent those statutes are undoubtedly valid. That argument is practically that when the specific findings are returned and found to be Sec. 2] Special Inteerogatoeies 533 conflicting with the general verdict the court is authorized to grant a new trial, but can do no more. But why should the power of the court be thus limited? If the facts as spec- ially found compel a judg-ment in one way, why should not the court be permitted to apply the law to the facts as thus found? It certainly does so when a special verdict is re- turned. ^^^^en a general verdict is returned and the court determines that the jury have either misinterpreted or mis- applied the law the only remedy is the award of a new trial, because the constitutional provision forbids it to find the facts. But when the facts are found and it is obvious from the inconsistency between the facts as found and the general verdict that, in the latter, the jury have misinterpreted or misapplied the law, what constitutional mandate requires that all should be set aside and a new inquiry made of an- other jury? Of what significance is a question as to a specific fact? Of what avail are special interrogatories and special findings thereon if all that is to result there- from is a new trial, which the court might grant if it were of opinion that the general verdict contained a wrong in- terpretation or application of the rules of law? Indeed, the very thought and value of special interrogatories is to avoid the necessity of setting aside a verdict and a new trial — to end the controversy so far as the trial court is con- cerned upon that single response from the jury. We are clearly of opinion that this territorial statute does not infringe any constitutional provision, and that it is within the power of the legislature of a Territory to pro- vide that on a trial of a common law action the court may, in addition to the general verdict, require specific answers to special interrogatories, and, when a conflict is found between the two, render such judgment as the answers to the special questions compel. ********** These are all the questions in the case, and, finding no error in the record, the judgment is Affirmed. 534 Trial Practice [Chap. 13 Section 3. Argument and Instructions as to Proper Answers. RYAN V. ROCKFORD INSURANCE COMPANY. Supreme Court of Wisconsin. 1890, 77 Wisconsin, 611. Cassoday, J. The learned counsel for the defendant strenuously contends that the evidence is insufficient to sup- port the general verdict or any of the special findings in favor of the plaintiff. The view we have taken of the case renders it unnecessary for us to determine that question. The statute requires the court to direct the jury to find a special verdict when requested as prescribed. Sec. 2858, R. S. Such verdict must ''be prepared by the court in the form of questions in writing, relating only to material is- sues of fact and admitting a direct answer, to which the jury shall make answer in writing. The court may also direct the jury, if they render a general verdict, to find in writing upon any particular question of fact to he stated as aforesaid." Ibid. This last provision is applicable to the case at bar. The purpose of thus submitting particu- lar controverted questions of fact is to secure a direct an- swer free from any bias or prejudice in favor of or against either party. It is a wise provision in certain cases when properly administered. It has often been demonstrated in the trial of causes that the non-expert juryman is more liable than the experienced lawyer or judge to be led away from the material issues of fact involved by some collateral circumstance of little or no significance, or by sympathy, bias, or prejudice; and hence it is common practice for courts, in the submission of such particular questions and special verdicts, to charge the jury, in effect, that they have nothing to do with, and must not consider the effect which their answers may have upon, the controversy, or the par- ties. The learned trial judge, when in health, has fre- quently so charged. It is certainly a very proper thing to do when the ])usiiiess or reputation of either party is such as to naturally stimulate a bias in favor of the one party or the oilier. It is true tliat jui-ies, under such a charge, Sec. 3] Special Inteeeogatoeies 535 sometimes return inconsistent answers ; but it is usually be- cause such is the honest result of their unbiased judgment upon different branches of the evidence. In the case at bar the learned trial judge seems to have been particularly anxious to prevent such inconsistent an- swers ; and hence he explained to the jury what different an- swers to each particular question so submitted would be con- sistent, and what inconsistent, with a general verdict in favor of one or the other party. This was peculiarly cal- culated to secure special answers which would be consistent with a general verdict rather than in accordance with the weight of evidence upon each of such particular questions. The effect of such instructions was very much the same as though the court had charged the jury that after they had determined upon a general verdict then they should answer the particular questions submitted in the way they had thus been informed would be consistent with such general ver- dict. This was misleading, and well calculated to defeat the very object of the statute in authorizing such submis- sion. By the Court. — The judgment of the circuit court is re- versed, and the cause is remanded for a new trial. CHICAGO & ALTON RAILROAD COMPANY V. GORE. Supreme Court of Illinois. 1903. 202 Illinois, 188. Mr. Justice Boggs delivered the opinion of the court. ********** We do not conceive that it was improper practice to per- mit counsel for appellee to read the special interrogatories to the jury, and in connection therewith discuss the evi- dence, for the purpose of convincing the jury that under the evidence the interrogatories should be answered in the af- firmative or in the negative, as the case might be. The ob- jection is not that the avgiinieut of counsel appealed to the prejudice of the jurors or to their sympathies, or that it 536 Trial Practice [Chap. 13 transcended legitimate grounds of debate, but simply that it was error to allow counsel to read the interrogatories to the jury and discuss the evidence which bore upon the an- swers which counsel conceived should be made by the jury thereto. The statute which authorizes the submission of special questions of fact to be answered by a jury requires that such questions shall be stated to the jury in writing, and ' ' shall be submitted by the party requesting the same, to the adverse party before the commencement of the argu- ment to the jury." The end designed to be attained by the argument of counsel is to lead the jury to the proper de- cision of or answer to the issues made by the pleadings. It was entirely legitimate for counsel to review the evidenc and suggest to the jury what, under the proof, their general verdict should be, and none the less to suggest the answers which, in the view of counsel, the evidence demanded should be returned to the special interrogatories. In Timins v. Chicago, etc., Railroad Co., 72 Iowa, 94, it was said: "It is competent for an attorney to read special interrogatories to the jury, and to discuss the evidence applicable thereto, and to suggest the answers which in his judgment ought to be rendered." The judgment of the Appellate Court must be and is affirmed. Judgment affirmed. CAPITAL CITY BANK V. WAKEFIELD. Supreme Court of Iowa. 1891. 83 Iowa. 46. ItIVEN, J. IV. At the conclusion of the instructions the court sub- mitted the three special interrogatories, with this instruc- tion. "You will decide upon them in the same manner as your general verdict, and answer the same. You will be careful, however, that these answers are in harmony with and suj)port your general verdict." The appellant con- Sec. 3] Special Inteekogatoeies 537 tends that this instruction ' ' requires the jury to answer the interrogatories, not with reference to the facts of the case as shown by the evidence, but with reference to their gen- eral verdict only." That the findings and verdict should be in harmony is not questioned, nor that the court may in- struct the jury to exercise care in that respect. Special findings are of ultimate material facts only, and, when found, the result — the general verdict — follows therefrom. It is clear that a jury should first decide from the evidence what the ultimate facts are; that is, the essential facts which control as to what the verdict should be. With these facts found, they should then decide to what result — what general verdict — they lead. The jury were sworn to de- cide the case according to the law as given by the court, and the evidence. The general tenor of previous instructions is that they should decide the case upon the evidence, and then they were specifically told that they must decide upon these special questions in the same manner as their general verdict. Thus far the jury could be in no doubt but that they were to decide the special questions from the evidence. The caution which follows could not lead to a different con- clusion. True, it would have been more exactly correct if it had cautioned them to be careful that their general ver- dict was in harmony with the answers, as the answers con- trol ; but we do not think, in view of what preceded, that the jury could have understood that they were to decide upon their answers to the special interrogatories from anything but the evidence. People v. Murray, 52 Mich. 289; 17 N. W. Rep. 843. Our conclusion upon the whole record is that the judg- ment of the district court should be affirmed. 538 Trial Practice [Chap. 13 COFFEYVILLE VITRIFIED BRICK COMPANY V. ZIMMERMAN. Supreme Court of Kansas. 1900. 61 Kansas, 750. The opinion of the court was delivered by Smith, J. : This was an action for damages by the plain- tiffs below, the father and mother of Arthur Zimmerman, who was killed by the falling of an embankment under which he was at work while in the employ of plaintiff in error. The action was brought under section 418, chapter 95, Gen- eral Statutes of 1897 (Gen. Stat. 1899, Sec. 4686), and there was a verdict and judgment for plaintiffs. One of the in- structions given by the court to the jury, over the objection of plaintiff in error, was as follows : ''Your answers and findings should be consistent each with the other, and should be consistent with the general verdict, in order that any amount, if any you find in favor of the plaintiff, must be consistent and in harmony with the answers that you make to these special questions. Whatever verdict may be returned in this case, if not for the defendant, it is largely upon the answers you make to these questions, and they should be consistent each with the other. ' ' It was clearly erroneous for the court to require the jury to make their answers to the particular questions of fact harmonize with the general verdict, or to suggest that the findings should be consistent each with the other. Each of he questions propounded should be answered truthfully, in accordance with the preponderance of evidence upon the question submitted. Under our statute, when the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment acoordingly. (Gen. Stat. 1897, ch. 95, §297; Gen.' Stat. 1899, § 4550.) The questions should be answered without anv reference to their effect on the general verdict. (Dry Goods Co. V. Kahn, 53 Kan. 274, 36 Pac. 327.) For the error in the instruction given, the judgment of the court below will be reversed and a new trial ordered. Sec. 4] Special Interrogatories 539 Section 4. Form of Interrogatories. LOUISVILLE, NEW ALBANY & CHICAGO EAILWAY COMPANY V. WORLEY. Supreme Court of Indiana. 1886. 107 Indiana, 320. Elliott^ J. * * * ********** The appellant submitted to tlie court interrogatories, and asked that they should be submitted to the jury, but the court, instead of submitting those asked by the appellant, prepared and submitted interrogatories of its own. The prayer for the submission of the interrogatories to the jury was not a proper one, for the court was not asked to in- struct the jury to answer the interrogatories in the event that they returned a general verdict. Taylor v. Bruk, 91 Ind. 252. We have, however, examined the interrogatories, and find that those propounded by the court substantially cov- ered those asked by the appellant, so far as they were com- petent and material. Our decisions are that it is proper for the trial court to revise interrogatories submitted by the parties, and to prepare and propound for itself proper in- terrogatories to the jury. Killian v. Eigenmann, 57 Ind. 480. The 'Court submitted this interrogatory. ''Could the de- fendant have lawfully fenced its track at the point where said mules entered upon the track?" It is contended that this interrogatory is not a proper one, as it calls upon the jury to decide a question of law, and not of fact, and thus casts upon them a duty that the court should perform. We can perceive no answer to this contention, and appellee's counsel have not suggested any. Our statute makes it the duty of the court to submit to the jury only questions of fact, and the question here submitted is, it seems to us, one of law. The purpose of addressing interrogatories to juries is to elicit de<;isions upon matters of fact, and not to ask them to state conclusions of law. Whether the track of a railroad company is, or is not, lawfully fenced, is a mere 540 Tkial Practice [Chap. 13 conclusion to be deduced from the facts. We have re- peatedly decided that parties are entitled in special verdicts and in special findings to a statement of the specific facts, and that statements of mere conclusions will not be suffi- cient. Pittshurg, etc., R. R. Co. v. Spencer, 98 Ind. 186, and authorities cited; Louisville, etc., R. W. Co. v. Batch, 105 Ind. 93 ; Indianapolis, etc., R. W. Co. v. Bush, 101 Ind. 582 ; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151. That principle governs here. The jury should be re- quired to state facts, and not conclusions of law, and the an- swer to the question propounded in this instance could be, as it was, nothing more than the statement of the jury's con- clusion as to whether the railroad company could lawfully fence its track at the place where the mules entered upon it. Whether it could lawfully fence at that place depended upon the character and surroundings, and when these are fixed the question whether it could be lawfully fenced becomes one of law for the decision of the court. There are many facts which make it improper for a railroad company to fence, as, for instance, the fact that to fence would inter- fere with the discharge of the company's duty to tlie public, or would make the place dangerous to its servants, and it is for the jury to state the facts, leaving the law to be ap- plied by the court to the facts found by the jury. It was held in the case of Jeffersonville etc., R. R. Co. v. Underhill, 40 Ind. 229, that an allegation that the railroad was ''not fenced according to law," was the statement of a legal conclusion, and this general principle is declared in many cases. Indianapolis, etc., R. R. Co. v. Bishop, 29 Ind. 202; Indianapolis, etc., R. R. Co. v. Robinson, 35 Ind. 380; Pittsburgh, etc., R. R. Co. v. Brown, 44 Ind. 409; Singer Manufacturing Co. v. E finger, 79 Ind. 264. We think it clear on principle and authority that the court erred in ; iilimitting the interrogatory under immediate mention to the jury. In view of the fact that the court re- jected interrogatories submitted by the appellant, and un- dertook to substitute those of its own, the error must be re- garded as a material one. It would defeat the manifest purpose of the statute to allow conclusions of law, rather than statements of facts, to be made by the jury, for the purpose of the statute is to get upon record the specific and Sec. 4] Special Interrogatokies 541 material facts in the form of answers to interrogatories. Judgment reversed. CHICAGO & ALTON KAILROAD COMPANY V. HARRINGTON. Supreme Court of Illinois. 1901. 192 Illinois, 9. The East St. Louis freight yard of the Toledo, St. Louis and Kansas City railroad, (^commonly called the *' Clover Leaf,") is what is called a stub-yard, and the only way of getting into and from the yard with cars is from the east end of it. A main or lead track runs from the east end of the yard to the freight house at the west end. From this main or lead track a number of switches branch off wester- ly, on which are received freight cars coming from other roads, at all hours of the day and night. The switch tracks are connected with the main or lead track by switches. On January 27, 1897, early in the morning, and while it was yet dark and was snowing, a switch crew of the appel- lant company transferred a number of cars of perishable freight from appellant's road to a switch track of the Clov- er Leaf road, and, in doing so, omitted to place the cars a sufificient distance down the switch track to allow a lO'Como- tive and cars to pass along the lead track without coming in contact with the last car so placed on the switch track, and also omitted to close the switch, but left it open. Several hours before the servants of the appellant com- pany had thus transferred its cars to a switch track of the Clover Leaf road, a switching crew of the Clover Leaf road had gone out of the yard up to Madison, or Miller's Station, to take some cars, and returned to the freight yard of the Clover Leaf road after appellant's switching crew had fin- ished their work and left the yard. The switching crew of the Clover Leaf road, which thus entered the freight yard between four and six o'clock on the morning of January 27, 1897, consisted of five men. Of these five men one was the 542 Trial Peactice [Chap. 13 fireman and one was the engineer. Besides the fireman and engineer there was a foreman and there were also two helpers. Appellee was one of these helpers. When the switching crew of the Clover Leaf road come down the lead track, two freight cars were fastened to the locomotive ahead of it, so that the two freight cars were pushed for- ward by the locomotive. When the switching crew en- tered the freight yard, the engineer and fireman were in their proper places upon the locomotive. The foreman was in the cab of the engine. One of the helpers was on top of the forward car of the two cars which were pushed by the engine. Appellee, the other helper, was standing upon the foot-board in front of the engine and between the engine and the second or last of the two cars. The engineer was named Neff. The fireman was named Thomas or Thompson. The foreman was named Donahue. The helper on the forward car was named Fox. They were shoving the two cars westward to the freight house, and it was the intention to cut the cars off and leave them. Wlien the servants of the appellant transferred appel- lant's cars, containing perishable freight, from appellant's road to one of the switchtracks of the Clover Leaf road in the freight yard of the latter, they left the switch open, and the hindmost of appellant's cars projected over from the side switch, upon which said cars stood, on to the main or lead track. The result was that, when the engine and the two cars ahead of it, which the switching crew of the Clover Leaf road were pushing, reached the switch track on which appellant's servants had left its cars, the cars, so pushed by the Clover Leaf switching crew, ran into and collided with appellant's cars. The result of this collision was that the locomotive, on the front foot-board of which appellee was riding, and the rear car of the two cars in front of the locomotive, came together, breaking appellee's legs, tearing off a finger, and otherwise severely injuring him. The negligence, charged in the declaration against the servants of appellant, was that they left the cars, contain- ing perishable freight, on the switch track, and neglected to close the switch. ********** Mr. Justice Magruder delivered the opinion of the court. Sec. 4] Special Intereogatoeies 543 Fourth — An objection is also made by appellant to the action taken by tlie trial court in reference to tbe special in- terrogatories submitted to the jury, calling for special find- ings upon their part. In the first place, the court declined to give the interroga- tories submitted by appellant, and prepared interrogatories of its own motion, which were submitted. This was not error; we have decided that a trial court may refuse re- quests for special findings, and substitute others on its own motion. {Chicago .rv->i'ffod bv th p court were docionpd to secure a special finding as to certain matters which might supersede the gen- T. P. — .^'^ - 546 Trial Practice [Chap. 13 eral verdict, if the verdict should be for the plaintiff, and it was not improper to put the matter to the jury in that way. ''The facts, upon which a jury should be asked to find specially, should be material facts, which, if found, would be controlling. " {Chicago S Northwestern Railway Co. V. Dunleavy, supra; Terre Haute d Indianapolis Rail- way Co. V. Voelker, 129 111. 540; Pike v. City of Chicago, 155 id. 656). The theories of appellant, as embodied in the special interrogatories submitted by it, were presented in the instructions given by the court. It is also said that the interrogatories given hj the court were defective in limiting the exercise of due care to the time when the plaintiff was injured. This criticism is without force, because we have held that the words ' ' at the time," when used in an instruction in such cases, refer to the whole transaction or series of circumstances, and not to the precise moment when the injury occurs. Here, the words ''in placing himself upon the foot-board of the en- gine," etc., refer to the circumstances which preceded that act, as well as the act itself of standing on the foot-board of the engine. {Chicago & Alton Railroad Co. v. Fisher, 141 111. 614; Lake Shore & Michigan Southern Railway Co. V. Ouska, 151 id. 238; McNulta v. Lockridge, 137 id. 270; Lake Shore & Michigan Southern Railway Co. v. John- sen, 135 id. 653.) After a careful examination of the record, we are unable to discover any reason, which would justify us in reversing the judgments of the lower courts in this case. Accordingly, the judgment of the Appellate Court is af- firmed. Judgment affirmed. Sec. 4] Special Inteerogatoeies 547 ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY V. AYERS. Supreme Court of Kansas. 1895. 56 Kansas, 176. The opinion of the court was delivered by Maetin, C. J. : I. The original action was brought by the defendant in error against the plaintiff in error to recover damages for the alleged negligent burning of a grain ele- vator, a hay press, some baled and a quantity of loose hay, and other property. The trial resulted in a verdict and judgment for the plaintiff. * * * ********** II. The defendant pleaded and largelj^ relied upon the contributory negligence of the plaintiff as a defense, such negligence arising from permitting dry hay to accumulate around the building in large quantities, extending therefrom to the tracks of the company, so as readily to catch fire from sparks emitted from the locomotive when properly man- aged. A great deal of the evidence related to the condition of the building and the premises around it, the same being used for the baling of hay and the storing of the same, both baled and loose. The defendant submitted 10 particular questions of fact in relation to the condition of different parts of the premises, three questions pertaining to the age of different parts of the building, and one as to the same never having been painted. The first 10 questions were objectionable in form. No. 1 being as follows: "Is it not a fact that the fire caught in the dry grass and rubbish that had accumulated near the northeast corner of the build- ing?" instead of directly asking the jury "Did the fire catch in the dry grass," etc. Questions in a negative or a lead- ing form should never be submitted, and these were both leading and negative, and any direct answer to them by yes or no was liable to be misunderstood. The court refused to submit the 14 questions referred to, and was proceeding to state the reasons therefor, when defendant's counsel ob- jected to any argument in the presence of the jury, but this was overruled, the defendant excepting, and the court, re- ferring to the first 10 questions, said, among other things : 548 Teial Practice [Chap. 13 ''Suppose these questions should be answered as the de- fense asks that they should be answered — that this com- bustible material was scattered around there — it does not show that the plaintiff was guilty of negligence. * * * it gives no light to the court or any reviewing court." We regard the remark as improper in the presence of the jury. It was a statement as a proposition of law that the scatter- ing of combustible material upon and over the plaintiff's premises was not negligence. That was one of the prin- ciple questions to be submitted to the jury, and they would be very liable to interpret this remark of the judge as a de- claration that all the evidence as to the existence of com- bustible matter around and about the premises was imma- terial. The first 10 questions seem quite pertinent to the issue, although the answers to them in the manner most favorable to the defendant may not have been sufficient alone to overthrow a verdict in favor of the plaintiff. We do not understand this, however, to be the test of the com- petency of particular questions of fact requested. If the questions are plain and direct in form, are within the is- sues, are not repetitions, and there is evidence upon which they may be intelligently answered, they ought to be sub- mitted, so that the detailed facts may appear of record ; thus enabling the trial court, upon further proceedings, or a reviewing court afterward, to form an intelligent judgment upon the particular issues sought to be elucidated by the questions and answers. It would have been proper to sub- mit the other four questions, for they were remotely within the issues, but they were not especially material, and the refusal of the court to submit them would not be reversible error. It is generally error to refuse to submit questions of fact drawn in proper form, material to the case, and based upon the evidence. Section 286 of the civil code has been uniformly held to grant a right to the parties to have proper questions of fact submitted to the jury. (Bent v. PhUhrick, 16 Kan. 190; C. B. V. P. Bid. Co. v. Hofham, 22 id. 41 -^A.T.S S. F. Bid. Co. v. Plunkett, 25 id. 188, 198; City of Wtmdotte v. Gibson, 25 id. 236, 243; W. d W. Bid. Co. V. Fechheimer, 36 id. 45, 51 ; Kansas City v. Bradbury, 45 id. 381 , 388.) Of course, it is the duty of the court to re- vise the questions, to strike out or amend those drawn by the attorneys in improper form or equivocal in their mean- Sec. 5] Special Interrogatoeies 549 ing, and those outside of or immaterial to the issues, as also such as are not based upon any evidence in the case. {Mo. Pac. Ely. Co. v. Eolley, 30 Kan. 465, 472, 473.) ********** The judgment must be reversed, and the case remanded for a new trial. All the Justices ^concurring. Section 5. Compelling Jury to Give Direct Answers. CLEVELAND, COLUMBUS, CINCINNATI & INDIAN- APOLIS EAILWAY COMPANY V. ASBURY. Supreme Court of Indiana. 1889. 120 Indiana, 289. Berkshire, J. — This was an action instituted by the ap- })ellee to recover damages on account of personal injuries which she claims to have sustained because of the fault of the appellant. The appellant, at the proper time, moved the court to require the jury to retire to their room to consider further of their answers to interrogatories numbered 4, 5, 6, 8, and 10, submitted to them at the request of the appellant, and to return definite, certain, and direct answers thereto, which motion was overruled, and an exception saved. These interrogatories, and the answers thereto, are as follows : *'4. Did not Daniel Asbury, the owner of said horse, hoar the whistle of the approaching train while driving said horse between the residence of Martha Helms and the cross- ing where the accident occurred? '* Answer. We do not know by the evidence that it was tlie train whistle. '*5. Could not the plaintiff and Daniel Asbury have seen tlie approaching train, or the head-light of its locomotive, if they had looked from a point on said highway thirty-five feet south of said crossing, in time to have averted the acci- dent? ^'Ans. We don't know. 550 Teial Peactice [Chap 13 ''6. From a point thirty-five feet south of the crossing where the accident occurred on the highway or street along which Asbury drove, how far from said crossing could the approaching train be seen"? "Ans. In daylight it might have been seen a mile. "8. How often was said whistle sounded before the ac- cident as said train approached the crossing? ^'Ans. We don't know what crossing was meant. "10. Was not a bell attached to said engine, and was not said bell rung continuously from said tile-shed crossing to the place where the accident occurred? "Ans. There was a bell attached, but we do not know that it was rung continuously." The answers to these interrogatories were evasive and improper. There was evideece bearing upon every fact covered by these interrogatories, and the jury should have answered them definitely and in direct language. It would have been no more improper had the jury returned a gen- eral verdict, "We, the jury, do not know whether we ought to find for the plaintiff or defendant," than to have returned the answers they did to the said interrogatories ; and the court should have declined to receive the answers returned, as it would have declined to receive a general verdict in the form we have given, upon proper objection made. If there was a disagreement among the members of the jury as to the answers that should be made to the interroga- tories, or if the evidence was such that they could not find the facts, or any of them, to which the interrogatories re- lated, then the jury should have so informed the court, and in receiving the answers as made the court committed an error. It should have sustained the motion of the appel- lant, and required the jury to retire and return proper an- swers to the interrogatories, or, in case of a disagreement, to so inform the court. There seems to have been a disin- clination on the part of the jury to answer the interroga- tories; the answer to the eighth especially indicates that: "How often was said wliistle sounded before the accident as said train approached the crossing." There was but one crossing in question, and that was the one where the ac- cident happened, and tlie jury could but understand that that was the crossing referred to in the interrogatory, and Sec. 6] Specul Interrogatories 551 yet tliey answer, ''We do not know what crossing is meant." The evidence was not complicated, and there was very little conflict, if any, as to many of the facts inquired for in these interrogatories, and especially those relating to the care and caution exercised by the appellee and her husband. The appellant was entitled to full and fair answers to its in- terrogatories. We are aware of the rule that the court may refuse to re- quire the jury to retire and make more definite answers to interrogatories, and that it will not be available error if the answers demanded would not, if given, change the result as to the judgment to be rendered. McCormick, etc., Co. v. Gray, 100 Ind. 285 ; Chicago, etc., R. R. Co. v. Hedges, 105 Ind. 398. But had the interrogatories under consideration been answered in the affirmative, they would have con- trolled the general verdict. Affirmative answers to these interrogatories would have disclosed, beyond question, contributory negligence on the part of the appellee and her husband, and gone far in the direction of establishing due care on the part of the appel- lant. ********** Because of the error of the court in overruling the mo- tion to require the jnry to retire and make more definite and certain the answers to the interrogatories, the judgment must be reversed. Judgment reversed, with costs. Section 6. Effect of Answers on General Verdict. RUNYAN V. KANAWHA WATER & LIGHT COMPANY. Supreme Court of Appeals of West Virginia. 1911. 68 West Virginia, 609. Action by C. D. Runyan, administrator of Walter Runyan, against the Kanawha Water & Light Company. A verdict 552 Trial Practice [Chap 13 for plaintiff having been set aside, he brings error. Brannon, Judge: The Kanawha Water & Light Company, a corporation ' irnishing electricity for public consumption in the city of harleston, had its wires on a bridge over the Kanawha Iver for conveyance of electricity. Walter Runyan was an mploye of the bridge company engaged in painting the >ridge, and while so employed came in contact with an elec- ric wire, and was so badly burned by the electricity that he 'ied. His administrator sued the Kanawha Water & Light ompany, and recovered a verdict for $5000, and the court ' aving set the verdict aside, the plaintiff comes to this ourt. ********** The main defense in the case is contributory negligence. The general verdict finds against that defence ; but def end- -mt insists that that verdict is overruled by a finding in an- ■^wer to an interrogatory. This has given us some perplex- ity, and is the question of gravity in the case. The inter- rogatory is this : ' ' If Walter Runyan had been careful, con- sidering the knowledge he had of the wires, would he have been injured?" The answer is, ''We think not." Is this inconsistent with the general verdict so as to overrule it? It must be so inconsistent that both cannot stand to- gether. If possible they must be construed so as to har- monize; or rather, as applied to this case, we must be able to say that the finding finds a fact which inevitably over- throws the general verdict. It must ex'clude every conclu- sion that would authorize a verdict for plaintiff. Peninsular Land Co. v. Ins. Co., 35 W. Va. 666. As a practical ques- tion in this case, Does this finding find as a fact that Runyan was guilty of contributory negligence defeating the action? If it does not, it is not the overthrow of the general verdict. It does not find facts to enable the court to say whether such contributory negligence was a fact. This consideration at once denies this finding any force to overthrow the general verdict. This interroo-ntorv was put to get from the jury an expression to sustain the charge of contributory negli- gence. It does not ask the jury whether such and such facts exist, facts whirh would in law constitute negligence, as it must. The law is that an interrogatory must put only questions of fact from which a legal proposition may be Sec. 61 Special Intekrogatobies 553 deduced. What facts arising on the evidence does this in- terrogatory inquire about? The interrogatory must ask as to facts such as, if answered as desired by the inter- rogator, will make a verdict for his adversary inconsistent. Any question the answer to which would be inconclusive, and which would not be so inconsistent, should not be put. 20 Ency. PL & Prac. 328. "Questions which require the jury merelj' to answer as to acts or omissions which may or may not in their opinion be evidence of care or negligence, or from answers to which, either way, the court cannot say, as a matter of law, whether care or negligence is the result, are not material." Clementson on Special Verdicts, 73. This interrogatory, without specifying facts on which to base the opinion, simply asks the jury whether in its opin- ion Runyan exercised care. Virtually it asks the jury whether in its opinion Runyan was guilty of contributory negligence, a mixed ciuestion of law and fact, I may say of law. Such an interrogatory is not good. The failure to ask as to facts on which carelessness, or in other words, contributory negligence, is sought to be predicated is a fatal defect in this interrogatory, and must render its answer abortive. The answer does not find in words that Runyan was guilty of contributory negligence, and could not, since a question calling upon a jury to find on a question of law must not be submitted. 20 Ency. PL & Prac. 326 ; Clement- son on Special Verdicts, 117, 217. He is not proven negli- gent. It does not appear. But take the question and answer as they are. This find- ing says that if Runyan had been careful he would not have been injured. Does this come up to the standard of full contributory negligence? No. It does not tell in what he was careless, or to what degree. Runyan having a right to be where he was in work, he could go near or over the wires, unless he knew that there was positive actual danger staring him in the face. If he by accident fell upon or caught his foot in the wires, this would not bar recovery. He might not have used the highest degree of care and yet not be found guilty of contributory negligence defeating the ac- tion. We cannot see what was the extent of his knowledge of danger, whether or not he knew of defects in insula- tion. He was called on to use only ordinary care required of a prudent man under the circumstances; but this finding 554 Trial Practice [Chap 13 does not indicate what care or carelessness he used. We can- not from the finding say, or guess, whether he exercised the only care required by law, ordinary, or was chargeable with gross negligence. In the one case he would not be guilt' of contributory negligence defeating the action; in the othe he would. We cannot say which from the question and an swer. The main verdict finds no negligence, and we arv. asked to say from the special finding that there was; and thus make the special finding inconsistent with the main verdict, when the special one does not give facts which, in law, impute contributory negligence. There is another defective feature of this finding to show its inadequacy to overcome the general verdict. It is in the inconclusive language, ''We think not." "Answers expressing only the inclination of the minds of the jury, as to say, 'We think not' are insufficient and too uncertain to base a judgment on." Hopkins v. Stacey, 43 Ind. 554. Eminent authority there cited says, "An opinion is not a legal verdict, and verdicts must be positive, certain and free from all ambiguity." This position may be assailed as technical ; but remember that special finding, to overcome general verdicts must be certain and clearly and plainly in- consistent with it. I grant that there are authorities hold- ing otherwise. 20 Ency. PI. & Prac. 344. I cannot say that I would for this defect alone reject the answer; still it must be said that the answer is indefinite and leaves the mind in doubt whether the jury intended to find a definite fact. Why did it not say "No," if so intended? The law says that answers to interrogatories should be "direct, definite, certain and complete." 20 Ency. PI. & Prac. 342. Again this question 10 called upon the jury to say whether if Runyan had been careful he would have been hurt. "Only such questions as can be fairly and intelligently answered should be submitted. Interrogatories requiring the jury to speculate as to what might have happened in a certain con- tingency should not be submitted." Atchison dc. v. Lan- nigan, 42 Pac. 343. Therefore, we must regard the an- swer mere speculation, and not on specific facts, not a flat finding. Findings must be free of obscurity. "They must destroy the general verdict, if at all, only by their own in- herent clearness and strength." Clementson on S])ecial Verdicts 135. Thompson on Trials, § 2693 says: "The J Sec. 6] Special iNXERKOGAioKrEs 555 court will not strain the language of the special findings to override the general verdict. If possible they will be in- terpreted to support the verdict rather than overturn it. No presumption will be made in their favor ; nor will they control the general verdict, unless they are invincibly an- tagonistic to it." Another objection to this finding, depriving its answer of force, is, that it assumes a very material fact, that is, that Runyan knew the condition of the wires, their danger, etc. This had a tendency to lead the mind of jurors to con- clude that Runyan had such knowledge, that even the judge thought so, else he would not have allowed such an inter- rogatory. An interrogatory must not assume material facts. 20 Encv. PI. & Prac. 322 ; Elliot v. Reynolds, 16 Pac. 698; Toledo R. Co. v. Goddard, 25 Ind. 185. ********** Therefore, we reverse the order setting aside the verdict, and render judgment upon that verdict for the plaintiff. Reversed and rendered. EVANSVILLE & SOUTHERN TRACTION COMPANY V. SPIEGEL. Appellate Court of Indiana. 1911. Indiana Appellate, ; 94 Northeastern, 718. Lairy, J. This is an action brought by the appellee, George P. Spiegel, against the appellant for damages oc- casioned by the death of Carl Spiegel, the minor son of ap- pellee, which death is alleged to have been caused by the negligence of appellant in the operation of one of its cars on Main street in the city of Evansville, Indiana. The di- rection of Main street is a little east of north, and the ap- pellant company has a double street car track near the cen- ter of said street. Williams street enters Main street from the east, at a point almost opposite to the place where Syca- more street enters it from the west, so that the soutli line of Williams street, at the point of its connection with Main street, is almost opposite to the point where the north line 556 Teiax. Peactice [Chap 13 of Sycamore street connects with it on the west. The ac- cident in wliich Carl Spiegel lost his life occurred about noon on the 4th day of October, 1907. He came out of Williams street riding a bicycle, and started diagonally across Main street toward Sycamore street, and was struck and killed by a street car going south on the west track. (3) On behalf of appellant, it is urged that its motion for judgment on the interrogatories notwithstanding the general verdict should have been sustained, for the reason that these answers show that the decedent was guilty of negligence contributing to his death. The general verdict in favor of the plaintiff is a finding of every material fact necessary to a recovery. The special failings of the jury will overthrow the general verdict only when both cannot stand, and this antagonism must be apparent on the face of the record beyond the possibility of being removed by any evidence admissible under the issues made by the pleadings. The evidence actually introducd cannot be considered in passing upon this question. Cox v. Ratcliffe, 105 Ind, 374, 5 N. E, 5; Indiana National, etc., Co. v. Long, 27 Ind, App. 219, 59 N. E. 410, (4) Under the issues formed by the pleadings in this case, evidence might have been introduced which would bring the case within the operation of the doctrine known as the ''last clear chance." This doctrine is clearly stated by a writer in the Quarterly Law Review (vol. 2, p. 507), as follows: ''The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it." This has been frequently recognized and applied by our courts. (5) Even though it be conceded that the answers to the interrogatories show that the plaintiff's decedent neg- ligently approached and entered upon the track of the ap- 'j)enant in front of an approaching car, and thus negligently \3xp0sed himself to the danger of a collision, this would not necessarily preclude a recovery from injury resulting from appellant's negligence. Answers to interrogatories show- ing such facts would not overthrow a general verdict in favor of the plaintiff, for the reason that evidence may have been introduced proving or tending to prove that, after said Sec. 6] Special Interrogatories 557 decedent was in the position of danger in which he had so negligently placed himself, the defendant knew of his peril- ous position, or might have known it by the exercise of or- dinary care, in time to have prevented the injury, and that it negligently failed to take advantage of the last clear chance to prevent the injury. It is the duty of this court to reconcile the interrogatories with the general verdict if they can be so reconciled by any evidence which might have been introduced within the issues; and, to this end, the court, in ruling upon this motion, will treat the case as though this evidence had been introduced and acted upon by the jury. In view of what we have said, we are of the opinion that the answers to the interrogatories are not in irreconcilable conflict with the general verdict, and the mo- tion of appellant for judgment in its favor on such inter- rogatories notwithstanding the general verdict was prop- erly overruled. [Reversed on other grounds.] DEVINE V. FEDERAL LIFE INSURANCE COMPANY. Supreme Court of Illinois. 1911. 250 Illinois, 203. Mr. Justice Cooke delivered the opinion of the court : This was an action brought in the municipal court of the city of Chicago by John F. Devine, as administrator of the estate of Ralph W. Chance, deceased, against the Federal Life Insurance Company, to recover the sum of $1000 al- leged to be due on a policy of insurance claimed to have been issued by the company to Chance in his lifetime. The policy was dated May 4, 1907, Chance was struck and killed by a train of the Illinois Central Railroad Company on the morning of May 30, 1907. The defense to the ac- tion was that the i^olicy had never been in force, as it had not been delivered to Chance and he had never paid any part of the first premium. The claim of the administrator was, that by an arrangement with Robert J. Jeffs, the gen- 558 Trial Practice [Chap 13 eral agent for the insurance company and the person who secured the application of Chance, the policy was delivered by the company to Jeffs for Chance, and it was held by Jeffs to secure the pajTnent of three notes given by Chance to Jeffs, one for the amount of the first premium, one for $50 and one for $10.14. After the death of Chance, and on June 3, 1907, Jeffs, who had held the policy from the time of its issuance until that date, returned it to the insurance company, endorsed ''not taken." The jury found the is- sues for the plaintiff and returned a verdict for the full amount of the policy, $1000. Judgment was rendered on this verdict and an appeal was taken to the Appellate Court for the First District, where the judgment of the municipal court was affirmed. The case is brought here by appeal upon a certificate of importance. It is first contended that this judgment should be reversed for the reason that the general verdict is contrary to certain special findings of fact made by the jury. The jury were asked to answer twelve special interrogatories which were submitted to them. Of the twelve, three were so framed that no answer was required by reason of the answers given to certain others of the interrogatories. By the first inter- logatory the jury were asked, "Was the policy sued on in this action delivered by the Federal Life Insurance Com- pany to Ealph W. Chance during his lifetime?" To this the jury answered ' ' no, ' ' and it is claimed that this finding is so inconsistent with the general verdict that it must be held to control the same and that the court should have en- tered judgment for the appellant. In determining whether a special finding is so inconsistent with the general verdict that the latter must be held to be controlled by the former we cannot look at the evidence. All reasonable presump- tions will be entertained in favor of the general verdict while nothing will be presumed in aid of the special finding of fact. The inconsistency must be so irreconcilable as to be incapable of being removed by any evidence admissible under the issues. (Chicago and Northwestern Railway Co. V. Dunleavy, 129 111. 132.) Applying this rule, we find that there is no irreconcilable inconsistency between this special findin'g of fact and the general verdict. By its terms the application for a policy of insurance may be made a part of tlio policy itself. The application may or may not provide Sec. 6] Special Interrogatories 559 that the insurance shall take effect only upon the delivery of the policy to the insured. Unless expressly made so by the contract itself, an actual delivery of a policy of insurance to the insured is not essential to the validity of the contract, and the rule under such circumstances is, that a policy be- comes binding upon the insurer when signed and forwarded to the insurance broker to whom the application for insur- ance was made, to be delivered to the insured. ^^^lere an a])plication is made for insurance there is no liability until t)ie application is accepted, but the acceptance and issuing of the policy complete the contract. (Rose v. Mutual Life Ins. Co. 240 111. 45.) The finding of the jury that the pol- icy had never been delivered to Chance was not the deter- mination of any ultimate fact, or of a fact which had a con- trolling effect upon any ultimate fact. This finding is not so inconsistent with the general verdict that it should con- trol, and the court did not err in ignoring this finding and entering judgment on the verdict. It is urged that special findings numbered 3, 5, 6, 7, 8, 10 and 12 are also inconsistent with the general verdict. We do not so regard them. The third finding was that the de- ceased had not paid the premium on his policy in cash ; the fifth, that he did execute a note for the amount of the pre- mium ; the sixth, that the note was executed on May 10, 1907, and delivered to Jeffs ; the seventh, that the note was pay- able in installments of $2.50 each, and that the first install- ment became due on May 29, !I907; the eighth, that Chance did not pay the installment falling due on May 29, 1907 ; the tenth, that none of the installments mentioned in said note were paid during the lifetime of Chance; and the twelfth, that the policy sued on contained the provision, '^ failure to pay any premium or note, or interest thereon, when due, will forfeit, without notice, the policy and all payments thereon, excepting as herein provided." It is not necessary that a premium on a policy of life insurance should be paid in cash. It can be paid by the giving of a note, or otherwise, if so agreed by the parties. That Chance executed a note and delivered it to Jeffs, the agent, for the amount of the first year's premium, and that at the time of his death he was in default in the payment of this note, would not neces- sarily invalidate the insurance notwithstanding the pro- vision found to have been contained in the policy, as Jeffs 560 Tkial Peacticb [Chap. 13 may have taken the note under such circumstances as would constitute an absolute pajonent of the premium. A further reason why these special findings do not show a forfeiture i)f the policy is, that by the twelfth finding the policy con- tained a clause providing for a forfeiture under certain circumstances, ' ' excepting as herein provided. ' ' What the exceptions are is not shown by any of the special findings. For anything that is disclosed by these findings, the circum- stances may have been such that they come within some ex- ception contained in the policy which would prevent a for- feiture. As we view the special findings of the jury, and testing them by the rule above referred to, we do not regard any of them as inconsistent with the general verdict. We find no error in the record, and the judgment of the Appellate Court is therefore affirmed. Judgment affirmed. Me. Chief Justice Vickees took no part in the considera- tion or decision of this case. Section 7. Effect of Answees Inconsistent With Each Othee. DRAKE V. JUSTICE GOLD MINING COMPANY. Supreme Court of Colorado. 1904, 32 Colorado, 259. Me. Justice Campbell delivered the opinion of the court. The controversy here is between the owners of the Wash- ington and Justice lode claims, situate in Gilpin county, as to the ownership of ore bodies of a vein under the surface, and within the exterior boundaries of the Washington lode extended downward vertically. The claim of each party is based upon ownership of the apex. The cause was tried before a jury, and the court, upon request, submitted, and the jury answered, three interroga- tories, and also returned what the parties call a general ver- dict, in favor of the defendant, on which judgment for it Sec. 7] Special Interrogatories 561 was entered by the court. The i)laintiffs in error claim that the answers to these three interrogatories were in their favor, and are so inconsistent with the general verdict that, under section 199 of our civil code so providing, the special findings of fact, in such circumstances, must control the general verdict. Where a special finding of fact, inconsistent with the general verdict, is so irreconcilable therewith as to be in- capable of removal by any evidence admissible under the general issues, the general verdict cannot stand, and judg- ment entered upon it is improper. Every presumption and intendment, however, is to be indulged in favor of a general verdict, and in ascertaining whether such inconsistency exists, recourse may not be had to the evidence actually ad- duced at the trial, but may be to the issues as made by the pleadings; and if, by any possible competent evidence that might be produced thereunder, the apparent inconsistency can be overcome, it may be disregarded, and the general verdict permitted to stand. But in the view we take of whether there is such an inconsistency as the plaintiffs in the case, it is not necessary, for two reasons, to decide error assert. 1. We do not so hold, but for the purpose of the present opinion we assume, with both parties, that the verdict re- turned is a general verdict, and, with plaintiffs in error, that it is in such irreconcilable conflict with the three special findings of fact to which they allude, as to have made it the duty of the trial court to disregard the general verdict, and enter judgment upon the special findings, had action of the court been seasonably and properly invoked. Such an in- consistency may be waived by the party against whom it operates, or he may, in the appropriate way, complain of it. If, however, a party desires to have heard in an appellate tribunal his objection to the entering of a judgment on a general verdict which is inconsistent with special findings, he must first call the attention of the lower court thereto by a motion for judgment upon the special findings, not- withstanding the general verdict. A motion for a new trial does not save the point. Here plaintiffs in error neg- lected to move for judgment on the findings, and therefore thev mar not. on this review, for the first time be heard as to the alleged inconsistency. — 2 Thompson on Trials, <^ 2696. T. p.— 36 562 Trial Peactice [Chap. 13 Many cases in Indiana, where such questions seem to have arisen more frequently than in any other state, expressly hold that such a motion is a necessary condition precedent to the right to be heard in an appellate tribunal. — Bartlett v. Pittsburgh, etc, Ely. Co., 94 Ind. 281; Anderson et al v. Hubble, 93 Ind. 570; BricUey v. Weghorn et al, 71 Ind. 497 ; Adamson v. Rose, 30 Ind. 380. Additional authorities are collected in 20 Enc. PI. & Pr. 375. 2. The foregoing is upon the assimiption that only three interrogatories were answered by the jury, and all of them were in favor of plaintiffs, and inconsistent with the gen- eral verdict returned for defendant. The record, however, discloses that three other interrogatories submitted by the court were answered by the jury clearly and distinctly in favor of the defendant, and they support, in every par- ticular, the general verdict. These six answers, taken to- gether, do not show that the jury so misunderstood the is- sues or were in any way so confused as to make a new trial necessary. Such being the case, the doctrine seems to be well settled that contradictory and inconsistent special find- ings destroy each other, and the general verdict stands.— Ind., etc., Gas Co. v. McMath, 26 Ind, App. 154; Midland Steel Co. V. Baugherty, 26 Ind. App. 272; 2 Thompson on Trials, -§ 2692. For additional authorities, see 20 Enc. PI. & Pr. 354, 364 et seq. The judgment must be affirmed, and it is so ordered. Affirmed. ST. LOUIS & SAN FRANCISCO RAILWAY COM- PANY V. BRICKER. Supreme Court of Kansas. 1899, 61 Kansas, 224. The opinion of the court was delivered by Smith, J. : The findings of the jury being inconsistent with one another, the verdict cannot stand. It is found that the direct cause of the injury was the failure of the fore- Sec. 7] Special Intereogatoeies 563 man in charge of the bridge repairers to give timely warn- ing to the defendant in error, and neglect of the foreman to inform the men who were unloading the timbers that there was any one under the bridge at work. It is also found that defendant in error knew that his coemployees were at work above him, and that they were about to throw off a stick of timber. This, coupled with the finding that Bricker could have avoided the injury complained of had he remained where he was at work and watched which side of the bridge the stick of timber was about to fall, tends to the conclusion that the defendant in error was guilty of contrib- utory negligence, and that his own want of care, and not that of the foreman, caused the injury. While want of ordinary care on the part of the foreman is expressly found in at least six of the answers to particular questions, yet a strong showing of contributory negligence on the part of plaintiff below appears in three other answers. The inconsistency between these different findings is so palpable and clear as to render them irreconcilable. In one answer the jury say that plaintiff below had no timely warning of danger, and in another that his situation and information were such that he needed none — in effect, say- ing that a warning would not contribute to the knowledge he already possessed of his dangerous position. The gen- eral verdict, based on such findings, must be set aside. {Shoemaker v. St. L. d S. F. Ely. Co., 30 Kan. 359, 2 Pac. 517; A. T. & S. F. Rid. Co. v. Weber, Adm'r, 33 id. 543, 6 Pac. S77;A.T.£ S. F. Rid. Co. v. Maker, 23 id. 163.) The judgment of the court below will be reversed, and a new trial ordered. CHAPTER XIV. SPECIAL VERDICTS. FIRST NATIONAL BANK V. PECK. Supreme Court of Kansas. 1871. 8 Kansas, 660. Beewer, J. : * * * ********** In this case a special verdict was returned at the instance of the plaintiff. Objection was made to the verdict on the ground that it did not state all the facts established by the evidence. Special verdicts and findings upon particular questions of fact are by the laws of 1870 matters of right. Laws 1870, p. 173, sec. 7. It is no longer discretionary with the court to require them or not. Under these circum- stances it becomes important to determine the scope of a special verdict as fixed by our statute. Considerable dif- ference of opinion has existed in reference to it, and a ju- dicial construction in this court will doubtless be of service in many cases. Wliat is a special verdict? Under our statute the jury can be called upon to respond in three ways — by a general verdict, by a special verdict, and by re- turning answers to particular questions of fact. True, this latter mode of interrogating the jury can be resorted to only in conjunction with the first, but it is nevertheless a distinct mode. A general verdict embraces both the law and the facts. It states the result of the whole contro- versy. It determines the ultimate rights of the parties. It combines the decisions of the court with the opinions of the jury. True, the jury receive the law in the instruc- tions of the court, but they apply the law to the facts, and, having combined the two, declare the result. So that un- der such a verdict they really perform two functions, that of finding the facts, and then that of applying the law to those facts. Any one at all familiar with the experiences of a court-room is aware that the errors of the jury result 564 Chap. 14] Special Verdicts 565 oftener from their misapplication of the law as stated, to the facts, than from their misapprehension of the facts. A special verdict, on the other hand, finds only the facts, and leaves to the court tbp duty both of determining the law and of applying it to the facts. It is thus defined in sec. 285 of the code of civil procedure. Gen. Stat., 684 : ' ' A special ver- dict is that by which the jury finds facts only. It must pre- sent the facts as established by the evidence, and not the evidence to prove them." It was decided in 1 Miles, 26, that "if instead of finding facts the special verdict sets out the evidence, a new trial will be granted." Whether that be the necessary result or no, it is clear that a special ver- dict should not be a recital of testimony, but a iinding of certain facts as established by such testimony. But what facts? How minutely may they, must they, be subdivided? The facts stated in the pleadings ; as minutely, and no more so in the special verdict, than in the petition, answer, and reply. The special verdict must conform to the pleadings. The word "facts" is used in this section in the same sense, and refers to the same things as when used in sec. 87 of the code, which declares that a "petition must contain a state- ment of the facts 'Constituting the cause of action, in ordi- nary and concise language without repetition." There are in every cause of action certain essential substantive facts, certain elements, so to speak. Every pleader knows this when he prepares a petition. The omission of any one of these elements renders the petition defective. The fail- ure to prove one defeats the cause of action. Now these essential elemental facts are the ones the special verdict must find, no more, no less. A history of the case in the nature of a recital of the testimony, or a detail of the va- rious steps in the transaction is not the function of a spe- cial verdict. It responds to the various facts of the peti- tion like a special denial, touching ea-ch separately. The statute clearly points to this construction. It says, (T^aws 1870, p. 173, ch. 87, sec. 7, amending sec. 286 of the code,) "the court shall direct the jury to find a special verdict in writing upon all or any of the issues in the case." The is- sues are to be passed upon in the special verdict. In Bacon's Abridgement, vol. 10, p. 313. it is said, citing as authority Unitpd St flies v. Briqht, Bright 's Trial, 199, "If in a special verdict the jury find the issue, all they find beyond is sur- 566 Trial Practice [Chap. 14 pliisage." The special verdict is simply the response of the jury separately to the several issues presented by the pleadings. ***** xhe judgment will be affirmed. All the Justices concurring. STANDARD SEWING MACHINE COMPANY V. ROYAL INSURANCE COMPANY. Supreme Court of Pennsylvania. 1902. 201 Pennsylvania State, 645. Opinion by Mr. Justice Mestrezat, March 3, 1902 : This was an action of assumpsit on a fire insurance pol- icy issued by the defendant. On the trial the court below instructed the jury to return a special verdict and to answer the following questions : 1. Did Bedient take possession of the property in the interest of the machine company, and let Markle and Merry- man hold it for the company after the assignment for the benefit of creditors and prior to the fire in question? 2. Did the machine company thus acting through Be dient subject the property to hazard not contemplated by the policy and stipulated against by the provisions thereof? 3. What was the loss? This is to be estimated by the cost of repairing or replacing the propertv with material of like kind and quality so as not to exceed the limit thus indi- cated.^ 1 Form of special verdict. This method of preparing a special verdict, — in the form of questions to be pnt to the jury upon all the material facts in the cape, is a common and convenient one. It is sometimes prescribed by statute. In any event, the jury cannot be expected to draw up their own form of special verdict, and it must be done by counsel. As said in Pittsburgh, Ft. W, and C. Ey. Co. v. Ruby, (1871) 38 Tnd. 294, "Jurors are very competent to understand the evidence, find facts, and draw conclusions from the facts found ; but as a general rule, and especially in complicated cases, they are not equal to the task of preparing a syiecial verdict. They do not know what facts should be found to cover the issues, nor the manner of stating them. ' ' Another familiar method is for counsel on each side to prepare a special verdict in the form of a statement of the facts which they believe have been estniilished by the evidence, and submit the same to the trial judge, vho there- upon hands both forms, with or without amendment, as he deems proper, to the jury under proper instructions, and the jury may then adopt either one, in the form presented to them or with such changes as they wish to make, fiR their verdict. Pittsburgh, Ft. W. & C. Ry. Co. v. Ruby, supra; 22 Encyc. PI. & Pr. 993. Chap. 14] Special Verdicts 567 The first question was, by agreement of counsel, an- swered in the affirmative ; the jury returned a negative reply to the second question; and to the third question, the an- swer was $1,747. Subsequently the court entered judg- ment on the verdict in favor of the plaintiff for $1,747. This appeal is by the defendant and error is alleged in the ruling of the court on the measure of damages, in the con- struction put upon the policy of insurance by the court, and in entering judgment on the special verdict, the defendant claiming that the facts found were not sufficient to sustain the judgment. The last reason assigned for reversing the judgment of the court below may be considered first. It is the province of a special verdict to find and place on record all the essential facts in the case. This includes the disputed as well as the undisputed facts. What is not found by the verdict is presumed not to exist, and no infer- ences as to matters of fact are permitted to supply the facts themselves which the verdict should have found. In entering judgment, the court is confined to the facts found In- the special verdict, and unless they are sufficiently found no judgment can be entered. The jury must find the facts and the court declare the law on the facts so found. Such are the requisites of a special verdict as held in all our cases. In Wallingford v. Dunlap, 14 Pa. 33, it is said: "It is of the very essence of a special verdict that the jury should find the facts, on which the court is to pronounce judgment according to law. And the court will not intend anything, especially any fact not found by the jury. * * * The undisputed facts ought to have been incorporated in the special verdict. * * * The court is confined to the facts found by the special verdict. And when a special verdict is given, the court ought to confine its judgment to that verdict. * * * But this special verdict is so defective and erroneous, and the judgment so anomalous in being en- tered partly on the verdict and partly on what was called undisputed facts, that we must do what has often been done before, reverse the judgment and send the case back for a new trial." Me. Justice Mercur, delivering the opinion of the court in Vansyckel r. Stewart, 77 Pa. 126, says: "It (special verdict) must include both disputed and undisputed facts. The court will not infer a fact not found 568 Trial Peactice [Chap. 14 by the jury. It must declare the law on these facts alone. As all the essential facts must be found in the verdict, it follows that it cannot be aided by intendment or by ex- trinsic facts appearing upon the record." In Tuigg v. Treacy, 104 Pa. 498, Clark, J., speaking for the court, says : "We cannot resort to the testimony, or to such extrinsic matters as were undisputed at the trial, or avail ourselves of such even as appear upon the record. It is of the very essence of a special verdict, that the facts found are those upon which the court is to pronounce judgment, according to law. What is not thus found is presumed not to exist, the verdict being conclusively the complete result of the jury's deliberation upon the whole case presented." In delivering the opinion of the court in the compara- tively recent case of McCormicJc v. Royal Insurance Com- pany, 163 Pa. 194, Chief Justice Sterrett says : ' ' Nothing is better settled, on principle as well as authority, than that all the facets upon which the court is to pronounce judgment should be incorporated in the special verdict. It is the ex- clusive province of the jury, in the first place, to determine all disputed questions of fact, from the evidence before them; and then their special verdict is made up of those findings of fact, together with such undisputed facts as may be necessary to a just decision of the cause. * * * The court, in considering a special verdict and entering judg- ment thereon, is necessarily confined to the facts found and embodied in the verdict; the latter cannot be aided by in- tendment or extrinsic facts that may appear in the evi- dence." Applying these principles to the case in hand, it is appar- ent that the verdict hero is fatally defective. As said by Chief Justice Black in Thayer v. Society of United Breth- ren, 20 Pa. 63, "the jury found a special verdict, but it omits almost every importance fact." Here the verdict found but three of the many facts necessary to support a judgment. It is silent as to whether a policy of insurance, the basis of this action, was issued to the plaintiff, and the terms of the policy; as to what property was insured and where situated; as to the loss of or damage to the insured property and whether it occurred within the life of the pol- icy; and as to the cause of the loss, whether by fire or other- wise. Other omissions of fact might be suggested, but Chap. 14] Special Veedicts 569 those named are sufficient to show that the verdict is wholly inadequate to sustain the judgment entered by the court below. A special verdict more barren of facts is not to be found in the reported cases. * * * the judgment is reversed and a venire facias de novo is awarded.^ 1 There is some authority to the contrary, as in Wisconsin, but see Hodges V. Easton (1882) 106 U. S. 408, where it was held that the practice of ren- dering judgment on a special verdict which found only the disputed facts but not those undisputed, was a denial of the right of trial by jury. WABASH RAILROAD COMPANY V. RAY. Supreme Court of Indiana. 1899. 152 Indiana, 392. Jordan, J. — The appellant railroad company owned and operated as one of its branches a railroad extending from the city of Detroit, Michigan, through Columbia City, In- diana, to the city of Peru, in the latter State. Appellee is the administratrix of William 0. Ray, deceased, who was at and prior to his death in the employ of appellant as a brakeman on one of its local freight trains. He was ac- cidentally killed while coupling cars at Columbia City, by catching his foot in an unblocked guard-rail, and while in such condition was run over by the ear which he was at- tempting to couple. To recover for this alleged negligent killing, the appellee successfully prosecuted this action in the lower court, and, upon a special verdict by the jury, obtained a judgment for $5,000. The alleged errors of which appellant complains, in the main, are based upon the decision of the court in over- ruling a demurrer to the amended complaint, and in deny- ing its motion for a judgment upon the special verdict of the jury, and in overruling its motion for a new trial. We may, at least for the present, pass the consideration of the sufficiency of the complaint, for the reason that sub- stantially the same facts, and the same theory thereunder, are disclosed by the special verdict, and if we can hold 570 Trial Peactice [Chap. 14 that, under the facts therein found, appellee is entitled to a judgment, such holding will certainly result in sustaining the complaint. Counsel for appellant earnestly insist that their motion for a judgment in favor of appellant, upon the special verdict, ought to have been sustained. Preliminary to the consideration of this insistence, we may properly refer to some familiar and well settled rules applicable to a special verdict, one of which is that it is the very essence of such a verdict that it state all the material facts within the issues of the case, and no omission of a fact therein can be supplied by intendment. Its failure to find a fact in favor of the party upon whom the burden of establishing it rests is the equivalent of an express finding against him as to such fact. When the party having the onus in a case asks a judgment upon a special verdict, the material facts there- in found, within the issues, must establish his right, under the law, to a judgment, otherwise he must fail in his de- mand; but where, as in this case, the moving party is not the one upon whom the burden of the issue rests, his right to be awarded a judgment does not depend alone upon the presence of material facts, but he may be entitled to the judgment by reason of the absence of some essential fact which it was incumbent upon his adversary to establish. For the reasons stated, the facts set out in special verdict do not entitle appellee to a judgment against appellant. * * * The judgment is reversed, and the cause remanded to the lower court, with instructions to sustain appellant's motion for judgment in its favor on the special verdict. DARCEY V. FARMERS' LUMBER COMPANY. Supreme Court of Wisconsin. 1894. 67 Wisconsin, 245. Action for personal injuries. Plaintiff was an employee in defendant's sawmill, and had been such for about twenty days before the 15th day of July, 1891, when the injuries complained of occurred. He was twenty-three years of Chap. 14] Special Vekdicts 571 age. flis duty was to take edging and slabs from a cer- tain line of rollers and put them on the ** slashing" table, in which were a number of "slashing" saws; and when at work he stood in an alley between the slashing table and the said line of rollers. Near him was a large rotary saw, called the * 'cut-off" saw, which revolved vertically, and was hung at right angles with the line of rollers, and projected into the alley in which plaintiff worked, but with room to pass along the alley; and this saw was at all times running at a high rate of speed. * * * The negligence charged was in leaving the lower part of the saw uncovered. The jury returned the following special verdict: * * * Judgment for the plaintiff was entered on this verdict, and defendant appealed. WiNSLOW, J * * * In answer to the fifth question, the jury find that the dan- gers and risks from the exposed saw would be apparent to any person using ordinary care and observation in like sit- uation with the i:)laintiff. This must include the risk from which the plaintiff's injurj^ resulted, or else it is wholly ir- relevant, and we so construe it. The question and answer, therefore, meian that the plaintiff was chargeable with knowledge of, and therefore assumed, the risk from which the accident resulted by remaining in the employment with- out objection. This is a form of contributory negligence. 2 Thomp. Neg. 1014, sec. 19; Nadau v. White River L. Co., 76 Wis. 120-131. In answer to the sixth question, the jury find that there was no contributory negligence on the part of the plaintiff. Now, the only irround upon which it was claimed that contributorv negligence could be imputed to plaintiff was (as charged bv the court) flint he remained in the emplov- ment after he knew, or ought to have known, the risk which he incurred. This makes it very clear that the sixth ques- tion and answer amount to a findins: that the plaintiff was not chargeable with knowledge of the risk. But we have seen that the fifth finding is a finding that he was charge- able with such knowledge. The direct contradiction be- tween these two findings makes a judgment for the plaintiff on the verdict impossible, and a new trial must be had. 572 Teial Practice [Chap. 14 By the court. — Judgment reversed, and action remanded for a new trial. BAXTER V. CHICAGO & NORTHWESTERN RAIL- WAY COMPANY. Supreme Court of Wisconsin. 1899. 104 Wisconsin, 307. Action by an employe of defendant to recover compensa- tion for personal injuries received by him by the explosion of a locomotive engine, claimed to have been caused by de- fendant's keeping it in use with knowledge, or reasonable means of knowledge, that it was defective to a degree which rendered such an accident among the natural and reason- able probabilities, and one which, in the exercise of ordinary care, it should have apprehended. Marshall^ J. The chief controversy on the trial was as to whether the defective condition of the boiler, which caused the explosion, ought to have been discovered by the defendant before that event, and guarded against. To cover that field by the special verdict, defendant's attorneys re- quested the court to submit for answers these four ques- tions : '■ *■ Could the defects have been discovered without re- moving the flues from such boiler?" ''Was it the ordi- nary custom and practice among persons generally, using locomotive boilers of a like kind, under similar circum- stances, to remove the flues for the purpose, only, of in- specting the shell of such boiler?" "Was the boiler of en- gine No. 249, up to the time it exploded, used, operated, treated, and inspected by the defendant in tlie manner us- ually and ordinarily followed by persons generally, who use, operate, treat, and inspect locomotive engine boilers of a like kind under similar circumstances?" ''If you answer 'Yes' to question No. 10, did such use, operation, treatment, and inspection cause or reveal any defects which caused the injury to plaintiff?" Such questions were rejected and in lieu thereof, following the question of whether the boiler Cbap. 14] Special Verdicts 573 was defective in fact and the nature of the defects, this question was submitted; "If you find in answer to question No 5 that the boiler was defective at the time of said ex plosion, then could the defendant company through its agents and servants, by reasonable and proper care, tests, or inspection, have discovered such defects before the ex- plosion?" In connection with such question the jury were instructed as follows: "Reasonable care as used in this question means such care as ordinarily careful persons exercise under like circumstances, and rea- sonable tests and inspections mean such tests and inspections as are made and employed by ordinarily ]irudent persons engaged in the same business and under like circumstances." That ruling is assigned as error and it appears to be one of the chief grounds of complaint. Ap- l^ellant's counsel do not contend but that the real fact in is- sue was, by the 'Court's question as explained, placed before the jury for determination, but they contend that the right of defendant to a special finding as to every material fact in issue, stripped of all conclusions of law, was violated be- cause the question required the application of legal defini- tions and explanations in order to enable the jury to prop- erly answer it, the result being that the final conclusion em- bodied in the answer was rather a conclusion of law than one of fact ; and in support of that a lengthy argument upon the character of a special verdict under the statute was presented. It seems hardly necessary at this day to discuss questions so elementary as what constitutes a special verdict. It is a finding upon all the material issues of fact raised by the ])leadings. A failure to distinguish between such facts and the numerous evidentiary circumstances which may be the subjects of controversy on the evidence and are relied upon to establish the ultimate facts upon which the 'Case turns, often leads to unjust criticism of a special verdict. A con- clusion is not one of law because it is reached by a process of reasoning from many primary circumstances. AYliile such circumstances may be in dispute, the real question is, Do they lead with reasonable certainty to, and establish, the fact alleged by the pleading upon the one side and de- nied by the pleading upon the other? If the subject of the allegation in the complaint be one of law, or of mere evi- 574 Trial Practice [Chap. 14 dence, it has no proper place in the pleading, and hence no necessary place in the special verdict. By the complaint, certain facts are alleged to exist constituting the plaintiff's cause of action and warranting the remedy sought. Those facts, if put in issue by the answer, and controverted on the evidence, in case of a special verdict, must appear to exist thereby, or the conclusion of law must be against the plain- tiff. The object of a special verdict is solely to obtain a decision of issues of fact raised by the pleadings, not to decide disputes between witnesses as to minor facts, even if such minor facts are essential to and establish, by inference or otherwise, the main fact. Goesel v. Davis, 100 Wis. 678 ; Eberhardt v. Sanger, 51 Wis. 72 ; Jeivell v. C, St. P. S M. R. Co., 54 Wis. 610; Klochinski v. Shores L. Co., 93 Wis. 417; Ward V. C, M. & St. P. R. Co., 102 Wis. 215. A strict com- pliance with, this rule requires that the verdict be made up of sufficient questions to at least cover, singly, every fact in issue under the pleadings. If that could always be kept in view, the legitimate purpose of such a verdict in promoting the administration of justice would be uniformly accom- plished, and the opinion entertained by some that its use i'^ harmful would cease to exist. Testing the ruling of the trial court by what has been said, it is free from any reasonable criticism. Neither of the questions which were refused called for a response to any issue raised by the pleadings. Each called for a find- ing as to some essential as a matter of law to, or bearing on the existence of, the main fact, each being, however, of a strictly evidentiary character. The real fact in issue was as to whether the condition of the boiler which caused the explosion ought to have been known to the defendant. The question submitted plainly covered that subject. The de- gree of care with which the defendant was chargeable was strictly a legal question. WTiether that degree of care was exercised in the instance under consideration was strictly a question of fact. The instruction properly laid down the law for the guidance of the jury, and the question called for an answer as to whether the defendant came up to the legal standard in the particular instance. The jury were thus called upon to find the fact, not the evidence of the fact, leaving it to tlio court to ap|)ly tlioreto the proper legal principles. No doubt the finding of evidentiary facts is Chap. 14] Special Vekdicts 575 fiometimes helpful in tying the jury down to the precise question in controversy, by keeping before them the bar- riers they must overcome in order to reach the conclusion contended for by plaintiff ; but so long as the ultimate ques- tion is properly one of fact, or of mixed law and fact prop- erly pleadable as matter of fact, and essential to the cause of action upon w4iich a recovery is sought, it is strictly the proper subject of a question, and those facts from which it is or may be inferable may properly be omitted. The idea advanced by counsel for the defendant that the statutory right to a special verdict is only satisfied by ques- tions that do not need to be -considered in the light of legal principles given to the jury by the court, is contrary to the universal practice and the settled law upon the subject. Often, whether certain conduct complained of is negligence, where the evidentiary facts are all established, is a question of fact, in respect to which different minds may reasonably come to different conclusions. In that situation it is neces- sary to carefully instruct the jury regarding the standard of care necessary to the performance of the duty alleged to ^lave been violated, leaving it to them to determine whether 'he alleged wrongdoer came up to the legal standard in the particular instance complained of. The question of contributory negligence, of proximate cause, and what is reasonable, are only, ordinarily, determinable by viewing evidentiary facts in the light of legal principles. The ulti- mate fact being only properly determinable by viewing evi- dentiary facts in the light of legal standards, instructions bv the court in regard to such standards are necessary. When such ultimate facts are established, the legal liability follows as a conclusion of law. At that point the jury should not be instructed. They are to find the facts, guided bv the law regarding such facts, but regardless of the legal effect of their conclusions. The issues of fact raised by the pleadings are to be passed upon by the jury. The legal conclusion to be drawn from such findings is to be referred to the court with an additional conclusion by the jury, express or implied, that if the court should be of the opinion, upon the whole case, as found, that plaintiff has a good cause of action, they find for the plaintiff*, otherwise for the defendant. Suydam v. Williamson, 20 How. 427. 576 Trial Practice [Chap. 14 * * * Further, it is proper, and on request it is error to refuse, to give instructions requested as to each question submitted, that may be reasonably necessary to enable the jury to answer it intelligently and according to the law gov- erning the subject. But no instructions as to the effect of an answer upon the ultimate rights of the parties is proper. Ryan v. Rockford Ins. Co., 77 Wis. 611; Ward v. C, M. & St. P. R. Co., 102 Wis. 215.1 1 General iyistmctions on the law of the case are never proper where the jury are required to return a special verdict Stayner V. Joyce (1889) 120 Ind. 99, 22 N. E. 89. CHAPTER XV. JUDGMENT NOTWITHSTANDING THE VERDICT. PLUNKETT V. DETROIT ELECTRIC RAILWAY COMPANY. Supreme Court of Michigan. 1905, 140 Michigan, 299. Montgomery, J. Plaintiff, a city fireman, was pipeman on a hose truck, which was proceeding west on High street at 7 :45 p. m., February 2, 1900, when it was struck at Hast- ings street by a north-bound Hastings street car belonging to defendant. Plaintiff was thrown and injured. Plain- tiff brought this action to recover for the injuries sus- tained, and on the trial, under a charge submitting the ques- tion of defendant's negligence, and that of the contributory negligence of the plaintiff, to the jury, a verdict was ren- dered in favor of the plaintiff for $2,500. Defendant there- upon entered a motion for judgment in its favor non ob- stante veredicto, for the reasons : ^' First. For that under the evidence given in said cause a verdict should have been directed by the court in favor of the defendant at the conclusion of the trial thereof. '^Second. For that this court charged said jury, in sub- stance and effect, that the said plaintiff by and through the persons with whom he was riding, was guilty of contrib- utory negligence." This motion was granted, and judgment non obstante ver- edicto was entered for defendant. Plaintiff brings error. The defendant and the court below mistook the practice at the common law, judgment non obstante veredicto could be entered only when the plea confessed the cause of action and set up matters in avoidance which were insufficient, al- though found true, to constitute a defense or bar to the ac- tion. The rule was later relaxed, and made to apply in favor of the defendant, so that it is now generally held that the defendant is entitled to a judgment non obstante vere- 577 T. P.— 37 578 Trial Peactice [Chap. 15 dicto when the plaintiff's pleadings are not sufficient to sup- port a judgment in his favor. 11 Enc. PL & Prac. 912 et seq. So, too, if there be both a general and special verdict, and the latter be inconsistent with the former, judgment may, in some cases, be based upon the special verdict, disre- garding the general verdict. But we know of no case in which it is proper practice to enter a judgment non obstante veredicto, unless it appears on the record that the verdict of the jury cannot be supported as matter of law. In all other cases the proper practice is to move for a new trial, or review the case on writ of error and exceptions. There must be either a general or special verdict to support a judgment, or the pleadings must authorize its entry. This question is ruled by Central Sav. Bank v. O'Connor, 132 Mich 578. See also, Schmid v. Village of Frankfort, 134 Mich. 619, and County of Montmorency v. Putnam, 135 Mich. 111. Counsel for appellant has presented the case upon the assumption that the circuit court had power to consider the question which he assumed to passed upon, and has pointed out that the court mistook the rule as to im- puted negligence, and that his holding is at variance with the ruling of this court in McKernan v. Railway Co., 138 Mich. 519. Defendant's counsel 'Contend that there are other reasons why the verdict should have been for the defendant. We must decline to enter upon a consideration of these ques- tions. The judgment is reversed, and the case will be remanded, that the plaintiff may move for judgment on the verdict. Plaintiff will recover costs. Moore, C. J., and Grant, Blair, and Ostrandeb, JJ., con- curred. FLOYD V. COLOEADO FUEL & IRON COMPANY. Court of Appeals of Colorado. 1897, 10 Colorado Appeals, 54. BissELL, J., delivered the opinion of the court. Goorge Floyd was employed in the converting mill of the Colorado Fuel & Iron Company, and was a foreman in Chap. 15] Judgment Notwithstanding Verdict 579 charge of one of its cupolas. He had under him three men. Their duties were to attend to the cupolas, withdraw^ the molten iron and distribute and care for the slag or refuse which rose to the surface of the iron after it was melted. This slag or refuse was drawn off through what is termed a cinder notch or tap hole in the cupola and through a runner. These runners are half circular troughs of iron, about eight feet long and weigh in the neighborhood of seven or eight hundred pounds. They are fastened on to the cupola by a collar. The runners last for a considerable time unless the molten iron rises too high and flows into them. This will eat them out and necessitate their rej)lacement. This was the condition of one of the runners in charge of Floyd in June, 1893. It was observed by Crow, the superintendent of the con\"erting mill. Douglass was a machinist in charge of repairs and was sent by Crow to put in a new runner. When he came up with some helpers, he called on Floyd and his men to assist him in the work. While doing it Floyd was injured. The runner slipped, fell on his foot, mashed it, and he was disabled for a long time to do his usual work or any other wiiich compelled him to be on his feet. There is very considerable dispute between Floyd and Crow re- specting the terms of the order and the obligations and du- ties of the parties, but according to the view which we take of the present record and of the judgment which was en- tered, we are not concerned with these details or with the discrepancies in the testimony of the witnesses. Floyd brought this suit against the company to recover damages. The -case went to trial and resulted in a verdict in his favor for $1,250. The defendant company moved for a nonsuit at the conclusion of the plaintiff's case, and a direction to the jury to find a verdict for the defendant when the testi- mony was closed. Both motions were denied. After- wards the company filed a motion for a new trial and a mo- tion for judgment noii nhsfanfe veredicto. This term is used because it was so denominated by the mover, and in terms was an application for judgment dismissing the ac- tion notwithstanding the verdict of the jury, although the grounds of it remove it entirely from that class of motions. It was wholly based on considerations foreign to such ap- plications, and its eight several grounds as specifically stated, were rested on parts and portions of the testimony, 580 Trial Peactice [Chap. 15 and on it as a whole the defendant attempted to maintain the right to a judgment in its favor notwithstanding the ver- dict because from the evidence sundry and divers facts ap- peared which would bar a recovery. It was granted and the court entered judgment for the defendant. This judg- ment and order of the court is the only error assigned and therefore the only one which will be considered. In support of the assignment, the plaintiff insists that a judgment non obstante veredicto may not be entered on the motion of the defendant. Many cases are cited to this proposition and thej^ uniformly support it. It is urged to the contrary that the rules, proceedings, and practice which prevailed at the common law are inapplicable under the code, which can alone be looked to, to ascertain whether the defendant may make such a motion and obtain relief which was formerly granted in like cases, wherein application was made by one entitled to present it. We do not regard the question as an open one. We discover in a case which was not called to our attention that this question has been set at rest by an authoritative decision of the supreme court ren- dered since the code went into effect, and the practice is set- tled by that case. Quimhy v. Boyd et al., 8 Colo. 194. Therein the court holds that this motion may not be made by the defendant, nor can he obtain relief of an ana- logous character otherwise than by one in arrest of judg- ment. Since this is true, it must be conceded that the re- sult sought could not be secured by this procedure. The liberality which pervades the code practice, and the pur- pose and intent of the legislature to require the courts to disregard errors of an unsubstantial character and to af- firm judgments which do not affect the substantial rights of the parties, compel us to consider another question which may be regarded as collateral to the first. This is whether the motion can be considered as one in arrest of judgment. But this reaches only those defects which are apparent on the face of the record and which are not cured by a verdict or saveid by a failure to demur, and which do not require the consideration of matters not apparent in ilie record proper, nor dependent on testimony for their solution. We have been able to find no exceptions to this rule. 1 Black on Judgments, Sec. 98; Commonivenlth v. Watts, 4 Leigh, G72; Banner v. Sayne, 78 Ga. 467; Brown Chap. 15] Judgment Notwithstanding Verdict 581 V. Lee, 21 Ga. 159; Balliett v. Humphreys, 78 Ind. 389; Sedgivick v. Daivkins, 18 Fla. 335; Hardesty v. Price, 3 Colo. 556. The evidence is no part of the record for the purposes of such a motion. For this reason no argument to sup- port it can be predicated on the theory that the evidence is insuffi'cient to warrant the recovery. Bond et al. v. Dus- tin, 112 U. S. 604. The motion does not attack the sufficiency of the com- plaint as a statement of a cause of action nor is there any other defect in the record pointed out or adverted to in the argument by which the judgment of the court below can be sustained, or which could in any event be deemed sufficient to support a motion in arrest of judgment. Since the motion is neither one non obstante veredicto nor in arrest, and can be supported on neither hypothesis, there is no way known to the practice by which the defects or de- ficiencies in the case made by the proof can be reached, except by a motion for a new trial. The code distinctly provides that wherever the evidence is insufficient to sup- port the verdict, the court shall have full power to set it aside and grant a new trial. It is an easy and a swift remedy, available to the parties and within the power of the court. That which was made and the judgment which was entered does not accord with the practice which must prevail in such cases. Under our system this was an ac- tion for the recovery of damages, and as such, was triable only by jury. If the court refuses to nonsuit the plaintiff or to direct a verdict for the defendant, the case must go to the jury and the issues be determined by them. If their conclusions are unsatisfactory, or the court deems them unsupported by the e^^dence, it has full power to set the verdict aside, but only one course can be pursued. The issues must be resubmitted to another jury. It is the right of the plaintiff as well as of the defendant to have questions of fact settled in the mode provided by law. We know of no way save by the consent of parties whereby a suit to recover damages can bo otherwise tried. The court erred in entering the judgment, and it will therefore be reversed. Reversed. 582 Trial Peagtice [Chap. 15 CRUIKSHANK V. ST. PAUL FIRE & MARINE INSURANCE COMPANY. Supreme Court of Minnesota. 1899, 75 Minnesota, 266. Mitchell, J. This was an action to recover upon a ''hail insurance policy," one provision of which was that, ''In case of loss by hail to the crops insured, the assured shall mail a written notice to the company at its office in the city of St. Paul, Minn., within forty-eight hours after the time of such loss, stating the day and hour of the storm, also the probable damage to each part of the crops insured." So far as material for the purposes of this appeal, the defense was that the insured had not given notice of loss in accordance with this provision of the policy. The policy contained a warranty that the insured was the owner of all the land upon which the crops covered by the policy were growing, but a breach of this warranty, if any, was a matter of defense, and no such defense was pleaded. When the evidence closed the defendant moved the court to direct a verdict in its favor, but the court denied the motion and submitted the case to the jury, which found a verdict in favor of the plaintiff. Thereupon the defend- ant made a motion, not in the alternative for judgment not- withstanding the verdict, or, in case that should be denied, for a new trial, but merely for judgment notwithstanding the verdict. The court denied the motion, and from the judgment entered upon the verdict the defendant appealed. Originally at common law, judgment notwithstanding the verdict could only be granted in favor of the plaintiff, the remedy in favor of the defendant being to have the judgment arrested; but either by statute or by judicial re- laxation of this rule, judgment notwithstanding the ver- dict became quite generally allowable in favor of either party. But in either case the motion was based on the record alone, and the granting or denying it depended Chap. 15] Judgment Notwithstanding Vekdigt 583 upon tile pleadings. The rendition of judgment notwith- stading the verdict was discretionary with the court. It would only be granted when it was clear that the cause of action, or the defense, put upon the record did not, in point of substance, constitute a legal cause of action or defense. It was never granted on account of any techincal defect in the pleadings, but in such case the court would order a repleader. By enacting laws 1895, c. 320,^ the legislature was not creating a new remedy, but merely extended, as has been done in many other states, the common law remedy to cases where, upon the evidence, either party was clearly entitled to judgment. In thus extending the remedy it must be presumed that the legislature intended it to be gov- erned by the same rules which applied when it was granted upon the record alone ; that is, that it should not be granted unless it clearly appeared from the whole evi- dence that the cause of action, or defense, sought to be es- tablished could not, in point of substance, constitute a legal cause of action or a legal defense. The court has acted on this construction of the statute and refused to order judgment even where there was a total absence of evidence on some material point, but where it appeared probable that the party had a good cause of action or defense, and that the defect in the evidence could be supplied on another trial. This is just such a case. From the record it appears probable that the plaintiff has a good cause of action and that the defects, if any, in the evidence, are largely technical and could be supplied on another trial. The alleged defects in the evidence suggested are of the following character: that the letter from plaintiff's father to Kenaston was not formally in- troduced in evidence, that there was no evidence that the 1 The statute is as follows: "In all cases where at the close of the testimony in the case tried a motion is made by either party to the suit requesting the trial court to direct a verdict in favor of the party making such motion, which motion \yas denied, the trial court on motion made that judgment be en- tered notwithstanding the verdict, or on motion for a new trial, shall order judgment to be entered in favor of the party who was entitled to have a verdict directed in his or its favor; and the supreme court of the state on appeal from an order granting or denying a motion for a new trial in the action in which such motion was made may order and direct judgment to be entered in favor of the party who was entitled to have such verdict directed in his or its favor whenever it shall appear from the testimony that the party was entitled to have such motion granted." 584 Trial Practice [Chap. 15 letter from Kenaston to the defendant was never mailed, and that there was no evidence that the person who came to adjust the loss was McClure, or that M.cClure was at that time defendant's adjuster. The statute permits a party to make his motion in the alternative. Defendant has elected not to do so, but to stand exclusively on its right to judgment in its favor notwithstanding the verdict against it. Not being entitled to this relief, it is not en- titled, at least as a matter of right, to a new trial on the ground of the insufficiency of the evidence. Indeed, coun- sel for the defendant conceded this upon the argument. Judgment affirmed. CHAPTER XVI. ARREST OF JUDGMENT. Section 1. For What Defects? PELICAN ASSURANCE COMPANY V. AMERICAN FEED AND GROCERY COMPANY. Supreme Court of Tennessee. 1909, 122 Tennessee, 652. Mr. Chief Justice Beard delivered the opinion of the ^^ourt. In the case at bar errors are assigned upon the action of the trial judge in admitting over objection incompetent testimony, in overruling a motion for peremptory instruc- tion, in giving .certain instructions to the jury, and failing to grant requests that were submitted. It will be ob- served that these errors if committed, occurred in the trial of the cause, and would have constituted grounds of a mo- tion for a new trial, made in the court below, to the end that a retrial might be obtained, or, failing in this, then to preserve the same in the record, so that the ruling of the trial judge in declining the motion might be preserved to the plaintiff in error. Railroad v. Johnson, 114 Tenn. 633, 88 S. W. 169. Resting upon matters extrinsic to the technical record, they could only be preserved for review in this court by a properly filed bill of exceptions. If, as is contended by counsel for plaintiff in error, they can here be made the subject of investigation, by reason of the motion in arrest having been overruled, then we can see no distinction between that and a motion for new trial; for the very errors that are now made the subject of com- plaint are those which would have been properly raised on this latter motion. It is apparent that, to secure a re- versal on account of these errors, it would be necessary to lools beyond the ''face of the record" into the evidence in- troduced. This cannot be done. It is well settled by the 585 586 Trial Practice [Cliap. IG authorities that a motion in arrest of judgment lies alone for some error which vitiates the proceeding, or is of so serious a character that judgment should not be rendered. It "can onl.y be maintained for a defect upon the face of the record, and the evidence is no part of the record for this purpose." Bond v. Dustin, 112 U. S. 604, 5 Sup. Ct. 296, 28 L. Ed. 835; Van Stone v. Stilhvell E. T. C. Co., 142 U. S. 128, 12 Sup. Ct. 181, 35 L. Bd. 961; 23 Cyc. 825. Applying this rule of correct procedure to the present case, it follows that the judgment must be affirmed. GRAY V. COMMONWEALTH. Supreme Court of Appeals of Virginia. 1895. 92 Virginia, 772. RiELY, J., delivered the opinion of the court. After the jury had rendered their verdict the prisoner moved the 'Court in arrest of judgment, on the ground that one of the jurors was incompetent ; which motion the court overruled. It appears from the bill of exceptions that the juror, when examined on his voir dire, suggested him- self that he might not be competent to serve, as he was deputy sheriff when the killing took place, which was more than two years prior to the trial, and had the war- rant for the arrest of the prisoner, but, on being fully ex- amined by the court, answered that he made no arrest and had not formed or expressed any opinion as to the guilt or innocence of the prisoner, and could give him a fair and impartial trial. PTe was thereupon accepted by the court as a juror, without ol)jection from either side. The prisoner claimed that ho had discovered, after the iurv was sworn, that the said juror had not only the war- rant for his arrest, but also, with a number of other per- sons, had pursued him for some days, and had several times visited the neighborhood in searcli of him. It is not the province of a motion in arrest of judgment to cor- rect an error like the one alleged. That lies only to cor- Sec. 1] Aekest or Judgment 587 rect an error that is apparent on the face of the record. Commonwealth v. Stephen, 4 Leigh, 679; Watt's Case, Id. 672; Bishop on Cr. Pro. (3d ed.), sections 1282 and 1285; and 4 Minor's Institutes (3d ed.) Pt. I, 939. The ground of the objection nowhere appears in the record. This bill of exceptions was not, therefore, properly taken. But even if the proper proceedings had been resorted to, the statement set forth in the bill of exceptions, which is not supported by the affidavit of the prisoner or any one else, did not disqualify the juror or furnish ground for a new trial, and certainly not when the objection was not brought to the attention of the court until after the verdict. Bris- tow's Case, supra. The judgment of the Circuit Court must be affirmed. A-ffirmed. HUBBARD V. RUTLAND RAILROAD COMPANY. Supreme Court of Vermont. 1907. 80 Vermont, 462. RowELL, C. J. Case for negligently injuring the plaintiff by a collision of trains, on one of which he was a passen- ger. Plea, the general issue, and trial by jury. Ver- dict and judgment for the plaintiff. The defendant con- ceded the right of recovery, but denied the claim for dam- ages, both in character and extent, in manner and form alleged. The defendant moved in arrest, for that *'the verdict is largely based on facts not in issue under the declaration and concessions of the defendant made on trial and ac- cepted by the plaintiff, and varies materially from the is- sue made on trial, and finds facts foreign to such issue, and is for for entire damages, without discrimination be- tween facts made material and immaterial by the issue, and is insufficient." It is conceded that when the motion goes to defects in 588 Tkial Pkactice [Chap. 16 the pleadings, an inspection of the record alone is to gov- ern, and that the evidence cannot be looked into. But it is contended that when the motion goes to defects in the verdict, as this motion does, the rule is different; that the verdict is a part of the record, but any defect in it is not apparent on its face ; that it is not a pleading, and if a mo- tion in arrest will lie for defects in it, it follows that it must be looked into to discover those defects, and that this necessitates an examination of the evidence upon which it rests. That a judgment may be arrested for defects in the ver- dict is clear. But a motion for that purpose stands like a motion in arrest for defects in the pleadings, and like that, must be tested by what appears on the face of the record, of which the verdict is a part. Mr. Gould says, in speak- ing of Lord Mansfield's disapprobation of the rule, that when there are good and bad counts, and a general ver- dict for the plaintiff for entire damages, without discrim- inating between the counts, no rule appears to be more clearly warranted by the original principles of the law than that the judgment, which is only an interference of law from the facts ascertained upon the record, must al- ways be formed from the face of the record itself, and from that alone; and as the jury must be presumed to know nothing of the sufficiency or the insufficiency of counts, the conclusion seems perfectly just, in legal theory, that the damages are as likely to have been assessed in whole or in part on the bad count as on the good count. r!--id's PI. c. X, sec. 58, n. (7). Mr. Tidd says that the only ground for arresting judg- ment at this day is, some matter intrinsic, appearing on the face of the record, that would render the judgment erroneous and reversible; for though it seems to have been otherwise formerlv, yet it is now settled that judgment cannot be arrested for extrinsic or foreign matter not ap- nenring on the face of the record, but that courts are to iudge upon the record itself, that their successors may know the frrounds of their judgment. 2 Tidd's Pr. '/'OIR) * # • The defendant contends, as we have seen, that if the tes- timony cannot be looked into when the verdict does not show the defect on its face, there can be no remedy in such Sec. 1] Abrest of Judgment 589 a case by motion in arrest. And that is true if, as here, if anywhere, the defect appears only in the testimony, for that is not a part of the record, and the court must judge upon the record, and upon that alone. But the verdict being a part of the record, if the record as a whole shows the defect, it is enough. And it will show it, and must show it, if it is a defect that the law recognizes as ground for a motion in arrest. Thus, if the verdict varies sub- stantially from the issue, as if, instead of finding the mat- ter in issue, the jury finds something foreign to the issue, the judgment must be arrested, for the court cannot tell for which party judgment should be rendered. Here the verdict does not show the defect on its face, but taken with the rest of the record, which shows what the issue was, the record as a whole shows the defect on its face. The same is true when the verdict finds only part of the matter in issue, omitting to find either way another ma- terial part. These instances are sufficient to show how defects in a verdict not apparent on its face are made to appear for the purposes of a motion in arrest. Judgment affirmed. BULL V. MATHEWS. Supreme Court of Rhode Island. 1897. 20 Rhode Island, 100. TiLLiNGHAST, J. This is a motion in arrest of judg- ment on the ground of a misjoinder of causes of action. The action is trespass on the case for trover and conver- sion, and the declaration contains a count in trover and conversion, and also the ordinary counts in assumpsit. At the trial of the case in the District Court a decision was rendered in favor of the plaintiff for $19.10 and costs; but there is nothing in the record to show whether the judg- ment was based on the count in trover and conversion, or on those in assumpsit. No plea was filed in the case, but as the defendant entered an appearance the general issue is deemed to be filed. Gen. Laws E. I., cap. 237, sec. 590 Trial Peactice [Chap. 16 3. But whether, in this case the general issue as to the connt in trover, which would be not gnilty, or as to the counts in assumpsit, which would be non assumpsit, is in, we have no means of determining. Within five days after the rendition of said decision the defendant filed his mo- tion in arrest of judgment in the District Court, where- upon the case was certified to this court. It is a familiar rule of common-law pleading that counts sounding in tort cannot properly be joined with counts sounding in contract, and also that such misjoinder is fatal, not only on demurrer, but also on motion in arrest of judgment. Ency. PI. & Pr. vol. 2, p. 803, and cases cited; Haskell v. Boiven, 44 Vt. 579. The effect of such misjoinder is clearly expressed in Chit. PI. 9 Am. ed. 206, as follows: ''The consequences of a misjoinder are more important than the circumstances of a particular count being defective; for in a case of misjoinder, however per- fect the counts may respectively be in themselves, the declaration will be bad on demurrer or in arrest of judg- ment, or upon error. See also Gould's PL cap. 4, sec. 87, and cases cited. The ordinary test for determining whether different causes of action may be joined is to inquire whether the same plea may be pleaded and the same judgment given on all the counts of the declaration; and unless this ques- tion can be answered in the affirmative the counts cannot be joined. See Drury v. Merrill, ante, 2. See also Court of Probate v. Sprague, 3 R. I. 205. A Implying this test to the case at bar, it will at once be seen that there is a fatal misjoinder. If the pleader in this case had simply omitted to strike out the money counts which are printed in the writ, perhaps we might disre- gard them; but as he has filled them out in the ordinary way where the case is assumpsit, we feel bound to presume that he intended to rely thereon, as well as on the count in trover. It is true that, since the case was certified to this court, the plaintiff's counsel has filed an affidavit setting forth that by reason of mistake and oversight he neglected to strike out the money counts, and also that at the trial in the District Court, the o\'idonce introduced was confined to the count in trover, which was the only count relied on. Sec. 1] Abrest of Judgment 591 But as a motion in arrest of judgment raises only those objections which are apparent upon the re<}ord; State v. Paul, 5 R. I. 189 ; Black on Judgments, vol. 1, Sees. 96-8 ; and as the affidavit forms no part of the record, we are not at liberty to consider it. Judgment arrested. PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY V. CITY OF CHICAGO. Appellate Court of Illinois. 1908, 144 Illinois Appellate, 293. Mr. Peesiding Justice Thompson delivered the opinion of the court. This is an action in case begun the 16th day of May, 1895, in the Circuit Court of Cook county, Illinois, by the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Com- pany against the city of Chicago to recover three-fourths of the damages sustained by it on account of the destruc- tion of property of which "the plaintiff was possessed as of its own property," during riots there in July, 1894. ********** The action is based ujoon a statute of this state provid- ing as follows: "That whenever any building or other real or personal property except property in transit, shall be destroyed or injured in consequence of any mob or riot composed of twelve or more persons, the city, or if not in a city then the county in which such property was destroyed, shall be liable to an action by or in behalf of the party whose prop- erty was thus destroyed or injured for three-fourths of the damages sustained by reason thereof. "No person or corporation shall be entitled to recover in any such action if it shall appear on the trial thereof that such destruction or injury of property was occasioned or in any way aided, sanctioned or pennitted by the careless- ness, neglect or wrongful act of such person or corpora- 592 Teial Pkacticb [Chap. 16 tion ; nor shall any person or corporation be entitled to re- cover any damages for any destruction or injury of prop- erty as aforesaid, unless such party shall have used all reasonable diligence to prevent such damage. **No action shall be maintained under the provisions of this act, by any person or corporation whose property shall have been destroyed or injured as aforesaid, unless notice of claim for damages be presented to such city or county within thirty days after such loss or damage oc- curs and such action shall be brought within twelve months after such destruction or injury occurs, * * *" It is urged the motion in arrest of judgment should have been sustained because the declaration is insufficient in that it does not state a cause of action by failing to state facts but only stating conclusions in several particulars. Tt is argued (1) ''that ownership is not alleged as a con- clusion nor by way of uncertain or incomplete statement, by way of argument, by evasion, nor is there any allega- tion from which it can necessarily be inferred. All that is alleged is possession;" (2) "that the declaration should locate the mob as within the city of Chicago;" (3) the stat- ute ''requires that such party shall have used all reason- able diligence to prevent such damage," while the declar- ation only avers that the injury was not occasioned through any neglect on the part of the plaintiff to use reasonble dil- igence to prevent such injury; (4) that "the declaration does not aver that a notice of plaintiff's claim for damages was presented to the city within thirty days after the de- struction or damage to its property occurred." The numerous alleged defects in the declaration which have been presented for our consideration are purely for- mal. The defects complained of could not have been reached by a general demurrer. They could only have been grounds for a special demurrer assigning the causes. A judgment after verdict can only be arrested for substan- tial faults. All defects which would not have been fatal on a general demurrer are cured by pleading to the issue, and are aided by verdict. When the pleading states the essential requisites of a cause of action, the court will pre- sume that the particular fact or circumstance which ap- pears to be defectively or imperfectly stated or omitted Sec. 1] Aekest of Judgment 593 was proved at the trial. A defective or inaccurate state- ment of a cause of action is cured by a general verdict but where no cause of action is stated a verdict will not cure the defect. Gould on PI., chap. X. Counsel for appellant state in their original argument (p. 21): ''The declaration states the name of the plain- tiff. It states that 'said plaintiff was possessed as of its own property,' of the railway equipment, etc., described and claimed to have been injured or destroyed, and for which judgment is asked. It also avers 'that the property of the plaintiff was destroyed or injured.' These aver- ments only amount to an assertion that the plaintiff ivas the owner of the property mentioned and that the legal title was in the plaintiff. Such an averment is only a mere statement of a conclusion of law and amounts to noth- ing as an averment." At common law the possessor of personal property is prima facie the owner of the property. The averments that "iDlaintiff was possessed as of its own property," and "the property of the plaintiff was de- stroyed or injured," amount to an allegation of owner- ship by the plaintiff, when the declaration is first ques- tioned after verdict. Beigen v. Biggs, 34 111. 170. On a motion in arrest of judgment "every intendment will be indulged in favor of the declaration, and if it contain.^ terms sufficiently general to comprehend by fair and rea- sonable intendment any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the want of an express averment in the declara- tion has been cured by the verdict." Danley v. Hihhard. 222 111. 88; Fountain Head Drain Dist v. Wright, 228 111. 208. We hold that the conclusion to be drawn from the averments of the declaration is that the plaintiff is the owner of the property destroyed or injured. The declaration avers that "within the territorial limits of tlie city of Chicago, aforesaid, in consequence of a cer- tain mob or mobs, riot or riots, each of which was then and there composed of twelve or more persons within the territorial limits of said city of Chicago, a large quantitv." etc. This language locates the mob within the city of Chi- cago in the language of the statute and fully answers the second reason urged in arrest of judgment. We do not think it necessary to comment on the third T. P.— 38 594 Trial Peacticb [Chap. 16 and fourth reasons urged in arrest of the judgment further than to state that under the rule announced in Danley v. Hihhard, supra, the allegations contained in the declara- tion concerning these matters are sufficiently general to comprehend by fair and reasonable intendment the mat- ters necessary to be proved in the respects complained of, and the court did not err in overruling the motion. Ajjirmed} 1 The same rule applies to matters in abatement. They cannot be availed of on motion in arrest. Hiiger v. Cunningham (1906) 126 Ga. 684, 56 S. E. (i4; Hawkins v. Hughes (1882) 87 N. C. 115. Section 2. Time foe Making Motion. CHICAGO AND ALTON EAILROAD COMPANY V. CLAUSEN. Supreme Court of Illinois. 1898. 173 Illinois, 100. Me. Justice Caetweight delivered the opinion of the court : Appellee brought this suit against appellant to recover damages for injuries alleged to have been sustained by the starting of a train on which he was a passenger, while he was attempting to get off at appellant's station at Gard- ner, Illinois. There was a judgment for appellee, which has been affirmed by the Appellate Court. It is argued at much length that the trial court improp- erly overruled a demurrer to the first original count and five amended counts of the declaration upon which the case finally went to trial. No error has been assigned upon such ruling on the demurrer, either in the Appellate Court or this court, and none could be so assigned for the rea- son that after the demurrer was overruled the defendant pleaded the general issue and thereby raised an issue of fact, which was tried. It has always been the rule in this State that if a party wishes to have the action of a court Sec. 2] Arrest of Judgment 595 in overruling his demurrer reviewed in this court he must abide by tlie demurrer. By pleading over he waives the demurrer and the right to assign error upon the rul- ing. * * * Defendant made a motion in arrest of judgment, which was overruled, and that is assigned for error; but having once had the judgment of the court on its demurrer it could not again invoke it for the same reasons by motion in ar- rest. After a judgment overruling a demurrer to a de- claration there can be no motion in arrest of judgment on account of any exception to the declaration that might have been taken on the argument of the demurrer. Rouse V. Coimty of Peoria, 2 Gilm. 99; Quincy Coal Co. v. Hood, 11 111. 68; American Express Co. v. Pinchney, supra; In- dependent Order of Mutual Aid v. Paine, 122 111. 625.^ While the defendant, by pleading over, waived its de- murrer and the right to assign error upon the ruling of the court on the demurrer, it did not waive innate and sub- stantial defects in the declaration which would render the declaration insufficient to sustain a judgment, and the ques- tion whether it is so far defective may be considered under the assignments of error. The question which may be thus presented is not as broad as those questions which may be raised by demurrer, for the reason that defects in pleading may sometimes be aided by the pleadings of the opposite party, or be cured by the Statute of Amend- ments and Jeofails, or by intendment after verdict. The objections made to the various counts of the declaration are, that the statements therein are too general and in definite in. failing to show how the starting of the train operated to throw plaintiff from it and in what manner it was started, and that the various counts allege certain du- ties on the part of the defendant, and charge the neglect and violation of other duties, and the doing of other acts foreign to the duties so alleged, as the jause of the sup- 1 This is the orthoilox rule, and seems to be based on no better reason tlian that suggested in the followinrr qijotntion from Tidd : "After judgment on demurrer, there can be no motion in arrest of judgment, for any exception that might have been taken on arguing the demurrer; the reason is, that the matter of law having been already settled, by the solemn determination of the court, they will not afterwards suffer anyone to come as amicus curiae, and tell them that the judgment which they gave on mature deliberation is wrong; but it is otherwise after iudgTTient bv default, for that is not given in so sol- emn a manner." 2 Tidd'e Practice, *918. 596 Trial Practice [Chap. 16 posed injuries. So far as the declaration is defective in the respects complained of, the defendant's plea of the general issue, of course, could not aid or supply any omis- sion or informality therein. It is also true that the Stat- ute of Amendments and Jeofails does not extend to cure defects which are clearly matters of substance. It pro- vides that judgment shall not be reversed for want of any allegation or averment on account of which omission a special demurrer could have been maintained, but it does not protect a judgment by default against objections for matter of substance. Many such objections, however, have always been cured, at the common law, by a verdict. At the common law, independently of any statute, the rule was and is, ''that where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be pre- sumed that either the judge would direct the jury to give or the jury would have given the verdict, such defect, im- perfection or omission is cured by the verdict." (1 Chit- ty's PI. 673.) This rule was quoted and approved in Kee- gan v. Kinnare, 123 111. 280, and Chicago and Eastern Illi- nois Railroad Co. v. Eines, 132 id. 161. The intendment in such case arises from the joint effect of the verdict and the issue upon which it was given, and if the declaration contains terms sufficiently general to comprehend, by fair and reasonable intendment, any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the want of an express statement of it in the declaration is cured by the verdict. Under this rule a verdict will aid a defective statement of a cause of ac- tion, but will never assist a statement of a defective cause of action. (1 Chitty's PI. 681.) Where the declaration and the issue joined upon it do not fairly impose the duty on the plaintiff to prove the omitted fact, the omission will not be cured, {Joliet Steel Co. v. Shields, 134 111. 209), and if, with all the intendments in its favor, the declaration is so defective that it will not sustain a judgment, such de- fects mav be taken advantage of on error. {Wilson v. My- ricTc, 26 111. 34; Scho field v. Settley, 31 id. 515; Chicago and Sec. 2] Akrest of Judgment 597 Eastern Illinois Railroad Co. v. Hines, supra; Culver v. Third Nat. Bank, 64 111. 528.) * * * When these rules are applied to the declaration in this case, we are satisfied that, although not very well drawn, it is clearly sufficient to sustain the judgment. * * * The judgment of the Appellate Court will be affirmed. Judgment affirmed. NEWMAN V. PERRILL. Supreme Court of Indiana. 1880. 73 Indiana, 153. Elliott, J. The questions presented by this appeal arise upon the ruling of the court sustaining the appellee's motion in arrest of judgment. ********** Appellant argues that, as the court had overruled de- murrers to the complaint, it could not afterwards right- fully sustain a motion in arrest. We do not think that the court, by ruling wrongly upon the demurrers, precluded itself from afterwards ruling rightly upon the motion in ar- rest. If, when the motion was presented, the court deemed the complaint so clearly bad as not to be sufficient to sus- tain a judgment, it was right to arrest the proceedings at that stage, notwitlistanding the fact that at an earlier stage the court had entertained a different opinion. A complaint fatally defective is vulnerable to attack, even upon appeal, and there can certainly be no error in declaring a fatally defective complaint bad on motion in arrest, although demurrers may have been previously over- ruled. It is the duty of the court not to permit a judg- ment to be entered upon a complaint which is so clearly in- sufficient as to afford the judgment no foundation. There can be no valid judgment without a sufficient complaint, and, where a party's complaint is incurably bad, he cannot justly complain of any ruling which prevented him from obtaining a judgment based upon it. 598 Tbial Practice [Chap. 16 Judgment affirmed.^ 1 To the same effect see Turnpike Co. v. Yates (1901) 108 Tenn. 428, 67 S. W. 69; Field v. Slaughter (1808) 1 Bibb. (Ky.) 160; Griffin v. The Jus tices (1855) 17 Ga. 96. In Iowa this practice is expressly authorized by statute. Frum v. Keeney (1899) 109 la. 393, 80 N. W. 5U7. KELLER V. STEVENS. Court of Appeals of Maryland. 1886, 66 Maryland, 132. Yellott, J., delivered the opinion of the court. The appellee instituted proceedings in the Circuit Court for Baltimore County, to enforce a mechanics' lien. * * * * * * On the 17th day of April, 1886, judgment was extended in favor of plaintiff for $389.92, with interest from date, and costs, and on the same day judgment fiat executio was entered on motion of plaintiff's attorney. On the 20th of April, 1886, after final judgment had thus been entered, the appellant filed a motion in arrest of judgment. The motion was overruled and from this determination of the court below an ajjpeal has been taken. There can be no doubt that, if a motion in arrest had been made subsequently to the judgment by default and antecedently to the entry of final judgment, the motion would have been strictly in conformity with regular pro- cedure. * * * But this motion in arrest was filed after the rendition of a final judgment. It therefore comes too late. What ju- dicial action is invoked by the interposition of a motion in arrest? The party presenting the motion asks the court not to enter final judgment because of some supposed de- fect in the proceedings which he undertakes to make ap- parent. But the judgment having been already entered, if he wishes to have it removed from the record, he must endeavor to accomplish that result by a motion to strike out. But the record shows that this appeal is from the de- cision of the court below overruling a motion in arrest of judgment filed after a final judgment had been entered in Sec. 3] Arrest of Judgment 599 the cause. There was no error committed by the Circuit Court in the disposition which it made of the motion, and its ruling should be affirmed. Ruling affirmed. Section 3. Effect of Motion. STATE EX EEL. HENRY W. BOND V. FISHER. Supreme Court of Missouri. 1910, 230 Missouri, 325. [On January 16, 1904, Sallie Bond filed a suit against the relator, Henry W. Bond, in the circuit court of St. Louis, upon a foreign judgment rendered against hioi in the state of Tennessee. Henry W. Bond filed defend 3s *o this action, and on June 21, 1907, the cause came on for trial. The court made a finding against the defendant, Henry W. Bond, whereupon, at the same term, he filed his motion in arrest of judgment, which motion was continued, and thereafter, on June 22, 1908, said motion was sustained, for the stated reason that the judgment was not respon- sive to the issues. Neither party took any steps to appeal from or review this order of the trial court. Nothing fur- ther was done for a year, when the said cause was set for trial for the 5th day of October, 1909. Relator at once filed a motion to strike the cause from the docket, on the ground that the order in arrest of judgment had put an end to the cause, which motion was overruled. Relator then filed a petition in the Supreme Court for a writ of prohibi- tion restraining the Hon. D. D. Fisher, judge of the circuit court of St. Louis, from proceeding further with said cause. A preliminary rule was issued requiring respond- ent to show cause why a permanent writ of prohibition should not issue.] ^ Woodson, J. This is an original proceeding instituted in this court, seeking to prohibit the respondent, as judge of the circuit court of tlie city of St. Louis, from taking and further exercising jurisdiction over the parties to and ^ The matter inclosed in brackets is a condensation by the editor of the statement of facts published with the opinion. 600 Trial Peacticb [Chap 16 the subject-matter involved in the case of Sallie Bond against this relator, pending therein. I. There are but two legal propositions presented by this record for determination: First, what is the legal ef- fect of an unappealed from order of the circuit court of this State sustaining a motion in arrest of judgment ; and, sec- ond, * * * "We will dispose of these propositions in the order stated. At common law an unconditional order sustaining a mo- tion in arrest of judgment was a final disposition of the cause, that is, it prevented the rendition of a subsequent final judgment therein. But, if the order was made condi- tional upon an amendment, or such other action as would remove the cause of arrest, and the condition complied with, then a venire facias de novo should be awarded, in which case the order in arrest would not constitute a bar to the entry of a final judgment therein. In Cyclopedia of Law and Procedure, vol. 23, p. 836, the doctrine is stated thus: "The granting of a motion in ar- rest of judgment prevents the entry of a final judgment in the cause, unless it is made conditional upon an amend- ment, or such other action as will remove the cause of ar- rest. And if it does not award a venire facias de novo, it operates as a discontinuance and dismisses defendant with- out day." In Encyclopedia of Pleading and Practice, vol. 2, p. 820, the rule is stated in this language: ''In civil cases the sus- taining of a motion in arrest of judgment has the effect of putting an end to the case." The rule is tersely and clearly stated by the Supreme Court of Pennsylvania in the case of Butcher v. Metis, 1 Miles 233, in the following language: "An arrest of judgment is in effect nothing more than superseding a verdict for some cause apparent upon the record, which shows that the plaintiff is not entitled to the benefit of the verdict. It is often followed by a judgment for the defendant, that he go without day, but it is not of itself a judgment for the defendant. The court may, after an arrest of judgment, award a repleader or a venire de novo without a repleader. Wliich of these courses is the proper one, depends upon the nature of the defect for which Sec. 3] Arrest of Judgment 601 the judgment is arrested. If it appears by the record that the plaintiff has no cause of action, the court will give judg- ment, after the arrest of judgment on the verdict, that the plaintiff take nothing by his writ, and that the defendant go without day. If issue be joined upon an immaterial point, there being a sufficient cause of action alleged in the declaration, the proper course is to award a repleader. If the pleadings be sufficient and the issue well joined, but the verdict is imperfectly found, it is usual to award a venire de novo; and this it is said may be done upon the motion of the defendant, without a motion in arrest of judgment. ''The venire de novo is an ancient proceeding of the common law. It was in use long before the practice of granting new trials. It follows, of course, upon the grant- ing of a new trial ; but as a distinct proceeding it is com- monly adopted after a bill of exceptions or after a special verdict imperfectly found, but always for some cause ap- parent on the record, and if granted when it should not be, it is error, and the award of it may be reversed. "A new trial, on the other hand, is commonly granted after a general verdict for some cause not apparent on tne record, and it is not assignable for error. (Hanihleton v. Veere, 2 Saund. 169 (n. 1) ; Good title v. Jones, 7 T. R. 43, 48 ; Witham v. Lewis, 1 Wils. 48, 56 ; Com. Dig., tit. Pleader, R. 18; 1 Sellon's Practice, ch. 11, sec. 3 (C. D.) ; Miller v. JRalston, 1 Serg. k Rawle 309; Ehersoll v. Krug, S'Binn. 53; Lessee of Pickering v. Rutty, 1 Serg. & Rawle 515.) "In this case the fault was in the verdict. Of course it appears upon the record. A venire facias de novo is there- fore proper. "In regard to the objection that the defendant is no longer in court on this action, it should be observed that the judgment was arrested at this term, and no judgment has been entered for the defendant. He is therefore still in court and bound to take notice of the further proceed- ings in the cause. But if the term had been allowed to elapse after the arrest of judgment, and the cause had not been continued by a cnria adv. vult, according to strict no- tions of practice, the action would have been discontinued, and the defendant without day in court. Venire de novo awarded.'* 602 Trial Practice [Chap. 16 And the Supreme Court of Indiana in the case of Raber V. Jones, 40 Ind. 1. c. 441, in discussing this question used this language: ''The complaint does not aver that the judgment against the corporation was recovered upon the policy. It is a clear principle of pleading, that in declar- ing upon a statute, the averments must be sufficient to bring the case within the statute. The complaint was, therefore, radically defective, in not stating facts sufficient to con- stitute a cause of action, and the court properly arrested the judgment. ''When the judgment was arrested, however, there should have been an end of the case. No judgment for th" defendant should have followed. The arrest of judgment ends the case. Each party pays his own costs, and the plaintiff is at liberty to proceed de novo in a fresh action. 3B1. Com. 393, note u." The case of Kaufman v. Kaufman, 2 Wharton (Pa.) 139, 1 c. 147, announces the same doctrine. The authorities seem to be uniform upon this proposi- tion. The only modification that has been made of that common law rule is contained in section 804, Revised Stat- utes 1899. That section reads as follows: "When a judg- ment shall be arrested, the court shall allow the proceed- ings in which the error was, to be amended in all cases when the same amendment might have been made before trial, and the cause shall again proceed according to the practice of the court." Under the provisions of this statute, the order of the court sustaining a motion in arrest of judgment does not necessarily result in a new trial, any more than it did at common law. Such an order has that effect only in those cases where the motion is sustained for an error which could have been cured by an amendment made before the trial occurred. This was so held by this court in the case of Stid V. Railroad, 211 Mo. 1. c. 415, where Lamm, J., in speaking for the court, used this language: "Speaking with prer-ision, a motion in arrest is not a motion for a rehear- ing. If granted, it does not necessarily result in a new trial. If an amendment be allowed, the cause by statutory command proceeds 'according to the practice of the court.' (R. S. 1899, sec. 804.)" This construction of that statute is in harmony with the Sec. 3] Akeest of Judgment 603 spirit of our legislation upon the subject of nonsuits and arrests of judgments, as expressed in section 4285, Revised Statutes 1899, which, insofar as is material, reads as fol- lows: ''If any action shall have been commenced within the time respectively prescribed in this chapter, and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or, after a judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered or such judgment arrested or reversed." The only remaining matter to be determined in this con- nection is, was the motion in arrest sustained for an error which might have been ^cured by a timely amendment be- fore the trial was had in the circuit coart of the city of St. Louis? The order sustaining the motion in arrest specifically sets out the reason for the court's actions in that regard, namely, for the reason that the judgment ivas not responsive to the issues. Clearly, this was not an error which could have been cured by an amendment before the trial was had in the circuit court of the city of St. Louis, within the meaning of said section 804, for the obvious leason that the judgment could not in the very nature of things have been rendered until after the trial was had {therein. And since the order of the court sustaining the motion in arrest was unconditional, unappealed from, and the term at which it was entered having long ago elapsed, it became absolute and final, and, therefore, constitutes a complete bar to all further proceedings in said cause. ********** We are of opinion that the preliminary rule heretofore issued should be made permanent. It is so ordered. All concur. 604 Teiajl. Practice [Cliap. 16 CINCINNATI, INDIANAPOLIS, ST. LOUIS AND CHI- CAGO EAILWAY COMPANY V. CASE. Supreme Court of Indiana. 1889, 122 Indiana, 310, Coffey, J. This was an action by the appellee against the appellant to recover damages for negligent delay in shipping appellee's cattle from the town of Fowler to the city of Indianapolis. Upon issues formed the cause was tried by a jury, who returned a verdict for the appellee. Appellant moved in arrest of judgment, which was over- ruled, and an exception taken. Appellant then filed its motion and reasons for a new trial, which was overruled and exception reserved. Judg- ment on verdict. The first and second errors assigned here call in ques- tion the sufficiency of the complaint, and the third questions the propriety of the ruling of the circuit court in overrul- ing the motion for a new trial. No objection to the ruling of the circuit court in over- ruling the motion in arrest of judgment is urged in this court. It is not even assigned here as error. It is now claimed by the appellee that as the motion in arrest of judgment preceded the motion for a new trial, the right to move for a new trial was cut off, and that it can- not, for that reason, bo considered. Such seems to be the established practice in this state. * * * It is claimed by the appellant that no good reason can be given for the rule established by these numerous cases, and that therefore, they should be overruled. But it must not be forgotten that they establish a rule of practice wliich has prevailed in this State for many years, well understood by the profession. A rule so firmly established and so well understood as this should not be disturbed, ex- cept for some strong reason. The rule can work no hard- ship, as a party may, after a motion for a new trial, move in arrest of judgment and thus secure the benefit of both Soc. 3] Akrest of Judgment 605 motions. We know of no good reason why this long list of cases should be overruled. We find no error in the record. Judgment affirmed.^ 1 ' ' This rule, however, extends only to cases where the party has knowledge of the fact, at the time of moving in arrest of judgment; therefore, a new trial was granted after such a motion, on affidavits of two of the jury, that they drew lots for their verdict. (Pr. Reg. 409. Bui. Ni. Pri. .325, 6. Bed quaere, whether such affidavits would now be received.) " 2 Tidd's Practice, •913. JEWELL V. BLANDFORD. Court of Appeals of Kentucky. 1838. 7 Dana, 472. Opinion of the Court, by Chief Justice Robertson". ********** First, did the previous motion in arrest of judgment pre- clude Jewell from a right to ask a new trial? and, secondly, was he entitled to a new trial? First. Cases may, we know, be found in the British books, in which judges in England decided that a motion for a new trial comes too late after an unsuccessful motion to arrest the judgment ; and the only reason given for such a practice seems to have been that assigned by Bayley, justice; and that is because, as he said, by moving to arrest the judgment, the party acknowledged that there was no valid objection to the verdict. But that assump- tion is, in our judgment, unreasonable, and the estoppel de- duced from it seems to be equally so. If it be true that a motion in arrest is an implied waiver of a right to a new trial, should not a motion for a new trial equally operate as an implied admission that there is no cause for arresting the judgment? And considered as an original question, is there, should there be, any such implied admission or waiver in either case? We think not. Indeed, in England this is a mere matter of practice only. and arose in England, from the peculiar organization and powers of its courts. There is no principle in it. Our practice is different, and is, therefore, in our opinion, 606 Trial Practice [Chap. 16 more consonant with justice and all the ends of the law. We do not hesitate, therefore, to decide that the motion for a new trial did not come too late in this case, and the more especially as, by not objecting to it when made, the plaintiff in the action waived the technical objection which the British practice, if it had been adopted here, might have authorized him then only to make. CHAPTER XVII. NEW TRIALS. Section 1. General Purpose. GUNN V. UNION RAILROAD COMPANY. Appellate Division of the Supreme Court of Rhode Island. 1901. 23 Rhode Island, 289, Rogers, J. — This suit is trespass on the case for negli- gence brought in the Common Pleas Division, wherein, upon a jury trial, the plaintiff obtained a verdict against the defendant for $10,000; and thereupon the defendant brought it to this Division on a petition for a new trial on the ground, among others, that the verdict was against the law and \\\q evidence and the weight thereof. On Decem- ber 28, 1'jOO, this Division filed its opinion granting the petition on the ground that the verdict was against the weight of the evidence. See 22 R. I. 321. On the same day, wit, December 28, 1900, the plaintiff moved that this Division dismiss the defendant's petition for a new trial and direct the Common Pleas Division to enter judgment on the verdict of the jury in said action, — ''First. Because the record in said case shows that to grant a new trial on the grounds therein set forth would be in violation of the constitution of Rhode Island, and also of the constitution of the United States, to wit, of the fourteenth amendment to said constitution of the United States, wherein it is provided that no state shall 'deprive any person of life, liberty or property, without due process of law,' "Second. Because the court in its opinion has 'granted the defendant's petition for a new trial' on grounds which the record shows deprive the plaintiff of his right to a trial by jury, and of his property, 'without due process of law.' " 607 608 Tkial Pkactice [Chap. 17 At the time our State constitution went into operation section 5 of "An act to establish a Supreme Judicial Court" was in full force, which gave that court the power to grant new trials in cases decided therein or in any Court of Com- mon Pleas for various reasons specified; and said section contained this clause, viz.: "and the said court shall also have power to grant new trials in cases where there has been a trial by jury, for reasons for which new trials have been usually granted at common law." Digest of 1822, p. 109. It is clear that our ancestors prior to our present State constitution found trial by jury so fallible that it was necessary to provide for more than one trial. In England as well as in the older States of America, two hundred years ago, trial by jury was in a state of evolution. The old law of attaints against a jury as a means of reversing a verdict against the evidence was apparently obsolete both in Eng- land and in this country before the American Revolution. Note to Erving v. Cradock, Quincey, 560, by Horace (Mr. Justice) Gray. Sir William Blackstone, writing in or about 1765 (3 Com. Chitty's ed., 388-392), says: "Formerly the prin- cipal remedy, for reversal of a verdict unduly given, was by writ of attaint. * * * But such a remedy as this laid the injured party under an insuperable hardship by making a conviction of the jurors for perjury the condition of his redress. The judges saw this; and therefore very early, even upon writs of assise, they devised a great variety of distinctions, by which an attaint might be avoided, and the verdict set to rights in a more temperate and dispassionate method. * * * When afterwards attaints, by several statutes, were more universally extended, tlie judges fre- quently, even for the misbehaviour of jurymen, instead of prosecuting the writ of attaint, awarded a second trial: and subsequent resolutions, for more than a century past, have so amplified the benefit of this remedy, that the attaint is now as obsolete as the trial by battle which it succeeded; and we shall probably see the revival of the one as soon as the revival of the other. * * * Tf every verdict was final in the first instance, it would tend to destroy this valuable method of trial, and would drive away all causes of conse- quence to be decided according to the forms of imperial Sec. 1] New Trials 60'J law, upon depositions in writing, which might be reviewed in a course of appeal. * * * The jury are to give their opinion instanter; that is, before they separate, eat, or drink. And under these circumstances the most intelligent and best intentioned men may bring in a verdict, which they themselves upon cool deliberation would wish to re verse. "Next to doing right, the great object in the administra- tion of public justice, should be to give public satisfaction If the verdict be liable to many objections and doubts in the opinion of his counsel, or even in the opinion of by- standers, no party would go away satisfied unless he had a prospect of reviewing it. Such doubts would with him be decisive : he would arraign the determination as manifestly unjust, and abhor a tribunal which he imagined had done him an injury without a possibility of redress. ''Granting a new trial, under proper regulations, cures all these inconveniences, and at the same time preserves entire and renders perfect that most excellent method of decision, which is the glory of the English law. A new trial is a rehearing of the cause before another jury, but with as little prejudice to either party, as if it had never been heard before. ************* "Nor is it granted where the scales of evidence hang nearly equal; that which leans against the former verdict ought always very strongly to preponderate." Bright v. Eynon, 1 Burr. 390, decided in the King's bencli in 1757, was a motion for a new trial upon which the judges gave their opinion, granting the new trial, seriatim. Lord Mansfield, inter alia, said, page 393, — "Trials by jury, in civil causes, could not subsist now without a power, some- where, to grant new trials. If an erroneous judgment be given in point of law, there are many ways to review and set it right. Where a court judges of fact upon depositions in writing, their sentence or decree may, many ways, be re- viewed and set right. But a general verdict can only be set right by a new trial; which is no more than having the causes more deliberately considered by another jury, where there is a reasonable doubt, or perhaps a certainty, that justice has not been done. "The writ of attaint is now a mere sound in every case: in many it does not pretend to be a remedy. There are T. p.— 39 610 Trial Practice [Chap. 17 numerous causes of false verdicts, without corruption or bad intention of the jurors. They may have heard too much of the matter before the trial, and imbibed preju- dices without knowing it. The cause may be intricate ; the examination may be so long as to distract and confound their attention. ************ "If unjust verdicts obtained under these and a thousand like circumstances, were to be conclusive forever, the deter- mination of civil property, in this method of trial, would be very precarious and unsatisfactory. It is absolutely necessary to justice, that there should upon many occasions, be opportunities of reconsidering the cause by a new J-^jn] ************* "It is not true 'that no new trials were granted before 1655,' as has been said from Style, 466." After referring to Slade's case, which was in 1648, re- ported in Style, 138, and to Wood v. Gunston, in 1655, Style, 466, Lord Mansfield proceeds : "The reason why this matter cannot be traced further back is, 'that the old re- port-books do not give any accounts of determinations made by the court upon motions. ' "Indeed, for a good while after this time, the granting of new trials was holden to a degree of strictness, so intoler- able, that it drove parties into a court of equity, to have, in effect, a new trial at law, of a mere legal question, because the verdict, in justice, under all the circumstances, ought not to conclude; and many bills have been retained upon this ground, and the question tried over again at law, under the direction of a court of equity. And therefore of late years the courts of law have gone more liberally into the granting of new trials, according to the circumstances of the respective cases. And the rule laid down by Lord Parker, in the case of the Queen against the corporation of Helston, H. 12 Ann B. R. (Lucas, 202) seems to be the best general rule that can be laid down upon this subject; viz. 'Doing justice to the party,' or in other words 'attaining the justice of the case.' "The reasons for granting a new trial must be collected from the whole evidence, and from the nature of the case considered under all its circumstances." Mr. Justice Denison concurring, added "that it would be difficult perhaps to fix an absolutely general rule about Sec. 1] New Tkials 611 granting new trials, without making so many exceptions to it as might rather tend to darken the matter than to explain it; but the granting a new trial, or refusing it, must depend upon the legal discretion of the court, guided by the nature and circumstances of the particular case, and directed with a view to the attainment of justice." Mr. Justice Foster agreed to the propriety of what had been said, as to such cases in which the juries give verdicts against evidence, and even as to cases where there may be a contrariety of evidence, but the evidence upon the whole, in point of probability, greatly preponderates against the verdict; (which, depending on a variety of circumstances, is matter of legal discretion, and cannot be brought under any general rule;) but in all cases where the evidence is nearly in equilihrio, he declared that he should always think himself bound to have regard to the finding of the jury, for "ad questionem facti respondent jiiratores." Other eases in which new trials were granted in England prior to the American Revolution, are Berks v. Mason, Sayer, 264, decided in 1756; Goodtitle v. Clayton, in 1768, 4 Burr. 2224; and N orris v. Freeman, in 1769, 3 Wil. 38. In Marsh v. Boiver, 2 Black. W. 851, heard in 1773, the action was for words spoken, and the words were fully proved on the trial, but the jury found for the defendant. The court refused a new trial solely on the ground of triviality, de- claring "that they would not grant a new trial for the sake of sixpence damages, in mercy to the plaintiff as well as the defendant," The authorities above cited satisfy us that, at the time of the separation of the American colonies from the mother country, the common law of England authorized the grant- ing of a new jury trial, in a proper case, on the ground that the former verdict was against the weight of the evidence. In this State the decisions of this court, as well those deny- ing, as those granting a new trial, recognize that the grant- ing of a new trial upon a strong preponderance of testi- mony has been the long-established rule. See Johnson v. Blanchard, 5 R. I. 24; Patton v. Hughesdale, 11 R. I. 188; Watson V. Tripp, 11 R. I. 98, 103; Chafee v. Sprague, 15 R. I. 135; Sweet v. Wood, 18 R. I. 386; Lake v. Weaver, 20 R. 1.46. For a large number of cases in other States upon the 612 Trial Practice [Chap. 17 proposition that when a verdict is clearly against the weight of the evidence, it is the duty of the court to set it aside and order a new trial, see 16 A. & E. Enc. of Law (1st ed.), 554, note 7. The plaintiff in the case at bar contends that it was an essential provision of the common law that motions for new trials should be addressed to the trial court. One judge, however, as we understand it, went upon circuit, and the judges in banc sat upon motions for a new trial, and though the opinion of the judge that sat on the jury trial was lis- tened to with much respect, yet it was not final ; otherwise there would have been no reason for the others sitting and going through the idle form of expressing their opinion as they were wont to do. Reference to the old cases hereinbe- fore cited seems to show that. In Marsh v. Boiver, supra, the report of the case says: "Lord Mansfield, who tried the cause on the Home Circuit, reported," &c. , but "The court unanimously declared," etc. In 16 A. & E. Enc. of Law (1st ed.), 618, is the following statement, viz.: "In the absence of statute regulations, the general rule is that an application for a new trial must be addressed to the court in which the cause was tried, and under circumstances rendering it necessary, it may be made to the judge who presided at the trial, during vacation. This rule is particularly applicable, and of nearly universal ap- plication in case of motions for new trial for errors of fact. Where a judge dies or goes out of office, however, his suc- cessor may entertain the motion, and where a cause has been transferred from one district to another by a change of lines or otherwise, such a motion may be heard by the proper tribunal in the new district, while power to entertain such motions has been conferred by statute in many and perhaps all of the states upon courts other than those in which the trial took place, in cases and under circumstances and conditions differing greatly in the different states." In 3 Waterman on New Trials, 1214, is this statement, viz. : "Notwithstanding, however, the evident want of qual- ification of the Appellate Court to form a correct opinion as to the conformity of the evidence with the verdict, in this country it is generally permitted to exercise a discretion in the premises." Sec. 1] New Trials 613 Our statute provides that a new trial by jury may be granted "for reasons for wliieli a new trial is usually grant- ed at common law. ' ' We have already expressed the opin- ion that the verdict's being against the weight of the evi- dence was a common-law reason at the time of the adoption of our State constitution ; but while reasons are prescribed, methods of procedure are not, and it seems to us utterly un- reasonable to try to stretch the application of the word reasons, to methods of procedure, so that in the lapse of years, reaching it may be to centuries, no change, or devel opmont, or imiDrovement, no adaptation to altered condi tions or circumstances, can be made or permitted without making unconstitutional the very same reasons that are still being adhered to. Granting a new trial is exercising n discretion, and, with us, as in many other States, is a power not confided to a single justice. The exercise of that discretion, when de- pending upon the weight of the evidence, necessitates some knowledge of the evidence, and in this State that knowledge is furnished by a stenographic report of the evidence — ques- tions, answers, and rulings — typewritten out at length, made by a sworn officer of the court and verified by the al lowance of the justice presiding at the jury trial, or, if that be not possible, then verified by affidavit. In this way all the judges have equal opportunities of judging of the evi- dence, and are not dependent upon the prejudices or pecu- liarities of any one man; and, as they will not grant a new trial because of the verdict being against the weight of the evidence, unless it is against a clear and decided preponder- ance thereof, if they have any question in the matter they will invariably sustain the verdict. Though the justice presiding at a jury trial has some opportunity, perhaps, of weighing the evidence, that other justices have not, yet he is also subjected to greater probability of having prejudices awakened, so that in some states the disadvantages are deemed to outweight the advantages of his sitting on a petition for a new trial, and, in this State, it is provided by statute, that "no justice shall sit in the trial of any cause * * * in which he has presided in any inferior court, or in any case in which the ruling or act of such justice sitting alone or with a jury is the subject of review, except by consent of all the parties." Gen. Laws E. I. cap. 221, s 4. 614 Trial Practice [Chap. 17 In Missouri v. Letvis, 101 U. S. 22, 31, Mr. Justice Brad- ley, delivering the opinion, said : ' ' The Fourteenth Amend- ment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each state prescribes its own modes of judicial proceeding." In Broiun v. Levee Commissioners, 50 Miss. 468, the Su- preme Court of Mississippi speaking of the meaning of the phrase "due process of law," uses these words which are quoted approvingly by Mr. Justice Matthews in Hiirtado v California, 110 U. S. 516, 536, viz.: ''The principle does not demand that the laws existing at any point of time shall be irrepealable, or that any forms of remedies shall neces sarily continue. It refers to certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always recognized. If any of these are dis- regarded in the proceedings by which a person is con- demned to the loss of life, liberty, or property then the deprivation has not been by 'due process of law.' " Judge Cooley in his work on Constitutional Limitations (6th ed.), 434, says: "The principles, then, upon which the process is based are to determine whether it is 'due pro- cess' or not, and not any considerations of mere form. Ad- ministrative and remedial process may be changed from time to time, but only with due regard to the landmarks established for the protection of the citizen." In our opinion it is not necessary in order not to contra- vene the constitution either of this State or of the United States that the justice presiding at the jury trial should first pass upon the question whether the verdict is against the weight of the evidence, or that he should sit with the court required to pass upon that question, in granting a new trial for that reason. We are of the opinion that this court has the constitu- tional right to grant a tt^w trial in a civil case when in its opinion the verdict is against the weight of the evidence, and that granting such new trial in the case at bar, would Sec. 1] New Trials 615 not be a violation of the constitution either of this State or of the United States. The plaintiff's motion, therefore, that this Division dismiss the defendant's petition for a' new trial and direct the Common Pleas Division to enter judg- ment on the verdict of the jury in this action, is denied. CALDWELL V. WELLS. Supreme Court of Idaho. 1909. 16 Idaho, 459. Stewaet, J. — This is an action to foreclose a mechanic's and materialman's lien under the laws of this state. Upon the issues presented by the pleadings the court submitted certain interrogatories to a jury. The jury made answer to such interrogatories, and the answers were in favor of the defendant. The trial judge adopted the findings of the jury as the findings of the court and entered judgment in favor of the respondent, A notice of intention to move for a new trial was served as follows : "Take notice, that plaintiff, J. W. Caldwell, intends to move the above-named court to vacate and set aside the judgment rendered in the above-entitled cause, and to grant a new trial of said cause, upon the following grounds, to wit: "3. Insufficiency of the evidence to justify the judg- ment. "4. That the judgment is against the evidence. *'5. That the judgment is against law. * * * The motion for a new trial was overruled and the plaintiff appeals from the judgment and from the order overruling the motion for a new trial. ********** * * * An application for a new trial is directed to the verdict of the jury or the decision of the court. The ver- dict and the decision are supposed to be based n]">ori the facts. The judgment is based upon the verdict, or the de- cision or findings of the court. If the verdict or findings of 616 Trial Practice [Chap. 17 the court do not support the judgment, the remedy is not by moving for a new trial. If, however, the verdict or de- cision of the court are not supported by the evidence, then the remedy is to move for a new trial and this requires a re-examination of the issue of fact. When a new trial is granted, the finding or verdict is set aside, in which case the judgment must also fall. In the case of Boston Tunnel Co. V. McKenzie, 67 Cal. 485, 8 Pac. 22, the court says of Sawyer V. Sargents} "It was held that a motion for new trial cannot be based on the ground of the insufficiency of the evidence to justify the judgment, nor can it, says the court, be based on the ground that the judgment is against law. The motion should be directed at the decision, and not the judgment. '* Whether the judgment is authorized by the findings can- not be raised on the motion for a new trial, for it is not involved in a re-examination of the issues of fact; so in this case it was not error in the trial court to overrule the mo- tion for a new trial, for the reason that counsel for appel- lant failed to specify the statutory grounds upon which such motion could be entertained. To have entitled the appellant to have the facts reviewed or have this court de- termine whether or not the trial court's decision was sup- ported by the evidence, or against the evidence and the law. counsel should have specified in the notice of intention to move for a new trial such matters as grounds for granting a new trial. In other words, the motion should have been directed to the decision of the court, rather than the judg- ment. Whether the judgment is correct cannot be deter mined upon a motion for a new trial; whether the decision of the court as contra-distinguished from the judgn1on^ was correct, could have been determined upon motion for a now trial, had such matter been specified as a reason for .q:ranting such new trial. Of course in this case the failure <"o properly specifv the insufficiencv of the evidence, or that the decision was aorainst law, would not have precluded the court from considering the other proper specifications con- tained in the notice, had tliere been anvthino: in the record to support such grounds ; but it is admitted by counsel for 1 65 Cal. 259, 3 Pac. 872. Sec. 1] New Trials 617 appellant that the sole and only ground upon which a new trial could have been granted was the insufficiency of the evidence, and that the decision of the court was against the evidence and law, and as these grounds were not specified, the court committed no error in overruling the motion. * * For these reasons the judgment is affirmed. Costs award- ed to respondent. Sullivan, C. J., and Ailshie, J., concur. ARMSTEONG V. WHITEHEAD. Supreme Court of Mississippi. 1902, 81 Mississippi, 35. Whitfield, C. J., delivered the opinion of the court. Appellant sued appellee for $144. In the course of the trial appellee, defendant below, reserved various exceptions to the action of the court in admitting and excluding evi- dence. So it was, however, that ultimately the judgment was rendered in favor of appellant, plaintiff below, for only $59. Defendant below made no motion for a new trial, being satisfied with the result. Plaintiff below, dissatisfied with the amount of the recovery, made a motion for a new trial, which was overruled, and then brought the record to this court by appeal. Defendant below, finding plaintiff below had appealed, petitioned the circuit clerk for a cross-appeal and has here cross assigned errors predicated upon the ac- tion of the court below in admitting and excluding evidence in the course of the trial, the court having overruled his objections, and he liaving excepted at the time. Appellant, plaintiff below, moves to dismiss the cross-appeal because the defendant below made no motion for a new trial. In Chasfine's case, 54 Miss. 503, following the statute prior to the code of 1892, §739, it was held that this court would not pass upon the action of the court below in over- ruling a motion for a new trial, where that particular action of the court had not been excepted to below, but the court, nevertheless, looked to the bill of exceptions, and the record, and for instructions improperly refused, and evidence im- 618 Trial Practice [Chap. 17 properly admitted, reversed the case. But, let it be marked, there was a motion for a new trial in that case, and the court below acted on that motion overruling it. In Spreng- ler's case, 74 Miss. 129 (s. c, 20 So. 879, s. c, 21 So. 4), the court pointed out the fact that § 739 of the code of 1892 changed the rule that this court would not pass on the ac- tion of the court below in overruling a motion for a new trial where such action in overruling the motion had not been excepted to. But, let it be marked again, there was in Sprengler's case a motion for a new trial, and a judgment of the court below overruling the motion. The important thing to note in Chastin's case and Sprengler's case is that in both the party appealing had specifically called the at- tention of the court below to the errors complained of, not simply by excepting in the course of the trial, but by re- peating the exceptions in motions for new trials on which the court acted. It would be very unfair to the court be- low, for this court to pass upon errors assigned here for the first time, which had never been called to his attention in a motion for a new trial below. The object of the motion for a new trial, and the reason requiring it to be made and acted on in order that this court may review the action of the court below, is clearly set out in 14 vol. Ency. of PI. and Pr., p. 846, '^a. Generally. — The office of a motion for a new trial is two-fold: first, to present the errors complained of to the trial court for review and correction, or to secure a new trial; second, to preserve the same errors in the record, so that the ruling of the trial court in granting or refusing a new trial may be reviewed by the appellate court. It is a general rule that all errors correctible by motion for a new trial and not so assigned are deemed to have been waived by the applicant for the new trial. Unless the motion for a "new trial has been presented and considered by the lowei* court and its ruling preserved, the errors assigned in surh motion will not be reviewed by the appellate court. ''h. To Obtain Bevicw hy Trial Court. — To secure a re- view in the trial court of errors committed at the trial, the complaining party must except to the errors and irregulari- ties at the time when the ruling of the court thereon are made, and must call attention of the trial court to such rulings by assigning them as errors, and as grounds for a ii Sec. 1] New Teials 619 new trial ; otherwise such errors will be deemed waived. " c. To Obtain Review by Appellate Court. — (1) Neces- sity of Motion and Ruling Thereon. — It is a well-known rule of appellate courts that errors of the trial court occurring during the trial will not be reviewed unless such errors have been called to the attention of the trial court, and an opportunity given to correct them. It is necessary, there- fore, to present such error to the trial court by a motion for a new trial and to secure a ruling on the motion." And in Thomp. on Trials, sec. 2712 : "Motion Necessary to Preserve Errors in the Record for Revieiv. — The motion is necessary to enable the court to correct such errors, occurring at the trial, as do not appear on the face of the record proper, as where it is insisted that there is no evidence to support the verdict, or that the ver- dict is against the law and the evidence, or that the evidence does not authorize the judgment, or that there is an error in the verdict of the jury, or where it is alleged that court erred in matter of law, either in admitting or rejecting evi- dence, or in giving or refusing instructions, or where it is alleged that there has been misconduct on the part of the jury, or that the damages assessed are inadequate, or ex- cessive, or in a criminal case, for an alleged error because of the non-arraignment of the defendant. The grounds upon which the motion is to be made are expressly enumer- ated in a majority of the practice acts of the various States, and include generally such errors in the mode of trial as do not otherwise appear on the record, but which are proper matters of exception. And when no motion for a new trial is made in the trial court to correct such errors, most of the decisions hold that they are deemed to have been waived, and that the appellate court will refuse to review them." Judge Thompson properly calls attention to the distinc- tion which exists in such cases between those exceptions which would appear upon the face of the record and which the judge would be supposed consequently to have always in mind, and the very different character of exceptions which are made in the current course of a trial and set forth in the ordinary bill of exceptions, and which do not appear elsewhere. Here we have a case in which it would have been very easy for the defendant to have put the record in such rndence; 4. Material evidence, newly discovered, which with reasonable diligence could not have been found and produced at the trial. 5. Excessive or insufficient damages, appearing to have been given under the influence of passion or prejudice. 6. Errors of law occurring at the trial, and either excepted to at the time, or clearly assigned in the notice of motion. 7. That the verdict, decision or report is not justified by the evidence, or is contrary to law." Mississippi : No statutory enumeration of grounds. Missouri: Ann. St., 1906, sec. 800. ' ' In every case where there has been a mistake or surprise of a party, his agent or attorney, or a misdirection of the jury by the court, or a mistake by the jury, or a finding contrary to the direction of the court, or a fraud or deceit practiced by one party on the other, or the court is satisfied that perjury or mistake has been committed by a witness, and is also satisfied that an improper verdict or finding was occasioned by any such matters, and that the party has a just cause of action or of defense, it shall, on motion of the proper party, grant a new trial, and, if necessary, permit the pleadings to be amended on such terms as may be just." Montana: Eev. St., 1907, sec. 6794. Same as the California statute. Nebra^lca: Code Civ. Pro., sec. 314. Same as the Arkansas statute except that term "referee" occurs after "jury" and after the second use of the word "court" in 1, and the term "report" occurs after the word "verdict" in 6. Nevada: C. L. 1900, sec. 3290. Same as the California statute except 2, which reads merely "Misconduct of the jury." New Hampshire: Pub. St., 1901, Chap. 230. "A new trial may be granted in any case, when through accident, mistake or misfortune justice has not been done and a further hearing would be equit- able. ' ' New Mexico : No statutory enumeration of grounds. New York: Code Civ. Pro., sec. 999. "The judge presiding at a trial by a jury may, in his discretion, entertain a motion, made upon his minutes, at the same term, to set aside the verdict, or a direction dismissing the complaint, and grant a new trial upon excep- tions; or because the verdict is for excessive or insufficient damages, or other- wise contrary to evidence, or contrary to law." Norlh Carolina: Eevisal of 1905, sec. 554. "The judge who tries the cause may, in his discretion, entertain a motion, to be made upon his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages." North Bal-ota: Eev. Codes, 1905, sec. 7063. Same as the California statute. Ohio: Gen. Code, 1910, sec. 11576. Same as the Arkansas statute, except that the words 'referee, master" oc- cur after the word "jury" and the word "referee" occurs after the second use of the word "court" in 1, and the word "report" occurs after the word "verdict" in 6. 630 Teial Practice [Chap. 17 OHahnma: Comp. Laws, 1909, sec. 5825. Same as the Arkansas statute except that the word "referee" occurs after "jury" and after the second use of the word "court" in 1, and the word ' ' report ' ' occurs after ' ' verdict " in 6. Oregon: Lord's Oregon Laws, sec. 174. "1. Irregularity in the proceedings of the court, .i"ry or adverse party, or any order of the court, or abuse of discretion, by Mhich such party was pre- vented from having a fair trial; 2. Misconduct of the jury or prevailing party; 3. Accident or surprise which ordinary prudence could not have guarded against ; 4. Newly discovered evidence, material for the party making the applica- tion, which he could not with reasonable diligence have discovered and pro- duced at the trial; 5. Excessive damages, appearing to have been given under the influence of passion or prejudice ; 6. Insuflficiency of the evidence to justify the verdict or other decision, or that it is against law; 7. Error in law occurring at the trial, and excepted to by the party mak- ing the application." Pennsylvania : No statutory enumeration of grounds. See: 2 Ash. 3L South Carolina : Code of Laws, 1902, "Sec. 2734. Circuit courts shall have power to grant new trials in cases where there has been a trial by jury for reasons for which new trials have usually been granted in the Courts of law of this State." Sec. 286, Same as the North Carolina Statute. South Dalcota: Code Civ. Pro., sec. 300. Same as the California statute, Tennessee : No statutory enumeration of grounds. Texas: Sayles Civ. St., sec. 1370. New trials may be granted, and judgments may be set aside or arrested on motion for good cause, on such terms and conditions as the court shall direct. Utah: C. L. 1907, sec. 3292, Same as the California statute. Vermont : No statutory enumeration of grounds. Virginia: Code, 1904, sec. 3392. "In any civil case or j)roceeding, the court before which a trial by jury is had, may grant a new trial, unless it be otherwise specially provided, A new trial may be granted as well where the damages awarded are too small as where they are excessive. ' ' Washington: E. & B. 's Ann. Codes, sec. 399, 1 - 4, same as 1 - 4 in California. "5. Excessive or inadequate damages appearing to have been given under the influence of passion or prejudice. 6. Error in the assessment of the amount of recovery, whether too large or too small, when the action is upon a contract, or for the injury or de- tention of property." 7 - 8, Same as - 7 in C.-ilifornia. West Virgivia: '^ndo, lOOfi, sec. 3985. Same aa Virginia. Sec. 2] New Teials 631 irijiconsin: St. 1898, sec. 2878. ' ' The judge before whom the issue is tried may, in his discretion, enter- tain a motion to be made on his minutes to set aside a verdict and grant a new trial upon exceptions or because the verdict is contrary to law or con- trary to evidence, or for excessive or inadequate damages." Wyoming: Comp. St., 1910, sec. 4601. Same as the Arkansas statute except that the words ' ' referee, master ' ' oc- cur after the word "jury" and the word "referee" occurs after the sec- ond use of the word "court" in 1, and the word "report" occurs after the word * * verdict " in 6. JOHNS V. HODGES. Court of Appeals of Maryland. 18S3. 60 Maryland, 215. Ritchie, J., delivered the opinion of the court. ********** After the verdict was rendered, the defendant, discover- ing that two of the jnrors were under twenty-five years of age, on the ground of this want of proper age and his pre- vious ignorance of it, filed a motion for a new trial, and also n petition that the Court refuse to certify the verdict of the jurv to the Orphans' Court, because void and illegal. The Court refused to grant a new trial and also to grant the petition, which it treated as in the nature of a motion for a new trial upon the ground that the objection was not taken in time. In the course of its opinion upon the point presented the Court forcibly remarks: ''It was competent for the de- fendant to have made the proper inquiries, and after hav- ing satisfied himself on the subject, to have made the ob- jection before the juror was sworn, but this he neglected to do. He waited until he had lost his case. If a party to a suit may omit to make such inquiries until after a verdict lias been rendered against him, and may then set it aside on discovery and proof of the existence of a good cause of challenge against any one of the jury, it would introduce an additional element of uncertainty in the administration of justice, and lead in many cases to great and unnecessary delay and expense.'* Under our present jury system, while the law aims to ex- 632 Trial Practice [Chap. 17 elude persons under twenty-five years of age from serving on juries, from tlie nature of the methods prescribed by the statute for drawing a jury, no certain means are provided for the absolute exclusion of such persons. The presump- tion arises, therefore, not that the officers charged with the duty of preparing the lists have wholly succeeded in secur- ing those free from all statutory disability, but that they have succeeded so far as diligence and good faith within the scope of their opportunities have enabled them to do so. That the officers charged with the selection of the jury will endeavor to discharge that duty according to law is an obli- gation not peculiar to those who provide the jury under our present system; but has been incident to the summon- ing of jurors from time immemorial. But the presumption that jurors only have been provided who have the proper legal qualifications has not been of that character as to ren- der needless the right of challenge. The right of challenge itself is a safeguard provided by law in contemplation of the contingency that the officers whose duty it is to select only qualified persons have failed in the performance of that duty. It is a means specially provided by which a party to a suit ma}^ readily and effectually protect himself against any oversight or neglect committed in the original selection. That men may be, and are, summoned, who are not contem- plated by the law as the subjects of jury duty, is common experience. And as the consequences of such an error can be readily obviated by inquiry and challenge when they come to be sworn, it is laches not to avail of so simple and efficacious a means of protection, where prejudice is ap- prehended or may be rendered im]:»ossible, as examination and challenge before the jury is empanelled. Not to exer- cise this right, when so simple a matter as the age of the juror is to be ascertained, or where he resides, but to pro- ceed to trial unimformed, and then endeavor after verdict to avail of a defect in these respects, would be not only to entail a loss of time, labor and money that a little diligence at the outset would have prevented, but to offer an induce- ment to suitors to await the verdict before questioning the f|iialification of the jnror, that, if favorable, the objection may be suppressed, and if ndverse, that it may then be called into requisition. No snch lottery is to be encouraged. Among the numerous cases which decide that what ia Sec. 2] New Trials 633 cause for challenge cannot be relied on to set aside the ver- dict, if the right of challenge has not been exercised, are Minna Queen v. Hepburn, 7 Cranch. 290; Hollingsworth v. Duane, 4 Dall. 353 ; Amherst v. Hadley, 1 Pick. 38 ; People V. Jewett, 6 Wendell, 386; United States v. Baker, 3 Bene diet, 68; Gormley v. Laramore, 40 Ga. 253; Wassum v. Fee ney, 121 Mass. 93 ; Rex v. Sutton, 8 Barn. & Cress, 417. The fact that the party was not aware of the disqualifi cation when the jury was empanelled is not material; be- cause he might have known it. In the cases in 4 Dall., 3 Benedict, 121 Mass., and 40 Ga., just cited, the disqualifica- tion was not known when the juror was sworn. The case in 121 Mass., was very similar in its facts to those relied on by the appellant. The objection was to the infancy of the juror, which was unknown to the defendant until the time of making his motion to set aside the verdict. Gray, C. J., in delivering the opinion of the Court, fully reviews the decisions bearing on the subject. Lord Tenterden, in Rex V. Sutton, goes so far as to say: ''I am not aware that a new trial has ever been granted on the ground that a juror was liable to be challenged, if the party had an opportunity of making his challenge." ********** Rulings affirmed, and cause remanded. FITZPATRICK V. HARRIS. Court of Appeals of Kentucky. 1855. 16 B. Monroe, 561. * * * A new trial was asked upon the ground that Elliott had been improperly admitted to testify, and that one of the jurors who sat on the last trial had also sat on the first trial. * * * Chief Justice Marshall delivered the opinion of the court. Though the affidavit of the defendant states that he did not know until after he was accepted, that Salyers, who was one of the jury on the last trial, had been one of the jury on G34: Tkial Pkactice [Chap. 17 the former trial, (when a verdict was found for the plain- tiff,) it is not a sufficient ground for a new trial. The ob- jection might have been made at any time before the juror was sworn, and, as we think, at any time before the entire jury was sworn, and the fact should have been made known as soon as discovered, at any time before the jury retired, when it might have been in the power of the parties to cure or waive the objection. Besides, the record of the former trial furnished to the parties and their counsel the means of knowing the names of the jurors who had then tried the case, and even if they were not personally known, the iden- tity of name would suggest the probable indentity of the per- son ; and even without the trouble of examining the record, the fact that there had been a previous trial, authorized, and should have suggested, the question to be asked of the juror himself, whether he had been one of the former jury. With such opportunities of ascertaining the fact, the failure to disclose it until it is made the ground of asking a new trial, raises a presumption of bad faith, or of wilfuU neglect, which can only be overcome by showing such extraordinary circumstances, if there can be any such, as will account for ignorance where the party ought to have knowledge, and excuse neglect where he is bound to be diligent. In this case the affidavit of Salyers proves that he and the defend- ant were familiar acquaintances and friends. — And thus the circumstances strengthen instead of repelling the unfavor- able presumptions in the case. And we may add, that even if the defendant himself were ignorant, it is not shown that his counsel, who conducted the defense, did not know the fact now brought forward, nor, if they were ignorant of it, is any reason shown for their neglecting the means of knowl- edge so easily within their power. The affidavit, therefore, makes out no ground for a new trial. Affirmed. Sec. 2] New Teials 635 KNIGHTS OF PYTHIAS V. STEELE. Supreme Court of Tennessee. 1901. 107 Tennessee, 1. Wilkes, J. This is a suit against the Endowment Bank of the Order of Knights of Pythias to recover $3,000, the amount of a benefit certificate in the fourth class upon the life of J. K. Steele, j)ayable to his wife as beneficiary. ********** It is assigned as error that the Court below erroneously refused to grant a new trial on the grounds of incompetency and misconduct of the jury. It appears that three of the jurors who sat upon the case, to wit, Munroe, Felts and Flanaghan, had served upon the jury in Shelby County with- in two years before they were called upon the jury in this case, and were therefore incompetent. It appears that the jury was placed in the box and tendered to the parties in a body. Counsel for the Order, when the jury was thus tend- ered, asked the question of them collectively if any one of them had served as a juror on a regular panel in any Court in Shelby County within the last two years, and each shook his head. It appears also that when this jury was made up on the Monday preceding the trial, for service generally in the Court, two of them, Munroe and Flanaghan, were examined separately and individually by the presiding Judge, and each answered that he had not served on any regular jury in the county of Shelby within the two years next preceding. The other juror, Felts, appears not to have been present and was not examined on that occasion, but it is reasonably cer- tain from the record that he was examined when he was af- terward chosen, though he sitates he was not. We are of the opinion that these jurors were not the good and lawful men to whom the parties were entitled as jurors under Article I., Section 6, of the Constitution. Neeley v. The State, 4 Bax. 180. They were not competent to serve as jurors, and were subject to challenge. Shannon's Code, § 5090. While it is not a good objection generally, after verdict, that a juror who sat on the case was incompetent propter 636 Trial Pkactice [Chap. 17 defectum, and it does not matter whether the fact was known to the parties or not, yet this rule proceeds npon the idea that the juror miglit have been examined before being selec- ted or the parties might have ascertained the fact and ex- cluded such juror by challenge. But in this case the coun- sel for the company exercised reasonable precaution to as- certain if the jury or any one of them was incompetent by inquiring of the jurors themselves, and had the assurance of competency, from the presumption that the trial Judge ex- amined them upon that point when they were placed on the regular jury, and the actual fact of a second examination by himself. Tlic jurors explained that they were mistaken about the time when they served, and did not intend to state a falsehood or mislead. However this may have been, the fact of incompetency existed, and counsel for the com- pany was misled and deceived, after taking proper precau- tions to ascertain the fact, and by the jurors themselves while either actually or virtually under oath, and it was not simply a case of want of knowledge of incompetency nor a waiver of incompetency, with or without knowledge of its existence, in which case the exception being propter defec- tum, must be considered as waived ; but it is a case where the exception was reasonably made, or would have been made but for the incorrect or false statements of the jurors, which misled the defendant's counsel and influenced his ac- tion. It is true counsel might have examined the jury books of the Court, and such other Courts in Shelby County as had jurors, but this would have been an extraordinary pre- caution, which would have consumed time and delayed the Court, and he could not be required so to do. The judgment of the Court below is reversed, and the cause remanded, and appellee will pay costs of appeal. Sec. 2] New Trials 637 UNITED STATES V. CHRISTENSEN. Supreme Court of the Territory of Utah. 1890, 7 Utah, 26. Anderson, J. The defendant was indicted for unlawful cohabitation, and was tried and convicted. He moved for a new trial up- on the ground, among others, of misconduct of the jury tending to prevent a fair and due consideration of the case, based upon affidavits showing that one John Harris, who was one of the petit jury which convicted him, was on the grand jury which found the indictment, and tliat the fact was not known of him or his counsel until after the verdict, and that the juror stated falsely on his voir fizre that he had not formed or expressed an unqualified opinion as to the guilt or innocence of the accused of the offense charged. The motion was sustained, and a new trial granted, and the United States excepted to the ruling of the court, and now prosecutes this appeal from the order of the court granting a new trial. When the juror Harris was called, he was sworn on his voir dire, and interrogated by defendant's counsel as follows : ' ' Do you know the defendant ? Do you know any of the witnesses named on the back of the indict- ment? Have you talked with any person regarding this case? Have you ever formed or expressed an opinion as to the guilt or innocence of the defendant?" To each of these questions he answered in the negative, and was ac- cepted as a juror in the case. The only question to be determined is whether the court erred in sustaining the motion for a new trial. In the case of People V. Reece, 3 Utah, 72, 2 Pac. Rep. 61, it was held that where a juror falsely stated, upon examination under oath as to his qualifications as a juror, that he was a citizen of the United States, and neither of the defendants knew or had reason to believe until after verdict that he was not a citizen, the defendants could not be deemed to have waived their right to a jury of twelve men possessing the qualifica- tion of citizenship, and, being guilty of no negligence or want of watchfulness, were entitled to have the verdict set aside, and a new trial granted. In People v. Lewis, 4 Utah, 638 Trial Practice [Chap. IT 42, 5 Pac. Eep. 543, the defendant was convicted of grand larceny. One of the trial jury which convicted him was a member of the grand jury which found the indictment against him. Neither the defendant nor his counsel knew this until after the verdict. The defendant moved for a new trial, which was overruled, and the ruling was affirmed in this court upon the ground of the defendant's negligence in not making sufficient inquiries as to the qualifications of the jurors. The jurors were sworn on their voir dire, and interrogated as to their statutory qualifications, to which no answer was given. Counsel for defendant then examined the jurors as follows : ''Are you acquainted with the defendant, Walter Lewis, here? Have any of you heard so much about his case as to form or express an opinion, an unqualified opinion, concern- ing his guilt or innocence? If any of you have, make it known. I will not put questions directly to each of you." The jurors were then asked if any of them were related to the prosecuting witness, and if they had formed or express- ed an opinion from anything they had heard him say, and hi' added: ''You don't seem to answer, and I will not put thv question to any of you particularly." No statement of th' facts constituting the alleged offense was made to the jurors, and hence, the court say, the jurors could not well have known whether they had an opinion as to the guilt or inno- cence of the defendant or not, and that, taking into con- sideration the timidity and apparent unwillingness of many jurors to answer questions unless they are individually in- terrogated, it is not surprising that there was no response to the questions of defendant's counsel. The court was of the opinion that interrogating the jurors in such a general way was such negligence that the defendant could not, after an unfavorable verdict, successfully move for a new trial, when, with the proper diligence, good ground for a chal- lenge of the juror would have been discovered. The court said, however, that "an express unqualified answer that the juror is a citizen, or that he has not formed or expressed an opinion as to the guilt or innocence of the accused, is suffi- cient to relieve the defense from further investigation un- less there is something to put the party upon furthf^r in- quiry." In the present case the defendant's counsel asked the juror whether he had formed or expressed an opinion Sec. 2] New Trials 639 :is to the guilt or innocence of the defendant, and he answer- ed that he had not, and under the ruling in People v. Lewis, supra, the defendant was not bound to pursue the investiga- tion further. It is not shown that the juror Harris had formed or expressed an unqualified opinion as to the guilt or innocence of the defendant further than the fact that he was one of the grand jury that found the indictment against him, and as to this fact he was not interrogated. The case of Rice V. State, 16 Ind. 298, was precisely like the one at bar in its facts. One of the trial jurors had been one of the grand jury which found the indictment. The juror was not asked as to whether he had been on the grand jury that found the indictment, but was asked whether he had formed or expressed an opinion as to the guilt or innocence of the accused, and answered that he had not. The fact that he had been on the grand jury was not discovered until after verdict, and, on a motion for a new trial, the affidavit of the juror was filed in support of the verdict to the effect that at the time of being examined he had no opinion as to the de- fendant's guilt, and had forgotten the circumstance of his having been on the grand jury. The court held that the defendant was entitled to a new trial, and was guilty of no negligence in not sooner discovering the fact of the juror's incompetency, but that, if the fact had been known to the ac- cused at the time the jury was accepted and sworn, he could not afterwards have been heard to make the objection. An objection to a juror such as is raised in this case is not like merely technical disqualifications, such as allienage, non-residence, and the like, which do not tend to impeach the fairness and impartiality of the jury. It is possibly true that the juror in this case had no opinion at the time of his examination as to the guilt or innocence of the ac- cused. He may have forgotten that he was on the grand jury that found the indictment. He may have voted against finding the indictment, or may have been absent when it was found, as twelve of the fifteen jurors constitute a quonmi, and may transact business ; but the presumptions of the law are all to the contrary, and, in the absence of any showing to that effect, ho must be presumed to have participated in the finding of the indictment, and to have formed an opinion as to the guilt or innocence of the defendant. It might be pos- sible, also, even if the juror had formed an unqualified be- 640 Teial Peacticb [Chap. 17 lief of the defendant's guilt from the evidence submitted to the grand jury, to change the opinion by evidence at the trial, if he were a man of candor and intelligence. But the defendant has a right to be tried by an impartial jury. A juror who, acting on his own oath as a grand juror, and up- on the sworn testimony of witnesses, has already formed an opinion as to the defendant's guilt, and has solemnly ac- cused him of a crime, should not be deemed an impartial or proper juror to try him. Having served on the grand jury which found the indictment and having formed or expressed an unqualified opinion or belief that the prisoner is guilty or not guilty of the offense charged, are each a ground of challenge to a juror for implied bias. 2 Comp. Laws 1888, § 5022, subds. 4, 8. And where the accused properly ex- amines the jurors concerning their qualifications, and they do not answer truthfully, he is thereby not only deprived of his right of challenge for cause, but may also be prevented from exercising his right of peremptory challenge. If, in such a case, a defendant, in trying to ascertain whether the jurors are competent or not, without negligence on his part, is denied a new trial, the greatest injustice might be done. In this case the names of the grand jurors did not appear on the indictment, the law only requiring that the name of the foreman should appear ; and there was nothing to notify defendant that the juror had been on the grand jury that found the indictment, nor to put him on inquiry. It is true if he had searched the records of the court he would have ascertained that fact, and it would have been commendable prudence and diligence to have done so; but we do not think his failure to do so is such negligence as should deprive him of the right to be tried by an impartial jury, especially in view of the false answer given by the juror. The motion for a new trial was properly granted. In support of the views above expressed, see Com. v. Hus- sey, 13 Mass. 221; Dilworth v. Com., 65 Amer. Dec. 264; Bennett v. State, 24 Wis. 57 ; Hayne, New Trials, § 45, and cases cited. See, also section 64. Our attention has been called to a number of cases where, upon the same state of facts as are presented here, a different conclusion has been reached, but we think the weight of authority as well as of Sec. 2] New Tbials 641 reason is iu accordance with this opinion. The ruling of the district court is affirmed. Zane, C. J., and Henderson, J., concurred. FLORENCE, EL DORADO & WALNUT VALLEY RAIL ROAD COMPANY V. WARD. Supreme Court of Kansas. 1883, 29 Kansas, 354. The opinion of the court was delivered by Valentine, J. : This action grows out of a condemnation proceeding instituted in Butler county by the Florence El Dorado & Walnut Valley railroad company, to acquire a right-of-way for its railroad over the lands of J. R. Ward and others. Ward, being dissatisfied with the award of the commissioners, appealed to the district court of said county by which appeal he became the plaintiff, the railroad com- pany became the defendant. The case was then tried be- fore the court and a jury. The jury consisted of Robert F. Moore, R. H. Steele, Harry Jones, James Hughes, and others. In impaneling the jury the following proceedings, among others, were had: R. H. Steele, examined by plaintiff's attorney: Q. Have the facts, or what purported to be the facts, been related in your presence or hearing. A. Yes, sir ; to a large extent. I have heard a great deal of the case. Q. Have you heard what purported to be the facts of the damages the plaintiff has sustained? A. I have heard the iircumstances of the land and the conditions through which the road ran through there, explained to me. ********** R. H. Steele, examined by defendant's attorney: * * * Q. Have you from Mr. Ward or others heard of a com- promise having been made by the defendant railroad com- pany to Mr. Ward in regard to this suit? (Plaintiff objects as immaterial and irrelevant, which the court overrules, the plaintiff at the time excepting.) A. Yes, sir j I have. T. P.— il 642 Trial Practice [Chap. 17 Q. In what you heard, was any amount stated? A. It was. Q. Did you, at the time you heard it form any opinion as to whether that amount was more or less than Ward ought to receive? (Plaintiff objects as immaterial, which objection the court overrules.) A. I believe I did. (Defendant's counsel challenge R. H, Steele for cause ) The court overruled defendant's challenge for cause, to which ruling the defendant at the time excepted. The jury found a general verdict in favor of the plain- tiff and against the defendant, and assessed the amount of the damages at the sum of $1,050. The defendant then moved the court for a new trial upon various grounds, and among others, on the ground of misconduct on the part of the jury. The alleged misconduct was principally that of R. H. Steele. On the hearing of the motion for a new trial, the several jurors were examined orally with reference to certain matters occurring during their deliberations with reference to their verdict. A portion of their evidence is as follows: [It was shown that Steoile, in order to get the verdict above $1,000, stated to the other jurors that the defendant had offered to pay the plaintiff $1,000, and also that unless the verdict was above $1,000, the plaintiff would have to pay the costs.] ^ Upon the foregoing evidence, these questions arise: 1. Was the juror Steele a competent and impartial juror? 2. Was he guilty of misconduct while the jury were delibera- ting upon their verdict? The plaintiff claims that the juror was competent and im- partial, and that he was not guilty of any misconduct; while the defendant claims the reverse. * * * The plaintiff also claims that the defendant did not ex- haust its peremptory challenges ; that, at the time the jury were impaneled and sworn and the trial commenced, the de- fendant still had one peremptory challenge, which it might 1 The matter inclosed in brackets is a condensation of facts made by the editor. Sec. 2] New Trials 643 have exercised in discharging Steele from the jury if it had so chosen; but that it did not so choose, and therefore Steele remained a member of the jury. We have examined this claim of the plaintiff, and the claim seems to be correct. The record does not show that the defendant exercised more than two of its peremptory challenges, while, under the statutes, each party is entitled to three. (Civil Code, § 271.) This fact, that the defendant did not exercise all its peremptory challenges, we think must have an impor- tant bearing in the case. It is our opinion that the juror Steele was not a fair and impartial juror, though his pre- conceived opinions in the case were not so manifestly pre- judicial as to render him an unmistakably incompetent juror. It is also our opinion that he was guilty of unques- tionable misconduct in acting as he did in the jury room, and while the jury were deliberating upon their verdict, but his misconduct was not so flagrantly wrong, or so manifest- ly prejudicial in its influences, as to make it clear that the verdict might have been affected thereby. And while we think that the court below should have discharged the juror Steele on account of his admitted opinions in the case, yet it is difficult for us to say that the court below committed material error in refusing to do so ; and while we think that the court below might very properly have granted a new trial on the grounds of his prejudice and misconduct, and the previous failure on the part of the court to discharge him, yet it is difficult for us to say, under all the circum stances of the case, that the court below committed any ma- terial error in refusing to so grant such new trial. Parties are usually held to the strictest vigilance in impaneling juries, and generally if an improper person is allowed to remain on the jury through the fault or negligence or want of proper diligence on the part of any party, such party cannot complain. In the present case, the defendant knew that the juror Steele believed that the defendant had offered to confess judgment for a certain amount, and it knew that the juror believed that he knew what that amount was; and yet the defendant failed to challenofo the juror peremp- torily, although at the completion of the panel it still retain- ed one of its peremptory challenges, unused and unexer- cised. "We think, under such circumstances, it would be proper to hold that the defendant was willing to take the 644 Teial Practice [Chap. 17 juror as he was, and to take the chances of his acting fairly and impartially in the case; and that if he did not do so with reference to the facts of which the defendant knew the juror had knowledge, the defendant should not complain. A party should not be allowed to decline to exercise his per- emptory challenges in discharging supposed incompetent jurors, and thereby to keep the question open as to their incompetency until after it is ascertained that the verdict is against him, and then allowed him to again raise the question as to competency. He should be compelled to use all reasonable means to discharge all objectionable jurors before the commencement of the trial ; and the failure to do so must be considered as a waiver of all known objections. And afterward if the juror should act as it might reason- ably be supposed he would act under the circumstances, the party failing to remove him, when he could so easily have done so if he had so chosen, should not be allowed to com- plain. In the present case, the incompetency of the juroi' was slight and not very clear, and his misconduct was also slight, and not necessarily prejudicial to the defendant's rights, and probably neither his incompetency nor his mis- conduct had any effect upon the verdict of the jury; but even if it had, it was partially the fault of the defendant in not removing him by one of its peremptory challenges. According to the testimony of the several jurors, nearly all of them were in favor of assessing the damages at from $1,100 to $1,200, instead of $1,050, as they finally did ; and it seems almost certain that if the juror Steele had not said a word, the verdict would not have been any less than it was. Such seems to be the testimony of all the jurors, and their testimony was oral, and in the presence of the trial court. Hence we cannot say, under all the circumstances, that the court below committed material error in refusing to grant the defendant a new trial on the ground of the incom- petency and misconduct of the juror Steele. ********** The judgment of the court below will be affirmed. All the justices concurring. Sec. 3] New Teials 645 Section 3. Misconduct of Jury or Paety.^ UNDERWOOD V. OLD COLONY STREET RAILWAY COMPANY. Supreme Court of Rhode Island. 1910. 31 Rhode Island, 253, Johnson, J. * * * After verdict, the defendant in due time filed a motion for a new trial upon the following grounds : "Sixth. That said defendant did not have a fair trial of said cause before a competent and impartial jury, inasmuch as one member of said jury, namely, Louis Sisson, was re- peatedly intoxicated while said trial was in progress and testimony was being taken therein before said jury, and was asleep during a part of the time when said trial was in progress and testimony was being taken therein, and was biased and prejudiced against the defendant, as shown by remarks made by him to other persons while said cause was being tried and during adjournments taken bv said court, and misconducted himself in other ways, all of which will be shown by affidavits to be filed in court in support of this motion, said affidavits when filed to become a part of this motion by reference. *** * # * * * * * *j) After hearing counsel and considering the affidavits, the trial justice denied the motion so far as it was based on the verdict being against the evidence and the weight thereof, and against the law. He also denied it so far as based up- on the condition and misconduct of the juror Sisson and his bias and prejudice. * * * ********** (1) We have, therefore, in this case, a mass of testi- mony to the effect that, for at least two days, a juror, dur- ing the progress of the trial was so much under the in- fluence of liquor that he was asleep a large part of the time. He so far lost his power of self-control as to be un- 1 As to misconrluct of an attorney ns ground for a new trial, see cases under "Argument and Conduct of Counsel," s^ipra, Chapter XII. 646 Trial Peactice [Chap. 17 able to walk steadily in and out of the jury-box, and by his foolish and childish actions, while testimony was being put in, revealed his own inattention and disturbed the jurors near him. He was boisterous and profane in his language, and talked freely about the case with strangers during the court recesses. According to a great number of witnesses, he was, during the court proceedings, so much intoxicated that it was impossible for him to understand and weigh in- telligently the evidence that was introduced in the case. The authorities are unamimous in recognizing the grave danger of the use of intoxicating liquor by jurors, and con- demn in the strongest terms the indulgence in drinking by jurors while sitting in the trial of a case. Some jurisdic- tions, especially Iowa and Texas, have held that the mere fact of drinking spirituous liquors by jurymen during the trial of a case, without regard to the quantity used or itfe effect, is sufficient ground for the granting of a new trial. Ryan v. Harroiv, 27 Iowa, 494; Jones v. The State, 13 Texas, 168. The great weight of authority, however, is in favor of the proposition that, if a juror, during the progress of the trial, drinks intoxicating liquor to such an extent that he is in- toxicated or under the influence of liquor so that his facul ties are affected, while sitting in the case, the verdict should be set aside. Perry v. Bailey, 12 Kan. 539 ; Hedican v. Pa. Fire Ins. Co., 21 Wash. 488; Broivn v. The State, 137 Ind. 240 ; State v. Ned, 105 La. 696 ; State v. Jenkins, 116 No. Car. 972; Davis v. Cook, 9 Nev. 134; 17 Amer. & Eng. Encyc. Law, p. 1234. Perry v. Bailey, supra, was a case in which two affidavits were filed, stating that one of the jurors, during the pro- gress of the trial, had been under the influence of liquor. The court held that, although the affidavits were not full and positive yet it was clear that the juror had drunk so much as to unfit him for the proper discharge of his duty, and consequently the verdict should be set aside. In the opinion. Judge Brewer, said, at page 546: "We tliink however, the great weight of authority estab- lishes these propositions: That if a juror during the pro- gress of the trial drinks intoxicating liquor on the invita- tion and at the expense of the party who afterwards has the verdict, or if at his own expense he drinks so much as to Sec. 3] New Teials 647 be under the influence of liquor while sitting in the case, the verdict ought not to stand ; and on the other hand, the mere drinking of spirituous and intoxicating liquors by a juror during the progress of a trial is not, in and of itself, suffi- cient to set aside a verdict (authorities). Aware as all are of the subtle and potent influence of liquor on the brain, no judge should for a moment permit a trial to proceed where it appeared that any juror was under the influence of intox- icating drink, or permit a verdict to stand which was not the cool, deliberate judgment of sober men." Hedican v. Pa. Fire Ins. Co., supra, was a case where, during the trial at an evening session of the court and dur- ing the defendant's argument, a juror was intoxicated. This fact was brought to the attention of the court after the session was concluded and the court permitted counsel at the following morning session to make their arguments without limitation as to time. All the testimony had been put in before the juror became intoxicated, and this fact was urged against the motion for a new trial. The court held that a new trial must be granted because of the miscon- duct of the juror. The court said, at page 490 : "Parties are entitled to have a cause submitted only to sober jurors, and the court will not undertake an inquiry in- to the state or condition of mind of a juryman who has been intoxicated during the progress of a trial, but will assume that he was incompetent to determine the cause. Drunk- enness during the progress of a trial is not only the gravest breach of a juryman's duty, but it is also a most serious contempt of the court and the administration of the law.** In Brouni v. The State, supra, the court granted a new trial on the ground of intoxication of one of the jurors dur- ing the trial and at page 241 said : "It seems to be well settled in this state as well as in other jurisdictions that drinking intoxicating liquor during the recess of the court is not such misconduct of the juror as vitiates the verdict, unless the drinking is to such an ex- tent as to produce intoxication; but where a juror drinks to such an extent as to become intoxicated, such conduct ren- ders the verdict invalid and the court, upon proof of such misconduct, should set it aside and grant a new trial." In Davis v. Cook, supra, the court said, at page 147 : "In vindication of the character of courts and the purity 648 Tbial Peactice [Chap. 17 of jury trials a verdict participated in by a jury-man with passions inflamed and reason impaired by ardent spirits should not be allowed to stand. Trial by jury regarded by our ancestors as the principal bulwark of their liberties and the glory of the English law, would degenerate into a mock- ery of justice if verdicts were capriciously determined by intoxicated jurors. The judgment must be reversed." In American & Eng. Ency. of Law, supra, the law is stated to be as follows : ^'If during the progress of the trial or during their de- liberations on the verdict jurors partake of intoxicating liquors to such an extent as to affect their ability clearly, impartially and calmly to consider the evidence the verdict will be set aside ; and the rule applies, it seems, where such an inordinate amount is drunk as to make a juror sick^ or to render it probable that he was incapacitated." The cause is remanded to the Superior Court for a new trial. CEAIG & COMPANY V. PIERSON LUMBER COM- PANY. Supreme Court of Alabama. 1910. 169 Alabama, 548. DOWDELL, C. J. * * * The main question in this case arises out of the action of the trial court in denying the motion for a new trial. The principal ground of the motion was the alleged im- proper conduct of J. 0. Acree, one of the parties to the suit. It was not denied on the hearing of the motion that after the evidence in the case was conchided, and the court had recessed for dinner, before hearing the argument, Acree invited one of the jurors trying the case to dine with him at a certain hotel, which invitation was accepted, and that vXoree paid for the juror's dinner. ''Misconduct or ir- regularity on the part of the jurors, if not induced by the Sec. 3] New Trials 649 prevailing party, will not ordinarily be ground for setting aside the verdict, unless it was calculated to prejudice the unsuccessful party. When, however, the misconduct is due directly to an improper act by the prevailing party, the verdict will be set aside without reference to the question of resulting injury." — 17 Am. & Eng. Ency. Law (2d Ed.) p. 1204. "It is the general rule that a new trial will be granted if jurors .ire entertained during the trial by the party in whose favor a verdict is rendered. So it has been held ground for a new trial that the prevailing party fur- nished jurors with cigars or intoxicating liquors." — Id. p. 1235. Aside from protecting the rights of parties, in the fair and impartial administration of justice, respect for the courts calls for their condemnation of any improper con- duct, however slight, on the part of a juror, of a party, or of any other person, calculated to influence the jury in return- ing a verdict. So delicate are the balances in weighing jus- tice that what might seem trivial under some circumstances would turn the scales to its perversion. Not only the evil, in such cases, but the appearances of evil, if possible, should be avoided. The learned judge who tried the case below, in overruling the motion for a new trial, evidently proceeded on the theory that the defendants waived their right of objection in fail- ing to bring the matter to the attention of the court at their first opportunity after knowledge acquired by them or their attorney of the alleged misconduct of the said Acree. Here the knowledge was acquired during the recess period of the court for dinner or lunch, and on the reconvening of the court, without objection made, the argument of the case proceeded, and the charge of the court to the jury was giv- en, and the jury permitted to retire to make a verdict, and not until a motion for a new trial was the alleged miscon- duct made known to the court. The general rule is that, in the impaneling of a jury, mat- ter going to the disqualification of a juror, if within the knowledge of a party or his attorney, should be taken on objection at the time the juror is put upon him for accept- ance or rejection; and a failure to so object is accounted a waiver on his part of the objection. But this rule does not and should not apply in case of misconduct on the part of 050 Trial Practice [Chap. 17 a juror, arising after his acceptance as such and a trial entered upon. In the present case the alleged misconduct was that of a part}^, and the remedy of the injured party was by a motion to set aside the verdict and for a new trial. It is true he might have brought the matter to the attention of the court before proceeding further with the trial, but his failure to do so ought not to deprive him of his remedy on a motion for a new trial. It does not lie in the mouth of the party guilty of the misconduct to object on the ground of speculating on the verdict of the jury, since his own mis- conduct produced the conditions. To require a party to make his objection pending the trial might still further pre- judice him, especially if it should happen that he was mis- taken in making the charge, though ever so honest. We are of opinion that the motion for a new trial should have been granted, and that the court erred in refusing it. For the errer of overruling the motion for a new trial, the judgment is reversed, and the cause remanded. Reversed a/nd remanded. Anderson, Sayre, and Evans, JJ., concur. BAKER V. BROWN. Supreme Court of North Carolina. 1909, 151 North Carolina, 12. # * * Walker, J. — The defendant moved to set aside the verdict because the* plaintiff had talked to one of the jurors. This was not ])roper conduct on the part of the plaintiff, when unexplain- ed, i)ut the evidence shows that it was inadvertent and that what he said did not even remotely relate to the case tried by the jury of which he was a member, and was utterly harmless. It had no influence whatever upon the jury or the juror with whom the plaintiff talked, and the Court so finds the facts to be. As was said by Judge Pearson, in Slate V. Tilghman, 33 N. C, at p. 552, ''Perhaps it would Sec. 3] New Trials 651 have been well had his Honor, in his discretion, set aside the verdict and given a new trial as a rebuke to the jury and an assertion of the principle that trials must not only be fair, hut above suspicion. This, however, was a matter of discretion, which we have no right to reverse. Our in- quiry is, was the misconduct and irregularity such as to vitiate the verdict, to make it in law null and void and no verdict?" That case is an authority for the position that, under the facts of this case, the motion for a new trial was addressed to the sound discretion of the court. "When the circumstances are such as merely to put suspicion on the verdict by showing, not that there ivas, but that there might have been undue influence brought to bear upon the jury, because there was opportunity and a chance for it, it is a matter within the discretion of the presiding judge; but if the fact be that undue influence was brought to bear upon the jury, as if they were fed at the charge of the prosecutor or prisoner, then it would be otherwise." State v. Brit tain, 89 N. C. 483. See, also, State v. Harper, 101 N. C. r61; State v. Morris, 84 N. C. 757; State v. Tilghman, su- pra; State V. Gould, 90 N. C. 658; State v. Barber, 89 N. C. 523. In Moore v. Edmiston, 70 N. C. at p. 481, Justice By- num, for the Court, thus formulates the rule: ''The line of distinction is that to vitiate and avoid a verdict it must ap- pear upon the record that undue influence was brought to bear on the jury. All other circumstances of suspicion ad- dress themselves exclusively to the discretion of the presid- ing judge in granting or refusing a new trial. He is clothed with this power because of his learning and integrity and of the superior knowledge which his presence at and participa- tion in the trial gives him over any other forum. However great and responsible this power, the law intends that the judge will exercise it to further the ends of justice; and though doubtless it is occasionally abused, it would be diffi- cult to fix upon a safer tribunal for the exercise of this dis- cretionary power, which must be lodged somewhere." It does not appear in this case that the jury were influenced in the slightest degree, in deciding upon their verdict, by what the plaintiff said to one of the jurors. On the contrary, it appears that they were not and could not have been so in- fluenced. 652 Teial, Pkactice [Chap. 17 Upon a review of the whole case, we find no error in the rulings and judgment of the court. No error. FLESHER V. HALE. Supreme Court of Appeals of West Virginia. 1883. 22 West Virginia, 44. This is a writ of error to an order, made by the circuit court of Lewis county, March 16, 1882, setting aside the ver- dict of the jury and granting a new trial in an action of assumpsit brought by the plaintiff in error in the county court of said county, February 29, 1879, against the defend- ant in error for one thousand six hundred and forty-seven dollars and eighty-four cents, and transferred by operation of law to said circuit court before trial. The defendant pleaded non assumpsit and filed specifications of set-off, and the verdict was for two hundred and seventy-one dollars and twenty-seven cents in favor of the plaintiff. After the rendition of the verdict the defendant moved the court to set the same aside, which motion the court sustained and the plaintiff excepted and tendered his bill of exceptions, which shows that the defendant in support of his motion read three several affidavits in which the affiants state, that Al- len Snow, one of the jurors who tried the case, was intoxi- cated and drunk to such a degree that most of the time dur- ing the argument he was asleep and incapable of rendering a decision or determining the case in the manner and way of a sober juror. Snyder, Judhe: The court having set aside the verdict and granted a new trial upon the facts before stated, the single question pre- sented to this Court is, did the court in so doing err? Our statute provides that: '*No irregularity in any writ of venire facias, or in the drawing, summoning, or impaneling of jurors, shall be suffi- cient to set aside a verdict, unless the party making the ob- Sec. 3] New Trials 653 jection was injured by the irregularity, or unless the ob- jection was made before the swearing of the jury." Acts 1882, sec. 19, chap. 83, p. 190. Applying the spirit of said statute and, perhaps, extend- ing the rule and policy of it, the courts Virginia and of this State have repeatedly held, and it is now the settled law of this State, in both criminal and civil trials, that the ver- dict of the jury will not be set aside for objections to jurors, on grounds which existed before they were sworn, unless it is made to appear that by reason of the existence of such grounds the party objecting has suffered wrong or injustice. Sweeney v. Baker, 13 W. Va. 228, and cases there cited. In this class of cases the objections to the jurors were of such character that, if made before the jury was sworn, they would have been sustained and the jurors objected to held to be disqualified; but notwithstanding this and the fact that the parties, were ignorant of any grounds of disqualification until after the verdict, the court refused to set aside the verdict, because it did not appear that said grounds had operated so as to inflict injustice. The rule is, however, different in cases where the disquali- fication arises from the misconduct of the jurors after they have been sworn. While it requires clear and satisfactory proof to establish misconduct in a member of the jury after he has been sworn, because the presumption of right acting which obtains with reference to the conduct of every per- son acting in an official position unless the contrary is shown, applies in full force with reference to the conduct of sworn jurors, yet when misconduct is established of such a nature that prejudice might have resulted from it, a pre- sumption of prejudice arises from it, which unless rebutted by the successful party will vitiate the verdict and require a new trial. Woods v. State, 43 Miss. 364-72 ; State v. Car- tiirigU, 20 W. Va. 32; State v. Robinson, Id. 713. ''Where facts are established which show that improper influences were brought to bear upon the jury, or that they were guilty of improper conduct, such as might have result- ed prejudicially to the losing party, a presumption arises against the purity of their verdict ; and unless there is testi- mony which shows that their verdict was not affected by such influences or conduct, it will be set aside; and the bur- den of producing such testimony is upon the party claiming 654 Trial Practice [Chap. 17 the right to keep the vardict. The rule is one of public policy. In order to preserve public confidence in the ad- ministration of justice, it is not only necessary that judicial trials should be conducted with reasonable regularity, but that verdicts should be free from the taint of suspicion of improper conduct or influences." — Thomp. & Mer. on Juries, §439; Phillip's Case, 19 Gratt. 485; Com. v. Bohy, 12 Pick. 496; Thompson v. State, 26 Ark. 323. While these are the general rules established by the courts in regard to verdicts where the disqualification or misconduct of the jurors was unknown to the parties until after verdict, there is another rule which limits these rules and applies to all classes of cases, whether the disqualifica- tion of the jurors existed before being sworn or arose out of misconduct during the trial. All the authorities agree that, where a new trial is asked on account of irregularity or misconduct of the jury, it must appear that the party so asking called the attention of the court to it at the time it was first discovered or as soon thereafter as the course of the proceedings would permit, and if he fail or neglect to do so, he will be held to have consented to have vvaived all objections to such irregularity or misconduct, and, un- less it be a matter which could not have been waived, or which could not have been remedied or obviated, if attention had been called to it at the time it was first discovered, he will be estopped from urging it as a ground for a new trial. — Diliuorth's Case, 12 Gratt. 689; Coleman v. Moody, 4 H. & M. 1 ; Dower v. Church, 21 W. Va. 23 ; Fox v. Hazel- ton, 10 Pick. 275; Oleson v. Mender, 40 Iowa, 662; Tjee v. McLeod, 15 Nev. 158; State v. Tidier, 34 Conn. 280; Dolloff V. Stimpson, 33 Me. 546; Martin v. Tidwell, 36 Gn. 332; Parks V. State, 4 Ohio St. 234 ; State v. Daniels, 44 N. H. 383. The knowledge of the attorney in such case is the knowl- edge of his client. — Russell v. Quinn, 114 Mass. 103; Fessen- den V. Sayer, 53 Me. 531 ; Parker v. State, 55 Miss. 414 ; Cox V. People, 80 N. Y. 500. This rule proceeds upon the ground that a party ought not to be permitted, after discovering an act of misconduct which would entitle him to claim a new trial, to remain si- lent and take his chances of a favorable verdict, and after- wards, if the verdict is against him, liring it forward as a ground for a new trial. A party cannot be permitted to Sec. 3] New Trials 655 lie by, after having knowledge of a defect of this charac- ter, and speculate upon the result, and complain only when the verdict becomes unsatisfactory to him. — Selleck v. Sugar H. T. Co., 13 Conn. 453; Orrok v. Com. his. Co., 21 Pick. 456; Rex v. Sutton, 8 Barn. & Cres. 417. It follows, therefore, that when a party moves for a new trial on the ground of misconduct on the part of the jury, which took place during the trial, he must aver in his mo- tion and show affirmatively that both he and his counsel were ignorant, until after the jury had retired, of the fact of such misconduct. Thomp. & Mer. on Juries, § 428 and cases cited ; Id. § 456. In the case at bar, the counsel certainly, and, we may presume from his being present at the trial, the defendant also had notice of the misconduct of the juror, Snow, at the time it occurred. In fact, ''it was mutually agreed that tht? case might be tried and determined by the remaining eleven jurors." This agreement was made in the presence of the judge of the court by the counsel both of the plaintiff and defendant. After this agreement was made, no motion or effort was made to remove the said Snow from the jury box. He was not even requested to retire, and, probably, he had no knowledge of the agreement, and so he contin- ued on the jury. Afterwards when, during the subsequent ])rogress of the trial, the court called attention to the fact tliat said Snow was still on the jury, the counsel for the plaintiff and defendant ''agreed that it was immaterial what l)ecame of said Snow," and he was, no doubt, in conse- quence of said agreement allowed to remain on the jury un- til after the verdict. Certainly by this conduct the defend- -nt consented to have the said Snow remain on tlie jury after he knew of his misconduct, and, under the rule of law before stated, he thereby waived all right to object to the verdict on that ground and estopped himself from relying on said misconduct as a ground for a new trial, unless his situation and rights were such at the time he made the dis- covery, that the objection could not have been obviated, or that ills right, was such that no waiver or consent could conclude him. If he had made the objection and insisted on it, the court could, under our statute, have had another juror sworn in his place. Code, ch. 159, <^ 7. Or by consent the cause 656 Trial Practice [Chap. 17 might have been tried by the court, or by the remaining jurors or seven of them. Code, ch. 116, § 29; Dilworth's Case, 12 Gratt. 708; Tooel's Case, 11 Leigh. 714; State v. Van Matre, 49 Mo. 268. The objection, therefore, if it had been made could have been obviated at the time, and that the rights of the defend- ant were such that he could waive them is equally clear. This is a civil action and in such cases any consent of the parties is binding. They relate to and affect only individ- ual rights which are entirely within their personal con- trol, and which they may part with at their pleasure. The design of such actions is the enforcement of merely pri- vate obligations and duties. Any departure from legal rules in the conduct of such actions with the consent of the litigants is, therefore, a voluntary relinquishment of what belongs to them exclusively. — Thomp. & Mer. on Juries, § 8; Cancemi v. People, 18 N. Y. 128; Durham v. Hudson, 4 Ind. 501; Comonwealth v. Dailey, 12 Cush. 80; Sarah v. State, 28 Ga. 576. Upon the foregoing authorities as well as upon justice and reason it is plain, that the defendant could have waived as in fact he did waive the irregularity arising from the misconduct of the said juror. Snow, and his conduct and ac- quiescence after he was apprised of the misconduct of said juror, in permitting him to remain on the jury, must be re- garded as a consent that he should so remain notwithstand- ing such misconduct; and, consequently, it would be unjust to permit the defendant, after having taken his chance of a favorable verdict, to take an advantage of an irregulari- ty, which he had waived and consented to, for the purpose of avoiding an unfavorable verdict. I am, therefore, of opinion that the said order of the circuit court setting aside the verdict of the jury and grant- ing a new trial is erroneous and must be reversed with costs to the plaintiff in error; and this Court proceeding to enter such judgment as the said court ought to have entered, it is considered that the defendant 's motion to set aside the verdict be overruled and that the plaintiff recover from the defendant the sum of two hundred and seventy-one dollars and twenty-seven cents, the amount of the verdict of the jur}^, with interest thereon from the 16th day of March, 1882, till paid and his costs in the prosecution of his Sec. 3] New Trials 657 action in said circuit court expended, which is ordered to be certified to said court. The other Judges concurred. Judgment reversed. CORLEY V. NEW YORK & HARLEM RAILROAD COMPANY. Appellate Division of the Supreme Court of New York. 1896. 12 Appellate Division, 409. Baeeett, J. (concurring) * * * The affidavits conclusively establish that, when the plain- tiff was called to the witness stand during the examination of Dr. Kellogg, he made use of crutches and was lifted and helped along by his father, and that he returned to his seat in the same manner; but that, nevertheless, for two weeks and over before the trial the boy had entirely discarded his crutches in the house where he lived, and had done so with his mother's consent. The affidavits stating that he had abandoned the use of crutches indoors before the trial are numerous and uncontradicted. His mother, herself, de- poses that she ''did request and instruct her son Martin to use crutches at all times within the house and when he went without the house, for the first three or four tueeks after his return from the hospital; and that during the subsequent intervening weeks prior to the trial your de- ponent requested and instructed her son Martin to use crutches when he ivalked without the house, upon the street, and elsewhere." It will be observed that Mrs. Corley here pointedly omitted to state that after the first three or four weeks following his return from the hospital she gave her son any instructions to use crutches in the house. It is overwhelmingly established that, during the latter period, he never used them in the house and frequently omitted their use out of doors. Indeed, he played and ran about in the streets quite the same as other boys. Tlie use of crutches in the court room was, therefore, wholly unneces- T. p.— 42 658 Trial Practice [Chap. 17 sary. The boy had nothing to fear from the people in the court room nor from the narrowness of the aisle to be tra- versed on his way to and from the witness stand. But^ if he had anything to fear from these surroundings, the dan- ger could only have been enhanced by the use of cratches. The reason which is given for their use seems quite shallow. It is, in truth, but a transparent pretense. There could have been but one purpose, and that was to hoodwink the jury — to deceive them as to the boy's sufferings and to ap- peal to their sensibilities. It was bad enough to present to the jury the false picture of a suffering boy upon crut- ches. But that was not all. He was lifted up, helped upon his crutches, supported while thereon and assisted, as he proceeded, apparently with great difficulty, to and from the witness stand. This was a gross, and I regret to say, a de- liberate deception. For, it appears, by uncontradicted testimony, that immediately after the trial the boy was se- cluded and rigidly kept within doors. His parents were evidently determined that the spectacle presented in the court room should not be publicly followed by too marked and dangerous a contrast. And yet, while he was thus withdrawn from general observation, he was permitted, without crutch or assistance, to play upon the roof of the house and actually to climb upon the rear fire escape. It is a mistake to suppose that a new trial can only be granted when a case therefor can be classified under some well-defined head such as surprise or newly-discovered evi- dence. The court is not thus limited. The true rule is well stated in Graham and Waterman on New Trials, 1009, as follows: *'It need scarcely be said that any unconscionable advantage obtained during a trial by one party over the other, through fraud or artifice, to the injury of the latter, will be good ground for a new trial. So obvious a principle of common right and justice requires no comment and needs no illustration." I (|uite agree that verdicts should not lightly be disturbed, and that the court, in granting new trials, should act with great caution. But the rule above stated — a rule which was fully recognized in Ward v. Town of Southfield (102 N. Y. 287) — is founded upon justice and necessity. It should be firmly applied when the facts clear- ly warrant its application. I can conceive of nothing bet- Sec. 4] New Trials 659 ter calculated to encourage fraudulent litigation than the minimizing of such misconduct as is here disclosed. The order should, therefore, be reversed, and a new trial granted, with costs of this appeal to the appellant. The costs of the former trial should abide the event. Section 4. Accident, Mistake and Surprise. MEHNERT V. THIEME. Supreme Court of Kansas. 1875, 15 Kansas, 368, The opinion of the court was delivered by Brewer, J.: The plaintiffs in error were sued upon a promissory note. Mehnert filed an answer in person, al- leging part payment to the amount of $166.10, and that af- ter the maturity of the note he and his co-defendant had given a mortgage due in twelve months as security, and that this time had not passed. They made no appearance at the trial, and judgment was rendered for the face of the note and interest. On the same day they, by an attorney, filed a motion to vacate the judgment, and grant them a new trial, on the ground that they were prevented from making their defense by "accident, which ordinary prudence could not have guarded against, and unavoidable misfortune." This motion was overruled, and this is the error complained of. Mehnert 's affidavit was the only testimony offered upon said motion. He testified that he filed the arswer, and that it was true; that he lived twelve miles from Fort Scott, where the court was in session; that he had a large amount of stock, and no male help on his place, and was consequently obliged to be home every night ; that in order to be present in court in time on that morning he rose between three and four o'clock, attended to his home duties, and started with his team for Fort Scott between five and six o'clock, drove with all possible dispatch, and made no stoppages on tlie road; that he reached the court-house about ten o'clock and found that the case had been called and disposed of a 660 Teial Pbactice [Chap. 17 few minutes prior thereto ; that the delay in driving in was caused by the bad almost impassable condition of the roads. Was this accident which ordinary prudence could not have guarded against, or unavoidable misfortune? It does not appear that the roads were for that season of the year, De- cember, exceptionally bad, or that by an unexpected change in the weather they had become suddenly bad, or that Meh- nert did not by frequent travel have full knowledge of their actual condition. At that time, it is no uncommon thing for country roads to be very rough, and in very bad condi- tion. Common prudence would dictate that one who was acting as an attorney, and attending to business in court then in session, should not run the risk of getting into court in the morning over such roads from a remote part of the county. The real difficulty was, that Mehnert was attempt- ing to perform the double part of suitor and attorney. While this is perfectly proper, yet whoever attempts it sub- jects himself to the obligations and liabilities of both. It is the duty of an attorney having business in court to be present during its sessions. There is his business ; there is his work. Oftentimes that which will excuse the absence of a suitor, will come far short of excusing the absence of his attorney. Now, Mehnert, was acting as an attorney, in- trusted with business in the court then in session. Instead of employing some one to take care of his stock on his farm, and being himself in readiness to attend to his case, he is with full knowledge of his great distance from the court- house, and the almost impassable condition of the roads, at- tempting to take care of both stock and lawsuit. He suc- ceeded in the former, but failed in the latter, and failed simply from omitting the ordinary precautions which men take under similar circumstances. Hill v. Williams, 6 Kas. 17. The judgment will be affirmed. All the justices concurring. Sec. 4] New Trials 661 GKIFFIN V. O'NEIL. Supreme Court of Kansas. 1891, 47 Kansas, 116. Opinion by Strang, C. : * * * Was the defendant entitled to a new trial because of un- avoidable accident, as claimed in his affidavit filed with his motion for a new trial? We think not. The alleged accident consists in a failure of the defendant to receive a telegraphic message in time for him to attend the trial of the case. The accident was llierely the miscarriage of an arrangement by the plaintiff with his own attorneys and the telegraph operator at the station nearest his home, for the transmission and delivery to him of a message giving him information concerning the trial of his case. His failure to receive the message in time was not the result of accident at all, but of the negligence of his own agent. If there had arisen a storm of such a character as to have pre- vented the transmission of the message over the wires in time to notify the defendant so he could be present at the trial, or of such a character as to have prevented the de- fendant traveling to the place of trial, it might be said he was prevented by accident, but a mere failure of his own agents to do as he alleges they promised to, in connection with the transmission or delivery of a message, is not an accident. The affidavit shows that the message was receiv- ed by the acent at 8 o'clock in the morning, and that he did not get it delivered in the country to the defendant until it was too late for him to attend the trial. It was not the business of the agent, as the agent of the telegraph com- pany, to deliver the message away from his office, in the country. He was only required to do so in this instance by his agreement with the defendant, and whatever he did or neglected to do under such agreement, he did or neglect- ed as the agent of the defendant. We do not think a failure of the defendant's agent to deliver a message to him, as per request or agreement, in time for him to attend the trial furnishes the defendant with any cause, known tc the 662 Teial Peactice [Chap. 17 law, for a new trial. He made an arrangement with his own agents for notice. He in no wise relied on any ar- rangement with the plaintitf, nor with the court. He relied upon his own agents, and without any accident or excuse, so far as we know, they failed him, and we cannot relieve him from the consequences. We find no mateiral error in the record of this case, and thei:efore recommend that the judgment of the trial court be affirmed. By the court : It is so ordered. All the Justices concurring. STAUNTON COAL COMPANY V. MENK. Supreme Court of Illinois. 1902. 197 Illinois, 369. Mr. Chief Justice Mageudee delivered the opinion of the court : The alleged ground, upon which it was sought by the appellant in the court below to set aside the verdict and grant a new trial, was that the circuit court tried the case out of its order on the docket at the request of appellee's attorneys, and without notice to the appellant, and without any good cause for so trying the case out of its order. Second — But, even if the case was set for trial out of its order upon the docket, section 16 givQ. the court the right to take such action for good and sufficient cause. That section only provides, that causes shall be tried in the order they are placed on the docket, "unless the court for good and sufficient cause shall otherwise direct." It nowhere appears in the affidavits, that the court did not have good and sufficient cause for setting the case for trial on Wed- nesday, October 10, 1900. ********** Third — Tlie affidavits, filed by the appellant in the court below, do not show that duo diligence was exercised by it in this matter, and do not show sufficient excuse for not being Sec. 4] New Trials 663 present in court at the time when the case was set for trial. Arfidavits, filed in support of applications to set aside judg- ments by default, or entered in ex parte proceedings, are to be construed most strongly against the party making the application. {Grossman v. Wolillehen, 90 111. 537). According to the statements in the affidavit of appellant's attorney, he knew that the number of the case at bar was 76 on the law docket for the September term, and that there were seventy-five law cases and sixty-four criminal cases on that docket ahead of the case at bar, and entitled to prior trial. This being so, it was the duty of the appellant to take notice, or at least it is presumed to have taken notice of every step taken in the cause. {Schneider v. Seihert, 50 111. 284). In his affidavit the attorney states that, in the due course of business, the cases ahead of No. 76 could not have been tried in their order before the latter part of October, or the middle of November, 1900. He also states that he wrote to the clerk of the court on the 10th day of October to inquire when said cause would be for trial, and received notice on the 12th day of October from the clerk, that the case had already been tried on October 10. The attorney had no reason to suppose, so far as is shown by the affidavits, that the present case would not be reached in its regular order upon the docket before the latter part of October or the middle of November, 1900. There is nothing to show, that the case would not have been reached as early as the day, upon which it was set for trial. It is the duty of a party to be present when his case is reached. His negligence in ascertaining when the case will be reached does not excuse his absence. If appellant relied upon the opinion of its attorney as to the time when the case would be reached for trial, it did so at its peril. The negligence of the attorney in such matters is the negligence of the client. {Mendell v. Kimhall, 85 111. 582; Walsh v. Walsh, 114 id. 655; Laivler v. Gordon, 91 id. 602; Schidtz v. Meisel- bar,U4[d.26). The judgment of the Appellate Court is affirmed. Judgment affirmed. 664 Trial Peactice [Chap. 17 WESTERN UNION TELEGRAPH COMPANY V. CHAMBLEE. Supreme Court of Alabama. 1898. 122 Alabama, 428, Haralsott, J. * * * The defendant afterwards moved the court for a new trial, which was overruled. The cause is here on bill of ex- ceptions reserved on the trial of that motion. It is based on the ground that the attorneys for the defendant were absent by alleged unavoidable delay in consequence of be- ing engaged in the trial of two causes in Birmingham, one in the Federal and the other in the city court in that city.* * The law firm employed by defendant to defend its suit, consisted of three members, all residing in Birmingham. The case was orginally set for trial on October 26, 1897, but by an agreement of counsel on both sides, and with the consent of the court, it was reset for November 3, follow- ing. The attorneys for defendant did not appear at De- catur on the last day named. One of them telegraphed on the 2nd, to the clerk of the court in Decatur: ''We are en- gaged in United States Court. Pretty sure can be in De- catur Friday or Saturday;" requesting the clerk to show the message to Mr. Brown, attorney for plaintiff, and have case passed to Friday or Saturday. The clerk replied same day, that Brown was not there and judge refused to make order in his absence. Brown lived in Hartselle, Ala. On the 3d., the same attorney telegraphed to Brown in De- catur : ''If case reached please pass until tomorrow. Our firm engaged in city and United States courts. If I cannot come will send some lawyer in my place. If the case will not be reached tomorrow, wire me today." To this Brown replied: "Telegram received after case was disposed of this forenoon. Judgment against defendant for about $120." Defendant's attorney then telegraphed to Brown or Judge Speake, expressing surpi-ise at the taking of the judgment after seeing his telegram, and stating that he Sec. 4] New Trials 665 would be up that night with his witnesses, ready to try the case, and requesting Brown to keep his witnesses there or get them back, if they had gone. To this Brown replied: ** Witnesses are gone. Heard nothing of your telegram un- til my client and witnesses were here ready and demanding trial. Big damage suit against Morgan county on trial, which will last several days." It is not shown that defendant's counsel attempted to have either of their cases in the city or Federal court laid over, in order that one of them might go to the Decatur court to try this cause, which had been previously set by their consent on the 3d of November. Reasons are stated why one of the counsel engaged in the city court case was needed to try that cause, and another to try the cause in the Federal court, but no facts are shown why it was neces- sary that the third one should remain in Birmingham on account of either of said causes, further than the expression of a conclusion that it was necessary for him to do so. It is not shown why defendant's counsel, when apprehensive of a conflict in the trials of their causes in Birmingham and at Decatur, did not communicate with plaintiff and his attor- ney. Brown, both of whom lived at Hartselle, before the latter left home to come to Decatur to try said cause, and attempt to make arrangements for the postponement of this cause. It appears they presumed it would be done as a matter of courtesy, and they delayed timely effort to effect such an arrangement. The attorney of defendant, who did the correspondence by wire, in one of his messages to plain- tiff's attorney, stated that if he could not come at a certain time, if the case was laid over till then, he would send another attorney to represent him. He does not show, that he might not have done this and had the case tried when set. It also appears, there were other capable lawyers liv- ing in Decatur, who had no connection with this case, who, for aught appearing, could have represented defendant. It was the duty of defendant or his attorneys to have made some arrangement for the trial of the cause, by the appear- ance of one of them, or by a suitable representative for the purpose, and not to have depended on a courtesy to be shown them by opposing counsel, especially when it woul 1 have been at considerable expense to his client to do so. We will not attempt to deal with the question of courtesy 666 Trial Peactice [Chap. 17 between opposing counsel. The judge who tried this cause, sitting as a fair arbiter in the premises, with all the facts before him, decided that it was not his duty to grant a new trial, and we are unable to hold that he erred in so doing. This conclusion is fully justified by previous decisions of this court.— ^rocA; v. S. S N. A. RR. Co., 65 Ala. 79',Broda V. Greemvald, 66 Ala. 538; McLeod v. Shelby Mfg. d Imp. Co., 108 Ala. 81. Affirmed. HOSKINS V. HIGHT. Supreme Court of Alabama. 1891, 95 Alabama, 284. Stone, C. X* * * The power to set aside verdicts and grant new trials is inherent in our courts of common-law jurisdiction; and in the exercise of this power the court is called upon to use its equitable discretion to prevent a palpable and material wrong. As said by Clopton, J., in Cobb v. Malone, 92 Ala. 630, ''The power is essential to prevent irreparable injus- tice, in cases where a verdict wholly wrong is the result of inadvertence, forgetfulness, or intentional or capricious disregard of the testimony, or of bias or prejudice, on the part of juries, which sometimes occurs." When, in the exercise of this inherent power, the trial court grants a new trial, the presumption is that it has rightfully used its discretion ; but, if the contrary appears, and it is plainly shown that the trial court has a4:)used its power, this discretion, being judicial in its character, should be revised on appeal. — Edsall v. Ayres, 15 Ind. 286; Lloyd V. McClure, 2 Greene (Iowa), 139; Frieley v. David, 7 Iowa, 3. The grounds upon which a new trial may be granted are as varied as the circumstances of each individual case. In the exercise of a sound discretion, the court must consider the particular surroundings, and have special regard to the Sec. 4] New Tkials 667 (Mjuitable demands of each s-aparate case. But text-writers and different courts recognize many different grounds for the granting of new trials. Surprise and mistake are placed in this category; and there are many instances where new trials have been granted, because one party to a suit has been taken by surprise, or has been prejudiced, on account of a mistake or inadvertence for which he was not responsible, and which was not occasioned in any way by his negligence. No doubt it was intended that the ground upon which the new trial in this case was asked and granted should receive its force and efficacy from this division of the causes that justify such equitable interposition by the court. We shall so consider it ; for the ground as stated in the motion is, that the defendant "was prevented from making his defense thereto by accident or mistake, and without fault on his part. ' ' In order to obtain a new trial on the ground of mistake and surprise, there are certain requirements which must be fulfilled as conditions precedent to the exercise by the trial court of this discretion. It must be shown that the surprise or mistake occurred in reference to some matter material to the issue involved; that injury resulted there- from and that the party asking for a new trial has not been guilty of negligence or fault in the premises. — Beadle v. Graham, m Ala. 102; Brooks v. Douglass, 32 Cal. 208; Jackson v. Worford, 7 Wend. 62 ; Huber v. Lane, 45 Miss. 608; Walker v. Kretsinger, 48 111. 502; Fretivell v. Lajfoon, 77 Mo. 26 ; 16 Amer. & Eng. Encyc. Law, p. 532. The first duty of a party surprised at the trial, or upon the discovery of a mistake that will prejudice his interest, is to take proper legal steps to continue or delay the cause; for "he can not neglect this in the hope of securing a ver- dict in spite of the surprise (or mistake), and then obtain a new trial." In the case of Shipp v. Siiggett, 9 B. Monroe (Ky.) 5, the court observed; "The correct practice in such case is for the party at once, upon the discovery of the cause, during the progress of the trial, which operates as a sur- prise on him, to move a continuance or postponement of the trial, and not attempt to avail himself of the chance of obtaining a verdict on the evidence he has been able to introduce, and if ho should fail, tlien to apply for a new trial on the ground of surprise. To tolerate such a prac- 668 Tkial Practice ' [Chap. 17 tice would have the effect of giving to the party surprised an unreasonable and unfair advantage, and tend to an un- necessary and improper consumption of the time of the court." We approve this language, and announce the rule, that before a party can be granted a new trial on the ground of surprise and mistake, which was known or dis- covered before or during the trial, he must first move for a continuance, or take such legal steps to postpone the trial of the cause as the circumstances of the particular case may require. Washer v. White, 16 Ind. 136; Young v. Com., 4 Gratt. 550; Gee v. Moss, 69 Iowa, 709; Wells v. Sanger, 21 Mo. 354; Rogers v. Bine, 1 Cal. 429; Bell v. Gardner, 71 111. 319 ; Boyle v. Sterga, 38 Cal. 459 ; Beivey v. Frank, 62 Cal. 343; 16 Am. & Eng. Encyc. of Law, p. 533. This mo- tion for a continuance, or effort to postpone the trial, is affirmative matter, and should therefore, appear of record. In its absence, this court can not presume such motion or effort was made; and the cause must be considered in the light of such facts and matters of record as appear in the transcript. This conclusion is decisive of the only ques- tion presented by this appeal, for no motion for a continu- ance, nor any effort to postpone the trial, was made when the absence of the important witnesses was discovered. The trial court should not have granted the motion for a new trial, under the circumstances shown in the record. We could rest our opinion here ; but, considering that this phase of the question has never before been presented to us for review, we deem is best to decide the correctness of the lower court's ruling in granting a new trial upon the ground stated in the opinion, and the evidence produced to substantiate such ground. The accident or mistake that prevented the defendant from making his defense, was the absence of certain wit- nesses, whose names he had given to his counsel to have summoned. These witnesses were never subpoenaed, and this is, no doubt, at least one of the reasons they were ab- sent. These witnesses were not subpoenaed by reason of the mistake or negligence of the defendant or his counsel, have the clerk of the court subpoena the witnesses. The clerk had no recollection of any such direction, and never whose recollection was that counsel directed his clerk to Sec. 4] New Trials 669 instructed the clerk of the court to subpoena the said wit- nesses. While it is true that a new trial may be granted to a party who was deprived of the benefit of the evidence of a witness who was excusably absent, and whose testimony would have probably affected the result, yet, in order to claim the benefit of a new trial on this ground, it must, as a general rule, be shown that the witnesses had been reg- ularly summoned and that their absence was not caused through the negligence of the party asking for a new trial As said in 16 Amer. & Eng. Encyc. of Law, 541, ''It is a general rule, that a new trial should not be granted on ac- count of the absence of witnesses, when a continuance has not been asked for, or the absence of the witnesses is caused by any form of neglect by the party applying for a new triaV—Huhland v. Sedgwick, 17 Cal. 123; Tilden v. Gardi- ner, 25 Wend. (N. Y.) 663; Love v. Breedlove, 75 Tex. 649; Gee V. Moss, 68 Iowa, 318; Young v. Com., 4 Gratt. (Va.) 550; Wells V. Sanger, 21 Mo. 354; Rogers v. Hine, 1 Cal. 429. The result is the same, whether the absence of the wit- nesses was caused by the mistake or negligence of the party or of his attorney. "The mistake or negligence of the at- torney appearing for the party to a suit is the mistake or negligence of the party; and no new trial will be allowed where such mistake arises from negligence or lack of skill." —Handy v. Davis, 38 N. H. 411 ; Heath v. Marshall, 46 N. H. 40. The failure to make defense to a suit, by reason of a mistake of the defendant or his counsel, caused by negli- gence, can not justify the granting of a new trial, it matters not how effective or just the defense may be. — 16 Amer. & Eng. Encyc. of Law, 549, n. 4. Under the principle above announced, the judgment of tho City Court granting a new trial is reversed, and a judgment is here rendered overruling the defendant's motion for a new trial. Reversed and rendered. 670 Tkial Pbactice [Chap. 1. GOTZIAN V. McCOLLUM. Supreme Court of South Dakota. 1896. 8 South Dakota, 186. Fuller, J. Based upon a claim of ownership, this ac- tion was against a sheriff, to recover the value of a stock of boots and shoes seized and sold under an execution is- sued upon a judgment in favor of the Norwegian Plow Company, against Asa Covell and another; and the appeal is from an order setting aside a verdict and granting the defendant a new trial. At the trial and after plaintiff and appellant had made a prima facie case and rested, and in support of that part of the answer in which it is alleged that Asa Covell, the judgment debtor, was in fact the owner of the property in controversy, said Covell was called on the part of the defendant and respondent, and testified that he was not the owner thereof, but that said property belonged to C. Gotzian & Co. when the same was seized and sold on execution. At this stage in the i3roceedings an ap- plication for a continuance was made by resj^ondent's coun- sel, based upon the ground of surprise in the testimony of the witness Covell. * * * From counsel's affidavit for a con- tinuance, upon which this verdict was set aside and a new trial was ordered, it appears that said Asa Covell, whom defendant had called as a witness, at all times claimed the property, and had recently made certain affidavits in which he had stated specifically, upon oath, that he was at the time of the seizure thereof the owner of all the property described in the complaint herein, and that relying upon said witness, and believing that he would testify upon the trial that he was the owner of the property at the time the same was seized and sold by the sheriff in satisfaction of said judgment against liim, and regarding such direct and solemn declarations as sufficient assurance that he would again so testify, counsel had deemed it unnecessary to call and produce at the trial certain other accessible witnesses named in his affiflavit, a^ir! bv whom he would if a continu- ance were granted, be able to prove certain specified facts, tending to show that said (V)V(>11, tlic judgment debtor, and not C. Gotzian & Co., owned the entire stock of boots and Sec. 4] New Tkials 671 shoes at the time the same was seized and sold at execution sale by the defendant sheriff. Upon the hearing of the motion for a new trial, respond- ent relied wholly upon his affidavit for a continuance ; and, in opposition thereto, appellant submitted affidavits to dis- prove the recitals thereof concerning facts to which certain witnesses would testify, if present, and tending to rebut statements contained in said affidavit relating to the ques- tion of good faith, ordinary prudence, surprise, and the exercise of diligence to prevent the same. If, in the exer- cise of a sound judicial discretion, the court, upon the show- ing made ought to have granted a continuance, it was en- tirely proper, upon the same showing, to correct the error by awarding a new trial. Both rulings being within the exercise of a judicial discretion, neither would be reviewed on appeal, in the absence of an abuse thereof. From a knowledge of the nature of his previous statements under oath, respondent's counsel were justified in presuming that the witness Covell would testify at the trial that he was the owner of the property, and they were reasonably justified in omitting to subpoena other witnesses in possession of facts relating to the question of ownership. Obviously, the wit- ness would not have been called upon by counsel for re- spondent to testify in support of the one vital issue tend- ered by the complaint of appellant, and traversed by the answer; and, when he did so, it is equally clear that re- spondent, at least, was surprised. That there are many witnesses who unconsciously or designedly make statements in private consultation, before the trial, more probative, direct, and certain than ever reach the ear of the court and jury from the lips of the witness when under the solemnity of an oath, is a fact well known to every law^s^er; but where, as in this instance, a witness has positively and deliberately sworn upon two or three recent occasions that he was at all times the owner of the identical property in dispute, and, when called as a witness for the sole purpose of establishing such fact, not only testifies that he did not own said prop- erty, or any part thereof, but that the same belonged to a claimant against whom he was called as a witness, a dif- ferent, and, we trust, a far more unusual, case is presented. To allow a case to be continued, so near the close of a long jury trial, would necessitate the trouble and expense of 672 Tkial Practice [Chap. 17 a retrial, in any event; and, in the face of this fact, the court evidently denied the application without serious re- flection, and with the intention at the time to correct the error, if any was made, by granting a new trial, when ap- plied for, in case it should be found that substantial injury had resulted therefrom. Upon the entire record, we think the trial court was justified in concluding that reasonable care and diligence had been used to procure testimony on the part of the defense, and that, notwithstanding the sur- prise, ordinary prudence had been exercised by the attor- neys for respondent in preparing for trial, and that the in- jury resulting from their disappointment in the testimony of the witness Covell might be remedied by another trial of the cause. An application for a continuance or for a new trial on the ground of surprise being addressed to the sound discretion of the trial court, the exercise thereof will be reviewed only in cases where there is manifestly an abuse of such discretion ; and a stronger case must be made to justify a reversal on appeal when a continuance or a new trial has been granted that when such application has been refused. Alt v. Raihvay Co. (S. D.), 57 N. W. 1126. The order from which this appeal was taken is therefore affirmed. HILL V. McKAT. Supreme Court of Montana. 1908. 36 Montana, 440. Mr. Chief Justice Brantly delivered the opinion of the court. This action was brought to obtain a decree adjudicating the respective rights of the parties plaintiff and defend- ant against each other and among themselves, to the use of the waters flowing in Indian creek, a tributary of Ruby river, in Madison county. * * * The defendant McKay (appellant) is the owner of cer- tain lands situated on Mill creek, another tributary of ]{uby river. He also owns a flouring-mill, situated on the Sec. 4] New Trials 673 sHme stream, which is propelled by waterpower. It seems that the water diverted by him through his mill ditch, and for the irrigation of his lands in Mill Creek, does not, after its release, return to Indian creek, but flows into the channel of Mill creek. The issue at the trial, so far as appellant is concerned, was whether the right asserted by him through his mill ditch was superior to the rights of the other claimants during the season of the year when irrigation was necessary for farm purposes, or whether it was available only during the other portions of the year. The appellant claims as the successor in interest of one Hall, now dead, who, with others, built the mill and con- structed the ditch in 1866. The court found that ''it was the intention of those who built the mill ditch and appro- priated the waters of Indian creek thereby to use the wa- ters for mill and power purposes when the waters in In- dian creek were not needed for irrigation purposes." It was accordingly adjudged that the defendant's use must be confined to the autumn, winter and early spring months, when the "waters of Indian creek are not required for the proper irrigation of lands." This defendant has appealed from an order denying his motion for a new trial. The ground of his motion was surprise, in that two witnesses, introduced by him to establish his right, made statements at the trial directly contrary to what they had induced him to believe they would make when he had interviewed them to ascertain what their testimony would be touching his right. His affida\4t in support of the motion states, in substance, that he was charged by his counsel with the duty of finding and producing witnesses in support of his water-right through his mill ditch; that in performance of this duty he questioned witnesses John Hatfield and William Ferm as to the use of the water in the mill during the time Hall was one of the owners of it; that he ques- tioned them fully, but neither of them disclosed to him any fact or information tending to impair the superiority of his right during Hall's ownership, or tending to show that Hall ever recognized any right in Indian creek superior to the mill ditch right; that, on the contrary, Hatfield, when questioned by affiant as to the conduct of Hall when the farmer?, ^hithout his consent diverted the water from the T. p.— 48 674 Trial Peactice [Chap. 17 mill ditch, told him that Hall ''went and took it," meaning and intending that affiant should understand thereby that jTatfield would testify that under such circumstances Hall reclaimed the water, thus asserting the superior right of the mill ditch; that, relying upon the information so given him by Hatfield and Ferm, and believing that they had fully stated the facts to which they would testify, affiant called them to testify in his behalf, and took no steps to secure testimony from other witnesses to establish the facts ; that Hatfield testified upon the trial directly contra- ry to what he had informed affiant prior to the trial, by saying that Hall had an understanding with the farmers below the head of his ditch that when they wanted the water they could take it and shut the mill down; that the farmers took the water whether it was needed for the mill or not ; that this arrangement was the result of a bargain, made about the year 1866 with one Bateman and sundry other persons; that William Ferm testified that Hall had obtained permission from certain unnamed persons to build the mill ditch, with the understanding that when they needed the water it was to be returned to them ; that Ferm, being called by plaintiffs as their own witness in rebuttal, testified positively that Hall had told the witness that he used the water from Indian creek with the consent of the people living along the stream below; that both these wit- nesses constantly associated with the plaintiffs and their witnesses; and, upon information and belief, he charges that their testimony at the trial was the result of collusion with plaintiffs. It is further alleged that if a new trial should be granted, the appellant can produce six witnesses, naming them, whose testimony will show that Ilall, his ])redecessor, always possessed and asserted the right to the use of the mill ditch, to the exclusion of all other rights below the mouth of that ditch. The affidavits of these wit- nesses were also used in support of the motion, and, gen- erally, support the Hall right, as claimed by the appellant. The plaintiffs filed no counter-affidavits, and hence the statements of the appellant, so far as they are statements of fact, are not controverted. Do the facts stated make out a case upon which the court should in its discretion, have granted a new trial? * * * Coming, now, to the merits of the motion, it is the gen- Sec. 4] New Trials 675 eral rule that a new trial will be granted on the ground of surprise only when it is clearly shown that the movant was actually surprised, that the facts from which the surprise- resulted had a material bearing on the case, that the verdict or decision resulted mainly from these facts, that the al- leged condition is not the result of movants own inattention or negligence, that he has acted promptly and claimed re- lief at the earliest opportunity, that he has used every means reasonably available at the time of the surprise to remedy the disaster, and that the result of a new trial will jDrobably be different, {O'Donnell v. Bennett, 12 Mont. 242, 29 Pac. 1044; Schellhous v. Ball, 29 Cal. 605; Doijle v. Sturla, 38 Cal. 456; Chicago & Great Eastern Ry. Co. v. Voshurgli, 45 111. 311; Hull v. Minneapolis St. Ry. Co., 64 Minn. 402, 67 N. W. 218; 1 Spelling on New Trial and Ap- pellate Practice, sec. 201 ; 14 Encyclopedia of Pleading and Practice, 723.) If, at the time the condition arises, the party can make use of other evidence at hand or can avoid the threatened disaster by securing a continuance, or by submitting to a nonsuit, he must do so ; and not only so, but, after these means have failed, he must by his showing make it clear that his allegation is not a mere pretense to cover his own lack of diligence. As was said in Schellhous v. Ball, supra; ''It is the duty of the courts to look upon appli- cations for new trials upon the ground of surprise with sus- picion, for the reason that from the nature of the case surprise may be often feigned and pretended, and the op- posite party may be unable to show that such is the case. Hence, the party alleging surprise should be required to show it conclusively, and by the most satisfactory evidence within his reach." In Chicago S Great Eastern Ry. Co. v. Voshurgh, supra, the court said: ''In applications for new trials on such ground it is not only necessary that the party should have been surprised, but that it was in a matter material to the issue, and that it produced injury to the party ; that it was not the consequence of neglect or inatten- tion on the part of the party surprised; also, that he used all reasonable efforts to overcome the evidence which worked the surprise, or that it was not within his power to have done so by the employment of reasonable diligence." Applying this rule to the appellant's affidavit, we find that it is insufficient in several particulars. It does not ap- 676 Trial Practice [Chap. 17 pear therefrom, except by way of conclusion of the affiant, what inquiry appellant made of the witnesses whoso con- duct is complained of; nor does it appear, except in thy same way, what they told him they would testify to. Ex- cept the statement of Hatfield that Hall said he "went and took it," referring to the water, we have but the con- clusion of the appellant as to what the purport of the statements to him by the witnesses were. They may have had the purport and evidentiary value assigned to them by the appellant, but that this is true we cannot say, because the details of them are not before us. The evidence heard by the trial court is not before us. Therefore, we cannot say, except from the statements in the affidavit, that the court based its findings as to the mill ditch mainly upon their testimony. So far as we know, there may have been other evidence in the case, and sufficient to justify the find- ing, even if the witnesses had testified as appellant sup- posed they would. For, while we may infer from the affi- davit that they were the only witnesses called by appellant, there is no positive statement that such was the case, or that they were the only witnesses who testified as to the mill ditch. From the affidavit, as a whole, coupled with the fact that many other witnesses were found after the trial was over who could furnish the desired evidence, we think the inference permissible that the appellant was negligent in the search for evidence to sustain his contention prior to the trial, and that the judge who decided the motion thought so. There is a total want of any showing of prompt action and diligence on the part of the appellant in his effort to avoid the result of his alleged surprise at the testimony, when it came out. He made no application for a continu- ance. He did not call the attention of counsel to the mat- ter ; nor was it called to the attention of the court. It does not appear that he did not have other evidence at hand or within reach which would have been available. In fact, so far as we can judge, he sat silent during the trial, and, though the cause was tried by the court sitting without a jury, and it was held under advisement from June 4th, the date of the trial, until August 30th, the appellant made no application to have the cause reopened, but still remained silent, thinking no doubt, that the result would be satis- Sec. 4.] New Trials ^ 677 factory. Evidently the surprise upon which he relies is the surprise at the result, rather than at anything that oc- curred during the trial. A consideration, which is conclusive, however, is that it is not at all apparent that there is any probability that the result reached by the trial judge would be different if a new trial were granted. As stated above, the evidence is not before us, and though it may be conceded that the new witnesses whose affiidavits are embodied in the record would testify as they allege, in the absence of the evi- dence, we cannot say that a different result would pro- bably be reached. We are of the opinion that no abuse of discretion is shown, and that the order denying a new trial should be affirmed. It is so ordered. A firmed. Mr. Justice Holloway and Me. Justice Smith concur. NELLUMS V. NASHVILLE. Supreme Court of Tennessee. 1901. 106 Tenessee, 222. Wilkes, J. This is an action against the Mayor and City Council of Nashville for damages, for personal injuries, sustained by Mrs. Nellums on account of a defective plank walk upon what is called in the record Belleville street. There was a trial before a jury in the Court below and ver- dict and judgment for the city, and the plaintiff has ap- pealed and assigned errors. The first error assigned is that the Court below should have granted a new trial upon the ground of surprise and newly discovered evidence. In support of this assignment plaintiff states that the city did not disclose its real de- fense until its last witness, Pat Cleary, was examined. This witness, in substance, stated that the city of Nash- ville had never done any work on the west side of Relle- ville Street, nor had it in any other manner accepted the 678 Teial Pkactice [Cliap. 17 V same as a street since it was included within tlie corporate limits of the city in 1890. The insistence is, that this was great surprise to the plaintiff, inasmuch as the fact of nonuser and nonaccept- ance was not specially pleaded, and the street had been used by the public, and was in a thickly settled part of the city, and had been recognized as a street by the public in numerous ways, and at many times, after it was taken into the city and prior to the accident. The affidavit upon which the application for a new trial is based states this feature of surprise, and adds that plaintiff will make proof of user and many other facts showing acceptance on the part of the city, and it is sup- ported, as to the latter feature, by the sworn statements of quite a number of witnesses. The city filed only one plea, that of not guilty, and upon this the plaintiff took issue. Under the plea, and upon this issue, we think it clear that the city might show by evidence that it had never accepted that portion of the street where the accident oc- curred. * * * This being true, the plaintiff was bound to take notice of every defense that could be legally advanced under the plea of the general issue. Conceding the pro- position to be correct that the evidence was within the issues presented by the pleadings, surprise cannot be pre- dicated upon the fact that evidence was not anticipated along any line embraced within the pleadings. The doctrine is thus laid down in Vol. 16, page 544 (old Ed.) Am. & Eng. Ency. Law. "The fact that an adversary's evidence is different from what it was supposed it would be, is not sufficient. If there has been any want of diligence in ascertaining what the testimony of a witness would be, a new trial will be refused." In 15 Ency. Pleading & Practice, 733, it is said: "A party is bound to come prepared to meet the case made by his adversary, and he cannot plead surprise at material and relevant testimony." In support of this proposition are cited Cole v. Fall Brook Coal Co., 10 N. Y. 447; Knapp v. Fisher, 49 Ver. 94; Davis v. Buggler, 2 Chand. (Wis.), 152; Bragg v. Moberhj 17 Mo. App. 221; Sec. 5] New Teials 679 McNeally v. Stroud, 22 Tex. 229; Anderson v. Duffield, 8 Tex. 237, and a number of other cases. We do not find any reversible error in the action and judgment of the Court below, and it is affirmed with costs. Section 5. Verdict Contrary to Evidence. SERLES V. SERLES. Supreme Court of Oregon. 1899. 35 Oregon, 289. This is an action by W. L. Series against Clara Series, S. C. Zuber, and John Hough, to recover damages for tres- pass in detaching and removing a dwelling house from the realty of the plaintiff. The verdict of the jury was for plaintiff in the sum of $400, and against the defendants Series and Zuber, ind judgment having been entered thereon, they appeal * * * After the rendition of the verdict, the defendants interposed a motion to set it aside, and for a new trial, based upon several grounds: First, tliat of newly discovered evidence ; Second, excessive dam- ages; and, Third, that tlie evidence was insufficient to war- rant the verdict, — that the verdict is against the evidence, is not justified thereby, and is contrary to law. This mo- tion was overruled, the court saying: ''Tlie question of whether the verdict is a proper one upon the evidence is not now involved, only to the extent as to whether there was any evidence to support it, and there is no doubt that there was, and the court cannot review their decision up- on the preponderance of the evidence." Reversed. Mr. Chief Justice Wolverton, after stating the facts, delivered the opinion of the court. 2. It is strenuously urged, however, that the court be- low decided the motion for a new trial upon an erroneous principle of law, in this : That it was governed, as is shown 680 Tkial Peactice [Chap. IT by its written opinion, by the idea that, if there was any evidence in the record to support the verdict, it was with- out power to disturb the same or set it aside; whereas, it is insisted that it is the duty of the court, in the considera- tion of the motion for a new trial, based upon the insuffi- ciency of the evidence, to weigh all the evidence submitted to the, jury, and if, upon the whole case, the verdict appears to be against the weight of evidence and is manifestly un- just, to allow the motion. The trial judge seems to have assimilated the ground for granting a new trial to that which is proper in support of a motion for a non-suit, and hence, his conclusion that, if there was any evidence to support the verdict, it was his duty to uphold it. It is a rule of law, well established in this jurisdiction, that a mo- tion for a nonsuit is in the nature of a demurrer to the evidence, and it not only admits all that the evidence proves, but all inferences that might be legitimately drawn therefrom tending to prove a fact under the issues ; and, if there is any evidence offered from which such an inference could be drawn, it is the duty of the court to permit it to go to the jury, as the motion is a test of the competency of the evidence to prove the fact to which it is directed. And the question is, upon such motion, whetli er there is any evidence tending to prove the material al- legation upon which the cause of action is based, and this is one of law. But whether a given amount of evidence is sufficient to sustain an allegation is a question of fact for the jury; so that, if there is any evidence tending to prove a given fact, it is the duty of the court, upon the motion fov nonsuit to permit it to go to the jury, and to take their verdict touching it: Vanhehber v. Plunheit, 26 Or. 562 (27 L. R. A. 811, 38 Pac. 707), and cases therein cited. Under the statute (Hill's Ann. Laws, § 235, subd. 6), the court is authorized to set aside a verdict and grant a new trial for ''insufficiency of the evidence to justify the verdict or other decision, or that it is against law." This statute does not appear to have received any direct con- struction by this court; but there are authorities elsewhere pertinent to the inquiry, and they leave no doubt but that, in passing upon the sufficiency of the evidence to support the verdict, the trial court is authorized to weigh and con- sider all the evidence which has been submitted to the Sec. 5] New Trials 681 jury, and if it is ascertained that the verdict is against the clear weight thereof, or is one that is manifestly unjust, or that reasonable men would not adopt or return, to set it aside and grant a new trial. A similar statute has re- ceived express construction by the Supreme Court of the United States in the case of Metropolitan R. R. Co. v. Moore, 121 U. S. 558 (7 Sup. Ct. 1334). It was there held that the language used in the statute, which gave a right to set aside the verdict for insufficient evidence, was not to be limited to its insufficiency in point of law, but that it extended also to its insufficiency in point of fact. Such evidence is said to be insufficient in law only where there is a total absence of proof, either as to the quantity or kind, or from which no inference could be drawn in sup- port of the fact sought to be established. But insufficiency in point of fact may exist where there is no insufficiency in point of law; that is, there may be some evidence to sustain every element of the case, competent both in quan- tity and quality under the law, and yet it may be met by countervailing proof so potent and convincing as to leave no reasonable doubt of the opposite conclusion. So it is that, upon a review of the whole evidence, the testimony in support of the cause of action or defense may be so slight, although competent in law, or the preponderance against it may be so convincing, that a verdict may seem to be plainly unreasonable and unjust; and in many cases it might be the duty of the court to withdraw the case from the jury, or to direct a verdict in a particular way, yet in others, where it would be proper to submit the case to the jury, it might become its duty to set aside the verdict and grant a new trial. The statute of the District of Colum- bia, which was under consideration, was evidently taken from the New York practice act; and the court in Metro- politan R. R. Co. V. Moore, 121 U. S. 558 (7 Sup. Ct. 1334), seems to have followed the New York decisions, upon the principle that, where one jurisdiction adopts the statute of another state or jurisdiction, it also adopts the construc- tion given such statute by the courts of the latter jurisdic- tion. See Algeo v. Duncan, 39 N. Y. 313. In Slater v. Drescher, 72 Hun. 425 (25 N. Y. Supp. 153), it is said that an objection to the verdict, because it was against the weight of evidence, means the same thing as if it had 682 Trial Practice [Chap. J . been based upon the insufficiency of the evidence to sup- port it. The Ohio statute is substantially the same as our own, and it is there held that the court, by force thereof may grant a new trial where the verdict is "against or contrary to the weight of the evidence:" Weaver v. Colum- bus, S. d H. V. Ry. Co., 55 Ohio St. 491 (45 N. E. 717). The California statute is in the exact language of ours, and the courts of that state, from the time of their earliest cognizance of the statute, have construed it as conferring the power to weigh the evidence and determine its suffi- ciency; and that if, upon the whole, the judge is satisfied that the verdict is against the indubitable preponderance or clear weight of evidence, or is unjust, or such as reason- able men would not return under the circumstances of the case, he is authorized, in his discretion, to set it aside, which discretion is not subject to review by the supreme court, except for an abuse thereof: Hall v. The Emily Banning, 33 Cal. 522. So, it was said in People v. Lum Yit, 83 Cal. 130 (23 Pac. 228), that it was the duty of the judge to grant a new trial if he is not satisfied that the evidence as a whole was sufficient to sustain the verdict. And in People v. Knutte, 111 Cal. 453 (44 Pac. 166), the 'jourt, speaking through Van Fleet, J., says: "The case was argued here by both parties upon the assumption that the new trial was granted upon the ground that the evi- dence was deemed insufficient to sustain the verdict; and, while no specific ground is stated in the order of the court, it may be safely taken, from the court's action in advising the jury to acquit, that this assumption of coun- sel is correct. * * * While it is the exclusive province of the jury to find the facts, it is nevertheless one of the most important requirements of the trial judge to see to it that this function of the jury is intelligently and justly oxercised. In this respect, while he cannot competently interfere with or control the jury in passing upon the evi- dence, he nevertheless exercises a very salutary super- visory power over their verdict. In the exercise of that power, he should always satisfy himself that the evidence as a whole is sufficient to sustain the verdict found, and, ■f in his sound judgment it is not, he should unhesitatingly say so, and set the verdict aside." See, also, Lorenzana c.'Camarillo, 41 Cal. 467; Kile v. Tuhhs, 32 Cal. 332, 339; Sec. 5] New Trials 683 Oullahan v. Starbuck, 21 Cal. 413; Walton v. Maguire, 17 Cal. 92. It must be understood, of course, that a mere dissatis- faction of the judge with the verdict is not sufficient ground for disturbing it, but the court must exercise its judgment in each particular case, and if, from all the testimony given the jury, it is satisfied that the verdict is against the clear weight or preponderance of evidence, or that the jury has acted unreasonably in returning the verdict, or has been misled or misdirected, or has acted through improper mo- tives, it is the duty of the court to set it aside and grant a new trial: Wright v. Southern Express Co., 80 Fed. 85, 93; Mt. Adams, etc., Ry. Co. v. Loivery, 20 C. C. A. 596, 74 Fed. 463, 477. There may be sufficient evidence to go to the jury to make a prima facie case, yet there may be opposing evidence so strong, palpable, and overwhelming as to dissipate any reasonable idea that the prima facie case should prevail; or the case as first made may be so strong, and the countervailing testimony so weak and un- satisfactory, as to preclude an honest and rational judg- ment against the case first made. In either case, if the jury should disregard the better showing, it would plainly be the duty of the court to interpose, upon motion for a new trial, and set the verdict aside; and this is the ra- tionale of the statute, in providing that the verdict may be set aside for insufficiency of evidence. Mr. Justice Beewee has laid down what seems to us to l)e the proper rule for the guidance of the trial judge, in Kansas Pac. Ry. Co. v. Kmikel, 17 Kan. 172. He says: "The one (the trial judge) has the same opportunity as the jury for forming a just estimate of the credence to be placed in the various witnesses, and, if it appears to him that the jury have found against the weight of evidence, it is his imperative duty to set the verdict aside. We do not mean that he is to substitute his own judgment in all cases for the judgment of the jury, for it is their province to settle questions of fact ; and when the evidence is nearly balanced, or is such that different minds would naturally and fairly come to different conclusions thereon, he has no right to disturb the findings of the jury, although his own judgment might incline him the other way. In other words, the finding of the jury is to be upheld by him as 684 Trial Practice [Chap. 17 against any mere doubts of its correctness. But when his judgment tells him that it is wrong; that, whether from mistake, or prejudice, or other cause, the jury have erred, and found against the fair preponderance of the evidence, — then no duty is more imperative than that of setting aside the verdict, and remanding the question to another jury." We think the court in the case at bar proceeded upon an erroneous principle of law in limiting its inquiry to ascer- taining whether there was any evidence from which the jury might infer the facts which were attempted to be proven. It should have gone further, and weighed the evidence in accordance with the principles hereinbefore enunciated: Larsen v. Oregon Ry. S Nav. Co., 19 Or. 240 247 (23 Pac. 974) ; State v. Billings, 81 Iowa, 99 (46 N. W. 862) ; City of Tacoma v. Tacoma Light S Water Co., 16 Wash. 288 (47 Pac. 738); Hawkins v. Reichert, 28 Cal. 534; Dickey v. Davis, 39 Cal. 565; Bennett v. Hobro, 72 Cal. 178 (13 Pac. 473); Reid v. Young, 7 App. Div. 400 (39 N. Y. Supp. 899); First Nat. Bank v. Wood, 124 Mo. 72 (27 S. W. 554). The defendants were entitled to have their motion for a new trial passed upon in pursuance of correct principles of law, and, the trial court having failed in this, the cause will be remanded, with directions to de- termine the motion under the rules herein announced. The cumulative character of the newly-discovered evidence ren- ders defendants' position upon the first ground untenable; and, as it pertains to the second, viz., that the damages as- sessed are excessive, that was a matter within the discre- tion of the trial court. By anything we have said in this opinion it is not intended to indicate in any manner our impressions touching the weight of the evidence submitted to the jury, and the court below, having seen the witnesses and observed their manner, must act entirely upon its own judgment in passing upon the motion. Reversed. Sec. 5] New Trials 685 HARRISON V. SUTTER STREET RAILWAY COMPANY. Supreme Court of California. 1897. 116 California, 156. Van Fleet, J. — Plaintiff had verdict and judgment against defendants for eight thousand dollars, as dam- ages suffered by the heirs of his intestate through the death of the latter, resulting from injuries received in a collision between a car of the railroad company, on which lie was a passenger, and a wagon of the brewing company, occasioned by the negligence of the defendants. The court below granted defendants a new trial, on the ground that the verdict was excessive; and the plaintiff appeals from such order, urging that it was wholly unwar- ranted under the e\adence, and was an abuse of discretion on the part of the trial court. Certain preliminary objections are interposed by defend- ants, and reasons suggested why the order appealed from cannot be reviewed, but these objections, while possibly pos- sessed of some merit, being purely technical, and the court being of opinion that the order must be affirmed on the merits, it will prove more satisfactory to both parties, and more in accord with the disposition of the court, to so dis- pose of the appeal. That the granting of a new trial is a thing resting so largely in the discretion of the trial court that its action in that regard will not be disturbed except upon the disclo- sure of a manifest and unmistakable abuse has become axiomatic, and requires no citation of authority in its sup- port. It is true that such discretion is not a right to the 'exertion of the mere personal or arbitrary will of the judge, but is a power governed by fixed rules of law, and to be reasonably exercised within those rules, to the ac complishment of justice. But so long as a case made presents an instance showing a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside, even if, as a ques- tion of first impression, we might feel inclined to lake a ^ 686 Trial Practice [Chap. 17 different vie\v from that of the court below as to the pro- priety of its action. More especially is this true where, as here, the question rests largely in fact, and involves the proper deduction to be drawn from the evidence. The opportunities of the trial court, in such instances, for reaching just conclusions are, as a general thing, so su- perior to our own, that we will not presume to set our judgment against that of the former, where there appears any reasonable room for difference. Appellant does not seriously question the correctness of these principles, but he contends that the record does not disclose a proper case for their application. He contends that there was no room for the exercise of discretion ; that the evidence as to the amount of damages suffered was wholly without conflict; that there was nothing to indicate passion or prejudice, except the amount of the verdict it- self, and that there was no showing, by affidavit or other- wise, of any improper conduct on the part of the jury. As to the last suggestion, it is impertinent to the inquiry. Granting a new trial for the misconduct of the jury, such as may be shown by affidavit, is something wholly different and apart from the right which the statute gives to grant such relief on the ground of excessive damages. The for- mer contemplates some overt act of impropriety, such as receiving evidence out of court, reaching a verdict by chance, and, the like; while an excessive verdict implies no misconduct of the jury necessarily, but simply that the re- sult has been induced through excited feelings or preju- dice, of which the jury may not, perhaps, have been even aware, but which has, nevertheless, precluded an impartial consideration of the evidence. Whether the verdict is ex- cessive is to be determined solely from a consideration of the evidence in the case, and whether it will fairly sustain the conclusion of the jury — a question which cannot be aided by the showing of extrinsic facts, by affidavit, or otherwise. As to the suggestion that the evidence touching ''the amount of damages" was without conflict, we are not whol- ly certain that we appreciate exactly what counsel means. There was no evidence given as to the amount of the dam- ages suffered. The damages sued for were in their nature unliquidated, and no witness pretended to fix the precise Sec. 5] New Trials 687 amount plaintiff should recover. We presume counsel means that the evidence as to the circumstances which tin jury had a right to regard in determining the award of damages, such as age, condition of life, etc., of deceased, was without conflict. But if this were true, which we do not think can be fairly said, the question as to the proper deduction and conclusion to be drawn from such evidence would still remain for the jury, and whether their con- sideration of the evidence for this purpose was influenced by passion or prejudice would not necessarily be affected by the fact that the evidence was without conflict. A jury, if excited by prejudice, might as readily award unjust dam- ages where the evidence was uncontradicted as where it was in sharp conflict. The evidence tended to show that deceased was about sixty-nine years of age, but his physical appearance would seem to have indicated more advanced years. Dr. Dorr, one of his physicians, testified that he looked older; that he appeared between seventy-five and eighty years of age; while Dr. O'Brien, a physician who examined him on behalf of one of the defendants, after the accident and before his death, testified that he considered him a debili- tated man; that in his judgment the result of the injury would not have been serious but for his age and debility. According to the testimony of his widow his health was very good, but he had suffered all his life from sick head- ache, for which she had been required to nurse him. His income was about one hundred and ten dollars per month, that is, it did not appear that he was in steady or permanent employment, but the evidence tended to show that he was an expert accountant, who straightened out books and tangled accounts when called upon, and that his earnings averaged that sum monthly. According to the Carlisle mortality tables, he had an ex- pectancy or probable lease of life of a fraction over nine years and a half. He had dependent on him a wife and an adult unmarried daughter. Upon these facts the jury were instructed, as to the question of damages, in effect, that they should estimate and determine the amount that the deceased would in all reasonable probability have earned in the years yet re- maining to him ; and, deducting from this the amount which 688 Trial Peactice [Chap. 17 lie would reasonably require for his own personal use and maintenance, give a verdict which would pecuniarily com- pensate the heirs. It is conceded that this instruction gave the correct rule for the guidance of the jury. In view of this evidence, and the rule of compensation by which the jury were to be governed, we think it quite manifest that we should not be justified in holding that there was an abuse of discretion in setting aside the ver- dict. The jury would seem to have proceded upon the theory that the deceased's expectancy of life would be fully realized, and that he would continue to the end with the same earning capacity as that possessed by him at the time of his death, for their verdict implies that he would have earned, over and above the amount required for his personal needs, the large net sum of eight thousand dol- lars, and this would necessarily contemplate constant em- ployment without interruption from sickness or other cause and with a rate of earnings in no way diminished, since it will readily be perceived that according to his income his utmost gross earnings in the given time would not have exceeded twelve thousand dollars. Such a result does not accord with ordinary human ex- 'perience. The deceased's expectancy of life was not a cer- tainty, but a mere probability. It is true he might have lived even longer than the limit of such expectancy, but the chances were much against it. He might also have retained his vigor and ability to labor to the last, but ordi- nary experience teaches that the weight of advancing years, after the age attained by deceased, bears strongly against such result. Under these circumstances we do not think it should be said that the conclusion of the trial judge was without support in the evidence. But appellant urges that it is only where the verdict is so grossly disproportionate to any reasonable limit of compensation warranted by the facts, as to shock the sense of justice, and raise at once a strong presumption that it is based on prejudice or passion rather than sober judgment, that the judge is at liberty to interpose his judgment as against that of the jury; and that such an instance is not shown. The rule invoked is correct, as addressed to the function of the trial court, or when asking this court to set aside the verdict where it has been refused by the court Sec. 5] New Trials 680 below. But when we are asked to review the act of that court, where in the exercise of its discretionary power it has seen fit to set aside the verdict on this ground, a very different rule prevails. Every intendment is to be in- dulged here in support of the action of the court below, and, as elsewhere suggested, it will not be disturbed if the question of its propriety be open to debate. Order granting new trial affirmed. Hareison, J., and Garoutte, J., concurred. GRAHAM V. CONSOLIDATED TRACTION COM- PANY. Supreme Court of New Jersey. 1900. 65 New Jersey Laiv, 539. On rule to show cause. Before Justices Depue, Van Syckel and Gummeee. Per Curiam. This suit was brought by the plaintiff as administrator of Melville T. Graham, deceased, under the act which pro- vides for recovery of damages in cases where the death of a person is caused by wrongful act, neglect or default. Gen. Stat. p. 1138. The suit is for the benefit of the father of the deceased, as his next of kin, to recover damages for the *' pecuniary injury resulting to him from the death of the deceased." The deceased was a boy four years and four months old at the time the accident happened which resulted in his death. The jury found a verdict for the plaintiff and assessed the damages at $2,000. This case was first tried in September, 1896, and resulted in a verdict for $5,000 for the plaintiff. Upon a rale to show cause why this verdict should not be set aside this court, June Term, 1897, held that the damages were ''ab- surdly excessive," and ordered that a new trial be granted unless the plaintiff would accept the sum of $1,000, which lie declined to do. In October, 1897, the case was again tried, and a second verdict for $5,000 was rendered. This T. p. — 44 690 Trial Practice [Chap. 17 verdict was set aside on tlie ground that the damages were excessive. Graham v. Consolidated Traction Co., 33 Vroom 90. The case was retried January 30th, 1899, and resulted in a verdict in favor of the plaintiff for $5,000. The verdict was set aside on two grounds — first, that the plaintiff had not established by a preponderance of proof that defendant was liable; second, that the damages were excessive. Graham v. Consolidated Traction Co., 35 Id. 10. The evidence at this trial is substantially the same as it was at the last preceding trial. Two additional witnesses were examined on the part of the plaintiff, Olivett Butler and Joseph A. Smith. As to the amount of damages that should be recovered the case is not in anywise altered. With respect to the case upon the merits as presented at the last preceding trial, the opinion of Chief Justice Magie demonstrates that it was insufficient to sustain any verdict in, favor of the plaintiff. A careful examination and con- sideration of the testimony at the last trial, including that given by Olivette Butler and Joseph A. Smith, the new witnesses called by the plaintiff, leave the case substantial- ly in the same condition, upon the weight of the evidence, that it was in when the last preceding verdict was set aside. The observations of the Chief Justice on the evi- dence at that time apply with full force to the present case. The rule should be made absolute on both grounds.^ t This is probably an extreme case, in one aspect of it. Usually the court will acquiesce in the decision of the jury if a second verdict is rendered in substantial conformity to that which was set aside as contrary to the evidence. Bryant v. Commonwealth Tns. Co. (1833) 13 Pick. (Mass.) 543; Monarch G. «S S. Min. Co. V. McLaughlin (1877) 1 Ida. 650; Van Doren v. Wright (1896) 65 Minn. 80, 67 N. W. 668. Sec. 5] New Trials 691 TATHWELL V. CITY OF CEDAR RAPIDS. Supreme Court of Iowa. 1903, 122 Iowa, 50. Action to recover damages resulting from personal in- juries received by plaintiff while driving in a street of de- fendant city by reason of his horse stepping into a hole in the highway in or beside a culvert, the result being that plaintiff was thrown to the ground. Judgment for plain- tiff on a former trial was reversed, and a new trial ordered. 114 Iowa, 180. On this trial verdict was returned for the plaintiff for $100 damages, which, on plaintiff's motion, was set aside as inadequate. From this ruling defendant appeals. — A firmed. McClain, J. — There was a conflict in the evidence as to whether the street was defective at the place where plain- tiff was injured, but the verdict of the jury for the plain- tiff establishes the existence of a defect and the negligence of the city with reference thereto, and we have for con- sideration only this question: Did the trial judge err in setting aside the verdict on the ground that the damages awarded to plaintiff for the injury were inadequate? The right of jury trial, as uniformly recognized under the com- mon-law sj^stem, involves the determination by the jury, rather than by the judge, of questions of fact, including the amount of damage to be given where compensation is for an unliquidated demand. Nevertheless, the trial courts have exercised from early times in the history of the com- mon law the power to supervise the action of the jury, even as to the measure of damages, and to award a new trial where the verdict is not supported by the evidence and is manifestly unjust and perverse. And while it is uniformly held that the trial judge will interfere with the verdict of the jury as to matters of fact with reluctance, and only where, on the very face of the evidence allowing every presumption in favor of the correctness of the jury's ac- tion, it is apparent to a reasonable mind that the verdict is clearly contrary to the evidence, yet the power of the judge to interfere in extreme cases in unquestionable. It has 692 Teial Practice [Chap. 17 sometimes been said that the judge should not interfere where the verdict is supported by a scintilla of evidence; but the scintilla doctrine has been discarded in this state, and is not now generally recognized elsewhere. Meyer v. Houck, 85 Iowa, 319. The general scope and extent of the judge's supervisory power with reference to the jury's verdict as to questions of facts is well illustrated by the very first reported case in which the power a])pears to have been exercised — that of Wood v. Gunston, decided in 1655 by the Court of King's Bench (or, as it was called dur- ing the commonwealth, Upper Bench), found in Style's Re- ports, on page 466. The action was upon the case for speaking scandalous words against the plaintiff, charging him, among other things, with being a traitor. The jury gave plaintiff one thousand five hundred pounds damages, whereupon the defendant moved for a new trial on the ground that the damages were excessive, and that the jury had favored the plaintiff. In opposition to this it was said in argument that, after a verdict the partiality of the jury ought not to be questioned, nor was there any precedent for it — '*in our books of the law," and that it would be of dangerous consequence if it should be permitted, and the greatness of the damages cannot be a cause for a new trial. But counsel for the other party said that the verdict was a "packed business," else there could not have been so great damages, and that the court had power, "in extraordinary cases such as this is to grant a new trial." The chief jus^ tice thereupon said: "It is in the discretion of the court in some cases to grant a new trial, but this must be a judicial, and not an arbitrary, discretion, and it is frequent in our books for the court to take notice of miscarriages of juries, and to grant new trials upon them. And it is for the people's benefit that it should be so, for a jury may sometimes, by indirect dealings, be moved to side with one party, and not to be indifferent betwixt them, but it cannot be so intended with the court; wherefore let there be a new trial the next term, and the defendant sliall pay full costs, and judgment to be upon this verdict to stand for security to pay what shall be recovered upon the next ver- dict." This case is especially interesting in connection with the present discussion, because it is one in which the Sec. 5] New Trials 693 assessment of damages was peculiarly within the province of the jury, and because the nature of the supervisory power of the trial judge is explained as being, in effect, to set aside a verdict for excessive damages in such cases which seem to have been the result of passion and preju- dice, and not the deliberate exercise of judgment. That the practice of granting new trials under such circumstances has continued in all the courts administering the common law from the time of the case just cited to the present time is a matter of common knowledge with the profession, and citation of authorities would be superfluous. That the power is exercised to prevent miscarriage of justice by reason of the rendition of a verdict by the jury which is wholly unreasonable, in view of the testimony, which is given in the presence of the court, is universally conceded. But the question with which we are now more particular- ly concerned is whether this power of the trial judge may be exercised where the injustice consists in rendering a verdict for too small an amount. If the case is one in which the measure of damages is a question of law, the court has, of course, the same power to set aside a verdict for too small an amount as one which is excessive ; and this is, in general, true without question where the damages are capable of exact computation — that is, where the facts established by the verdict of the jury show as matter of law how much the recovery should be. In such cases the court may grant a new trial, unless the defendant will con- sent to a verdict for a larger amount fixed by the court, than that found by the jury; just as in case of excessive damages under similar circumstances the court may re- duce the amount for which the verdict shall be allowed, to stand, on penalty of setting it aside if the successful party does not agree to the reduction. Carr v. Miner, 42 111. 179; James v. Morey, 44 111. 352. It seems to have been thought by some courts that the general supervisory power over verdicts, where the amount of damage is not capable of computation, and rests in the sound discretion of the jury, should not be exercised where the verdict is for too small an amount; at least not with the same freedom as in cases where it is excessive. Earlier v. Dixie, 2 Strange, 1051; Pritchard v. Hewitt, 91 Mo. 547 (4 S. W. Eep. 437, 60 Am. 694 Trial Peactice [Chap. 17 Eep. 265) ; Martin v. Atkinson, 7 Ga. 228 (50 Am. Dec. 403). No such limitation on the supervisory power of the trial judge has been definitely established, and by the great weight of authority, both in England and America, the power to set aside the verdict, when manifestly inconsis- tent with the evidence, and the result of a misconception by the jury of their powers and duties, is as fully recognized where the verdict is inadequate as where it is excessive; and ample illustration of the exercise of this power is found in actions to recover damages for personal injuries or injury to the reputation, although in such cases the amount of damage is jDeculiarly within the jury's discre- tion. Phillips V. London S S. W. R. Co., 5 Q. B. D. 781; Robinson v. Town of Waupaca, 77 Wis. 544; Whitney v. Mihvaukee, 65 Wis. 409 ; Caldivell v. Vichshurg, 8. & P. R. Co., 41 La. Ann. 624 (6 So. Rep. 217); Benton v. Collins, 125 N. C. 83 (34 S. E. Rep. 242, 47 L. R. A. 33) ; McNeil v. Lyons, 20 R. I. 672 (40 Atl. Rep. 831) ; Lee v. Publishers, George Knapp S Co., 137 Mo. 385 (38 S. W. Rep. 1107); McDonald v. Walter, 40 N. Y. 551; Carter v. Wells, Fargo (& Co., (C. C.) 64 Fed. Rep. 1007. Counsel for appellant urge, however, that the whole mat- ter of granting new trials is controlled by the provisions relating to that subject found in the Code, and that these provisions supersede the common-law rules on the subject. It has not been our understanding that the provisions of the Code relating to practice are intended to entirely super- sede the rules of the common law. They are, like other | statutory law, merely additions to or modifications of com- mon-law rules. We have licld for instance, that, without any statutory provision on the subject, the court may di- rect a verdict in a pro])er case; that new trials may be granted in equity after the expiration of one year from the time of rendering judgment, although the statutory provi- sions as to new trials after judgment limit the right to one year; that the Supreme Court may grant a restraining order, in the exercise of its general appellate jurisdiction, although there is no statutory provision whatever with reference thereto. These illustrations indicate that the provisions of the Code as to practice supersede common- law rules only so far as they are inconsistent therewith. Sec. 5] New Trials 695 The legislature has never attempted a complete codification of the rules and principles of the common-law, either as to substantive or remedial rights. The language of Code, section 3446, seems to be directly applicable. It is as fol- lows: "The rule of the common-law, that statutes in derogation thereof are to be strictly construed, has no ap- plication to this Code. Its provisions and all proceedings under it shall be liberally construed with a view to pro- mote its objects and assist the parties in obtaining justice." We are inclined, therefore, to the view that the sections relating to new trial do not necessarily cover the whole ground, nor prevent us from recognizing powers of the trial court in this respect which have generally been exercised under the common-law system. See McDonald v. Walter, 40 N. Y. 551. However this may be, we think the authority is expressly given in Code, section 3755, to set aside a verdict which is manifestly inadequate under the evidence. It is true that paragraph four of that section, with reference to the in- fluence of passion or prejudice, mentions excessive dam- ages, and that paragraph five, with relation to error in the assessment of the amount of recovery, whether too large or too small, refers only to actions upon contract, or for the injury or detention of property. But paragraph six authorizes a new trial if the verdict is not sustained by. sufficient evidence, and we see no reason for limiting this ]iaragraph to cases where, under the evidence, it appears that the verdict should have been the other way. A verdict in favor of plaintiff for $100 is as much against the plain- tiff as to any right to recover damages not covered by the verdict as though it had been outright for the defendant. Suppose the plaintiff sues on a promissory note, and, de- fendant having interposed a general denial, plaintiff intro- duces the note in evidence (the signature not being denied under oath), and there is no evidence whatever that the note is not valid, or has been discharged, and nevertheless the jury returns a verdict for defendant, could it be claimed that a new trial should not be granted? And yet this case does not come under any of the paragraphs of the action on new trial, unless it comes under the paragraph last above referred to. We think this paragraph should have a 696 Trial Peactice [Chap. 17 liberal interpretation, and that it covers such a case as the one now before us. Similar provisions in other Codes have been construed as authorizing the setting aside of verdicts on plaintiff's motion because the damages allowed are in- adequate. Du Brutz V. Jestup, 54 Cal. 118; Bennett v. Hohro, 72 Cal. 178 (13 Pac. Eep. 473) ; Emmons v. Sheldon, 26 Wis. 648; Henderson v. St. Paul S D. R. Co., 52 Minn. 479 (55 N. W. Rep. 53) ; McDonald v. Walter, 40 N. Y. 551. The trial judge therefore had the power to set aside the verdict below on account of the inadequacy of the dam- ages, and the question is whether the case is a proper one for the exercise of such power. We interfere reluctantly with the action of the lower court in ruling on motions for a new trial, and especially where a new trial has been granted. Peebles v. Peebles, 77 Iowa, 11; Morgan v. Wag- ner, 79 Iowa, 174; Hophins v. Knapp S Spaulding Co., 92 Iowa, 212; Mally v. Mally, 114 Iowa, 309; Chouquette v. Southern Electric R. Co., 152 Mo. 257. Although it is urged in this case that the jury allowed to the plaintiff the actual damages sustained by him so far as they were shown by any evidence corroborating his own testimony, neverthe- less, it clearly appears that, if his unimpeached testimony is to be credited, he was damaged to a much larger extent than is covered by the verdict rendered by the jury. We do not hold that the trial judge may substitute his judg- ment of the credibility of the witness in place of the judg- ment which the jury has exercised, but we do say that the trial judge may, if he finds that the jury have failed to allow the amount of damages shown by uncontradicted testi- mony, set aside the verdict as in conflict with the evidence and award a new trial. The ruling of the lower court was therefore correct, and it is Affirmed. Sec. 6] New Teials 697 Section 6. Vekdict Contrary to Law. LYNCH V. SNEAD ARCHITECTURAL IRON WORKS. Court of Appeals of Kentucky. 1909, 132 KentiicTcy, 241. Opinion of the court by Judge Lassing — Reversing. ********** Appellant complains that the jury in arriving at their verdict wholly disregarded instruction No. 1, and returned their verdict in favor of plaintiff in spite of it. It is urged by counsel for appellant that, without entering into a con- sideration as to whether or not this instruction properly presented the law as warranted by the facts proven, never- theless it was the law of this case, and in disregarding it and returning a verdict in favor of plaintiff as they did the jury found contrary to the law, and that, for this reason, the judgment predicated upon their verdict should be re- versed and a new trial awarded. On the other hand, it is claimed by plaintiff's counsel that this instruction did not fairly present the law of the case, as warranted by the facts, but that as the jury, even though not properly instructed, reached a reasonably fair and just conclusion, their ver- dict and finding should not be disturbed. The greater part of the briefs of opposing counsel is devoted to a considera- tion of this question. The defendant did not except or ob- ject to this instruction, nor is his counsel now objecting to same, but his complaint is that the jury disregarded this instruction. * * * Section 340, subsec. 6, Civ. Code Prac. makes one of the grounds upon which a new trial may be granted ''that the verdict or decision is not sustained by sufficient evidence, or is contrary to law." An examination of the authorities discloses the fact that courts of last resort of the various states are not by any means harmonious in the construc- tion which they have placed upon similar code provisions, and there is, at least, an apparent lack of uniformity upon this point in the decisions in our own state. The superior court in the cases of Gausman v. Paff, 10 Ky. Law Rep. 698 Trial Practice [Chap. 17 240; Palmer v. Jolinson, 13 Ky. Law Eep. 590; Burns v. McGihhen, 9 Ky. Law Rep. 441, and Bertman v. Ehert's Adm'r., 9 Ky. Law Rep. 198, held that, where a verdict is sought to be avoided on the ground that it is contrary to law, the complaint relates to the law as given by the court in its instructions to the jury, and not as it should have been given, or, in other words these decisions hold that where a new trial is sought on the ground that the verdict is contrary to law, the ''law" here referred to means the "law" as declared or given by the court, and not as it should have been given; that, even though the court was in error and failed to give the law correctly, nevertheless the jury was bound by the "law" as given, and, if their verdict was contrary to the "law", this fact would author- ize a reversal of the case, and the granting of a new trial. And in the case of Curran v. Stein, etc., 110 Ky. 99, 60 S. W. 839, 22 Ky. Law Rep. 1575, this court said: "It is in- sisted for appellant that the court erred in giving the jury a peremptory instruction, or in interfering with the free- dom of their deliberation by requiring them to return a verdict which they were unwilling to render. There was r\o error of the court in requiring the jury to obey his in- structions. The peremptory instruction of the court to the jury, like any other order the court may make in a case, must be obeyed. * * * To hold that the jury may disobey the peremptory direction of the court would be to vest the jury with power to review the decisions of the court on the law of the case." As opposed to this idea, this court in the case of Armstrong v. Keith, 3 J. J. March. 153, 20 Am. Dec. 131, upheld a verdict which was admittedly contrary to "law" where the instruction or law, as given by the court, was erroneous, and said that the finding of the jury, under such circumstances, was sufficient to justify a final judgment. * * * That this court had, even prior to 1830, when the opinion in the case of Armstrong v. Keith, was delivered, commit- ted itself to the doctrine that the jury may not disregard the "law" as given by the court, and decide on the facts to the contrary, notwithstanding the instruction, while not directly decided, is incidentally established. In the case of Sfiiith V, Morrison, 3 A. K. Marsh, 81, in passing upon Sec. 6] New Teials 690 the ruling of the trial court in stopping Smith's counsel from arguing a proposition of law seemingly contrary to that given by the court, this court said : ''In thus restrain- ing counsel we are of opinion the court acted perfectly correct. After having obtained from the court an opinion on the legal import of the settlement, a decent regard for that opinion would seem to forbid the same matter from being again canvassed before the jury," * * * The deci- sions of other courts of last resort upon this point are not harmonious, but the decided weight of the authorities is to the effect that, where a statute authorizes a reversal upon the ground that the verdict is contrary to the "law," the "law" referred to means the "law" of tliat case as given by the court, whether right or wrong. The Supreme Courts of California, Iowa, Montana, Nebraska, New York, Penn- sylvania, South Carolina, Alabama, South Dakota, and England have held that, where a verdict is returned con- trary to "law" as given by the instructions of the court, it is such a verdict as will authorize the trial court to set aside because contrary to law. The "law" referred to in the opinions undef consideration is invariably held to mearn the "law" as given by the court, and not as it should or might have been given. On the other hand, the Supremei Courts of Georgia, Mississippi, and Texas have taken ai contrary view, and, where the verdict is in harmony with what the court conceives to be the "law" should have been, rather than in harmony with the law as given by the trial judge, the finding of the jury has not been disturbed. In the case of Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057, 43 Pac. 714, the court had under consideration the correctness of the ruling and judgment of the trial court because it was contrary to the "law" as given by the court. Upon appeal it was urged that this was error because the instruction or "law" as given by the trial court was itself erroneous. In disposing of this question the court said: "But counsel for the appellant contend that, the instruction being erroneous, the court erred in setting aside the ver- dict, because of the fact that the jury wliolly disregarded it. The question presented is: Had the jury the right to disregard the instructions of the court if erroneous? This is a most important question in the administration of 700 Trial Peactice [Chap. 17 the law. It must be conceded that there is a conflict of authority on this question. Counsel for the appellant cite a number of authorities in support of their claim that the jury may disregard the instructions of the court, if er- roneous, if the verdict is otherwise in accord with the law, and that it would be error in the court under such circum- stances to set aside the verdict. It seems from the authori- ties cited by appellant that Kentucky, Georgia, Texas, and some other states have so held. A number of the cases cited by counsel for appellant are not exactly in point ; that is, they are cases in which the jury did not seeminglv dis- regard the erroneous instructions upon vitally material is- sues in the case, and where the verdict was in conformity with the charge of the court, taken as a whole. But it must be confessed that some of the authorities cited hold that the jury have a right to disregard erroneous instruc- tions of the court, and that the verdict should not be set aside in such cases if in accord with the correct law. * * * But let it be conceded that there is a conflict of authorities upon the question under discussion, or let us suppose that it: is a new question, without any adjudications or authority in either event; what course should this court pursue? It has always been held in this jurisdiction that it was the sole province of the jury to determine questions of fact. It has been uniformly held that it was error for the court to invade this special province of the jury by even comment- ing on the evidence. State v. Sullivan^ 9 Mont. 174, 22 Pac. 1088, and authorities cited. Our system of practice is certainly based upon the theory that it is the province of the jury to determine facts, and that of the court to de- termine and declare the law in all cases, except in prosecu- tions for libel. 'The jury, under the direction of the court, shall determine the law and the facts.' State Const, art. .3, section 30. From this constitutional clause it seems plain that the jury have no right to determine the law in any other case. ' Expressio unius est exclusio alterius/ This is the first time it has been seriously contended in this court that the jury have the right to determine the law in an ordinary suit at law and to absolutely disregard the in- structions of the court on the ground that, in the oiVmion of the jury, the instructions of the court are erroneous. If Sec. 6] New Trials 701 the contention of tlie appellant is to be upheld, what may we not anticipate as the result in the administration of the law in this state? If the jury may rightfully invade the l^rovince of the court, why may not the court retaliate by invading the province of the jury in determining questions of fact? As counsel for the respondent suggest, if the con- tention of appellant is correct, then logically there is an appeal in all cases upon questions of law from the trial court to the jury. And as counsel for respondent further suggest in their argument, if the jury may determine the law, an attorney arguing the case may say to the jury: 'The court will charge you that the law is so and so, but I say to you the court is wrong. You, the jury, are the hidges of the law, and may determine it for yourselves.' Would any court permit such an argument to a jury? Cer- tainly not. But, if the jury are the judges of the law, why should a court prohibit such an argument to them? If a juror should state upon his voir dire that he would not be ii'overned by the law as declared by the court, if he thought ihe instructions erroneous, nobody would doubt that he would not be permitted to sit in the case. Yet, if he has the right as a juror to determine the law, we do not see why he should be challenged for asserting that right. If ^he contention of appellant is correct, the time of this court in hearing future appeals will be devoted to determining whether the court or the jury were right in their views of the law in the trial of the cause in the lower court. Author- ity, or no authority, we cannot give our sanction to a prac- tice that would lead to such results. Such a course would ultimately result in overturning our system of keeping separate and distinct the powers and duties of the courts and juries, confining each to its own proper province, in the degradation of the courts, and confusion and chaos in the administration of the law." And in the case of Einerson v. County of Santa Clara, 40 Cai. 543, the court, in passing upon a similar question, said: ''It matters not if the instruction disobeyed be itself erroneous in point of law, it is nevertheless binding upon the jury who can no more be permitted to look beyond the instructions of the court to ascertain the law than they 702 Trial Pkacticb [Chap. 17 would be allowed to go outside of the evidence to find the facts of the case." And in the case of Barton v. Sliull, 62 Neb. 570, 87 N. W. 322, the Supreme Court in passing upon a similar question, said: ''Without at the present time discussing the correct- ness of the instructions, the rule is that it is the duty of the jury in all cases to follow the instructions given them by the court whether correct or not ; and, if they fail to do so, the verdict will be deemed to be contrary to law, and should be set aside and a new trial ordered. The reasons for the rule are obvious. Any other would lead to endless con- fusion sanctioning utter disregard of the court's opinion of the law applicable to the pleadings and the evidence, and render its instructions entirely impotent, except when will- ed otherwise by the jury. A refusal or failure to follow the instructions of the court is sufficient ground for setting asid-e the verdict and granting a new trial." And in Way v. Chicago d Rock Island Bailway Co., 73 Towa, 463, 35 N. W. 525, the court said: ''We will not in- quire whether the instruction is correct or not. It was given as the law of the case, and should have been respected by the jury. A verdict which has been found against the instructions of a court should be set aside, even though the disregarded instructions should be erroneous." To the ^ame effect are Bunt en v. Mutual Ins. Co., 4 Bosw. (N. Y.) 254; Flemming v. Marine Ins. Co., 4 Whart. (Pa.) 59, 33 Am. Dec. 33; Dent v. Bryce, 16 S. C. 1; Fleming v. L. & N. R. R. Co., 148 Ala. 527, 41 South. 683; Wood v. Cox, 84 Rnglish Common Law, 280. In this case the Chief Justice, Sir John Jervis, said: "Without discussing the merits of the case or the propriety of the directions of the pre- siding judge, I think the verdict cannot be sustained. The undersheriff directs the jury to find for the plaintiff, telling them there is no evidence to support the plea, and they persist in finding for the defendant. There must be a new trial." The authorities which we have cited are represen- tative cases in their respective jurisdictions bearing upon this question. As opposed to the views therein expressed, the Supreme Courts of Texas, Georgia, and Mississippi, as above indicated, have taken a contrary view, but the reason for the rule announced in these several cases cited Sec. 7] New Trials 703 by counsel for appellee in support of his contention is far from satisfactory, and the conclusion reached is opposed to both the theory and spirit upon which our system of jurisprudence is based, and is overwhelmed by the weight of authority in other jurisdictions. After a full consideration, we adhere to the rule infer- entially declared in Sjuith v. Morrison, * * * and subse- quently followed by the superior court in the several opin- ions to which we have referred, and by this court in the later case of Curran v. Stein, that it is the duty of the trial jury to "conform to the instructions of the court upon matters of law." In other words, that it is the exclusive province of the court to determine questions of law, and that of the jury only to apply the facts proven to the law as given by the court; and, when it is stated that the verdict is contrary to "law," reference is had to the law as given by the court, and not as it might or should have been given. Section- 7. Newly Discovered Evidence. (a) Cumulative Evidence. WINFIELD BUILDING AND LOAN ASSOCIATION V. McMULLEN. Supreme Court of Kansas. 1898. 59 Kansas, 493. Johnston, J. J. F. McMullen was elected secretary of the Winfield Building and Loan Association, and for the faithful performance of his duties he executed a bond in the sum of two thousand dollars, which was signed by J. C. Mc- Mullen as surety. It was claimed that the secretary mis- appropriated $2,201.75 of the money of the Association, and an action was commenced on the bond. Among other defenses alleged, J. C. McMullen, the surety, denied the execution of the bond, and, upon testimony offered, the 704: Trial Practice [Chap. 17 jury in answer to a special question found that he did not execute it, and a general verdict was returned and judg- ment rendered in his favor. Afterward, the Association filed its petition, under the statute, asking the court to set aside the verdict and judgment on the ground of newly- discovered evidence. The bond had been lost and was therefore not produced at the trial. It was afterward found, and it constituted the newly-discovered evidence up- on which a new trial was asked. On the application, testi- mony was offered as to the loss of the bond and the dili- gence exercised to secure it before the trial was had. After a full hearing, the District Court granted a new trial and set aside the verdict and judgment theretofore rendered. This order was reversed by the Court of Appeals (46 Pac. 410), and its ruling is here for review. The Court of Appeals held that the testimony was new- ly-discovered evidence, that it was material, and that due diligence had been used to obtain it, but that it was cumu- lative in character; and on this ground the reversal was based. That the bond was newly discovered evidence is "lear. It was lost and is found. It was very material. Prom the fact that its execution was denied. When pro- duced, and submitted to the inspection of the jury, they could determine for themselves, from it and from the testi- mony offered in connection with it, as to the genuineness of the defendant's signature thereon. Whether the surety signed the bond was the principal fact to be investigated; and when the jury found that he did not sign it, they were not required, under the instructions of the court, to pursue their investigations further, nor to determine anything as to the other defenses which were set up. It was therefore a controlling issue in the case; and with respect to it, the new testimony was of the utmost importance. The District Court and the Court of Appeals therefore correctly ruled that the evidence was newly discovered, that it was ma- terial, and further that due diligence had been used to ob- tain and produce it at the trial. Was it cumulative, and did the trial court err in granting a new trial? The general rule is that newly-discovered evidence which is merely cumulative is not sufficient ground for a new trial ; but we are clearly of the opinion that the pro- Sec. 7] New Tkials 70 j posed testimony cannot be regarded as cumulative mere- ly. "Cumulative evidence is evidence of the same kind to the same point." 1 Greenleaf on Evidence, § 2. The fact that the testimony may tend to prove the same issue upon which proof was offered on the trial, is not enough to make it cumulative ; and whether or not it is cumulative is to be determined from its kind and character, rather than from its effect. On the trial, testimony was offered that a bond was executed, and that one of th,e signatures thereon was that of the surety. This was merely the opinion of experts, which, in character, is distinctly dif- ferent from the instrument itself upon which the action was brought. Instead of taking the judgment or relying on the opinion of others, the jury can inspect the bond, and, from the inspection and by comparison of the signa- tures thereon with other signatures admitted or proved to be genuine, determine for themselves the point in con- troversy. It is a very material item of evidence, on the turning-point in the case, wholly dissimilar in character from that produced on the trial; and therefore cannot be classed as cumulative. The State v. Tyson, 56 Kan. 686, 44 Pac. 609; Cairns v. Keith, 50 Minn. 32; Knowles v. Northrop, 4 Atl. 269; Protection Life Ins. Co. v. Dill, 91 111. 174; Wilday v. McConnell, 63 111. 278; Guyot v. Butts, 4 Wend. 581 ; Piatt v. Munroe, 34 Barb. 291 ; Wayt v. B. C. R. & N. R. Co., 45 la. 218. ********** The judgment of the Court of Appeals will be reversed and the judgment of the District Court will be affirmed. WALLER V. GRAVES. Supreme Court of Errors of Connecticut. 1850. 20 Connecticut, 305. This was a petition for a new trial of a cause, which had previously come before this court. Graves v. Waller, 19 Conn. R. 90. For the nature of the action and the decla- T. P.^5 706 Trial Practice [Chap. 17 ration, it is sufficient, for the present purpose, to refer to the report of that case. On the trial of the cause to the jury, it became a ma- terial question, and one on which the determination of the cause depended, whether the words "rapacious credi- tor," were in the original manuscript, when it was handed to the editor of the New Milford Republican, the news- paper in which it was alleged to have been published, or were inserted in the manuscript or published in the news- paper, by some person, unknown to the petitioner, and without his knowledge; the plaintiff in that suit claiming the former branch of the alternative, and the defendant the latter. The plaintif[ introduced evidence tending to prove his claim. The defendant on the other hand, introduced Syl- vanus Merwin, as a witness, who testified, that he drew up in part the certificate on which the action was founded ; that he asked Waller if he would sign it? That Waller asked him what it was? that he then read it over to him; that he made no objection to signing it, and said it was true; that the words "rapacious creditor," were not in it ; that he did not tell Waller, that he intended to publish it; and that he, Merwin, sent it to the publisher of the news-paper, but did not authorize the continuance of it the second week; that he saw the piece soon after it was published, and discovered that it was different from the manuscript when sent to the publisher. On the hearing of the present petition also, Merwin was a witness, and testified, that he did not authorize any one to make any other alterations in the manuscript than such as were necessary to make its language grammatical. The deposition of Averill as to the alteration of the original manuscript, was annexed, and made part of the finding of the court in the case. In that deposition, the deponent testified, that being publisher of a weekly news- paper in New-Milford, entitled The New-Milford Republi- can, he published in that paper, in April or May 1846, a writing signed by Homer Waller of New-Milford, reflect- ing somewhat severely on the character and person of Jedediah Graves, father-in-law of Sylvanus Merwin; that Sec. 7] New Trials 707 this writing came to the deponent's office in the hand- writing of said Merwin; that the deponent was instructed, by a private note from Merwin, to make such alterations in the body of the writing, as he saw fit, to make it read grammatically, which he did accordingly; that the words ''rapacious creditor," and some others, were inserted by the deponent, without the consent or knowledge of Wal- ler, or even his approbation; and that the substance of the whole writing was materially changed from what it was when it was received by him for publication, without authority from Waller for so doing. The case was reserved for the advice of this court. Church, Ch. J. The most aggravated portion of the libel complained of, is that by which the plaintiff. Graves, was exposed to public reproach and contempt, as having, in the character and spirit of a rapacious creditor shame- fully abused Sylvanus Merwin, his son-in-law, and his wife and children. This charge was libellous, and, in a good degree, gave sting and character to the whole publication, and was the chief ground of the plaintiff's claim to the recovery of damages at the trial, and upon which the issue of the cause was supposed much to depend, as we infer from the allegations in this petition, and found by the court to be true. The ground of this application for a new trial, is that from evidence newly discovered, the petitioner Waller, can prove, that the language ''rapacious creditor/' was never used by him, in composing the article, nor approved by him, but without his knowledge, was inserted by the editor of the newspaper in which it was published, and for which unauthorized act he ought not to be made responsible. If such is the real truth, and if the jury had so believed upon the trial, we think the result would and should have been a different one. There is, and there should be, reluctance in courts to disturb the verdicts of juries, unless in cases where it is most manifest, that either the law has been perverted or mistaken, or that the losing party has not had a full and impartial hearing. It is easy for a party to claim the dis- covery of new evidence, and it is hard that his opponent 708 Teial Peactice [Chap. 17 should be compelled to submit to the expense of a second trial, when such claim is either unfounded, or the result of negligence in the first preparation. We feel all this in the present case, and with much hesitation have formed the opinion now declared. ********** So if the evidence now claimed to be newly discovered, is merely cumulative evidence, we cannot grant a new trial, unless the effect of it will be to render clear and posi- tive, that which was before equivocal and uncertain. By cumulative evidence is meant additional evidence of the same general character, to the same fact or point which was the subject of proof before. Watson v. Dela- field, 2 Gaines, 224; Reed v. McGreiv, 1 Harmond, 386; Smith V. Brush, 8 Johns. R. 84; Pike v. Evans, 15 Johns. R. 210; The People v. The Superior Court, 5 Wend. 114; S. C. 10 Wend. 285; Guyot v. Butts, 4 Wend. 579; Gard- ner V. Mitchell, 6 Pick. 114; Chatfield v. Lathrop, id. 417; Parker v. Hardij, 24 Pick. 246. The fact in dispute, on the trial of this cause, was, whether the words, "rapacious creditor," were a part of the libellous writing, when it was signed by Waller. That they were not, was the most material ground of defence; and this ground was supported, by the testimony of Mer- win alone, who wrote the article originally, and who swore that these words were not then in it. From some of the cases on this subject, it may perhaps be inferred, that courts have supposed all additional evi- dence to be cumulative merely, which conduced to estab- lish the same ground of claim or defence before relied up- on, and that none would be available, for a new trial, un- less it disclosed or established some new ground. But this does not seem to us to be the true rule, as recognized in the best considered cases. There are often various distinct and independent facts going to establish the same ground, on the same issue. Evidence is cumulative which merely multiplies witnesses to any one or more of these facts before investigated, or only adds other circumstances of the same general charac- ter. But that evidence which brings to light some new and independent truth of a different character, although Sec. 7] New Trials 709 it tends to prove the same proposition or ground of claim before insisted on, is not cumulative within the true mean- ing of the rule on this subject; as in the present case, Merwin testified only, that the libel, as printed and pub- lished, was not like the paper written by him and signed by Waller, in the particular referred to. But now appears a new fact, entirely independent of the testimony of Mer- win — one which did not exist, at the time Merwin speaks of; which is, that another person, without the knowledge or consent of either Waller or Merwin, inserted the objec- tionable words into the article, which appeared in the news- paper. Suppose a question on trial to be, whether the note of a deceased person has been paid, and witnesses have been introduced testifying to various facts conducing to prove such payment, and after a verdict for the plaintiff, the executor should discover a receipt or discharge in full, or had discovered that he could prove the deliberate confes- sion of the plaintiff of the payment of the note. There could be no question, in such a case, but a new trial should be granted, although the new facts go to prove the former ground of defence. We shall therefore advise a new trial. In this opinion, Waite, Stores, and Hinmaist, Js., con- curred. Ellsworth, J. concurred in the principles advanced in such opinion, but did not think them applicable to the present case; and for that reason would not grant a new trial. New trial to he granted. 710 Trial Peactice [Chap. 17 GERMAN V. MAQUOKETA SAVINGS BANK. Supreme Court of loiva. 1874, 38 Iowa, 368. Plaintiff claims $1,000, alleged to be due on account of business transacted with defendant in the years 1872 and 1873. The defendant denies that any balance is due plain- tiff. Trial to the court. Plaintiff testified in substance that on or about Nov. 25th, 1872, he gave defendant two drafts, each for $1,000, on Vaughn Bros., Chicago. That one of these drafts was forwarded to Chicago and paid. That the other, under his direction, was retained; that he gave checks against this draft to the amount of $980.93, which was charged to his account; and that after- ward he settled the account by turning out notes which the bank discounted, and this draft was delivered up to him and destroyed. The defendant's cashier and vice-president both testi- ' ed that the draft sent to Chicago was drawn on the 23d of November, and that the bank paid over the counter therefor $1,000 less exchange. The plaintiff, in rebutt#l, testified that it was possible the draft paid by Vaughn Bros, was drawn on the 23d, but that he did not, on that day or any other day, receive from any officer of the bank $1,000 in cash over the counter of the defendant on that draft, or upon any draft in contro- versy in this suit; and that no officer of the bank ever claimed to him before the day of trial that they had paid cash over the counter of the bank on any draft in contro- versy. Upon the testimony introduced, the court rendered judg- ment for the defendant. Plaintiff thereupon moved for a new trial on the ground of surprise and of newly discovered evidence. The court overruled the motion on the ground that the newly discovered evidence was cumulative. Plaintiff ap- peals. The further material facts are stated in the opinion. Sec. 7] New Trials 711 Day, J. — I. That a new trial will not be granted because of the discovery of evidence, which is merely cumulative, is a general doctrine of the courts, and has been frequently recognized in this state. See 1 Graham and Waterman on New Trials, 486-495, and cases cited; Alger v. Merritt, 16 Iowa, 121; Sturgeon v. Ferron, 14 Iowa, 160; Manix v. Malony, 7 Iowa, 81. It is exceedingly difficult, if not impossible, to furnish a general definition of cumulative evidence, which in a given case will materially aid in determining whether particular testimony offered falls within or without that class. In 1 Greenleaf on Evidence, <^ 2, it is said: "Cumulative evidence is e\ddence of the same kind, to the same point. Thus, if a fact is attempted to be proved by the verbal ad- mission of the party, evidence of another admission of the same fact is cumulative." And in Alger v. Merritt, 16 Iowa, 121, (127), it is said: "If the new evidence be specifically distinct and bear upon the issue, though it may be intimately connected with some parts of the testi- mony at the trial, it is not cumulative." Citing 1 G. & W. on New Trials. Ma:*y of the cases seem to hold that evidence is cumulative if it goes to establish the issue which was principally controverted upon the former trial. These cases, we think, lay down too broad a rule. The evidence may tend to establish the same issue, and yet be so unlike and distinct from any testimony before produced, as to furnish no protext for declaring it cumulative. The case of Gardner v. Mitchell, 6 Pick. 114, furnishes an apt illustration. In that case the plaintiff recovered a verdict for $5,337 on a breach of warranty as to the quality of 51,000 gallons of oil sold him by defendant. The defendant moved for a new trial on the ground of newly discovered evidence by which he could prove declarations of the plaintiff that the oil was as good as expected. It was held that this was a new fact not before in the case, and a new trial was grant- ed. The same principle was recognized in Guyot v. Butts, 4 Wendell, 579. In this case plaintiff states in his motion for new trial, "that he can fully prove by the testimony of William Phil- lips of Clinton county, Iowa, that on the 23d day of No- 712 Teial Peactice [Chap. 17 vember, A. D. 1872, this plaintiff drew a draft on Vaughn Bros, of Chicago, for $1,000, at the bank of defendant; that said witness was with plaintiff at the time, and that he, plaintiff did not receive cash for the same, but did check against said draft to the amount of $500, and plain- tiff says he can show he drew no other draft that day. Plaintiff also states he can prove substantially the same by Abram Gish. Now, whilst this testimony tends to the establishment of the same fact as that testified to on the former trial by plaintiff, to-wit: that $1,000 was not paid when the draft was drawn, it tends to establish it in part, as an inference from a new fact, not introduced upon the former trial, viz: that a check was drawn against the draft to the amount of $500. It seems to us, therefore, that the case falls within the principle of Gardner v. Mitchell, 6 Pick. 114, and Guyot v. Butts, 4 Wendell, 579, and that the evidence newly dis- covered was something more than merely cumulative. See 1 G. & W. on New Trials, 490-493, and cases cited; 3 Id. 1048, and cases cited. We think the motion for a new trial should have been sustained. Reversed. BROWN V. WHEELER. Supreme Court of Kansas. 1901. 62 Kansas, 676. Pollock, J. * * • ********** Is the evidence cumulative? Does the fact that the ad- mission made by Van A^oorhis Brown in this letter is in writing, while his admissions shown upon the trial were oral, take it out of the rule against cumulative evidence? We think not. Cumulative evidence is evidence of the Sec. 7] New Trials 713 same kind to the same point. Here the evidence offered is an admission. Oral admissions of Brown of identical import were shown by witnesses for the defense upon the trial. All are admissions ; hence, they are of the same kind of evidence. All go to the same point — to show that Van Voorhis Brown was not the owner of the property. The fact that the admission here made is in writing may have made it stronger, but does not change its nature as evi- dence; it is cumulative. {Wisconsin Central R. R. Co. v. Ross, 142 111. 9, 31 N. E. 412; Klein v. Gibson, 2 S. W. (Ky.) 116; Cox V. Harvey, 53 Ind. 174; The Town of Man- son V. Ware, 63 Iowa, 345, 19 N. W. 275; Wayne v. New- man's Adm'r, Etc., 75 Va. 811; Wall v. Trainer, 16 Nev. 131; Glidden v. Dunlap, 28 Me. 379.) * * * LAYMAN V. MINNEAPOLIS STREET RAILWAY COMPANY. Supreme Court of Minnesota. 1896. 66 Minnesota, 452. Staet, C. J. The plaintiff's intestate died as a result of a collision between a wood cart, which he was driving, and one of the defendant's street cars. Both were going in the same direction. The main issues litigated on the trial of the action, which was for the recovery of damages on ac- count of his death, were the negligence of the defendant and the contributory negligence of the deceased. There was a verdict for the defendant. The trial court granted the plaintiff's motion for a new trial solely on the ground of newly-discovered evidence, and defendant appealed from the order. The verdict was general only, hence the record does not disclose the ground upon which the jury based the verdict. The trial court stated, in its memorandum, that evidently the jury found that the deceased was guilty of contributory negligence, and that such finding was the basis of the ver- dict. It cannot be so assumed, although the evidence ren- ders it more probable that such was the case than that the 714 Trial Practice [Chap. 17 jury found that the defendant was not guilty of negligence in the premises. These suggestions are made with reference to the character of the newly-discovered evidence, which tends to show that the deceased, as he started to turn his team upon the car tracks for the purpose of avoiding a pile of lumber which had been placed near the curb of the street along which he was driving his cart, looked back in the di- rection he had been coming, and that there was no car then in sight. It is undisputed that his view, in the direction from which the car came, was unobstructed for at least three blocks. The defendant claims, that this evidence is simply cumulative, that it is false, and would not change the verdict on another trial. The granting or denying of a motion for a new trial on the ground of newly-discovered evidence is a matter rest- ing largely in the discretion of the trial court and its order will not be reversed on appeal unless it is made to appear that the order violated some legal right of appellant, or was an abuse of discretion ; the presumption being that the discretion was properly exercised. Lampsen v. Brander, 28 Minn. 526, 11 N. W. 94. The question, then, is not whether the trial court might have properly denied the mo- tion, but whether the granting of it was an abuse of its discretion for any of the reasons assigned by the defendant. The newly-discovered evidence was not cumulative, within the meaning of the general rule that a new trial will not be granted where the evidence is simplj^ cumulative. Cumula- tive evidence, as the term is here used, is held to be evi- dence which speaks to facts in relation to which there wa« evidence on the trial; or, in other words, it is additional evidence of the same kind, and to the same point, as that given on the first trial. But it is not cumulative if it relate to distinct and independent facts of a different character tending to establish the same ground of claim or defense. ITil. New Trials, 501; Nhiinger v. Knox, 8 Minn. 110 (140) ; H OS ford V. Ttowe, 41 Minn. 245, 42 N. W. 1018. On the trial there was no evidence as to whether the do ceased looked to see if a car was ai)proaching before driv- ing upon the tracks. The new evidence directly tends to ])rove that he did so look. This is a fact bearing upon the question of liis contributory negligence. The evidence, therefore, is material, and is not cumulatice. The credi- Sec. 7] New Trials 715 bility of the evidence, and whether it would probably change the result on another trial, are questions peculiarly, but not exclusively, for the trial judge, who saw the witnesses, heard their testimony, followed the course of the trial, noted the claims of the respective parties, and whose opportunity to judge of the credibility of the newly-discovered evidence, and the probable effect it would produce on another trial, was superior to our own. Our conclusion, from a consid- eration of the entire evidence given on the trial, is that the trial court did not abuse its discretion in granting the mo- tion for a new trial. Order affirmed. (b) Impeaching Evidence. BLAKE V. RHODE ISLAND COMPANY. Supreme Court of Rhode Island. 1911. 32 Rhode Island, 213. Johnson, J. This is an action of the case, brought by Lewis A. E. Blake against the Rhode Island Company, to recover damages for personal injuries allegad to have been sustained through the negligence of the defendant company in the operation of one of its street cars. On the 29th day of June, 1906, the plaintiff was driving an ice cart, and had just turned with said cart from Patt street into East avenue, in the city of Pawtucket, when a car of the defendant company, travelling from Providence toward Pawtucket, overtook and collided with said ice cart ; and as a result of said collision the ice cart was overturned and the plaintiff was thrown to the ground and injured. The case was tried before a justice of the Superior Court and a jury, on the 18th, 19th, 20th, and 21st days of October, 1909, and resulted in a verdict for the plaintiff" for $9,082.50. Thereafter the defendant duly filed a motion for a new trial upon the grounds : **4, That said defendant has discovered new and ma- 716 Trial Practice [Chap. 17 terial evidence in said case which it had not discovered at the time of the trial thereof, and which it could not with reasonable diligence have discovered at any time previous to the trial of said case, as by affidavits to be filed in court will be fully set forth, said affidavits being made a part of this motion." This motion was heard July 2, 1910, by the justice who presided at the trial, and July 8, 1910, a rescript was filed denying said motion on all grounds except that of exces- sive damages. * * * ********** The case is now before this court on * * * two bills of exceptions. The exceptions pressed by the defendant are the fol- lowing, as numbered in its bill of exceptions : "25. To the decision of said court denying the defend- ant's motion for a new trial on the ground of newly dis- covered evidence." ********** The twenty-fifth exception is to the decision of the court denying the defendant's motion for a new trial on the ground of newly discovered evidence. In support of the motion on this ground several affidavits were filed covering three conversations alleged to have been had with the mo- torman Cook on March 21, March 29, and April 1, 1910. The affiants state that in said conversations said Cook ad- mitted that he testified falsely at the trial of the case and declared that he had lied and perjured himself on the wit- ness stand. The case seems to come clearly within the law as laid down by this court in Dexter v. Handy, 13 E. I. 474. In that case the court, Durfee, C. J. (pp. 475-6), said: ''The ground of the petition is that these witnesses, after the trial was over, severally admitted that their testi- mony was untrue. The affidavits of persons who profess to have heard these admissions are filed in support of the pe- tition, but no affidavits are produced from the witnesses themselves either admitting that their testimony was false or stating anything differently from their testimony, while, on the contrary, one of the witnesses, and he the most im- portant, has given an affidavit denying that he ever made the admissions. If another trial were granted, the new Sec. 7] New Trials 717 evidence would not be admissible in proof of the issue made by the defendant, but only to contradict or discredit the witnesses if they were again put on the stand by the plain tiff. A new trial is seldom granted for the introduction of newly discovered testimony, which goes merely to im- peach the witnesses of the prevailing party. We confess that the jDetition does not commend itself to our minds. If the affidavits introduced by the petitioner are true, the wit- nesses have confessed themselves perjurers ; and yet the pe- titioner, while he asks us to grant him a new trial on that account has not, so far as appears, taken any steps to have them prosecuted. It has been decided that a new trial on account of perjury will not be granted until after the per- jured witness either has been convicted or is dead, mere evidence of the perjury, or even an indictment for it, being deemed insufficient. Dyche v. Patton, 3 Jones Eq. 332; Benfield v. Petrie, 3 Doug. 24; Seeley v. Mayhew, 4 Bing. 561 ; Wheatly v. Edwards, Lofft. 87. Perhaps the rule laid down in these cases may be too strict and exacting for all circumstances, but it is obviously founded in wise policy. Certainly the talk of a witness after trial ought not general- ly to weigh against the sworn testimony; for there wouhl be no security for verdicts if without peril to the witnesses, they were liable to be upset by such talk. The best evi- dence of perjury is the con\'iction of the perjurer. It is against the petition that the petitioner can find no prece- dent for it. There is, however, precedent against it. In CommomveaUh v. Randall, Thacher Cr. Cas. 500, it was held that expressions used by a witness after a trial, con- tradicting or denying what he said in court, are not ground for setting aside the verdict and for granting a new trial, but are evidence to convict him of perjury. 'In almost every instance,' said the court, 'it would be easy for a los- ing party to obtain affidavits of that description.' We must, therefore, refuse a new trial on this ground." The doctrine of this case has been followed in Boherfs v. Rob- erts, 19 R. T. 349; Jones v. N. Y., N. H. cf- H. R. R. Co., 20 R. I. 214; Timony v. Casey, 20 R. I. 257; and State v. Lynch, 28 R. I. 463. In the last mentioned case, the court, Doug- las, C. J. (p. 465), said: "On examination of the affida- vits submitted we find that they do not divulge any evi- dence upon the merits of the case, but are confined to at- 718 Teial Practice [Chap. 17 tempts to discredit the principal witness of the crime. They consist mostly of statements which this witness is said to have made contradictory of her story upon the stand. Such evidence, if well fortified, is not generally admitted to impeach a verdict, as we have frequently decided" (citing the cases supra). CHICAGO AND EASTERN ILLINOIS RAILROAD COMPANY V. STEWART. Supreme Court of Illinois. 1903, 203 Illinois, 223. Mr. Justice Wilkin delivered the opinion of the court: This is an action of trespass on the case, brought by Robert Stewart against appellant, to recover damages on account of a personal injury sustained by him on the 30th day of December, 1899, occasioned by a collision between appellant's locomotive engine and the street car upon which appellee was a passenger, in the city of Chicago. The jury returned a verdict for $1,358.40. Appellant made a motion for a new trial, which was overruled, and judgment was rendered upon the verdict. The railroad company now prosecutes a further appeal from a judgment of affirmance in the Appellate Court for the First District. The only ground for reversal urged in this court is that the court below erred in overruling the defendant's motion for a new trial on the ground of newly discovered evidence. The claim for damages was for injuries to the plaintiff's spine, shoulder and arm. During the progress of the trial plaintiff testified that he had never received an injury be- fore this accident. On cross-examination he was asked if he had not been injured some years ago in an accident on the Santa Fe railroad, to which he replied that he did not get hurt in that accident. He was then asked to hold up his left hand, which showed three fingers missing, and when asked as to the time of losing those fingers he replied that he did not remember when it was. After the verdict was Sec. 7] New Trials 719 returned the claim agent of the appellant company made an investigation on the Santa Fe accident, and ascertained from the county hospital that on April 25, 1899, one ''E. Stuart" had been taken to that hospital because of an in- jury to his hand. The agent then made an affidavit to the facts ascertained by him in his investigation, and coun- sel for appellant presented it to the court in support of the motion for a new trial. Counsel insisted that new evi- dence had been discovered which would tend to impeach the plaintiff and show that he had sworn falsely when he stated that he did not know when he received the injury to his hand. No claim is made in this cause for any injury to the hand, therefore the loss of the fingers was wholly immaterial to the issue in the case. It was, perhaps, prop- er, in the discretion of the court, to permit the cross-ex- amination of the witness upon that subject for the purpose of discrediting him, but for no other purpose. The new- ly discovered evidence, therefore, even if it would have been competent upon the trial, tended only to impeach or discredit the plaintiff, and that upon a matter not material to the issue. It has been often decided by this court that a new trial will never be granted on the ground of newly discovered evidence merely for the purpose of impeaching a witness who testified upon the trial. (Friedberg v. Peo- ple, 102 111. 160; Grady v. People, 125 id. 122; Monroe v. Snotv, 131 id. 126; Bemis v. Horner, 165 id. 347; Ohicago and Northern Raikvag Co. v. Calumet Stock Farm, 194 id. 9.) The motion for a new trial was therefore properly overruled. The judgment of the Appellate Court will be affirmed. Judgment affirmed. 720 Tkial Peactice [Chap. 17 MOOEE V. CHICAGO, ST. LOUIS AND NEW OR- LEANS RAILROAD COMPANY. Supreme Court of Mississippi. 1881. 59 Mississippi, 243. CooPEE, J., delivered the opinion of the court. The appellant sued the Chicago, St. Louis & New Orleans Railroad Company to recover damages for an injury sus- tained by him in being forcibly ejected from one of its trains while the same was in motion. At the April Term of the Circui*t Court of Marshall County there was a trial of the cause which resulted in a verdict and judgment for the plaintiff. The defendant moved for a new trial, which was granted, and thereupon the plaintiff excepted to the action of the court in granting the new trial, and a bill of ex- ceptions was signed, embodying the evidence introduced. At the October Term of the court another trial was had, re- sulting in a judgment for the defendant. The plaintiff made a motion for a new trial, which was overruled; and che plaintiff again excepted, took another bill of exceptions, and now prosecutes this appeal, assigning for error the action of the court below in granting the new trial asked by the defendant, and in refusing that asked by himself. * * The newly discovered evidence of that of a witness who, some days after the occurrences in which the plaintiff was injured, had a conversation with the conductor of the de- fendant, who the plaintiff testified had inflicted the injuries on him, in which conversation the conductor admitted to the witness that he had kicked the plaintiff from the train. It is apparent that these admissions would not have been admissible in evidence for any other purpose than that of )mi)eaching the credibility of the conductor, who had testi- fied on the trial as a witness for the defendant, and had stated that lie had had no part in inflicting the injury on the plaintiff; for these declarations were not a part of the res gestae, and only on that ground could they bind the de- fendant. Dickman v. Williams, 50 Miss. 500; 1 Greenl. Evid. § 113; Sisson v. Cleveland Railroad Co., 14 Mich. 489; Smith v. Betty, 11 Gratt. 752; ThaUhimer v. Brincher- hoff, 4 Wend. 394; Virginia Railroad Co, v, Sayers, 26 Sec. 7] New Trials 721 Gratt. 328. But a new trial will not be granted on the ground of newly discovered testimony, the only effect of which would be to impeach the credibility of a witness. 3 Graham & Waterman on New Trials, 1074. We are therefore of opinion that there is no error in the record, and the judgment is Afirmed. (c) Necessary Diligence. NICHOLSON V. METCALF. Supreme Court of Montana. 1904. 31 Montana, 276. Mr. Commissioner Claybekg prepared the following opin- ion for the court : This is an appeal by Metcalf from an order granting a new trial. The only ground of the motion for a new trial was_i ^wly discovered evidence. The only affidavit filed showing that evidence was newly discovered is that of plain- tiffs. This affidavit, in so far as the discovery of the evi- dence and the showing of diligence in that regard is con- cerned, is as follows: ''That subsequent to the trial of said cause, to-wit, on the 12th day of December, A. D. 1902, I have discovered evidence which will establish the fact that myself and my co-plaintiff is said action," etc. Then fol- lows a statement of the evidence which has been discovered. The affidavit then continues: "I did not know of the ex- istence of said evidence at the time of the trial, and could not, by the use of reasonable diligence, have discovered or produced the same upon the former trial. The name of the witness by which I can establish the facts herein set forth is E. A. Briggs, now residing at Centerville, in Sil- ver Bow county, Montana ; that I did not for eighteen year? prior to the 12th day of December, A. D. 1902, know the whereabouts of said BriggB." The affidavit of Briggs also appears in the record, supporting the affidavit of plain- tiffs as to the facts to which he would testify, and stating T. p. — *6 722 Trial Practice [Chap. 17 that he was present and heard the conversation upon which plaintiffs' cause of action was based. The statute concerning new trials provides as follows: ' ' The former verdict or other decision may be vacated and a new trial granted on the application of the partv ag- grieved for any of the following causes materially affect- ing the substantial rights of such party * * * (4) Newly discovered evidence material for the party making the ap- plication which he could not with reasonable diligence liave discovered and produced at the trial." (Section 1171, Code of Civil Procedure.) We are of the opinion that the affidavit does not contain a sufficient showing of diligence, as contemplated by the statute, to warrant the order appealed from. {Rand v. Kipp, 27 Mont. 138, 69 Pac. 714; Gregg v. Kommers, 22 Mont. 511, 57 Pac. 92 ; Caruthers v. Pemherton, 1 Mont. Ill; Butler v. V assault, 40 Cal. 74; Hendy v. Desmond, 62 Cal. 260; Bagnall v. Roach, 76 Cal. 106, 18 Pac. 137; Bar- ton V. Laws, 4 Colo. App. 212, 35 Pac. 284; State v. Power, 24 Wash. 34, 63 Pac. 1112, 63 L. R. A. 902 ; Bradley v. Nor- ris, 67 Minn. 48, 69 N. W. 624; 1 Spelling on New Trial and Appeal, Sees. 209-218.) Under these authorities it was incumbent upon plaintiffs to show that they had been guilty of no laches, and that failure to produce the evidence on the trial could not be imputable to lack of diligence on their part. They must make strict proof of diligence, and a general a.verment of its existence is insufficient. Whether reasonable diligence has been used is a question to be determined by the court upon the affidavits presented, and therefore these affida- vits should state with particularitv what acts were per- formed. They should show what diligence was used, how the new evidence was discovered, why it was not discovered before the trial, and such other facts as make it clear that the failure to produce the evidence was not their own fault, or because of want of diligence on their part. So far as the evidence presented in this case is concerned, the first search for evidence may have been made after the cause had been tried. If Briggs was present at the con- versation, plaintiffs must have known it. Perhaps this fact escaped their memory at the time of the trial, but Sec. 7] New Tkials 723 mere forgetfulness is no excuse. {Hendy v. Desmond, 62 Cal. 2G0.) The mere allegation that for eighteen years plaintiffs did not know the whereabouts of Briggs is insufficient. If plaintiffs knew that Briggs could testify in their behalf, they should have shown that they had exhausted the meth- ods provided by law for obtaining the attendance of wit- nesses. If they did not know that Briggs could so testify, it is immaterial that they did not know his whereabouts. While it is true that the granting or refusing of a motion for a new trial is largely in the discretion of the trial court, and its action will not be interfered with on appeal unless there is abuse of such discretion, the affidavits being defec- tive in the showing of diligence, we are satisfied that the court below had no authority to grant the order, and there- fore abused its discretion. We therefore advise that the order appealed from be reversed, and the cause remanded. Per Curiam. — For the reasons stated in the foregoing opinion, the order is reversed and the cause remanded. COFFER V. ERICKSON. Supreme Court of Washington. 1911. 61 Washington, 559. Dunbar, J. — The appellant, Erickson, was under a con- tract with the city of 'Seattle for the regrade of Fourth avenue from Yesler Way north to Pike street. Fourth avenue runs northerly and southerly, and is crossed by Columbia street, running easterly and westerly. At the intersection of Columbia street and Fourth avenue. Fourth avenue had been cut down about thirteen feet, and in order to permit the going and coming of foot passengers upon Columbia street across Fourth avenue, the city had author- ized the appellant to construct a wooden bridge, extending along the north side of Columbia street from the east side of I'ourth avenue to the west side, spanning the entire Fourth avenue. The bridge was sixty eight feet long, the 724 Triaij Practice [Chap. 17 main part of it six feet wide, with extending floors three feet on each side, making the entire width of the bridge, so far as protection from anything below was concerned, about twelve feet. The appellant at the time of this acci- dent, which was in September, 1908, had laid down two tracks upon which he operated trains of dump cars drawn by small locomotive engines, to carry the dirt from the northern portion of the work southerly, and these trains passed to and fro under this foot bridge. The respond- ent was a timber cruiser and had lived in that neighbor- hood for about a year. On the first of September, 1908, while walking down Columbia street he stepped upon this bridge, and while going across it, one of the appellant's engines carrying some empty dirt cars passed under the bridge and, according to respondent's complaint, puffed up or threw up on top of the bridge a cloud of cinders, one of which was thrown into respondent's eye, with the effect that, after a long treatment, the eye was lost ; and this ac- tion is brought for damages for said loss. ********** It is also assigned that the court erred in not granting the appellant a new trial on the ground of newly discov- ered evidence. The application for new trial was based on the affidavit of John J. Jamison, a clerk in the office of tli' attorneys for the appellant, who swears that, as such clerk, he had sole charge of the investigation of the facts con- stituting a defense, and of the securing of witnesses and the preparation of the trial for the appellant; tliat effort had been made to obtain the names of the nurses at the hospital at the time of respondent's sojourn there, which had fail- ed; that tlie nurse Anna Bonen had testified that, in irri- gating tlie eye of tlie respondent, a cinder, about a quarter of an inch long, had been washed therefrom into the re- ceiving basin, and that this cinder had been discovered by, and examined by. Sister Crescent, who was the chief nurse; that the existence of Sister Crescent was not known to the appellant prior to the time of this testimony, and that immediate steps were taken to obtain the testimony of said Sister Crescent, who was found to be in Colfax, Washington ; that an affidavit had been obtained from her which, in effect, disputed the testimony of Miss Bonen in relation to the cinder, and that on account of this newly Sec. 7] New Teials 725 discovered evidence, a new trial should be granted. But this testimony was adduced early in the case. Counsel had notice on the 2nd of February, by the testimony of the nurse Miss Bonen, that Sister Crescent was present when the particle was washed from the eye into the basin, and that Sister Crescent picked up the particle and examined it, and afterwards lost it. It also appears from the testi- mony of Dr. Burns, early in the case, that, while he was attending the respondent at the hospital, he was advised that this substance had been washed from the eye. The granting of a new trial on the ground of newly dis- covered evidence is a question necessarily so largely in the discretion of the trial judge that it must appear with rea- sonable certainty that such discretion has been abused to the prejudice of the appellant, before the appellate court will substitute its judgment for that of the presiding judge, who has observed the proceeding throughout the trial. In this case, the judge might reasonably have concluded that due diligence had not been exercised by appellant's at- torneys. The attending physician. Dr. Burns, indicated by his testimony that he was at least friendly to the defense. A consultation with him would, no doubt, have disclose*' who the nurses were who attended on respondent while in the hospital, and it would seem, in a case of this kind, that due diligence would have required the ascertainment of that fact. Nor did it seem to have been any secret, for it readily developed in the trial, by the testimony of the nurse Miss Bonen and Sister Arthur, that Sister Crescent was the chief nurse during respondent's stay at the hospital. These were circumstances which the court might reason- ably take into consideration, in connection with the claim of the clerk that he had been unable to ascertain who the nurses were. In addition to this, the appellant was in- formed of this transaction and of the fact that Sister Cres- cent witnessed it, in the early stage of the trial, viz., on February 2, and the trial was extended over February 4; and notwithstanding the fact that the affidavit sets forth "that the town of Colfax is about three hundred and fifty miles or more from the city of Seattle, and that it was ut- terly impossible to obtain an interview with, or the attend- ance of, Sister Crescent at said trial," no motion was made for a continuance and no suggestion of surprise. After 726 Trial Practice [Chap. K having knowledge of the facts comi^lained of, the appel- lant offered his testimony and, at the close thereof, formal- ly rested his case. He should not be permitted to submit his case on one set of facts and, if a verdict is found against him, obtain another trial on another set of facts which were known to him at the time of such submission. Such has been the uniform holding of this court where no con- tinuance was asked for. Pinmis v. Puget Sound Brewing Co., 18 Wash. 108, 50 Pac. 930 ; Woods v. Globe Nav. Co., 40 Wash. 376, 82 Pac. 401; Reeder v. Traders' Nat. Bank of Spokane, 28 Wash. 139, 68 Pac. 461. Considering the whole case, we see no reason for disturb- ing the judgment. It is therefore affirmed. RuDKiN^ C. J., and Crow, J., concur. Morris, J., dis- senting. Chadwick, J., concurs with Morris, J. WHITTLESEY V. BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY. Supreme Court of loiva. 1903. 121 loiva, 597. McLain, J. * * * ********** Complaint is made of refusal to grant a new trial on account of newly discovered evidence, but it is enough to say that such evidence related to matters of expert knowledge in regard to railroading, and could have been furnished by any expert witnesses, as well as by those named in the application. The showing was not sufficient to entitle plaintiff to a new trial in tliat respect. The result is that judgment of the lower court is affirm- ed. Sec. 7] New Tbials 72; (d) Probability of Change in Result. PARSONS V. LEWISTON, BRUNSWICK AND BATH STRET RAILWAY. Supreme Judicial Court of Maine. 1902. 96 Maine, 503. Sitting: Wiswell, C. J., Emery, Whitehouse, Strout, Peabody, JJ. WiswELL, C. J. While the plaintiff was driving a horse attached to a long covered vehicle on runners across the bridge between the cities of Lewiston and Auburn, in the direction of Auburn, he met the defendant's rotary snow- plow coming towards him from Auburn ; his horse became frightened at the appearance of the snow-plow and the noise caused by it to such an extent as to become unman- ageable; finally, the horse bolted towards one side of the bridge, and, after striking that side, started diagonally across the bridge to the other side, the plaintiff in the mean- time was thrown out, dragged some distance and sustained severe injuries. ' The plaintiff, claiming that the accident was attributable to the negligence of the defendant's employees in the man- agement of the snow-plow, brought this suit to recover the damages sustained by him. The trial resulted in a ver- dict for the defendant and the plaintiff brings the case here upon two motions for a new trial, one, because the verdict was against the weight of the evidence, the other upon the ground of newly-discovered evidence. The plain- tiff's counsel admits in argument that the jury was author- ized in finding a verdict for the defendant upon the evi- dence introduced at the trial, so that it only becomes neces- sary to consider the second motion and the newly-discov- ered testimony presented under it, in connection with the case as submitted to the jury. The contention of the plaintiff at the trial was that his horse showed signs of fright when about one hundred feet distant from the snow-plow as the two were slowly ap- proaching each other; that the fact that his horse was greatly frightened nud wn« becoming unmanageable was so apparent that it should have been seen, and in fact was 728 Teial Peactice [Chap. 17 seen, by the motorman a sufficient length of time before the horse bolted, for him to have stopped his plow, and allow the plaintiff to drive past; that by doing so the accident would have been avoided, but that he failed to stop the snow-plow and that this failure was the proximate cause of the accident resulting in the injury to the plaintiff. The defendant's answer to this proposition is, and was at ti '^ trial, that the motorman did stop his plow as soon as the horse showed any signs of fright. Defendant's counsel in their brief say, "coincident in point of time with the first appearance of real fright on the part of the horse, the mo- torman shut off the current, applied the brake, and stop- ped the plow." Upon this issue, the plaintiff testified that the snow-plow did not stop until after the accident, and one witness call- ed by him, whose means of observation on account of his distance from the scene of the accident were not particular- ly good, to some extent substantiated the plaintiff, stating it as his impression that the snow-plow did not stop. Up- on the other hand, four witnesses called by the defense, all of whom were on the snow-plow at the time, and in the employ of the defendant corporation, and three of whom were still in its employ at the time of the trial, all testified in substance that the motorman stopped his plow as soon as the horse appeared to be frightened. A jury certainly would be authorized to find that it was negligence upon the part of those managing the rotary snow-plow, such as this one was described and shown by the photographs to be, to continue its movement along the track, in such a situa- tion as this, when an approaching horse displayed signs of great fright and of becoming unmanageable. But, upon the other hand, the jury was authorized to find from the testimony in the case that the motorman seasonably stopped his plow, and did all that he could do to prevent the acci- dent. So that the important issue of fact at the trial was, as to whether or not the plow was seasonably stopped, in view of the situation. Since the trial the plaintiff has discovered three addi- tional witnesses who saw the accident and who will testify, with varying degrees of positiveness, that the snow-plow did not stop until after the accident. These witnesses are entirely disinterested, they had no acquaintance with tho Sec. 7] New Trials 729 plaintiff, tlieir opportunities for seeing what happened were good. The testimony of these tliree witnesses is newlj^-dis- covered within the well established rnle in this state, its discovery subsequent to the trial was accidental; and the failure of the plaintiff or his counsel to be earlier aware of its existence cannot be attributed to any negligence up- on their part, because diligence upon their part would not have been likely to have put them in possession of it. The question then is, whether the court, in the exercise of its sound discretion, but within the rules which have been adopted relative to granting new trials upon this ground, should grant a new trial in this case. But first, inasmuch as there may be some confusion as to what the true doctrine is governing the court in the exercise of its discretion is cases of this kind, growing out of the language used in two decisions of this court, it may be well to carefully state it. The true doctrine is, that before the court will grant a new trial upon this ground, the newly-discovered testimony must be of such character, weight and value, considered in connection with the evidence already in the case, that it seems to the court probable that on a new trial, with the additional evidence, the result would be changed; or it must be made to appear to the court that injustice is likely to be done if the new trial is refused. It is not sufficient that there may be a possibility or chance of a different re- sult, or that a jury might be induced to give a different verdict ; there must be a probability that the verdict would be different upon a new trial. But it is not necessary that the additional testimony should be such as to require a different verdict. The correct doctrine had been so repeatedly stated by this court, that we quote the language used in numerous earlier decisions relative to the character of the newly-dis- covered evidence necessary and sufficient to justify the court in granting a new trial upon this ground. "A new trial to permit newly-discovered testimony to be introduced should only be granted * * * when there is reason to be- lieve that the verdict would have different if it had been before the jury." Eaiidly v. Call, 30 Maine, 10. ''Unless the court should think it probable the new evidence would alter the verdict." Snowman v. Wardwell, 32 Maine, 275. ''A review will never be granted to let in additional testi- 730 Tkial Peactice [Chap. 17 mony, when such testimony would not be likely to change the result." Todd v. Chipman, 62 Maine, 189. ''Nor un- less there be reason to believe that it would change the re- sult." Trash v. Unity, 74 Maine, 208. In Linscott v. Orient Insurance Co., 88 Maine, 497, 51 Am. St. Rep. 435, the court stated the rule, citing various earlier cases, in these words: "It has long been the settled doctrine of this court that a new trial will not be granted on the ground of newly-discovered evidence, unless it seems to the court probable that it might alter the verdict." In Stackpole v. Perkins, 85 Maine, 298, nothing is said in the opinion in regard to the new evidence being of such a char- acter as to require a different verdict. The court does say in that case: "If believed (the newly-discovered wit- ness) his testimony must substantially destroy the evidence of a witness at the trial, whose testimony may have been considered of controlling weight." A new trial was grant- ed in this case, although the effect of the newly-discovered testimony was stated by the court to depend upon the weight given to it by the jury. It is true that in Linscott v. Orient Insurance Company, supra, where the correct doctrine of this state was very distinctly stated as above quoted, and in accordance with the previous authorities, the court, at the conclusion of the opinion said that the question was, "whether the legitimate effect of such evidence would require a different verdict." The case of State v. Stain, 82 Maine, 472, was cited in sup- port of this doctrine. But we do not find the rule so stated in any case, other than in these two, in this state. If it were true that such new evidence must be of such a char- acter as to require a different verdict upon a new trial, then it would follow as a logical sequence that none but a different verdict would be allowed by the court to stand. The rule thus stated in these two cases is too strict, it would deprive a party of the privilege of having his new evidence passed upon by a jury, whose peculiar province it is to decide controverted issues of fact, even in cases whore the court is of opinion that the new evidence would proba))ly change the result, or that injustice would be like- ly to be done if a new trial was not granted. In tills case we can not say that the new evidence, in connection with the former evidence, would require a dif- Sec. 7] New Trials 731 ferent verdict. After this evidence is submitted it then becomes a question for the jury to pass upon. But it does seem probable to the court that the verdict will be different when the case is submitted anew with the additional evi- dence. It is true that this evidence is cumulative, but it is not an absolute and unqualified rule that a new trial will not be granted under any circumstances upon newly-discovered (Cumulative testimony. Snowman v. Wardwell, 32 Maine, 275. When the newly-discovered evidence is additional to some already in the case in support of the same proposi- tion, the probability that such new evidence would change the result is generally very much lessened, so that much more evidence, or evidence of much more value, will gen- erally be required when such evidence is cumulative ; but if the newly-discovered testimony, although merely cumula- tive, is of such a character as to make it seem probable to the conrt that, notwithstanding the same question has already been passed upon by the jury, a different result would be reached upon another trial with the new evidence, then such new trial should be granted. The provision of the statute, R. S. c. 89, § 4, applicable to petitions for review, that "newly-discovered cumulative evidence is admissible and shall have the same effect as other newly-discovered evidence," should have some effect upon the value of such testimony upon a motion for a new trial; otherwise, a party who had lost a verdict would liave greater rights upon a petition for review after judg- ment than upon a motion for a new trial before. And after all, while it is important to have general rules in regard to the granting of new trials upon this ground, which may be known to the profession, and by which the court will be governed so far as practicable, each case dif- fers so materially from every other, that the decision of the question as to whether or not a new trial should be granted in any particular case must necessarily depend, to a very large extent, but of course within the limits of such general rules, upon the sound discretion of the court, which will always be actuated by a desire, upon the one hand, to ])ut an end to litigation when tlie parties have fairly had tlieir day in court, and, upon the other, to prevent the like- lihood of any injustice being done. 732 Tbial Practice [Chap. 17 In the exercise of this discretion, and within the rules as above laid down, the court is of the opinion that this plaintiff should have the opportunity to again submit his case, with the additional testimony, to the determination of a jury. New trial granted. OBERLANDEE V. FIXEN & CO. Supreme Court of California. 1900. 129 California, 690. The Court. — The appellant recovered judgment in the court below for damages (seventeen hundred and fifty dol- lars), resulting from her falling down a negligently con- structed staircase leading from the defendant's storeroom, where she had just been employed by the defendant, to the basement. The court granted a new trial on the ground of newly-discovered evidence; and the grounds urged for reversal are: 1. That the affidavits were not served or filed in time; 2. Want of diligence on the part of de- fendant in preparation for trial; and 3. That the newly- discovered evidence was merely cumulative. The first point presents no difficulty. The time allowed for defendant for filing affidavits was extended by order of court, and the affidavits were in fact filed more than thirty days beyond the statutory time; but an extension beyond thirty days is forbidden by the section 1054 of the Code of Civil Procedure only with reference to the cases therein enumerated ; among which the filing of affidavits on motion for new trial is not included, with reference to which the power of the court to extend is given by section 659, sub- division 1. The case of Smith v. Jordan, 122 Cal. 68, cited by appellant's counsel, bears no analogy to the case at bar; and the rule therein referred to — established in Flagg v. Puferhaugh, 98 Cal. 134 — has no application. The other points may be conveniently considered to- gether. Under the provisions of section 657 of the Code of Civil Procedure the requisites for a new trial on the Sec. 7] New Tkials 733 gTOimd of newly discovered evidence are that the evidence could not, with reasonable diligence, have been discov- ered and produced at the trial, and that it shall be "ma- terial for the party making the application" (subdivision 4) — or, as previously expressed, shall be of a character "materially affecting the substantial rights of such party." The last requisite would seem to imply that the newly dis- covered evidence should be of such a character as to render a different result probable on a new trial ; and accordingly such is held by the courts to be the established rule. (Hayne on New Trial and Appeal, 91.) Where these requisites oc- cur they constitute sufficient grounds for new trial, and no others can be required. Hence the rule, so often reiterated by the courts, that a new trial should not be granted where the evidence is merely cumulative, must be regarded (in this state) not as an independent rule, additional to those established by the provisions of section 657 of the code, but as a mere appli- cation of those rules, or, as it has been expressed, as "a corollary of the requirement that the newly discovered evi- dence must be such as to render a different result probable on a retrial of the case." (Hayne on New Trial and A]) peal, sec. 90, pp. 255, 256.) For (continuing the citation) "it is evident that new evidence, although cumulative, might be of so overwhelming a character as to render a dif- ferent result certain" (or probable) ; and in such case un- der the express provisions of the code a new trial should be granted. The rule should therefore be construed as simply holding that cumulative evidence is insufficient "un- less it is clear such evidence would change the result." {Levifsky v. Johnson, 35 Cal. 41.) Hence, "a new trial should not be refused merely because the evidence is cumu- lative in a case where the cumulation is sufficiently strong to render a different result probable." That this is the true statement of the rule is established in the case last cited, and in Von Glahn v. Brennan, 81 Cal. 264, and in O'Bourke v. Vennekohl, 104 Cal. 256 — from which the above language is quoted; and it is so in effect held in People v. Standford, 64 Cal. 27. Whether the evidence is of this character is not a ques- tion of law but for the judgment of the trial judge, whose discretion will not be interfered with by this court except 734: Tkial Peactice [Chap. 17 in cases of manifest abuse. Hence, where the motion is denied, the fact that the newly discovered evidence is mere- ly cumulative will in general be a sufficient ground for affirmance; but where the motion is granted, the contrary will hold. For, in either case, it is for the trial judge to determine whether the evidence is of character probably to affect the result on a new trial ; and unless the evidence be of such a character as to make it manifest and certain to this court that in the one case it would, or in the other that it would not, result differently on a retrial, the order will not be disturbed. The present case, we think, comes within the principles above laid down, and it will, therefore, in the view we take of the case, be unnecessary to determine whether the newly discovered evidence was in fact cumula- tive or otherwise. Whether in this case the evidence could with reasonable diligence have been discovered and produced at the trial was also a question upon which the judgment of the court below must be regarded as conclusive, unless it appear that his discretion has been abused; and on this point we think the moving party made a sufficient case. {Jones v. Single- ton, 45 Cal. 92.) Counsel for appellant, on the construction they put on the affidavit of A. H. Fixen, make a very strong case, and could we agree in that construction our conclusion might be different; but our view of the terms of the affidavit is different. It reads: * 'I am the treasurer of the defendant corporation and as such had particular charge of arrang- ing defendant's defense to this action subsequent to the trial of said cause, to-wit, on or about the first day of June, 1896, and for some time thereafter, I have discovered evidence," etc. This is construed by the counsel as saying that affiant had charge of the defense ''subsequent to the trial" only. But, obviously, this construction cannot be entertained, and we must construe the affidavit as though "subsequent" were written with a capital initial, and a period inserted after "action." (Bouvier's Law Diction- ary, word "Punctuation.") Thus construed, the affidavit clearly states that the affiant had charge of the defense and shows that he used reasonable diligence in preparing for it. Nor does it appear that the newly discovered evidence Sec. 7] New Trials 735 was of a character ''to put defendant upon inquiry." (Heintz v. Cooper, 104 Cal. 671.) The order granting a new trial must therefore be affirm- ed, and it is so ordered. Hearing in Bank denied. ELLIS Y. MARTIN AUTOMOBILE COMPANY. Supreme Court of New Jersey. 1909. 77 New Jersey Law, 339. On rule to show cause. The opinion of the court was delivered by Trenchard, J. The plaintiff, Alfred L. Ellis, was the owner of an automobile. The defendant ran a garage, with a repair department, at Plainfield. On June 18th, 1907, the plaintiff left his automobile at the defendant's garage for repairs. Certain repairs, hereinafter more par- ticularly stated, were made. Later, when the plaintiff call- I 'd for the machine, the company declined to let him have it unless he would pay the bill for the repairs, which he declined to do. Thereupon the plaintiff caused to be is- sued a writ of replevin. The defendant company gave bond and held the car, and this suit resulted. The jury found a verdict for the plaintiff, whereupon the defendant ob- tained this rule to show cause why a new trial should not be granted upon the ground of newly-discovered evidence. According to the plaintiff's testimony at the trial the automobile was left with the defendant company only for the purpose of having an old tire retreaded. According to the testimony on behalf of the defendant company it was there for general repairs. It was undisputed that in fact the car was repaired gen- erally by the defendant company, including repairs to, and new parts for, the eng-ine. But it was contended by the plaintiff that the machine was in good condition when left with the defendant, and that no repairs were necessary and none were ordered excepting that to the tire, and that the repairs to, and new parts for, the engine were rendered ncessary only by the negligence of the defendant company 736 Trial Peactice [Chap. 17 in handling the machine while in their care. It will thus be seen that the condition of the plaintiff's car when it was left with the defendant was material to the issue, not only as bearing upon the value of the car, but as tending to show for what purpose it was left with the defendant and what repairs were ordered by the plaintiff. In order to support his contention that it was in good condition the plaintiff testified that he was a physician in active practice; that he had purchased the car in April, 1907, and had used it continuously in his practice from that time until June 18th, 1907, when he took it to the defendant to have the tire retreaded ; that he never had any difficulty with it ; that it was in good condition when he bought it and was in good condition when he left it with the defendant. On the other hand, the witnesses called by the defendant company testified in effect that the car was badly in need of repair when it was brought to them, and that the repairs to the engine were rendered necessary by its condition when they received it and not to any negligence upon their part. At the trial the plaintiff, after testifying that he had owned and driven the car since April, 1907, further stated that he had purchased it of the Manhattan Storage Com- pany of New York. The newly-discovered evidence is to the effect that in fact the car was bought by the plaintiff on June 14th, 1907 (but four days before it was left at the garage), and that it had never been in his possession before that time; that it was then four years old and was sold as it stood on the floor, without demonstration and without guarantee, and that its value was much less than that stated by the plain- tiff on trial. With respect to this evidence it is sufficient to say that it lias in fact been discovered since the former trial ; that, by the use of reasonable diligence, it could not have been then obtained; that much if not all of it is material to the issue and goes to the merits of the case and is not cumulative. Under these circumstances, the motion for a new trial ought not to be denied. Dundee Manufacuring Co. v. Van Riper, 4 Vroom 152; Kursheedt v. Standard Bleacher^ Co., ante p. 99. Let the rule to show cause b^ made absolute. Sec. 8] New Trials 73? Section 8. Effect of Statutes Enumerating Grounds. ST. LOUIS & SAN FEANCISCO RAILROAD COMPANY V. WERNER. Supreme Court of Kansas. 1904. 70 Kansas, 190. The opinon of the court was delivered by Johnston, C. J. : An action was brought by Emil Wer- ner against the St. Louis & San Francisco Railroad Com- pany to recover damages for an alleged diminution in the value of his property, caused by the construction of a railroad on a city street in front of the property. The railroad company answered that the building of the road in the street was legallj^ and properly done, and that it did not interfere with ingress to, or egress from, the prop- erty, and occasioned the plaintitf no injury. A trial was had, in which the court charged the jury as to the measure of recovery, and, among other things, suggested that if the value of the property was enhanced by the building of the railroad, the increased value might be set off against any injury sustained by reason of the obstruction to the entrance to the property. The jury found that the value of the property was not affected by the building of the rail- road, and a general verdict was given in favor of the de- fendant. Plaintiff moved for a new trial, assigning all the stat- utory grounds, including the one last mentioned in section 306 of the code (Gen. Stat. 1901, § 4754), to-wit: "Error of law occurring at the trial, and excepted to by the partv making the application." The motion was overruled as to all the grounds stated, but because of the instruction authorizing the jury to counterbalance damages suffered with benefits received the court granted a new trial. In disposing of the motion the trial court remarked that there was evidence in the case justifying the giving of the in- struction, if it had been a correct statement of the law, but held that the instruction was not a correct declaration of the law, and granted a new trial for that reason alone. It appears from the record, however, that the instruction T. p.— 47 - 738 Tkial Pkactice [Chap. 17 in question, as weL ^s tlie entire charge, was sjiven to the jury vvithout objection or exception. Can a party sit by and hcTLen to the giving of an instruction without objection or exception, and, after the case has been fully submitted and an adverse verdict returned, obtain a new trial because of the giving of such instruction? We think not. A new trial m«y be allowed only on the grounds specified in the statutes. The giving of an erroneous instruction is an error of law occurring at the trial ; but such error gives no ground for setting aside a verdict unless an exception has been taken to the giving of it. The grounds for a new trial provided for in the code are specific and exclusive. The only ground having any application to the question before us is the eighth one mentioned in section 306 of the code, to wit: "Error of law occurring at the trial, and excepted to by the party making the application." To make such an error available there must be an exception. It has been said that "a party has no abstract, inherent right to a new trial. He has a right because and so far only as the stat- ute gives it to him * * *. If he fails to pursue this mode he loses the benefit of any errors on the trial, and is con- cluded as to all matters occurring at the trial." {Nesbit V. Hines, 17 Kan. 316.) It was held in Sovereign Camp v. Thiehaud, 65 Kan. 332, 69 Pac. 348, that a trial court cannot set aside a ver- dict and grant a new trial arbitrarily and without reason; and, it may be added, it can never be done except for a statutory reason. In PuhlisJiing House v. Heyl, 61 Kan. 634, 60 Pac. 317, it was held that statutory remedies and methods supersede previously existing ones, and, the legis- lature having provided a method for obtaining a new trial, a party desiring one must conform to the prescribed re- quirements. Since the plaintiff took no exception to the instruction given, he is deemed to have acquiesced in it; and, assuming that it was erroneous, the lack of exception made the error unavailable and afforded no ground for set- ting aside the verdict and granting a new trial. {Dar- rance v. Preston, 18 Iowa, 396; Valerius v. Richard, 57 Minn. 443, 59 N. W. 534; Hayne, New Trial & App. <§ § 7, 127.) To overcome this omission jjlaintiff calls attention to a recital in the case made that it contains all the pleadings Sec. 8] New Trials 739 and preceedings, ''together with all the instructions given by the court and the objections made by either party, to- gether with all rulings of the court and all papers filed in said case necessary to present the question raised and enable the supreme court to pass upon one question raised in the record, to wit: The giving by the court of the in- struction complained of by the plaintiff, and for the giving of which a new trial was granted." The recital does not affect the question under consideration. The question whether the giving of the instruction was a ground for a new trial is presented, and assuming that the record con- tains all that it is said to contain, the question remains : Did the giving of an erroneous instruction, without objec- tion or exception, warrant the granting of a new trial ? We think not; and, therefore, the order granting a new trial must be reversed, and the cause remanded with in- structions to enter judgment for the plaintiff in error. All the justices concurring. VALERIUS V. RICHARD. Supreme Court of Minnesota. 1894. 57 Minnesota, 443. Collins, J. At the trial of this cause, at the request of defendants' counsel, the court plainly charged the jury that, if they found a certain fact from the evidence, the defendants could not be held liable upon the note in suit. To this, counsel for plaintiff took no exception, nor was there even a suggestion that it was erroneous. The ver- dict being for defendants, a motion to set it aside, and for a new trial, was made by plaintiff's attorneys, on two grounds, — those specified in 1878, G. ch. 66, § 253, subd. 5th and 7th. Subsequently, and, as stated by the court in its order, solely because there was no evidence which war- ranted that part of the charge referred to above, plaintiff's motion was granted. ********** The majority are of the opinion that, in civil actions, the 740 Trial Practice [Cliap. 17 power of the court to grant new trials is limited to the grounds prescribed in section 253, and that new trials for errors of law can only be granted when an exception has been taken. The statutory grounds for new trials are ex- clusive. Practically, this has oftentimes been held in this court, especially when considering motions made upon the ground that errors of law had occurred upon the trial, as witness the Minnesota cases before referred to. To permit a defeated party to have the benefit of an error of law not excepted to would be giving him a great advantage ; and here we are asked to go further, and allow to a party who made no objection to the giving of the erroneous in- struction, and thereby actually acquiesced in its pertinency and correctness, the benefit of the error. Manifest in- justice would be the result, for, had even a suggestion been made that the court was not justified in this part of the charge, we have no doubt prompt correction would have followed. Our construction of the statute has been placed upon others substantialy the same. See Hayne, New Trials, ch. 1, §7; Id. ch. 16. Order reversed. Buck, J., absent, sick, took no part. Canty, J. I dissent. Where the trial court has mis- stated the law in his charge, or charged propositions of law not applicable to the case, and he is of the opinion that in fact the jury was misled thereby, it is in his discretion to grant a new trial though no exception was taken, if, in his opinion, the taking of an exception would not have caused him to change his mind in time to obviate the mis- take. In such a case the losing party has no standing at all, as a matter of right. It is merely an application for equitable relief, addressed peculiarly to the discretion of the trial court. In New York this is carried so far as to hold that, on review at the general term of the rulings of the judge at the trial, the want of an exception is not necessarily fatal, but the general term may, in its discretion, reverse for er- ror not saved by exception, on the ground that it is not, strictly speaking, exercising appellate jurisdiction, but has all the discretionary powers of the trial court. Baylies. New Trials & App, 125; Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506; Mandeville v. Marvin, 30 Hun. 282; Sec. 8] New Trials 741 Maier v. Eomen, 4 Daly, 168; Lattimer v. Hill, 8 Hun. 171 ; Ackart v. Lansing, 6 Hun. 476. It is also in tlie discretion of the trial court to allow an exception after the jury has retired. St. John v. Kidfl, 26 Cal. 267. If he has power to allow an exception after the proper time to take it, he has power to consider it taken for the jourpose of a new trial. This ground for new trial does not come under 1878, G. S. ch. 66, § 253, subd. 7, "Error in law occurring at the trial and excepted to by the party making the application, ' ' but under the first subdivision of that section, ''Irregularity in the proceedings of the court, jury, referee or prevailing party or any order of the court or referee or abuse of dis- cretion by which the moving party was prevented from having a fair trial." The discretionary power exercised by the court below in this case is one which a trial court, having due regard for the rights of the prevailing party will seldom exercise. It is only when he is satisfied that in fact the particular mistake produced a wrong result and that the failure to except did not prejudice the prevailing party and where he is satisfied that his rulings would have been the same and that nothing would have been done by him or the pre- vailing party in time to obviate the mistake even if an ex- ception had been taken. Even viewed by this strict rule I cannot see that the order granting a new trial was an abuse of discretion, and hold that the order appealed from should be affirmed. Since the above was written the majority opinion has been re-written. It is now admitted that at common law it was in the discretion of the trial court to grant a new trial for errors to which no exception was taken, but it is insisted that by the adoption of the Code this discre- tionary power has been cut off. It has seldom before been held that the discretionary power of a trial court of general jurisdiction has been cut off by the Code. The Code is a mere skeleton, and much of it merely declaratory of the common law. Especially is this true as to its pro- visions regulating practice. We do not look to it for the discretionary powers of the District Court, as we do to the justice of the peace practice act for the discretionary power of that court. On the contrary, it is not unusual to 742 Trial Practice [Chap. 17 look to the great sources of authority on common law and equity practice to ascertain what the discretionary powers of our District Court are. The point is also now made for the first time that the motion for a new trial was not made on the grounds stated in the first sub-division of section 253, but on those stated in the fifth and seventh subdivisions. As to this I will say many able judges, in times past, have often set aside ver- dicts on their own motion, even before the ink was dry on them, and without any motion or grounds of motion be- ing made or stated by the party at all; and the right to do so has hardly been questioned. At common law the trial court had the ])ower to grant a new trial, no matter how in- formal the application for it might be, or how much the moving party had waived his technical rights by failing to take the proper exception, or to put the proper grounds, or any grounds at all, in his motion. When, as in the present case, a formal motion for a new trial is made, stating the grounds, it will not be presumed that it was granted on any grounds except those stated. It must affirmatively appear that it was granted on some other grounds which it does in this case. It is a new doctrine that a trial court of general jurisdiction has no discretion to brush aside technical informalities, and prevent injustice, by granting a new trial. It has always been held that it is in the dis- cretion of the trial court to see that injustice was not done during the progress of a trial, or afterwards, before the entry of judgment, either through its own mistakes or the technical laches of the attorney. To sustain the position of the majority, Ilayne, New Trial, is cited several times. This work is devoted exclusively to the practice as estab- lished by the California Code and decisions, rarely citing any other cases. He cites no case which sustains their position. They cite none, and I am able to find none. On the contrary, the authorities in the Code states agree with the common law on this question. Thus, in Farr v. Fuller, 8 Iowa, 347, the trial court granted a new trial for errors in i'^R charge, not excepted to. The supreme court held it was discretionary. As in this case, the evidence was not returned on appeal, and the appellant claimed that no error appeared in the charge; but the supreme court held that, in favor of the order granting a new trial, it would be pre- Sec. 8] New Teials 743 sumed that, as applied to the evidence, the charge was er- roneous. It is also held in Cheatham v. Roberts, 23 Ark. 651, that it is in the discretion of the trial court to grant a new trial for error not excepted to. The point is also now made that section 254 provides that when the motion for a new trial is made on the fourth, fifth, and seventh subdivisions of section 253, " it is made either on a bill of exceptions or a statement of the case prepared as prescribed in the next section, for any other cause it is made on affidavit," and that, therefore, this by necessary implication cuts off the common-law practice, under which the court often acted on its own knowledge of what took place in its presence during the trial, and granted or denied a new trial without regard to whether or not such knowledge was either supported or contradicted by any such affidavits. If this was purely a statutory proceeding, the position of the majority would be correct, but it is not a mere statutory proceeding. The provision that in some cases a motion for a new trial shall be made on a case or bill of exceptions and in others on affidavit, is simply de- claratory of the common law. Such statutes do not cut off ^ther common-law remedies, unless such other remedies are expressly prohibited. Thus, on the principles laid down by the majority, title 11 of chapter 66, prescribing the practice on application for injunction, and providing only for the temporary writ and the permanent writ, would, by necessary implication, cut off the old equity power to issue a restraining order pending the motion, but the con- trary practice is well established in this state. On the same principle, on an appeal from the clerk on taxation of costs under 1878 G. S. ch. 67, <^ 8, the judge who tried the case could not look into the proceedings on the trial, or beyond the affidavits used on the taxation. But the contrary prac- tice is well established. The judge practically disregards the affidavits on the question of materiality when the wit- nesses were sworn, and acts on his own knowledge of the proceedings had and testimony given on the trial, just as he did at common law. It is unnecessary to multiply illus- trations. The judge who tried the case is not bound, by virtue of the statute, to know as little about the case after trial as the average juror is required to know before it. He is not obliged to stultify himself, and know nothing of 744 Trial Practice [Chap. 17 what he saw or heard on the trial, except what the parties see fit to state to him in affidavits. But the judge's powers and the applicant's rights are, in this respect, very different questions. The moving party not only fails to save his rights for review in the appel- late court, by failing to make them appear of record, and to cover them in his grounds of motion, but he also runs the risk of having his motion denied on technical grounds, merely, by the trial court, which it usually will and ought to do. But notwithstanding this, in furtherance of justice, the trial court may relieve him from his laches, by giving him something which he asked for, but was not in a posi- tion to demand as of right. And when it affirmatively ap- pears that the court, in granting him a new trial, has, in furtherance of justice, intentionally relieved him from his technical laches and omissions, it is merely a question whether or not, on common-law principles, it has abused its discretion. In this case it seems to me that it has not. BOTTINEAU LAND & LOAN COMPANY V. HINTZE. Supreme Court of loiva. 1911. 150 Iowa, 646. Action at law on a promissory note. After both parties had offered their evidence and rested plaintiff moved for a directed verdict on the ground that there was a failure of proof of the matters pleaded in defense to the note. This motion was sustained, and a directed verdict returned for plaintiff for the amount of its demand. Thereafter and within three days defendant filed a motion for a new trial, assigning as reasons therefor errors of the court in hold- ing there was no evidence to sustain the defense pleaded, as well as in numerous other rulings with reference to the pleadings and the admission and rejection of evidence. The trial court, after due consideration, sustained the mo- tion, set aside the verdict, and ordered a new trial, ac- companying tlio ruling by a written statement that some of the material evidence had escaped its attention until Sec. 8] New Trials 745 the same had been transcribed after the verdict was re- turned, and that, upon a re-examination of the testimony, it was of the opinion that the issues should have been sub- mitted to the jury. From this ruling, the plaintiff appeals. — Ajjirmed. Weaver, J. * * * 1. Counsel for plaintiff make the point that a motion for a new trial will not lie after a directed verdict of the jury has been received, and that to sustain such a motion is reversible error, even though the order directing the verdict was erroneously made. A ''new trial" is defined by Code, section 3755, to be a re-examination in the same court of an issue of fact or some part or portion thereof after a verdict by the jury, report of referee, or a decis- ion of the court. The objection raised by the appellant seems to be grounded in the thought that a directed verdict is not a ''verdict of a jury" within the meaning of this statute, and that "decisions by the court" which may be questioned in motions for a new trial include only such as are made by a court in the trial of issues without a jury. In other words it is argued that an error in directing a verdict can be corrected only upon appeal. We think this contention requires an altogether too narrow construction of the statute, and tliat the establishment of such a rule would tend to prolong litigation, and increase its hazard and uncertainty. There is nothing inhering in our system of procedure and practice which forbids the exercise by a trial court of power to correct its own error where the mis- take is discovered and the correction made at the same term, and while the parties and the subject-matter of con- troversy are still within its jurisdiction. Chapman v. Allen, Morris, 23; Railroad Co. v. Estes, 71 Iowa, 605; Brace v. Grady, 36 Iowa, 352. The statute pro^^des for new trials after a verdict by a jury. It does not attempt to classify verdicts or draw any distinction between those returned by direction of the court and those which are not, and we see nothing in the nature of the case to compel the court to ingraft such an exception upon the rule as laid do\\Ti by the Legislature. Wlien the court submits an issue to a jury with erroneous instructions that as a m fitter of law plaintiff has failed to make a case or that defendant has failed to sustain his defense, thereby com- 746 Trial Peactice [Chap. 17 pelling a particular verdict, no good reason exists why that error may not be taken advantage of on motion for a new trial precisely the same as if the verdict had been actually or presumably affected by the erroneous exclusion of ma- terial evidence properly offered on the trial. The cases cited by appellant might be considered in point were we to recognize the distinction which counsel draw between verdicts generally and directed verdicts, but this we can not do, and we need not stop to consider what would be the proper practice in the absence of statutory regulation. It has frequently been held that power to grant new trials is inherent in the court, and that statutes such as ours do not abrogate or limit judicial authority in that respect. See cases collected in 29 Cyc. 722. Were it necessary to look beyond the provisions of our own statute and consult precedents from other states, they appear to be in sub- stantial accord with the conclusion here announced. Bear- ing in that direction, see Railroad Co. v. Goodrich, 38 Kan. 224 (16 Pac. 439) ; Chambers v. Granfzon, 7 Bosw. (N. Y.) 414; Hinote v. Simpson, 17 Fla. 444; 29 Cyc. 752. There was no reversible error in setting aside the di- rected verdict, and the order appealed from is affirmed. Section 9. On Court's Own Motion. FORT WAYNE & BELLE ISLE RAILWAY COMPANY V. WAYNE CIRCUIT JUDGE. Supreme Court of Michigan. 1896. 110 Michigan, 173. Montgomery, J. One Emma L. Long brought an action against the relator for personal injury, and, on a trial before a jury, recovered a verdict of $800. The respondent, deeming this award insufficient, set aside the verdict, and ordered a new trial. The relator asks for a writ of man- damus directing that this order be set aside. The counsel for relator concede that the court might, for Sec. 9] New Trials 747 an error of its own commission on the trial, order a new trial on its own motion, but contend that the court has no such control over verdicts of juries, and can only vacate such verdicts on application of one of the parties. We think the practice in this State has been otherwise, from its earliest history, and although the exercise of this power has been very rare, there have been instances of it. That these instances must, of necessity, be infrequent, naturally results from the recognized impropriety of a trial judge interposing his own judgment, as against that of a jury, except in a clear case. But in such case the court possesses the power, at common law, to grant a new trial on its own motion; and in our opinion the power is not limited to cases where the error is that of the court, or where there is misconduct of the jury, as contended by relator's coun- sel, and as appears to have been held by the supreme court of Texas in Lloyd v. Brinck, 35 Tex. 1. As sustaining the broader power, as a common-law power, see 2 Thomp. Trials, § 2711, and cases cited, — particularly. State v. Adams, 84 Mo. 313. Having determined that Judge Donovan had the power to set aside this verdict, it follows that his discretion must control his action, except in a case of clear abuse of such discretion, which we do not find in this case. The writ will be denied. Hooker and Moore, JJ., concurred. Long, C. J., did not sit. Grant, J., took no part. HENSLEY V. DAVIDSON BROTHERS COMPANY. Supreme Court of loiva. 1907. 135 Iowa, 106. Ladd, J. The law of the case was settled on the former appeal (103 N. W. 975) ; and, whether right or wrong, that ruling in so far as applicable to this case is a part of the irrevocable past. That adjudication is binding on the parties, and it was the imperative duty of the district court to follow it. The evidence was substantiallv the 748 Tkial Practice [Chap. 17 same as that introduced on the former trial; the only dif- ference being that jDlaintiff testified that she saw the de- fendant's team before getting out of the wagon to go to the depot, concerning which no inquiry had been made before, and some variance in McDaniel's testimony bear- ing on his credibility as a witness. The records differ in no important particulars, such as might be persuasive that a different conclusion with reference to the submission of the cause to the jury should be reached. No objections or rulings of any kind prior to the sub- mission of the cause to the jury are to be found in the rec- ord, and no exceptions to the instructions were saved. Nevertheless, when the jury returned into court with a verdict for the plaintiff, the court ''immediately upon reading said verdict, on its own motion," set it aside. Plad this been done to correct some ruling in the course of the trial not necessary to challenge by motion in order to be renewed, a different question would be pre- sented; but nothing previous had occurred to which the able counsel on either side had thought it worth while to save an exception. The ruling must have been owing to some supposed error lurking in the verdict which might have furnished the basis of a motion for new trial by the party aggrieved. An omission to so raise it would have been a waiver. For all that appears from the record, such might have been defendant's purpose. Our statute enum- erates the grounds on which new trials shall be granted on application of the aggrieved party. Section 3755, Code. But there is no provision in the Code relating to orders of this kind on the court's own motion. That such right ex- ists, however, is indisputable. It is one of the inherent powers of the court essential to the administration of jus- tice. In Rex V. Goiigli, 2 Doug. 791, Lord Mansfield de- clared that, even though too late for a motion, if enough appeared, the court could grant a new trial, and in Rex v. Atkinson, 5 Term R. 437, note, is quoted as saying that, though too late for a motion, "if the court conceive a doubt that justice is not done, it is never too late to grant a new trial." In Rex v. Bolt, 5 Term R. 436, Lord Kenyon, said he well remembered Rex v. Gough, "where the objection to the verdict was taken by the court themselves," and Buller J., observed, in concurring, that "after four days Sec. 9] New Trials 749 the party could not be heard on motion for new trial, but only in arrest of judgment; but if, in the course of that ad- dress, it incidentally appear that justice has not been done, the court will interpose of themselves." In Weber V. Kirkendall, 44 Neb. 766 (63 N. W. 35), it is said that the power of courts of general jurisdiction, in the correction of errors committed by them, '*is exercised, not alone on account of their solicitude for the rights of litigants but also in justice to themselves as instruments provided for the impartial administration of the law." And such is the view generally entertained by the courts in this coun- try. Allen V. Wheeler, 54 Iowa, 628; Ellis v. Gmshurg, 163 Mass. 143 (39 N. E. 800); Standard Milling Co. v. White Line Central Transit Co., 122 Mo. 258 (26 S. W. 704) ; State ex rel. Henderson v. McCrea, 40 La. Ann. 20 (3 South. 380) ; Bank of Willmer v. Laivler, 78 Minn. 135 (80 N. W. 868) ; Com. v. Gabor, 209 Pa. 201 (58 Atl. 278) ; Thompson, Trials, 2411; State ex rel. Brainerd v. Adams, 84 Mo. 310. In the last case the court, in upholding the power, per- tinently inquired: "If the court commits a palpable error in an instruction to the jury, or witnesses misconduct of members of the jury, which, on motion, would authorize it to set aside the verdict, shall it on account of the ignor- ance or timidity of the aggrieved party which prevents him from moving in the matter, render an unjust judgment on the verdict If the jury find a verdict palpably against the law as declared by the court, is it powerless to maintain its own dignity and self-respect, unless some one who feels aggrieved shall move in the matter? In several of the States the grounds on which the courts may act on their own motion in granting a trial are speci- fied by statute construed by the courts to exclude all others!! Townley v. Adams] 118 Cal. 382 (50 Pac. 550) ; Clement v. Barnes, 6 S. D. 483 (61 N. W. 1126) ; State ex rel. Brainerd v. Adams, supra. Wliere the authority is found in the statutes the consensus of opinion seems to be that the ruling must be entered promptly upon the return of the verdict. Clements v. Barnes, supra; Gould v. Ele- vator Co., 2 N. D. 216 (50 N. W. 969). See Long v. King- fisher Co., 5 Old. 128 (47 Pac. 1063) ; 14 Ency. P. & P. 932. And several courts have indicated without deciding that 750 Trial Practice [Chap. 17 the order must be entered within the time within which a motion for new trial must be filed. That a motion there- for is pending will not deprive the court of the power to order a new trial on grounds not raised therein. This must necessarily be so, for one of the controlling reasons for the existence of the power is to enable the court to guard the rights of parties, who, for some cause, have proven unable to jDrotect themselves, and another to en- able the court to correct its errors rather than wait for this to be done by the Appellate Court. But resort to this power will rarely be required, and it should be exer- cised with great caution and in aggravated cases only. Ample provisions are to be found in the Code of Pro- cedure for the protection of litigants on their own appli- cation, and for the court to interpose, without affording the defeated party an opportunity to elect, whether he will accept the result, lays it open to the suspicion of partisan- ship. It is preferable to leave something to the attor- neys engaged in the litigation. Especially was this true in the case at bar, as judgment therein for the defendant on a directed verdict had been reversed by this court, and the evidence held to be such as to require that the issues be submitted to the jury. Of what force is the opinion of this court that a case is made out for the jury if the district court can evade the ruling by setting aside the verdict when returned, and even then with the scant consideration evidenced by not waiting for objection by the losing party? If this can be done once, it may be repeated, and through orders granting new trials the effect of the decision entirely obviated. The rule which precludes this court from reviewing, revising, or re- versing a decision on a former appeal is equally binding on the district court. McFall v. Raihvay, 104 Iowa, 50; Bahcoch v. Railway, 72 Iowa, 199; Garretson v. Ins. Co., 92 Iowa, 295 ; Burlington, Cedar Rapids (& N. R. Co. v. Dey, 89 Iowa, 24. If, then, a new trial was granted on the same ground on which a verdict for defendant was directed on the former trial, tlie ruling cannot be sustained. Upon great consid- eration this court held in Meyer v. Houch, 85 Iowa, 319, that the trial judge should direct a verdict whenever, con- sidering all the evidence, it would be his duty to set aside Sec. 10] New Trials 751 the verdict if returned in favor of the party upon whom the burden of proof rested. The converse of this prop- osition necessarily follows ; that is, a new trial ought not to be granted when the evidence in favor of the party hav- ing the burden of proof is such that the cause should be submitted to the jury. On the former appeal we held that the cause should have been submitted to the jury, and this in effect was an adjudication that a verdict, if re- turned for plaintiff, would have such support in the evi- dence as to preclude the granting of a new trial on that ground alone. Any question of presumption ordinarily indulged in favor of the ruling of the trial judge or discre- tion in the matter of granting new trials is obviated by the record. The record is conclusively presumed to con- tain everything essential to the determination of all points raised in argument. McGilUvary Bros. v. Case, 107 Iowa, 17 ; King v. Hart, 110 Iowa, 618. The order is reversed and the cause remanded for judg- ment on the verdict. — Reversed. Section 10. Discretion of Court. LOFTUS V. METROPOLITAN STREET RAILWAY COMPANY. Supreme Court of Missouri. 1909. 220 Missouri, 470. Graves, J. * * * ********** * * * After verdict was returned the defendant filed its motions for new trial and in arrest of judgment, which motions were by the court sustained by an order of record in this language: ''Now on this day it is ordered by the court that the motion for a new trial and motion in arrest of judgment be and the same are hereby sustained because the court erred in giving instruction *No. One P.' to which the plaintiff excepts." 752 Trial Practice [Chap. 17 11. The further contention is made that this court sliould not disturb the discretion exercised by the trial court in granting the new trial. In other words, that the granting of a new trial rests within the sound discretion of the trial court. In the broad sense, the granting of a new trial does rest within the sound discretion of the trial judge, and this discretion, like all judicial discretions, should not be disturbed when properly exercised. We are cited to the recent cases of Rodan v. Railroad, 207 Mo. 1. c. 407, and Seeger v. Silver Co., 193 Mo. 1. c. 407, as stating correct rules upon the question. In the latter case. Judge Marshall said: "The rule is now well settled in this State that this court will not re- verse the action of a trial court in granting one new trial, unless the .case is such that no verdict in favor of the party to whom the new trial is thus granted, could, under any circumstances, be permitted to stand." And in the former. Judge Lamm said: "In the first place, in limine, it must be assumed as a commonplace of the law, arising to the level of an axiom, that the granting of a new trial rests within the sound discretion of the trial court; and its action in that behalf will not be disturbed on appeal unless it appears that its discretionary power was abused, i, e., exercised in an arbitrary or improvident manner. (R. S. 1899, sec. 800; and see first note under that section, Ann. Stat. 1906, 761, where the authorities are gathered.) " These announcements must be taken in the light of the facts of the cases. In the Seeger case the trial court had sustained a demurrer to plaintiff's testimony and thereby forced a nonsuit. Motion was made to set aside the non- suit and that motion sustained by the court nisi, from which order the defendant appealed. Upon such an ap- peal Judge Marshall used the language above quoted. It must be noted tliat the sole question before the trial court and this court was the sufficiency of the evidence to make a case for plaintiff. At first blush, the trial court thought not, but upon considering the motion to set aside the non- suit reached a different conclusion. The discretion exer- cised then was one as to the facts, and not one purely and simply of law. So, too, in the Rodan case. The trial court concluded, upon motion for new trial filed by defend- Sec. 10] New Trials 753 ant, that it had erred in giving a certain instruction, which instruction should not have been given in view of certain facts shown in the trial. In other words, the court had in-' structed the jury that in the absence of evidence that the deceased did not look and listen for an approaching car, then the jury were at liberty to presume that he did look and listen. A witness for plaintiff, and the only eye-wit- ness, had testified in effect that he saw deceased leave the sidewalk and go on across to the railroad track, paying no attention to the approaching car. Judge Lamm's re- marks were induced by this state of affairs. The ques- tion before the trial court, and upon which the judicial dis- cretion was exercised, was a mixed question of law and fact. The trial court concluded that in view of the facts testified to by this witness there was positive testimou}^ that deceased did not look or listen before going upon the railroad track, and therefore there was no place for an in- struction upon the ground of presumption. So that in this case the discretion was really exercised as to the facts of the case. Both of those cases announce the proper rule in cases where judicial discretion has been exercised as to the facts and the weighing of the evidence as to the facts. In such cases we will not disturb such discretion in a case wherein there is sufficient evidence to sustain a verdict in favor of the party for whom such discretion has been exercised. But these cases are not this case. Upon the facts of the case at bar a verdict for either party could be sustained, but the discretion of the trial judge was not directed to the facts, so far as the question now before us is concerned. He was passing judgment upon a clear ques- tion of law, and we have concluded that his judgment on that question was erroneous. Wlien the judicial act is direct- ed solely to a question of law and the act is erroneous, it does not fall within the rule of the exercise of sound, judicial discretion. There is no discretion as to the law of a case. Nor can there be an exercise of a sound discretion as to the law of a case. So that when we speak of the granting of a new trial being within the sound discretion of the trial judge, we have no reference to a case where the new trial is granted solely upon the ground that the law has been erroneously given, when in fact it has been properly given. »******♦»♦ T. P.— 48 754 Trial Practice [Chap. 17 YORK V. STILES. Supreme Court of Rhode Island. 1899. 21 Rhode Island, 225. Assumpsit on book account. The facts are fully stated in the opinion. Heard on petition of defendant for a new trial. New trial denied. Tillinghast, J. We think the ancient maximn ^^de minimis non curat Ze. pealed from the order. Counsel for appellant attacked the power of the court to make such an order, and contended that if the court thought the verdict excessive its duty was to grant a new trial. This court, speaking through McFarland, J., after ad- mitting that the position of appellant was a strong one, added: ''But whatever might be considered the weight of reason and foreign authority on the question above stated, if it were it .9 integra here, the right of a court to do what is complained of in the case at bar is too firmly es- Sec. 10] New Trials 761 tablished in this state by a long line of decisions to be now questioned." The principle involved in that case is the same as that underlying the present one, and goes to the power of the court to impose terms in granting and refusing motions for new trials. A review of the record fails to disclose any basis for con- cluding that there was an abuse of discretion in imposing terms as a condition to granting the motion for a new trial. It follows that the order appealed from by defendant should be upheld. COHEN V. KRULEWITCH. Appellate Division of the Supreme Court of Neiv York. 1902. 77 Appellate Division, 126. Ingraham, J.: The action was brought to recover commissions for pro- curing a purchaser of certain property belonging to the defendant. The plaintiff testified that he was employed by the defendant to procure a purchaser of this property; that he procured a purchaser therefor upon terms satis- factory to the defendant; that the defendant subsequently refused to complete the purchase and thereby the plain- tiff became entitled to his commissions. The defendant denied the emplo}Tnent ; denied that the plaintiff ever pro- cured a purchaser of the property, or that he ever prom- ised to pay him any commissions. The case was sub- mitted to the jury who found a verdict for the plaintiff, whereupon the court, on motion, set aside the verdict and ordered a new trial upon the ground that there was no evi- dence that the purchaser was ever ready to sign the con- tract to purchase the defendant's property and no evidence that the contract between the defendant and the purchaser was ever in fact prepared, and, therefore, no evidence that the plaintiff had done what he contracted to do — obtain a 762 Trial Peactice [Chap. 17 person who was ready and willing to make an exchange with the defendant for the property that was satisfactory to the defendant, and also upon the ground that the weight of evidence was against the plaintiff, and as the plaintiff had the burden of proof the jury should have found for the defendant in the case and not for the plaintiff. We think the court was entirely justified in setting aside the verdict for the reason assigned by the trial judge, and that the jury were not justified upon the evidence in find- ing a verdict for the plaintiff. The plaintiff insists, how- ever, that the court should have imposed costs upon the defendant as a condition for granting the motion to set aside the verdict. Where a motion is made to set aside a verdict upon the ground that the plaintiff has failed to prove his case, there is no rule that requires that costs should be imposed as a condition for granting a new trial. In such a case a new trial is not granted as a matter of discretion, but as a matter of right, and we do not think the court would then be justified in imposing costs as a condition for granting a new trial. Wliile it is proper for the court to impose costs upon granting a new trial where there was a proper case for the submission of the question to the jury, but where for some reason the court is satis- fied that the verdict was not a fair determination of the question submitted to them or that justice requires that the case should be submitted to another jury, this is not such a case. Upon this record we think the court below was required to grant a new trial without the imposition of any costs upon the defendant. It follows that the order appealed from should be af- firmed, with costs. Van Brunt, P. J., O'Brien and McLaughlin, JJ., con- curred; Hatch, J., dissented. Order affirmed, with costs. Sec. 10] New Trials 763 STAUFFER V. READING. Supreme Court of Pennsylvania. 1903. 206 Pennsylvania State, 479. Appeal from jury of view. Before Endlich, J. From the record it appeared that the city of Reading ap- propriated one and one-half acres of plaintiff's land for the purpose of a boulevard. The boulevard was so lo- cated as to cut off three acres of plaintiff's land to the north, leaving about seven acres to the south of the boule- vard. Verdict for plaintiff for $3,295.83. On a rule for a new trial the court made the following order: November 10, 1902. The rule to show cause is dis- charged, on condition that the plaintiff within thirty days from the date of entry of this order convey to the defend- ant, for park purposes, the tract h^ng north of the boule- ^'ard; otherwise, upon the expiration of said period, the rule to become absolute. Plaintiff appealed. Opinion by Mr. Justice Mitchell, July 9, 1903: The granting or refusing of a new trial except for causes like errors of law by the judge or misconduct of the jury, where it may be matter of right, is an exercise of judicial discretion by the court in furtherance of right and justice according to the circumstances of the case. Hence it is well settled that the court may impose terms upon either or both of the parties as conditions of the grant or refusal, and the latitude allowed to the discretion of the court to this end is very great. As each case must be determined on its own circumstances the causes cannot all be specified or enumerated before hand, but in general as is said by the most prominent writer on the subject, "it may be safely asserted that no case can occur presenting circumstances timely addressed to the discretion of the court, in which the rights of the parties may not be fully protected by the 764 Trial Practice [Chap. 17 imposition of conditions meeting the exigency:" Graham on New Trials, 610. Large as the discretion is, however, it is a judicial discre- tion and must be used with reference to the rights involved in the controversy. The conditions imposed therefore must have some direct relation to the issue between the parties in the case. The condition complained of in the present proceeding transgresses this limit. The conveyance of the three acres was not asked for by the city nor offered by the ap- pellant. Whatever its merits as a just or wise settlement between the parties, it was not apparently desired by either, and was certainly no part of the issue which they brought into court to have decided. In imposing it as a condition of the refusal of a new trial therefore, the court exceeded its discretionary authority. The condition was erroneous also from another point of view as tending to deprive appellant of his property in violation of his right to have a jury pass upon its value. In this respect the case goes further than LeJir v. Brod- heck, 192 Pa. 535, where the jury having found a verdict for defendant contrary to the instructions of the judge, as to part of the goods sued for, the court directed the ac- ceptance of an offer by the defendant to pay a sum less than plaintiff claimed, and on refusal of plaintiff to accept, refused a new trial. It was held that this was error. In the opinion our Brother Dean said: ''The ])laintiff claimed that the value of her goods wrongfully seized and sold was $335. And whether this was the value or not, she had offered evidence tending to establish it as the value. As a suitor under the law she had a right to the opinion of the jury on the evidence; and the court at the trial thought so too. It however now directs her arbi- trarily to strike from her claim $85.00 and as a penalty for refusal in effect says she shall have nothing." See also Bradwdl v. Pittsburg, etc., By. Co., 139 Pa. 404. Judgment reversed, and record remitted with directions to reinstate the rule for new trial and proceed to dispose of it according to law. Sec. lOJ New Tkials 765 GILA VALLEY, GLOBE & NORTHERN RAILWAY COMPANY V. HALL. Supreme Court of the Territory of Arizona. 1911. 13 Arizona, 270. Campbell, J. Appellee was in the employ of appel- lant as chainman. On April 23, 1907, he was engaged with another emploj^ee, named Ryan, in measuring distances, locating mile-posts on appellant's line of railway. For that purpose they used a three-wheeled velocipede fur- nished by appellant. This velocipede was of the kind or- dinarily used in work of this character, with a gasoline engine for motive power. It had two wheels on the right- hand side, over which was the engine, and a seat for the use of the operator, and a seat in front for another per- son. The third wheel was a small wheel on the left-hand side, nearly opposite the front wheel on the right-hand side, and fastened to the machine by a bar extending across the track. On the day mentioned, Hall and Ryan were upon this velocipede on plaintiff's line of railway, Rvan operating the mahcine and Hall sitting in front. While the velocipede was going at a speed of from eight to twelve miles an hour, it suddenly left the track, going to the left, the side on which was situated the one small wheel. Hall was thrown in front of it and run over, sus- taining severe in.iuries. This action was brought against the railroad company to recover damages for the injuries so received, it being alleged that the flange on the third 6r small wliool was worn and cracked, and that by reason of such condition the machine left the track, and that the company was neg]i2"ent in furnishing such velocipede. Ap- pellant answered, denying the negligence alleged, pleading contributory negligence, and that Hall knew^ or might have known the condition of the velocipede and assumed the risk of the in.iuries resulting from the alleged defect. The jury returned a verdict for $10,000. A motion for a new- trial was made, and prior to its determination Hall volun- tarily remitted $5,000 from the amount of the verdict. Thereafter, the court denied the motion for a new trial 766 Tkiai, Practice [Chap. 17 and entered judgment in favor of the plaintiif for $5,000 and costs. From this judgment and from the order deny- ing the motion for new trial, the railway company appeals. ********** The remaining important question in the case is whether the court erred in rendering judgment for the amount of the verdict less the sum remitted by the appellee. It is insisted by appellant that the court should have granted a new trial for the reason that it is beyond the power of a court to permit a remittitur where the damages are un- liquidated and the verdict excessive. The question has heretofore been before this court in two cases. Southern racific Co. V. Tomlinson, 4 Ariz. 126, 33 Pac. 710, was an action to recover damages for death by wrongful act, un- der a statute permitting the jury "to give such damages as they may think proportioned to the injuries resulting from said death." A verdict for $50,000 was returned, from the which the plaintiff remitted $31,998, and judg- ment was entered for the remainder. The power of the trial court to permit the remittitur was questioned, but it was held: ''A trial court has the power, where excessive damages have been allowed by the jury, and where the mo- tion to set aside the verdict is based upon this ground, to make a remission a condition precedent to overruling the motion. The exercise of this power rests in the sound discretion of the court. This doctrine is affirmed in the case of Cattle Co. v. Mann, 130 U. S. 74, 9 Sup. Ct. 458, 32 L. Ed. 854; also in Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755. Of course, if it is ap- parent to the trial court that the verdict was the result of passion of prejudice, a remittitur should not be allowed, but the verdict should be set aside. In passing upon this question, the court should not look alone to the amount of damages awarded, but to the whole case, to determine the existence of passion or prejudice, and to determine how far such passion or prejudice may have operated in in- fluencing the finding of any verdict against the defendant. AVlicn the circumstances, as they may appear to the trial court, indicate that the jury deliberately disregarded the instructions of the court, or the facts of the case, a re- mittitur should not be allowed, but a new trial should be granted. If they do not so indicate, and the plaintiff vol Sec. 10] New Tkials 767 imtarily remits so much of the damages as may appear to he excessive, the court, in its discretion, may allow the re- mission and enter judgment accordingly." In Southern Pacific Co. v. Fitchett, 9 Ariz. 128, 80 Pac. 359, the verdict was for $1,000 for ''injuries to feelings," from which the plaintiff, upon the suggestion of the trial court, remitted $600. This court held that it was apparent that the jury was influenced by passion or prejudice, and that therefore a new trial should have been granted. We further sought to distinguish the facts in that case from the Tomlinson case, suggesting that in the latter the damages were sus- ceptible of accurate computation from the evidence. We are not now prepared to adhere to the views so expressed. Both are cases of unliquidated damages. In the one case not less than the other, the jury's verdict represents the damages "proportioned to the injuries resulting" in the opinion of the jury, based upon evidence that affords no basis for exact computation. If there is a difference, it is one of degree rather than one of kind. There is au- thority for the position that in no case of unliquidated ^damages should the court permit a remission where the verdict is excessive, without the consent of the defendant, but as we now view it, the great weight of authority sup- ports the practice. Northern Pacific R. R. Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755; Arkansas Cat- tle Co. V. Mann, 130 U. S. 69, 9 Sup. Ct. 458, 32 L. Ed. 854; Kennon v. Gilmer, 131 U. S. 22, 9 Sup. Ct. 696, 33 L. Ed. 110; 29 Cyc. 1022, 1023, and cases cited. It is argued that to permit a remittitur, or to require it as a condiiton of refusing a new trial, is to substitute the court's judgment for that of a jury, to the latter of which the defendant is entitled. But it is to the jury's judg- ment that defendants object when they appeal to the court for new trials on the ground of excessive verdicts. The trial court has undoubted power to determine whether the verdicts is or is not excessive, and in considering the ques- tion usually determines in its o-wn mind the maximum amount for which a verdict could with propriety be per- mitted to stand. AVliere there has been no error of law committed which would require a re-trial, and it ap- pears that the excessive verdict has resulted from too lib- eral views as to the damages sustained, rather than from 768 Trial Practice [Chap. 17 prejudice or passion, to permit a remission of tlie excess, instead of putting the parties to the expense of a new trial, promotes justice and puts an end to the litigation. Of course, il it appears that the verdict is tainted by preju- dice or passion, and does not represent the dispassionate judgment of the jury upon the question of the right of the plaintiff to recover, a new trial should be granted. But we think that the trial court is in a better position to de- termine whether the verdict is so tainted than is this court, and that unless it clearly appears from the record that the excessive verdict resulted from prejudice or passion, rather than from that liberality which jurors sometimes exercise in cases which appeal to men's sympathies, we should accept the trial court's determination. The trial court in this case has determined that the jury was not in- fluenced bv passion or prejudice, and we see no reason for not accepting its conclusion. Other rulings of the court are assigned as error and have received our consideration, but thev are not of sufficient importance to warrant discussion here. We find no re- versible error in the record, and affirm the judgment of the district court. Kent, C. J., and Lewis and Doe, JJ., concur. Section 11. Notice of Motion. HANSEN V. FISH. Supreme Court of Wisconsin. 1871, 27 Wisconsin, 535. Lyon, J. * * * The action was tried at the December term, 1869, of that court, and the plaintiff had a verdict. The verdict was re- turned on the 15th day of that montli, and immediately the attorney for the defendants, in the absence of the attorney for the plaintiff, made a motion orally for a new trial upon the minutes of the judge. This motion was not entered in the minutes of the clerk at the time it was made. On Sec. 11] New Teials 760 the return of the attorney for the plaintiff into court soon after, the judge informed him that such motion had been made. However, the attorney for the plaintiff, under- standing that the motion was not to be entertained, remit- ted a part of the verdict, and procured the judge to sign an order for judgment for the residue thereof. The judge did not understand that such motion was not to be pressed or entertained, and signed the order for judgment inadver- tently. The counsel for plaintiff proceeded to give notice of the adjustment of tlie costs, had the same adjusted, and, on the 22d day of December, perfected the judgment and left the court. On the next day, December 23d, the court, in the due course of business, heard the motion for a new trial made on the 15th, no one appearing thereon for the plain- tiff, and after due consideration and on the same day granted the motion. At the next term of the court the plaintiff moved the court, on due notice, to set aside and vacate the order of December 23d, granting a new trial; and the court denied the motion, and an order was duly entered to that effect. From this last mentioned order the plaintiff appeals. The principal question presented by this appeal is, whether the opposite party is entitled to formal notice of a motion made upon the minutes of the judge to set aside a verdict, or a verdict and judgment, if judgment has been entered, and for a new trial. Such motions must be made at the same term at which the cause is tried. R. S. ch. 132, sec. 16. "A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact." Sec. 5 of the same chap. This judicial examination of the issues is not by the jury alone. The judge has something to do with it. Hence such examination is not complete when the jury have returned a verdict. It is then for the judge to say whether they have decided correctly, and if he finds upon *'an examination of the is- sues" that they have not, or if he finds that his rulings dur- ing the trial have been wrong, on a motion for that purpose founded on his minutes, and made at the same term, he will set aside such erroneous verdict and grant a new trial. It seems quite clear to my mind, that such motion and the decision thereof is a part of the trial, and is covered by T. P.— 49 ' 770 Trial Practice [Chap. 17 the notice of trial. This is so of all the usual motions which may be made in progress of a trial intermediate the verdict and the judgment, such as motions for stay of pro- ceedings after verdict and motions for judgment, which may involve to some extent an examination of the issues. I do not understand that there is any law or rule of court which requires notice to be given of such motions when they are made at the same term at which the cause is tried. And I think a motion for a new trial on the minutes of the judge is of the same character. In practice I never knew a formal written notice of such motion to be given. They are usually made orally, decided by the court, and the mo- tion and order granting or denying it entered in the min- utes by the clerk. In the ninth circuit it is not the prac- tice to hear argument upon such motions, except in special cases the judge indicates a desire that they be argued. So far as I know, this practice prevails to a greater or less ex- tent throughout the state, and I think has its origin in the generally received opinion of the courts and the bar, that these motions and the decision of them are parts of the trial, and do not require any formal notice to the adverse party, but are covered by the notice of trial. * * * We find no error in the proceedings of the circuit court, and are therefore of the opinion that the order appealed from should be affirmed. By the Court. — Order affirmed. BOAEMAN V. HINCKLEY. Supreme Court of Washington. 1897. 17 Washington, 126. The opinion of the court was delivered by Reavis, J.— Action by plaintiff, respondent here, against defendant for damages for breach of contract. Verdict of jury for defendant. Within two days after rendition of the verdict the plaintiff filed and served on the defendant a motion for a new trial, specifying the grounds relied up- on in the motion. The court, upon hearing the motion, Sec. 11] New Trials 771 granted a new trial, from which order the defendant ap- peals. The first contention of appellant is that no notice of in- tention to move for a new trial was filed within two days after rendition of the verdict, as required by the statute (Code, Proc, <§. 404), but the motion itself specifying the grounds assigned for a new trial was filed and served on the defendant within the time required by statute. The cases cited by appellant from California and Montana are inapplicable. In those cases, either no notice or motion was filed within the time required by statute, or else the specifications of the reasons relied on for asking a new trial were not stated. The courts usually construe the form of a notice fairly. The motion for a new trial filed by plaintiff in this case fully advised the defendant of plaintiff's intention to move for a new trial, and specified the grounds. The motion itself here fulfills the function of the notice required by the statute. The power to grant a new trial by the court hearing the cause is one of discre- tion, and the statute making the order appealable has not changed the established principles controlling the granting or refusal of a new trial. Only abuse of such discretion will be reviewed. We perceive no abuse of its discretion by the superior court in the order made, and its order i» affirmed. Scott, C. J., and Anders, Dunbar and Gordon, JJ., con- cur. ANDEKSON V. FIRST NATIONAL BANK OF GRAND FORKS. Supreme Court of North Dakota. 1895. 5 North Dakota, 80. Corliss, J. * * * * # It was urged on the argument that the order denying the motion for a new trial should be affirmed, for the rea- son that it appears that the notice of intention to move for 772 Teial Practice [Chap. 17 a new trial was not served within the statutory time. But an examination of the record satisfies us that the time in which to serve such motion was extended by the coart, and that the notice was served within the time as so extended. Nor do we think there is any force in the contention that the paper so served was not a notice of intention. It is true that it was in bad form, in that it embodied a notice, not only that plaintiff intended to move for a new trial on the grounds therein stated on a statement of the case, but that he would bring his motion for such new trial on to a hearing at a specified time and place. The notice of in- tention and the notice of motion are two distinct and ut- terly different notices, and it is not good practice to em- brace both elements in one paper. Sections 5090, 5092, Comp. Laws. The notice of intention should not state when and where the motion for a new trial will be heard. As a general rule, the person who desires to make such mo- tion is not in position to notice his motion for a hearing at the time he serves his notice of intention, for it often hap- pens that at that time the bill or statement has not been settled. The order is reversed, and a new trial is granted. All concur. KRAKOWER V. DAVIS. Supreme Court of Neiv York, Appellate Term. 1897. 20 Miscellaneous, 350. BiscHOFF, J. The plaintiff's claim was for commissions earned in a transaction involving the sale of certain real estate, owned by the defendants as tenants in common, and tlie trial resulted in a verdict in his favor ''for one-eighth of the commission claimed." This verdict was set aside, at the time of its rendition, and a now trial was ordered, from wliich order the defend- ant Levy, the sole litigating defendant, appeals. The first objection which the appellant raises to the va- Sec. 11] New Trials 773 lidity of the order is based upon the fact that no notice of the motion was given, the order having been made directly upon the rendition of the verdict. The statute provides (Laws 1896, chap. 748): ''Notice of such motion of not less than five days nor more than eight days shall be given to the adverse party or his attor- ney, within five days after the rendition of the verdict, or the entry of the judgment," and it is contended that the justice was without power to make the order in question be- cause such notice had not been given. This statutory requirement of notice was for the adverse party's benefit only, and so could be waived by him (Re Cooper, 93 N. Y. 507), and his consent to the court's enter- taining the motion at the time when it was made, in his presence, "^as to be inferred from his failure to object upon the ground that insufficient notice had been given (Mayor, etc. V. Lyons, 24 How. Pr. 280), if, indeed, the statute is to be construed as calling for such notice where the motion is made upon the return of the verdict. ********** Order affirmed, with costs. Daly, P. J., and McAdam, J., concur. Order affirmed, with costs. SIMPSON V. BUDD. Supreme Court of California. 1891. 27 Pacific, 758. De Havex, J. * * * * * * The only question for decision is whether the statutory,'' time for giving notice of intention to move for a new trial and the preparation of bills of exception can be extended by a stipulation of counsel not filed within the statutory time, and of this we entertain no doubt. An at- torney has authority to bind his client in any of the steps of an action or proceeding by his agreement in writing, filed with the clerk, or entered upon the minutes of the court. Section 283, Code Civil Proc. The service and filing of 774 Trial Practice [Chap. 17 notices of motion for a new trial and proposed bills of ex- ception are steps in an action within the meaning of this section, and the stipulation is filed in time if it is on file, with the consent of the adverse attorney, when the court is called upon to act upon the matter affected by the stipu- lation. Section 1054 of the Code of Civil Procedure does not limit the authority of attorneys, as given by section 283 of the same Code, nor prescribe the exclusive mode by which the time for giving notices or the service of proposed statements or bills of exception may be extended, but it only imposes a limitation upon the power of the court to extend such time without the consent of the adverse party. It is undoubtedly true, as has often been decided by this court, that the right to move for a new trial is statutory, and, unless the prescribed steps are taken within the time allowed, the right does not exist as against a party who stands upon the statute and insists upon strict compliance with every provision of the law relating thereto, and in- tended for his benefit ; but it has never been held that such provisions may not be waived by the party otherwise en- titled to claim their benefit. On the contrary, it has been assumed in many cases, if not directly decided, that the time for giving notice of motion for a new trial, as well as every other step to be taken in relation thereto, may be waived or extended by consent. Hohhs v. Duff, 43 Cal. 485; Brichman v. Ross, 67 Cal. 602, 8 Pac. Rep. 316; Pa- trick V. Morse, 64 Cal. 462, 2 Pac. Rep. 49; Gray v. Nunan, 63 Cal. 220; Schieffertj v. Tapia, 68 Cal. 184, 8 Pac. Rep. 878; Curtis v. Superior Court, 70 Cal. 390, 11 Pac. Rep. 652. We are of the opinion that the parties may, within the time allowed by law to give notice of intention to move for a new trial, stipulate that the time for giving such no- tice may be extended, and that such stipulation has effect without any order of the court ratifying the same. The question in such cases is one which most immediately con- cerns the parties to the action, and attorneys may be safely intrusted to look after the rights of their respective clients in such matters. * * * We concur: Beatty, C. J.; Sharpstein, J.; Harrison, J. ; Patterson, J. ; Garoutte, J. Sec. 12] New Teials 775 Section 12. Time of Motion. CITY OF ST. JOSEPH V. KOBISON. Supreme Court of Missouri. 1894. 125 Missouri, 1. Burgess, J. This is ejectment for the recovery of the possession of a small parcel of ground which plaintiff claims as a part of a street, and to which defendant claims to have acquired title by limitation. There was a trial to a jury and judg- ment rendered for defendant, and plaintiff appeals. The verdict was rendered on the sixth day of November, 1891, and the motion for a new trial was filed on the six- teenth day of November next thereafter. The motion was filed out of time, and the bill of exceptions can not be con- sidered by this court. It should have been filed within four days after the verdict (R. S. 1889, sec. 2243), and could not be filed thereafter. It was so held in Maloney v. Railroad, 122 Mo. 106. The judgment is affirmed. All of this divi- sion concur.^ 1 This was the common law rule. Tidd says: "The motion for a new trial must be made, in the King's Bench, within four days exclusive after the en- try of a rule for judcrment (Doug. 171) ; and it cannot be made after the four days, though by consent of the parties (1 Glut. 382, 3) " 2 Tidd 's Practice, *912. In the United States the time is usually fixed by statute or rule of court. When not so fixed it is a matter within the discretion of the court. Thus, it was said in Conklin v. Hinds (1871) 16 Minn. 457: "At common law and in the chancery, the time for making it [the motion for a new trial] was matter of practice regulated by rule of court. It remains so unless the statute has regulated the practice. And since it has not done so in this instance, and the district court has adopted no general rule in this respect, it must be for the judge, before whom such motion is made, to decide in each instance, whether or not it was made too late, a decision which we should not review, unless an abuse of discretion appeared." 776 Teial Practice [Chap. 17 BAILEY V. DRAKE. Supreme Court of Washington. 1895. 12 Washington, 99. HOYT, C. J. This is an appeal from an order granting a new trial. The verdict which was set aside by said order was rendered on the 1st day of December. The motion for a new trial was not filed until the 4th day of December. On account of the delay in its filing the appellant objected to its being h«ard. Upon such objection being made the court, on mo- tion of the respondent, made an order extending the time in which the motion for a new trial might be filed so as to in- clude the said 4th day of December, and, having done so, proceeded to the consideration of the motion and, for rea- sons satisfactory to it, set aside the verdict and ordered a new trial. Appellant relies upon two grounds to reverse the order: (1) That it was beyond the power of the court to extend the time in whicli to file the motion for a new trial aftef^ the expiration of thejime fixed by the statute. * * * The appellant cites numerous cases to support his first contention, but none of them have any force under our statute, which, unlike those of the states in which the deci- sions relied upon were rendered, specially confers the pow- er upon the court to enlarge the time for the making of any motion or giving notice thereof, after the expiration of the statutory time as well as before. The language of sec. 24, of ch. 127 of the Laws of 1893 (p. 414), upon this subject is as follows: a* * * ^jj^ |-j^g court may enlarge or extend the time, for good cause shown, within which by statute any act is to be done, proceeding had or taken, notice of paper filed or served, or may, on such terms as are just, permit the same to be done or supplied after the time therefor has expired. * * * * * M And there fan l)o no ('Sf';\]v^ from the conclusion that the legisTaTi iic intciidcl ])y its ciiactincnt to confer authority upon the coui'ls tu extend the time in which acts of the Sec. 12] New Trials 777 Kind under consideration conld be done after the expiration of the statutory time, as well as before. ********** Affirmed. Scott, Dunbae, Anders and Gordon, JJ., concur. HAYES V. IONIA CIRCUIT JUDGE. ^ ' ^^ M#^ Supreme Court of Michigan. 1900, i i , 125 Michigan, 277. Mandamus by Mary A. Hayes to compel Frank D. M. Davis, Circuit Judge of Ionia county, to strike a motion for a new trial from the files, and to vacate an order extend- ing the time in which to settle a bill of exceptions or move for a new trial. Submitted October 30, 1900. Writ denied November 13, 1900. Moore, J. The provisions of law in relation to new trials in civil ^"^uses are to be found in 1 Comp. Laws 1897, sec. 205, and Cir. Ct. Rule No. 21.^ It will be observed that there is no such limitation of time as there is in the rule relatmg to the settlement of bills Of exceptions. The provisions do not interfere with the common-law discretion of the court. They only fix a time beyond which no one could move for a new f Hal as a matter of right. In People v. Wayne Circuit Judge, 20 Mich. 220, it was said : '*It is not clear that motions for a new trial based on newly-discovered evidence would come within the rule fix- ing a time, for the facts may not be ascertained until after- wards. It is not desirable to compel parties to resort to courts of equity to obtain new trials, where it can be avoid- ed ; and in such cases the courts of law should act on equit- 1 Circuit Court "Rule 21 reads as follows: "Motions for a new trial and motions in arrest of judgment, with the reasons on which they are founded, shall be filed and a codj thereof served on the opposite party within five days after the rendition of "a verdict, in the case of a trial by jury, and within a like time after the decision of the court, when the cause has been tried by the court, or witlin f»uch further time as shall be allowed therefor by the court or judge." 778 Teial Peactice [Chap. IV able principles, and do, if they can, what justice requires." See, also, Van Rensela&r v. Whiting, 12 Mich. 449 ; Cam- pau V. Coates, 17 Mich. 237. In Manufacturers' Mut. tire Ins. Co. v. Gratiot Circuit Judge, 79 Mich. 241 (44 N. W. 604), an ex parte order ex- tending the time in which to move for a new trial was en- tered. This court declined to interfere with the action of the court. In the case of Reynolds v. Sweet, 104 Mich. 252 (62 N. W. 356), a judgment was entered in the circuit court March 21, 1894. The case was brought to this court, and decided February 26, 1895. The judgment of the court below was affirmed, and a remittitur was sent to the clerk of the circuit court. The judgment was paid in March. December 20th following, a year and nine months after the original judgment was entered, a motion was made for a new trial, and the new trial was granted. Upon an appli- cation for a mandamus, this court declined to interfere. Reynolds v. Newaygo Circuit Judge, 109 Mich. 403 (67 N. W. 529). In Fort Wayne, etc., R. Co. v. Wayne Circuit Judge, 110 Mich. 173 (68 N. W. 115), the circuit judge upon his own motion granted a new trial, and it was held he had the right to do so. The counsel for the relator cite the case of Frazer v. Judge of Recorder's Court, 112 Mich. 469 (70 N. W. 1042). That case was a criminal case. The statute authorizing a new trial in criminal cases limited the time in which the application must be made. The case is not applicable here. It is urged that, if the circuit judge may grant a new trial after the time for settling a bill of exceptions has ex- pired, unreasonable delays will be caused, abuses will arise, and parties will obtain by indirection what they can- not obtain directly. We are not at liberty to assume that circuit judges will not do their full duty, or will grant a new trial except where it ought to be granted in furtherance of justice. Should such a case arise, a proper disposition can be made of it. The application for the writ is denied. The other Justices concurred. Sec. 12] New Trials 779 ROGGENCAMP V. DOBBS. ^ ' ^ H^^ V^^ Supreme Court of Nebraska. 1884. ^. "^"WU J 15 Nebraska, 620. Maxwell, J. This is an action of replevin brouo^ht by the plaintiff :i gainst the defendant to recover certain hogs belonging to the plaintiff, which the defendant as pound master of the village of Bennett had taken up. On the trial of the cause, the jury found for the defendant, and that he had a special interest in the hogs in question for $10.50. The verdict was rendered on the seventh of June, 1882, and judgment ren- dered thereon on the twelfth of that month . On the eight- een th, or six days after judgment was rendered, the plain-''^ tiff asked leave to file a motion for a npw trial Thm ap- jolication was accompanied by affidavits setting forth neg- lect of the plaintiff's attorney to file the motion, and that the plaintiff placed reliance upon liim. etc. A motion for "a new trial was also tendered. The application was over- ruled, and there being no motion for a new trial a motion is now made to quash the bill of exceptions. Unless equitable grounds exist for granting a new trial, as where a parly' is pfeveiiTed from making his defense by circumstances beyond his control, in which case equity may m a proper case grant relief, a motion for a new trial m ust be filed within the time fixed bv law . TInyji r. Quoru^ 4 Neb. 108; Leiby v. Heirs of Ludlow, 4 Ohio, 493; Vanner- son V. Pendleton, 8 S. & M. 452; Peebles v. Ralls, 1 Little, 24. Unless equitable grounds exist, such as will warrant a court of equity in granting relief, the motion for a new trial must be made at the term the verdict or decision is rendered, and, except for the cause of newly discovered evidence, shall be within three days after the verdict or decision is rendered, unless unavoidably prevented. Code, sec. 316. The words ^'unavoidably prevented'' evidently refer to circumstances beyond the control of the party de^ siring to file the motion. The law requires diligence on" The part of clients and attorneys, and the Digj'e_neglect_of_ pjfhpr will not entitle a party to relief on that ground. It 780 Trial Practice [Chap. 1 might be different in case of the deliberate betrayal of a ^l ient by an attorney. But such case probably will not occur, and is not shown in this. There being no sufficient cause shown for filing the motion for a new trial, there was no error in denying the same. As none of the errors as- signed in the petition in error can be considered, the judg- ment of the court below must be affirmed. Judgment accordingly. The other judges cOHCur. HELLMAN V. ABLER & SONS CLOTHING COMPANY. Supreme Court of Nebraska. 1900. 60 Nebraska, 580, SULLXVAN, J. This proceeding in error has for its object the reversal of a judgment denying Maria liellman's application for a new trial based upon an alleged discovery of material evi- dence after the adjournment of the term at which the case of David Adler S Sons Clothing Co. v. Maria Hellman was decided. The final decree in the case mentioned was ren- dered in February, 1895. It was adverse to the defendant, and she appealed to this court, where the decision of the district court was affirmed June 9, 1898. It appears from the record that the petition for a new trial was dismissed because it was not filed within the time limited by section 318 of the Code of Civil Procedure. It was filed October 27, 1898; more than three years after the final judgment was rendered in the district court, but within one year after the judgment of affirmance was pronounced. Counsel for the plaintiff in error contend that their application was sea- sonably made, because the final judgment contemplated by the limitation law is the ultimate decision rendered in the case, whether such decision be given by the trial court or by this court. We think counsel are wrong. The policy of the legislature with respect to the re-ex- amination of the issues of fact once tried and determined Sec. 12] New Trials 781 is clearly indicated in article 6 of the Civil Code. A party claiming a new trial must show diligence; he must move promptly. Any needless delay, any inertness, on his part, which hinders the court in bringing the litigation to a speedy conclusion results in a forfeiture of the statutory right. Section 316 is as follows: "The application for a new trial must be made at the term the verdict, report or decision is rendered, and, except for the cause of newly dis- covered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably pre- vented." Section 318 provides: ''T\niere the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after tlie term at which the verdict, report of referee, or decision was rendered or made, the application may be made by petition filed as in other cases | * * * but no such petition shall be tiled more than one year after the tinal Judgment was rendered." It is quite clear from the sections quoted that, if the new evidence is discovered during the term at which the cause was decided, although after the decision was rendered, the application for a new trial must be made at that term. Under these circum- stances the law exacts of the unsuccessful suitor a high de- gree of diligence as the price of a new trial. Why should it be less exacting after the adjournment of the term at which the cause was decided ? If a defeated litigant elects to abide by the .judgment of the district court, the time within which he may move for a new trial is certainly lim- ited to one year from the date of such judgment. Wliy should he be given a longer period because he is disposed to be litigious? Wliy should be he permitted to lengthen the time by instituting an appellate proceeding and con- ducting it leisurely to judgment? We can not believe that the legislature would have required a party to be expe- ditious and diligent in applying for a new trial at one stage of the case if it intended to allow him to take his own time at another stage. The period of limitation should, it would seem, begin to run from the date of the decision in the district court, for the trial there may, and frequently does, suggest the possible existence of other material evi- 782 Trial Practice [Chap. 17 dence. The trial in this court, however, reveals nothing with respect to the facts of the case that was not known before. The petition for a new trial, if presented in apt time, may be entertained by the district court although the cause be pending in this court for review. Such is the obvious meaning of the statute, and such is the construction given like statutes in other jurisdictions. Cook v. Smith, 58 la. 607 ; Gibson v. Manly, 15 111. 140. A party desiring to ob- tain a new trial under the jnovisions of section 318 of the Code has, therefore, the right in every case to make his application within oneyear from the date of the judgment in the district court, and that court has autliority to enter- tain his petition and grant the relief demanded, although the cause may be pending for review in this court. The legislature did not intend to say that the remedy which it provided should be available under all circumstances for one year, and might, at the option of the complaining party, be made available for an indefinitely longer period. This conclusion is in harmony with the dictum of Chief Justice Maxwell in Bradshaw v. State, 19 Neb. 644. The judgment is Affirmed} iln Henry v. Allen (1895) 147 N. Y. 347, 41 N. E. 694, the appellant moved for an order that the case be remanded to the supreme court, where the case had been tried, in order to enable him to move for a new trial. It was denied on the ground that the pendency of the appeal was no bar to a motion in the court below for a new trial. The court said: "If the Supreme Court, in the exercise of its discretion, grants the motion for a new trial, the legal effect will be the vacating of the judgment from which the appeal has been taken to this court, and a motion to dismiss the appeal would then be proper." HERZ V. FRANK. Supreme Court of Georgia. 1898. 104 Georgia, 638. Simmons, C. J. * * * * * * This court has in numerous cases decided, rz effect, that where a motion for new trial is made in term Sec. 12] New Trials 783 and an order taken for it to be heard in vacation, the term of the court, for that particular case, has not adjourned but is still open. In the case of Stone v. Taylor, 63 Ga. 309, Bleckley, J., in treating this subject, said: ''The order taken in term, to hear the motion in vacation, put the judge in full possession of the case at the time appointed, and continuances from time to time were had, so that there was no gap or break. It was as if the first day had been lengthened, or all the sittings had taken place at different hours of the same day. * * * He had exactly the same power in that respect as if he had been sitting in term- and so had he in respect to adjourning over from one day to another. When a court is once on foot in a regular, legiti- mate way, it requires no consent of parties to run it. The law makes it self-supporting. The motion for a new trial did not perish on the judge's hands, but kept its vitality until he passed judgment refusing to grant it. To that judgment a writ of error lies." In many other cases the court has held, that where an order is taken to hear a mo- tion upon a certain day in vacation, unless the judge con- tinues it by another order on that day, he loses jurisdiction of the case. In the case of Arnold v. Hall, 70 Ga. 445, a motion for new trial was set for hearing on a particular day, and four days thereafter the judge approved the brief of evidence and granted a new trial. This court held that the judge had no jurisdiction to pass the order approving the brief of evidence or to grant the new trial. The rea- sons for these decisions must have been that, when the judge failed to act upon the day set in the order, the term of court expired as to the case set for that day. An or- der, taken in term, to hear in vacation a motion for a new trial, operates, in our opinion, to keep the regular term of the court open as to that particular case until it is passed upon by the judge. * * * 784 Trial Peactice [Chap. 17 PEOPLE V. BANK OF SAN LUIS OBISPO. Supreme Court of California. 1910. 159 California, 65. Henshaw, J. Under the Banking Act of 1903, (Stats. 1903, c. 266). action was begun in the name of the people of the state of California by the attorney-general, as contemplated by the provisions of the act, for a decree declaring the defendant Bank of San Lnis Obispo insolvent, ordering it into invol- untary liquidation and restraining it from the transaction of a banking business. This action proceeded to judg- ment in accordance with the complaint of the People and a receiver was appointed by the court to administer its affairs in liquidation. On appeal to this court the judg- ment of the trial court was in all respects affirmed {People V. Bank of San Luis Obispo, 154 Cal. 194, 97 Pac. 306), and this judgment became final in September, 1908. On Juno 19, 1908, the trial court denied the defendant bank's mo- tion for a new trial and from this order an appeal was taken to this court. Pending the decision on this appeal from the trial court's order refusing to grant the motion for a new trial, the Banking Act of 1903, (Stats. 1903, c. 266). under the authoritv of which this action was prose- cuted and these proceedings had, was repealed by the Banking Act of 1909, (Stats. 1909, c. 76), which latter act made no provision for continuing in force any pending pro- ceedinsrs or litigation under the repealed act. The Bank of San Luis Obispo now moves this court to vacate and set aside the judgment given against it, and to direct the trial court to dismiss this action upon the ground that the repeal of the Banking Act of 1903 put an end to all litigation pending under it, and that within the meaning of the law the action of the People of the State of California against the Bank of San Luis Obispo was litigation pending and undetermined. The principle which appellant invokes has thus been stated: ''When a cause of action is founded on a statute, a repeal of the statute before final judgment destroys the right, and a Sec. 12] New Trials 785 judgment is not final in this sense so long as the right of exception thereto remains." (1 Lewis' Southerland, Stat- utory Construction, 2d ed., p. 285.) * * * ********** * * * In case of a statute conferring civil rights or powers, the repeal operates to deprive the citizen of all such rights or powers which are at the time of the repeal inchoate, incomplete and unperfected. In the case of statutes conferring jurisdiction, the repeal operates by causing all pending proceedings to cease and terminate at the time and in the condition which existed when the repeal became operative. In cases of judgment pending upon appeal, the rule of decision is that the proceedings abate and the judgment falls. But the general expressions to this effect employed in the decisions, are to be read in each case in the light of the facts w^hich are there disclosed. Here the wise admonition of Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 399, (5 L. Ed. 257), applies with peculiar force: ''It is a maxim not to be disregarded, that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The rea- son of this maxim is obvious. The question before the court is investigated with care and considered in its full extent, and other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all the other cases is seldom com- pletely investigated." In every case where, after judg- ment, the proceeding has been declared to be "pending" there will be found a direct appeal from the judgment, which direct appeal either suspended the judgment so that it was not final and enforceable, or, as in Schooner General Pinhiey v. United States, 9 U. S. 281, (3 L. Ed. 101), worked a removal of the cause to the appellate court, where it was to be tried de novo. The reason given why the proceed- ing must abate under these circumstances is that, because of the suspension of the judgment by appeal, it is without finality; that to give it finality the court of appeals must itself pronounce its judgment, and that in pronouncing its judgment it must be governed by the existing law. There- T. p.— 50 786 Trial Practice [Chap. 17 fore, when it finds that by the existing law the previous law, under which alone validity could be given to the judg- ment, has been repealed, the sole prop and foundation for support of the judgment has been removed, and of neces- sity it must be declared null and void. No case, however, has been found, and we venture to say none can be found, where a judgment which has been affirmed after direct ap- peal, and has by such affirmance become final during the existence of the statute supporting it, where the judgment itself has been in the process of execution within the law, and where rights have arisen by virtue of this legal execu- tion of the judgment, has ever been held to be destroyed by a repeal of the statute supporting it because the col- lateral proceeding of an appeal from an order denying a new trial is pending without supersedeas or stay-bond. And to this consideration we now come. * * * In Harris v.Banihart, 97 Cal 5^6, {32'PaG.5S9), the matter is discussed and the conclusions of the court may be summarized as follows : A motion for a new trial, in the absence of an order of the court to that effect, does not stay or suspend the operation of a final judgment. An action, under section 1049 of the Code of Civil Procedure, is to be deemed pending while an appeal from the judgment is pending, or until the time for such an appeal has ex- pired, but when the judgment upon appeal has been deter- mined by an affirmance of the judgment, or when the time for appeal has expired, the judgment is admissible in evi- dence as res adjudicata and to raise an estoppel in bar of the action. The same ruling as to the effect of a pending motion for a new trial upon the finality of a judgment is declared in Young v. Brelie, 19 Nev. 379, (3 Am. St. Rep. 892, 12 Pac. 564), and the soundness of the rule is intimated bv the supreme court of the United States in Euhhell v. United States, 171 U. S. 203, (18 Sup. Ct. 828, 43 L. Ed.. 136), where it is said: ''Indeed, it may well be doubted whether the pendency of a motion for a new trial would in- terfere in any way with the operation of the judgment as an estoppel." Tn Spnnagal v. Bellinger, 38 Cal. 284, it is said: ''Under our system, from the entry of the verdict or filing of the findings of the court, the motion for new trial is a kind of episode, or in a certain sense, a collateral proceeding — a Sec. 12] New Trials 787 proceeding not in the direct line of the judgment; for the judgment may be at once entered and even executed, while a motion for a new trial is pending in an independent line of proceeding, which ends in an order renewable on an in- dependent appeal. The motion may be heard and decided and an ap])eal taken on its own independent record, while the proceedings on and subsequent to the judgment may be still regularly going on, and even an independent ap- peal taken in that line." And this language is quoted with approval by this court in the later case of Brison v. Brison, 90 Cal. 323, (27 Pac. 186); while to the same effect is Houser d Haines Co. v. Hargrove, 129 Cal. 90, (61 Pac. 660), and Knoivles v. Thompson, 133 Cal. 247, (65 Pac. 468). A broad difference exists between the operation and legal effect of a direct appeal from a judgment (which, while the appeal is pending, in the generality of cases oper- ates to stay the- judgment absolutely, and in all cases oper- ates to destroy for it any claim of finality), and the "collateral proceeding" of an appeal from an order deny- ing a motion for a new trial taken after the judgment it- self has become an enforceable finality by reason of its affirmance upon direct appeal. In the former case the courts, when the law which alone will support the judg- ment given has been withdrawn, have felt and expressed themselves as unable to proceed further with the litigation, since they themselves must pronounce a judgment, and can pronounce it only under the authority of existing law. In the case of appeal from an order refusing a new trial wliere no stay has been granted and where, as here, the judgment has become a finality, the decision which the court renders is not upon the judgment appealed from, but upon the order appealed from, and while the effect of its reversal of the order will, of course, be necessarily the set- ting aside of the judgment, this, after all, is but an inci- dent to the ruling which it makes, which ruling goes not at all to the sufficiency or finality of the judgment, but only as to whether, within familiar rules and limitations, the judgment was fairly given. Herein our motion for a new trial differs essentially from the common-law motion which was always heard and determined before entrv of 788 Trial Peactice [Chap. 17 judgment,^ so that the appeal from the judgment embraced all questions. Under our system, the appeal from an order denying a new trial is a separate and independent appeal, which, if prosecuted in time, may be taken after the judgment has become final. Excepting when ordered by supersedeas or permitted by stay-bond, it in no way sus- pends the judgment nor interferes with its finality. It is in this respect more in the nature of an equitable bill of review which, while countenanced in proper cases, even after a judgment of affirmance upon appeal, never oper- ated in and of itself to suspend the decree. Indeed it has 1 The common law rule is in force in several jurisdictions in the United States. Thus in Whitney v. Karner (1878) 44 Wis. 563, the court said: "The learned circuit judge who heard and decided this motion, seems to have entertained the opinion that the entry of judgment was no objection to enter- taining a motion to set aside the verdict and for a new trial upon the merits; and it is quite probable that such opinion prevails to some extent amongst the circuit judges and members of the bar; but it is in direct conflict with the decision of this court. "In the case of Hogan v. State, [36 Wis. 232], the present learned chief justice says: 'It is certain that at common law, motions for a new trial must be made after verdict and before judgment. It would be no greater ab- surdity to move for a new trial at common law before verdict, than after judgment.' And in the case of Scheer v. Keown, [34 Wis. 349], Chief Jus- tice Dixon says: 'The practice, as indicated by several cases which have come before this court, and so far as we understand, has always been, if the party wishes to move at a subsequent term, on a case or bill of exceptions' made or settled, to obtain a stay of proceedings, so as to prevent the entry of judg- ment until after the motion could be heard and determined.' "It would seem to be irregular to entertain a motion to set aside a verdict and for a new trial after judgment entered, at the term at which the same was entered, unless such motion was joined with a motion to vacate the judgment also. ' ' But the better rule seems to be the contrary, permitting the motion to be made regularly after judgment entered. Thus in Woodward Iron Co. v. Brown (1910) 167 Ala. 316, 52 So. 829, the court said: "Common law courts have inherent power to grant new trials, and at common law the judgment was not rendered until the motion for new trial was disposed of (29 Cyc. 722, 727), but the usage in our courts and others is to enter the judgment when the verdict is returned, and the party has during the term of the court to make the motion for a new trial. The effect of the motion is to suspend the judgment until the motion is disposed of, and if it is granted, it 'wipes out the verdict; no judgment can be rendered on it.' Hilliard on New Trials, p. 59." In Conklin v. Hinds (1871) 16 Minn. 457, the court said: "But the statute gives the right to move for a new trial upon the report of the referee or de- cision of the judge, and allows no opportunity to make such motion before judgment. The party aggrieved must therefore necessarily have the right to make it after judgment." In some jurisdictions, by reason of statutes, no proceeding for a new trial can be instituted before judgment. Thus in McTntyre v. MacGinniss (1910) 41 Mont. 87, 108 Pac. 353, the court said: "Proceedings on the motion for a new trial were first instituted by MacGinniss by serving his notice of inten- tion after the decision was made, but before entry of judgment. These pro- ceedings were premature. Under the statute, a i>arty intending to move for a new trial may do so by serving his notice within ten days after the notice of entry of judgment, but not before. (Revised Codes, sec, C796.) " Sec. 12] New Teials 789 been so expressly declared by tliis court in Foivden Admr. r. Pacific Coast S. S. Co., 149 Cal. 151, 154, (86 Pac. 178). We conclude, therefore, that as the judgment had be- ^'ome final wliile the statute authorizing the action was in force, its finality is not disturbed by a pending motion for a new trial which does not operate in any way to stay the execution of the judgment; that as the statute authorizes the people upon the relation of the attorney-general to pro- ceed in equity to have the bank declared insolvent, leaving the proceedings governing the action those which gener- ally obtain in the practice of this state, the repeal of the statute did not destroy the right of the appellant to be heard upon this motion for a new trial ; that if the appeal from the motion for a new trial should be granted, it would necessarily hav.e the effect of vacating the judgment, and that by virtue of the repeal the action could then no longer be prosecuted; that if, however, the appeal from the order denying the motion for a new trial should be denied and the order affirmed, the repeal of the statute would not af- fect any proceeding taken under it and under the judgment heretofore affirmed. ********** Wherefore the motion to vacate and annul the judgment and dismiss the proceedings is denied, and the order deny- ing defendant's motion for a new trial is affirmed. Shaw, J., Lorigan, J.. Melvin, J., and Sloss, J., con- curred. Rehearing denied. SEWAED V. CEASE. Supreme Court of Illinois. 1869. 50 Illinois, 228. Mr. Justice Lawrence delivered the opinion of the Court : It is very seldom that a court of chancery will interfere to grant a new trial at law, though its jurisdiction to do so is undoubted. In this case, a bill was filed for that pur- 790 Trial Peactice [Chap. 17 pose, and the case having been heard on a motion to dis miss the bill, the relief prayed was refused. We are of opinion, however, that the motion shonld have been over- ruled, and if, after the canse is at issue and proofs taken, the case made by the bill is sustained, a new trial should be awarded. For the present, we must take the allega- tions of the bill as true, and they show, not merely that the only evidence upon which the judgment at law was ob- tained was false, but that the witness who gave it has vol- untarily made an affidavit of its falsity before a magistrate, stating his desire to retract the same, and this affidavit is made an exhibit with the bill. This, then, is not a case of conflicting evidence. An unrighteous judgment has been obtained upon perjured testimony, and the perjury is shown, not by uncertain admissions of the perjurer, but by his own oath voluntarily made for the purpose of repair- ing his wrong. A stronger case could hardly arise. The motion to dismiss should have been overruled, and the de- fendant required to answer. After the answer is filed and the cause is at issue, it will be incumbent on the complain- ant to take the testimony of the witness, when the defend ant will have an opportunity of cross-examining, and if the witness adheres to the statements of his affidavit, and there is no evidence he has been subjected to corrupt influences, the court will award a new trial. The decree is reversed and the cause remanded. Decree reversed} 1 ' ' Applications to courts of chancery, for the purpose of granting new trials at law, and the interposition of the Chancellor, whenever a proper case is made out, may be warranted as well upon the score of principle as of precedent. "An injunction to f-tny jtroceedings upon an unjust judgment, and for a new trial, is a remedy recognized and approved by courts of equity. These remedies are to l)e enforced under the operation of established forms and rules of proceeding, instituted as they are for th- development of truth and justice. "Anciently, courts of equity exercised a familiar jurisdiction over trials at law, and compelled the successful party to submit to a new trial, or to be perpetually enjoined from proceeding on his verdict. (Floyd v. Jayne, 6 John. Ch. Eep. 479.) "But this practice, except in cases the most extraordinary, has long since gone out of use; because courts of law are now competent to grant new trials, and are in the constant exercise of that right to a most liberal extent. Anciently, courts of law did not grant new trials; and in those days, courts of equity exercised that jurisdiction over trials at law, and compelled the suc- cessful party to submit to a new trinl when justice required it. But, even in that age, the Court of Chancery proceeded with great caution. A new trinl was never rrrnnted. unless the application was founded upon some clear case of fraud or injustice, or upon some newly discovered evidence, Sec. 13] New Trials 791 \\ hich the party could not possibly, by any vigilance or industry of his, have had the bnefit of, on the first trial. ' ' In general, where it would have been proper for a court of law to have granted a new trial, if the application had been made while that court had 1 ower to do so, it is equally proper for a court of equity to grant a new trial, if the application be made on grounds arising after the court of law ceased to have power to act. ' ' The general rule is, that courts of chancery will not interfere after ver- dict and judgment at law, except in cases of fraud, or in extraordinary cases where manifest injustice would be done; nor where the party might have de- fended himself fully at law and neglected it. Great abuse would be made of a contrary doctrine, by drawing within the jurisdiction of equity, as by a side wind, almost all causes decided at law. The high powers intrusted to Chancery, to promote the purposes of justice, should not be abused to the vexation of citizens, and the unsettling solemn decisions of other courts, where it is always to be presumed that full justice has been done." 3 Gra- ham & Waterman on New Trials, 1455 et seq. For a further discussion of this subject see: Black on Judgments, $ 357; Freeman on Judgments, § 485; 3 Pomeroy's Equity Jurisprudence, $ 1365; Yancy v. Downer (1824) 5 Littell (Ky.) 8, 15 Am. "Dec. 35; Wynne v. New- man's Adm'r (1881') 75 Va. 811; Kansas & Arkansas Valley R. R. Co. v. Fitzhugh (1895) 61 Ark. 341, 33 S. W. 960. Section 13. Form of Motion. MEMPHIS STREET RAILWAY COMPANY V. JOHNSON. Supreme Court of Tennessee. 1905. 114 Tennessee, 632. Mr. Justice Shields delivered the opinion of the Court. This action is brought by W. B. Johnson against the Memphis Street Railway Company to recover damages for personal ini'iiries sustained by him, through the negligence of the defendant, while plaintiff was a passenger on one of its cars. The case was submitted to a jury, and a verdict found for the plaintiff. The motion of the defendant for a new trial was overruled, and judgment entered. The defend- ant tendered a bill of exceptions to this action of the court, which was signed and filed, and the case is now before us upon appeal in the nature of a writ of error. The errors assigned are predicated upon the refusal of the trial judge to set aside the verdict of the jury and grant the defendant a new trial because of the admission of cer- 792 Teial Pkactice [Chap. 17 tain evidence offered by the plaintiff over the objection of the defendant, and his refusal to give in charge to the jury certain written instructions submitted by counsel for the railway company at the conclusion of the charge in chief. For the defendant in error it is insisted that these as- signments of error cannot be considered by this court be- cause the errors complained of were not properly set out and relied upon as grounds for a new trial in the motion made by the plaintiff in error in the trial court for that purpose, as required by a rule of that court, and passed upon by the presiding judge. The rule of the circuit court of Shelby county in relation to motions for new trials, which is in the record, requires all grounds upon which a new trial is asked to be stated and set out separately in a written motion and entered upon the minutes of the court; and all errors not so set out are presumed to be waived, and will not be considered on the hearing of the motion. The plaintiff in error attempted to comply with this rule, and the grounds for a new trial upon which these assign- ments are based are stated in its motion in these words : ''(1) For error in the admission and exclusion of evi- dence. ''(2) The court erred in refusing the special instruc- tions asked by the defendant." The jurisdiction of this court is exclusively appellate, and it can only pass upon matters which the record shows have been considered and adjudged by the trial court from which the case has been appealed. The errors reviewed and .corrected by it are of two classes : Those which ap- pear upon the face of the record proper, as erroneous rul- ings in sustaining or overruling motions, and demurrers challenging the sufficiency of pleadings; and errors com- mitted in allowing or overruling motions for new trials upon grounds brought into the record by bills of exceptions, as for improperly refusing a continuance, the admission of incompetent evidence, or the rejection of competent evi- dence, error in instructing the jury, or refusing further in- structions seasonably requested in proper form, for want of evidence to sustain the verdict, or other similar ground. It does not act directly upon errors of the latter class, Sec. 13] New Trials 793 which are not a part of the record without a bill of excep- tions, but upon the action of the trial judge for refusing a new trial because of such errors committed by him, or oth- er^vise occurring in the progress of the case, as they may be waived or corrected before verdict. Therefore, before the jurisdiction of this court can be invoked and refief had on account of errors of the second class, they must be con- sidered and acted upon by the trial judge in the disposi- tion of a motion made by the losing party to set aside the verdict of the jury and allow him a new trial. Another reason why all errors which may affect the integrity of the verdict should be brought to the attention of the trial judge in a motion for a new trial is that he may have an opportunity to correct them, if necessary, by granting a new trial, and thus save the inconvenience, delay, and ex- pense attending appellate proceedings. ********** We are now to determine whether or not the grounds upon which these assignments of error are predicated are sufficiently set out in the motion for a new trial. It seems to be well settled that the statement of the grounds in the motion must be sufficient to direct the attention of the court and opposing counsel to the error or irregularity relied upon to vitiate the verdict. In the work on Pleading & Practice last quoted from, it is further said: ^'The general rule is that the grounds (for a new trial) must be stated so specifically as to direct the attention of the court and opposing counsel to the precise error complained of. A mere statement of the grounds, without further specifications, will therefore be insufficient. The purpose of the rule is to direct the attention of the trial judge to the alleged erroneous rulings, and present to tlie appellate court the precise question involved. The safest course is to assign each error with the same particu- larity of an assignment of error in appeal. * * * But this is not the practice in most of the States; the courts holding that it is sufficient merely to assign error in giv- ing: a certain construction or admitting certain e\'idence, without stating why such ruling was erroneous. If the grounds for a new trial are not stated in the motion, it may be overruled by the court, and disregarded on appeal. All errors known at the time of filing the motion must be in- 794 Trial Practice [Chap. 17 eluded therein, or the errors omitted will be deemed to have been waived." Ency. of Plead. & Prac., vol. 14, pp. 882, 883. Mr. Elliott, in his work above cited (volume 2, section 991),^ says: "The law presumes the verdict to be correct. Hence on a motion for a new trial the party must set forth the grounds upon which he intends to rely, or the objec- tions will be considered as waived. The motion should be in writing, and should specify with reasonable certainty all the rulings deemed to be erroneous. It is to be kept in mind that it is the objections specified in a motion, and those only, that are brought up for review, for all others properly arising on a motion for a new trial are deemed to be waived. It is on a motion — as it is written — that the appellate court acts, for, as to objections not properly pre- sented, the presumption is in favor of the regularity and legality of the rulings of the trial court. It is the business of the party who takes exceptions to show that the decision is wrong. It is not sufficient that he succeeds in mystify- ing it by adopting language which subjects the judge to the suspicion that he did not understand the safest ground on which to place it. In order to show that rulings are wrong it must appear that they were probably injurious to the party who makes complaint, since a mere harmless er- ror will not warrant a reversal." The text in both of these works, which are of the highest authority, is supported by numerous decisions of other States, many of which are predicated upon the general rules of practice of courts of law. "We are of the opinion that the grounds set out in the mo- tion should be as specific and certain as the nature of the error complained of will permit. Thus, if the error con- sists in the admission or rejection of evidence, the evidence admitted or rejected should be stated. If it be for affir- mative error in the charge, or for failure to give an in- struction properly and reasonably presented, it should set out the portion of the charge complained of, or the instruc- tion refused, or otherwise definitely identify the instruc- tion. If it be for misconduct of the opposite party or that of the jury, the facts constituting it should be stated. This was not done in this case. The testimony admitted and 1 Elliott on General Practice. Sec. 13] New Tkjals 795 that excluded is not stated — not even the name of the wit- ness given — and the instructions requested are not set out or sufficiently identified. We do not think that it is necessary to state why the rul- ing complained of is erroneous as fully and with all the strictness required in assignments of error in this court, hut a fair statement of the error complained of, sufficient to direct the attention of the court and the prevailing pariy to it, is all that is required. Nor was it necessary for the successful party in the court lielow to there object to the form of the motion, because rules of this character are made in the interest of the pub- lic, and for the purpose of enabling the courts to speedily and correctly dispose of the cases pending in them, and they cannot be waived by litigants. We are of the opinion that no sufficient grounds for a new trial because of the admission of incompetent or rejec- tion of competent testimony, or a failure to give in charge to the jury instructions submitted by the defendant, were stated in the motion made by it in the circuit court, and that there is therefore nothing upon which these assign- ments of error on the action of the trial judge in refusing to set aside the verdict and grant a new trial can be predi- cated ; and, under the practice of his court, in cases coming from those courts having rules like that in this record, not to consider the assignments of error upon any ground not appearing in the motion for a new trial, these assignments of error are insufficient, and must be overruled. The other assignments of error filed by the plaintiff in error were disposed of in an oral opinion. KING V. GILSON. Supreme Court of Missouri. 1907, 206 Missouri, 264. W()()l)S0^^ J. * * * The motion for a new trial was filed on March 27, 1906, 796 Trial Practice [Chap, 17 and one of the grounds assigned therefor is in words as follows : **11. Because, since the trial of this cause, the defend- ants have discovered new and important evidence material to the issues submitted to the jury, which evidence is not cumulative in character and which evidence was unknown to defendants at the time of the trial.'' On the same daj^ the court granted defendants ten days in which to tile affidavits in support of motion for new trial; and within that time they filed the affidavits of Dr. Waterhouse, Arthur Marshall, Edward Unwin and J. H. Orr, one of the attorneys for the defendants, the three lat- ter stating what diligence they had used in trying to dis- cover all the witnesses and evidence in the case. The plaintitfs contend that the action of the court in granting a new trial on the ground of newly-discovered evi- dence was erroneous. The motion for new trial does not disclose or set out the newly-discovered evidence or its nature, nor does it give the names or addresses of the witnesses by whom the new- ly-discovered evidence was to be given, nor was there any •affidavit filed with the motion. ' The motion simply states that, ''since the trial of this cause, the defendants have discovered new and important evidence material to the issues submitted to the jury, which evidence is not cumulative in character, and which evi- dence was unknown to the defendants at the time of the trial." This question has been before this court repeatedly, and there is nothing new to be said upon it. In the case of State v. David, 159 Mo. 1. c. 535, this court said: ''A new trial was also asked upon the ground of newly-discovered evidence, but the evidence was not set out in the motion. The mere fact, asserted in the motion, that the newly-discovered evidence was material, did not prove it to be so. It should have been set out in order that the court might pass upon its materiality. For these reasons, besides others unnecessary to mention, this ques- tion cannot be considered by this court." And in the case of State v. Welsor, 117 Mo. 1. c. 582, the laAV applicable to this question was stated in the following language: "In the case of State v. Ray, 53 Mo. 349, Judge Sec. 13] New Tkials 797 Sherwood, in delivering the opinion of the court, says : *In the State v. McLaughlin, 27 Mo. Ill, this court adopts, with most cordial approval, the rules as laid down in Berry v. State, 10 Ga. 511, by Judge Lumpkin, in respect to new trials, on the ground of newly-discovered evidence, as follows: ''The application must show, first, that the evi- dence has come to his knowledge since the trial; second, that it was not owing to the want of due diligence that it did not come sooner; third, that it is so material that it would probably produce a different result if the new trial were granted; fourth, that it is not cumulative; fifth, that the affidavit of the"witness, himself, should be produced, or its absence accounted for; sixth, that the object of the tes- timony is not merely to impeach the character or credit of a witness." ' See, also, to the same eifect, State v. Rock- ett, 87 Mo. 666 ; State v. Butler, 67 Mo. 63 ; State v. Carr, 1 Fost. (N. H.) 166." In the case at bar, the affidavits were not filed in sup- port of and in proof of the newly-discovered evidence stated in the motion for a new trial, because, for the very obvious reason, there was no such evidence stated therein ; but the object and purpose in filing them was to bring the evidence itself and not the proof thereof to the attention of the court. The law requires such evidence to be set out in the motion; and the mere fact that it is so stated does not prove it to be true, and for that reason its truthfulness is required to be established by affidavits. But here the defendants are trying to make the affidavits serve a two- fold purpose; first, a ground for a new trial, and, second, proof of the statements constituting that ground. This cannot be done. The motion for a new trial must be filed within four days after the trial, and the court has no power to extend the time for filing it. If the evidence is set out in the motion, then this court has repeatedly held that the trial court may give the parties time in which to file affi- davits in support thereof. The defendants state in their motion that they have dis- covered new evidence; that it was material to the issues; that it was not cumulative, and that if admitted in evidence probably a different result would be reached if a new trial was granted. If tliey knew such evidence existed at the time the motivon wfis written, why did they not incorporate 798 Trial Practice [Chap. 17 it into the motion and later file the affidavits in support thereof? If such a practice as is contended for in this case was permissible, it would enable the parties to supplement and add to their motion for a new trial after the expiration of the four days allowed for filing it, and thereby open the door to temptation and fraudulent conduct in bolstering up motions for new trials. [Affirmed on other grounds.] RUTHERFORD V. TALENT. Supreme Court of Montana Territory. 1887, 6 Montana, 112. Wade, C. J. This is a motion to dismiss the appeal for the reason that no sufficient notice of motion for a new trial was given, and that no motion for a new trial was filed. The Code, section 287, provides that the party intending to move for a new trial must file with the clerk, and serve upon the adverse party, a notice of his intention, designat- ing the grounds upon which the motion will be made, and whether the same will be made upon affidavits, minutes of the court, bill of exceptions, or a statement of the case.^ 1 Various methods have been devised by which the data necessary for the determination of a motion for a new trial may be presented to the court. 1. The minutes of the court may be ui^ed. These being deemed already in existence and before the court, a party moving upon them is required to pre- pare no abstract or statement of the proceedings in the case, upon which to base his claim for relief. "The term 'minutes of the court,' as used in subdivision 4, § 5090, Comp. Laws, seems to have no well-defined legal meaning, but is evidently used in that section a;i referring to such minutes as the judge may make of the evi- dence, and to his recollection of the same, and is evidently intended to re- lieve a partj from the expense and labor of preparing a statement or bill of exceptions. To require the party moving for a new trial upon the minutes of the court to procure a transcript of the stenographer's notes, and cause the same to be filed, would, in effect, impose upon him a greater burden than preparing a bill of exceptions or statement." Bistad v. Shanklin, 11 S. D. 1. 2. It muy he mnde upon a hill of (Xeeptions or statement of the case. By this means a statement of the evidence and other proceedings had upon the trial, bo far as material to the questions raised by the motion, is written Sec. 13] New Tkials 799 The notice of motion was as follows : ''Said motion will be made and based upon the follow- ing grounds: "1. That the findings or decision of the court is against the law and the evidence. "2. Errors of law occurring at the trial, and then and there duly excepted to by the defendant, to wit : The court erred in sustaining plaintiff's motion to strike out the evi- dence of Patrick Talent, the defendant, including the let- ters of defendant to plaintiff, and plaintiff's letters to de- fendant ; the court erred in refusing to allow defendant to prove that he was the trustee of the property mentioned in the deeds from Adam Rutherford to defendant and from defendant to plaintiff, and that the plaintiff was the sole beneficiary of said property. Said motion will be made and based upon the minutes of the court, the statement of the case, and bill of exceptions." There was a statement of the case, and it was stipulated by the attorneys of the respective parties that the state- ment might be used on the motion for a new trial. If this notice was defective in not making known whether the motion for a new trial would be made upon affidavits, minutes of the court, bill of exceptions, or statement of the 'Case, as required by the statute, this stipulation that the statement of the case might be used on the hearing of such motion would cure the defect. The office of the notice is to inform the adverse party of the grounds of the motion, and the errors relied on for ob- taining a new trial. The notice in question performs that office. It sufficiently designates the errors complained of, and the adverse party, by his own agreement, has stip- ulated that the statement of the case might be used upon the consideration of the questions raised by the motion for a new trial. He is not, therefore, in a situation to com- plain that the notice does not give him all the information that the law provides that he shall have. out at larpe, ami Fettled as correct by the attorneyp or the court, and there- upon such statement becomes the exclusive source of information as to Tvhat took place upon the trial, and the sole foundation for the motion so far as it relates to the trial itself. 3. It may he made vpnn affidavits. This method is to be employed when matters outside the proceedingrs at the trial are to be brought to the atten- ion of the court as a basis for the relief asked. It is commonly used in cou- paction with, and supplementary to, the other two methods. 800 Trial Practice [Chap. 17 If the notice designates the grounds npon which tlie mo- tion for a new trial can be based, it is not necessary to make a formal, written motion, repeating the errors as- signed in the notice. A motion is an application for an order. If this notice is what the law requires, and has been duly served on the adverse party, no formal, written application, in addition to the notice, is necessary in order to bring the motion for a new trial to a hearing. The notice is the only written motion required by the statute, and we know of no rule of court requiring such motion to be in writing. The motion to dismiss the appeal is overruled. Section 14. Affidavits. VOSE V. MAYO. United States Circuit Court for the District of Maine. 1871. 3 Clifford, 484. Clifford, Circuit Justice. Power to set aside a verdict before judgment and grant a new trial is vested in the circuit courts "in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law," and the correct mode of applying to the court for the exercise of that power is by a motion for new trial, which, under the rules of the circuit 'COurt in this circuit, must be made in writing, and must, unless the time is enlarged by leave of the court, be filed within two days after the verdict. Such a motion must assign the reasons for the application, and when the motiou is grounded on facts not within the knowl- edge of the providing justice, and not appearing in his min- utes, it must be verified by affidavit, unless the requirement is waivod by the opposite party. No affidavit of merits, however, is required wlicn the motion is properly addressed to the minutes of the presiding justice, as wliere the mo- tion is to set aside the verdict for error of ruling in admit- Sec. 14] New Trials 801 ting or rejecting evidence, or for refusing to instruct the jury as requested, or for misdirection, or because the ver- dict is against law, or against the evidence or the weight of the evidence, as the theory of the motion in all sucli cases is, that all the matters of fact alleged in the motion are within the knowledge of the presiding justice, or that they may be verified by reference to his minutes taken at the trial. Where the motion is for new trial on account of newly discovered evidence, or where the motion is grounded on the charge that tlie oj^posite party or the jury jwere guilty of misconduct in respe^ct to the trial, the rule is different, as the motion in such cases presents a prelimi- nary question whether the facts and circumstances dis- closed are such as to make it the duty of the court to order notice to the opposite party, and to direct the mode in which the proofs shall be taken, and in all such 'Cases the motion must be in writing, and must, unless the require- ment is waived, be supported bv affidavit. Johnson v. Root (Case No. 7, 409); Hill. New Trials, 393, sec. 35; Macy V. De Wolf (Case No. 8, 933). DEAPEE V. TAYLOE. Supreme Court of Nebraska. 1899. 58 Nebraska, 787. Sullivan, J. ********** Immediately after the court announced its findings and rendered its decree Draper and King, each for himself, filed a motion for a new trial based in part on a claim of newly-discovered evidence. Each motion was supported by the affidavit of the attorney representing the parties and was in substance the same as the affidavit previously filed in support of the motion to re-open the 'Cause. Both motions were overruled, and Draper assigns this action of the court for error. His contention is that he made a showing of newly-discovered evidence which ought to have T. p.— 51" 802 Trial Peactice ' [Chap. 17 procured for him a new trial of the issue. Without de- ciding whether there was a sufficient showing of diligence, and without discussing the character of the new evidence and its probable influence as a factor in another trial, we think the district court made no mistake in refusing to va- cate its decree. It^is our understanding of the rule that not only must counsel_uot have kuown of the evidence upon which the application is based, but the applicant himself must have been ignorant of its existence. To be sure the affidavit states that ''neither defendants nor their counsel, by reason of the nature of the evidence, * * * were able sooner to discover said evidence," and "because knowledge of the existence thereof could be but very in- definitely known to any of the parties to the action except the plaintiff." No affidavit was filed by Draper or King, and how their attorney could know that they were ignorant of the facts set out in his affidavit is something we are not quite able to comprehend. At best his statement in re- gard to the matter is the merest hearsay. (14 Ency. PI. & Pr. 823; Hilliard, New Trials (2d ed.) 499; State v. Kel- lerman, 14 Kan. 135 ; Broat v. Moor, 4:4: Minn. 468 ; State v. Campbell, 115 Mo. 391.) There should also have been pre- sented in support of the motion the affidavit of the new wit- ness stilting the facts to which he would testify, or there should liave been a satisfactory reason given for not ob- .taining such affidavit. {Hand v. Langland, 67 la. 185; Quinn v. State, 123 Ind. 59 ; McLeod v. Shelly Mfg. Co., 108 Ala. 81; 14 Ency. PI. & Pr. 825). UA s - r PHILLIPS V. ETIODE ISLAND COMPANY. JL ^Q Aij^/Vc Supreme Court of Rhode Island. 1910. ^ V\^\ 32 Rhode Island, 16. JOHNSOI^, J. This is an action of the case, brought by Samuel Phil- lips against The Rhode Island Company, to recover dam- ages for personal injuries alleged to have been sustained Sec. 14] New Teials 803 through the negligence of the defendant company in the operation of one of its street cars. On April 21st, 1905, the plaintiff was driving a heavy wagon, loaded with oats, drawn by one horse, and was pro- ceeding in an easterly direction from Promenade street across Canal street into Steeple street, in the city of Provi- dence. Canal street running north and south intersects Steeple street running east and west, and Promenade street runs into Canal street nearly opposite Steeple street. The defendant company had a single track running through Steeple street into Canal street, which track, just before reaching the intersection with Canal street, curved in a southerly direction towards the corner of Steeple and Canal streets and extended across Canal street. At the time in question the plaintiff's wagon, going in an easterly direction, had just crossed the tracks in Canal street — fif- teen or twenty feet westerly from the crosswalk at the foot of Steeple street — in order to proceed easterly on the ^,outherly side of Steeple street. Near the crosswalk on Steeple street his wagon came in contact with a car of the defendant company which came down Steeple street to- wards Canal street, and the plaintiff was thrown to the ground and sustained the injuries complained of. The case was tried in the Superior Court with a jury on th€ 21st, 24th, and 25th days of January, 1910, and a verdict was rendered for the plaintiff in the sum of twenty-five hundred dollars. Thereupon the defendant moved for a new trial, alleging as grounds therefor: Fourth : That certain members of the jury before whom said cause was tried were guilty of misconduct in this, that during the progress of said trial, and without the consent of the court, without the knowledge and consent of the at- torneys for the defendant, did take an unauthorized view of the premises where the accident occurred, concerning which said action was brought and prosecuted. Fifth : That certain members of said jury during the progress of said trial did take an unauthorized view of the premises where the accident occurred, concerning which said action was brought and prosecuted, without the knowl- edge and consent of the defendant, and under such circum- 804 Trial Practice [Chap. 17 stances as to be calculated to lead a jury into error in the determination of said case. Certain affidavits were filed by the defendant in sup- port of said motion. The defendant's motion for a new trial was denied by the justice who presided at the trial, and the case is now before this court on the defendant's bill of exceptions. The exceptions pressed by the defendant are to the de- nial of its motion for a new trial upon the several grounds stated therein, the other exceptions stated in the bill being waived. From an examination of the evidence, which was con- flicting:, we are not able to say that the jury was not jus- tified in returning a verdict for the plaintiff, or that the damages are excessive. Upon the question of unauthorised views alleged to have been taken by two of the jurors, the affidavit of one juror was introduced stating that in coming from the restaurant where he had been to dinner, he paced the distance from the '•estaurant to the corner of Canal street, and measured in liis mind the distance from the south ^curbing on Steeple street to the car track and thought it was not enough for a car and team to pass. An affidavit was also introduced stating that another juror had told the affiant that he, said jnror, on Monday, January 24th, went alone to the place of the accident, to see how near his eye measurement would come to that stated in court; that he walked down Steeple street, on the south side of the street, and as he was walk- ing along he thought in his own mind that the distance from Allen & Northup's restaurant to the corner of Canal street was about what was stated in court ; that as he was walking towards the corner of Canal street he had a good view of the space from Steeple street south curbing to the car track, and thought in his own mind that the distance was less than that stated in court; that he thought it would be a close squeeze for a car and team to pass each other when tlie car was on the curve; that he thought in his own mind tiiat if the car was on the straight track on Steeple street that the team could have passed all right. This juror, by his affidavit on file, denied making the statements attributed to him by said affiant, and stated that the only Sec. 14] New Trials 805 view he had of the place of the accident was when the jury took a view, January 21, 1910. It is well settled in this State that the affidavits of jury- men as to what takes place in the juryroom are inadmis- sible to impeach their verdict. In TticAer v. Town Coun- cil of South Kingstoivn, 5 E. I. 558, 560, the court, speaking by Ames, C. J., said: ''The affidavits of the jury-men as to what took place in the jury-room, or as to the grounds upon which they found their verdict, and which were read de bene at the hearing,. must be rejected; a rule of policy, well settled both in England and in this country, excluding, for the security of verdicts, this mode of impeaching them. ' ' The general rule that the affidavits of jurors as to their own misconduct during the trial are inadmissible to im- peach their verdict is, we think, supported by the great weight of authority both in this country and in England. In Owen v. Warhiirton, 4 Bos. & Pull. 326, where the affi- davit of a jur^Tnan, that the verdict was decided by lot, was offered, Mansfield, Ch. J. (pp. 329-330), said: "We have conversed with the other judges upon this subject, and we are all of the opinion that the affidavit of a juryman cannot be received. It is singular that almost the only evidence of which the case admits should be shut out ; but, considering the arts which might be used if a contrary rule were to prevail, we think it necessary to exclude such evi- dence. If it were understood to be the law that a jur^Tnan might set aside a verdict by such evidence, it might some- times happen that a juryman, being a friend of one of the parties, and not being able to bring over his companions to his opinion, might propose a decision by lot, with a view afterwards to set aside the verdict by his own affidavit, if the decision should be against him." In State v. Free- man, 5 Conn. 348, the court, by Hosmer, C. J. (p. 351), said: "In this state, it has been the practice to admit such testimony; but, said Ch. J. Swift (1 Dig. 775.), 'In Eng- land, and in the courts of the United States, jurors are not permitted to be witnesses respecting the misconduct of the jury; for it is a great misdemeanor; and this is most un- questionably the correct principle; for otherwise, a juror, who should be disposed to set aside a verdict, would give information to the party for that purpose; if not so dis- 806 Trial Practice [Chap. 17 posed, he could suppress the information ; and, in that way, any of the jury could command the verdict. ' "The question before us regards a point of practice; and as this cannot have any consequences antecedent to this case, it is competent for the court to decide, un- shackled by precedent, and change the rule, if justice re- quires it." * * * "If the question depended merely on equitable grounds, as relative to the immediate parties to the suit, the testi- mony in question, perhaps, ought to be received. But there are higher considerations to be resorted to. On a principle of policy, to give stability to the verdicts of jurors, and preserve the purity of trials by jury, the evi- dence ought not to be admitted. The reasons assigned by Sir James Mansfield, in Owen v. Warhurton and by Ch. J. Swift, in his digest, are of great weight. The sanction- ing of the testimony of one juror, relative to the misbe- haviour of the rest, would open a door to the exercise of the most pernicious arts, and hold before the friends of one of the parties, the most dangerous temptation. By this capacity of penetrating into the secrets of the jury-room, an inquisition over the jury, inconsistent with sound pol- icy, as to the manner of their conduct, and even as to the grounds and reasons of their opinions, maght ultimately be established, to the injury and dishonour of this mode of trial; imperfect, undoubtedly, but the best that can be de- vised. And under the guise of producing equity, there might be generated iniquity, in the conduct of the jurors, more to be depored than the aberration from law, which, undoubtedly, sometimes takes place. "The opinion of almost the whole legal world is adverse to the reception of the testimony in question; and, in my opinion, on invincible foundations." In the cases cited supra, the affidavits of the jurors were offered as to their misconduct in the juryroom. Wliere the affidavits of jurors have been offered as to their mis- conduct outside of the juryroom to impeach their verdict, the same rule of public policy has generally been applied by the courts. Thus in Chadbourn v. Franklin, 5 Gray 312, where defendant moved for a new trial, and in sup- port of the motion offered one of the jurors as a witness to show that on the Sunday intervening, while the trial was Sec. 14] New Tkials 807 i ii progress, said juror went to the place where the collision Dccurred, and examined it for the purpose of informing himself upon the subject-matter of the trial, and the judge below ruled that the juror could not be permitted to tes- tify, in support of this motion, to these acts tending to show his own misconduct, and the defendant excepted, the court, Shaw, C. J. said: ''The modern practice has been uniform, not to entertain a motion to set aside a verdict on the ground of error, mistake, irregularity or misconduct of the jury, or of any of them, on the testimony of one or more jurors; and it- rests, we think, on sound considera- tions of public policy." In Rowe v. Canney, 139 Mass. 41, 42, the court, by Morton, C. J. said: ''The same consid- erations of public policy protect the communications of jurors with each other, whether in or out of the jury-room, during the pendency of the case on hearing before them." See also Commonivealth v. White, 147 Mass. 76, 80. In Saniiary District v. Cullerton, 147 111. 385, the affi- davits of three of the jurors were offered touching tlie con- duct of others of the jury, and the bailiff in charge, tending to impeach the verdict. It was complained that after they had finished viewing the premises some of the jurors drank intoxicating liquor. The court, p. 390, said : ' ' This court, in an unbroken line of decisions from the case of Forrester V. Guard, Breese, 44, is committed to the doctrine that the affidavits of jurors can not be received for the purpose of showing cause for setting aside the verdict. There may be dicta in some of the cases intimating a contrary rule, but in every case where the question has been before the court, and determined, the principle has been adhered to;" and again, p. 391: "In trials in the courts of justice not only should there be absolutely nothing improper permit- ted, but, to the end that respect for the administration of the law may be maintained, the very appearance of evil should be avoided, and the courts are clothed with ample power to punish, appropriately, the misconduct of jurors, and of others in their presence, and no court ought to hesi- tate to impose adequate penalties and set aside verdicts where there has been conduct by which the jury may have been improperly influenced, or the verdict has been the re- sult of improper conduct on the part of jurors. But to permit the affidavits of jurors to be heard, showing that 80B Teial Peactice [Chap. 17 the verdict to which they, on tlieir oaths, consented, was the result of improper influence or corrupt practice, 4s condemned by the clearest principles of justice and public policy.' But few verdicts in important cases would be permitted to stand. Litigants, in whose favor verdicts might be rendered, would be placed at the mercy of cor- rupt jurors. Litigation would be increased, the widest door thrown open to fraud and perjury, and the adminis- tration of the law brought into contempt. ' ' In Eeldmaier v. Relior, 90 111. App. 96, the court, at p. 98, said: "Upon motion for a new trial, affidavits were pre- sented, stating that two of the jurors admitted after the trial, that, during its progress, they examined a stone- wagon to ascertain whether the boy could have been rolled under such a wagon as appellee's testimony tended to show he had been. This was a controverted point. The wagon said to have been so examined was not that by which the in- jury was inflicted. It is claimed that by reason of such al- leged misconduct of the jurors the verdict should have been set aside. The affidavits purport to show that the jurors ex- pressed themselves after the verdict, as satisfied, from such examination, that there was ample room for the boy's body under the platform of such a wagon. These affidavits are not by the jurors themselves, but by the de- fendant and others. It is settled law in this state that the affidavits of jurors can not be received for the purpose of showing cause for setting aside a verdict. Sanitary Dis- tract V. Cullerton, 147 111. 385, and cases there cited. If affidavits of jurors themselves can not be so received, it is apparent that affidavits setting forth statements made by jurors after the close of a trial, must be equally inad- missible. If these affidavits could be considered and were to be accepted as stating facts, the judgment of the two jurors in question would appear to have been influenced by incompetent evidence which could not have been ad- mitted at the trial. The jury are required to rely on the evidence introduced in court and are not permitted to ob- tain it outside. But to permit the introduction of affi- davits to impeach the conduct of jurors upon hearsay state- ments said to have been made by them, or even upon their own affidavits, after their connection with the case has ter- minated and they have been discharged, would open the Sec. 14] New Teials 801' door to endless attacks upon verdicts, invite fraud, and place litigants at the mercy of jurors dissatisfied, or open to corrupting influences." In Clark v. Famous Shoe Etc. Co., 16 Mo. App. 463, the court, p. 467, said: ''We have also examined the defend- ant's complaint founded on the alleged misconduct of a juror. That misconduct consisted, as the record shows, of the juror going to the building where the accident oc- curred, after the trial began, inspecting it and making some measurements, for the purpose, as he says, of verify- ing the correctness o'f the plats offered in evidence, and of seeing whether the place was dangerous. The general rule undoubtedly is that the triers of the fact should derive their information from the evidence offered on the trial of the cause and the law as given to them by the court. They are sworn to do so and are guilty of misconduct if they vio- late their oaths in that regard. If the misconduct of the juror in this case would have been substantiated by any- thing beyond his own testimony, we would have felt at lib- erty to consider it, and determine whether it was such as to deprives the plaintiffs who were wholly innocent of the ben- efit of their verdict. But the only evidence found in the record of the alleged misconduct of the juror, is his own testimony given in court upon the hearing of the motion for a new trial. This testimony we are not at liberty to consider, nor should the trial court have considered it, be- cause under the rule now prevailing in this state, the testi- mony of a juror tending to impeach his verdict, can not be received, and it seems to make no difference in that regard, whether the alleged misconduct took place in or out of the jury-room." ********** In Deacon v. Shreve, 22 N. J. L. 176, the court said, at page 182: "The principle is now well settled, that gener- ally the affidavits of jurors shall not be received as to what took place in the jury-room, or elsewhere, to show misbe- haviour, or on the delivery of the verdict to show mistake, for the purpose of correcting or destroying the verdict, though it seems their affidavits are admissible for the pur- pose of exculpation. The rule stands on the ground of public policy, courts being unwilling to permit a dissatis- 810 Trial Practice [Chap. 17 fled juror by such means to destroy a verdict to which he liad given a public assent." ^ In Doivner v. Baxter, 30 Vt. 467, after the case had beer given to the jury, the officer in charge allowed the jury t^ separate, and they went to their respective boarding-houses for dinner, returning thence to the juryroom and resuming the consideration of the case. The affidavits of all the jurors were read, stating that after they were impanelled to try the cause they had no conversation with any one touching it, except among themselves. The court, p. 475, said: ''An objection was taken to the competency of the affidavits of the jurors and their admissibility raises a legal question which we are called upon to decide. We think the true rule is, that the affidavits of jurors may be readto^^culpate themselves' and sustain their verdict, but not t O-impeach it. In this case they were offered to show that the jurors had no conversation with others, nor heard any in relation to the cause." In Siemsen v. Oakland, etc., Electric R. Co., 134 Cal. 494, where an unauthorized view was alleged, the court said, p. 497; ''However the rule may be in other states, it is set- tled in this beyond controversy that a juror may impeach his own verdict upon no other ground than that designated by the code (citing cases). It is sought by respondent, upon this motion, to make a distinction between the mis- conduct of a juror before retiring, and the misconduct of a juror during retirement ; but to this it may be said, in the language of Boyce v. California Stage Co., 25 Cal. 463: 'In conclusion, upon this branch of the case we may add that a line of judicial decisions which struggles to multiply ex- ceptions to a plain and simple rule founded on considera- tions of the wisest policy, is not to be favored ; on the con- trary, the struggle should be to bring every case within the rule, lest the rule itself become shadowy, and in time wholly disappear in a multitude of exceptions.' " See also Pick- ens V. Boom Co., 58 W. Va. 19; 29 Cyc. 982, 983, and cases cited: Thompson and Merriam on Juries, sec. 440 and cases cited. In some States affidavits of jurors as to their own mis- conduct outside the juryroom during the trial are ad- mitted to impeach their verdict. Pierce v. Brennan, 83 Minn. 422; Peppercorn v. Black River Falls, 89 Wis. 38; Sec. 14] New Tkials 811 Roller V. Bachman, 5 Lea. 153. In Iowa it has been held that affidavits of jurors may be received, for the purpose ^{ avoiding a verdict, to show any matter occurring during he trial, or in the juryroom, which does not essentially inhere in the verdict itself. Wright v. I. £ M. Tel. Co., 20 Iowa, 195. This was a case of misconduct in the juryroom. This rule has been followed in Kansas, — Perry v. Bailey, 12 Kan. 539. We are not, however, convinced by the rea- soning of these cases. We are of the opinion that the affidavits of jurors as to their own misconduct in or out of the juryroom during the trial are inadmissible to impeach tlieir verdict. The objection on the ground of public pol- icy is just as strong in the one case as in the other. The affidavit of the juror in this case was inadmissible as to his own misconduct in taking an unauthorized view, to impeach the verdict, and therefore can not be considered. An affidavit to the declaration of a juror impeaching the verdict, besides contravening the same rule of policy, is condemned by the ordinary rule of evidence, excluding hearsay testimony. The defendant's exceptions are overruled, and the case is remitted to the Superior Court with direction to enter judgment upon the verdict. -^^ MATTOX Y. UNITED STATES. Jal) Supreme Court of the United States. 1892. 146 United States, 140. This was an indictment charging Clyde Mattox with the murder of one John Mullen, about December 12, 1889, in that part of the Indian Territory made part of the United States judicial district of Kansas by section two of the act of Congress of January 6, 1883, (22 Stat. 400, c. 13,) en- titled "An act to provide for holding a term of the Dis- trict Court of the United States at Wichita, Kansas, and for other purposes." Defendant pleaded not guilty, was put upon his trial, October 5, 1891, and on the eighth of that month was found 812 Trial Peactice [Chap. 17 guilty as charged, the jury having retired on the seventh to consider their verdict. Motions for a new trial and in arrest of judgment were severally made and overruled, and Mattox sentenced to death. This writ of error was there- upon sued out. In support of his motion for new trial the defendant of- fered the affidavits of two of the jurors that the bailiff who had charge of the jury in the case after the cause had been heard and submitted, "and while they were deliberat- ing of their verdict," "in the presence and hearing of the jurors or a part of them, speaking of the case, said 'After you fellows get through with this case it will be tried again down there. Thompson has poison in a bottle that them fellows tried to give him.' And at another time, in the presence and hearing of said jury or a part of them, refer- ring to the defendant, Clyde Mattox said: 'This is the third fellow he has killed.' " The affidavit of another juror to the same effect in respect of the remark of the bailiff as to Thompson was also offered, and in addition, the affidavits of eight of the jurors, including the three just mentioned, "that after said cause had been submitted to the jury, and while the jury were deliberating of their verdict, and before they had agreed upon a verdict in the case, a certain newspaper printed and published in the city of Wichita, Kansas, known as The Wichita Daily Eagle, of the date of Thursday morning, October 8, 1891, was in- troduced into the jury room ; that said paper contained a comment upon the case under consideration by said jury, and that said comment upon said case so under considera- tion by said jury, was read to the jury in their presence and hearing; that the comment so read to said jury is found upon the fifth page of said paper, and in the third column of said page, and is as follows : ********** Mr. Chief Justice Fuller, after stating the case, deliv- ered the opinion of the court. The allowance or refusal of a new trial rests in the sound discretion of the court to which the application is ad- dressed, and the result cannot be made the subject of re- view by writ of error, Bciulerf^on v. Moore, 5 Cranch, 11; Newcomh v. Wood, 97 TJ. S. 581 ; but in the case at bar the Sec. 14] New Teials 813 District Court excluded the affidavits, and, in passing upon the motion, did not exercise any discretion in respect of the matters stated therein. Due exception was taken and the question of admissibility thereby preserved. It will be perceived that the jurors did not state what influence, if any, the communication of the bailiff and the reading of the newspaper had upon them but confined their statements to what was said by the one and read from the other. In United States v. Reid, 12 How. 361, 366, affidavits of two jurors were offered in evidence to establish the read- ing of a newspaper report of the evidence which had been given in the case under trial, but both deposed that it had no influence on their verdict. Mr, Chief Justice Taney, de- livering the opinion of the court, said: ''The first branch of the second point presents the question whether the affi- davits of jurors impeaching their verdict ought to be re- ceived. It would, perhaps, hardly be safe to lay down any general rule upon this subject. Unquestionably such evi- dence ought always to be received with great caution. But cases might arise in which it would be impossible to re- fuse them without violating the plainest principles of jus- tice. It is, however, unnecessary to lay down any rule in this case, or examine the decisions referred to in the argu- ment. Because we are of opinion that the facts proved by the jurors, if proved by unquestioned testimony, would be no ground for a new trial. There was nothing in the newspapers calculated to influence their decision, and both of them swear that these papers had not the slightest in- fluence on their verdict." The opinion thus indicates that public policy which forbids the reception of the affidavits, depositions or sworn statements of jurors to impeach their verdicts, may in the interest of justice create an exception to its own rule, while, at the same time, the necessity of great caution in the use of such evidence is enforced. There is, however, a recognized distinction between what may and what may not be established by the testimony of jurors to set aside a verdict. This distinction is thus put by Mr. Justice Brewer, speaking for the Supreme Court of Kansas in Perry v. Bailey, 12 Kans. 539, 545: ''Public policy forbids that a matter resting in the personal consciousness of one juror 814 Trial Peacticb [Chap. 17 should be received to overthrow the verdict, because being personal it is not accessible to other testimony; it gives to the secret thought of one the power to disturb the ex- pressed conclusions of twelve; its tendency is to produce bad faith on the part of a minority, to induce an apparent acquiescence with the purpose of subsequent dissent; to induce tampering with individual jurors subsequent to the verdict. But as to overt acts, they are accessible to the knowledge of all the jurors ; if one affirms misconduct, the remaining eleven can deny; one cannot disturb the action of the twelve; it is useless to tamper with one, for the eleven may be heard. Under this view of the law the affidavits were properly received. They tended to prove something which did not essentially inhere in the verdict, an overt act, open to the knowledge of all the jury, and not alone within the personal consciousness of one." The subject was much considered by Mr. Justice Gray, then a member of the Supreme Judicial Court of Massa- chusetts, in Woodward v. Leavitt, 107 Mass. 453, where numerous authorities were referred to and applied, and the conclusions announced, "that on a motion for a new rial on the ground of bias on the part of one of the jurors, 'he evidence of jurors as to the motives and influences which affected their deliberations, is inadmissible either to impeach or to support the verdict. But a juryman may testify to any facts bearing upon the question of the exist- ence of any extraneous influence, although not as to how far that influence operated upon his mind. So a juryman may testify in denial or explanation of acts or declarations outside of the jury room, where evidence of such acts has been given as ground for a new trial." See, also, Ritchie V. Holhrook, 7 S. & R. 458; Chews v. Driver, 1 Cox (N. J.), 166; Nelms v. Mississippi, 13 Sm. & Marsh. 500; Hawkins V. Netv Orleans Printing Co., 29 La. Ann. 134, 140; Whit- ney V. Whitman, 5 Mass. 405 ; Hix v. Drury, 5 Pick. 296. We regard the rule thus laid down as conformable to right reason and sustained by the weight of authority. These affidavits were within the rule, and being material their exclusion constitutes reversible error. A brief ex- amination will demonstrate their materiality. ********** The judgment is reversed, and the cause remanded to Sec. 14] New Trials 815 the District Court of the United States for the District of Kansas, with a direction to grant a new trial. WOLFGRAM V. TOWN OF SCHOEPKE. Supreme Court of Wisconsin, 1904. •123 Wisconsin, 19. Action for personal injuries from a hole in a country highway, left by the town authorities in original construc- tion by merely covering the same with poles. Special ver- dict of twenty questions returned by jury, finding all ma- terial facts in favor of the plaintiff except that question No. 16, ''Was plaintiff guilty of any want of ordinary care which .contributed to injury he received?" was answered "Yes." Plaintiff produced affidavits of all twelve jurors to the effect that all the jurors agreed that plaintiff was not guilty of any want of ordinary care, and that the in- sertion of the answer ''Yes" instead of the word "No" was a mistake. The foreman, agreeing with these facts, states that he intended to write answer to the sixteenth question so as to find that said plaintiff was not guilty of any want of ordinary care which contributed to his in- jury. Upon these affidavits the plaintiff moved, first, that the answer "Yes" to the sixteenth question be stricken out, and the answer "No" be inserted in lieu thereof, and for judgment upon the verdict as so amended, basing the request also on the contention that there was no evidence to sustain the affirmative answer to that question. That mo+ion was denied, from which denial the plaintiff appeals. Thereupon plaintiff moved on minutes and said affi- davits for a new trial. Defendant moved to strike out jurors' affidavits. The court entered its order reciting that the motion was based on a mistake in the verdict and on the lack of support from evidence, whereby it denied de- fendant's motion to strike out said affidavits, "excepting that said affidavits be received and considered only as tend- ina- to show that there was a mistrial by reason of a mis- take by the jury in writing the answer to question No. 16," 816 Tbial Peactice [Ciiap. 17 but rejecting said affidavits in as far as they "tend, gen- erally, to impeach or contradict said special verdict." The court entered further order granting plaintiff's motion to set aside the verdict and awarding a new trial, no costs be- ing imposed on either party. From that order the de- fendant appeals. Dodge, J. * * * * * It is, however, probably true that the new trial was granted because the court was convinced by the jurors' affidavits that the written verdict did not express the con- clusion of the jury, and that the peril of injustice from en- try of judgment for defendant was so great that, in exer- cise of the discretion vested in him, a new trial ought to be had. This view presents the question whether the affi- davits of jurors could be received as evidence of the facts they state. The general rule is very ancient, and often reiterated, that the statements of the jurors will not be received to establish their own misconduct or to impeach their verdict. Edmister v. Garrison, 18 Wis. 594, 603. An excellent collection and analysis of decided cases will be found in Woodivard v. Leavitt, 107 Mass. 453. From this it appears that the early idea was that of secrecy in their deliberations, and, further, the impropriety of receiv- ing jurors' statements as to their mental processes, wheth- er to impeach or support their verdict. This rule, in its application, has been subjected to much of refinement and qualification by different courts, involving conflict of dicta and of actual decision which it would not be profitable to review in detail nor possible to harmonize. The neces- sity of some limitation to the general rule against receiv- ing statements of the jurors is declared in McBean v. State, 83 Wis. 206, 209, 53 N. W. 497. In some cases the rule is limited to things which transpire in the jury room or in court, but it will be found in most of those cases also lim- ited to matters involved in reaching the verdict. This lim- itation was recognized and applied in Hempton v. State, 111 Wis. 127, 145, 86 N. W. 596; Roman v. State, 41 Wis. 312; Schissler v. State, 122 Wis. 365, 99 N. W. 593; Pep- percorn V. Black River Falls, 89 Wis. 38, 41, 61 N. W. 79; Mattox V. V. S., 146 U. S. 140, 13 Sup. Ct. 50. _ In line with the same idea are a number of decisions drawing a distin^c- Sec. 14] New Trials 817 tion between the proceedings involved in reaching and agreeing upon the verdict and the mere act of expressing it, either orally or in writing. The following cases recog nize such distinction, and hold that the reasons excludin.L' jurors' testimon}^ as to their conduct in the former stage do not exclude their evidence as to what really was the ver- dict agreed on in order to prove that it has not been cor- rectly expressed, through mistake or otherwise: Cogan v. Ebden, 1 Burrows, 383; Roberts v. Hughes, 7 Mees. & W. 399; Little v. Larrahee, 2 Greenl. 37; Weston v. Gilmore, 63 Me. 493; Peters v. Fogarty, 55 N. J. Law, 386, 26 Atl. 855; Jackson v. Dickenson, 15 Johns. 309; Dalrymple v. Williams, 63 N. Y. 361; Hodgkins v. Mead, 119 N. Y. 166, 23 N. E. 559; Capen v. Stoughton, 16 Gray, 364; Pelzer Mfg. Co. V. Hamburg-B. F. his. Co., 71 Fed. 830. Several of these cases were cited with approval of this very dis- tinction in McBean v. State, snpra. Against their doc- trine we find Polhemus v. Heiman, 50 Cal. 438 ; Murphy v. Murphy, 1 S. Dak. 316, 47 N. W. 142, and McKinley v. First Nat. Ba7ik, 118 Ind. 375, 21 N. E. 36. Of these, the first two seem to be controlled by local statutes, and are therefore not persuasive. The Indiana case, however, squarely de- nies the admissibility of jurors' testimony to prove that the written answer to a special question was the reverse of the agreement in fact reached. This view is based on the rule that jurors cannot "impeach their own verdict." But is it an attempt to impeach their own verdict? That de- pends on the sense in which that word is used. Is the written paper filed, or the agreement which the jury reach, the verdict? We think the latter is what is intended when we say the jurors cannot impeach it. The former, like most records or writings, is but the expression or evi- dence of some mental conception. Hence it may well be said that a showing that such writing is not correct is not impeachment of the verdict itself. The repudiation of written expressions, when, by mistake, they fail to ex- press the intention or mental concept, is familiar in the law. A writing is not a contract when it fails to express that on which tlie minds of the parties met, and courts freely exercise power to correct mistakes when the proof leaves no doubt that the real contract was something else. That which derides the rights of parties litigant is the T. p.— 52 818 Tkial Practice [Chap. 17 unanimous agreement of the jurors. Each party is en- titled to such judgment as results from that agreement. Any other is presumptively unjust, and any rule that ne- cessitates it is unreasonable, unless supported by consid- erations of public policy, or of such danger from opening the door to investigation that wrong is likely to be done oftener than the right promoted. We are persuaded that the reasons which should exclude a juror from showing that he made a mistake in reaching his conclusion (see Murdoch v. Sumner, 22 Pick. 156) do not extend to a show- ing that the words used in conveying it to the court, or enrolling it on the records, by mistake of the person uttering or writing them, fail to express the conclusions reached by all the jurymen. Of course, the showing of the latter fact must be clear beyond peradventure ; at least to warrant a change in the written verdict and final judgment thereon. If the slightest doubt lurks in the mind of the court, he should confine relief to the granting of a new trial, which, of course, he may always order when there is reasonable cause to believe that the judgment will do injustice. Some courts incline to the view that a new trial is the only relief after the jury have separated. Little v. Larrahee, supra; Weston V. Gilmore, 63 Me. 493. But the clear weight of authority is that, upon sufficiently clear showing of the mistake, and of what was the verdict agreed on and in- tended to be expressed, the court may substitute a true expression for the incorrect one, and enter judgment ac- cordingly. See Cogan v. Ehden, supra; Peters v, Fogar- ty, supra; Dalrymple v. Williams, supra; Hodgkins v. Mead, supra; Pelzer Mfg. Co. v. Eamhurg-B. F. Ins. Co., supra. We conclude, therefore, that the trial court properly re- ceived and considered the affidavits of the jurors in this case ; that they at least sufficed to satisfy the court of great danger of injustice being done by entry of judgment in ac- cordance with the written verdict, and therefore justified him in exercising his discretion to relieve plaintiff from the predicament in which he stood by awarding him an- other trial. Wliothor such affidavits made so plain a case as to entitle plaintiff to correction of the verdict and judgment in his favor is a question not open to plaintiff on this appeal. Plaintiff might probably have raised it had Sec. 14] New Trials 819 he refrained from motion for new trial and appealed from a judgment in defendant's favor. When, however, he made the latter motion, he appealed to the court's discre- tion to relieve him from the adverse situation which, while lot due to his fault or mistake, was due neither to any mis- conduct of the jury nor error of the court. He had no absolute right to such relief, but merely to have the court exercise a judicial discretion whether it ought to be ac- corded him. The situation does not fall within any of those where it is held proper to grant the relief without terms, under the authorities on the subject above cited. We are brought to the conclusion, therefore, that the court committed no error in awarding new trial; but, whether it was granted because the verdict, as filed, was against the weight of evidence or was impugned by the affidavits of the jurors, error was committed in failing to imj^ose reasonable terms as a condition. What those terms should be is a subject for consideration primarily by the trial court. B^ the Court. — Plaintiff's appeal is dismissed. Upon defendant's appeal the order is reversed, and cause re- manded with directions to embody in the order granting new trial the payment of reasonable terms by plaintiff as a condition. CHAPTER XVIII. TRIAL AND FINDINGS BY THE COURT. FOWLER V. TOWLE. Supreme Judicial Court of Neiv Hampshire. 1870. 49 New Hampshire, 507. This was a writ of error, brought by Cyrus Fowler and others against Elias Towle. The writ of error is dated October 1, 1869. The original action was replevin, for a meeting-house bell, in favor of Towle, against Fowler and others. The plea was non cepit, with a brief statement, giving notice of title to the bell in the defendants and others. By consent of the parties, the action was tried by the court at Free- dom, after the adjournment of the May term, 1868. Neither r»arty requested the court to report the facts found, nor 'he conclusions of law upon them. At the close of the 'rial, the cause was reserved for consideration upon writ- ten arguments, and the finding of the court was subse- quently filed in the clerk's office. The finding, after giv- ing a description of the action, concludes as follows : "The case was well tried, and the evidence and law were well argued by the respective counsel engaged, in writing. The court, after a mature examination and consideration of the facts and evidence, and the law applicable thereto, has 'Come to the conclusion, that the said Elias Towle re- cover of said defendants one dollar, for his alleged dam- ages for the alleged caption and detention of said bell men- tioned in his declaration; and also that plaintiff be re- stricted to the recovery of one dollar in full of all costs whatsoever in this suit. Gr. W. N., Jus. &c. ''The finding of the court is also upon the further limi- tation and condition, that if the defendants shall under- take either by transfer of the action to the full court or otherwise, to delay immediate judgment according to the aforesaid finding of the court, then the plaintiff by way of 820 Chap. 18] Teial and Findings by the Court 821 penalty, shall be allowed to recover the whole amount of his legal costs from the beginning, and also if the plaintiff shall attempt to transfer this action as aforesaid or other- wise disturb the aforesaid finding of the court, then, in such case, the court orders that, by way of penalty, the aforesaid finding shall be wholly reversed and annulled, and that the said defendants recover as damages against said plaintiff the value of the bell, being three hundred dol- lars, with interest from the 5tli day of July, A. D. 1867, and full costs of court. G. W. N., Jus. &c. "The action on the docket having been continued nisi judgment is therefore ordered as of the last term for plain- tiff for one dollar debt, and one dollar costs, and the clerk will enter it up accordingly. G. W. N., Jus. &c." ********** In the assignment of errors in this case the plaintiffs in error pray that "the judgments aforesaid may be reversed and held for nothing, and that they may be restored to all things they have lost by reason thereof." ********** The defendant in error moved to quash the writ of error upon its return into court, and the parties agreed that "pleas may be filed and argued without prejudice to de- fendant's motion to quash in the same brief in which said motion is argued." No plea has been furnished, and the defendant in error relies solely upon his motion to quash. Sargent, J. The first ground taken by defendant in error, on his motion to quash is, that in this class of cases, error does not lie. That the proceeding being entirely by force of special statute, is not a proceeding according to the course of the common law, and therefore that cer- tiorari should have been the form of proceeding instead of error. Wliat are the statute provisions applicable to this case? Sees. 1 and 2 of chap. 189, (lenl. Stats., prescribe the juris- diction of this court at the law terms, while sec. 3 does the same at the trial terms, as follows: "At the trial terms they shall take cognizance of civil actions and pleas, real, personal and mixed, according to the course of the com- mon law," etc. Sec. 4 then provides that "in civil actions 822 Trial Peactice [Chap. 1^' the court shall try the facts in controversy and assess the damages, if the parties so elect, and judgment rendered on such trial shall be conclusive as if rendered on the verdict of a jury;" and sec. 5 provides that "the decision of the court in such case, shall be in writing, if either party so requests, stating the facts found and the conclusions of law upon them, which shall be filed and recorded, and either party may except to any ruling or decision of the court in matters of law in the same manner and with like effect, as upon a trial by jury. ' ' Now the question is, whether the substitution of the court for the jury, to settle the questions of facts, by agree- ment of parties, so far changes the nature of the whole pro- ceeding, that it is no longer ''a civil action or plea" prose- cuted "according to the course of the common law?" The writ is the same; the service the same; the entry in the court the same; the defendant's appearance the same; the pleadings the same; the issue joined is the same; and, af- ter verdict, the judgment must be the same; and shall have the same effect, as though rendered upon a verdict of the jury; and provision is made, that either party requesting it, shall have the decision in writing, and may except to any ruling or decision of the court in matters of law, in the same manner, and with the same effect, as upon a trial by jury. When all these facts are considered, and also the fact that it is only by agreement of the parties, that this change can be made, and that all the proceedings, both before and after trial, are to be the same in both cases, we are satis- fied that this arrangement of the parties as to the trier of the facts, does not change the nature of the proceeding any more than it does the form, and was not designed to change either. It is a sufficient answer to this suggestion, that if by this agreement of the parties, and this trial of the facts by the court instead of a jury, the proceeding is changed so as to be no longer a "civil action or plea according to the course of the common law," then the court at the trial term would no longer have jurisdiction of the case, be- cause it clearly does not come under any of the other heads enumerated in sec. 3, and unless it continues to be what it was when it was commenced, viz., a civil action or plea ac- Chap. 18] Trial and Findings by the Court 823 cording to the course of the common law, the court would cease to have jurisdiction of the same at the trial term, be- cause it is only as such an action or plea, that the court at that term has any jurisdiction of the case. This position of the defendant in error is not well taken. A writ of error would be the proper remedy in a case tried by the court, under sees. 4 and 5 in all cases, where it would be the remedy if the same case had been tried by the jury, instead of the court. The court was substituted for the jury in this case, to try the facts, by express agree- ment of the parties; but while the court thus settles the questions of fact, in the capacity of a jury, still the judge retains all his powers as judge in questions of law, and may exercise the same discretion in allowing or limiting costs, that he might before, so that while acting as a jury, to try the facts, he has no power over the costs, either to allow or disallow, or limit, yet as judge, he may pass upon the question of costs. And while the judge who thus acts in the double capacity of judge and jury has, and may exercise all the powers both of the judge and jury, still he has no powers in addi- tion to those which the court and jury have in any ordin- ary case. Having premised thus much, in relation to the powers and duties of the judge, who acts as judge and jury both, in the trial of a cause, let us look at the verdict in this case, and see how much of it is a finding upon ques- tions of fact, and what part of it is simply a ruling upon questions of law, or the exercise of the discretion vested in the court. So far, as the limiting of the original plaintiff's costs is concerned, that was a matter within the discretion of the court, as a court, and had nothing to do with the find- ing of the facts, and no exception would lie to the ruling of the court, upon a matter like this, which is placed by law in the discretion of the court, and it seems equally well set- tled, that a writ of error will not lie in such a case. Rochester v. Roberts, 29 N. H. 360, 368. To this part of the verdict, then, there could be no ex- ception, and there was no error. And if there had been error in this, the plaintiffs in review being the original defendants, would liardly insist upon having that cor- rected, and being compelled to pay full costs, instead of 824 Trial Peactice [Chap. 18 the limited amount fixed by the judge who tried this cause. That is not one of the errors assigned in this case. The other part of the verdict (omitting now the condi- tional portions of it) is "that said Towle recover of said Fowler & als. one dollar as damages for the caption and detention of said bell mentioned in his declaration." As there was no request to state in writing either the facts found, or the conclusions of law upn the facts in the case, by either side, we think this finding is plain, intelligible and explicit enough, to answer the requirements of the law. In order to reach that conclusion, the facts found must have been, that the bell in question belonged to Towle, and as he had taken the bell into his possession upon the replevin writ, all he could recover would be the dam- ages for the wrongful taking and detention of it, and that is, what he does recover by this verdict and judgment. This is such a finding that judgment may be properly rendered upon it. ********** Let us next consider the remaining or conditional por- tion of the verdict in this case. It will be observed, that the finding of the court is in three separate and distinct parts ; the first and third relate to the same subject-matter; the first, the finding of one dollar damages and the limiting the costs to one dollar; the third, ordering a judgment on that finding, according to its terms. These, too, are con- sistent with each other, and are perfect in themselves, and each is signed separately, and neither of them contains anything, as matter of fact, which the presiding judge might not properly find, acting in place of a jury, or as matter of law, which the same judge acting as court, might not properly do and order. But the second or conditional part of the verdict is all inconsistent with the other findings, it is all conditional, not upon the law or facts of the case, but upon the future conduct of the parties, and was intended to be held over both parties, as it would seem, in ierrorem, in order to in- duce them to abide by the first award, and submit to the judgment, which was ordered thereon. This portion of the verdict is entirely separate from all the rest, and is signed separately. Chap. 18] Trial and Findings by the Court 825 Whence did the presiding judge, who tried this cause, derive his power to make orders as to the future conduct of these parties? The power to deprive them of rights which the law had given them, the power to punish them for resorting to those remedies which the law has pro- vided for all good citizens ? He could not derive this power from the agreement of the parties, because this agreement was simply, that the court should act in the place of the jury in finding the facts in the case, and gave the court no additional powers as a court. After that agreement, the presiding judge, had just the powers he had before as presiding judge, and in addition, the power and authority to find the facts in the case, upon legal testimony, and that was all. A jury may mistake their province, and undertake to find something, that was not in issue, but such part or parts of their verdict would be rejected as surplusage, and only such part as was confined to the issue raised by the pleadings, could stand as a verdict. Tucker v. Cochran, 47 N. H. 54. So far, then, as he acted as a jury, the pre- siding judge, had no authority or power to undertake to regulate the future conduct of these parties, and so far the verdict can have no force or effect. While acting as judge, he had the power to limit costs, in his discretion, and to order judgment upon the verdict he had rendered, still he had no more power than he would have had if the jury had found the verdict upon the evidence. In such case, he would have the power to set aside the verdict if a proper case was made, or to order judgment upon it, or to continue the cause, but he had no power or jurisdic- tion to put the parties under bonds for good behavior, without the proper complaint on oath, nor had he the power to say that they should not avail themselves of all their legal rights and remedies, after the judgment which he might properly render, was entered up. As a part of the verdict, upon the facts, this portion would be merely surplusage, and would all be rejected, and as an order of the court, or a part of the judgment, it was extra-judicial, was without authority, and without legal effect, a mere nullity, not voidable merely but abso- lutely void. There is no doubt, therefore, that the second judgment 826 Trial Peactice [Chap. 18 ';vould be reversed, ll' the question were brought before the court at the proper time and in the proper way. But tlie question here is, whether a writ of error is the proper way to bring the matter before the court at this time. When this case was brought forward, and the new judgment was rendered, it was at a regular term of the court, when counsel were present, as it was their duty to be, and had every opportunity to take exceptions. All the objections existed then that exist now, and if the proper exceptions had been taken to the rulings and orders of the court at that time, the judgment must inevitably have been reversed. No reason or excuse is given or offered, or pretended to exist, why objection was not then made, and exception taken. * * * Under these circumstances, the plaintiff's in error, hav- ing had ample opportunity to take any and all exceptions, seasonably, and have them considered just the same as upon a writ of error, and having neglected to take any such exceptions at the proper time, they cannot now * * * be heard to raise exception * * * We find no ground, therefore, upon which this writ of error can be sustained, and are of opinion that the motion to quash the writ should be granted. Writ quashed. UTAH NATIONAL BANK OF SALT LAKE CITY V. NELSON. Supr^eme Court of Utah. 1910. Utah, ; 111 Pacific, 907. Action by the Utah National Bank of Salt Lake City, Utah, against Joseph Nelson. From a judgment for plain- tiff, defendant appeals. Affirmed. Plaintiff, a corporation organized and existing under the laws of Congress, brought this action to recover from defendant upon a promissory note. The complaint alleges, in substance: That the defendant, on January 22, 1908, at Salt Lake City, Utah, for value received, executed and Chap. 18] Trial and Findings by the Court 827 delivered to plaintiff his certain promissory note, and thereby promised, on 30 days' demand after date, to pay to the order of plaintiff $13,250, with interest at 6 per cent, per annum from date until paid, and to pay 10 per cent, additional as attorney's fee if the note slionld be placed in the hands of an attorney for collection; that payment of the note was demanded September 11, 1908, bnt the de- fendant refused to pay the same, or any part thereof; that the note was placed in the hands of attorneys for collec- tion. The answer, admitted each alleia^ation in the com- plaint, with the exception that it denied that the note was G^iven ''for value received." The answer also contained the following affirmative allegation, namely; ''That the nromissory note signed by the defendant and delivered ^y him to the plaintiff, as alleged in said complaint, was without consideration, and that no consideration what- "ver passed or was given for the said promissory note; * * that neither the plaintitf nor any other person ever ')aid any sum of money or any other thing, or ever suffered ->r received any detriment as a consideration for the sign- ■ns^ and delivery of the said promissory note; and that -^aid note was whoTv without consideration." The case was tried to the court without a jury. * * * The court, among other things, found, so far as material liere: "That, for a valuable consideration received by de- fendant, he executed and delivered his promissory note (the note in question) to plaintiff; * * * that all of the alle- gations contained in plaintiff's complaint filed herein are true, and all the denials and allegations of said defendant in his answer are untrue, except as to the admissions there- in contained." As a conclusion of law the court found that plaintiff was entitled to judo-ment against defendant for the principal of the note. $13,250, and interest thereon amounting to $1,104.1^, and for attorney's fee amounting +0 $1,325, and rendered judgment in favor of plaintiff for the sum of $15,679.16 and costs of suit. To reverse the iudgment defendant has brought the case to this court on appeal. McCarty, J. (after stating the facts as above). Appel- lant, in his assignment of errors, alleges "that the court erred in that it failed to find the facts, if any there were, constituting, or which could constitute, any consideration S28 Trial Peactice [Cliap. IS for tlie contract or promissory note," and insists that the finding made by the court, namely, "that for a valuable consideration received by said defendant he (the defend- ant) executed the promissory note mentioned," was a mere conclusion of law and not a finding of fact at all * * * In Spelling, New Tr. & App. Pro. <^ 593, the author says ; "If an issue be tendered in general terms and met by a denial in the same form, a finding in the same general form will be sufficient; but, where the pleadings are so framed that the controversy turns upon a particular fact, the find- ing should conform to the issue thus presented and be speci- fic. Accordingly, when only general facts are averred, and the controversy related to the settlement of a long standing account consisting of numerous items, it was held that a general finding of a balance in favor of plaintiff was suf- ficient" — citing with approval the case of Pratalongo v. Larco, 47 Cal. 378. The action in that case was, as stated in the opinion, "for money lent and advanced and paid, laid out, and expended by the plaintiff to and for the use of the defendant and for money had and received by the defendant for the use of the plaintiff. The answer is a general denial and a counterclaim in which the defendant Livers that the plaintiff is indebted to him for money had and received, lent and advanced, and paid, laid out, and ex- pended." So in this case it is alleged in the answer, in general terms, that the note in question "was without con- sideration, and that no consideration whatever passed or was given for the promissory note." The general find- ing that the note was executed "for a valuable considera- tion received by said defendant" negatives the affirmative allegation of the answer and is therefore sufficient. More- over, the authorities seem to hold that findings are sufficient when the facts found are stated in the same way as they are alleged in the pleadings. In Hayne on New Trial, sec. 243, the rule is stated as follows: "Facts may be stated in the findings in the same way they are stated in the pleadings. It is not necessary that the findings should follow the precise language of the pleadings; but the only purpose of findings is to an- swer the questions put by the pleadings, and it seems to be tho received idea that it is sufficient if the answers are ^-'•iven in the same language as the question, and that the Chap 18] Trial and Findings by the Couet 829 two njodes of statement are governed by the same general rules." In 8 Eney. PI. & Pr. 939, it is said: ''It is not necessary that the findings should be in the exact language of the pleadings or in any particular form." The finding com- plained of in this case, while of course not in the exact language of that part of the answer in which want of con- sideration is alleged, nevertheless is directly responsive thereto. And, furthermore, the doctrine is elementary that the findings should, be a statement of the ultimate facts in controversy and not of the evidentiary matters from which the ultimate facts are to be deduced or found. In 8 Ency. PL & Pr. 941, it is said: ''The findings of the court should be statements of the ultimate facts only, and not probative facts * * * The findings should contain a concise statement of the several facts found by the court from the evidence and not the evidence from which they are found." Murphy v. Bennett, 68 Cal. 528, 9 Pac. 738, was an action to recover damages for the tearing down of a barn and converting the materials thereof. It was alleged in the complaint that the plaintiff was the owner of the barn at the time of the alleged conversion. The answer denied the ownership of the plaintiff and set up two affirmative defenses in justification of the taking. The court found that the plaintiff was not, and that the defendant was, the owner of the building, but omitted to find on the affirmative defenses. It was contended that the finding was a con- clusion of law. On appeal the Supreme Court held that the finding on the issue of ownership was sufficient, and that the failure to find on the affirmative defenses did not prejudice the plaintiff. In the course of the opinion the court said: "Here the allegation in the complaint is that the plaintiff 'was the owner of a certain frame building, situate,' etc. The answer denied that plaintiff was the owner of the building. "Wliether plaintiff did own the building or not was then the ultimate fact to be determined, and upon the issue thus raised the court found against the plaintiff. We think it clear that the findings referred to are findings of fact, and not conclusions of law." In the case of Kahn v. Central Smelting Co., 2 Utah, 371, it is said in the syllabus: "A finding 'that there was no 830 Trial Practice [Chap. 1 partnership between the plaintiff and the defendant, is not a conclusion of law, but is a finding of fact." And in the course of the opinion Mr. Justice Emerson, speaking for the court, says: ''The fact that there was a partnership is the ultimate fact alleged in the complaint. There are certain facts and conditions and circumstances set out in the complaint from which this ultimate fact is deduced; that is, there is in the complaint much detail of mere evi- dentiary facts. The material issue of fact is, however: Was there a partnership? And the finding responds to this issue. This was the ultimate fact to be ascertained, and it is none the less a finding of fact because drawn as a conclusion from other facts." This case is cited with approval and the doctrine therein announced reaffirmed by this court in the case of Snyder v. Emerson, Auditor, 19 Utah, 319, 57 Pac. 300, wherein it is held that ''the find- ing that W. F. Critchlow was duly appointed as night jailer is not a conclusion of law, but a finding of an ultimate fact which was an issue." As a test for determining whether the finding in ques- tion is a conclusion of law or a finding of an ultimate fact, let us suppose, for example, that the court had, in the language of the defendant's answer, found "that the prom- issory note signed by defendant and delivered by him to the plaintiff, as alleged in said complaint, was without consideration, and that no consideration whatever ever passed or was given for the said promissory note." Could such a finding be successfully assailed on the ground that it is a conclusion of law and not a statement of an ultimate fact? Certainly not, because it is the only finding that the court could have made had it found on this issue in favor of the defendant, and that, too, notwithstanding this issue was presented by the affirmative allegations of de- fendant's answer and the burden was upon him to prove that the note was executed without consideration. Now, if a finding that the note was executed without considera- tion would be a sufficient finding to support a judgment in favor of defendant, it necessarily follows that a finding that the note was made and delivered "for a valuable con- sideration" is a sufficient finding to support a judgment for ])laintiff. We are clearly of the opinion that tlie finding made by the court is a finding of an ultimate fact, and, Chap. 18] Trial and Findings by the Court 831 as we have stated, it is directly responsive to the affirma- tive allegations contained in the defendant's answer. ********** Judgment affirmed, with costs to respondent. DARLING V. MILES. Supreme Court of Oregon. 1911. 57 Oregon, 593. This is an action by Thomas Darling against S. A. Miles to recover damages suffered by reason of the fraudulent representation made by defendant in the sale of certain lots. The complaint alleges that on "the 20th day of July, 1906, the defendant herein did, with intent to cheat and defraud the plaintiff, falsely and fraudulently represent to the plaintiff that he was the absolute owner in fee, free from incumbrance, of lots six (6) and seven (7) in block five (5), in Pleasant View addition, * * * in the city of Portland, and that lot six (6) was 46.9 feet by 100 feet, * * * when in truth and in fact the defendant at that time was not, and well knew that he was not, the owner of the south fifteen (15) feet of said lot six (6) free from incumbrance, and plaintiff alleges that the public then had a right to use the said 15 feet as a highway, and the defendant then knew it; that plaintiff herein relied upon the truth of the statement of the defendant and believed the same, and on July 20, 1906, he did, by reason of such reliance and belief, purchase * * * and received from the defendant his war- ranty deed, wherein and whereby the grantors certified that the said premises were free from all encumbrances * * * ) > All these allegations are denied by the answer, except that defendant admits the execution and delivery of the deed, with covenants and warranty, as alleged in the com- plaint. The action' was tried by the court without a jury. At 832 Trial Practice [Chap. 18 the close of the testimony the court made the following finding of facts: ''The court finds that on or about the 20th day of July, 1906, the plaintiff purchased from the defendant lots 6 and 7 in block 5, Pleasant View addition, Multnomah County, Oregon, for a valuable consideration, and received from the defendant a general warranty deed therefor. That the south 15 feet of said lot 6 is subject to a right of way of the public to use the same for a highway, and said sale was made without any fraud on the part of the defendant^f and without any fraudulent representations in regard thereto." Judgment was rendered thereon in defendant's favor, from which plaintiff appeals. Reversed. Me. Justice Eakin delivered the opinion of the court. 1. Plaintiff contends that the findings of fact do not support the judgment, and to this we agree. Section 158, B. & C. Comp., provides that when an action is tried by the court, without the intervention of a jury, the decision shall state the facts found, and such decision shall be en- tered in the journal, and judgment entered thereon accord- ingly. The finding that ''the sale was made without * * * any fraudulent representations" only states a conclusion of law. To justify a conclusion to that effect it was neces- sary for the court to find whether or not defendant repre- sented that he was the owner of the lot, free from incum- brance, and that its dimensions were as stated, with knowl- edge on defendant's part that the representations were false or were made recklessly as of his own knowledge, without any knowledge of their truth; and if the court finds that the representations were so made it must also find whether plaintiff relied thereon to his injury : Caivston V. HUiTfiis, 29 Or. 331 (43 Pac. 656). Finding adverse to plaintiff on at least one of these matters is necessary to support the conclusion that there were no fraudulent repre sentation, or to support a judgment to that effect. 2. This court has held in many cases that findings of fact must be made on all material issues necessary to sup- port the judgment. See Wright v. Ramp. 41 Or. 285 (68 Pac. 731); Henderson v. Reynolds, 57 Or. 186 (110 Pac. 979), and cases therein cited. Cliap. 18] Trial and Findings by the Court 83.') 3. Counsel for defendant urges that the proof fails to establish the elements of fraudulent representations al- leged, but the case is not before us upon the evidence. The only means we have of knowing what was proved is from the findings of fact which are silent as to the elements urged here. 4. It is said in Drainage Dist. No. 4 v. Crow. 20 Or. 536 (26 Pac. 846), after quoting from said Section 158, B. & C. Comp: "The object of this statute was to enable the parties to have placed upon the record the facts upon which the right litigated depends as well as the conclusion of law. * * * The facts found are conclusive upon the appellate court, but the conclusions of law are reviewable here on appeal." The facts found must justify the conclusions of law. Otherwise, they are abstract statements and not con- clusions. The judgment is reversed and remanded for a new trial. Reversed. Me. Chief Justice Moore did not sit in this case. SLAYTON V. FELT. Supreme Court of Washington. 1905, 40 Washington, 1. Crow, J. — This action was commenced by appellant, Charles J. Slayton, against respondent, D. W. Felt, to re- cover a broker's commission on the sale of real estate in the city of Seattle. Upon the trial before the court without a jury, appellant presented findings of fact in his favor, which the court declined to make. Judgment was entered dismissing the action. * * * ********** (2) Appellant also contends that the trial court erred in failing to make findings of fact and conclusions of law, separately stated, or at all, and asks that the judgment be T. p.— 53 - 834 Trial Practice [Chap. 18 reversed by reason thereof. Appellant urges that under Bal. Code, Sec. 5029, it was the duty of the trial court to make findings of fact and conclusions of law, separately stated. Respondent contends that, as the final judgment was one of dismissal, findings of fact were unnecessary, citing, Thome v. Joy, 15 Wash. 83, 45 Pac. 642, and Noijes V. King County, 18 Wash. 417, 51 Pac. 1052. Both of said cases were actions in equity. This court has heretofore announced the rule that findings of fact and conclusions! of law are not necessary in equitable actions, but we are not aware of any such announcement being made as to actions at law. We see no reason why findings of fact and con- clusions of law are not just as essential, if properly re- quested, in an action at law when the same is dismissed, as where an affirmative judgment is entered. This being an action at law, the cases cited by respondent do not sus- tain his contention. The question then arises whether the action of the trial court in failing to make findings of fact and conclusions of law amounted to such prejudicial error as would entitle appellant to a reversal. In Wilson v. Aberdeen, 25 Wash. 614, 66 Pac. 95, this court said: "We come now to the consideration of the appellants' contention that the judgment must be reversed because of the failure of the trial court to make findings of fact and conclusions of law. Our statute provides that 'upon the trial of an issue of fact by the court, its decisions shall be given in writing and filed with the clerk. In giving the decision, the facts found and the conclusions of law shall be separately stated. Judgment upon the decision shall be entered accordingly.' Bal. Code § 5029; 2 Hill's Code, § 379. This provision of the code is in form mandatory, and this court has several times held, in effect, that in actions at law tried by the court without a jury, findings of fact and conclusions of law are necessary to support the judgment. See, Bard v. Kleeh, 1 Wash. 370, 25 Pac. 467: Kilroy v. Mitchell, 2 Wash. 407, 26 Pac. 865 ; King County V. Hill, 1 Wash. 404, 25 Pac. 451; Sadler v. Niesz, 5 Wash. 182, 31 Pac. 630. 1030; Potivin v. Blasher, 9 Wash. 460, 37 Pac. 712. But in more recent cases it has been decided ; that a judgment will not be reversed on appeal for want of findings of fact and conclusions of law, where it is not made to appear by the record that there was any request Chap. 18] Tkial and Findings by the Couet 835 for such findings and conclusions, or any objection raised i upon that account. Washington Rock Plaster Co. v. John- * yon, 10 Wash. 445, 39 Pac. 115; Remington v. Price, 13 \Vash. 76, 42 Pac. 527." It is true that appellant did request the trial court to make findings of fact in favor of himself, upon the issues raised by the pleadings, the same being claimed by him to be warranted by the evidence admitted. The court, not thinking the evidence warranted such findings, refused to sign the same. It do«s not appear, however, that appellant at any time requested the court to make such findings of fact and conclusions of law as it might determine to be proper or warranted by the evidence. We think this re- (piest should have been made, before appellant would be entitled to base a successful assignment of error upon the refusal of the court to make any findings whatever. The findings requested by appellant are shown in the record, and afford him an opportunity, of which he has availed himself, to assign error upon the refusal of the trial court to make the same. He has been deprived of no legal or valuable right in that direction. This court in Bard v. Kleeh, 1 Wash. 370, 25 Pac. 467, 27 Pac. 273, construing said Bal. Code, § 5029, there mentioned as § 246, said: **As we regard it, § 246 is for the protection of court and parties. To the court it gives an opportunity to place upon record its view of the facts and the law in definite written form, sufficiently at large that there may be no mistake. To parties it furnishes the means of having their causes reviewed, in many instances, without great ex- pense. ' ' The only privilege of which the appellant has been de- j prived, if any, has been to bring an appeal to this court [ without a statement of facts based upon such findings as I the court would have signed if requested, but which, neces- < sarily, would have been against appellant upon the issues S joined. Such an appeal could not have benefited appellant i , in any manner whatever. In view of this fact, and, also, j; the further fact that appellant failed to request the court \ to make findings in accordance with its view of the evi- 1 dence, we think no error prejudicial to appellant has been A committed. In an action at law, either party has the right T to request a .trial court to make such findings of fact as ^36 Teial Pkactice [Chap. IS : it may deem proper, upon all the issues involved, or upon I any particular issue, which such party may deem mater- I ial or important, and such findings should then be made. I A mere request, however, to make certain findings in favor " of such party only, is not in itself sufficient. Of course, it is the proper and correct practice for a party to request findings in his own favor, to which he may think himself entitled, so that he may make proper exceptions to their refusal. But such findings in his favor having been re- -fused and excepted to, he must, if he desires to assign error on a failure to make any findings or conclusions whatever, also request the court to make such findings as it thinks the evidence warrants. This was not done by appellant in this action. We find no prejudicial error in the record. The judgment is affirmed. Mount, C. J., Eoot and Hadley, JJ., concur. FuLLEKTON and DuNBAK, JJ., concur in the result. I GRAHAM V. STATE, EX REL. BOARD OF COMMIS- L^^WdU (P^l SIGNERS. ^jjJ^J^^^^"^^ Supreme Court of Indiana. 1879. ^ u.< 66 Indiana, 386. ^. ^^ WoRDEN, C. J. — This was an action by the appellee, against the appellant, which resulted in a trial by the court, and a finding and judgment for the plaintiff, for the sura of two thousand dollars. The action was brought against Graham, as a surety on tlie official bond of Rufus Gale, as the auditor of Jefferson county. The bond was in the usual form of such bonds, but was in the penalty of five thousand dollars. Breaches of the bond were assigned, alleging, among other things, that Gale, during his term of office, had, as such auditor, drawn numerous warrants or orders upon the county treasury, payable to himself, for large amounts, and had presented them to the treasurer for redemption, who had paid the amount thereof to said Gale in redemption thereof; that Chap. 18] Teial and Findings by the Court 837 the orders were drawn without any order of the board of commissioners of the county, or authority of law. ********* *^* The defendant filed a motion for a venire de novo, be- cause the facts were not sufificiently found. And it is said in the brief of counsel for the appellant, that ''The failure of the court to find one way or the other, upon the facts, as to two of the breaches alleged in the complaint, leaves the issues as to those breaches untried, just as the verdict of a jury on one paragraph of a complaint consisting of several paragraphs leaves the issues on the other para- graphs untried, and in such a case a venire de novo is awarded." This makes it necessary to consider to some extent the nature and office of a special verdict or finding. The statute provides that ''A special verdict is that by which the jury find the facts only, leaving the judgment thereon to the court." 2 R. S. 1876, p. 171, sec. 335. The next following section provides that ''the court shall, at the request of either party, direct them" (the jury) "to give a special verdict in writing upon all or any of the issues." , JBy section 341, 2 E. S. 1876, p. 174, it is provided that upon trials of questions of fact by the court, if one of the parties request it, "the court shall first state the facts in writing, and then the conclusions of the law upon them." There is no difference between a special verdict and a special finding by the court, except that the special ver- dict finds the facts only, and the court afterward pro- nounces, or rather applies the law to the facts found, and renders judgment accordingly; while, in a special finding, the court states the conclusions of law upon the facts found, so that the parties can except to the conclusions. Neither a special verdict nor a special finding can do more in relation to facts than to find or state them. But what facts are to be thus found or stated? Clearly tJiose that are p roved upon the trial, and none ot her. When the speciaTvei-'dict has found the facts proved on the trial, it has performed its entire office; and when the special find- ing has stated the facts proved on the trial, it has per- formed its entire office, so far as the facts are concerned. 838 Trial Practice [Chap. IS Of course the facts may be proved by circumstances or otherwise, as in any other mode of trial. But suppose there are issues in the cause concerning which no evidence is given. There is nothing in such case in relation to those issues for the court or jur}^, in finding specially, to pass upon. No fact in relation to them has been proved, and, hence, no fact in relation to them is to 1^ , be found or stated, because, as we have seen^ the special t<^^4«tverdict or finding is confined to the facts proved. *dC ^ In the case sui:)posed, it would seem that, in rendering judgment, the issues concerning which no facts are found should be regarded as not proved by the party on whom the burden of the issue or issues lies. The judgment below is affirmed, with costs. CITY OF OWNESBORO V. WEIR. Court of Appeals of Kentucky. 1893. 95 Kentucky, 158. Judge Hazelrigg delivered the opinion of the court. The question involved in this appeal is the liability of the appellant, City of Owensboro, for the fee of the appel- lees — attorneys at law — for services rendered by them at the employment of the mayor of the appellant acting with- out the authority of the city council. The circumstances of the employment are set forth in an ''agreed case" and in the record in which the services were rendered. ********** But, say the appellees with earnestness, there was no statement by the court of its conclusions of fact found, sep- arately from its conclusions of law. Section 332 of the Civil Code provides that ''upon trials of questions of fact by the court, it shall not be necessary for the court to state its findings, except generally for the plaintiff or defendant, unless one of the parties request it, with a view of excepting to the decision of the court upon Chap. 18] Teial and Findings by the Couet 830 the questions of law involved in the trial; in which case, the court shall state in writing the conclusions of fact found, separately from the conclusions of law." Now upon an agreed state of fact, what could the court do in the way of stating "in writing the conclusions of fact found separately from the conclusions of law?" Simply copy or re-state the agreed state of fact! Clearly the court's judgment on the law only was asked. There was no trial of questions of fact. The case of Harris v. Ray, 15 B. M. 629, cited by counsel, simply determined that the provisions' of the Code regulating applications for a new trial applied to judgments by default. It has no bearing on the section quoted. GAINES & COMPANY V. WHYTE GROCERY « COMPANY. Kansas City Court of Appeals. 1904. 107 Missouri Appeal, 507, Smith, P. J. — The plaintiff and defendant are both busi- ness corporations, the former organized under the statute of this State and the latter under that of the State of Ken- tucky. The plaintiff in its petition alleged, (1), that it was and is the owner of a special trade-mark for "Old Crow" whiskey, which defendant had infringed and was infring- ing; and (2), that by the use of the words "Old Crow" upon bottles containing whiskey other than the genuine "Old Crow" whiskey produced by plaintiff which it offered to the trade, defendant thereby carried on such unfair trade and competition as entitled plaintiff to the injunctive process of the court. The defendant's answer, in addition to a general denial, interposed the defenses of laches and the statute of limitation. There was a trial and decree for plaintiff and defendant appealed. The defendant's final contention is, that the trial court erred in its refusal to make special finding of the facts 840 Tkial Practice [Chap. 18 and conclusions of law thereon. The statnte (section 695) doubtless applies to both legal and equitable actions, but while this is so, we do not think the failure to make a special finding in an action of the latter kind constitutes a reversible error, because the supervisory courts are au- thorized on appeal to try and determine such actions upon the pleadings and evidence de novo. The findings of the trial court, if any, may be entirely disregarded by the former tribunal and such findings and decree entered therein as seems to it to be meet and proper. The Legisla- ture did not, by the enactment of the statute already re- j ferred to, intend to abrogate the well and long-established practice of the appellate courts in supervising the findings of trial courts in equity cases, or to deprive the former of the jurisdiction to determine for themselves the correct- ness of the findings of the latter. Blount v. Spratt, 113 Mo. 48 ; McElroy v. Maxiuell, 101 Mo, 294 ; Benne v. Schnec- ko, 100 Mo. 250. If the supervisory courts are not bound by the findings of the trial courts, or their conclusions of law in equity cases, but may review the whole evidence and determine for themselves what the findings of fact and conclusions of law should be, it is difficult to see how a party could be prejudiced by the failure of the trial court to make special findings of fact, in such cases. The failure, therefore, of the court in the present case to make special finding of facts was not such an error as requires a reversal of the decree; and especially so since it was, as we think, clearly for the right party and the only one that could have been given in the cause. Accordingly, our conclusion is that the decree should be affirmed. All concur. Chap. 18] Tkial and Findings by the Couet 841 CITY OF BUFFALO V. DELAWAKE, LACKAWANNA & WESTERN RAILROAD COMPANY. Court of Appeals of New York. 1907, 190 New York, 84. The object of this action was to secure a judicial determ- ination that a portion of the river front in the city of Buffalo is a public street and to compel the defendant to remove certain obstructions therefrom. The main issue raised by the answer was whether the locus in quo, called Front street, was a public street when the action was com- menced. * * * The trial justice found the following facts, among others: * * * "Eighteenth. That said dock and wharf from the time of its erection down to the commencement of this action, and since, has been open to travel by vehicles and pedes- trians, except when such travel was temporarily obstructed by freight stored upon said dock or wharf, and the said dock or wharf has been used during the said times by vehicles and pedestrians, more largely by the latter than the former; that the greater number of persons using said dock or wharf for foot or vehicle traffic did so for the, purpose of reaching the stores and warehouses abutting on said wharf, and for the purpose of delivering supplies to the vessels lying thereat, or receiving passengers from such vessels, or transacting other business with said vessels. But it is equally true that many of the people using said dock and wharf, both for foot and vehicle traf- fic, used the same as a way of communication between Main street and points east of Washington street, and that many pedestrains constantly used said dock and wharf who had no business with the abutting stores and ware- houses, or the vessels lying at said dock." After finding the facts as thus stated the trial court found the following, which were designated as ''conclusions of law:" "Third: That for a period of six years and more prior to the commencement of this action the said premises 842 Tkial Peacticb [Cliap. 18 herein designated as 'Front street,' ceased to be traveled or used as a public highway, and ceased to be a highway for any purpose. ********** Vann, J. The trial court rendered judgment against the plaintiff on the theory that, although Front street be- came a public highway as early as 1826 through tender of dedication by the owners and acceptance by the municipal authorities, still it had ceased to be a public highway be- cause it had not been traveled or used as such for a per- iod of more than six years prior to the commencement of the action. While facts were found which sustain the con- clusion of law that Front street became a public highway through offer and acceptance, no finding of fact, classified as such, was made that the street had not been traveled or used as a public highway for the statutory period re- quired to effect an abandonment. {City of CoJioes v. Dela- ware (& Hudson Canal Co., 134 N. Y. 397 ; Matter of Hunter, 163 N. Y. 542, 548; L. 1861, ch. 311; L. 1890, ch. 568, § 99.) It is claimed that the third conclusion of law contains the finding of fact needed to support the judgment and that, although it is classified as a conclusion of law, since it is really a finding of fact the same effect should be given to it as if it had been so designated in the decision. The finding in question is one of fact or law. If it is the latter, the facts found do not support the judgment, because a street once in existence is presumed to continue until it ceases to be such owing to abandonment or some other lawful cause. {Cohoes Case, supra.) We think, however, that the finding, except the last clause thereof, is not one of law but of fact. The cessation of user and travel upon a street for the period prescribed involves a question of fact. Traveling upon a street is an act or a series of acts which can be seen and described. The use of a street for traveling purposes requires that something should be done thereon which is apparent to ordinary ob- servation. One may travel on a street by walking, riding or driving. Each method involves action and an act is a fact, as that word is known to jurisprudence. An error in the classification of findings by the trial court does not prevent an appellate court from classifying them for itself in accordance with their actual character. Chap. 18] Tbial and Findings by the Coult 84.S Giving a wrong name to a finding does not change its na- ture and if it is placed under the head of ''conclusions of law," when it is a finding of fact, it will be treated on appeal as what it really is, at least for the purpose of up- holding a judgment. {Berger v. Varrelmann, 127 N. Y. 281, 288; Christopher & Tenth Street R. R. Co. v. Tiventy -third Street R. R. Co., 149 N. Y. 51, 57.) As we have already seen, the judgment appealed from cannot stand unless the finding under consideration is a finding of fact, and it now remains to be seen whether it can stand even on that theory, since it is claimed that such finding of fact is in- consistent with other findings of fact, and hence must yield thereto at the election of the appellant in aid of his exceptions. It was upon this ground that one of the learned justices below based his dissent. What is the situation according to the findings when properly classified? About 1826 a public highway existed on the river front between Washington and Main streets. It still existed in 1838, when a dock was built by the abut- ting owners over and upon the land owned by them consti- tuting said highway, covering it for its entire width and length. From that time to this the abutting owners have used the dock for dock purposes and the general public have used it for highway purposes, neither use excluding the other altogether, although doubtless interfering with it to some extent. Under these circumstances what became of the street when the dock was built? Can abutting own- ers destroy a street in this way? Did the construction of the dock annihilate the highway? There is no statute which gives it that effect, and according to the common law the street leaped from the ground to the do«k and staid there. It is there now unless it has been abandoned by nonuser as we read the authorities. * * * When a private dock is built over a public street upon the shore of navigable waters, the dock becomes part of the street and the public has a right to travel over it. Owner- ship of the dock is not inconsistent with the existence of the street any more than ownership of the land over which the street extended. Assimiing that the defendant or its predecessors could lawfully build a dock over their own land in order to reach the river, still, as their land was 844 Trial Peactice [Chap. 18 subject to the right of the public to travel upon it, they could not unreasonably interfere with that right nor witli the existence of the street which was the foundation there- of. Two rights co-existed. The defendant, as owner of the river front, had the right to reach the water. As there was a street along the river front over the defendant's land the public had the right to use the street. The building of the dock changed neither right. Both continued to exist, although under changed conditions. They met but did not merge, nor did either destroy the other. The defendant had the right to use its dock, as a private dock, subject to the right of the public to travel over it, as they had pre\d- ously traveled upon the land over which it^ was built. The city had no right to use the dock for dock purposes, but its citizens had the right to use it for street purposes. While the street followed the dock, and covered the whole of it, that did not authorize the city to collect wharfage; and although the dock was private property the same as the land beneath it, that did not authorize the defendant to prevent the public from using it for the same purpose that they had previously used the land. The easement for travel still existed, but it was over the dock which took the place of the land constituting the street. The public had the right to travel in the same place and in the same direction that they had before, but instead of traveling upon the surface of the land, they were obliged to travel and had the right to travel upon the structure that the de- fendant had placed on the land. That structure became a street for the purpose of travel and a private dock for use as such, with a superior right in the public in case of conflict through reasonable use of the respective rights. ********** We have thus laid down the law applicable to the facts as found independent of the fact appearing in the third conclusion of law. It is clear that the latter, treated as a finding of fact that Front street had not been traveled or used as a public highway for more than six years, is in- consistent with the eighteenth finding of fact that the pub- lic used the dock continuously from the time it was built, both for foot and vehicle traffic, as a way of communication between Main street and points east of Washington street. The learned trial justice evidently regarded the street as Chap. 18] Trial and Finding by the Court 845 no longer in existence after the dock was built, and hence found that travel had ceased upon the street, although he found that it continued upon the dock which took the place of the street. He may thus have been misled into making the inconsistent findings. ** While an appellate court should harmonize inconsistent findings when it is possible to do so, if they prove irrecon- cilable it is the duty of the court to accept those most fav- orable to the appellant, and he is entitled to rely upon them in aid of his exceptions." {Israel v. Manhattan Ry. \\ Co., 158 N. Y. 624, 631 ; Nickell v. Tracy, 184 N. Y. 386. 390.) The finding that the street has been abandoned can- not be reconciled, according to our view of the law, with the finding that the dock has been used and traveled upon continuously as a street. We are, therefore, compelled to reject the former and to accept the latter, with the same force and effect as if it was the only finding upon the sub- ject appearing in the decision. This leaves the conclusion of law that the defendant is entitled to the exclusive use, possession and occupancy of Front street, and that the plaintiff is not possessed of any right, title or interest therein, without any finding to support it. The exception to this conclusion of law, as well as to the direction for judgment against the plaintiff, raised reversible error and requires us to reverse the judgment appealed from and to order a new trial, with costs to abide the event. CuLLEN, Ch. J., Gray, O'Brien, Werxee. Wh.lard Bart- LETT and Chase, JJ., concur. Judgment reversed, Etc, Table of Cases. Page Aaron v. Missouri & Kan. Teleph. Co. (1911) 84 Kan. 117 3b9 Altschuler V. Coburn (1894) 38 Neb. 881 467 Ambler v. Leach (1879) 15 W. Va. 677 17 Anderson v. First Nat. Bank of Grand Forks (1895) 5 N. D. 80 '. 771 Armstrong v. Whitehead (1902) 81 Miss. 35 617 Ashmead v. Ashmead (ISSO) 23 Kan. 282 323 Atchison, Topeka & S. Fe E. K. Co. v. Ayers (1895) 56 Kan. 176 *. ". 547 Atchison, Topeka & S. Fe *E. E. Co. v. Woodson (1909) 79 Kan. 567... 373 Bailey v. Drake (1895) 12 Wash. 99 776 Baker v. Brown (1909) 151 N. C. 12 * 650 Baker v. Summers (1903) 201 111. 52 372 Baldwin's Appeal from Probate (1876) 44 Conn. 37 488 Barry v. Wachosky ( 1899) C Neb. 535 73 Barwick v. Eouse (1907) 53 Fla. 645 44 Baxter v. Chicago & Northwestern Ey. Co. (1899) 104 Wis. 307 572 Bean v. Missoula Lumber Co. (1909) 40 Mont. 31 163 Belknap v. Charlton (1893) 25 Ore. 41 101 Bennett v. Perkins (1900) 47 W. Va. 425 293 iiertschy v. McLeod (1873) 32 Wis. 205 302 Bewick V. Muir (1890) 83 Cal. 368 9 Blake v. Ehode Island Company (1911) 32 E. I. 213 715 Boarman v. Hinckley (1897) 17 Wash. 126 770 Boggs V. Inter-American Mining and Smelting Co. (1907) 105 Md. 371 41 Bopp. V. New York Elec. Vehicle Trausp. Co. (1903) 177 N. Y. 33 33-i Bottineac Land & Loan Co. v. Hintze (1911) 150 la. 646 744 Boyce v. Chicago & Alton Ed. Co. (1906) 120 Mo. App. 168 426 Brooks V. Nevada Nickel Syndicate (1898) 24 Nev. 311 1 Brooks V. San Francisco & North Pac. Ey. Co. (1895) 110 Cal. 173 758 Brown v. Abilene Nat. Bank (1888) 70 Tex. 250 166 Brown v. Swineford (1878) 44 Wis. 282 497 Brown v. Wheeler (1901) 62 Kan. 676 712 Bull V. Matthews (1897) 20 E. I. 100 589 Buttram v. Jackson (1861) 32 Ga. 409 385 Buyken v. Lewis Construction Co. U909) 51 Wash. 627 415 Buzzell V. Snell (1852) 25 N. H. 474 245 Cahill V. Chicago, M. & St. P. Ey. Co. (1896) 20 C. C. A. 184 358 Caldwell v. Wells (1909) 16 Ida. 459 615 Cameron v. Wentworth (1899) 23 Mont. 70 482 Campbell v. Dreher (1908) 33 Ky. L. E. 444 360 Campbell v. Maher (1885) 105 Ind. 383 517 Capital City Bank v. Wakefield (1891) 83 la. 46 536 Carlton v. Darcy (1878) 75 N. Y. 375 , 305 Carpenter & Sons Company v. New York, New Haven & Hartford E. E. Co. (1903) 184 Mass. 98 307 Carroll v. Grande Eonde Elec. Co. (1907) 49 Ore. 477 322 Central Eailroad v. Harris (1886) 76 Ga. 501 449 Chesapeake & Ohio Ev. Co. v. Stock (1905) 104 Va. 97 459 Chicago & Alton E. E. Co. v. Clausen (1898) 173 111. 100 594 Chicago & Alton E. E. Co. v. Gore (1903) 202 111. 188 535 Chicago & Alton E. E. Co. v. Harrington (1901) 192 111. 9 541 Chicago & Alton E. E. Co. v. Kelly (1904) 210 111. 449 . . . 479 847 848 TABLE OF CASES. Page Chicago & Eastern 111. Rd. Co. v, Stewart (1903) 203 111. 223 718 Chicago & N. W, Ry. Co. v. Dunleavy (1889) 129 111. 132 521 Chicago City Ry. Co. v. Sandusky (1902) 198 111. 400 ! 455 Choate v. Spencer (1893) 13 Mont. 127 " 13 Cieerello v. Chesapeake & Ohio Ry. Co. (,1909) 65 W. Va, 439...!!!.. 167 Cincinnati, Indianapolis, St. L. <& Chicago Ry. Co. v. Case (1889) 122 Ind. 316 604 City of Buffalo v. Delaware, Lackawanna & Westein R. R. Co. (1907) 190 N. Y. 84 841 City of Chicago v. Moore (1891) 139 111. 201 441 City of Owensboro v. Wier (1893) 95 Ky. 158 838 City of St. Joseph v. Robisvin (1894) 125 Mo. 1 775 Cleveland, Columbus, Cincinnati & Indianapolis Ry. Co. v. Asbury (1889) 120 Ind. 289 .549 Cline V. Lindsey (1886) 110 Ind. 337 470 Cobb V. Wm. Kenefick Company (1909) 23 Okla. 440 275 Coffer V. Erickson (1911) 61 Wash. 559 723 Coffeyville Vitrified Brick Co. v. Zimmerman (19U0) 61 Kan. 750 538 Cohen v. Krulewitch (1902) 77 N. Y. App. Div. 126 761 Commonwealth v. Barry (1864) 9 Allen (Mass.) 276 400 Copeland v. New England Ins. Co. (1839) 22 Pick (Mass.) 135 281 Corbett v. Physicians' Casualty Ass'n (1908) 135 Wis. 505 140 Corley v. New York & Harlem Rd. Co. (1896) 12 N. Y. App. Div. 409. . 657 Coughlin V. People (1893) 144 111. 140 225 Crabtree v. Reed (1869) 50 111. 206 466 Craig & Co. v. Pierson Lumber Co. (1910) 169 Ala. 548 648 Crosby v. Farmer (1888) 39 Minn. 305 87 Cruikshank v. St. Paul Fire & Marine Ins. Co. (1899) 75 Minn. 266 582 Danville, etc., R. R. Co. v. Rhodes (1897) 180 Pa. St. 157 149 Darcey v. Farmers' Lumber Co. (1894) 87 Wis. 245 570 Darling v. Miles (1911) 57 Ore. 593 831 D'Autremont v. Anderson Iron Co. (1908) 104 Minn. 165 52 Devine v. Fed. Life Ins. Co. (1911) 250 111. 203 557 Diddle v. Continental Casualty Co. (1909) 65 W. Va. 170 378 Douda V. Chicago, R. I. & P. Ry. Co. (1909) 141 la. 82 413 Drake v. Justice Gold Mining Co. (1904) 32 Colo. 259 560 Draper v. Taylor (1899) 58 Neb. 787 801 Dubcich V. Grand Lodge Ancient Order of United Workmen (1903) 33 Wash. 651 621 Eggleston v. Wattawa (1902) 117 la. 676 2 Eldred v. Bank (1873) 17 Wall. (U. S.) 545 142 Ellis V. Martin Automobile Co. (1909) 77 N. J. L. 339 735 Elmen v. C. B. & Q. R. R. Co. (1905) 75 Neb. 37 24 Empire State Cattle Co. v. Atch. T. & S. F. Ry. Co. (1907) 210 U. S. 1. . 348 Evansville & Southern Traction Co. v. Spiegel (1911) — Ind. App. — ; 94 N. E. 718 555 Ferguson v. Ingle (1900) 38 Ore. 43 321 Fertig v. State (1898) 100 Wis. 301 504 Fifer v. Ritter (1902) 159 Ind. 8 478 First National Bank v. Peck (1871) 8 Kan. 660 564 Fisher Sons & Go. v. Crowley (1906) 57 W. Va. 312 135 Fitzpatrick v. Harris (1855) 16 B. Mon. (Ky.) 561 633 Flesher v. Hale (1883) 22 W. Va. 44 652 Florence, El Dorado & Walnut Valley Rd. Co. v. Ward (1883) 29 Kan. 354 641 Floyd V. Colo. Fuel & Iron Co. (1897) 10 Colo. App. 54 578 Fort Wayne & Belle Isle Ry. Co. v. Wayne Circuit Judge (1896) 110 Mich. 173 746 Fosdick V. Van Arsdalr (1889) 74 Mich. 302 262 TABLE OF CASES. 849 Fowler v. Towle (1870) 49 N. H. 507 820 Francisco v. Chicago & Alton R. R. Co. (1906) 79 C. C. A. 292 315 Fritz V. Clark ( 1881 ) SO Ind. 591 290 Fulton V. Ramsey (1910) 67 W. Va. 321 105 Gaines & Co. v. Whyte Grocery, Fruit & Wine Co. (1904) 107 Mo. App. 507 839 Galveston, Harrisburg & San Antonio Ry. Co. v. Templeton (1894) 87 Tex. 42 288 Gardner v. Meeker (1897) 169 111. 40 253 German v. Maquoketa Savings Bk. (1874) 38 Iowa 368 710 German-American Ins. Co. v. Harper (1902) 70 Ark. 305 507 Gila Valley, Globe & Northern Ry. Co. v. Hall (1911) 13 Ariz. 270 765 Giles V. Giles (1910) 204 Mass. 383 346 Goff V. Kokomo Brass Works ( 1908 ) 43 Ind. App. 642 215 Gotzian v. McCuUum (1896) 8 S. D. 186 670 Graham v. Consolidated Traction Co. (1900) 65 N. J. L. 539 689 Graham v. State ex rel. Board of Commissioners (1879) 66 Ind. 386.. 836 Gray v. Commonwealth (1895) 92 Va. 772 586 Greenleaf v. Peoples Bank ( 1903 ) 133 N. C. 292 95 Greer v. Young (1887) 120 111. 184 116 Griffin v. O'Neil (1891) 47 Kan. 116 661 Gunn V. Union Rd. Co. (1901) 23 R. I. 289 607 Gustafson v. Seattle Traction Co. (1902) 28 Wash. 227 474 Hamilton v. Wright (1868) 37 New York 502 146 Hansell-Elcock Foundry Co. v. Clark (1905) 214 111. 399 519 Hansen v. Fish ( 1871 ) 27 Wis. 535 768 Hanson v. Kline ( 1907 ) 136 la. 101 408 Harness v. Oraveas (1894) 126 Mo. 233 46 Harrington v. Manchester & Lawrence Rd. (1882) 62 N. H. 77 623 Harrison v. Sutter St. Ry. Co. (1897) 116 Cal. 156 685 Hartford Fire Ins. Co. v. Hammond (1907) 41 Colo. 323 165 Hayes v. Ionia Circuit Judge (1900) 125 Mich. 277 777 Hellman v. Adler & Sons Clothing Co. (1900) 60 Neb. 580 780 Hensley v. Davidson Bros. Co. (1907) 135 la. 106 747 Herz V. Frank ( 1898 ) 104 Ga. 638 782 Higgins V. Wren (1900) 79 Minn. 462 476 Hill V. McKay (1907) 36 Mont. 440 672 Hoover v. Horn (1909) 45 Colo. 288 277 Hopkins v. Railroad (1895) 96 Tenn. 409 296 Hoskins v. Hight (1891) 95 Ala. 284 666 Hubbard v. Rutland R. R. Co. (1908) 80 Vt. 462 587 Illinois Cent. R. R. Co. v. Johnson (1906) 221 111. 42 381 Ins. Trust & Ageocy v. Failing (1903) 66 Kan. 336 144 Jacksonville, Tampa & Key West Ry. Co. v. Neff (1891) 28 Fla. 373. . 404 Jaffe V. LilienThal (1894) 101 Cal. 175 175 Jewel V. Blandford (1838) 7 Dana 472 605 Johns V. Hodges (1883) 60 Md. 215 631 Johnson v. Josephs ( 1884 ) 75 Me. 544 243 Jones V. Bibb Brick Co. (1904) 120 Ga. 321 76 Karrer v. City of Detroit (1905) 142 Mich. 331 417 Kauffman v. Maier ( 1892 ) 94 Cal. 269 463 Keller v. Stevens (1886) 66 Md. 132 598 Kennedy v. Lamb (1905) 182 N. Y. 228 64 King v. Gilson (1907) 206 Mo. 264 795 Kleutsch V. Security Mutual Life Ins. Co. (1904) 72 Neb. 75 394 Klofski V. Railroad Supply Co. ( 1908) 235 111. 146 444 Knights of Pythias v. Steele ( 1901 ) 107 Tenn. 1 635 Krakower V. Davis (1897) 20 Misc. (N. Y.) 350 772 T. P.— 54 850 TABLE OF CASES. Krotter & Co. v. Norton (1909) 84 Neb. 137 39 Kumli V. Southern Pacific Co. (1892) 21 Ore. 505 197 Lake Ontario Nat. Bank v. Judson (1890) 122 N. Y. 278 250 Layman v. Minneapolis St. Ry. Co. (1896) 66 Minn. 452 713 Lawyer Land Co. v. Steel (1906 ) 41 Wasli. 411 7 Lee V. Conran '(1908) 213 Mo. 404 181 Life Ins. Co. of Va. v. Hairston (1908) 108 Va. 832 428 Lindley v. Atchison, T. & S. F. Rd. Co. (1891) 47 Kan. 432 270 Linton v. Heye (1903) 69 Neb. 450 130 Loftus V. Metropolitan St. Ry. Co. (1909) 220 Mo. 470 751 Louisville, Henderson & St. Louis Ry. Co. v. Schwab (1907) 127 Ky. 82 188 Louisville Home Tel. Co. v. Beeler's Adm'x (1907) 125 Ky. 366 126 Louisville, New Albany & Chicago Ry. Co. v. Worley (1886) 107 Ind. 320 539 Louisville & Nashville Rd. Co. v. Reaume (1908) 32 Ky. L. R. 946.. 490 Lowe V. Morris (1853) 13 Ga. 147 11 Lyman v. Milton (1872) 44 Cal. 632 4 Lynch v. Snead Architectural Iron Works (1904) 132 Ky. 241 697 McBride v. Des Moines City Ry. Co. (1907) 134 la. 398 422 McCarthy v. Spring Valley Coal Co. (1908) 232 111. 473 495 McDivitt v. Des Moines City Ry. Co. (1909) 141 la. 689 446 McDonald v. Metropolitan St. Ry. Co. (1901) 167 N. Y. 66 343 McDonald v. State (1909) 172 Ind. 393 230 McKenzie v. Boynton (1910) 19 N. D. 531 38 McLean v. Erie Rd. Co. (1903) 69 N. J. L. 57 469 Mattox V. United States (1892) 146 U. S. 140 811 Maund v. Loeb (1888) 87 Ala. 374 180 Mehnert v. Thieme (1875) 15 Kan. 368 659 Memphis St. Ry. Co. v. Johnson (1905) 114 Tenn. 632 791 Meyer v. Houck (1892) 85 la. 319 338 Mitchell V. Town of Fond du Lac (1871) 61 111. 174 375 Moore v. Chicago, St. L. & New Orleans Rd. Co. (1881) 59 Miss. 243. . 720 Morgan v. Mulhall (1908) 214 Mo. 451 452 Murphy v. Central of Georgia Ry. Co. (1910) 135 Ga. 194 430 Murphy's Executor v. Hoagland (1908) 32 Ky. L. R. 839 509 North Center Creek Mining & Smelting Co. v. Eakins (1880) 23 Kan. 317 756 Nellums v. Nashville (1900) 106 Tenn. 222 677 Nelson v. C. B. & Q. R. R. Co. (1906) 225 111. 197 59 Neosho Valley Investment Co. v. Cornell (1899) 60 Kan. 282 123 Newman v. Perrill (1880) 73 Ind. 153 597 New York Firemen Ins. Co. v. Walden (1815) 12 Johns (N. Y.) 513.. 387 Nicholson r. Metcalf (1904) 31 Mont. 276 721 Oberlander v. Fixen (1900) 129 Cal. 690 732 Oppenheimer v. Elmore (1899) 109 la. 196 310 Owensboro Wagon Co. v. Boling (1908) 32 Ky. L. R. 816 411 Parker v. Marco (1893) 136 N. Y. 585 91 Parker v. National Mut. Bldg. & Loan Ass'n (1904) 55 W. Va. 134 432 Parsons v. Hill (1900) 15 App. Cas. D. C. 532 28 Parsons v. Lewiston, Brunswick & Bath St. Ry. (1902) 96 Me. 503.. 727 Pelican Assurance Co. v. Am. Feed & Grocery Co. (1909) 122 Tenn. 652 585 People V. Bank of San Luis Obispo (1910) 159 Cal. 65 784 Peterson v. Metropolitan St. Ry. Co. (1908) 211 Mo. 498 155 Phillips V. Rhode Island Co. (1910) 32 R. I. 16 802 Pietsch V. Pietsch (1910) 245 111. 454 266 Pittsburgh, Cincinnati, Chicago & St. L. Ry. Co. v. City of Chicago (1908) 144 111. App. 293 591 Pittsburgh, Cincinnati, Chicago & St. L. Ry. Co. v. Grom (1911) 142 Ky. 51 152 Plunkett V. Detroit Electric Ry. Co. (1905) 140 Mich. 299 577 Pointer v. United States (1894) 151 U. S. 396 220 TABLE OF CASES. 851 Rahles v. J. Thompson & Sons Mfg. Co. (1909) 137 Wis. 506 15S Ralnger v. Boston Mut. Life Ass'n (1897) 167 Mass. 109 356 Rankin v. Caldwell (1908 ) 15 Ida. 625 171 Redding v. Puget Sound Iron & Steel Works (1905) 36 Wash. 642 272 Roggencamp v. Dobbs ( 1884 ) 15 Neb. 620 779 Runyan v. Kanawha Water & Light Co. (1911) 68 W. Va. 609 551 Rutherford v. Talent ( 1886 ) 6 Mont. 112 798 Ryan v. Rockford Ins. Co. (1890) 77 Wis. 611 534 St. Louis & San Francisco Rd. Co. v. Werner (1904) 70 Kan. 190 737 St. Louis & San F. Ry. Co. v. Bricker (1899) 61 Kan. 224 562 St. Louis, Iron Mountain & Southern Ry. v. Vickers (1887) 122 U. S. 360 392 San Miguel Consolidated Gold Mining Co. v. Bonner (1905) 33 Colo. 207 263 Schumacher v. Crane-Churchill Co. (1902) 66 Neb. 440 184 Scripps V. Reilly ( 1877 ) 35 Mich. 371 255 Scurlock V. City of Boone ( 1909 ) 142 la. 580 461 Seaboard & Roanoke R. R. Co. v. Joyner's Adm'r (1895) 92 Va. 354. . 425 Searle v. Roman Catholic Bishop of Springfield (1909) 203 Mass. 493. 211 Series v. Series (1899) 35 Ore. 289 679 Seward v. Cease (1869) 50 111. 228 789 Simpson v. Budd (Cal. 1891) 27 Pac. 758 773 Slayton v. Felt (1905) 40 Wash. 1 833 Smalley v. Rio Grande Western Ry. Co. (1908) 34 Utah 423. 325 Smoot V. Judd (1904) 184 Mo. 508 79 Southern Ry. Co. v. Miller (1909) 217 U. S. 209 314 Standard Cotton Mills v. Cheatham (1906) 125 Ga. 649 380 Standard Sewing Mach. Co. v. Royal Ins. Co. (1902) 201 Pa. St. 645. . 566 State V. Cady (1888) 80 Me. 413 236 State V. Davis (1888) 31 W. Va. 390 238 State V. Dick (1864) 60 N. C. 440 398 State V. Legg (1906) 59 W. Va. 315 439 State V. Mvers (1906) 198 Mo. 225 227 State V. Phares (1884) 24 W. Va. 657 620 State V. Wright ( 1865 ) 53 Me. 328 360 State ex rel. Henry W. Bond v. Fisher (1910) 230 Mo. 325 599 Stauffer v. Reading (1903) 206 Pa. St. 479 763 Staunton Coal Co. v. Menk (1902) 197 111. 369 662 Sternberg v. Levy (1901) 159 Mo. 617 279 Tathwell v. City of Cedar Rapids (1903) 122 la. 50 691 Taubert v. Taubert (1908) 103 Minn. 247 420 Terrapin v. Barker (1910) 26 Okla. 93 161 Theobald v. St. Louis Transit Co. (1905) 191 Mo. 395 203 Toledo, St. L. & W. Rd. Co. v. Burr (1910) 82 Ohio St. 129 501 Trustees of Schools v. Yoch (1908) 133 111. App. 32 418 Ullman v. State (1905) 124 Wis. 602 192 Underwood v. Old Colony St. Ry. Co. (1910) 31 R. L 253 645 United States v. Christensen (1890) 7 Utah .26 637 Usborn v. Stephenson (1899) 36 Ore. 328 177 Utah Nat. Bank v. Nel.son (1910) — Utah — ; 111 Pac. 907 826 Valerius v. Richard ( 1894 ) 57 Minn. 443 739 Vose V. Mayo (1871) 3 Cliff. (U. S.) 484 800 Wabash Railroad Co. v. Ray (1899) 152 Ind. 392 569 Wabash Western Rv. Co. v. Brow (1896) 164 U. S. 271 132 Wagoner v. Hazle fwp. ( 1906 ) 215 Pa. St. 219 493 Walker v. New Mex. & Pac. Rd. Co. (1S97) 165 U. S. .^93 530 Wall V. Chesapeake & Ohio Ry. Co. (1899) 37 C. C. A. 129 112 Wallace v. United Electric Co. (1905) 211 Pa. St. 473 69 Waller v. Graves ( 1850 ) 20 Conn. 305 705 Ward Y. Brown (1903) 53 W. V^, 227 486 852 TABLE OF CASES. Wells V. Smith (1901) 49 W. Va. 78 241 West Kentucky Coal Co. v. Davis (1910) 138 Ky. 667 434 West. Un. Tel. Co. v. Chamblee ( 1898 ) 122 Ala. 428 664 Wharton, In re Estate of ( 1907 ) 132 la. 714 468 Whittlesey v. Burlington, Cedar Rapids & Northern Ry. Co. (1903) 121 la. 597 726 Wilkinson v. The People ( 1907 ) 226 111. 135 514 Williams v. Brooklyn Elevated R. R. Co. (1891) 126 N. Y. 96 511 Wilson V. Wapello County (1905) 129 la. 77 208 Winchell v. Town of Camillus (1905) 109 N. Y. App. Div. 341 376 Winfleld Bldg. & Loan Ass'n v. McMullen (1898) 59 Kan. 493 703 Wolf V. Chicago Sign Printing Co. (1908) 233 111. 501 352 Wolfgram v. Town of Schoepke ( 1904 ) 123 Wis. 19 815 York v. Stiles (1899) 21 R. L 225 754 LAW LIBRARY OF LOS ANGELES COUNTY y UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 859 629 8 pi^i w^ ;*' *;:^